TERMS AND
CONDITIONS
FOR
SUPPLIES
AND
SERVICES
I. Scope of application
1. Koller Maschinen- und Anlagenbau GmbH, its supplies, services and offers shall be exclusively subject to these General Terms and Conditions for Supplies and Services (hereinafter referred to as “Conditions”), unless agreed upon otherwise in writing. Any conditions of the purchaser deviating from or conflicting with these Conditions or other general terms and conditions for purchase are expressly exempted hereby.
2. The Conditions shall be valid only with regard to contractors in the sense of Section 310, section 1 / Section 14 BGB (German Civil code) (contractors, legal entities under public law, special funds under public law).
II. Quotation and conclusion of contract
1. Koller’s offers shall be without engagement and non-binding, unless expressly stated otherwise.
2. Any specifications, drawings, illustrations, dimensions, weights or other parameters and any applicable E-DIN- or VDE-standards or –dates included in quotations, catalogues, electronic media or other advertising media shall not be regarded as guaranteed features but only as simple statements of characteristics unless the parties have otherwise expressly agreed upon in writing. These statements may be modified as long as no contract is concluded, unless such statements are referred to as binding in quotation made by Koller.
3. Koller personnel shall not be authorized to make any additional oral mutual agreements or oral confirmations beyond the content of the written contract.
The rights to all images, offers, drawings, descriptions, samples and cost estimates shall be vested with Koller. The purchaser is not allowed to copy, publish those documents or submit them or make them available to third parties. The purchaser shall be obliged to return these documents and data carriers and any copies thereof at request of Koller.
III. Prices
1. Unless otherwise stated, Koller shall be bound to the prices quoted in their offer for the duration of 30 days from the date of the offer. Otherwise the prices stated in Koller’s order confirmation plus the corresponding legal VAT shall apply.
2. Any additional supplies and services shall be invoiced separately.
3. Unless otherwise agreed upon, the prices are to be understood on an ex works basis including loading in the factory, but exclusive of packaging and plus VAT at the legally applicable rate.
4. In case of a period of more than six months between the conclusion of a contract and the agreed and/or actual delivery date and Koller not being in default, the applicable price list is the one valid on the day of delivery or supply, unless the parties have expressly agreed upon fixed prices for a certain period.
Koller reserves the right to increase its prices accordingly in case that prices have bee subjected to an increase by the sub-suppliers or unexpected increases in costs of wages and transports and provided that the parties have not expressly agreed upon fixed prices for a certain period.
IV. Times of delivery and performance
Unless otherwise expressly agreed upon, dates or terms of delivery stated by Koller are non-binding.
If the delivery or performance is delayed to Force Majeure and due to any circumstance that substantially and not only temporarily interferes with or prevents Koller fulfilment of their obligations – including in particular strike, lock-out, official directives, etc., even if such circumstances concern Koller suppliers and their sub-suppliers – Koller shall not be bound to the dates or terms of delivery and performance, whether binding or not. Such circumstances shall entitle Koller to either delay the delivery or the performance by the duration of the delaying circumstance plus a reasonable starting period or to withdraw from all or part of the contract by reason of the unfulfilled part of the contract. Koller may only refer to such circumstances if the purchaser has been informed thereof immediately.
If the delaying circumstance persists for more than three months, the purchaser, after notification of a reasonable grace period, shall be entitled to withdraw from the unfulfilled part of the contract.
If the delivery period is extended or Koller are exempt from their obligation, this shall not entitle the purchaser to derive there from any claims for damages.
Koller shall at any time be entitled to partial deliveries and performances if such partial deliveries or performances are reasonable for the purchaser.
Fulfilment of Koller’s delivery and performance obligations shall be subject to punctual and orderly fulfilment of the purchaser’s obligations.
If the purchaser is in default of acceptance, Koller shall be entitled to claim for compensation of the resulting damage; the risk of incidental deterioration and the risk of accidental loss shall pass to the purchaser upon occurrence of default of acceptance.
V. Passing of risks
The risk shall pass to the purchaser as soon as the consignment is delivered to the person dealing with the transport of the goods or as soon as it has left Koller’s warehouse for shipment. If the shipment is delayed upon the purchaser’s request, the risk shall pass to him upon notification of readiness of dispatch.
VI. Purchaser’s rights in case of defects
The products shall be free of any material or manufacturing defects upon delivery. The warranty period for defects shall be one year from the date of delivery. This shall not be apply where longer periods are prescribed by law according to Section 438., §1, No. 2 (buildings and things used for a building) German Civil Code (BGB), in the case of intent, fraudulent concealment of the defect or non-compliance with guaranteed characteristics. The legal provisions regarding suspension of the suspension of limitations and recommencement of limitation periods shall be unaffected.
Unless Koller’s operating or maintenance instructions and warnings are complied with or if the products are modified, if any parts are replaced or consumables are used that do not comply with the original specifications, any claims by reason of defective products shall be rejected unless the purchaser refuses the correspondingly substantiated assertion that one of the above circumstances has caused such defect.
The purchaser shall immediately advise Koller’s service manager in writing of any defect, at the latest within one week after receipt of the delivered goods. If it is impossible to detect a defect within this period notwithstanding a thorough check, Koller’s shall be informed about such defect immediately after having detected it.
If the purchaser advises Koller of any defective product, Koller’s shall request at their discretion and expense either
a. that the defective part or equipment shall be sent to Koller for repair and subsequent return to the purchaser
b. than the purchaser shall keep the defective part or equipment and that a Koller service technician shall be dispatched to the purchaser’s works in order to repair the defective part or equipment.
5. The purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel, transport, labour, and material, to the extent that expenses are increased because the subject-matter of the supplied products has subsequently been brought to another location than the purchaser’s branch office, unless doing so complies with the normal use of the supplied products. If the ratification fails within a reasonable period of time, the purchaser may, at his discretion, claim reduction of payment or withdraw from the contract.
6. Any warranty for normal wear and tear is excluded.
7. Only the direct purchaser shall be entitled to make any claims for defects against Koller and such right shall not be assignable.
VII. Spare parts
Koller shall supply spare parts for the delivered equipment at the currently valid spare parts prices for a duration of five years from delivery of the equipment.
VIII. Reservation of title
Until all demands to which Koller is or will be entitled to for any legal reason against the purchaser have been fulfilled (including all balance demands from the current account), the purchaser shall provide Koller with the following securities, which Koller will release at the demand of the purchaser at their own discretion, insofar as their value exceeds the demand by more than 20%.
The delivered goods remain the property of Koller. Processing and transformation of the goods shall always take place for Koller as the manufacturer, however without any obligation for Koller. If Koller’s co-ownership expires due to joining, it shall be deemed already agreed with immediate effect that the purchaser’s (co) ownership in the uniform object shall be transferred to Koller proportional to the share of the value (invoice value). The purchaser shall safeguard Koller’s (co-owned) property free of charge. Goods in which Koller is entitled to (co-) ownership shall be termed reserved goods in the following.
The purchaser shall have the right to process and to sell the reserved goods in proper business transactions, as long he is not in delay. Pledging or transfers of ownership as security are not permitted. Any demands (including all balance demands for current account) which result from the further sale or any other legal reason (insurance, non-permitted action) with respect to the reserved goods shall be herewith transferred by the purchaser to their full extent to Koller. Koller irrevocably authorises the purchaser to collect the demands assigned to Koller on his account in his own name. The autorization to collect can only be cancelled if the purchaser fails to meet his payment obligations.
In the case of seizure of the reserved goods by third parties – in particular pledging – the purchaser shall inform the third party about Koller’s ownership and shall immediately inform Koller accordingly to enable them to enforce their ownership. The purchaser shall be held liable for any legal costs incurred by Koller in this connection if the third party is not able to reimburse such costs.
In the case of contract infringements by the purchaser, especially in case of delayed payment, Koller shall be entitled to withdraw from the contract and to claim possession of the reserved goods. The exercise of the reserved title or taking back goods shall not be considered as a withdrawal from the contract.
IX. Payment
Unless otherwise agreed upon, Koller’s invoices shall be due 14 days after the date of invoice without any deductions, however, not later than 30 days after delivery.
A payment shall not be deemed to be made unless Koller can dispose of the amount. If payment is made by cheque, the payment shall not be deemed to be made unless the cheque has been paid.
If the purchaser is in delay, then Koller shall be entitled to demand payment of interest of at least 8 percentage points above the base rate as liquidated damages. Koller shall have the right to provide evidence of a higher damage due to the delay.
If after the conclusion of a contract Koller becomes aware of any circumstances which challenge the creditworthiness of the purchaser, especially if a cheque is not paid or if the purchaser stops payment or if Koller becomes aware of any other circumstances which challenge the creditworthiness of the purchaser, then Koller shall be entitled to accelerate maturity of the total remainder of the debt, even if Koller has already accepted any cheques. Koller shall in this case also be entitled to demand advance payments or securities.
The purchaser shall only be entitled to invoke a setoff, withholding or abatement right, even after notification or defects or enforcement of counterclaims, if the counterclaims are legally binding or undisputed.
The purchaser shall not be entitled to invoke a withholding right for counterclaims unless such claims arise from the same contractual relationship.
X. Design modifications
Koller reserves the right to modify the design at any time, unless this will lead to an impairment of the intended use of the delivered goods and only in case that it is reasonable for the purchaser. Koller, however, shall have no obligations to carry out such modifications on products already delivered.
XI. Industrial Property Rights
Koller shall hold the purchaser and his customers harmless of any claims for infringement of copyrights, trademarks or patent rights, unless the design of a delivered good originates from the purchaser. The amount of this obligation is limited to the foreseeable damage. Koller’s obligation to hold the purchaser harmless of the above claims is additionally based on the condition that the right to institute legal proceedings is relinquished to Koller and that the alleged infringement is exclusively imputable to the design of the goods delivered by Koller without any connection or use of other products.
Koller shall have the right to get released from their obligations mentioned in paragraph 1 by either
2.1 Obtaining the required licences concerning the patents that are said to have been infringed
2.2 Placing a modified version of the delivered good or parts of it to the purchaser’s disposal in order to ensure that the reproach of infringement concerning the delivered good is eliminated if the modified delivered product or part of it replaces the infringed delivered product or part of it.
Nondisclosure
Unless otherwise explicitly agreed upon in writing, the information submitted to Koller in connection with the order shall be deemed to be confidential.
XIII. Liability
Any indemnity claims, irrespective of the type of neglect of duty, including inadmissible actions, shall be excluded, unless there is evidence of wilful intent or gross negligence.
In case of infringement of substantial contractual obligations Koller shall be responsible for any wilful intent, but only up to the amount of the foreseeable damage. Any claims for loss of profit, saved expenses, indemnity claims of third parties and for other collateral and subsequent damages may not be asserted, unless a characteristic guaranteed by Koller is explicitly intended to protect the purchaser against such damages.
The limitations and exclusions of liability mentioned in paragraphs 1 and 2 shall not apply to such claims that derive from Koller’s fraudulent behaviour neither to liability of guaranteed characteristics, to requirements under the Product Liability Act and damages because of death and injury of body or health.
As far as Koller’s liability is excluded or limited, this shall also apply to employees, wage earners, agents and persons employed to perform an obligation of Koller.
XIV. Applicable law, place of jurisdiction, severability
These conditions and the entire legal relationship between Koller and the purchaser shall be subject to the jurisdiction of the Federal Republic of Germany. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
The place of jurisdiction for any dispute directly or indirectly arising out of or in connection with the contract shall be the court in Celle. Koller shall have the right to bring an action against the purchaser at his general place of jurisdiction.
Koller Maschinen- und Anlagenbau GmbH, Bruchkampweg 5, D-29227 Celle
März 2010