General Terms and Conditions of Delivery
KATHREIN Digital Systems GmbH
Salinstraße 34
83022 Rosenheim
Germany
(hereinafter also referred to as "supplier")
for use in business transactions with entrepreneurs.
1 Scope
1.1.
Deliveries and services by the supplier are provided exclusively in accordance with the following general terms and conditions of delivery, unless otherwise agreed in an individual contract.
1.2.
The validity of any general terms and conditions (such as purchasing conditions) of the customer, in particular the exclusion of retention of title and the prohibition of offsetting counterclaims, is hereby expressly rejected, regardless of whether these are included in the scope of orders, order confirmations, specifications, or similar documents. The customer waives all other rights that would allow them to invoke their general terms and conditions. Deviations require written confirmation from the supplier.
1.3.
This document, together with all other documents agreed upon between the supplier and the customer, constitutes the undivided and sole agreement between the contracting parties with regard to the supply of goods and/or the provision of work services by the supplier to the customer.
2. Offers and conclusion of contract
2.1.
The supplier's offers are non-binding; this applies in particular to the supplier's price lists and cost estimates. A contract with the customer regarding the scope of delivery and service obligations only comes into effect upon the supplier's written order confirmation.
2.2.
The packaging units (VPE) specified in the price lists are considered minimum order and delivery quantities.
2.3.
The supplier retains all rights to cost estimates, drawings, and other documents without restriction. The customer may not make these documents accessible to third parties without the supplier's written consent. If a contract is not concluded between the customer and the supplier, the customer must, upon request, immediately and completely return or delete the drawings and other documents belonging to the supplier's offers and destroy or delete any copies, insofar as this is practically possible and legally permissible.
3. Prices
3.1.
Unless otherwise agreed in individual contracts, the prices valid at the time of the conclusion of the contract shall apply.
3.2.
Prices are quoted ex-carrier (FCA Incoterms 2010) and exclude statutory VAT and other applicable taxes and duties. Prices are generally quoted in euros. Any taxes incurred in connection with the purchase of goods and services are the responsibility of the customer.
3.3.
The supplier reserves the right to pass on any additional expenses incurred at difficult-to-access receiving stations. Special packaging, e.g., for air or sea freight, will be charged at cost.
3.4.
The supplier is entitled to charge the customer new taxes and duties, as well as to adjust prices in accordance with general cost developments based on the implementation of, for example, new climate, safety and environmental protection requirements that come into force after the conclusion of the contract.
3.5.
Unless a fixed price for a specific period has been stated or otherwise agreed in writing with the supplier, all of the supplier's prices may be adjusted to reflect general cost developments.
4. Retention of Title
4.1.
Until all claims against the customer arising from the business relationship, including any outstanding balances, have been settled, delivered goods remain the property of the supplier (reserved goods). If the value of all security rights held by the supplier exceeds the total amount of all secured claims by more than 10%, the supplier will release a corresponding portion of the security rights at the customer's request; the supplier has the right to choose which security rights to release.
4.2.
If the delivered goods are subject to retention of title, the customer is prohibited from pledging or assigning them as security. Resale of the goods is permitted only in the ordinary course of business and only on the condition that the customer receives payment from their customer or stipulates that title to the goods will not pass to their customer until the latter has fulfilled their payment obligations.
4.3.
In the event of the resale of the goods subject to retention of title, the customer hereby assigns to the supplier, as security, all future purchase price claims – including any balance claims – arising from the resale against its customers, without the need for any further declarations. If the goods subject to retention of title are resold together with other items without a separate price being agreed upon for the goods subject to retention of title, the customer assigns to the supplier, with priority over all other claims, that portion of the total purchase price claim which corresponds to the invoiced price of the goods subject to retention of title. Upon demonstration of a legitimate interest, the customer shall provide the supplier with the necessary information and documents to assert its rights against its customers. Until further notice, the customer is authorized to collect the assigned claims arising from the resale. The supplier is entitled to revoke the customer's authorization to collect the assigned claims if there is good cause, in particular in the event of default in payment or other reasons that suggest a risk to the payment claim. Furthermore, after prior notice and within a reasonable timeframe, the supplier may disclose the security assignment, realize the assigned claims, and demand that the customer disclose the security assignment to its customer.
4.4.
The customer may process, transform, or mix or combine the goods subject to retention of title with other items. Such processing, transformation, mixing, or combining (collectively: processing) is carried out on behalf of the supplier. The customer shall store the new item with the care of a prudent businessperson. The new item shall be considered goods subject to retention of title. If the goods are processed with other items not belonging to the supplier, the supplier shall be entitled to co-ownership of the new item in proportion to the value of the processed goods subject to retention of title relative to the value of the other processed goods at the time of processing. If the customer acquires sole ownership of the new item, the customer shall grant the supplier co-ownership of the new item created by the processing in proportion to the value of the processed goods subject to retention of title relative to the value of the other processed goods at the time of processing. In the event of the sale of the new item, the customer hereby assigns to the supplier, as security, its claim against its customer arising from the resale, including all ancillary rights, without the need for any further declaration. The assignment, however, is limited to the amount corresponding to the value of the processed goods subject to retention of title invoiced to the customer. The portion of the claim assigned to the supplier shall be satisfied with priority. Clause 4.3 applies accordingly with regard to the authorization to collect and the conditions for its revocation. If the customer combines the goods subject to retention of title with real estate or movable property, the customer hereby assigns to the supplier, without the need for any further declaration, as security, the claim to which the customer is entitled as compensation for the combination, including all ancillary rights, in the amount corresponding to the ratio of the value of the goods subject to retention of title to the value of the other combined goods at the time of combination.
4.5.
The supplier must be notified immediately of any attachments, seizures, other dispositions or interventions by third parties.
4.6.
In the event of a breach of contract by the customer, particularly in the case of late payment, the supplier is entitled, after granting the customer a reasonable grace period for performance, to withdraw from the contract and reclaim the goods: The customer is obligated to return the goods. All outstanding discounts/bonuses are forfeited. The reclaiming of the goods, the enforcement of the retention of title, or the seizure of the goods subject to retention of title by the supplier does not, in principle, constitute a withdrawal from the contract, unless the supplier expressly declares otherwise.
5. terms of payment
5.1.
Unless otherwise agreed or stated on the invoice, claims are due immediately and payment must be made no later than 14 days after receipt of the invoice, without any deductions.
5.2.
The customer can only offset claims that are undisputed or legally established.
5.3.
The supplier is entitled, without prejudice to any further claims, to suspend further deliveries in the event of payment arrears until all outstanding claims arising from the business relationship have been settled or to make further deliveries only against prepayment.
5.4.
In the event of late payment, the supplier is entitled to charge default interest at the legally prescribed rate as well as reminder fees.
5.5.
If the customer fails to pay for goods or services even after receiving appropriate payment reminders, the supplier is entitled to terminate the contract without notice. Upon termination, all outstanding receivables, accrued interest, and all costs incurred by the supplier in connection with the contract termination become due immediately.
6. delivery
6.1.
Unless expressly agreed otherwise, delivery shall be free carrier (FCA Incoterms 2010) at the supplier's respective delivery point.
6.2.
Unless otherwise agreed, delivery dates are for planning purposes only and are non-binding for the supplier. They are given by the supplier to the best of their ability and adhered to as far as possible.
6.3.
Partial deliveries are permitted insofar as they are reasonable for the customer. Furthermore, the supplier is entitled to have delivery obligations fulfilled by third parties.
6.4.
If collection is delayed due to circumstances beyond the supplier's control, the customer shall bear the reasonable costs of any additional expenses. If delivery cannot be completed in full due to an act or omission by the customer, such deliveries shall be deemed to have been made, and the supplier shall be entitled to invoice the customer for the costs of any interrupted or partial deliveries, as well as for the storage of the goods until delivery.
6.5.
The customer is obliged, at the supplier's request and within a reasonable period, to declare whether he is withdrawing from the contract due to the delay in delivery or whether he insists on delivery.
7. Transfer of risk and place of performance
The risk passes to the customer in accordance with the Incoterms FCA (Incoterms 2010). The risk also passes to the customer if the goods are not collected by the customer on the agreed collection date or if there is a delay in acceptance, unless this is the supplier's fault.
8. Force majeure
8.1.
In the event of force majeure, such as war, strikes, shortages of raw materials, fire, flooding, or other circumstances and similar events that are unforeseeable or unavoidable for the supplier, as well as in the event of virus attacks or other attacks by third parties on the supplier's IT system, provided these occurred despite adherence to the usual precautionary measures, in the event of obstacles due to applicable national and international foreign trade regulations, or due to other circumstances beyond the supplier's control, the delivery period shall be extended by the duration of the impediment plus a reasonable restart period. This also applies if the aforementioned events occur at one of the supplier's sub-suppliers.
8.2.
If one or more events of force majeure occur during the term of the contract, the supplier is entitled to extend the term of the contract by a period corresponding to the cumulative number of days on which force majeure occurred during the original term.
8.3.
The supplier will inform the customer of the new delivery dates as soon as possible. In the event of significant delays in delivery or complete impossibility of delivery, both the supplier and the customer are entitled to terminate the contractual relationship for this reason.
9. Receipt and incoming inspection
9.1.
The customer must accept delivered goods, even if they have minor defects.
9.2.
Upon receipt of the goods, the customer must immediately note any obvious shortages and transport damage on the waybill.
9.3.
The customer must notify the supplier of any obvious defects in the goods within 7 days of receiving the goods.
9.4.
The customer must notify the supplier of any hidden defects within 7 days of the defect occurring or becoming aware of it.
9.5.
The aforementioned deadlines are absolute deadlines. If they are not met, the goods with the respective defect are considered accepted.
10. Claims for defects in quality
10.1.
Unless otherwise agreed, the supplier delivers the goods in standard commercial quality.
10.2.
If a defect exists at the time of the transfer of risk, the customer may demand subsequent performance from the supplier within a reasonable period. The supplier must, at its discretion, either remedy the defect within a reasonable period or deliver a new item. If subsequent performance fails, the customer may withdraw from the contract or reduce the purchase price.
10.3.
Claims for defects expire 12 months after the transfer of risk. This does not apply if the supplier has fraudulently concealed the defect, has assumed a guarantee for the quality of the goods, or if a case under Section 438 Paragraph 1 Nos. 1 and 2 of the German Civil Code (BGB) exists.
10.4.
If the customer's complaint regarding defects is unjustified, the supplier is entitled to invoice the customer for any expenses incurred.
10.5.
The customer's recourse claims against the supplier pursuant to Section 478 of the German Civil Code (BGB) exist only insofar as the customer has not contractually granted its customer additional rights beyond the statutory rights regarding defects.
11. Intellectual Property Rights
11.1.
Unless otherwise agreed, the supplier is obligated to deliver the goods free from third-party industrial property rights and copyrights (hereinafter referred to as "Intellectual Property Rights") only in the country of delivery. If a third party asserts justified claims against the customer due to the infringement of Intellectual Property Rights by deliveries provided by the supplier and used in accordance with the contract, the supplier shall be liable to the customer within the period specified in clause 10.3 as follows:
11.1.1.
The supplier will, at its own discretion and expense, either obtain a right of use for the deliveries in question, modify them so that the intellectual property right is not infringed, or replace them. If this is not possible for the supplier under reasonable conditions, the customer is entitled to the statutory rights of withdrawal or price reduction.
11.1.2.
The supplier's obligation to pay damages is governed by clause 12.
11.1.3.
The supplier's aforementioned obligations only apply if the customer immediately notifies the supplier in writing of any claims asserted by a third party, does not acknowledge any infringement, and reserves all rights to defend against such claims and to conduct settlement negotiations. If the customer discontinues use of the delivered goods for reasons of damage mitigation or other important reasons, the customer is obligated to inform the third party that discontinuing use does not constitute an acknowledgment of any infringement of intellectual property rights.
11.2.
The customer's claims are excluded to the extent that he is responsible for the infringement of intellectual property rights.
11.3.
Furthermore, the customer's claims are excluded insofar as the infringement of intellectual property rights is caused by specific requirements of the customer, by an application not foreseeable by the supplier, or by the fact that the delivery is modified by the customer or used together with products not supplied by the supplier.
11.4.
In the event of other legal defects, the provisions of clause 10 shall apply accordingly.
11.5.
Any further or other claims of the customer against the supplier and its agents due to a defect of title, other than those regulated in this clause 11, are excluded.
12. Compensation for damages
12.1.
The supplier is liable without limitation in cases of intent or gross negligence, for injury to life, body or health, in accordance with the provisions of the Product Liability Act and to the extent of any guarantee assumed by the supplier.
12.2.
In the case of a slightly negligent breach of a duty that is essential for achieving the purpose of the contract (cardinal duty), the supplier's liability is limited to the amount of damage that is foreseeable and typical according to the nature of the transaction in question.
12.3.
The supplier assumes no further liability.
12.4.
The foregoing limitation of liability also applies to the personal liability of the supplier's employees, representatives and officers.
13. confidentiality
The contracting parties are obliged to maintain confidentiality regarding the content of this contract and all related commercial and technical details, and not to disclose such information to third parties.
14. Reservation of performance and obligations of the customer in imports and exports
14.1.
The supplier's performance of the contract is subject to the condition that there are no obstacles to performance due to national and international export and import regulations or other legal provisions.
14.2.
The customer will comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations.
15. Deliveries abroad
15.1.
Deliveries abroad are made against an irrevocable, confirmed letter of credit, unless otherwise agreed.
15.2.
The contracting parties undertake to provide all information and documents required for export/transfer/import. Delays due to export controls or licensing procedures invalidate deadlines and delivery times. If necessary licenses are not granted, the contract is deemed null and void with respect to the affected parts; claims for damages are excluded in this respect and for the aforementioned delays.
15.3.
The customer shall bear all fees, costs and expenses incurred in connection with any legally successful legal action against him outside of Germany.
16. Binding nature of the contract and written form
16.1.
Even if individual clauses are legally invalid, the contract remains binding in its remaining parts. This does not apply if upholding the contract would constitute an unreasonable hardship for one party.
16.2.
Any amendments or additions to this contract must be in writing. This also applies to any waiver of this written form requirement.
17. Place of performance, jurisdiction and applicable law
17.1.
The place of performance is the supplier's registered office.
17.2.
The place of jurisdiction is, at the supplier's option, either Munich or the customer's place of business, provided that the customer is a merchant, a legal entity under public law or a special fund under public law.
17.3.
The law of the Federal Republic of Germany applies. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
18. Assignment and Succession
18.1.
The customer is not entitled to transfer or assign rights or claims arising from the contractual relationship to third parties.
18.2.
The supplier has the right to assign its claims against the customer to a third party.
18.3.
The rights and obligations arising from the contractual relationship transfer to the respective legal successors of the contracting parties. The customer is obligated to inform the supplier immediately of any changes, in particular changes to its legal form.
Version of 11.07.2019