General Terms and Conditions of Sale and Delivery
Manfred Kessler GmbH
Sight Glass Fittings
Grienmatt 44
79650 Schopfheim
Represented by:
Managing Director: Dipl.-Ing. Martin Kessler
Register entry:
Entry in the commercial register.
Register court: Freiburg Local Court
Register number: HRB 670203
I. Conclusion of Contract and Scope of the Terms and Conditions
1. Production and delivery offers of Manfred Kessler GmbH are non-binding; a contract is concluded only upon the express acceptance by Manfred Kessler GmbH of a production or delivery request submitted by the customer.
2. Deliveries, services and offers in commercial transactions as well as in transactions with legal entities under public law and special funds under public law are made exclusively on the following terms.
3. The terms and conditions also apply to follow-up transactions, even if no reference is made to them when the follow-up transaction is concluded.
4. Contradictory terms of the customer shall apply only if this has been agreed in writing.
5. Technical improvements to products of Manfred Kessler GmbH in design, dimensions, weight, material and form remain reserved.
6. Manfred Kessler GmbH reserves all industrial property rights and copyrights to products, designs, samples, services, illustrations, software and other documents provided by Manfred Kessler GmbH.
II. Prices and Payment Terms
1. Prices are ex works Schopfheim plus statutory value-added tax. End customers from within and outside Germany as well as resellers from abroad shall pay in advance.
2. Payments are to be made net within 30 days of the invoice date. For payments made within 14 days, a discount of 2% on the net price is granted.
3. The customer is not entitled to withhold payments due to incomplete overall delivery, any warranty claims or insignificant defects.
4. Payment default occurs upon receipt of a reminder or, if no reminder has been sent, 30 days after invoicing.
5. If the customer is in default of payment, Manfred Kessler GmbH is entitled, without prejudice to further rights, to demand default interest in the amount of 5% above the base rate of Deutsche Bank or the main refinancing rate of the European Central Bank replacing it, unless the customer proves a lower loss.
6. The customer may set off only against undisputed or legally established counterclaims or assert a right of retention on the basis of such claims.
III. Transfer of Risk
1. The risk passes to the customer as soon as the goods leave the premises of Manfred Kessler GmbH.
2. The shipping method shall be at the discretion of Manfred Kessler GmbH.
3. Manfred Kessler GmbH insures the shipment against transport damage and loss only at the customer's express written request and will provide compensation only in that case.
4. In the event of insurance coverage, any damage and loss must be reported immediately upon delivery of the shipment in order to preserve any claims against the transport insurer.
5. In the case of delivery with installation or assembly, the risk passes to the customer on the day of acceptance in the customer's own plant or, if agreed, after flawless test operation.
6. Deliveries must be accepted by the customer, even if they show insignificant defects.
IV. Retention of Title
1. Until all claims have been fulfilled, Manfred Kessler GmbH retains title to the delivered goods (reserved goods).
2. The customer is entitled to sell the reserved goods only in the ordinary course of business and only as long as he is not in default of payment. Pledges and transfers by way of security are not permitted.
3. The customer hereby assigns to Manfred Kessler GmbH, by way of security, the claims arising from the resale of the reserved goods in the amount of the invoice value.
4. In the event of third-party access to the reserved goods, the purchaser must point out the seller's ownership and notify the seller without delay.
5. Costs and damages shall be borne by the purchaser.
6. The right to resell and use ceases upon suspension of payments or application for insolvency proceedings.
V. Delivery, Delay, Impossibility
1. Delivery dates and delivery periods must be in writing; delivery periods begin on the date of the order confirmation.
2. All delivery obligations are subject to timely self-supply, provided that Manfred Kessler GmbH is not at fault for the failure of supply.
3. If a delivery period or delivery date cannot be met as a result of force majeure or other operational disruptions for which no fault exists, the delivery period shall be extended for the duration of these events. If such a delay in delivery exceeds 1 month, the customer and Manfred Kessler GmbH shall be entitled to withdraw from the contract to the exclusion of further claims.
4. In the event of culpable failure to comply with the agreed delivery period, the customer is entitled to withdraw from the contract after setting a reasonable grace period. Claims for damages cannot be asserted by the customer in the event of slight negligence.
5. Partial deliveries are permitted and may be invoiced separately.
6. If delivery is impossible, the customer is entitled to claim damages unless Manfred Kessler GmbH is not responsible for the impossibility.
7. The customer's claim for damages is, however, limited to 10% of the value of that part of the delivery which cannot be put to useful operation because of the impossibility. This limitation shall not apply to cases of intent, gross negligence or mandatory liability for personal injury; it does not entail any change in the burden of proof to the detriment of the customer. The customer's right to withdraw from the contract remains unaffected.
VI. Warranty
1. The customer must ensure correct product specifications and their proper integration. In particular, the customer shall ensure the structural integrity certificates for the installed items at its own risk. Manfred Kessler GmbH assumes no warranty for faulty production and integration specifications provided by the customer.
2. A prerequisite for any warranty rights of the customer is the proper fulfillment of all duties of inspection and notification of defects pursuant to Section 377 of the German Commercial Code (HGB). In particular, the customer is obliged to inspect the delivered product immediately upon receipt for defects. Any defects must be reported by the customer to Manfred Kessler GmbH immediately, at the latest within eight days of receipt of the delivery, in writing or by email. Upon request by Manfred Kessler GmbH, complained-of parts must be sent to Manfred Kessler GmbH free of charge for inspection.
3. Warranty claims may be asserted within twelve months after delivery to the customer. This does not apply where the law prescribes longer periods pursuant to Sections 438(1) no. 2 (structures and items for structures), 478(2) (special provisions for recourse by the entrepreneur) and 634a(1) no. 2 (construction defects) of the German Civil Code (BGB), as well as in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty by Manfred Kessler GmbH and in the case of fraudulent concealment of a defect. The statutory provisions on suspension of expiry, suspension and recommencement of limitation periods remain unaffected.
4. In the event of defects in the product, the customer is entitled to subsequent performance in the form of remedying the defect or delivering a defect-free item. Manfred Kessler GmbH may choose the type of subsequent performance. If subsequent performance fails, the customer is entitled to reduce the purchase price or withdraw from the contract. The obligation to remedy defects shall lapse if the parts affected by the defect have been altered or even provisionally repaired by the customer or third parties. The customer shall bear the costs incurred by Manfred Kessler GmbH due to unjustified defect claims.
5. Claims for defects do not exist in the case of only insignificant deviation from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage occurring after the transfer of risk due to faulty or negligent handling, excessive strain, unsuitable operating resources, defective construction work, unsuitable building ground or due to special external influences not assumed under the contract, as well as in the case of non-reproducible software errors. If the customer or third parties carry out improper modifications or repair work, there shall likewise be no claims for defects for these and the resulting consequences.
6. Claims of the customer for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded to the extent that the expenses increase because the object of delivery has subsequently been taken to a place other than the customer's place of business, unless the removal corresponds to its intended use.
7. Recourse claims of the customer against the supplier pursuant to Section 445a BGB (seller's recourse) exist only to the extent that the customer has not made any agreements with its purchaser that go beyond the statutory warranty claims. For the scope of the customer's recourse claim against Manfred Kessler GmbH pursuant to Section 445a(1) BGB, clause 6 of this Section VI shall also apply accordingly.
8. With regard to claims for damages, Section VII of these GTC shall otherwise apply. Any further or other claims of the customer against Manfred Kessler GmbH and its vicarious agents due to a material defect than those regulated in this Section VI are excluded.
VII. Liability
1. Manfred Kessler GmbH shall be fully liable in each case for damages resulting from injury to life, limb or health, in all cases of intent and gross negligence, in the case of fraudulent concealment of a defect, in the case of assumption of a guarantee for the quality of the purchased item, as well as for damages under the Product Liability Act.
2. If essential contractual obligations are affected, liability in the event of slight negligence shall be limited to the foreseeable damage typical for the contract. Essential contractual obligations are essential duties arising from the nature of the contract and the breach of which would endanger the achievement of the purpose of the contract, as well as duties which the contract imposes on Manfred Kessler GmbH according to its content in order to achieve the purpose of the contract and the fulfillment of which makes proper performance of the contract possible in the first place and on compliance with which the customer may regularly rely.
3. In the event of a breach of non-essential contractual obligations, liability for slightly negligent breaches of duty is excluded.
4. If Manfred Kessler GmbH is in default, the customer may – provided that he proves that he has suffered damage as a result – demand compensation for each completed week of delay in the amount of 0.5% each, but in total not more than 5% of the price for the part of the deliveries that was not delivered. Both claims for damages by the customer due to delay in delivery and claims for damages in lieu of performance exceeding the limits stated in the preceding sentence are excluded in all cases of delayed delivery, even after expiry of any period set for delivery by Manfred Kessler GmbH. This does not apply if Manfred Kessler GmbH has fraudulently concealed a defect or has assumed a guarantee for the quality of the product.
6. The customer is obliged, upon request by Manfred Kessler GmbH, to declare within a period of two weeks whether he withdraws from the contract due to delay by Manfred Kessler GmbH in making a delivery. If he does not make the declaration within this period, his right of withdrawal shall lapse.
7. The above provisions of this Section VII shall apply accordingly to the organs and vicarious agents of Manfred Kessler GmbH.
VIII. Confidentiality
1. For the purposes of this agreement, “Confidential Information” means all non-public, confidential and/or proprietary information of the customer and Manfred Kessler GmbH, including information relating to technologies, products, intellectual property, finances, activities and business, including technical information about components or business information relating to these technical drawings and components disclosed by the customer to Manfred Kessler GmbH, regardless of whether this is done in writing, electronically or orally, in particular technical data, scientific information, research objectives, inventions, strategic plans, development plans and regulatory plans, project records, policies and procedures, information on processes or technologies, as well as the fact that the customer has engaged Manfred Kessler GmbH.
2. Manfred Kessler GmbH and the customer undertake to keep all confidential information secret. Manfred Kessler GmbH undertakes to use the confidential information exclusively for preparing the offer to the customer, as well as for manufacturing the ordered products or components and for improving and further developing the offers of Manfred Kessler GmbH.
3. Notwithstanding the other provisions of this Clause VIII, Manfred Kessler GmbH shall have the right to disclose the confidential information to (sub-)contractors or manufacturers, insofar as this appears expedient for the performance of the contract. Manfred Kessler GmbH shall ensure that all (sub-)contractors or manufacturers commissioned by it who receive access to confidential information are bound to confidentiality to a comparable extent as Manfred Kessler GmbH under this agreement.
4. The confidentiality obligations of Manfred Kessler GmbH pursuant to this Clause VIII do not apply to confidential information,
1. that has already been made available to the public;
2. that became available to the public after disclosure without this being based on any unlawful act on the part of Manfred Kessler GmbH;
3. for which Manfred Kessler GmbH can prove that Manfred Kessler GmbH lawfully received the information from a third party and that this third party was authorized to disclose it and did not breach any confidentiality obligation in doing so;
4. for which Manfred Kessler GmbH can prove that such information was developed independently without reference to or by use of confidential information by Manfred Kessler GmbH itself or for Manfred Kessler GmbH and that Manfred Kessler GmbH can document this by written records;
5. that Manfred Kessler GmbH is required to disclose under applicable law. If Manfred Kessler GmbH is obliged to disclose Confidential Information due to an official or judicial order, Manfred Kessler GmbH shall inform the customer immediately in order to enable it to participate in such proceedings and take appropriate measures to prevent disclosure.
X. Final Provisions
1. The place of performance for delivery and payment as well as the place of jurisdiction for all disputes is 79650 Schopfheim.
2. No verbal ancillary agreements have been made. Supplements and amendments to the contract must be in writing within the meaning of Section 126 BGB. This also applies to the waiver of the written-form requirement.
3. Should one or more of the above provisions be or become invalid, the validity of the remaining provisions shall remain unaffected. The contracting parties shall work together in partnership to find a provision that comes as close as possible to the invalid provisions.
4. The contractual relationship shall be governed exclusively by German law.