Algemene voorwaarden van Maschinenbau Kitz GmbH

(Version: 01.02.2018)

 

1 General provisions

1.1 Our deliveries are made exclusively on the basis of the conditions outlined below. Our terms of delivery and payment apply to both consumers and entrepreneurs unless it is explicitly stated that they apply solely to either entrepreneurs or consumers. When applied to businesses, they shall also apply to all future business transactions, even if explicit reference is not made to these terms and conditions in each specific case.

1.2 In the context of our terms of delivery and payment, the term “consumer” refers to a natural person with whom legal relationships are entered into for purposes outside said natural person’s trade, business or profession. In the context of our terms of delivery and payment, the term “entrepreneur” refers to a natural or legal person under private or public law, a special fund under public law or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession. In the context of our terms of delivery and payment, the term “Customer” refers to both entrepreneurs and consumers.

1.3 No verbal agreements have been made. Any subsidiary agreements or changes must be set in writing. We hereby expressly exclude any terms of delivery and payment issued by the Customer that deviate from our own terms of delivery and payment; deviating terms and conditions only apply with our express consent, even if they are known to us.

1.4 The Customer may not assign any of its claims without our consent.

 

2 Quotation and conclusion of contract

2.1 Unless otherwise expressly agreed, our quotations shall remain non-binding and subject to change.

2.2 Orders are not accepted until confirmed in writing by us. This also applies to orders placed via our online shop (shop.mk-group.com). Any changes to the order confirmation issued by us shall also be confirmed in writing, as shall any other deals or verbal agreements.

2.3 The details and descriptions in our catalogue brochures and online shop are only definitive if no explicit reference to deviations is made. In case of any changes to the dimensions, weights, diagrams or drawings in our catalogues, brochures and online shop due to production circumstances or for any other reason, the Customer shall be notified of the relevant changes in a binding quotation. If the Customer provides a written statement of acceptance of such a quotation, the modified performance specifications shall be exclusively binding. No further written confirmation in accordance with Clause 2.2 shall be required. Such a quotation shall be deemed to have been accepted if the Customer does not issue a rejection of the quotation within three weeks of receipt, providing the Customer has been expressly notified of the significance of its behaviour prior to the commencement of this period. Any minor deviations from the performance specifications must be considered contractual providing they do not impair the contractual use of the object. No notification is required for such deviations. We consider all obvious mistakes, printing errors, miscalculations and typing errors to be non-binding; no claims for fulfilment, withdrawal, reduction or damages may be made on the basis of such errors.

2.4 The Customer shall assume full liability for ensuring the binding nature of documents that must be delivered by the Customer, such as drawings, gauges, samples, etc. Any verbal agreements regarding dimensions, tolerances, etc. must be confirmed in writing.

2.5 We reserve all property rights and copyright with regard to cost proposals, sketches, drawings and other documents. They may not be made accessible to third parties or used for other purposes, in particular self-production, without our written approval. They must be returned to us without delay upon request.

2.6 Samples are only supplied subject to a fee.

 

3 Scope of delivery

3.1 The scope of delivery is defined in our written order confirmation or the accepted binding quotation in accordance with Clause 2.3.

3.2 Any guards shall be included in the delivery as agreed. We shall provide written information on any residual risks.

3.3 Electrical accessories (motors, etc.) are subject to the general provisions EN 292-1, EN 292-2, EN 294 and EN811, insofar as their designs and performance specification match said provisions.

3.4 For the duration of the delivery period, we reserve the right to make modifications to the design or form resulting from technological improvements or legal requirements, providing said modifications do not significantly alter the delivery item and are considered by the Customer to be reasonable.

 

4 Prices

4.1 Our prices apply in euros ex-works in Troisdorf-Bergheim, Germany, excluding packaging and insurance, plus value-added tax at the rate applicable on the date in question, where such tax is applicable for overseas deliveries.

4.2 In the event of an increase between the placement of the order and the date of delivery in material manufacturing costs and/or material and/or product procurement costs, wage and wage-related costs, social security contributions, energy costs, costs arising from environmental regulations and/or currency regulations and/or customs charges and/or freight costs and/or public charges, we are entitled, if such goods manufacturing, procurement or general costs affect our contractually agreed services either directly or indirectly, to unilaterally adjust our prices accordingly. Such an increase shall be excluded insofar as the increase in the overall cost of delivery caused by one, several or all of the aforementioned factors is balanced out by cost reductions in other of the aforementioned factors. If any of the aforementioned cost factors are reduced without said reduction being balanced out by increases in other of the aforementioned cost factors, this cost reduction must be passed onto the Customer in the form of a price reduction.
The Customer is only entitled to withdraw from contracts that have not yet been completed if the price increase is equivalent to 20% or more of the original price. However, this right to withdrawal must be exercised without delay upon notification of the increased price.

 

5 Terms of payment

5.1 Unless otherwise agreed, the purchase price shall be due concurrently with the transfer of the purchased item and payable in full within 30 days starting from the invoice date. Payments made within 14 days starting from the invoice date shall be granted a 2% discount, providing no agreements to the contrary have been made.

5.2 The following terms of payment shall apply for custom orders, e.g. products that deviate from those shown in the catalogue, and also for orders of standard items that exceed EUR 10,000 in value:
30% of the order value upon placement of the order
30% of the order value upon notification of completion, but prior to shipping
30% of the order value upon invoicing
10% of the order value 30 days after the invoice date
All payments excl. applicable VAT.

5.3 A separate payment schedule shall be issued in writing for custom machines.

5.4 Cheques shall only be accepted on account of payment. Payments by bill of exchange shall not be accepted.

5.5 The Customer shall default on the payment on the 31st day following the due date without any further statement from us. In such cases, interest shall be charged at 5 percentage points above the applicable basic interest rate. No separate reminder shall be required in order for us to charge this interest. We reserve the right to claim for further damages in addition to these interest charges. If the Customer is an entrepreneur, interest shall be charge at a rate of 9 percentage points above the applicable basic interest rate plus a flat-rate fee of EUR 40.

5.6 If the Customer is an entrepreneur, the Customer shall only be permitted to withhold payment in case of claims that are undisputed, legally enforceable or awaiting adjudication, or in case of counter-claims arising from the same contractual relationship due to the defective nature of the purchased item or production costs; the same applies to offsetting against such claims. In the case of defect rectification costs or additional production costs arising from the same contractual relationship, the Customer shall not be entitled to withhold payment unless the sum withheld is in reasonable proportion to the defects and the expected cost of subsequent performance.

5.7 If, following conclusion of the contract with a Customer who is an entrepreneur, there exist justified doubts regarding the Customer’s creditworthiness or ability to pay, we may choose at our discretion to demand either payment in cash for all outstanding receivables, including bills of exchange, or that the Customer provide us with security prior to delivery. Until this demand is met, we are neither obliged to make any further deliveries relating to any ongoing contracts nor entitled to withdraw from the contract without obligation to pay damages.

5.8 If the Customer is an entrepreneur and becomes bankrupt or insolvent, the receivable purchase price shall become due in full with immediate effect.

 

6 Delivery period

6.1 The delivery period shall not begin until all the prerequisites for the performance of the order are established, in particular until all the details of the performance have been clarified (requested plans or samples for the set-ups of the ordered machines and units are in our possession, etc.) and both parties are in agreement with regard to all the conditions of the contract. If a down-payment is due upon placement of the order in accordance with Clause 5.2 or any other agreement, the delivery period shall not begin until the agreed down-payment has been received. The delivery deadline refers to the completion of production at the factory.

6.2 If the fulfilment of a contractual duty is hindered by unforeseeable circumstances lasting for a period of more than 14 calendar days that we/our subcontractors are unable to avoid despite employing the utmost care in our duties, e.g. due to interruptions to operation caused by fire, water or damage to machinery through no fault of our own, or due to force majeure, e.g. strikes, lockouts, lack of power and raw materials, transport bottlenecks caused through no fault of our own or any other hindrance that cannot be objectively deemed to be our fault, the failure in our own factory or that of a subcontractor of a part that cannot be replaced immediately, delays caused by the sub-contractor, or modifications required due to newly acquired information, the delivery period shall be extended by the length of time for which the aforementioned conditions or the effects thereof persist, even if said conditions occur during an existing delay in delivery. The same shall apply if governmental approvals or other approvals or third-party documents required for the performance of deliveries are not submitted on time, or if the order is changed following placement. The Customer shall be notified of such extensions to the delivery time in writing or text form.
If a delivery deadline has been set and said deadline is exceeded by more than 4 weeks, and it is thus objectively unreasonable for the Customer to expect the contract to still be honoured, the Customer is entitled to withdraw from the contract due to the unfulfilled portion of the contract. If the Customer has agreed a binding delivery deadline, the Customer is entitled to withdraw immediately if punctual performance is critical for the Customer. 6.3 Partial deliveries are permissible as long as they are considered reasonable by the Customer. Such partial deliveries are subject accordingly to the terms of payment detailed in Section 5.

6.4 We accept liability for delays in delivery in cases of intent or negligence on our part or that of our representatives or vicarious agents, and also in case of culpable injury to life, limb or health in accordance with the statutory provisions. If the delay is caused by simple negligence, we shall accept no liability for damages resulting from said delay. Clause 2 shall not apply if the Customer is a consumer, or if a binding delivery deadline has been agreed for the performance; in such cases, we shall be liable in accordance with the statutory provisions.
In case of delay, our liability shall be limited to the foreseeable damages typical for the contract, and shall not exceed 5% of the net purchase price. This limit shall not apply in case of injury to life, limb or health, nor if the delay in question is caused by intent or gross negligence.

6.5 If shipping is delayed at the wishes of the Customer, we shall be entitled to charge the Customer for the costs of storage starting two weeks after the Customer has been notified that the purchased item is ready for shipping. Storage in our factory shall be charged at a minimum of 0.5% of the net invoice sum for each month, or in line with the actual cost of storage. The Customer is entitled to provide proof of minor damage. If this period expires without event, we are entitled to make other arrangements for the use of the goods and provide the Customer with a suitable extended deadline.

 

7 Transfer of risk

7.1 The risk shall be transferred to the Customer upon sipping ex-works, providing the Customer is an entrepreneur.

7.2 If delivery is delayed as a result of circumstances beyond our control, the risk shall be transferred to the Customer on the date that the goods are ready for shipping, providing the Customer is an entrepreneur.

7.3 The cost of any insurance against transport damage must be borne by the Customer unless evidence can be provided of self-insurance and the Customer is an entrepreneur.

 

8 Packaging and shipping

8.1 The goods shall be shipped at our discretion in recyclable packaging using industry-standard methods.

8.2 Packaging shall be charged together with the cost price. In case of carriage-paid return of the goods in reusable condition, a credit note equivalent to a maximum of 2/3 of the calculated value shall be paid, though only with prior written consent.

8.3 If no special instructions are provided, the route and means of transport shall be decided according to our best judgement; we accept no liability for cheaper freight or shorter routes.

8.4 If, due to circumstances beyond our control, it is not possible to ship the goods at the intended time despite their being ready for shipping, the Customer shall be charged for the cost of storage either on our premises or those of a third party.

 

9 Commissioning

9.1 The expenditures incurred during commissioning for fitter and allowance rates shall be borne by the customer, in particular also for overtime, Sunday and Bank Holiday working, in accordance with the law of the Federal Republic of Germany. Travel and waiting times shall be classed as working time.

9.2 The Customer shall bear the costs of travel to and from the site, and also the costs of transporting any tools and travel baggage.

 

10 Defects, subsequent improvement, delivery of replacements

10.1 If the Customer is a consumer, the Customer is legally required to report any obvious material defects or defects of title to us in text form within 10 days following receipt of the goods; it is sufficient to send off the report within this period. Any defects that occur after the expiration of this period must be reported without delay in text form. The Customer must describe the defects in as much detail as possible.

10.2 If the Customer is an entrepreneur, defects must be reported in text form without delay. Any additional costs resulting from a delay in the reporting of defects must be borne by the Customer. Section 377 of the German Commercial Code (HGB) remains unaffected by this requirement. Any other defects or consequential damage must be reported to us at the latest within 2 weeks of their discovery or the earliest time at which they could have been discovered. Obvious transport damage can only be recognised if noted on the receipt of delivery.

10.3 Unless a longer limitation period is required by law, the limitation period for Customer claims and rights arising from defects – regardless of the reasons therefore – shall be two years starting from the hand-over of the item.

10.4 We accept no liability for defects resulting from non-intended or improper use, faulty or incorrect installation or commissioning on the part of the Customer or third parties, natural wear, mistreatment or negligent treatment, excessive use (more than an average of 40 hours per week), unsuitable operating materials, penetration of foreign matter, defective work on parts supplied by third parties, or outside influences.

10.5 The Customer is required to allow us the necessary time to perform subsequent improvements and deliver replacements. The expenses incurred for the purpose of subsequent improvements – in particular transport, travel, work and material expenses – shall be borne by us, providing the complaint is justified.

10.6 For contracts concluded with entrepreneurs acting as Customers, the expenses incurred for the purpose of subsequent improvement or delivery of replacements shall – even if the complaint is justified – be borne by the Customer if the item is at a location other than the subsidiary of the Customer, unless delivery to said other location was agreed with us. For consumers, the restrictions detailed in Section 439 (3) of the German Civil Code (BGB) apply.

10.7 The warranty claim shall be rendered void as soon as the Customer or the third party enlisted by same independently performs modification or repair work – including commissioning work – on the goods without our written consent, unless we are delayed in performing subsequent improvements or have unjustly refused to do so.

10.8 If the Customer is an entrepreneur, they not shall be entitled to payment for damages not incurred on the delivery item itself unless said damages are the result of an assurance.

 

11 Withdrawal, reduction and payment of damages

11.1 In case of defects, the Customer is entitled to withdraw from the contract in accordance with the statutory regulations (withdrawal) or reduce their payment where the relevant legal prerequisites apply (reduction).

11.2 If the Customer is an entrepreneur, they shall not be entitled to make a warranty claim for damages in place of performance. If the Customer is a consumer, they shall only be entitled to claim for damages in place of performance if subsequent improvement has failed after two attempts, or if subsequent improvement has been refused or is unreasonable.

11.3 The restriction on Clause 11.2 shall not apply in case of liability due to injury to life, limb or health (consequential damages of defects).

11.4 Furthermore, the right to claim damages due to defects is not excluded if the defective performance also represents a violation of a cardinal duty of the contract (a duty whose fulfilment affects the contract and that the Customer can trust to be fulfilled), or if we maliciously conceal the defect or have taken on a guarantee for the condition of the delivery item.

11.5 Furthermore, we shall only accept liability in accordance with the German Product Liability Act (Produkhaftungsgesetz) due to culpable violation of cardinal contractual duties.

11.6 Any changes to the burden of evidence that disadvantage the Customer bear no connection to the regulations outlined above.

 

12 Liability in the case of impossibility of performance and other violations of duty

12.1 In case of impossibility of performance and other violations of duty on our own part or that of our representatives or vicarious agents, we shall be liable in accordance with the statutory provisions. However, our liability in case of negligence shall be limited to the foreseeable damage typical for the contract and a maximum of 10% of the net invoice sum for the part of the delivery that cannot be used to due said impossibility of performance or violation of duty. No further claims made by the Customer due to the impossibility of delivery shall be recognised, even once we have been set a deadline for performance.

12.2 The restriction detailed in Clause 12.1 does not apply to liability due to injury to life, limb or health, nor to cases where the impossibility of performance or other violations of duty are the result of intent or gross negligence.

12.3 The Customer’s right to withdraw from the contract remains unaffected by these provisions.

12.4 Any changes to the burden of evidence that disadvantage the Customer bear no connection to the regulations outlined above.

 

13 Retention of title

13.1 We reserve the rights to the ownership of the delivery item until payment has been received in full (hereinafter referred to as “goods subject to retention of title”). If the Customer is an entrepreneur, we furthermore reserve the rights to the ownership of the delivery item until all claims arising from and still to arise from the business relationship between us and the Customer have been paid off, regardless of the legal basis for said claims.

13.2 Where the validity of this retention of title is linked to special prerequisites or formalities in the Customer’s country, the Customer is required to arrange the fulfilment or completion of said prerequisites and formalities at the Customer’s own cost.

13.3 The Customer shall only be permitted to access the delivery item in the proper course of business; no other access – in particular in return for pledges or the provision of security – shall be permitted. In the event of seizure, confiscation or other orders issued by third parties, the Customer must inform us of such events without delay and provide us with access to all the information and documentation necessary in order to maintain our rights. Enforcement officers and third parties must be informed as to what is our property.

13.4 The processing of the delivered goods shall not incur any duties on our part.

13.5 If the Customer processes, mixes or connects our goods with other goods that do not belong to us, we shall be entitled to the joint ownership of the new item in line with the value of the goods subject to retention of title in proportion to the other goods at the time of processing, connection or mixture. Should the Customer acquire sole ownership of the new item, we hereby mutually agree that the Customer shall assign to us joint ownership of the new item in line with the value of the processed, connected or mixed goods subject to retention of title in proportion to the new item.

13.6 The Customer hereby assigns to us the receivable arising from the selling on of the goods subject to retention of title, regardless of whether said sale occurs before or after the processing, connection or mixture. We hereby accept this assignment. If the goods subject to retention of title are sold on following their processing, connection or mixture with other goods that do not belong to us, the assignment of the receivable shall be equivalent to the value of our goods subject to retention of title. The Customer is entitled to collect receivables for the selling on for as long as the Customer continues to fulfil their duties in accordance with the contract. We must be informed immediately of any measures or circumstances that affect our security interests. The Customer is prohibited from making any agreements with their buyers that exclude or impair our rights in any way, or that nullify the advance assignment of the claim.

13.7 We are entitled to insure the delivery item against fire, water and other damage at the cost of the Customer, unless the Customer can provide evidence that they possess such insurance themselves. If the Customer possesses such insurance themselves, the Customer hereby assigns to us any claims against the insurance arising from damage affecting the goods subject to retention of title, up to the value of the goods subject to retention of title.

13.8 The Customer hereby undertakes to report to us immediately any access by third parties to the goods subject to retention of title or the rights assigned to us. If we reclaim the goods subject to retention of title, this action shall not be deemed a withdrawal from the contract unless we expressly inform the Customer of such a withdrawal in writing.

13.9 If the value of the securities that exist for us in accordance with the above provisions exceeds the secured receivables by a total of more than 10%, we hereby undertake to release securities chosen at our discretion upon the request of the Customer.

 

14 Data protection

The “Data Protection” section on our website (www.mk-group.com) provides the Customer with the following information:

  • The type, scope, duration and purpose of the collection, processing and use of the personal data required for the processing of orders and invoices; the Customer’s right to object to the creation and use of their anonymised usage profile for the purposes of advertising, market research and tailoring our services to suit their needs
  • The forwarding of data to companies under our employ who are required to comply with the legal provisions on data protection for the purposes and duration of the credit check and for the delivery of the goods
  • The right to the receive free of charge information on what personal data pertaining to the Customer we have saved on our systems
  • The right to the correction, erasure and blocking of the personal data pertaining to the Customer that we have saved on our systems

 

15 Place of performance, court of jurisdiction, choice of law

15.1 If the Customer is an entrepreneur, the place of performance for delivery and payment shall be Troisdorf, Germany.

15.2 If the Customer is an entrepreneur, any disputes arising from the contractual relationship must be brought before the court responsible for our headquarters. We are also entitled to bring claims before the court responsible for the Customer’s headquarters.

15.3 German law shall apply exclusively, with the exclusion of laws concerning the international purchase of movable property, even if the Customer’s company headquarters are located in a foreign country.

 

16 Cancellation charges

Should the Customer withdraw from an order without good reason, we shall credit the Customer the invoice sum less 10% for checking and handling costs and lost profits. The Customer reserves the right to provide proof of minor damage.

 

17 Miscellaneous

17.1 The rights and obligations resulting from the order placed by the Customer may not be assigned or transferred without our prior written consent.

17.2 A certificate of exemption has been provided in accordance with Section 48 of the German Income Tax law (EStG): Security number 00-11-0068.

17.3 If any of the above stipulations proves to be or becomes invalid, this shall not affect the validity of the remaining stipulations.

 

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