Terms and Conditions of Purchase of kraft curing systems gmbh (hereafter “KCS GmbH”)
1. The following General Terms and Conditions of Purchase shall apply for any transactions of KCS GmbH GmbH with any Customers regarding the supplies and services to be provided (altogether – summarized ’supplies’). Such General Terms and Conditions shall also apply if KCS GmbH is in full knowledge of any contradictory or any such conditions deviating from these General Terms and Conditions of the Contractor and does accept its supply without reservations.
They shall also apply independently from a specific hint in the single case for any further transaction. The General Terms and Conditions shall be used with companies, juristic persons under public law or special funds under public law (Contractor). Contractor shall declare his consent concerning its exclusive validity for the order in question as well as for any subsequent order by irrevocable acceptance of these General Terms and Conditions. If any agreements that are inconsistent with the General Terms and Conditions have been made for a particular one, such General Terms and Conditions shall be regarded as subordinated and complimentary.
The decisiveness of the deviating General Terms and Conditions of Business of the Contractor shall be contradicted hereby, even if they are transmitted to KCS GmbH by letter of confirmation or otherwise.
2. Conclusion of the Contract
Contract may accept order only within a period of two weeks after receipt of order by written confirmation of order. In case of previously effected formless business transaction the order of KCS GmbH shall be deemed to be a commercial confirmation letter. Any deviating agreements shall be fixed in writing to serve as a proof exclusively.
3. Scope of Delivery, Drawings, Types, Tools
3.1. The technical specifications being contained in the order documents shall be binding to Contractor referring to the kind, scope and content of his scope of delivery. He shall have to check them immediately and shall have to inform KCS GmbH immediately on any errors or incompleteness; in case of omitting such despite of having detected a default or incompleteness or had he have to realize such, then he shall be liable to KCS GmbH for any damages resulting from this.
In carrying out his delivery Contractor should consider the possibility of change as for the state of the art or any other regulations, norms and standards to be adhered to by him between the moment of conclusion of the contract and the delivery; if this took place and if this touched his expenses or his schedule, Contractor shall reach a settlement by agreement with KCS GmbH on a reasonable tailoring on prices and schedules prior to the execution of the change.
3.2 KCS GmbH shall keep ownership and copyright of any drawings, any other documents, types and tools. They shall only be used for the purpose of ordering and shall neither be continued to use nor be reproduced nor be made accessible to any third party and they, immediately and postage free, shall be returned to KCS GmbH in case of non-granting the order and after the execution of the order at the request of KCS GmbH including any reproductions.
4. Inadmissible advertisement
It is inadmissible, if Contractor uses an order for any reference or advertisement purposes unless KCS GmbH has given its prior consent in writing.
5. Customer’s Inspections
After notification in good time in advance, the employees of KCS GmbH or any third part charged by KCS GmbH shall always have access to Contractor’s or Subcontractor’s production places in order to check the production status, use of suitable material, use of any necessary skilled personnel and the professional completion of the delivery ordered. Such inspections (so-called factory acceptance tests) shall be effected without any lawful effect on any works contract acceptances of the delivery owed; such an inspection shall neither replace such an acceptance nor shall such one restrict in any way Contractor’s sole liability as for his deliveries. In particular, no objection of contributory negligence on the part of Contractor may be derived from such an inspection.
6. Spare Parts
Contractor ensures the availability of spare and wearing parts which fits each order within a period of at least 10 years after the expiry of warranty.
II. Transport and Marking of Hazardous Substances, Shipping and Package
1. It is the responsibility of the Contractor to check prior to the acceptance of the order whether the items and / or parts thereof specified in the order shall be classified in the country of origin, country of destination and / or all the transit countries as hazardous substances (e.g. paints, adhesives, chemicals or flammables, oxidizing, potentially explosive, combustible, poisonous, radioactive, corrosive goods or such goods liable to self-heating. In such cases Contractor shall inform KCS GmbH immediately and comprehensively. Contractor shall send back to KCS GmbH together with his order confirmation all the binding declarations filled out correctly and with a legally binding signature which is required for their dispatch according to legal specification.
2. Referring to package, marking and declaration of any hazardous goods Contractor shall be obliged to keep to nationally and internationally respectively valid regulations, in particular
Sea freight: SEA IMDG Code
Air freight: UNICAO IATA RAR US-Dot
Railway: EVO/RID as well as Ordinance on the Transport of Dangerous Goods by Rail
Road: ADR as well as Ordinance on the Transport of Dangerous Goods by Road
General: Ordinance on Hazardous Substances
If the destination country was mentioned in the order, then any deviating and / or any additional national regulations of each destination country shall have to be considered.
3. Contractor shall be held liable for any dangers resulting from any incorrect statement in the binding declarations or from their occurring for that reason because any regulations were not obeyed when dealing with the hazardous goods (package, dispatch, storing, etc.).
4. Contractor shall carry out package of the delivery in that manner under the transport and storage conditions in order to prevent it from being damaged. Contractor shall take back packing material for KCS GmbH free of charge..
5. Dispatch shall be effected to the stipulated place of receipt according to the Terms and Conditions of Delivery agreed upon (INCOTERMS); the option of the appropriate means of transport shall be coordinated with KCS GmbH.
6. In cases of Force Majeure or any other event beyond of control of KCS GmbH such as natural phenomenon, war, civil war, terrorism, sabotage, industrial dispute KCS GmbH shall not fall into default of acceptance; then Contractor shall have to store delivery at his own expense.
III. Export Permit
Contractor shall be obliged to inform KCS GmbH immediately and in writing whether and to what extent state export permits will be necessary or similar legal or official requirements have to be fulfilled for the order as a whole or part of it or whether they are subject to US-export restrictions.
IV. Delivery Dates
The delivery date mentioned in the order is binding. Premature deliveries and / or partial deliveries require the explicit prior written consent of KCS GmbH.
Any such terms and conditions of delivery (INCOTERMS) shall be decisive. In respect of any technical documents the date of receipt of KCS GmbH shall apply.
Contractor shall be obliged to inform KCS GmbH immediately and in writing if any circumstances occur or may be seen leading to a non-compliance of the contractual delivery time.
1. In case of a delay in delivery Contractor is liable for, KCS GmbH shall be entitled to a contractual fine of 0,2 % of the contract price per working day of the missed deadline but to a maximum amount of 15 % of the contract price. It is reserved the right to claim for a further-going damage occurred due to the demonstrably culpable missed deadline; in such a case the forfeited contractual fine shall be set-off against the damage sum. KCS GmbH shall reserve the right to claim for the contractual fine until the final payment.
2. Furthermore, KCS GmbH is allowed to and notwithstanding its other rights (withdrawal or compensation instead of service) after the fruitless expiration of a reasonable extension of time set by KCS GmbH or – if delivery due to the delay is no longer of interest to KCS GmbH (because Contractor shall have to deliver just in time according to terms and conditions or because KCS GmbH’ s Customer would or could refuse to accept the service due to a further delay) or in case of danger ahead or in order to prevent any further damage or in case of urgency – to have the delivery which has not been carried out yet executed by a third party at the expense of the Contractor without having set a reasonable extension of time.
In each case of a substitute performance by KCS GmbH Contractor will provide KCS GmbH at its expense with all the information necessary and surrender all the documents in its possession and will also provide KCS GmbH with any rights of use in case of any own intellectual property rights existing or such ones of any third in that scope being required for the substitute performance and will release KCS GmbH from any claims arising from these rights of any third party. With the conclusion of this contract Contractor expresses its consent to use its intellectual rights in case of a substitute performance by KCS GmbH or by a third party charged by KCS GmbH. Any occurred entitlement to payment of a contractual fine to the third party shall have to be fulfilled in any case up to the placement of order.
A substitute performance by KCS GmbH or one third party charged by KCS GmbH shall not release Contractor from fulfilling its contractual duties.
VI. Prices and Pricing
1. The contractual prices agreed upon are fixed prices if and unless otherwise agreed expressively and contain the statutory VAT.
2. Unless otherwise agreed in writing, the prices are FCA (named place) according to the INCOTERMS being applicable at the time of the conclusion of the contract. They always contain all the arising additional costs, especially the cost of freight, transport and packaging.
3. Any disputes on the amount of the remuneration to be paid to Contractor shall not entitle Contractor to cease its deliveries in whole or in part or even temporarily.
VII. Terms of Payment
1. Payment shall be made, unless otherwise agreed, within 10 days from proper and complete fulfillment of contract by Contractor and the receipt of invoice less 3 % discount or within 30 days net.
2. Invoices shall be submitted being separated from delivery and separate for each order with the statement of the statutory VAT in duplicate stating each order and purchase order number.
3. In case of any part payments the receipt of invoice alone is decisive for the starting point of the period, unless any other certain deliveries and / or securities to be fulfilled or lodged as a condition are agreed upon.
4. Any invoices for any deliveries KCS GmbH promised to a third party shall be due then if and insofar as KCS GmbH has received from that party any remuneration for its deliveries or parts thereof. Has KCS GmbH lodged any security to the third party due any possible defaults, this only applies if Contractor shall lodge to KCS GmbH in the corresponding amount.
5. Any part payments shall not release Contractor from its obligation of itemizing and billing all the deliveries in a specified final invoice.
6. Delay shall only occur due to an expressive reminder.
KCS GmbH shall not get into payment arrears if it was trustfully mistaken on the existence of an exception raised against any claims of remuneration or any right of retention applied by Contractor. Is a default based upon simple negligence, the default interest is limited to three percentage points above the rate of the main refinancing facility of the European Central Bank being applicable on the due date of payment.
7. Any payment never means any acknowledgment of a professional and perfect delivery in the sense of an acceptance.
1. Activating any subcontractors and sub-suppliers or any other third parties to execute the job granted by the order requires the prior consent in writing by KCS GmbH which, however, shall not be refused without any objective reason. In these cases Contract shall ensure the compliance with the confidentiality rules contained in this order.
2. In order to execute any retention rights against its subcontractors Contractor requires the prior written consent by KCS GmbH.
In order to prevent the execution of retention rights on the part of any subcontractors of the Contractor KCS GmbH shall be entitled to effect some direct payments to the subcontractors if they refer to any justified claims of the subcontractor, which shall be regarded as payment instead of fulfillment. Any justified claims of the subcontractor against Contractor are also such ones where KCS GmbH was trustfully mistaken on such existence.
In any case any third parties are vicarious agents especially sub-suppliers and subcontractors who Contractor uses in order to fulfill its obligations or who are otherwise involved in connection with his deliveries.
IX. Set Off, Retention Right, Intercompany Transaction
KCS GmbH is entitled to any rights of set off as well as rights of retention within the legal circumference.
1. The acceptance of the delivery owed by Contractor by KCS GmbH is carried out together with the acceptance of the whole plant for whom Contractor’s deliveries are determined; acceptance is executed by KCS GmbH’s Customer after the successful trial run of the whole plant (if and insofar as this acceptance is effected conditionally of just this delivery concerning); it shall be regarded as executed, however, 12 months from the delivery on and transfer of risk at the latest according to point 6.2, unless the entire system has been accepted until this date for reasons Contractor shall be held liable for.
2. In case of any minor defects which not affect the safe and reliable operation of the entire system or delivery, KCS GmbH is entitled to declare the acceptance subject to the immediate and successful removal of these defects.
3. A written record shall be produced on the acceptance.
1. Contractor shall grant warranty that his deliveries correspond to the accepted rules and the state of the art technology as well as in Contractor’s country and in the destination country to the existing regulations (including safety, occupational safety and accident prevention regulations) to the quality agreed upon as well as to the relevant norms and standards, that they have the guaranteed properties and that they are without any material defects and defects in title at the time of delivery.
Furthermore, Contractor guarantees that within 24 months as of acceptance of the entire system to be delivered by KCS GmbH to Customers, but at the latest within 36 months as of delivery and transfer of risk according to point 6.2 his deliveries will be free from any pre-mentioned defects resulting from defective construction, defective material selection, non-compliance with any regulations and/or defective production quality and it is agreed that the stipulated properties shall be available.
2. KCS GmbH shall immediately make a complaint at the destination but within three days at the latest as of delivery concerning any apparent and visible defects and on a proper check, if and insofar as such one can be carried out within the normal business practice. Besides, KCS GmbH shall immediately check the delivery for defects of quality and/or quantity corresponding to its circumstances and climatic and any other requirements at each place of action (e.g. forthwith after opening and removing the transport packaging). KCS GmbH shall serve a prompt notice of default after the discovery of any such defects but at the latest within three days as of the expiry of the warranty.
3. In any case KCS GmbH shall be allowed to force Contractor either to supplementary performance by removal of defect or replacement delivery; Contractor shall bear all the expense being necessary for the purpose of the removal of defect or the replacement delivery. After having informed Contractor KCS GmbH shall also be entitled to remove itself the defects at the expense of Contractor; point 5.2, paragraphs 1 and 2 shall apply accordingly.
4. Contractor shall bear any arising costs in connection with the supplementary performance, especially for disassembly, assembly, journeys, freights, packaging, insurances, customs and any other public charges, examinations and acceptance test.
5. KCS GmbH’s claims due to any defects shall become time-barred in accordance with ¬ß¬ß 195 ff German CC, but not later than 12 months after the expiry of the periods mentioned in point 11.1. Shall the delivery be determined for a building and if it caused its defectiveness, any claims shall become time-barred not later than 72 months as of acceptance of the entire system or 84 months as of delivery respectively. Any longer statutory period of limitation shall remain unaffected; ¬ß¬ß 438 para 3, 479 and 634a para 3 German CC shall also remain unaffected.
6. Insofar as and as long as any deliveries shall not be used contractually due to any supplementary performance by Contractor, their period of warranty shall prolong accordingly. The period of warranty shall start again with the acceptance of the repair or replacement performance for any deliveries being repaired and / or replaced within the frame of warranty, but no longer than five years as of the original start of warranty and in case of any construction works it shall be no longer than 7 years as of the original start of warranty.
7. Legal requirements shall define Contractor’s warranty.
1. Product Liability
Contract shall mark his deliveries that they can be permanently identified as his ones. Insofar as Contractor shall be responsible for a product defect or the breach of any statutory/official safety regulations he should have to release KCS GmbH from any claims of compensation of any third party upon the first written demand. Furthermore, KCS GmbH shall be entitled to reimbursement of all the cost incurred as a result of or especially in connection with any recalls caused by KCS GmbH; insofar as possible and reasonable, KCS GmbH shall inform Contractor prior to any such recalls concerning its content and scope.
Further-reaching statutory claims shall be reserved.
The corresponding shall apply if any product defects are caused by any failure in deliveries of any previous contractors or sub-contractors.
Contractor is obliged to remain insured sufficiently and at the request of KCS GmbH, he has to prove this in writing at any time especially by a written confirmation by Contractor’s insurance company.
2. Environmental Liability
Contractor shall be liable for any damages in connection with his deliveries caused by infringement of environmental protection provisions (such as emission protection law, used oil and water management law, waste removal law and/or any related ordinances issued). He shall have to release KCS GmbH from any claims of compensation of any third party upon the first written demand. Furthermore, Contractor shall have to pay for any loss incurred to KCS GmbH.
XIII. Property Rights
Contractor is responsible for the point, that no right of any third party will be infringed in conjunction with the completion of any order. Should any third party be used, Contractor has to release KCS GmbH from any such claims upon the first written demand. Such duty of release shall also apply for any expense necessarily incurred to KCS GmbH due to / in connection with such use, especially by reception of the authorization of use by the right holder of the property rights.
XIV. Assignment of Claim
Any claims against KCS GmbH shall only be assigned with the prior written approval of KCS GmbH. This shall not apply for any assignments within the frame of an extended reservation of title. ¬ß 354a HGB (German Commercial Code) shall not be affected.
XV. Partial Ineffectiveness
Any possible ineffectiveness of any contractual provisions shall not affect the remaining contractual provisions. Both contractual partners undertake to replace these ineffective contractual provisions immediately with such an agreement in a supplement agreement which comes closest to the economic meaning and objective of the ineffective contractual provision.
XVI. Place of Performance
Place of performance for any delivery by Contractor is the place of application agreed upon, concerning any payment of KCS GmbH it is the registered office of KCS GmbH.
XVII. GVenue, Applicable Law
1. Insofar as Contractor is a registered trader, a legal entity under public law or special fund under public law, venue shall be the registered office of KCS GmbH concerning any proceedings, even for actions on cheques or bill of exchange; KCS GmbH shall also be entitled to sue Contractor at his general registered office.
2. The law of the Federal Republic of Germany shall be applicable for the legal relationship of any domestic contracting parties.