General Terms of Services and Delivery of KHT GmbH (Issue of 2009, 6th May)

  1. General

1.1 Any agreement – in particular those modifying these Terms – shall only become binding by our confirmation in writing.

1.2 Any and all supplies and services to be furnished by us at any time, including proposals, technical advice and assistance as well as any other supplementary services, shall be based exclusively on the present General Terms. Ordering party’s Conditions of Purchase and/or Ordering are not accepted.

1.3 Technical and operational data regarding weight, dimensions and other performance and energy requirement data in our brochures, drawings and publications are only intended to provide general information unless expressly referred to in the offer and/or our order acknowledgement; however, this shall not be deemed as guarantee of a property. We shall retain title to and copyright of cost estimates, drawings and other documents, which may not be communicated to third parties without our prior consent.

1.4 The agreement shall be revised and adapted taking into account the interests of both parties, if – after submitting the offer – modifications of the contractual obligations are required by new or modified legal requirements or new requirements of public authorities and inspection boards.

2. Prices, Payment, Securities

2.1 The prices quoted include packing, freight, insurance and any other additional charges (storage, inspection by third parties). Otherwise, the latest version of the INCOTERMS shall apply. The statutory turnover (value added) tax will be added to the prices agreed. This tax payable by us in German or foreign currency on the present transaction will, therefore, be invoiced in addition to these prices. We will make out separate invoices showing the turnover tax (VAT) separately for down payments and other amounts payable by the Purchaser prior to the supply of equipment and services by us for which we have to pay turnover tax (VAT) on receipt. The turnover tax (VAT) will be payable together with the amount invoiced.

In the case of export deliveries, any and all taxes, customs duties and other public charges payable by us abroad shall be reimbursed by the Purchaser.

2.2 Free and net payment to our banking account(s) must be made within 14 days after issuing an invoice, except other agreements were agreed.

2.3 The Purchaser shall only have a right of retention and be entitled to set off counterclaims to the extent that such counterclaims are undisputed or have been validly decided.

2.4 Should the Purchaser be in arrears with payment, interest in accordance with the corresponding bank rates for overdraft facilities, however at least interest amounting to 4 % over and above the corresponding rate of discount fixed by the Deutsche Bundesbank (German Federal Bank) will be charged.

2.5 In the event of a delay in payment or danger to our claims due to impaired creditworthiness of the Purchaser, we shall be entitled to make due immediately all claims we have regardless of the terms of any bills of exchange or to demand securities. We shall also be entitled to effect any outstanding supplies and services against prepayment only or against the provision of securities.

2.6 We shall be entitled to settle by setting off any and all claims we may have against the Purchaser against us and/or KHT GmbH or any German company wherein the latter hold a direct or indirect controlling interest. On request, we shall furnish to the Purchaser a list of the companies covered by this clause.

2.7 Should, for any reason, difficulties arise for the transfer of the invoiced amount into the Federal Republic of Germany, any resulting disadvantages shall be borne by the Purchaser.

3. Deadlines, Obstacles to compliance

3.1 The deadlines shall apply only on condition that all details of the order have been clarified in due time, that all necessary documents and approvals to be obtained by the Purchaser have been procured in due time, that, if applicable, all drawings have been released, that, if applicable, any amount agreed upon as down payment has been received by us in due time and that, if applicable, any securities agreed upon have been provided in due time. A further condition is the completion in due time of preparatory services for construction and erection to be provided by the Purchaser.

3.2 Should we be hindered in fulfilling our obligations due to the event of unforeseen circumstances affecting us or our sub-suppliers and/or sub-contractors and which we could not avoid with due care based on the circumstances of the specific case, e. g. war, intervention by a higher authority, internal unrest, natural forces, accidents, other interruptions and delays in the supply of major operating material or pre-materials, the delivery deadlines shall be extended by the duration of the interruption and a reasonable start-up time. Should the fulfilment of our obligations become impossible for us due to the obstacle or become unacceptable, we may terminate the contract; the Purchaser shall also be entitled to do so if he cannot be reasonably asked to accept the goods or services due to the delay. Obstacles for which we cannot be held responsible in the sense of this paragraph shall in any case also be strikes and lockouts.

3.3 Should the Purchaser sustain any loss due to a delay through our fault, he shall be entitled to compensation amounting to 0.5 % of each full week of delay up to a total not exceeding 5 % of the value of that part of the subject of the contract which, as a consequence of the said delay, could not be used in time or in the manner specified in the contract. Should we still be in delay on reaching the aforesaid maximum amount of compensation, the Purchaser may terminate the contract upon expiration of a reasonable period notified by him in writing; the same shall apply if the delivery or service becomes impossible for us to supply or perform due to reasons for which we cannot be held responsible.

3.4 Any right of rescission the Purchaser or we are entitled to in accordance with Clause 3.2 or Clause 3.3 shall apply exclusively to the part of the contract not yet fulfilled. Insofar as any partial deliveries affected cannot be used by the Purchaser, he shall also have the right of rescission regarding these partial deliveries.

3.5 Any further rights of the Purchaser due to delay, in particular damages, are excluded in the scope as defined in Section 8.

4. Acceptance

4.1 If an acceptance test has been agreed, it must be carried out at the last day of putting into operation/commissioning. upon notification of readiness for acceptance.

4.2 Should the acceptance test not be carried out in due time or completely for reasons for which we are not responsible, the goods to be delivered shall be deemed accepted at the end of the 6th working day after notification of readiness for acceptance.

4.3 Acceptance shall become valid in any case if the goods to be delivered are put into operation without our prior consent.

4.4 The Purchaser must ensure the conditions required for carrying out an acceptance test. With the exception of our labour costs, the Purchaser shall bear all costs arising in conjunction with the acceptance test.

4.5 Rights pursuant to Section 7 notwithstanding, the Purchaser shall not be entitled to withhold an acceptance due to insignificant defects.

5. Passage of Risk, Dispatch

5.1 With acceptance or start of using the equipment by the customer, the risk regarding the goods to be delivered will pass to the Purchaser.

5.2 Means and route of transportation shall be at our discretion. The same shall apply to the selection of the forwarding agent or carrier.

5.3 Goods to be delivered which have been notified as ready for dispatch must be called immediately, otherwise we shall be entitled to store them at our discretion at the cost and risk of the Purchaser and to invoice them as delivered.

5.4 We are entitled to supply partial deliveries and to invoice them correspondingly.

6. Reservation of Ownership

6.1 Ownership (title and right of disposal) of the items supplied shall not pass to the Purchaser before all claims have been fulfilled, in particular all balances to which we are entitled against the Purchaser within the framework of business relations.

6.2 Treatment or processing of the goods supplied under reservation will be carried out for us in our capacity as manufacturer according to the legislative intent of §950 BGB (German Civil Code). Goods processed shall be considered goods supplied under reservation as specified in Clause 6.1. Should the Purchaser process, combine or mix the goods supplied under reservation with other goods, we shall be entitled to co-ownership of the new property in the ratio of the invoiced value of the goods supplied under reservation to the invoiced value of the goods added. Should our ownership of the goods become void due to processing, combining or mixing, the Purchaser shall already at this moment transfer to us the Purchaser’s right of ownership of the new stock or new property to an amount which covers the invoiced value of the goods supplied under reservation and the Purchaser, free of charge for us, shall hold the said goods in safe custody. The rights of co-ownership so created shall be treated as goods supplied under reservation as specified in Clause 6.1.

6.3 The Purchaser shall be allowed to sell the goods supplied under reservation exclusively in the normal course of business subject to his normal terms of delivery and only as long as the Purchaser is not in arrears with payment and provided that he agrees a reservation with his Purchaser and that the claims resulting from the sale are transferred to us in accordance with Clause 6.4 the Purchaser shall not be entitled to any other disposal of the goods supplied under reservation.

6.4 Claims of the Purchaser resulting from resale of goods supplied under reservation, whether processed or not, or combined with other goods not delivered by us, shall be transferred at this moment to us in an amount necessary to cover the invoiced value or the amount of co-ownership according to Clause 6.2; this shall also apply to balances which are due to the Purchaser if the claims resulting from resale are entered into a current account.

6.5 The Purchaser shall, for his own account, insure the goods supplied under reservation of ownership against all risks of theft, breakage, fire, water or other damage for the duration of his obligation and provide proof thereof on request. He shall assign all rights of the corresponding insurance contracts irrevocably to us until his obligations are completely fulfilled. Should the Purchaser not fulfil his obligations in accordance with the above paragraph, we shall be entitled to conclude the above-mentioned insurances in the scope we deem necessary at the cost of the Purchaser with the provision that the rights resulting from the insurance contract are directly assigned to us.

6.6 The Purchaser shall be obliged to maintain the goods supplied under reservation in perfect condition and to have any required repair work immediately carried out by expert companies; he shall provide information regarding the goods supplied under reservation at any time, in particular regarding the corresponding locations. We shall be entitled to access to the location of the goods supplied under reservation at any time; if required, the Purchaser shall ensure access to us or our authorized representatives to the location of the goods supplied under reservation at any time. The Purchaser shall be obliged to notify us immediately of any jeopardy to our property.

6.7 Should the Purchaser fail to meet his obligations in accordance with Section 7, we shall be entitled to make due immediately the entire remaining debt for the goods supplied under reservation regardless of the terms of any bills of exchange or to demand securities. If the Purchaser fails to pay the entire remaining debt within a period of 7 days after a corresponding request made by us or if he fails to provide the demanded securities within this period, his right of use for the goods supplied under reservation shall expire.

We shall then be entitled to request immediate hand-over at the cost of the Purchaser of the goods supplied under reservation excluding any lien on goods. The Purchaser shall irrevocably grant at this moment access to the location of the goods supplied under reservation and shall authorize us to take them back.

6.8 We shall be entitled – regardless of the payment obligation of the Purchaser – to make the best possible use of the goods supplied under reservation and returned to our possession in voluntary sale or to accept them back at the current market price. The market price of the goods supplied under reservation shall be estimated by a sworn expert appointed by the Chamber of Commerce responsible for the Supplier’s plant and it shall be binding for the Purchaser and us. The proceeds of the sale or the market price shall be offset against the payment obligation of the Purchaser after deducting any costs incurred by us.

6.9 Assertion of the right of reservation of ownership as well as seizure of the goods supplied by us shall not be considered withdrawal from the contract.

6.10 We shall release securities at our discretion up to a corresponding amount on request of the Purchaser if the total value of the securities given to us exceeds our claims by more than 20 %.

7. Warranty

We shall accept liability for defects in the equipment supplied/services rendered, including the lack of guaranteed properties and performance, in the following manner:

7.1 We must be notified in writing of any defects immediately.

7.2 At our discretion we shall rectify or remove and replace by perfect goods any defective goods supplied. We shall, at our discretion, rectify or render anew any defective services. Replacement and transportation costs shall be borne by us to an amount that is in reasonable proportion to the materials to be replaced and/or the rectifying work; any cost beyond this limit shall be borne by the Purchaser. Should rectifying, replacement or re-rendering be delayed, the Purchaser may after expiration of a reasonable period requested by him in writing claim reduction of the remuneration or withdraw from the corresponding part of the contract; should the remaining part of the contract also become unusable to him, he shall be entitled to withdraw from the contract in full. The above-mentioned rights shall also apply in any other cases of failure to rectify, supply replacement or render anew.

7.3 The warranty shall expire for single-shift operation 12 months, for multi-shift operation 6 months, after delivery or, if an acceptance in accordance with Section 4 is to be carried out, after the acceptance or at the dates quoted in Clause 4.3 or 4.4.

7.4 For rectification, replacement or re-rendering we shall grant the same warranty as for the original subject of the contract. This warranty shall expire 3 months after completion of the rectification, replacement or re-rendering, however not before expiration of the original warranty period.

7.5 We shall not accept liability for damage resulting from the following reasons:

Improper or inappropriate use, independent and faulty erection or start-up by the Purchaser or third parties, subsequent modification work by the Purchaser or third parties, natural wear and tear, improper or negligent handling, maintenance or repair, non-adherence to the operating instructions, unsuitable operating materials, faulty civil engineering work performed by the Purchaser, unsuitable building site, chemical, electro-chemical or electrical as well as temperature and atmospheric influences for which we cannot be held responsible.

7.6 Any further rights due to defects, in particular contractual claims or claims beyond the contract regarding replacement for damage not to the goods delivered themselves shall be excluded to the extent stipulated in Section 8; this disclaimer of liability shall not apply in the case of lack of guaranteed properties, if the guarantee is expressly intended to safeguard the Purchaser against the damage that occurred.

7.7 In case of restart up operation KHT is not committed to refill the pick robot. KHT takes no responsibility for recovery of lost data. Unless the destruction was caused gross negligence or willful damaged and the purchaser has assured that these electronic data can be reconstructed with justifiable effort  (data backup).

8. General Disclaimer of Liability

We shall have no liability other than that expressly specified in the above sections. Any rights not granted expressly herein, e. g. right of rescission, cancellation, conversion or reduction as well as replacement for damage of any type – regardless of the legal reason, in particular also due to impossibility, impermissible action, positive breach of contract, default at the time of conclusion of the contract – shall be excluded.

This disclaimer of liability shall not apply:

in the event of willful damage;
in the event of gross negligence on the part of legal representatives or executives;
in the event of negligent breach of major contractual obligations to the extent that this endangers the implementation of the purpose of the contract; liability shall, however, be limited to indemnification of damage typical of the contract and foreseeable, if none of the above-mentioned cases applies;
to claims in accordance with the product liability law.

9. Place of Delivery, Partial Invalidity

9.1 Place of delivery for our supplies is the location of the delivery plant. Should we also have to render services (e.g. erection), place of delivery shall be the location where the services are to be rendered. For the payment obligation of the Purchaser location of debts shall be the paying bank quoted in our invoice.

9.2 In the event of individual provisions of these Terms being ineffective, the continued validity of the remaining Terms shall not be affected; an ineffective provision shall be replaced by an effective one which reflects the economic purpose of the ineffective clause as far as possible.

10. Venue, Applicable Law

10.1 The venue for settlement of any legal disputes, including bills of exchange and cheque collection by way of enforcement shall be Wetter in the Federal Republic of Germany. We may, however, also elect to institute proceedings at the place of domicile of the Purchaser.

10.2 The legal relationship between the Purchaser and KHT shall be governed only by the Laws regulating legal relationships between domestic parties in the Federal Republic of Germany.