Karl Kaps GmbH & Co. KG, Schulstrasse 57, 35614 Asslar

§ 1 Scope

(1) All KAPS’s supplies, services and quotations are provided exclusively on the basis of these General Terms and Conditions of Business (referred to after this as AGBs) insofar as the Customer is an entrepreneur or a legal entity or special fund under public law.  These AGBs form part of all contracts that Karl Kaps GmbH & Co. KG, Asslar (referred to after this as KAPS) enters into with its contract partner (referred to after this as the Customer) covering the supplies or services the former has offered.  They also apply to all future supplies, services or quotations to the Customer even if they are not agreed separately again.  

(2) The Customer’s or third party terms and conditions of business do not apply even if, in a particular case, KAPS fails to oppose them separately.

§ 2 Quotation, contract materialisation and written form

(1) If an order is to count as an offer, then we may accept it within 2 weeks.  

(2) Supplements and amendments to agreements reached including these AGBs must be in writing to be effective (§ 126b of the German Civil Code).  KAPS employees (with the exception of KAPS’s directors or authorised signatories) do not have the right to reach oral agreements deviating from what is in writing.  

(3) KAPS reserves its ownership of or copyright in all documents or objects handed or sent over by it (quotations, cost estimates, drawings, illustrations, calculations, models and so on).  Without KAPS’s explicit consent the Customer must not make such documents and objects accessible to third parties, disclose them, make use of them itself or through third parties or duplicate them.

§ 3 Prices and payment

(1) The prices apply to the agreed listed service and supply programme.  Additional, extra or special work is calculated separately.  The prices are expressed in euros, ex-works, exclusive of packaging, of statutory Value Added Tax and, in the case of exports, exclusive of duties, fees and other public charges. 

(2) Deduction of cash discount requires explicit agreement. 

(3) Setting off against the Customer’s counter claims or the withholding of payment on account of such claims is only permissible if the counter claims are uncontested or have been established with legal force.  This does not apply if the Customer were to be compelled by the prohibition on setting off in a firm contract to provide supplies or services to pay in full for a defective or incomplete performance while being entitled to make counter claims to the extent of the costs of eliminating the defects or completing the performance.

§ 4 Delivery and delivery time

(1) Deliveries are made ex-works.  Goods are shipped to some other destination on request by and at the expense of the Customer. 

(2) Unless otherwise agreed, KAPS has the right itself to specify at its reasonable discretion the manner of shipment, especially transport companies and the shipping route and to charge the costs arising to the Customer.

(3) The periods of time allowed by KAPS and deadlines for supplies and services apply if a fixed period or firm deadline was expressly promised or agreed.  If there was agreement to ship then the delivery periods and deadlines refer to the moment of handing over to the forwarding agent, carrier or other third party commissioned with the transportation.  The start of the time detailed for performance and/or delivery presupposes that all technical questions have been clarified. 

(4) KAPS is not liable for the impossibility of delivering or for delivery delays if these were caused as a result of force majeure or other occurrences that could not have been foreseen at the time of entering into the contract (such as factory disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of manpower, energy or raw materials, or missing, incorrect or late deliveries by upstream suppliers), provided KAPS is not answerable for such occurrences.  KAPS has the right to withdraw from the contract if such occurrences make it substantially more difficult or impossible to deliver or perform and if the obstacle is not just of a temporary duration. In the case of hindrances that are simply temporary the times allowed for delivery or performance lengthen themselves or are postponed by the period of time of the hindrance plus an appropriate run-up period.  If it is unreasonable to expect the Customer to accept the delivery or service as a consequence of the delay it may withdraw from the contract by giving KAPS a prompt written declaration to that effect.  

(5) If it turns out, after the contract has been signed, that KAPS’s claim is jeopardised as a result of the Customer’s ability to pay, then KAPS may refuse to perform.  The right to refuse to perform shall lapse if the Customer brings its counter performance to fruition or provides surety for it.  KAPS may specify an appropriate period of grace within which the counter performance must materialise and/or surety for it be provided.  KAPS has the right to withdraw from the contract after such a period of grace has elapsed fruitlessly.  

(6) KAPS has the right to make part deliveries if the part delivery is practicable for the Customer within the framework of the contractually intended purpose, if the delivery of the remaining goods ordered is assured and provided no significant additional expenditure or additional costs for the Customer arise as a result.   

(7) If KAPS falls behind with a delivery or performance or if either becomes impossible for it, for whatever reason, then its liability to pay compensation in damages is restricted in accordance with § 7 of these GTCBs.

§ 5 Place of fulfilment, passage of risk, acceptance

(1) Unless something else is specified, KAPS’s legal domicile is the place of fulfilment for all obligations arising from the contractual relationship.  If KAPS is also contracted to install then the location at which the installation has to be undertaken is the place of fulfilment.  

(2) Risk passes over to the forwarding agent, carrier or other parties specified to execute shipment with the handing over of the goods to be delivered.  This applies even when part deliveries are involved or KAPS still has other services to perform (such as shipping or installation).  If shipment or the passing over is delayed because of circumstances originating with the Customer, then the risk passes over to the Customer from the day on which the goods to be delivered were ready for shipment and on which KAPS notified the Customer accordingly.  The Customer shall bear the costs of storage after risk has passed over.    

(3) A formal acceptance must take place if one party to the contract so requests.  If no acceptance is requested then the performance counts as having been accepted when 12 working days have elapsed following written notification of the performance having been completed.  If no acceptance is requested and if the Customer has taken it or part of it into use then the acceptance counts as having taken place 6 working days after the start of the use unless something else has been agreed.

§ 6 Quality defects, claims arising from defects

(1) KAPS’s details relating to what has been delivered or provided and their depictions are relevant, unless their application to the contractually foreseen purpose presupposed a precise match.  They are not features relating to properties that are guaranteed but descriptions or identifications of the delivery or performance.  Deviations that are normal in the trade concerned and variations that are made because of legal requirements or represent technical improvements and the replacement of parts by others of the same quality are permissible, providing they do not detract from the contractually foreseen purpose. 

(2) The guarantee period is one year from delivery or, if acceptance is necessary, from the acceptance.   

(3) Claims arising from defects presuppose that the Customer has properly complied with its respective obligations to examine and object under § 377 of the Commercial Code, which applies analogously in the case of a contract for work and services. After the passage of risk and/or acceptance of the product, the Customer must immediately examine it for its functional reliability and notify us immediately and in writing of any defects established and of concealed defects as soon as they are discovered, within a period of 7 days at the latest. 

(4)  If KAPS is to blame for a defect than the Customer may demand compensation in damages subject to the preconditions specified in § 7.

(5) Claims arising from defects lapse if, without KAPS’s consent, the Customer alters what has been delivered or allows alterations by third parties and if the elimination of defects becomes impossible or unreasonably difficult as a result.  The Customer must, in any case, bear the additional costs of defect elimination arising from the alteration.

§ 7 Liability to indemnify

(1) KAPS’s liability to indemnify, on whatever legal basis, especially arising from delivery becoming impossible, being delayed, defective or incorrect, from breach of contract, from dereliction of duties in the course of contract negotiations, and from wrongful acts is, insofar as it amounts to KAPS being at fault in each case concerned, restricted under the provisions of this § 7.  

(2) KAPS is not liable in the case of simple negligence on the part of its executive bodies, statutory representatives, employees or other vicarious agents unless it involves a breach of substantial duties.  A substantial duty is a duty in which the Customer has and should have confidence.  Substantial duties are, for example, the obligation to deliver and to install the goods concerned in good time and free of major defects together with KAPS’s legal duties to provide advice, protection, and care that are intended to facilitate the Customer’s use of the goods as per contract or which have the object of protecting the life and limb of the Customer’s personnel.  

(3) Insofar as KAPS is liable to indemnify under § 7 (2) on its merits, such liability is restricted to losses that KAPS has, at the time of entering into the contract, foreseen as possible consequences of a breach of it or ought to have foreseen had it applied the care normal within the industry concerned.  Indirect losses and consequential damage arising from defects in what has been delivered are, furthermore, only repressible if such damage is typically to be expected when what has been delivered is used for its specified purpose. 

(4) Liability exclusions and limitations apply to the same extent in favour of KAPS’s executive bodies, statutory representatives, employees and other vicarious agents.  

(5) The limitations of this § 7 do not apply to the vendor’s liability on account of wilful behaviour, for guaranteed essential product features, on account of injury to life, the body or health or to liability under the product liability law.

§ 8 Reservation of ownership, guarantee

(1) KAPS reserves its ownership of what has been delivered until all payments arising from the business relationship have been received.  KAPS has the right to take back what has been delivered in the case of the Customer’s behaviour not conforming to the contract.  Such taking back entails a withdrawal from the contract.  After taking back what has been delivered KAPS is authorised to realise it and to set the proceeds of the realisation – less appropriate realisation costs – off against the Customer’s liabilities. 

(2) The Customer is obliged to handle what has been delivered carefully; it is, in particular, obliged at its own expense to insure it against damage by fire and water and against theft.  If inspection and maintenance work is required then the Customer must carry it out at its own expense. 

(3) The Customer has the right to sell what has been delivered within the normal course of its business; it does, however, here and now assign to KAPS all claims amounting to the total invoice amount (including Value Added Tax) that arise for it from its customers or third parties as a result of the onward disposal.  The Customer retains the right to call those claims in after the assignment.  KAPS’s authority to call the claim in itself remains unaffected by that.  KAPS undertakes, however, not to call the claim in as long as the Customer is meeting its payment obligations from the revenues that it has collected, does not fall into arrears of payment and in particular does not become the subject of an application to open insolvency proceedings.  

(4) Processing or conversion by the Customer of what has been delivered is always undertaken for KAPS.  If it is processed with other items not belonging to KAPS, then KAPS acquires co-ownership in the new product in the ratio that the value of what it has bought (total invoice amount, including Value Added Tax) bears to the value of the other processed items at the time of the processing. 

(5) If what has been delivered is inseparably mixed with items not belonging to KAPS, then KAPS acquires co-ownership in the new product in the ratio that the value of what it has bought (total invoice amount, including Value Added Tax) bears to the other items with which it is mixed up at the time of their being mixed up.  If the mixture takes place in such a way that the Customer’s product must be regarded is the main product, then it is deemed to have been agreed that the Customer transfers co-ownership to KAPS proportionately.  The Customer preserves the sole ownership or co-ownership that has thus arisen for KAPS. 

(6) The Customer also assigns to KAPS the claims that arise on any third party as a result of combining what has been bought with a plot of land. 

(7) KAPS commits itself to releasing the sureties to which it is entitled on the Customer’s request to the extent that the realisable value of the sureties exceeds the claims to be secured by more than 10%; KAPS has the right to select the sureties to be released. 

(8)  In the case of a delivery outside Germany KAPS has the right, for the purpose of securing its claims for payment, to demand from the Customer the handing over of a performance guarantee, which is unrestricted in terms of time, directly enforceable, and subject to German law, from a bank that is licensed in the EU.  

§ 9 Jurisdiction, choice of law, final provisions

(1) KAPS’s legal domicile is the jurisdiction but KAPS also has the right take legal action against the Customer in a court at the latter’s normal domicile. 

(2) The law of the Federal Republic of Germany applies, exclusively, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). 

(3) If the contract or these AGBs contain gaps in their provisions then it is deemed to have been agreed that whatever legally effective provisions that the contracting parties would have agreed in line with the commercial aims of the contract and in the spirit of these AGBs, if they had known about the gaps in the provisions.