General terms of sale and delivery
of KAAST Werkzeugmaschinen GmbH
(As of March 2018)
General / scope
The offers, deliveries and services of KAAST Werkzeugmaschinen GmbH are made exclusively on the basis of these terms and conditions of sale and delivery (hereinafter: "Terms and Conditions"). These are part of all contracts that KAAST Werkzeugmaschinen GmbH concludes with its contractual partners (hereinafter: "Customers") for the deliveries and services it offers. They also apply - in their current version - to all future offers, deliveries and services, even if they are not separately agreed again.
The customer's conditions do not apply to the contractual relationship with KAAST Werkzeugmaschinen GmbH, unless KAAST Werkzeugmaschinen GmbH has expressly agreed to their validity in individual cases in writing. The terms and conditions of KAAST Werkzeugmaschinen GmbH also apply if the latter unconditionally carries out a delivery to the customer or provides a service to the customer in the knowledge of conflicting or deviating terms and conditions of the customer.
Offer and conclusion of contract
The offers of KAAST Werkzeugmaschinen GmbH are always subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period.
An order from the customer must be made in writing and stating a corresponding order number. The customer is bound to his order for a period of two (2) weeks.
A binding contract is always only concluded with the written order confirmation from KAAST Werkzeugmaschinen GmbH.
With regard to the scope of the delivery and service obligations of KAAST Werkzeugmaschinen GmbH, only their order confirmation is decisive. Information in text or image form published by KAAST Werkzeugmaschinen GmbH in offers, on the Internet, in catalogs, in brochures or in other publications (e.g. descriptions, images, weight and dimensions or drawings) on the quality of products and their possible uses do not constitute guarantees of quality and only become part of the contract if this is expressly agreed in writing.
KAAST Werkzeugmaschinen GmbH reserves the right to make design and other changes, in particular those that serve to improve the product or meet legal requirements, provided that these do not impair the usability for the contractually intended purpose or are not unreasonable for the customer for other reasons.
KAAST Werkzeugmaschinen GmbH reserves all rights, in particular ownership and copyright, to the documents, drawings, images, specifications, samples, etc. made available to the customer. The customer may only use them within the scope of the contractually intended purpose. They are to be treated with strict confidentiality and may not be made accessible to third parties without the prior written consent of KAAST Werkzeugmaschinen GmbH. Upon request, all documents etc. handed over to the customer must be returned to KAAST Werkzeugmaschinen GmbH.
Insofar as the customer provides information and / or documents (e.g. drawings, images, etc.) or samples in connection with an order from KAAST Werkzeugmaschinen GmbH, the customer assumes liability for the correctness and completeness of the same and for the fact that this no rights of third parties are violated.
Unless otherwise agreed in writing, the agreed prices are ex works exclusive of shipping, insurance and packaging, which are invoiced separately by KAAST Werkzeugmaschinen GmbH. Any customs duties, fees or similar charges will also be charged separately, provided they are to be borne by KAAST Werkzeugmaschinen GmbH.
The agreed prices are net prices without sales tax, which the customer has to pay additionally in the case of sales taxable transactions at the statutory rate.
Unless a fixed price has been expressly agreed, the agreed prices are binding up to the delivery date stated in the order confirmation from KAAST Werkzeugmaschinen GmbH. If this has not been agreed, KAAST Werkzeugmaschinen GmbH is bound to the agreed prices for a period of four (4) months from the order confirmation. Thereafter, KAAST Werkzeugmaschinen GmbH is entitled, in accordance with Section III. 4. to make reasonable price increases of these terms and conditions. This does not apply in the event that KAAST Werkzeugmaschinen GmbH is in default of delivery.
If, according to the conditions set out in Section III. 3. If the raw material prices for the respective product are significant (ie by at least ten (10)%) in these terms and conditions, KAAST Werkzeugmaschinen GmbH is entitled to increase the prices appropriately, taking into account the legitimate interests of the customer. To calculate the price increase that has occurred for the relevant raw materials, publicly accessible sources are to be used.
If, according to the conditions set out in Section III. 3. If the times stated in these terms and conditions increase other significant cost factors such as energy, wage, transport or insurance costs significantly (ie by at least ten (10)%), KAAST Werkzeugmaschinen GmbH is also responsible for an appropriate increase in prices in accordance with the above regulation justified taking into account the legitimate interests of the customer. The same applies in the event of exchange rate fluctuations.
Terms of payment
Unless otherwise agreed in writing, all payments are to be made in euros and free of charge for KAAST Werkzeugmaschinen GmbH to the paying agent specified in the respective invoice.
Invoices are to be paid regularly within seven (7) days of the invoice date without any deduction, unless otherwise agreed in writing. Payments are deemed to have been made from the date on which KAAST Werkzeugmaschinen GmbH can freely dispose of the invoice amount.
If the customer exceeds the payment deadline, KAAST Werkzeugmaschinen GmbH is entitled to charge interest of nine (9) percentage points above the base rate (§ 247 BGB) pa. In addition, KAAST Werkzeugmaschinen GmbH reserves the right to prove that it incurred greater damage as a result of the customer's default in payment.
Failure to comply with the agreed terms of payment or circumstances that have become known to KAAST Werkzeugmaschinen GmbH after the conclusion of the contract, which are likely to significantly reduce the customer's creditworthiness, result in the immediate maturity of all claims by KAAST Werkzeugmaschinen GmbH against the customer. In such a case, KAAST Werkzeugmaschinen GmbH is also entitled to carry out outstanding deliveries or services only against prepayment or security.
The customer is only entitled to offset if his counterclaims have been legally established, are undisputed or have been recognized by KAAST Werkzeugmaschinen GmbH. Furthermore, the customer is only entitled to exercise a right of retention if his counterclaim is due and is based on the same contractual relationship.
Delivery / performance time
Unless a fixed delivery / service period or a fixed delivery / service date is expressly agreed in the order confirmation, the periods and dates promised by KAAST Werkzeugmaschinen GmbH are always non-binding. The specification of deadlines and dates is generally subject to timely and proper self-delivery and the contractual cooperation of the customer. Subsequent changes requested by the customer as well as the failure to provide any documents to be provided by the customer (permits, releases, etc.) as well as any agreed down payments or payment securities require a corresponding extension of the prospect of deadlines and dates. A delivery period is met if the delivery item has left the factory or warehouse of KAAST Werkzeugmaschinen GmbH or a third party commissioned by KAAST Werkzeugmaschinen GmbH with the delivery by its expiry, or if the customer is responsible for transporting the delivery item himself , the customer has been informed of the readiness for dispatch.
If KAAST Werkzeugmaschinen GmbH is behind schedule with a delivery or service or if this becomes impossible, the customer is entitled to withdraw from the contract in accordance with the statutory provisions. In the event of delay or impossibility, KAAST Werkzeugmaschinen GmbH is only liable for damages in accordance with the provisions of Clause IX. of these terms and conditions.
Events of force majeure entitle KAAST Werkzeugmaschinen GmbH to postpone a delivery or service for the duration of the hindrance as well as an appropriate start-up time or, if the legal requirements are met, to withdraw from the contract in whole or in part due to the not yet fulfilled part of the contract. Force majeure is equivalent to strikes, lockouts, political unrest, official interventions (for example the refusal of the necessary export or import permits) or other unforeseen circumstances, e.g. operational disruptions, which make it impossible for KAAST Werkzeugmaschinen GmbH to deliver or provide services on time despite reasonable efforts. This also applies if the aforementioned hindrances occur during the delay or at a sub-supplier of KAAST Werkzeugmaschinen GmbH. KAAST Werkzeugmaschinen GmbH will inform the customer immediately if a case of force majeure occurs within the meaning of this Section V. 3. of these terms and conditions.
If a delivery is delayed at the request of the customer or for other reasons for which the customer is responsible, KAAST Werkzeugmaschinen GmbH is entitled to charge the customer a storage fee of zero point five (0.5)% of the order value of the respective delivery for each month or part thereof. however, a maximum of five (5)% of the order value of the respective delivery must be invoiced. The parties are at liberty to provide evidence of higher or lower damage as a result of the delayed delivery.
Appropriate partial deliveries are permitted to a reasonable extent, provided that a partial delivery can be used by the customer within the scope of the contractual intended purpose, the remainder of the delivery is ensured and the customer does not incur any additional costs or considerable additional work as a result. They are considered to be independent transactions and are charged separately.
Dispatch, transfer of risk and receipt
Unless otherwise agreed in writing, delivery takes place ex works or warehouse in Neumünster (for foreign customers: Incoterm "EXW - Ex Works").
If the delivery item is sent to a location other than the place of performance at the customer's request, the customer shall bear all costs incurred. KAAST Werkzeugmaschinen GmbH is free to choose the transport route and the transport company. The customer must report any transport damage in writing immediately after receipt of the delivery item according to the type and scope. The delivery item is only insured against transport, theft, breakage, fire and water damage or other insurable risks at the express request of the customer and at the customer's expense.
In the case of deliveries ex works, dispatch and transport are always at the risk of the customer. This also applies if delivery is made from the warehouse of a third party (drop shipment). The risk passes to the customer, even in the case of partial deliveries, as soon as the consignment has been handed over to the person carrying out the transport or has left the factory or warehouse for the purpose of dispatch. If the dispatch is delayed for reasons that lie with the customer, or if the customer has to take care of the transport of the delivery item himself, the risk is transferred to the customer upon notification of readiness for dispatch.
In the case of deliveries free domicile / warehouse, the risk is transferred to the customer, even in the case of partial deliveries, as soon as the goods have arrived at the place of delivery ready for unloading. The customer must unload immediately and properly. Waiting times are calculated as is customary in the industry. If the journey to the place of delivery fails for reasons that are in the customer's risk area, the risk passes to the customer if the journey fails. This also applies in the event of an unjustified refusal of acceptance by the customer.
If the customer is in default of acceptance, KAAST Werkzeugmaschinen GmbH is entitled to otherwise dispose of the delivery item after an unsuccessful expiry of a reasonable period and to deliver to the customer within an appropriately extended period.
Deliveries, even if they show minor defects, are to be accepted by the customer without prejudice to his rights under Item VIII of these Terms and Conditions and must not be returned to KAAST Werkzeugmaschinen GmbH before the customer is entitled to withdraw from the contract in accordance with Item VIII. 4 of these Terms and Conditions.
Retention of title
KAAST Werkzeugmaschinen GmbH retains ownership of the items delivered to the customer (reserved goods) until all claims against the customer arising from the business relationship, including future claims, including those from contracts concluded at the same time or later, have been met. This also applies if individual or all claims from KAAST Werkzeugmaschinen GmbH have been included in a current invoice and the balance has been drawn and recognized.
The customer is obliged to mark the reserved goods as such, to store them separately from other goods and to treat them with care. Furthermore, he is obliged to insure the reserved goods at his own expense against fire, water and theft at replacement value. The customer may not pledge the reserved goods or assign them as security.
If KAAST Werkzeugmaschinen GmbH withdraws from the contract due to the customer's behavior contrary to the contract, in particular due to default in payment, the customer must bear all costs of repossession of the reserved goods by KAAST Werkzeugmaschinen GmbH. The goods subject to retention of title are taken back at the proceeds obtained from the sale by KAAST Werkzeugmaschinen GmbH. In the event of seizure or other interventions by third parties, the customer must immediately notify KAAST Werkzeugmaschinen GmbH in writing and provide all necessary information and inform the third party about the existing ownership structure.
The processing or transformation of the reserved goods by the customer always takes place for KAAST Werkzeugmaschinen GmbH as the manufacturer within the meaning of § 950 BGB, without obliging KAAST Werkzeugmaschinen GmbH. If the reserved goods are processed or inseparably connected with other items belonging to the customer that do not belong to KAAST Werkzeugmaschinen GmbH, KAAST Werkzeugmaschinen GmbH acquires co-ownership of the new item in the ratio of the objective value of the reserved goods to the other processed items at the time of processing or processing. Connection. If the connection is made in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer shall transfer proportional co-ownership to KAAST Werkzeugmaschinen GmbH, which the customer will keep free of charge for KAAST Werkzeugmaschinen GmbH. The same rules apply to the item resulting from processing or connection as to the goods subject to retention of title.
The customer is entitled to resell the reserved goods in the ordinary course of business as long as he is not in default of payment to KAAST Werkzeugmaschinen GmbH. However, he already now assigns all claims with all ancillary rights to KAAST Werkzeugmaschinen GmbH that accrue to him from the resale of the reserved goods to his customer or third parties, regardless of whether the reserved goods are resold without or after processing. The customer is authorized to collect these claims even after the assignment to KAAST Werkzeugmaschinen GmbH. The authority of KAAST Werkzeugmaschinen GmbH to collect the claims itself remains unaffected by this; However, KAAST Werkzeugmaschinen GmbH undertakes not to collect the claims as long as the customer duly fulfills his payment obligations towards it, is not in default of payment and in particular no application has been made to open insolvency proceedings against the customer's assets or the customer has suspended payments . KAAST Werkzeugmaschinen GmbH can at any time request that the customer notify it of the assigned claims and its customers, provide all information required for collection, hand over the associated documents and disclose the assignment to its customers.
If the value of the securities existing in favor of KAAST Werkzeugmaschinen GmbH exceeds their total claims against the customer by more than twenty (20)%, KAAST Werkzeugmaschinen GmbH is obliged to release securities of its choice at the customer's request.
Claims for defects on the part of the customer require that the customer has properly complied with the statutory inspection and complaint obligations. The customer must declare any complaint to KAAST Werkzeugmaschinen GmbH in writing, specifying the type and scope of the defect so that it can check the justification of the complaint.
If the customer's complaint is wrongly made, KAAST Werkzeugmaschinen GmbH is entitled to demand compensation from the customer for the expenses incurred in connection with checking the justification of the complaint.
In the event of a justified and timely notification of defects, the customer initially only has a right to supplementary performance, which KAAST Werkzeugmaschinen GmbH can choose by removing the defect (repair) or by delivering non-defective goods (replacement delivery). KAAST Werkzeugmaschinen GmbH bears the expenses required for the purpose of subsequent performance in accordance with the statutory provisions. If the customer justifiably asserts costs in this context that he has incurred from the use of his own employees or his own materials, the customer's reimbursement claims are limited to his own costs. If the expenses required for the purpose of supplementary performance increase because the delivery item was brought to a location other than the agreed delivery location at the request of the customer, the additional costs incurred as a result must be borne by the customer.
If KAAST Werkzeugmaschinen GmbH is unable to remedy the defect or to deliver a replacement, KAAST Werkzeugmaschinen GmbH refuses to do so, if the removal of the defect or replacement delivery is delayed beyond a reasonable period for reasons for which KAAST Werkzeugmaschinen GmbH is responsible, or at least suggests the removal of the defect fail twice, the customer is entitled, at his option, to withdraw from the contract or to request a corresponding reduction in the purchase price. In the case of a partial delivery, the customer is entitled to withdraw from the entire contract or to pay compensation instead of the entire service in accordance with the provisions in Section IX. of these terms and conditions only if he has no interest in the partial service provided, applying an objective standard.
The warranty does not apply if the customer processes the delivery item without authorization or has it processed by third parties without the consent of KAAST Werkzeugmaschinen GmbH and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer has to bear the additional costs of remedying the defect resulting from the processing. KAAST Werkzeugmaschinen GmbH is also not liable for improper or unsuitable use, in particular improper installation, excessive stress, incorrect assembly or incorrect use by the customer or third parties, natural wear and tear, disregard of instructions for use or otherwise incorrect treatment or handling.
The limitation period for claims for supplementary performance, withdrawal and reduction in price due to defects is twelve months from the transfer of risk.
KAAST Werkzeugmaschinen GmbH is liable for damages, irrespective of the legal reason, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations or tort, exclusively in accordance with the provisions in Section IX of these terms and conditions. Otherwise any liability for damages is excluded.
KAAST Werkzeugmaschinen GmbH is liable within the framework of the statutory provisions for willful and grossly negligent behavior, for injury to life, limb and health as well as for guaranteed characteristics and in accordance with the provisions of the Product Liability Act.
In addition, KAAST Werkzeugmaschinen GmbH is liable for damage resulting from a slightly negligent breach of essential contractual obligations. Essential to the contract are those obligations, the fulfillment of which enables the proper fulfillment of the contract in the first place and on the observance of which the customer regularly trusts and may rely.
The liability of KAAST Werkzeugmaschinen GmbH is limited to the amount of the foreseeable damage typical for the contract. Indirect damage and consequential damage can only be compensated if such damage is to be expected when the delivery item is used as intended. Claims for damages due to lost profit are excluded in any case.
The customer will inform and consult KAAST Werkzeugmaschinen GmbH immediately and comprehensively if he wishes to avail himself of the above regulations. The customer must give KAAST Werkzeugmaschinen GmbH the opportunity to investigate the damage.
The regulation on the exclusion of the warranty in Item VIII. 5 of these terms and conditions applies accordingly to claims for damages.
The limitation period for claims for damages due to defective delivery is one (1) year from the transfer of risk. The limitation period for claims for damages due to the violation of other contractual obligations through slight negligence is one (1) year from the end of the year in which the claim arose and the customer becomes aware of the circumstances giving rise to the claim and the person of the debtor or without gross negligence had to attain. In the event of injury to life, limb or health, for damage under the Product Liability Act and for damage caused by malicious behavior, intent, gross negligence or negligent breach of essential contractual obligations within the meaning of Section IX. 3 of these terms and conditions, the statutory limitation period applies.
Changes and additions to these terms and conditions as well as ancillary agreements must be made in writing and only apply to the respective contract. This also applies to the cancellation of this written form clause.
Unless otherwise agreed in writing, the place of performance for KAAST Werkzeugmaschinen GmbH's obligations arising from the business relationship with the customer is Neumünster.
If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction is Neumünster. KAAST Werkzeugmaschinen GmbH is, however, entitled to sue the customer at another place of jurisdiction.
German law applies exclusively to the exclusion of the United Nations Convention of April 11, 1980 on Contracts for the International Sale of Goods (CISG).
Should any provision of these terms and conditions be or become ineffective or unenforceable, this shall not affect its validity. In such a case, the parties will try to replace the ineffective or unenforceable provision by mutual agreement with an effective or enforceable provision that comes as close as possible to what the contractual partners wanted when the contract was concluded in an economic sense. The same applies in the event of a loophole in the contract