General Sales and Delivery Terms of KAAST Werkzeugmaschinen GmbH
(as of October 10, 2017)
I. General / Scope
- The commercial offers, deliveries, and services by KAAST Werkzeugmaschinen GmbH shall be rendered exclusively under the given General Sales and Delivery Terms (hereinafter referred to as the Commercial Terms). They form the integral part of every agreement, which are concluded by KAAST Werkzeugmaschinen GmbH with their contracting parties (hereinafter referred to as the Clients) for the deliveries and services, offered by KAAST Werkzeugmaschinen GmbH. They shall also be valid in their corresponding current version for every following commercial offer, delivery and service, even if they are not agreed repeatedly and individually.
- The Client’s terms shall not be subject to the agreement with KAAST Werkzeugmaschinen GmbH, unless KAAST Werkzeugmaschinen GmbH shall individually provide their clear written consent to it. The Commercial Terms of KAAST Werkzeugmaschinen GmbH shall also be valid in case if the specified company is aware of the conflicting and different terms, and with this, the specified company performs deliveries to the Clients or renders services for the Clients without any agreements and reservations.
II. Commercial Offers and Contract Execution
- The commercial offers by KAAST Werkzeugmaschinen GmbH shall always be rendered non-binding, unless they are expressly noted as commercial offers with obligations, or commercial offers binding for a certain period to accept.
- The order from the Client shall be made in writing and shall include a corresponding order number. The Client shall be bound for 2 (two) weeks under their order.
- The agreement with obligations shall come into effect only with the written order confirmation by KAAST Werkzeugmaschinen GmbH.
- As for the scope of obligations for deliveries and services of KAAST Werkzeugmaschinen GmbH, it shall be determined exclusively by its written order confirmation. KAAST Werkzeugmaschinen GmbH shall not provide any quality assurances in its commercial offers, in the Internet, in catalogues, leaflets or in the information, contained in other publications in textual or visual forms (e.g., descriptions, images, data on the weight and dimensions, drawings) on the product characteristics, as well as on the application of these products, unless it is expressly agreed in written form.
- KAAST Werkzeugmaschinen GmbH shall retain its right to make design changes, especially the changes which are made to upgrade the products, or to execute the provisions of law, unless they affect the usability within the purposes, intended in the agreement, or unless they are unacceptable for the Client for other reasons.
- KAAST Werkzeugmaschinen GmbH shall retain all its rights, including the proprietary right and the copyright for the documents, drawings, images, specifications, specimens etc., provided to the Client. The Client shall be able to use them exclusively within the frame of the agreement. They constitute strictly confidential information, and the access to it shall not be rendered to third parties without the prior written consent from KAAST Werkzeugmaschinen GmbH. The full documentation and other materials, provided to the Client, shall be returned back to KAAST Werkzeugmaschinen GmbH, when requested.
- In case with the order, placed with KAAST Werkzeugmaschinen GmbH, if the Client supplies data and/or information (e.g., drawings, charts etc.) or specimen, the Client shall be responsible for their completeness and correctness, as well as for any cases when the rights of third parties are interfered consequently.
- Unless otherwise is agreed in writing, the specified prices shall be considered ex- works prices and shall not include loading, insurance, and/or packaging, which are individually invoiced by KAAST Werkzeugmaschinen GmbH. The possible payable custom duties, taxes, and other such fees, which shall be paid by KAAST Werkzeugmaschinen GmbH, shall also be calculated separately.
- The agreed prices shall be net prices, excluding a sales tax, which shall be additionally imposed on the Client in case of transactions, subjected to the given tax in the amount, specified by law.
- Unless fixing prices are agreed, the specified prices shall be valid until the delivery date, set in the order confirmation from KAAST Werkzeugmaschinen GmbH. If such delivery date is not agreed, KAAST Werkzeugmaschinen GmbH shall be bound with the obligation to keep the agreed price valid for the period of 4 (four) month from the date of the order confirmation. After this, according to Section III. 4 hereof, KAAST Werkzeugmaschinen GmbH shall have the right to proportionally increase the price. However, this does not refer to the case, when KAAST Werkzeugmaschinen GmbH allows for a delay in delivery.
- In case if within the period, specified in Section III. 3 hereof, the prices of raw materials for the corresponding products are significantly increased (i.e. at least 10% increase), KAAST Werkzeugmaschinen GmbH shall have the right to proportionally increase the price, taking into account the Client’s legitimate interests. The publicly accessible source shall be involved to calculate the existing increase of prices for the most important products.
In case if within the period, specified in Section III. 3 hereof, other price factors, such as energy costs, labour costs, transport or insurance costs, are significantly increased (i.e. at least 5% increase), KAAST Werkzeugmaschinen GmbH, according to the provision above, shall also have the right to proportionally increase the price, taking into account the Client’s legitimate interests. The corresponding provision shall be applied in case of foreign exchange movements.
IV. Payment Terms
- Unless otherwise is agreed in writing, all payments shall be made in euros and shall be paid out tax-free to the credit of KAAST Werkzeugmaschinen GmbH in the payment point, specified in the corresponding invoice.
- The invoices shall be paid on a regular basis within 7 (seven) days from the invoice date, free and clear of any deductions, unless otherwise is agreed in writing. Payments shall be considered effective from the date, when the invoice amount is made available for KAAST Werkzeugmaschinen GmbH for free use.
- In case the Client delays a payment, KAAST Werkzeugmaschinen GmbH shall have the right to demand interest on payment in the amount of 9 (nine) percentage points above the basic annual rate (§ 247 of the German Civil Code). Moreover, KAAST Werkzeugmaschinen GmbH shall reserve the right to prove that the company was harmed by a major damage due to the Client’s payment delay.
- Failure to comply with the agreed payment terms, or circumstances, of which KAAST Werkzeugmaschinen GmbH became aware after the execution of the agreement and which can significantly decrease the Client’s credit capacity, shall lead to the immediate maturation for all the requirements of KAAST Werkzeugmaschinen GmbH against the Client. Moreover, in such cases KAAST Werkzeugmaschinen GmbH shall have the right to perform deliveries or to render services only on an advance-payment basis or under the provision of security.
- The right to clear counter claims shall be given to the Client only of their counter claims are valid and undisputable or are accepted by KAAST Werkzeugmaschinen GmbH. Moreover, the Client can exercise the right to refuse the obligations arising from the agreement until the other party executes such obligations only if the Client’s counter obligations are binding under the same agreement and are based on the same agreement.
V. Date of Delivery/ Date of Service Provision
- Unless a fixed time limit for the delivery/service provision is clearly agreed in the order confirmation, the target date shall be given by KAAST Werkzeugmaschinen GmbH without obligations. The dates shall be generally specified in case of timely and proper self-pickup, as well as with the Client’s cooperation under the terms of agreement. The changes, additionally requested by the Client, as well as the possible delayed submission of the documents (permits, confirmations etc.) by the Client, the possible agreed advance payment or collaterals for guarantees shall lead to the corresponding extension of the planned time. The delivery date shall be regarded as met if the subject of delivery is departed from the works or the warehouse of KAAST Werkzeugmaschinen GmbH, or from the works or the warehouse of a third party, which KAAST Werkzeugmaschinen GmbH entrusted with the delivery; if the Client is obliged to transport the subject of delivery independently, the Client shall be informed of the fact, that the subject of delivery is ready for shipment.
- If KAAST Werkzeugmaschinen GmbH allows for the delay in delivery or in service provision, or renders such delivery or service provision impossible, the Client shall have the right to cancel the agreement under the provisions of law. KAAST Werkzeugmaschinen GmbH shall be liable to compensate for damages resulting from such delay or impossibility only subject to the provisions of Section IX hereof.
- Force-majeure circumstances shall give KAAST Werkzeugmaschinen GmbH the right to extend the date of delivery or the date of service provision for the period when such force-majeure circumstances continue, as well as for the corresponding time to overcome such force-majeure circumstances; or to cancel the agreement wholly or partly in case there are legal assumption for it due to the unfulfilled part of the agreement. Such force-majeure circumstances shall include strikes, lockouts, political disturbances, governmental actions (e.g., the dismissal of necessary import or export statements) or other force-majeure circumstances, such as industrial accidents or similar events, which do not allow KAAST Werkzeugmaschinen GmbH for a timely delivery or service provision in spite of their reasonable efforts. The same provision will be valid if the above-mentioned circumstances arise during the delay from any sub-supplier of KAAST Werkzeugmaschinen GmbH. KAAST Werkzeugmaschinen GmbH shall immediately inform the Client of the arising force-majeure circumstances under Section V. 3 hereof.
- If the delay in delivery is caused by the Client or due to the reasons within the Client’s control, KAAST Werkzeugmaschinen GmbH shall have the right to invoice the Client with the rent in the warehouse for every commenced month in the amount of 0.5 (zero point five) % of the order value from the corresponding delivery, but not exceeding 5 (five) % of the order value from the corresponding delivery. The Parties can provide the confirmation of a higher or lower amount of damage, caused due to the delay in delivery.
- The proportional partial deliveries to the practicable extent shall be acceptable only if the partial delivery is accessible for the Client within the intended purpose under the agreement, if the remaining part of the delivery is guaranteed and if the Client does not have any additional costs or considerable expenses arising from such deliveries. These proportional partial deliveries shall be regarded as independent transactions and shall be calculated separately.
VI. Shipment, Transfer or Risk and Acceptance
- Unless otherwise is agreed in writing, the delivery shall be made under the terms of ex-works or Neumunster warehouse (Incoterms “EXW – Ex Works”).
- In case if under the Client’s agreement, the subject of delivery is shipped in any other point, different from the place of performing obligation, the Client shall bear all the arising expenses. KAAST Werkzeugmaschinen GmbH shall have the right to choose a transportation route and a transportation company. The Client shall inform in writing of possible transport damages, including their type and extent, immediately after the subject of delivery is received. The insurance of the subject of delivery against damages arising from transportation, theft, breakage, fire and damage caused by water, as well as other insurable risks, shall be made only at the Client’s will and at the Client’s expense.
- In case of ex-works deliveries, the shipment and transportation shall always be made at the Client’s risk. This provision shall also be valid if the delivery is made from a third party’s warehouse (a trading operation, when the supplier transfers the goods to the client, specified by a wholesale trade company). Also, in case of a partial delivery, the risk shall be transferred to the Client as soon as the cargo is transferred to the person responsible for transportation or shipment, or the cargo has left the works or the warehouse. If the shipment is delayed due to the Client’s fault, or if the Client is obliged to perform transportation of the subject of delivery by their own force, the risk shall be transferred by informing the Client of the fact that the subject of delivery is ready for shipment.
- In case of house-to-house deliveries/ex store and partial deliveries, the risk shall be transferred to the Client as soon as the goods arrive at the place of delivery, ready for loading/discharging. The loading/discharging shall be immediately and properly performed by the Client. The downtime shall be calculated under the accepted rules of the industry. If the arrival at the place of delivery is delayed due to the reasons within the Client’s risk, the risk of delivery breaking shall be transferred to the Client. This provision shall be valid in case the Client illegally refuses to receipt the cargo.
- If the Client allows for a delay in the cargo receipt, KAAST Werkzeugmaschinen GmbH, after the expiration of a proportional time period, which turned inconclusive, shall have the right to dispose of the subject of delivery in any other way and to perform the delivery to the Client within the proportionally extended time period.
- Even if there are minor defects, the deliveries shall be received and accepted by the Client without violation of their right under Section VIII hereof and shall not be returned to KAAST Werkzeugmaschinen GmbH under the possible Client’s right to terminate the agreement under Section VIII. 4 hereof.
VII. Reservation of Title
- KAAST Werkzeugmaschinen GmbH shall retain title to the articles, delivered to the Client (articles, subject to the retention of title) until all the requirements to the Client under the transaction are satisfied, including the requirement, arising in future, as well as the requirements arising from the agreements, executed at the same time or later. This provision shall also be valid, if some or all the requirements by KAAST Werkzeugmaschinen GmbH were billed to the current account, the balance was drawn up and accepted.
- The Client shall correspondingly mark the articles, subject to the retention of title, keep them apart from other articles and handle them with care. Moreover, the Client shall insure the articles, subject to the retention of title, against damages caused by fire, water and against theft, at their own expense based on the reproduction cost of the object of insurance. The Client shall have no right to pledge the articles, subject to the retention of title.
- In case if KAAST Werkzeugmaschinen GmbH terminates the agreement due to the Client’s violation of the agreement terms, including due to the payment delay, the Client shall bear all the expenses to restore the title of KAAST Werkzeugmaschinen GmbH for such articles, subject to the retention of title. Repurchasing of the articles, subject to the retention of title, shall be made from the earnings, received by KAAST Werkzeugmaschinen GmbH due to commercialization. In case of the arrest of property or other third-party interventions, the Client shall immediately inform KAAST Werkzeugmaschinen GmbH in writing and shall provide KAAST Werkzeugmaschinen GmbH with all the necessary data; the Client shall also inform the third party of the existing title relations.
- The processing or transformation of the articles, subject to the retention of title, shall always be made by the Client for KAAST Werkzeugmaschinen GmbH as a manufacturer under § 950 of the German Civil Code, without imposing the obligations on KAAST Werkzeugmaschinen GmbH. In case when the articles, subject to the retention of title, are processed or inseparably combined with other Client’s articles, which do not refer to KAAST Werkzeugmaschinen GmbH, KAAST Werkzeugmaschinen GmbH shall acquire a share in property in new matters in the proportion of the fair value of their articles, subject to the retention of title, to other processed articles at the moment of processing or combination. If the combination is made in the manner, when the Client’s article is regarded as the basic article, it shall be agreed that the Client shall transfer the share in property KAAST Werkzeugmaschinen GmbH in proportion with the partnership share, which the Client will maintain for KAAST Werkzeugmaschinen GmbH without any compensation. The articles, created due to processing or combination, shall fall within the ambit of the provisions, which are valid for the articles, subject to the retention of title.
- The Client shall have the right to sell the articles, subject to the retention of title, in future in the ordinary course of business, unless the Client allows for the delay in payment to KAAST Werkzeugmaschinen GmbH. However, by this time the Client shall assign KAAST Werkzeugmaschinen GmbH with all the demands with all the collateral rights, which arise for the Client due to the resale of the articles, subject to the retention of title, referring to their Consumer or a third party; more specifically, the rights, which arise for the Client irrespective of whether such articles were resold without processing or after processing. The Client shall have the right to execute such demand after assigning for the benefit of KAAST Werkzeugmaschinen GmbH. The right of KAAST Werkzeugmaschinen GmbH to specify the independent demand shall be maintained in this case; however, KAAST Werkzeugmaschinen GmbH shall not specify the demand until the Client properly performs their payment obligations for the benefit of the latter, does allow for delays in payment, and especially until the Client does not apply for bankruptcy proceedings regarding the Client’s property, or there is no fact of cessation of payment from the Client’s side. KAAST Werkzeugmaschinen GmbH shall have the right to demand the Client at any time, that the Client inform KAAST Werkzeugmaschinen GmbH of the assigned demands and of their consumer, provide all the data, necessary for collection, transfer the relevant documentation and inform their consumers of such assignment.
- In case if the security deposit, existing for the benefit of KAAST Werkzeugmaschinen GmbH under all the demands referring to the Client, exceeds 20 (twenty) %, KAAST Werkzeugmaschinen GmbH under the Client’s demand, shall return the security deposit at their own choice.
- The Client’s quality complaints shall suggest that the latter has performed their obligations under law referring to the research practice and claim for reclamation. Each reclamation shall be sublimated by the Client to KAAST Werkzeugmaschinen GmbH in writing and shall include the exact information on the type and extent of the defect in order to make it possible to check the validity of the reclamation.
- If the case of the Client’s reclamation is presented improperly, KAAST Werkzeugmaschinen GmbH shall have the right to demand from the Client to compensate for the expenses, arisen from checking the validity of the reclamation.
- If the case of the Client claims only the satisfaction of the demand under the proper and timely submitted reclamation, KAAST Werkzeugmaschinen GmbH at their choice, shall correct the defect (the repair of the defect) or shall supply articles without defects (the delivery to replace articles). Under the legal provisions, the expenses, necessary to satisfy the demand, shall be borne by KAAST Werkzeugmaschinen GmbH. Should the Client in this case reasonably demand compensation for the expenses, arisen due to the involvement of their own employees or materials, the Client’s demands on such compensation shall be limited to the expenses in the amount of the manufacturing cost. In cases where the expenses, necessary to satisfy the demand, are increased due to the fact that the subject of delivery was delivered under the Client’s decision to the place, different from the agreed place of delivery, the expenses, arisen due to this situation, shall be borne by the Client.
- In case if KAAST Werkzeugmaschinen GmbH is not able to correct the defects, or to perform the delivery to replace articles, or if KAAST Werkzeugmaschinen GmbH refuses to do it, allows for a delay in the correction of the defects or in the delivery to replace articles, exceeding the proportional time period due to the reasons within the control of KAAST Werkzeugmaschinen GmbH, or at least of the repeated correction of the defects was unsuccessful, the Client shall have the right at their own choice either to terminate the agreement or to demand the corresponding decrease of the purchasing price. In case of a partial delivery, the Client shall have the right to terminate the agreement in whole or to get the compensation instead of the whole delivery under Section IX hereof, only of the Client does not have any interest in the provided partial service with the specification of the objective criteria.
- A guarantee shall be cancelled if the Client, at their own will and without the agreement with KAAST Werkzeugmaschinen GmbH, performs processing of the subject of delivery, or assigns such processing to third parties, due to which it becomes impossible or unreasonable complicated to correct the defects. In any such case the Client shall bear all the additional expenses to correct the defects, arisen due to such processing. Moreover, KAAST Werkzeugmaschinen GmbH shall not be liable for the incompetent or improper use, particularly for the improper installation, extreme loading, incorrect assembly or improper use by the Client or a third party, as well as for the natural wear (wearing out), the ignorance of the service manual or any other improper handling or application.
- The limitation period for claims to satisfy the demand, to terminate the agreement and to decrease the price due to defects, shall be twelve months from the moment of the risk transfer.
- KAAST Werkzeugmaschinen GmbH shall be liable for the compensation of damage under any legal basis, particularly due to the impossibility, delay, defective or incorrect delivery, the violation of the terms of agreement, the violation of obligations when negotiating the agreement or due to impermissible actions, except for the reasons, specified in Section IX hereof. Otherwise any liability for the compensation of damage shall be excluded.
- KAAST Werkzeugmaschinen GmbH shall be liable under law for deliberate or negligent actions, which led to injury, danger to life and health, as well as for the guaranteed characteristics under the provisions of law on the liability of producers for damage to the consumer due to the use of defective articles.
- Moreover, KAAST Werkzeugmaschinen GmbH shall be liable for the damage due to a minor breach of the essential obligations of the agreement. The essential obligations of the agreement shall be the obligations, the performance of which makes it possible to perform the whole agreement and the fulfillment of which the Client relies on and must rely on.
- The liability of KAAST Werkzeugmaschinen GmbH shall be limited to the amount of the prospective damage, typical for the agreement. The indirect and further damage shall be compensated only if such damage is to be expected when the subject of delivery is properly used according to its application. The claims to compensate the damage due to the loss of expected profit shall be excluded in any case.
- The Client shall immediately and thoroughly inform and consult KAAST Werkzeugmaschinen GmbH in case if the Client wishes to claim KAAST Werkzeugmaschinen GmbH under the provisions above. By doing so, the Client shall provide KAAST Werkzeugmaschinen GmbH with the possibility to investigate the case of damage.
- The provision on the exclusion of the guarantee in Section VIII. 5 here of shall correspondingly be valid for the demands to compensate damage.
- The limitation period for claims to compensate damage due to the defective delivery shall be 1 (one) year from the moment of the risk transfer. The limitation period for claims to compensate damage due to the violation of other obligations of the agreement due to some negligence shall be 1 (one) year from the moment of the termination of the year, in which the claim arose, and the Client became aware of the circumstances, on which the demand was based, and of the liable person, or had to be aware without a gross negligence. In case of a physical injury, danger to life and health, damage under the provisions of law on the liability of producers for damage to the consumer due to the use of defective articles, as well as in case of damage due to the deliberate actions, malicious intent, gross negligence or negligent violation of the essential obligations of the agreement under Section IX. 3 hereof, other limitation period established by law shall be valid.
X. Final Clause
- The amendments and additions hereof, as well as the additional agreements hereto, shall be made in writing and shall be valid only for the corresponding agreement. This provision shall also be valid if the given written clause is abolished.
- The place of performance of the obligations under the agreement by KAAST Werkzeugmaschinen GmbH referring to transactions with the Client, shall be Neumunster, unless otherwise is agreed in writing.
- If the Client is an entrepreneur, a legal entity under public law, or a legal entity with the status of a public-law special fund, the place of jurisdiction shall be Neumunster. However, KAAST Werkzeugmaschinen GmbH shall have the right to file a lawsuit against the Client in some other court.
- The only current law shall be the German law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) dated April 11, 1980.
- In case if any provision hereof is or becomes invalid or unenforceable, the other provisions shall remain valid. In this case the Parties upon their mutual consent shall try to replace such invalid or unenforceable provision with some valid or executable provision, which is most closely approximate to the provision, which was provided for economic considerations during the conclusion of the agreement. The corresponding rule shall be valid in case of any deficiency in the agreement.
- The legally binding version of these terms and conditions is the German version.
Limitation of liability for internal content
The content of our website has been compiled with meticulous care and to the best of our knowledge. However, we cannot assume any liability for the up-to-dateness, completeness or accuracy of any of the pages.
Pursuant to section 7, para. 1 of the TMG (Telemediengesetz – Tele Media Act by German law), we as service providers are liable for our own content on these pages in accordance with general laws. However, pursuant to sections 8 to 10 of the TMG, we as service providers are not under obligation to monitor external information provided or stored on our website. Once we have become aware of a specific infringement of the law, we will immediately remove the content in question. Any liability concerning this matter can only be assumed from the point in time at which the infringement becomes known to us.
Limitation of liability for external links
Our website contains links to the websites of third parties (“external links”). As the content of these websites is not under our control, we cannot assume any liability for such external content. In all cases, the provider of information of the linked websites is liable for the content and accuracy of the information provided. At the point in time when the links were placed, no infringements of the law were recognisable to us. As soon as an infringement of the law becomes known to us, we will immediately remove the link in question.
The content and works published on this website are governed by the copyright laws of Germany. Any duplication, processing, distribution or any form of utilisation beyond the scope of copyright law shall require the prior written consent of the author or authors in question.
A visit to our website can result in the storage on our server of information about the access (date, time, page accessed). This does not represent any analysis of personal data (e.g., name, address or e-mail address). If personal data are collected, this only occurs – to the extent possible – with the prior consent of the user of the website. Any forwarding of the data to third parties without the express consent of the user shall not take place.
We would like to expressly point out that the transmission of data via the Internet (e.g., by e-mail) can offer security vulnerabilities. It is therefore impossible to safeguard the data completely against access by third parties. We cannot assume any liability for damages arising as a result of such security vulnerabilities.
The use by third parties of all published contact details for the purpose of advertising is expressly excluded. We reserve the right to take legal steps in the case of the unsolicited sending of advertising information; e.g., by means of spam mail.
Disclaimer google analytics
“This website uses Google Analytics, a web analytics service provided by Google, Inc. (“Google”).
Google Analytics uses “cookies”, which are text files placed on your computer, to help the website analyze how users use the site. The information generated by the cookie about your use of the website (including your IP address) will be transmitted to and stored by Google on servers in the United States.
In case of activation of the IP anonymization, Google will truncate/anonymize the last octet of the IP address for Member States of the European Union as well as for other parties to the Agreement on the European Economic Area.
Only in exceptional cases, the full IP address is sent to and shortened by Google servers in the USA.
On behalf of the website provider Google will use this information for the purpose of evaluating your use of the website, compiling reports on website activity for website operators and providing other services relating to website activity and internet usage to the website provider.
Google will not associate your IP address with any other data held by Google.
Furthermore you can prevent Google’s collection and use of data (cookies and IP address) by downloading and installing the browser plug-in available under https://tools.google.com/dlpage/gaoptout?hl=en-GB.
Further information concerning the terms and conditions of use and data privacy can be found at http://www.google.com/analytics/terms/gb.html or at http://www.google.com/intl/en_uk/analytics/privacyoverview.html.
Please note that on this website, Google Analytics code is supplemented by “gat._anonymizeIp();” to ensure an anonymized collection of IP addresses (so called IP-masking)."