Terms and Conditions – Kurth Electronic

Terms and Conditions

§ 1 Application

(1) These terms and conditions shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing.
(2) These terms and conditions shall also govern all future transactions between the parties and shall also apply if we perform delivery despite our knowledge of differing or contrary terms.
(3) These terms and conditions shall only apply vis á vis merchants, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code).

§ 2 Offer, Acceptance, Provisos

(1) All offers from us are subject to change without notice until a contract has been concluded. Orders are not legally binding until they have been confirmed in writing within a reasonable period of time or executed with the consent of the business partner in accordance with agreement. It is the written order confirmation that sets the standard for type, scope and time of deliveries and services.
(2) Drawings, images, measures, weights as well as all other requirements data are binding only if this has been agreed explicitly in writing.
(3) Images, drawings, measurements, calculations, statements of weights and all other technical data and statements from us do not constitute guarantees of qualities or of periods of service life.
(4) We retain ownership of and all originators’ usage rights to all cost estimates, drawings and other documents (“the Documents”) without limitation. The documents may be made accessible to third parties only with our prior consent and upon demand by us in the event that we are not awarded the corresponding contract the documents shall be given back to us without delay. Sentences 1 and 2 apply analogously to documents of the customer except that these may be made accessible to third parties to which we have legitimately transferred responsibility for deliveries.
(5) The customer is granted the non-exclusive right to use standard software and firmware with the agreed performance attributes and without modification at the contractually agreed workstations. It is agreed that the customer may create a backup copy
(6) Fulfillment of the contract is subject to the reservation that it is not obstructed by German, EU or international regulations of foreign trade and payments law, and also not obstructed by any embargos or other sanctions. The customer is obliged to provide all information and documents needed for export, shipment and import.

§ 3 Prices

(1) Except as something else is stated, we are bound to the prices contained in our offers for 30 days from date of offer. Otherwise, the prices which are definitive are the prices stated in our order confirmation plus the applicable value added tax.
If there is a change in any of the bases of our calculation, such as an increase in wages, costs of materials, manufacturer’s costs, value added tax or other circumstances, in particular changes in calculation for technical reasons, after the contract with the customer has been concluded, then we are entitled to change the price quoted to the customer to the extent that this change in the basis of calculation is reasonably justified. Then we have the option of withdrawing from the contract. This also applies to closing and call off orders unless otherwise explicitly agreed when the contract was concluded.
(2) The costs of shipment as well as any cash on delivery costs, customs duties and any other charges connected with shipment to another country are not included in the price and are invoiced separately.

§ 4 Workmanship and Product Qualities

(1) When we manufacture and deliver objects in accordance with drawings, samples or other documents prescribed by the customer, the customer warrants that no rights of any third party are violated thereby. If any third party asserts a claim against us, we are entitled, without having to evaluate the matter legally, to notify the customer and then to withdraw from (reverse) the contract or to cease all activities and demand compensation for damages from the customer. The customer agrees to indemnify us without culpable delay against all claims of third parties in connection with this.
(2) Our products are checked against our standards and blueprints, etc., in the context of our quality verification. When a customer wishes to receive certain conformity declarations about the products being ordered, then the customer must notify us of this explicitly and in writing when placing the order.
(3) If an order is placed subject to a company internal release of the customer’s quality assurance department, then, upon request by us, the customer is obliged to notify us without culpable delay of whether or not the order has become final and completely released.
(4) If the customer agrees to procure materials or other objects required to execute an order, then the customer must deliver them at the customer’s expense to the manufacturing facility specified by us in the agreed, flawless quality, in the agreed or sufficient quantities, including reasonable excess quantities to cover wastage, and in good time before production begins. If this obligation is not met, then we have the right, without prejudice to other statutory rights, to withdraw from the contract (i.e. reverse the order) or to demand compensation for damages due to non-fulfilment.

§ 5 Delivery

(1) The delivery period begins at the earliest with the date of our order confirmation. Delivery is conditioned upon timely and proper performance of all duties of the customer. Defences based on non-performance of the contract are reserved.
(2) Delivery and acceptance dates can be met only if all the documents to be delivered by the customer, including all required approvals and releases, especially of plans, have been received on time, and only if the agreed payment conditions and other obligations have been met by the customer. If these prerequisites are not fulfilled on time, then the delivery and acceptance dates will be postposed accordingly; this does not apply if we are responsible for the delay.

Delivery and acceptance dates are to be extended appropriately if failure to meet them is to be attributed to
a) force majeure, such as, for example, war, an act of terror, an uprising, a strike, or a lockout, or
b) obstructions posed by German, EU, American or international regulations of foreign trade and payments law, or
c) virus or other attacks of third parties on our IT system or that of one of our suppliers (insofar as the customary protective measures had been taken and were in place) or
d) late or improper deliveries from our suppliers.
(3) Unless otherwise expressly agreed, the delivery is always EXW – Ex Works / Ex Works (Incoterms ® 2010).
(4) We are entitled to deliver partial orders and render partial service at any time unless a given partial delivery or service would be unreasonable for the customer
(5) If assembly and installation have been agreed, the customer shall undertake and provide in time the following at its expense:
a) all earth work, construction work and other subsidiary work not normally provided in our industrial sector, including the required workers, materials and tools;
b) the objects and materials required to assemble and put in operation, such as scaffolding, hoisting devices and other auxiliary equipment, fuels, and lubricants;
c) at the place of assembly / use (including the connecting points): energy, water, heating and lighting;
d) work and recreation rooms for the installation team, including sanitary facilities, that are appropriate under the circumstances;
e) rooms that are large enough for storing machine parts, equipment, materials, and tools that are suitable, dry and can be locked; moreover, in the interests of protecting our property and the safety of the installation team at the construction site, the customer shall take the measures it would take to protect its own property and personnel.
f) the protective clothing and equipment that may be required in view of particular conditions at the installation site.

Before assembly or installation is begun, the customer shall provide, without being asked, all necessary information about the position of concealed electric current lines, gas lines, water pipes and the like, including the required statics information. Moreover, the supplies and objects required must be at the assembly or installation site and all preliminary work must be sufficiently advanced for the assembly or installation to begin as agreed and carried out without interruption. All access routes and the assembly or installation site must be leveled and cleared.

If assembly, installation or putting in operation is delayed by circumstances for which we are not responsible, the customer shall bear a reasonable share of the costs for waiting times and additionally necessary travel by installation personnel.

Each week, the customer shall certify to us, without delay, the amount of time worked by the installation team during the previous week and the anticipated completion date of assembly, installation or putting in operation.

If we demand that completion of the work be formally accepted by the customer, then the customer shall accept (or reject) it in writing within two weeks. If the customer allows this two week period to elapse without a written statement of acceptance or rejection, or if the delivery is put in operation after conclusion of an agreed test phase, then the delivery shall be deemed to have been accepted.

§ 6 Passing of Risk, Shipment

(1) All deliveries are at the expense and risk of the intended recipient. We reserve the right to decide on the shipment route and location as well as the means of transport and type of packaging. We are not obliged to select the cheapest shipment alternative. If the customer prefers some other type of shipment, then the customer shall bear the costs for this. At the customer’s request, deliveries will be insured by us at the customer’s expense against the shipment risks for which insurance is normally available.
(2) All risks pass to the customer, even in a case of carriage paid delivery, at the following time:
a) in the case of delivery without assembly or installation, when the delivery has been brought to or collected by a shipping company, whereby at the request and expense of the customer, the delivery will be insured against the usual risks of transport;
b) in the case of delivery with assembly or installation, on the day of integration in the customer’s operations, or, if agreed in advance, upon successful conclusion of trial operations; or
c) if the customer requests shipment of the goods, the risk of accidental loss or damage to the goods passes to the customer upon dispatch.
(3) In case of default in acceptance or other breach of duties to cooperate by the customer we are entitled to claim any resulting damage including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the customer at the time of such default or breach of duty to cooperate.

§ 7 Retention of Title

(1) We retain title to the goods until receipt of all payments in full. In case of breach of contract by the customer including, without limitation, default in payment, we are entitled to take possession of the goods.
(2) The customer shall handle the goods with due care, maintain suitable insurance for the goods.
(3) As long as the purchase price has not been completely paid, the customer shall immediately inform us in writing if the goods become subject to rights of third persons or other encumbrances.
(4) The customer may resell goods subject to the above retention of title only in the course of his regular business. For this case, the customer hereby assigns all claims arising out of such resale, whether the goods have been processed or not, to us. Notwithstanding our right to claim direct payment the customer shall be entitled to receive the payment on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the customer complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
(5) All processing and transformation of goods by the customer is processing and/or transformation performed for us. If the goods are processed with other objects that do not belong to us, we acquire co-ownership of the new goods (output of processing / transformations) in accordance with the ratio of the value of our goods (invoice amount including VAT) to that of the other objects processed or transformed as of the time of processing / transformation. All further processing / transformation of the new goods is governed by the same rules as processing / transformation of the goods we delivered subject to retention of ownership until receipt of all payments in full.
(6) If the goods are mixed with objects that do not belong to us so that our goods become inseparable, then we acquire co-ownership of the new goods in accordance with the ratio of the value of our goods (invoice amount including VAT) to that of the other objects with which our goods were mixed at the time of mixing. If the goods are mixed in such a way that the part which belongs to the customer is to be regarded as the primary part, then it shall be deemed to have been agreed that at the time of mixing the customer transferred co-ownership to us in accordance with the aforementioned ratio of the value of our goods to that of the other objects with which our goods were mixed at the time of mixing. Then the customer shall keep our resulting sole ownership or co-ownership for us.
(7) Insofar as the above securities exceed the secured claim by more than 10%, we are obligated, upon our election, to release such securities upon the customer’s request.

§ 8 Warranty

(1) Precondition for any warranty claim of the customer is the customer’s full compliance with all requirements regarding inspection and objection established by sec. 377 HGB (German Commercial Code).
(2) All warranty claims shall expire within twelve months from the beginning of the legal limitation period. When law prescribes longer periods as in the cases of § 438 para. 1 No. 2 BGB (buildings and building materials), § 479 para. 1 BGB (recourse) and § 634a para. 1 no. 2 BGB (structural defects), in cases of injury to life, limb or health, willful or grossly negligent breach of duty and for fraudulent concealment of the defect. The legal provisions regarding suspension, suspension and recommencement of limitation periods remain unaffected.
(3) Insofar as not otherwise agreed, we are obliged to ensure that the delivery from us is unencumbered by industrial property rights and all other originators’ rights in, but only in, the country to which delivery has been agreed. Insofar as a third party asserts within the period of para. 2 legitimate claims against the customer because of breach of originators’ rights by deliveries from us that have been used in accordance with the contract, we, at our discretion and expense, will either obtain usage rights for the deliveries in question, or change the deliveries so that the originators’ rights in question are no longer breached, or replace the delivery. If this is not possible for us at reasonable terms, our customer shall have the statutory rights to withdraw from (reverse) the contract or reduce the price. However, these obligations of ours apply only insofar as the customer advised us in text form without delay of the claims asserted by the said third party, the customer has not acknowledged that there has been a breach, and we continue to have all rights to ward off these claims and all options to negotiate a settlement. If the customer discontinues use of the delivery in order to reduce damages or for other important reasons, then the customer is obliged to point out to the third party that discontinuation of usage is not connected with and does not imply acknowledgment of a breach of originator’s rights. Claims by the customer are barred insofar as the customer is responsible for the breach of originators’ rights, especially insofar as the breach of originators’ rights is caused by special specifications by the customer, by an application that we were not able to anticipate in advance, by changes to the delivery by the customer or by use of the delivery together with products not delivered by us.

§ 9 Liability

(1) In case of intent or gross negligence on our part or by our agents or assistants in performance we are liable according to the provisions of applicable law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract is unintentionally our liability for damages shall be limited to the typically predictable damage. Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected regarding this limitation.
(2) Any liability not expressly provided for above shall be disclaimed.

§ 10 Applicable law, Jurisdiction

(1) These terms and conditions and the entire privity of contract shall be governed by the laws of the Federal Republic of Germany.
(2) Place of performance shall be D-72800 Eningen u.A.
(3) Exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be D-72800 Eningen u.A.
(4) In case of discrepancies between the German and the English wording of these terms and conditions, the German version takes precedence.
(5) In the event that any provisions of this terms and conditions, either in their entirety or in part, are or become invalid or unfeasible, or should at a later date lose their validity or feasibility, or if there is a gap in the agreement, this shall not affect the validity of the other provisions. In the place of the invalid provision or to fill the gaps, a valid provision shall be agreed upon which, insofar as it is legally admissible, comes closest to what the parties would have wanted given the meaning and purpose of this agreement, had they considered the point in question.