General terms and conditions
Kuvera International GmbH
The following conditions will be applied for all deliveries and services by us within the framework of our present and future business relations to the exclusion of general terms and conditions of our customers and subject to deviating written agreements.
In reference to all designs, samples and other documents consigned to the customer together with the offer or later – with the exception of promotional things – we reserve the right to ownership and the copyright. They must not be made accessible to a third party without our prior written consent und must be returned on our demand.
B. Conclusion and Subject matter of contract
(1) Any order placed with us is reckoned accepted not before it is duly confirmed in writing. With immediate deliveries the written confirmation of order can be replaced by our invoice.
(2) Guarantees, side-agreements and changes of contract need to be made in writing to be valid (written supplementary confirmation). To this requirement it can only be renounced in written form.
(3) With supplementary changes of contract, we are entitled to determine new delivery days and deadlines. Even without explicit mentioning in the supplementary confirmation, we are entitled to charge separately for cost of materials and changes that incur due to the change of order.
(4) Images, designs, descriptions as well as indication of measurements and weight that are included directly in the confirmation of order or through reference to the documents of the order are roughly relevant, unless we explicitly identify them as binding; only indications and data identified in such a way are classified as agreed characteristics.
C. Way of delivery
(1) The selection of material is carried out by us. Changes in construction, way, execution and color are reserved by us, if delivery ex stock does not occur. Producers and makes mentioned in orders made by our customers or in our conformation of order are classified as exemplary and can be exchanged by us in equal value. Correspondent measures do not entitle to complaints or the enforcement of material defect rights, unless agreed characteristics are impaired or, as far as characteristics were not agreed upon, the qualification for the application previously conditioned in the contract, otherwise the qualification for the common application or the general and expectable characteristic is impaired.
(2)We deliver uninsured ex factory respectively external storage area. Partial shipment is allowed. Each partial shipment is classified as an autonomous business.
(3) Packaging and shipment are carried out by us for account of the customer. Packaging is charged at cost price and is not taken back.
(4) The determination of the appropriate dispatch route falls to us, as long as the customer has not mandated a certain dispatch route.
(5) Our delivery notes are valid, if the customer does not immediately object to discrepancies in written form.
If the installation and the initial operation shall be carried out by us, thus it will happen by one of our topping-out foremen who has to be requested at the same time in written form (maybe consulting an engineer is required). For dispatching the specialist, we charge the service rate that is valid at the respective time of installation.
E. Prices, conditions of payment and delay of payment
(1) The prices which are contractually determined for our deliveries are valid ex factory for packaging, cargo, insurance, unloading and installation. The relevant labor, material and energy costs valid at the time of the conclusion of the contract underlie the stipulated prices; should these change by the time of delivery, we are entitled to adjust the prices.
(2) All payments have to be executed after within 8 days after reception of the invoice without any discount. Cheques and bills of exchange will only be accepted on account of payment and without liability for duly submittal or protest. Costs and expenses of discounting are always for the account of our customers.
(4) A right of retention or offsetting of the customer does only persist in respect of such counterclaims that were lawfully determined or that were not disputed by us. This is not valid for counterclaims within the same contractual relationship.
(5) When the agreed deadline is exceeded or in the event of deferment of payment, we are, subject to an assertion of an actual higher damage caused by delay, entitled to demand interest on due date and delay at the statutory rate.
(6) If the customer delays the payment or if there is concrete indication for an upcoming inability to pay by the customer, we can stop the ongoing work in current orders without prejudice to our other rights and we can demand an advance preliminary payment, even for claims that are still not due, including bills of exchange and delayed sums, or a suitable provision of security. If the customer does not comply with our demand of a advance payment or provision of security within an appropriate deadline, we are entitled to withdraw from the contract and to invoice the costs that arose until then.
F. Time of delivery and delay of delivery
(1) The deadlines for deliveries and services named by us are, unless they are explicitly marked as ‘‘fix‘‘, subject to change and approximate. Meeting the agreed deadlines and due dates always presumes all our customer’s procured deliveries and services including the indication of all technical data and specifications with the confirmation of order.
(2) The delivery deadline is met if the delivery item has left the factory by the end of its term or if we have notified readiness for shipment.
(3) In case of unforeseeable obstacles we are not responsible for, such as: Force majeure, labor disputes, strikes, lockouts, delays in the delivery of essential raw materials, materials or parts, the agreed deadlines are extended and the agreed deadlines, even if they have been specified as “fixed”, are postponed for the period of the rectification of the difficulties. The same applies if the mentioned obstacles occur at one of our suppliers. If the delivery becomes impossible or unreasonable due to one of these circumstances, we shall be entitled to withdraw from the contract without the customer having any claims – with the exception of the repayment of any payments made in advance.
(4) If there is a delay in delivery or service caused by us, the customer may set us a reasonable period of grace in writing with the notice that he refuses the service after expiry of the period. After expiry of this period, the customer is entitled to withdraw from the contract by written declaration or to demand compensation. In case of withdrawal, a claim for compensation for the delay damage is excluded. In case of slight negligence, the compensation shall be limited to the extent that liability shall only be assumed for the typical foreseeable damage.
G. Passing of risk
(1) The risk of accidental loss and damage passes to the customer at the latest with the dispatch of the delivery parts, even if partial deliveries are made and we have taken on other services, e.g. shipping costs or delivery and installation.(2) If shipment is delayed due to circumstances for which we are not responsible, the risk passes to the customer on the day of the readiness for shipment communicated to the customer.
H. Fulfillment and acceptance
(1) Our delivery obligations shall be deemed fulfilled if we have indicated the readiness for dispatch of the respective delivery item to the customer or to a third party nominated by him or have handed over the goods to the third party authorized by the customer to us for deliveries with an agreed destination.
(2) Our installation work shall be deemed to have been completed when the plant has been put into operation and a test run has been carried out without any major objections, if it has not been put into operation within at the latest one month after completion of the installation or if the customer has commenced production, for which it was intended to. Decisive is the earliest of these events.
(3) Our obligations in the event of a delivery and installation order given to us uniformly are subject to the analogous application of the preceding paragraph (2).
(4) If a formal acceptance has been agreed, the following applies: The customer must carry out the acceptance at the latest on the 6th working day after receipt of our written notification of the completion of our services.
(5) The acceptance can only be refused for essential defects and only until their removal; such are defects that preclude the operation of the plant from a technical or economic point of view. The findings made on the occasion of acceptance must be recorded in writing in a joint hearing (acceptance report). In the acceptance report, any reservations of the customer due to defects and any our objections against this are to be recorded. The subsequent assertion of defects, which were already detectable at the time of acceptance, is excluded. We are entitled to demand the separate acceptance of self-contained parts.
(6) If the customer delays the acceptance, we are entitled to set him a reasonable period of grace first. In the event of late acceptance, we are also entitled to make a corresponding price change in the event of changes to the cost factors and to calculate storage costs. After expiry of the set period of grace, we are entitled to dispose of the subject of the contract otherwise. However, this does not affect our rights to withdraw from the contract after the period of grace has expired or to demand damages.
J. Liability for defects
(1) For the objects assembled and / or produced by us, we provide our customers with a warranty for faultlessness of the delivery item and service item in material and workmanship corresponding to the respective state of the art, exclusively in accordance with the following conditions.
(2) The customer must explicitly inform us in writing prior to the conclusion of the contract about technical requirements, which are made by the customer on the goods and which deviate from usual requirement. If he does not do so, there is no defect if such requirements are not met.
(3) The statute of limitation for claims for material defects is 12 months from delivery or acceptance. This does not apply if the law prescribes longer periods, in particular for defects in a building and in a product that was used for a building in accordance with its usual manner of use and has caused its defectiveness.
(4) The customer or the recipient designated by him must inspect the goods immediately upon receipt. After the discovery of defects, the treatment and processing of the item that has the defect is to be stopped immediately. Open defects, including the lack of guarantees, must be reported in writing immediately, at the latest within 7 days after receipt of the goods, hidden defects without delay, at the latest within 7 days after their discovery. If the customer fails the inspection or the timely complaint, the customer is not entitled to claims for defects. The timeliness of the complaint depends on the time of their access to us.
(5) If an acceptance has been agreed upon, the complaint of defects is excluded, which the customer could have determined upon careful acceptance.
(6) In the event of a justified, timely notice of defects, we will repair the defective parts or deliver a flawless replacement at our discretion. Replaced parts become our property.
(7) No liability for defects, however, shall be accepted for damages caused by improper use, faulty or negligent treatment or maintenance, unsuitable equipment or replacement materials, defective installation work by the customer or third parties commissioned by him, chemical, electrochemical or electrical influences. In addition, our warranty obligation is waived by improper changes or maintenance work made by the customer or a third party without our prior permission.
(8) If the defect cannot be remedied within a reasonable period of time or if the repair or replacement is for other reasons to be regarded as failed, the customer may, at his discretion, demand a reduction of the pay or withdraw from the contract. A failure to remedy the defect can only be assumed if we have beengiven sufficient opportunity to repair or replace it, without the desired result being achieved, if the repair or replacement is impossible, if it is refused or unreasonably delayed by us, if justified doubts exist regarding the chances of success or if there is an unacceptable reason for other reasons.
(9) In order to carry out all necessary improvements and replacement deliveries, the customer has to give us the necessary time and opportunity, otherwise we are exempted from the liability for defects.
(10) In the event of a culpable violation of our obligation to rectify or supply a replacement, the customer has a right of withdrawal. Claims for damages due to a positive breach of contract or § 286 BGB against us or our vicarious agents are excluded in this case, unless the lack of a warranted property is not vouched for.
(11) If repair or replacement is not possible or finally failed or if it is unreasonably delayed, the customer may request a reduction of the price or the cancellation of the contract.
(12) For repair and modification work that does not take place as part of our material defects, these conditions shall apply mutatis mutandis.
(13) Claims for material defects are generally only due to our customers and are not assignable; except in the case that the delivery item is sold with our knowledge.
(14) For third-party products or parts not produced by us, our liability for defects is limited to the assignment of claims against the supplier, insofar as the defect is not within our area of responsibility. If the satisfaction under the assigned rights fails (e.g. because of bankruptcy), we are liable as a substitute only under these conditions.
(15) If the end user of the goods is a consumer, legal prescriptions apply to the statute of limitations for a possible recourse action of the customer against us.
K. Disclaimer and limitation of liability
(1) Our technical advice in spoken and written as well as suggestions, meetings, project planning, etc. should only explain to the customer the best possible use of our products. They do not exempt the customer from his obligation to convince himself by own examination of the suitability of our products for the purpose intended by him.
(2) In the event of slight negligence, we are liable for all claims against us for damages and reimbursement of expenses for breach of duty, for whatever reason, only in the event of a breach of material duties jeopardizing the purpose of the contract. Incidentally, our liability for slight negligence is excluded.
(3) In the case of liability under paragraph (2) and liability without fault, we are liable only for typical and foreseeable damage. The enforcement of useless expenses by the customer is inadmissible.
(4) The above-mentioned disclaimer shall apply to the same extent in favor of our organs, legal representatives, executive and non-executive employees and other vicarious agents.
(5) The preceding paragraphs do not apply to a strict liability if liability, for injury to life, limb or health exists, in case of an assumption of a quality guarantee or fraudulent concealment of a defect.
(6) All claims for damages and reimbursement of expenses against us expire 12 months after delivery of the goods or acceptance, in the case of tort liability from knowledge or gross negligent ignorance of the circumstances giving rise to the claim or of the person liable for compensation. This does not apply in the case of intent and in the cases mentioned in paragraph (5).
(7) For the compliance with construction and trade regulations, which are not listed in a federal law or which only apply at the state or municipal level, we are not in any case liable for the installation and operation of the systems installed and / or delivered by us.
I. Property, prolonged title retention, account current.
(1) Until complete payment of the price, including all ancillary claims, in case of repeated or ongoing business relationship until the repayment of the balance, the delivered goods remain our unrestricted property. In the case of current business relationships, the line items entered in the current account lose their independence. The goods delivered by us remain in our ownership until the complete settlement of all our claims, regardless of the legal reason – in the case of payment by cheque or bill of exchange until their redemption and the corresponding non-refundable credit on our account.
(2) The customer may only sell our reserved goods in the ordinary course of business, and only as long as he is not in default of payment. He may only sell the goods to his customers under reservation of title. He is not entitled to other dispositions of the reserved goods (e.g., transfer by way of security, pledging).
(3) If the goods delivered under retention of title are combined or mixed with other objects, we acquire co-ownership of the new object or the mixed stock.
(4) If delivered goods subject to title retention or the goods made from them –regardless of their condition – are resold, processed, installed or otherwise used by the customer, the customer thereby cedes all claims arising from the disposal arising from the processing or installation towards third parties with all ancillary rights until complete settlement of all claims from the delivery of goods to us. If a new item or stock produced by combining or mixing is resold, processed or incorporated, the assignment shall be the amount corresponding to our unit value of the co-ownership.
(5) We are obliged to release securities due to us at our discretion rather than exceeding the outstanding claims that have to be secured by more than 20 %.
(6) In the event of default in payment, threatened suspension of payments or if foreclosures or bill of exchange protests against the customer occur, we are entitled to take back our reserved goods. The customer is obliged to handing over.
(7) The customer must notify us immediately of a seizure or other impairment of our reserved goods by third parties. All costs arising from such access are borne by the customer. The reimbursement obligation shall cease if our prosecution was unsuccessful or the third party liable for reimbursement fulfills its obligation towards us.
(8) The customer is obliged to adequately insure the accepted goods.
(1) The customer is not entitled to transfer the rights arising from this contract to third parties without our prior written consent.
(2) In the case of the ineffectiveness of individual provisions, the validity of the remaining provisions remains unaffected.
(3) Place of fulfillment for deliveries and payments is the seat of our company.
(4) Place of jurisdiction is Hagen. However, we are also entitled to sue the customer at his general place of jurisdiction.
(5) The law of the Federal Republic of Germany applies.
N. Prior German version
These terms and conditions shall be interpreted in accordance with German law. If the legal meaning of a translation deviates from the German legal meaning, the German meaning shall have priority.