Terms and Conditions
General Terms and Conditions of KSI Kältetechnik GmbH
AGeneral information
Deliveries, services, purchases and the acceptance of services shall be governed exclusively by these General Terms and Conditions (GTC). These GTC shall also apply to future transactions between the parties.
Any deviating general terms and conditions of business or purchase on the part of the purchaser or supplier shall not be recognised, unless their inclusion in the contractual relationship has been expressly agreed in writing. Nor shall the unconditional provision of services or acceptance thereof be deemed to constitute consent to any deviating terms and conditions of the purchaser or supplier.
Conclusion of the contract
Our quotations are always subject to change. An order placed by the customer constitutes a binding offer (proposal). The customer remains bound by their proposal for two weeks. The contract is only concluded upon our express acceptance of the proposal or upon our first act of performance.
The scope of the delivery and services is governed by the agreements and terms and conditions of sale set out in our order confirmation.
Prices, payment terms
Unless otherwise stated, prices quoted by us are net prices, i.e. exclusive of statutory VAT and any applicable freight or delivery charges, unless gross prices including ancillary services have been expressly stated.
We may claim payment of the purchase price immediately upon handover of the item contractually due. In the case of services and work performed, we are entitled to charge instalments as work progresses, even for services that have not yet been completed in themselves. All invoices are due for payment no later than 10 calendar days from receipt of the invoice.
Any deterioration in the purchaser’s creditworthiness that comes to light after the conclusion of the contract, or any significant past delays in payment, shall entitle us to demand payment prior to delivery or performance, or the provision of security, even if the contract or the order confirmation issued provides for a different method of payment. If we have granted the customer a payment term and it becomes known within this period that the customer has failed to pay for deliveries from third parties, or has failed to do so on time, becomes insolvent, falls into arrears with payments or allows bills of exchange to be protested, our claim shall become due immediately. Pending payment of any outstanding invoice amounts, including interest on arrears, we shall not be obliged to make any further deliveries to the defaulting customer under any contract.
The contracting party shall only be entitled to set-off rights if its counter-claims have been established by a final and binding judgement, are undisputed, have been acknowledged by us, or are closely linked to our claim on a synallagmatic basis.
Price adjustment clause
We are entitled to make price adjustments if there is a period of more than four months between the conclusion of the contract and the agreed delivery or performance date, or the completion of the work. A price adjustment is subject to the condition that labour, material or procurement costs, or the relevant taxes and duties (e.g. value added tax), have changed by more than a negligible amount. As part of the price adjustment, we are entitled to adjust the agreed prices accordingly to reflect the changed cost or price structure, at our reasonable discretion, with the aim of offsetting the cost increase and setting out the actual cost increase that forms the basis for the price increase. The price adjustment shall be effected by means of a declaration by us to the contracting party and shall take effect for all services to be provided by us following the declaration of adjustment.
Deliveries
Goods ordered must be collected from our premises; otherwise, they will be delivered from our warehouse or from our supplier’s warehouse to the delivery address specified by the customer, at the customer’s risk. Unless otherwise agreed in the contract, the method and route of dispatch are at our discretion. We are not obliged to choose the cheapest method of dispatch or the fastest route. In commercial transactions, the risk passes to the customer as soon as the delivery has been handed over to the company or person commissioned to carry out the dispatch. In the case of freight forwarding, delivery shall, in cases of doubt, be made without unloading by us and subject to the access route being suitable for heavy goods vehicles.
Delivery time
Information regarding delivery times is always non-binding, unless a delivery date has been expressly confirmed as binding. The delivery period begins on the day we send the order confirmation and ends on the day the goods leave the factory or our dispatch warehouse. If, following our order confirmation, the customer amends the order or its specifications in a way that affects the production time, the delivery period shall (only) recommence upon our confirmation of the amendments.
Force majeure and similar unforeseeable events (in particular industrial action, measures taken by public authorities and events external to our operations and beyond our control) entitle us to extend delivery times by a reasonable period. The purchaser may withdraw from the sales contract if the delivery disruption affecting us or one of our suppliers persists for longer than 4 months.
The customer shall only be entitled to withdraw from the contract after a reasonable grace period of at least 3 weeks has been set.
In the case of a non-binding delivery date, a reminder or the setting of a deadline is only permissible once the non-binding date has been exceeded by more than 6 weeks; in the case of a binding delivery date, this applies as soon as the date has been exceeded.
Retention of title
We reserve title to the goods delivered until all claims arising from the contract have been paid in full. We are entitled to take back the goods if the customer breaches the contract.
Until title has been transferred, the customer must notify us in writing without delay if the delivered goods are subject to attachment or any other interference by third parties.
The purchaser is entitled to resell the goods subject to retention of title in the ordinary course of business. The purchaser hereby assigns to us, with immediate effect, any claims it has against the buyer arising from the resale of the goods subject to retention of title, in the amount of the final sum (gross) agreed with us. This assignment applies regardless of whether the goods have been resold in their original state or after processing. The purchaser remains authorised to collect the claim even after the assignment. Our right to collect the claim ourselves remains unaffected. However, we shall not collect the claim as long as the purchaser meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application has been made for the opening of insolvency proceedings or suspension of payments has occurred.
Any processing, treatment or transformation of the goods purchased by the customer shall always be carried out in our name and on our behalf. In this case, the customer’s right to the goods purchased shall continue to apply to the transformed item. If the goods are processed together with other items not belonging to us, we shall acquire co-ownership of the new item in the proportion of the objective value of our goods to that of the other processed items at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the purchaser’s item is to be regarded as the principal item, it is deemed agreed that the purchaser shall transfer proportionate co-ownership to us and shall hold the resulting sole ownership or co-ownership in safekeeping on our behalf. To secure our claims against the purchaser, the purchaser shall also assign to us any claims against a third party arising from the combination of the goods subject to retention of title with immovable property; we hereby accept this assignment in advance.
“We undertake to release the security to which we are entitled at the purchaser’s request, insofar as its value exceeds the claims to be secured by more than 20 per cent.”
Warranty under the Sale of Goods Act, Contract for the Supply of Work and Materials
The customer is obliged to inspect the goods immediately upon their arrival at the destination. In the case of partial deliveries, each partial delivery must be inspected separately. Any defects must be reported to us immediately, and at the latest within 14 days. The purchaser is obliged to store any goods found to be defective in an appropriate manner, to protect them from deterioration and, upon request, to make them available to us without delay or, at our discretion, to allow us to inspect them.
If the purchaser is a legal entity governed by public law, a special fund under public law or a trader acting in the course of their commercial or self-employed professional activities at the time the contract is concluded, warranty claims under the law of sale shall become time-barred one year after delivery of the goods; in the case of the purchase of second-hand goods, the warranty is excluded.
If the purchaser is a consumer, warranty claims under the Sale of Goods Act are subject to the statutory limitation period; in the case of the purchase of second-hand goods, this period is 12 months from delivery of the goods.
Warranty period under a contract for work and materials, notice of defects and rectification of defects
Under a contract for work and services, the warranty period for non-consumers is four years for buildings and two years for other works involving the manufacture, maintenance or alteration of an item. For parts of mechanical and electrical/electronic systems where maintenance affects safety and functionality, the limitation period for claims for defects in respect of these system components is two years, provided the customer has chosen not to entrust us with maintenance for the duration of the limitation period.
Notwithstanding the above, statutory rights remain unaffected if we have fraudulently concealed the defect or have given a guarantee to the contrary.
Should a defect in our service come to light during the warranty period, you must notify us of this immediately and give us the opportunity to inspect the reported defect and rectify it within a reasonable period of time. The customer shall bear all necessary costs incurred in making the defective item accessible to us.
Copyright and Intellectual Property Rights
If the customer provides us with plans, samples or other templates for implementation, they shall be responsible for ensuring that no third-party rights are infringed during execution. They shall indemnify us against all claims by third parties arising from the infringement of copyright, patents and other intellectual property rights in this regard.
Liability
In the event of a breach of duty on our part or on the part of our agents or vicarious agents arising solely from negligence, our liability is limited to the foreseeable damage typical for this type of contract. We shall not be liable for damage caused by slight negligence arising from a defect in the ordered item, nor for consequential damage. The personal liability of our legal representatives, agents and employees for damage caused by them through slight negligence is also excluded.
These limitations of liability do not apply in the event of death, personal injury or damage to health, nor in cases of gross negligence, nor to liability under the Product Liability Act in respect of items used for private purposes.
Special provisions for contracts for work and labour and contracts for work and materials
Unless expressly agreed otherwise, the working hours and service periods for which remuneration is payable shall also include journeys to the site or installation location. Travel expenses and vehicle costs shall be reimbursed separately.
The Customer must name contact persons who can be reached during normal office hours and who have all the necessary technical and contractual decision-making powers. The customer is also responsible for providing all information, working documents and equipment required to carry out the work offered, ensuring that these are accurate and complete, and must grant us free and unhindered access for our employees, suppliers and subcontractors. The Customer is also responsible for ensuring that all necessary cooperation and services are provided in a timely manner and to the required extent. Should the customer fail to fulfil its obligations to cooperate sufficiently in the manner required and/or agreed, it shall compensate us for any resulting additional expenses, idle costs and damages.
Upon completion of our work, the customer is obliged, at our request, to carry out a formal acceptance inspection within a reasonable period, but no later than two weeks. If the acceptance cannot be carried out for reasons for which the customer is responsible, we are entitled to invoice the estimated final invoice amount as a provisional interim invoice. Acceptance must not be refused on the grounds of minor defects.
In the case of repairs and maintenance, we are entitled to reuse removed old parts without compensation or to dispose of them at the client’s expense, unless we have received any other instructions from the client.
Place of performance and jurisdiction
The place of performance for deliveries and payments is our registered office in Heinsdorfergrund.
If the customer/supplier is a trader, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be Plauen. The same applies if the customer/supplier does not have a general place of jurisdiction in Germany. This agreement on the place of jurisdiction also applies to future claims arising from the business relationship. However, we are also entitled to bring proceedings at the defendant’s general place of jurisdiction or at the place where the work is performed.
Miscellaneous
The contractual relationship is governed by the substantive law of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
Should any individual provisions of the contract between us and you, including these general terms and conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The provision that is wholly or partially invalid shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision.
d22/D58-2015