General Conditions of Business and Supply
Kilic Feintechnik GmbH (Kilic Precision Engineering, Inc.)
General Conditions of Business and Supply
Art. 1 General
(1) These general conditions of business and supply are to apply to all contracts of sale with the seller. Any contrary or divergent conditions of business of the customer will only be recognised by the seller when expressly declared by the seller to be valid and accepted in writing. These general conditions of business and supply of the seller are also to be valid, even though the seller is already aware of any contrary or divergent conditions of the customer, but proceeds to deliver the order of the customer without further comment.
(2) All agreements concluded between the seller and the customer for the purpose of completing the order, are to be given in writing or confirmed in writing unless otherwise determined.
Art. 2 Offering
(1) When an order is to be qualified as an offering as per Art. 145 of the German 'BGB - Buergerliches Gesetzbuch' (Civil Law Code), then the seller can accept the order within 2 weeks.
(2) The seller hereby retains ownership- and copyrights in images, technical drawings, calculations and all other documentation hereunder.
Art. 3 Prices and terms and conditions of payment
(1) Unless otherwise stated in the order confirmation, the prices of the seller are 'ex works' excluding packing, which will be separately shown in the invoice.
(2) The prices published do not include value added tax. Value added tax will be shown separately in the invoice and charged at the statutory rate prevailing on the date of the invoice.
(3) Unless otherwise stated in the order confirmation, the selling price of the seller is due for payment within 30 days of date of invoice; and for traders registered in Germany, net, net. The statutory stipulations concerning arrears of payment are to apply, with arrears' interest to be paid of 4% above the bank rate of the ECB - European Central Bank (in the case of traders registered in Germany, 8% above the 'ECB' bank rate), calculated from the due date for payment.
(4) The deduction of any discount is to require the special written agreement of the seller.
(5) All payments received by the seller will first be applied to settle the eldest historical financial claim of the seller on the customer.
(6) The customer is only entitled hereunder to deduct any of his/her/its counter financial claims on the seller from his/her/its payments when such counter financial claims are recognised by the seller, are undisputed or judicially determined as legally binding.
(7) Should the customer be a trader registered in Germany, then the following are to apply hereunder in addition: the seller reserves the right hereunder to alter its prices correspondingly, when, after the conclusion of a contract of sale, cost reductions or cost increases occur, especially in regard to wage agreements with the trades' unions, changes in the prices of materials or new rates of taxation impinge. The seller will evidence such to the customer if so required.
(8) Bills of exchange will only be accepted after prior agreement and after the written acceptance of the seller.
Art. 4 Delivery date
(1) The delivery date indicated by the seller is conditional upon the satisfactory clarification of all technical queries.
(2) Compliance with the delivery date by the seller is also conditional on the orderly and timely fulfilment of all contractual duties by the customer.
(3) The seller is entitled hereunder to exceed a delivery date by 3 weeks without the seller thus being in arrears whereby the seller hereby reserves the right to make partial deliveries if necessary.
(4) The seller will be legally liable according to statutory requirements when delivery arrears are caused by premeditated- or gross negligent contractual infringement for which the seller is responsible; and in this regard, the seller will also accept liability for the failings of its representatives or subcontractors. Unless delivery arrears are caused by premeditated contractual infringement for which the seller is responsible, then the legal liability of the seller in all other respects for delivery arrears is to be limited to the foreseeable, typically occurring forms of loss or damage.
(5) Should a customer be in arrears of acceptance or should a customer culpably infringe other collaborative duties, the seller will be entitled hereunder to demand indemnity for any loss or damage suffered including any additional outlay of expenditure. The peril of the accidental destruction or accidental deterioration of the goods sold will pass to the customer as from that date when the customer is in arrears of acceptance or arrears of payment. The seller hereby reserves the right to assert further claims on the customer, in addition.
Art. 5 The passing of the perils and consignment
(1) Unless otherwise stated in the order confirmation, all deliveries are agreed hereunder to be on 'ex works' terms.
(2) The goods are to be consigned for the account and the peril of the customer, also in cases of delivery franco residence address.
(3) Should the customer so require, the seller will cover the delivery under a goods-in-transit insurance and the costs thereof will be charged to the customer.
(4) Returns of goods may only be made with the agreement of the seller and will require a written confirmation of the seller. Returns are to be consigned free of postage and freight for the seller. The seller hereby reserves the right to make a processing charge dependent on the expenditure incurred.
Art. 6 Reservation of ownership rights
(1) The seller hereby reserves right of ownership of the goods delivered up to complete payment and, in cases of settlement by cheque or bill of exchange, up to their honouring and the crediting of the proceeds with the seller.
(2) Should the customer be a trader registered in Germany, then the following will also apply:
The seller hereby reserves right of ownership of all the goods delivered up to the receipt of all payments under the business relationship with the customer. The customer is entitled hereunder to sell the goods onwards in the ordinary course of business. In such a case, the customer hereby assigns to the seller in advance, at the time of the placing of an order or upon the acceptance of an order, all financial claims on its debtor, to the extent of the total amount of the invoice of the seller including value added tax, which accrue to the customer from an onward sale, no matter whether the goods are sold onwards before or after any additional processing. The customer however remains entitled hereunder to collect the proceeds of his/her/its onward sale from a debtor even after the foregoing assignment. An entitlement of the seller however remains unaffected hereunder to proceed to collect such financial claim from the debtor direct. The seller however binds itself hereby not to collect such financial claim itself provided the customer complies with his/her/its contractual duty of making payments and in particular makes no application to the court for the opening of composition- or insolvency proceedings and when no suspension of payments is in existence. Should such be the case, the seller is entitled hereunder to require the customer to reveal the identity of his/her/its debtor of the financial claim assigned to the seller, to provide all necessary details for the collection of the customer's financial claim against such debtor, to hand over the associated documentation and to inform the debtor of the assignment of the customer's financial claim.
(3) In cases of a mortgage or of other interventions by third parties, the customer is to inform the seller with immediate effect in writing, in order that the seller can make a petition to the court as per Art. 771 of the German 'ZPO - Zivilprozessordnung' (Civil Proceedings Ordinance). Should a third party not be in a position to refund any out-of-court- or litigation- charges and costs to the seller, the customer is to be liable hereunder to refund such to the seller.
Art. 7 Warranty and guarantee
The statutory warranty rights shall be applicable hereunder. In addition, the seller will provide a guarantee on the goods for 10 years from the date of delivery of the goods.
Claims under guarantee can only be asserted hereunder and will only be recognised by the seller, when the goods are in original condition. The guarantee will become null and void upon any alterations made or when damage occurs to the goods. The charges for the return of the goods are to be borne by the customer and the customer is to keep the seller free from all impinging charges.
Art. 8 Place of jurisdiction, applicable law and place of fulfilment
(1) When the customer is a trader registered in Germany, the place of jurisdiction is the court of law competent for the corporate domicile- or the place of the registered office of the seller.
(2) The law of the Federal Republic of Germany is to be applicable hereunder.
(3) Unless otherwise stated in the order confirmation, the place of fulfilment is the corporate domicile- or the place of the registered office of the seller.