General terms and conditions KWS Electronic Test Equipment GmbH
Status: May 2014
I. General terms and conditions
The mutual written declarations are decisive for the scope of the supplies or services (hereinafter referred to as deliveries). Terms and conditions of the Purchaser shall apply only to cases where the supplier or service provider (hereinafter KWS) has expressly agreed to them in writing. Generally, the supplier only enters into business relationships with commercial purchasers.
With respect to cost estimates, drawings, and other documents (hereinafter: documents) KWS retains its ownership and copyright exploitation rights fully. The documents may only be made available to third parties with the prior consent of KWS and, if the contract is not awarded to KWS, be returned immediately upon request. Sentences 1 and 2 shall apply respectively to the documents of the Purchaser, however, these may be disclosed to third parties to whom KWS has rightfully transferred supplies.
For the standard software the purchaser has the non-exclusive right to use the agreed features in unmodified form for the agreed equipment. The purchaser may make a backup copy without express agreement.
Partial deliveries are permissible, providing they are reasonable for the Purchaser.
II. Pricing and payment conditions
Prices are ex works, excluding packing and excluding any applicable VAT.
Payments shall be made to the account of KWS without any deductions and free of transaction charges.
Purchaser may only set off such claims that are undisputed or defined by court in a final judgement.
The following terms of payment apply: Repairs and retrofits shall be payable net immediately after receipt of the invoice and without deduction. All other invoices are payable within 10 days of the issue of the invoice with 2 % rebate or within 30 days without rebate.
III. Reservation of Property Rights
The goods remain the property of KWS (reserved goods) until the fulfilment of all outstanding financial claims of KWS against the Purchaser. Insofar as the value of all security rights, to which KWS is entitled, exceeds the amount of all secured claims by 20 %, KWS will, at the request of the Purchaser, release a corresponding part of the secured rights.
As long as the retention of title is effective, the Purchaser shall be prohibited from pledging or transferring by way of security the items supplied, and Resellers alone shall be authorised to resell the items in the normal course of business and subject to the Reseller receiving payment from its client or with the proviso that the property shall not pass to the client until the latter has met its financial obligations.
The Purchaser shall immediately inform KWS of any seizures, attachments or other dispositions or interventions by third parties.
In case of breaches of obligations of the Purchaser, in particular in case of default in payment, KWS is entitled to cancellation and to take the goods back after the unsuccessful expiry of a deadline set to Purchaser; the statutory provisions relating to the dispensability of a deadline shall remain unaffected.
IV. Deadlines for deliveries; delays
Compliance with the delivery periods shall only be binding if all documents to be provided by the Purchaser, necessary permits and approvals, especially concerning plans, as well as payment conditions and other obligations, are fulfilled. If these prerequisites are not fulfilled in a timely manner, the deadlines will be extended correspondingly; this does not apply when KWS is responsible for delays.
If a delay is a result of force majeure, e.g. mobilization, war, uprisings, or similar events, e.g. strike, lockout, the deadline will be extended accordingly.
If KWS is responsible for the delay of a delivery, the Purchaser, providing he can credibly demonstrate that he suffered a loss from such delay, may claim compensation of 0.5 % per full calendar week of delay. This is however limited to a maximum of 5 % of the price of the portion of the delivery that could not be put into useful service because of the delay.
Both compensation claims on the part of the Purchaser for delivery delays by KWS as well as compensation claims in lieu of performance that go beyond the limits stipulated in clause 3 shall be excluded in all cases of delayed delivery, including expiry of a delivery deadline set by KWS. This limit of liability does not apply in the case of intent, gross negligence, or in the case of injury to the life, body or health of a person. The Purchaser may only terminate the contract in accordance with the statutory provisions as long as the delay in delivery is within the responsibility of KWS. The above rulings do not constitute any change in the burden of proof to the disadvantage of the Purchaser.
At request of KWS the purchaser is obliged to state within a reasonable period whether he will rescind the contract because of delayed delivery after expiration, or whether he will insist on delivery.
Should on request of the Purchaser the dispatch or delivery be postponed for more than one month after dispatch-ready notification, KWS is entitled to invoice the Purchaser for each month commenced 0.5 % of the price of the goods to be delivered, however not more than a total of 5 %. The contract parties are at liberty to confirm higher or lower storage costs.
V. Transfer of risk
The risk also transfers to the Purchaser for carriage free delivery as follows:
a) upon delivery, when they have been brought to dispatch or were collected. On request and at the expense of the purchaser KWS insure deliveries against general transport risks
b) in case of deliveries requiring installation or assembly, on the day of acceptance in own facility or, as agreed, after a problem-free test run.
The risk shall pass to the Purchaser if dispatch, delivery, acceptance in own operations, or test operations are delayed for reasons attributable to the Purchaser, or if the Purchaser delays the acceptance for other reasons.
The Purchaser shall not refuse to receive deliveries due to minor defects.
VII. Material defects
KWS is liable for material defects as follows:
All parts or services, within the limitation period where a defect becomes apparent, shall, at the discretion of KWS, be repaired, replaced or provided again – irrespective of the period of operation – in so far as the cause of these defects was already in existence at the time of the risk being passed.
Warranty claims expire in 24 months from the date of the initial delivery.
This does not apply insofar as the (German) law under §§ 438 Section 1 No. 2 (Buildings and Components for Buildings), 479 Section 1 (Right of Recourse) and 834a Sections 1 No. 2 (Construction defects) requires longer periods, or in cases of injury to life, body, or health, as well as breach of duties, either intentionally or through gross negligence, and fraudulent concealment of a defect.
Warranty claims against used devices can only be made for replaced parts within 6 months from the date of purchase. Warranty claims against effective rechargeable batteries for new devices expire after 12 months and after 6 months for used devices. Warranty claims against defective wear parts like measurement cables, adapters or bags are excluded. The legal regulations concerning expiry suspension, interruption, and restart of the limitation period remain unaffected.
The Purchaser shall notify KWS in writing without delay with regards to defects.
In the case of notification of defect, the Purchaser is entitled to withhold payments at a value that is in reasonable proportion to the material defects encountered. The Purchaser can only withhold payments if a notification of defect is asserted where no doubt exists about its entitlement. If the notification of defect proves unjustified, KWS shall be entitled to demand the reimbursement of any expenses incurred from the Purchaser.
First, KWS is to be afforded an opportunity to effect subsequent performance within a reasonable period of time.
If the supplementary performance fails, then the Purchaser can – regardless of possible damage claims according to § X1 – either withdraw from the contract or reduce the remuneration.
Warranty claims shall be excluded in case of merely insignificant divergence of the quality of the delivered goods from the agreed quality, in case of only minor impairments in usability, in case of natural wear and tear, which after the risk transfer occurred resulting from incorrect or careless handling, excessive usage, inappropriate means of operation, or as a result of particular external influences that are not presupposed by the contract as well as non-reproducible software defects. If the Purchaser or third parties make improper changes or improper repairs, then there shall be no right to claim damages for defects or the consequences of such work.
Claims asserted by the Purchaser on account of the expenditure required for rectification, in particular the cost of transportation, travelling, labour, and material, are excluded insofar as the costs are increased because the object of the delivery has been subsequently forwarded to another place other than the Purchaser’s place of business unless the transfer would correspond to its designated use.
The Purchaser’s right of recourse against KWS according to § 478 BGB (Contractor’s recourse) is limited to cases where the Purchaser has not made any agreements with its own customers beyond the mandatory statutory claims against defects. In addition, item 8.8 shall apply correspondingly to the scope of the right for recourse of the Purchaser against KWS according to $ 478 Section 2 (BGB – German Civil Code).
Furthermore, § 11 (Other claims for damages) also applies to claims for damages. Further claims of the customer against KWS and its agents on account of material defects or other claims than those regulated in this § VII are excluded.
VIII. Industrial property rights and copyright; defects of title
Furthermore, § X (Other claims for damages) also applies to claims for damages. Any other claims of the Purchaser against KWS or its agents or any such claims exceeding the claims provided for in this § VII, based on material defects, are excluded.
a) KWS may at its own discretion and cost, either obtain a right to use, or modify them to prevent an infringement of the rights, or exchange them. If this is impossible for KWS under reasonable conditions, Purchaser shall be entitled to statutory cancellation or reduction rights.
b) The liability of KWS to pay damages shall be governed by § X.
c) The aforementioned obligations of KWS shall only apply on condition the Purchaser immediately informs KWS in writing about any claims asserted by third parties, an infringement is not acknowledged, and that the rights of KWS to take any defence measures and any settlement negotiations shall remain unaffected. If the Purchaser suspends the use of the goods in an effort to minimise damage or for other significant reasons, it shall be obliged to advise the third parties that such discontinuation of use does not constitute an admission to infringement of proprietary rights.
c 1) Claims by the purchaser are excluded, insofar as he is responsible for the infringement of property right.
c 2) The Purchaser shall also not be entitled to any claims if infringement of a proprietary right is the result of specific requirements on the part of the Purchaser, an application not envisaged by KWS, or modification of the goods on the part of the Purchaser, or deployed in conjunction with products that were not provided by KWS.
c 3) In case of violations of property rights for the claims of the Purchaser stipulated in No. 1a) the provisions of § VII items 4, 5, and 8, apply accordingly.
c 4) If there are any other deficiencies in title, the provisions of §VII shall apply accordingly.
c 5) Any other claims of the Purchaser against KWS and its agents or any such claims exceeding the claims provided for in this §9, based on a defect in title, are excluded.
IX. Impossibility; contractual revision
Should the delivery prove to be impossible then the Purchaser has the right to claim for damages, unless KWS is not responsible for the impossibility. However, the claim for damages is limited to 10 % of the value of the part of the delivery, which because of the impossibility, cannot be brought into operation for the intended purpose. This restriction does not apply in insofar as liability is assumed in cases of intent, gross negligence, or because of injury to life, body, or health; this does not imply a change to the burden of proof to the detriment of the Purchaser. The right of the Purchaser to withdraw from the contract remains unaffected.
If unforeseeable events within the context of § 4 No. 2 significantly change the commercial meaning or the content of the delivery or significantly affect the operations of KWS, the contract shall be amended accordingly taking into account the principles of good faith. Should this not be commercially viable then KWS reserves the right to withdraw from the contract. If KWS intends to exercise its right to rescind the contract, it shall notify the Purchaser of its intention without delay as soon as the impact of the event has been identified; this is also applicable even where an extension of the delivery period has been agreed with the Purchaser.
X. Other Claims for Damages
Claims by the Purchaser for damages and reimbursement of expenses (hereinafter referred to as claims for damages), regardless of the legal basis thereof, particularly owing to a breach of duties arising under the contractual relationship and unauthorised actions, are excluded.
This does not apply where liability is legally mandated, such as under the Product Liability Act, in cases of malicious intent, gross negligence, in cases of injury to life, limb, or health, in cases of violation of fundamental contractual obligations. The claim for damages for the breach of material contractual obligations shall be limited to foreseeable damages typical of the contract, unless intent or gross negligence exists, or liability due to injury to life, body, or health exists. The above rulings do not constitute any change in the burden of proof to the disadvantage of the Purchaser.
To the extent that the Purchaser has a valid Claim for Damages according to this § X, this claim shall be time-barred upon expiration of the limitation period applicable to Defects pursuant to § 8.2. The legal provisions for limitation periods apply to claims for damage that fall under the product liability law.
XI. Jurisdiction and applicable law
If the Purchaser is a trader, the sole place of jurisdiction for all disputes directly or indirectly arising from the contractual relationship shall be the seat of KWS. However, KWS is also entitled to sue at the seat of the Purchaser.
Legal relations existing in connection with this contract shall be governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XII. Binding character of the agreement
Despite any legal invalidity of individual provisions the contract remains binding for its remaining parts. This does not apply if adherence to the contract would result in unreasonable hardship for a party.
© 2020 KWS Electronic Test Equipment GmbH, Tattenhausen, Raiffeisenstrasse 9, 83109 Großkarolinenfeld, Germany. All rights reserved.
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