- The delivery and payment terms contained hereinafter shall form part of our offers, order confirmations and other statements for the acceptance of a contract and are therefore deemed to be the basis of any sales contracts and/or work performance contracts executed with us.
- Any conflicting terms and conditions by the contracting party shall be excluded even if not expressly contradicted by us.
- Our General Terms and Conditions shall apply to any additional orders or follow-up orders as stipulated in I.1. even if not expressly stated in such orders.
Subjact Matter of the Contract
- Content and scope of our services, whether arising from sales contracts or work performance contracts, shall be subject to our written order confirmation or written sales contract or written work performance contract. Any preliminary agreements – in particular offers, specifications or cost estimates – are therefore non-binding. The same shall apply for information stated in brochures, leaflets and other notes which may be valid only if expressly agreed upon in writing.
- Any statements on our part in regards with this contract shall not constitute the assurance of a guarantee of any kind. Any warranties and guarantees shall be expressly agreed upon in writing.
Offer, Closing, Due Delivery by Suppliers
- We can accept purchase orders by our customers within two weeks after the receipt of these orders. Our customers are therefore committed to these orders for a period of two weeks. If we do not issue an order confirmation within this two-week period, the purchase order shall be regarded as being refused. Our acceptance is deemed to be stated by our written order confirmation and/or by delivery of the product to the customer. The content of the contracts which are closed thereby is subject to the purchase order and our order confirmation. Changes, amendments or oral side agreements have to be in writing to be legally valid.
- Contracts are only entered by us subject to the reservation of correct and punctual delivery by our own suppliers. If ordered components should not be available on time, the customer will be immediately informed of the unavailability in writing. The notice serves also as an execution of our right to withdraw from the contract if this right has been agreed upon.
- The customer is not entitled to claim default or compensation if non-delivery of ordered components is not attributable to us. Any consideration received by us shall be reimbursed without undue delay.
Delivery, Delivery Time, Delivery Delay
- Delivery schedules and times shall be valid only if explicitly agreed upon or confirmed in writing.
- If the customer is in default with the payment of invoices for prior services, we shall be entitled to withhold deliveries up to the full payment of such invoices. In this case, we are not obliged to reimburse any damages incurred by the customer arising as a result of such action.
- The delivery period shall commence upon customer’s receipt of the order confirmation.
- In the event of force majeure or other unforeseeable or extraordinary circumstances or circumstances beyond our control, such as equipment breakdown, strike, lockout, lack of transportation, governmental intervention, energy supply difficulties, etc., the delivery time shall be extended by the duration of the obstruction, even if the events occur at our suppliers.
- If the delivery delay or inability to perform is attributable to us, we are obliged to compensate damages caused by default only in cases of willful misconduct and gross negligence.
Transfer of Risk, Acceptance
Irrespective whether the deliveries were made free of charge, the risk shall pass to the Buyer as follows:
a.) at the time, when the ordered goods (for sales contracts or work performance contracts) leave our factory. If requested by and at the expense of the customer, we will insure the goods against breakage, transport damages and other damages.
b.) upon delivery and installation, the risk shall pass on the day of handover, acceptance or commissioning.
c.) in the event of any delays in delivery and/or performance at the request of the customer or for reasons attributable to the customer (delayed acceptance), the risk shall pass with the commencement of the delay.
- Unless agreed otherwise, the prices stated by us shall be ex works plus applicable VAT, packaging and haulage.
- Irrespective of binding price agreements we are entitled to adjust our prices in the event that our performance is subject to additional costs such as duties, fees or freight and their increase or other legal actions and/or a change of cost factors of wages and cost of materials. The latter also applies if, for causes attributable to the customer (delayed acceptance), prices of procured material increase.
Payment, Liquidated Damages, Set-off
- The terms of payment on the face of our invoice shall apply.
- Payments may be directed to the sender of the invoice only, not to a representative.
- Checks, bills of exchange and other securities shall be accepted as conditional payment only until clearance of the funds and all costs in connection with the redemption is paid by the customer. Discount charges and bill charges shall be borne by the customer.
- In the event that the customer withdraws from the contract and we are not at fault or if we withdraw from the contract for reasons that are attributable to the customer, the customer – insofar as we have not performed any part of the contract – shall be liable to pay 25 % of the order value or contract value as compensation for lost profits (liquidated damages). If we have performed the contract, wholly or in part, the same shall apply for any services due but not yet performed under the contract, in addition to any contractual rights to claim remuneration.
- The customer shall be entitled to set off claims only if the counterclaim has been confirmed by us or by a final decision of a competent court.
Retention of Title
- Deliveries and services shall remain our ownership until all of our claims arising from the business relation with the customer are settled. In the event of violations of duties by the customer, in particular payment default, we may cancel the contract immediately without notice and demand the forthwith return of the delivered item. The customer is obliged to surrender the retained goods. Our demand to return said items shall not constitute our withdrawal notice, unless expressly stated by us.
- Payments by check or bill of exchange are only deemed to be received when credited on our accounts irrevocably.
- In the event that the customer sells goods under retention of title to a third party in a bona fide transaction, the retention of title shall continue to apply to the purchase price claim of the customer against this third party (extended reservation of title). If the goods are sold prior to our invoice being paid, the customer is obliged to inform us accordingly in writing and without undue delay.
- If the goods subject to retention of title are processed or inseparably combined with other items which are not owned by us, articles 947, 948, and 950 BGB (German Civil Code) shall apply correspondingly. In the event of the sale of the goods subject to retention of title to a third party, we are entitled to notify the third party about the existence of the extended reservation of title and to demand payment for the goods to us.
- The customer shall immediately notify us in the event of any third party seizing goods subject to retention of title delivered by us, including attachments by third parties or unlawful interference with possession. This duty to give notice shall apply, in particular, if insolvency proceedings are applied for, regardless of the fact, whether these are initiated by the customer or by third parties.
- Claims based on defects in cases of insignificant deviation from the agreed quality and/or minor impairment of usefulness are excluded.
- The notification of defects for goods delivered by us under sales contracts or work performance contracts requires a notice period of three days from the date of receipt of the goods. The notification of defects has to be in writing. The notice period is deemed to be complied with if the notification is received by us by mail, fax or e-mail within three days from the receipt of goods. Following expiry of the notice period, warranty claims due to defects in quality and/or insufficient performance may be asserted only in cases of hidden defects (i.e., the defect is not apparent even if a careful inspection of the supplied goods would have been carried out).
- The burden of proof for the existence of defects and timely notification of defects shall be the responsibility of the customer.
- In justified warranty claims, KB Videosystems GmbH shall be entitled, at its discretion, to either rework the defect or carry out a replacement delivery. The customer shall grant an appropriate time period for this subsequent performance of at least three weeks. If KB Videosystems GmbH chooses rework as the suitable method of subsequent performance, the customer is entitled to a reduction of the purchase price or withdrawal from the contract only if the remedial work has failed twice.
Limitation of Liability, Time Limitation
- Any claims of compensation by the customer in accordance to laws governing the sale of goods or the performance of works are limited to willful misconduct and/or gross negligence. In cases of moderate negligence (slight to moderate faults) we are liable to the amount of the gross order value only. We are not liable for damages in cases of slightly negligent violations of duties. The above limitations of liability shall apply also for any actions performed by our legal representatives or vicarious agents.
- Above restrictions shall not apply for liability cases falling under product liability laws.
- Possible claims for damages by the customer are subject to a statute of limitation of one (1) year following delivery and/or acceptance of goods, unless we are liable for willful misconduct or gross negligence.
Applicable Law, Place of Performance, Venue
- The law of the Federal Republic of Germany shall apply to our legal relations.
- Exclusive place of performance shall be our place of business in 06268 Querfurt, Germany.
- Exclusive venue is – depending on which court is the competent court of each case – either the District Court of Merseburg or the Regional Court of Halle/Saale.
Rentation of Data
In compliance with the German Federal Data Protection Act (Bundesdatenschutzgesetz), we shall be authorized to store data in connection with the business relationship for our business purposes.
In the event that individual provisions of these General Terms and Conditions shall become ineffective, the effectiveness of the other provisions shall remain unaffected. Invalid provisions shall be replaced by provisions prescribed by statutory law.