General Terms and Conditions of KAUTZ Starkstrom-Anlagen GmbH

I. Scope of application

1. these General Terms and Conditions shall apply exclusively to the legal relationship between KAUTZ Starkstrom-Anlagen GmbH (hereinafter referred to as “Supplier”) and the Purchaser in connection with the deliveries and/or services of the Supplier (hereinafter referred to as “Deliveries”) and its offers. These shall also apply to all future deliveries and/or services and offers of the Supplier, even if their validity is not expressly agreed again with the Customer.

2. the customer’s own terms and conditions shall not apply unless the supplier has expressly agreed to them in writing. The Customer’s own terms and conditions of business shall not apply even if the Supplier performs the delivery and/or service without reservation in the knowledge of these without objecting to them again.

II Offer, conclusion of contract

1. offers of the supplier are subject to change and non-binding, unless the supplier expressly designates them as binding. Unless otherwise stated within an offer, the supplier shall be bound by its offer for a period of four weeks after its submission. The supplier is entitled to revoke an offer at any time until acceptance by the purchaser. The Customer shall remain bound by its contract application until its acceptance or rejection by the Supplier, but for no longer than four weeks from receipt of the contract application by the Supplier.

2. the scope of the Supplier’s deliveries and/or services shall be determined exclusively by the order confirmation issued to the Customer in text form, including these General Terms and Conditions. These contain all agreements made between the contracting parties on the subject matter of the contract. Amendments or additions to the agreements made and to these General Terms and Conditions must be made in text form to be effective. Telecommunication or electronic transmission, in particular by fax or e-mail, is sufficient to comply with the text form requirement, provided that the copy of the declaration amending or supplementing the contract is transmitted.

3. information provided by the supplier on the delivery items or services (e.g. dimensions, weights, technical data, load capacities and tolerances) are only approximate descriptions of the deliveries and/or services and do not constitute guaranteed characteristics. The supplier is entitled to deviations if and insofar as these serve to fulfill legal regulations or technical improvements (e.g. by replacing components) and the intended purpose of the delivery and/or service is not impaired.

4. if the customer wishes a binding price quotation, a cost estimate designated as binding is required. The supplier shall be bound by this cost estimate for a period of four weeks after its submission. The Supplier reserves the right to charge the Purchaser for costs incurred for travel, stocktaking, measurement and planning expenses in connection with the preparation of the cost estimate. The costs shall be notified to the customer before the cost estimate is drawn up and shall be offset in favor of the customer when the order is placed.

5. the supplier reserves its unrestricted property and copyright exploitation rights to cost estimates, drawings and other documents (hereinafter: documents). The documents may only be made accessible to third parties with the prior consent of the Supplier and must be returned to the Supplier immediately upon request if the order is not placed with the Supplier. Sentences 1 and 2 shall apply accordingly to the Purchaser’s documents; however, these may be made accessible to third parties to whom the Supplier has permissibly transferred deliveries and/or services for the performance of the contract.

6. if the scope of delivery and services includes software for controlling the delivery item, the customer shall be entitled to use the software as intended within the scope of a non-exclusive, non-transferable right of use, provided that this is standard software or firmware of the supplier. Furthermore, the Supplier reserves the right to demand that the Purchaser conclude a separate license agreement on the use of the control software.

III Prices, calculation basis, terms of payment, default of payment

1. the prices stated in the Supplier’s order confirmation shall apply to the scope of delivery and/or services listed therein. Any additional services not listed shall be invoiced separately to the customer by the supplier. The prices are exclusive of VAT at the statutory rate and, unless otherwise agreed, exclusive of packaging, transportation, unloading, assembly, installation, insurance, customs duties and any other public charges, which shall be invoiced to the customer in addition.

2. if the performance of assembly services has been agreed with the Customer, these shall be invoiced at the Supplier’s applicable hourly rates, unless otherwise agreed in writing. In addition, the customer shall bear all necessary ancillary costs such as travel expenses, costs for the transportation of tools and personal luggage of the installation personnel. Unless otherwise agreed, travel time is considered working time.

3. if cost-incurring measures not included in the order confirmation are necessary for the proper execution of the deliveries and/or services, which cause the price not stated as binding to be exceeded by more than 15 %, the customer must be informed of this. The Purchaser shall be deemed to have consented to the measures if it does not object to the price overrun after a reasonable period set by the Supplier. In its notification of the price overrun, the Supplier shall draw the Purchaser’s attention separately to the approval effect of any failure to object to the price overrun.

If, after submission of a binding or non-binding cost estimate or after agreement of a fixed price, it turns out that the data communicated by the Customer and on which the price calculation was based are not correct, the Supplier shall be entitled to adjust the price on the basis of the actual relevant data. This applies equally to circumstances which are within the sphere of responsibility of the Purchaser and which are not or not fully communicated to the Supplier for the preparation of the cost estimate and which influence the scope and execution time of contractual deliveries and/or services.

4. invoices of the Supplier shall be due for payment by the Purchaser on the due date stated in the offer. If the offer does not contain a due date, the Supplier’s invoices shall be due for payment within 8 days of receipt of the invoice by the Purchaser. The Supplier shall be entitled to issue partial invoices to the Purchaser for completed partial deliveries or partial services.

5. if the customer fails to make payment to the supplier despite the due date of an invoice in accordance with No. 4 above, the customer shall be in default of payment without the need for a reminder giving rise to default (§ 286 para. (2) No. 2 BGB). In the event of default, the Customer shall owe the Supplier default interest in the amount of nine percentage points above the base interest rate of the Deutsche Bundesbank (§ 288 para. (2) BGB). The supplier reserves the right to assert further claims for damages caused by delay against the purchaser.

6. offsetting against counterclaims of the customer or the exercise of a right of retention due to such claims is excluded, unless the counterclaims are undisputed or have been legally established. The exercise of a right of retention is also excluded insofar as the counterclaims are not based on the same contractual relationship.

7. the place of performance for all payments by the Purchaser shall be the Supplier’s registered office in Trier.

IV. Extended retention of title, withdrawal by the supplier

1. the objects of the deliveries (hereinafter referred to as “reserved goods”) shall remain the property of the Supplier until all claims to which the Supplier is entitled against the Purchaser arising from the business relationship have been fulfilled. If the value of all security interests to which the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interests at the request of the Purchaser; the Supplier shall be entitled to choose between different security interests for release.

2. during the existence of the retention of title, the purchaser is prohibited from pledging or assigning the reserved goods as security and their resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from his customer or makes the reservation that ownership is only transferred to the customer when the customer has fulfilled his payment obligations.

3. if the purchaser resells goods subject to retention of title, it hereby assigns its future claims from the resale against its customers with all ancillary rights – including any balance claims – to the supplier by way of security, without the need for any further special declarations. If the goods subject to retention of title are resold together with other items without an individual price having been agreed for the goods subject to retention of title, the customer shall assign to the supplier accepting this that part of the total price claim which corresponds to the price of the goods subject to retention of title invoiced by the supplier.

4. the following applies to the processing, mixing and combining of the reserved goods with other items:

1. The customer is permitted to process the reserved goods or to mix or combine them with other items. Processing is carried out for the supplier. The Purchaser shall store the new item created in this way for the Supplier with the due care of a prudent businessman. The new item is deemed to be reserved goods.
2. The Supplier and the Purchaser hereby agree that in the event of combination or mixing with other items not belonging to the Supplier, the Supplier shall in any case be entitled to co-ownership of the new item in the amount of the share resulting from the ratio of the value of the combined or mixed reserved goods to the value of the other goods at the time of combination or mixing. In this respect, the new item is deemed to be reserved goods.
3. The provision on the assignment of claims pursuant to No. 3 shall also apply to the new item. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined or mixed reserved goods invoiced by the supplier.
4. If the customer combines the goods subject to retention of title with real estate or movable property, he shall also assign his claim to which he is entitled as remuneration for the combination, together with all ancillary rights, to the supplier accepting this as security in the amount of the ratio of the value of the combined goods subject to retention of title to the other combined goods at the time of combination, without the need for further special declarations.

5. until revoked, the customer is authorized to collect assigned claims from the resale. In the event of an important reason, in particular default of payment, suspension of payment, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the purchaser, the supplier shall be entitled to revoke the purchaser’s authorization to resell and collect. In addition, the Supplier may disclose the assignment by way of security, realize the assigned claims and demand disclosure of the assignment by way of security by the Purchaser to its customers after prior warning and observance of a reasonable period.

6. the customer may neither pledge the reserved goods nor assign them to third parties as security. The Purchaser shall notify the Supplier immediately of any seizures, confiscations or other dispositions by third parties and shall provide the Supplier with all information and documents necessary to safeguard the Supplier’s rights. Enforcement officers or third parties must be informed of the Supplier’s ownership by the Customer.

7. if goods subject to retention of title of the customer are installed as an essential component in the property or building of a debtor (third party), the customer hereby assigns the claim for remuneration arising against the debtor (third party) or the party to whom it relates in the amount of the value of the goods subject to retention of title with all ancillary rights, including such rights to the granting of a security mortgage, with priority over the rest. The supplier accepts the assignment. The value of the reserved goods shall be determined by the invoice amount plus a security surcharge of 10%, which, however, shall not be applied if this is opposed by third-party rights. The assignment of the claim shall extend to the amount corresponding to the share value of the Supplier in the ownership / co-ownership of the goods subject to retention of title resold by the Purchaser.

8. insofar as the realizable value of the Supplier’s securities exceeds the claims to be secured by more than 20%, the retention of title shall expire to the extent of the excess, or the Customer shall be the holder of the claim to the extent of the excess.

9. in the event of breaches of duty by the customer, in particular default in payment, the supplier shall be entitled to withdraw from the contract in addition to taking back the goods after the unsuccessful expiry of a reasonable deadline set for the customer; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The customer is obliged to surrender the goods. The taking back or assertion of the retention of title or the seizure of the reserved goods by the supplier does not constitute a withdrawal from the contract, unless the supplier expressly declares the withdrawal.

V. Delivery periods, delay in delivery, storage costs

1. the deadlines for deliveries are specified in the supplier’s order confirmation. Compliance with delivery deadlines is subject to the timely receipt of all documents to be supplied by the customer, necessary approvals and releases, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the customer. If these requirements are not met in good time, the deadlines shall be extended accordingly, unless the supplier is responsible for the delay.

2. if the failure to meet the deadlines is due to

1. force majeure, e.g. mobilization, war, acts of terrorism, riots or similar events (e.g. strike, lockout),
2. viruses and other attacks by third parties on the Supplier’s IT system, insofar as these occurred despite compliance with the usual care in protective measures,
3. obstacles due to German, US-American and other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which the supplier is not responsible, or
4. If the supplier is not supplied on time or properly, the deadlines shall be extended accordingly.

3. if the Supplier is in default, the Purchaser may – provided it can credibly demonstrate that it has suffered damage as a result – demand compensation for each completed week of default of 0.5%, but no more than 5% in total, of the price for that part of the deliveries which could not be used for the intended purpose due to the default.

4. both claims for damages by the customer due to delayed delivery and claims for damages in lieu of performance which go beyond the limitations specified in No. 3 above are excluded in all cases of delayed delivery, even after expiry of any deadline set for the supplier to deliver. This shall not apply in cases of liability based on intent, gross negligence or injury to life, limb or health. The Buyer may only withdraw from the contract within the framework of the statutory provisions if the Supplier is responsible for the delay in delivery. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.

5. at the request of the supplier, the purchaser is obliged to declare within a reasonable period of time whether it is withdrawing from the contract due to the delay in delivery or insisting on delivery.

6. if dispatch or delivery is delayed at the request of the customer by more than one month after notification of readiness for dispatch, the customer may be charged flat-rate storage costs of 0.5% of the price of the items of the deliveries for each additional month or part thereof, but not more than a total of 5%. The customer reserves the right to prove lower storage costs, the supplier reserves the right to prove higher storage costs.

VI Place of fulfillment, transfer of risk

1. unless otherwise agreed, the place of performance for all obligations arising from the contractual relationship shall be Trier. The supplier shall decide on the type of shipment and packaging of the delivery at its own discretion. Details of transportation, any customs clearance and taxation as well as any insurance of the delivery at the request of the customer shall be agreed between the contracting parties using the codes in accordance with ICC Incoterms 2010. These are available on the website of the International Chamber of Commerce – ICC Germany e.V. at http://www.iccgermany.de/standards-regel-werke/incoterms/.

2. in the case of delivery with installation or assembly, the risk shall pass to the customer on the day of acceptance in his own company or, if agreed, after successful trial operation.

3. if dispatch, delivery, the start or performance of installation or assembly, acceptance in the customer’s own plant or trial operation is delayed for reasons for which the customer is responsible or if the customer is in default of acceptance for other reasons, the risk shall pass to the customer.
In all other respects, the Purchaser shall bear any storage costs incurred by the Supplier after the transfer of risk for reasons for which the Purchaser is responsible; Section V. No. 6 shall apply accordingly with regard to the calculation thereof.

VII Installation, assembly, cooperation and provision obligations of the customer

Unless otherwise agreed in writing, the following provisions shall apply to installation, assembly and the customer’s obligations to cooperate and provide materials:

1. the customer must take over the goods at his own expense and provide them in good time:

1. all earthworks, construction work and other ancillary work outside the industry, including the necessary skilled and unskilled labor, building materials and tools,
2. the equipment and materials required for assembly and commissioning, such as scaffolding, lifting gear and other devices, fuels and lubricants,
3. Energy and water at the point of use, including connections, heating and lighting,
4. sufficiently large, suitable, dry and lockable rooms for the storage of machine parts, apparatus, materials, tools, etc. at the assembly site and adequate working and recreation rooms for the assembly personnel, including sanitary facilities appropriate to the circumstances; in addition, the Purchaser shall take the same measures to protect the property of the Supplier and the assembly personnel on the construction site as it would take to protect its own property,
5. Protective clothing and protective devices that are required due to special circumstances at the installation site. Before the start of the installation work, the customer must provide the necessary information on the location of concealed electricity, gas and water pipes or similar installations as well as the necessary structural data without being requested to do so.

2. before the start of installation or assembly, the materials and objects required for the start of the work must be available at the installation or assembly site and all preparatory work must have progressed to such an extent that the installation or assembly can be started as agreed and carried out without interruption. Access routes and the installation or assembly site must be leveled and cleared.

3. if installation, assembly or commissioning is delayed due to circumstances for which the supplier is not responsible, the customer shall bear the reasonable costs for waiting time and any additional travel required by the supplier or the assembly personnel.

4. the Purchaser shall immediately certify to the Supplier on a weekly basis the duration of the working time of the assembly personnel as well as the completion of the installation, assembly or commissioning.

5. if the supplier demands acceptance of the delivery after completion, the customer must carry this out within two weeks. Acceptance shall be deemed to have taken place if the customer allows the two-week period to elapse or if the delivery has been put into use – possibly after completion of an agreed test phase.

VIII Obligation to give notice of defects, rejection of delivery, acceptance

1. the purchaser is obliged to notify the supplier in writing of recognizable defects of a delivery item immediately, but at the latest within one week of delivery, and of non-recognizable defects at the latest within one week of discovery. These deadlines are preclusive periods.

2. the customer is obliged to notify the carrier on site of any externally recognizable damage to the delivery item which is obviously caused by its loading or transport and to inform the supplier of this at the latest on the occasion of the notification of defects.

3. the rejection of a delivery due to insignificant defects is excluded. A defect is insignificant if it does not impair the commissioning and intended use of the delivery item and is therefore of such minor importance that, taking into account the interests of both parties, it is reasonable for the customer not to delay the speedy completion of the contractual relationship. The Customer’s claims for material defects in accordance with No. IX. of these General Terms and Conditions shall remain unaffected by this.

4. if the supplier demands acceptance of an agreed installation service after completion, the customer must carry this out within two weeks. If this does not occur, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place when the delivery has been put into use – if applicable after completion of an agreed test phase. Acceptance cannot be refused due to insignificant defects.

IX. Material defects

The Supplier shall be liable for material defects as follows:

1. all those parts or services which have a material defect shall, at the Supplier’s discretion, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.

2. claims for subsequent performance shall lapse twelve months after the statutory limitation period begins; the same shall apply to withdrawal and reduction. This time limit does not apply if the law according to § 438 para. (1) No. 2 BGB (buildings and items for buildings), § 479 para. (1) BGB (right of recourse) and § 634a para. (1) No. 2 BGB (construction defects) prescribes longer periods, in the event of intent, fraudulent concealment of the defect and non-compliance with a guarantee of quality. The statutory provisions on suspension of expiry, suspension and recommencement of time limits remain unaffected.

3. notifications of defects by the customer must be made immediately in writing.

4. in the event of notices of defects, payments by the customer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The customer may only withhold payments if a notice of defects is asserted, the justification of which is beyond doubt. The customer shall have no right of retention if his claims for defects are time-barred. If the notice of defects is unjustified, the Supplier shall be entitled to demand compensation from the Purchaser for the expenses incurred.

5. the supplier shall be given the opportunity to remedy the defect within a reasonable period of time.

6. if the subsequent performance fails, the customer may – without prejudice to any claims for damages pursuant to Section IX, No. 10 – withdraw from the contract or reduce the remuneration.

7. claims for defects shall not exist in the event of only insignificant deviations from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable equipment, defective construction work, unsuitable building ground or which arise due to special external influences which are not assumed under the contract, as well as in the event of non-reproducible software errors. If improper modifications or repair work are carried out by the customer or third parties, no claims for defects shall exist for these and the resulting consequences.

8. claims of the customer for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the object of the delivery has subsequently been taken to a place other than the customer’s branch office, unless the transfer corresponds to its intended use.

9. recourse claims of the Purchaser against the Supplier pursuant to § 478 BGB (recourse of the entrepreneur) shall only exist insofar as the Purchaser has not made any agreements with its customer that go beyond the statutory claims for defects. For the scope of the purchaser’s right of recourse against the supplier in accordance with § 478 (2) BGB, Section IX, No. 8 shall also apply accordingly.

10. claims for damages by the customer due to a material defect are excluded. This shall not apply in the event of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, limb or health and in the event of an intentional or grossly negligent breach of duty by the supplier. A change in the burden of proof to the detriment of the customer is not associated with the above provisions. Further claims or claims other than those regulated in this Art. VIII due to a material defect are excluded.

The following also applies to assembly services:

11. the customer may remedy the defect himself and demand reimbursement of the costs if this is necessary to avert an urgent danger and considerable damage. However, the supplier shall – as far as possible – be requested to remedy the defect beforehand.

Self-remedy is still possible if the supplier refuses to remedy the defect without justification, if a reasonable deadline for remedying the defect has expired without success or if remedying the defect has failed.

X. Industrial property rights and copyrights, defects of title

1. unless otherwise agreed, the supplier is obliged to provide the delivery free of industrial property rights and copyrights of third parties (hereinafter: property rights) only in the country of the place of delivery. If a third party raises justified claims against the purchaser due to the infringement of industrial property rights by deliveries made by the supplier and used in accordance with the contract, the supplier shall be liable to the purchaser within the period specified in clause IX. IX., No. 2 as follows:

1. The Supplier shall, at its own discretion and at its own expense, either obtain a right of use for the deliveries concerned, modify them in such a way that the property right is not infringed, or replace them. If this is not possible for the Supplier under reasonable conditions, the Customer shall be entitled to the statutory rights of withdrawal or reduction.
2. The Supplier’s obligation to pay damages shall be governed by Section XIII.
3. The aforementioned obligations of the Supplier shall only apply insofar as the Purchaser immediately notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge an infringement and leaves all defensive measures and settlement negotiations to the Supplier’s discretion. If the customer ceases to use the delivery in order to minimize damage or for other important reasons, he is obliged to point out to the third party that the cessation of use does not constitute an acknowledgement of an infringement of property rights.

2. claims of the customer are excluded if he is responsible for the infringement of property rights.

3. claims of the Purchaser shall also be excluded if the infringement of property rights is caused by special specifications of the Purchaser, by an application not foreseeable by the Supplier or by the fact that the delivery is modified by the Purchaser or used together with products not supplied by the Supplier.

4. in the event of infringements of industrial property rights, the provisions set out in no. 1 lit. a), the provisions of Section IX, Nos. 4, 5 and 9 shall apply accordingly.

5 In the event of other defects of title, the provisions of Section IX shall apply accordingly.

6. further claims or claims other than those regulated in this section X. of the customer against the supplier and his vicarious agents due to a defect of title are excluded.

XI. Reservation of fulfillment

1. the fulfillment of the contract is subject to the proviso that there are no obstacles due to German, US-American or other applicable national, EU or international regulations of foreign trade law as well as no embargoes or other sanctions.

2. the customer is obliged to provide all information and documents required for the export, shipment or import.

XII. Impossibility

If delivery is impossible, the customer shall be entitled to claim damages unless the supplier is not responsible for the impossibility. The customer’s claim for damages is limited to 10% of the value of that part of the delivery which cannot be used for its intended purpose due to the impossibility. This limitation shall not apply in cases of liability based on intent, gross negligence or injury to life, body or health; this does not imply a change in the burden of proof to the detriment of the customer. The customer’s right to withdraw from the contract remains unaffected.

XIII Loyalty, contract adjustment

Insofar as events within the meaning of Section IV. No. 2 lit. a) to lit. c) significantly change the economic significance or the content of the delivery or have a significant impact on the supplier’s business, the contract shall be adapted appropriately in good faith. If this is not economically justifiable, the supplier shall have the right to withdraw from the contract. The same applies if the required export licenses are not issued or cannot be used. If the Supplier wishes to make use of this right of withdrawal, it must inform the Purchaser of this immediately after realizing the consequences of the event, even if an extension of the delivery time was initially agreed with the Purchaser.

XIV Liability of the supplier

1. unless otherwise stipulated in these General Terms and Conditions, claims for damages by the customer, irrespective of the legal grounds, in particular for breach of duties arising from the contractual obligation and from tort, are excluded.

2. this does not apply if liability is as follows:

1. in accordance with the Product Liability Act,
2. with intent,
3. in the event of gross negligence on the part of owners, legal representatives or executives,
4. in case of fraudulent intent,
5. in the event of non-compliance with an assumed guarantee,
6. due to culpable injury to life, limb or health, or
7. due to the culpable breach of material contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless one of the aforementioned cases of liability exists. Essential contractual obligations are those obligations whose fulfillment is essential for the proper execution of this contract and on whose compliance the contracting parties may regularly rely. These are therefore obligations whose breach jeopardizes the achievement of the purpose of the contract.

3. a change in the burden of proof to the detriment of the customer is not associated with the above provisions.

XV Final provisions

1. this contract, including its interpretation, shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG).

2. the customer acknowledges that the supplier collects data for the purpose of proper performance of the contract in accordance with § 28 of the Federal Data Protection Act and transmits this data in whole or in part to third parties (e.g. transport companies, insurance companies) if this is necessary for the performance of the contract.

3. the place of jurisdiction for all disputes between the Supplier and the Customer arising from and in connection with the contractual relationship shall be Trier.

4 These General Terms and Conditions shall remain binding in their remaining parts even if individual provisions are legally invalid. This does not apply if adherence to the remaining conditions would constitute an unreasonable hardship for one of the parties.