Rudi Knopp Maschinen GmbH
Niedenbach 47, D-72229 Rohrdorf bei Nagold
1 General area of applicability
All of our offers, deliveries and other services shall take place exclusively on the basis of these general terms and conditions of business. Counter confirmations of the Customer with reference to its terms and conditions of business or terms and conditions of purchase are hereby being objected to. Deviating terms and conditions of business of the Customer or terms and conditions of business of the Customer which are worded differently can only become part of the contract if these have been expressly confirmed by us in writing. Our general terms and conditions of business shall also apply if we are aware of conflicting provisions of the Customer or provisions of the Customer which deviate from our general terms and conditions of business and we perform the delivery without reservation. All agreements, ancillary undertakings or amendments between Knopp and the Customer concerning a delivery contract shall require our written confirmation to take effect. Our general terms and conditions of business shall apply in the respective up-to-date version to all future transactions with the Customer, even if these have not been expressly agreed once again.
2 Offers, advice
Our offers are created in a detailed manner and apart from the respective machines, also contain the accessories and possible additional equipment to be delivered. By means of such, the Customer will be put in the position of being able to take the best possible and appropriate decision for it. It goes without saying that we are happy to also provide personal advice and a free-of-charge demonstration following prior notice. All oral and written statements concerning the suitability and use of our work tools, machines and equipment are provided to the best of our knowledge. Our advice shall not release the Customer from the requirement to carry out its own evaluation concerning suitability for the intended purposes of use and the intended process.
3 Changes to the object of delivery
We shall reserve the right to carry out construction and material changes in relation to the contractually agreed description of the object of delivery, provided that the customary use or the use of the object of delivery stated in the contract is not essentially or detrimentally impaired and the alteration is reasonable for the Customer. Amendment requests of the Buyer which have effects on the price and delivery date shall be taken into account following a corresponding agreement.
4 Conclusion of the contract, contents of the contract
The statements and information contained in product catalogues and price lists shall only become a legally binding part of the contract if these are expressly referred to therein. The subject matter of the contract shall be subsequently determined by means of the product description contained in our written offer or in our written order confirmation. Ancillary agreements, oral declarations by employees or representatives, as well as changes to confirmed orders (including changes to objects of delivery) shall require our written confirmation to be effective. Prior to conclusion of the contract, the Customer must inform us should the ordered object of delivery be intended for the processing of unusual materials, or is not intended exclusively for customary use or will be used under unusual conditions, or under conditions which require an increased stress or under conditions which represent a special risk to health, safety or the environment. We shall reserve all ownership rights, copyright and commercial property rights (including the authority to register such rights) in respect of drawings, plans, catalogues, samples, cost quotations or other documents, as well as any software. Confidential information, in particular offers and order confirmations for machines and equipment, as well as drawings may only be made accessible to third parties with our agreement. An order shall then be deemed to have been accepted when it is confirmed by us in writing or by telex or once the delivery has taken place. Up until this time, our offers shall be non-binding and subject to confirmation.
5 Prices and payment
In the absence of a special agreement, the prices shall apply e-factory in Rohrdorf, exclusive of shipping, packaging, insurance, assembly and other shipping costs and shall be subject to value added tax to the respective statutory amount. Our invoices shall be issued and payable in euros. For spare parts and worn parts the purchase price shall be payable in advance. Unless otherwise stated in the order confirmation, the purchase price shall be payable without discount within 10 days of the date of the invoice. Payments shall be remitted to our bank account stated in the invoice free-of-charge without any deduction. Payment default shall occur 11 days after the date of the invoice. However, deviating and extended terms and conditions of sale shall apply to deliveries of machines and equipment which go beyond work tools and small machines in accordance with a separate agreement. Should payments be deferred or made later than agreed, we shall be entitled to charge deferral and default interest for the interim period to the amount of five percentage points above the respective base rate of interest of the European Central Bank, without the need for a warning to be issued. Any setting off or retention of payments shall only be permitted if the counter claims are undisputed by us or have been recognised by a court. In case of orders under 50 euros net, we will charge a minimum quantity surcharge of 8 euros per shipment. We will only perform first orders in consideration of cash in advance. In case of partial payment agreements, the entire residual debt shall become due for payment immediately, should the Customer enter 14 days of default with an instalment, should the Customer have suspended its payments or should an insolvency application be filed against its assets. Interest of nine percentage points above the respective base rate of interest shall be payable on the residual debt which has become due.
6 Delivery date, doubts concerning creditworthiness, acceptance default
The delivery deadline shall be determined in accordance with the agreements between the Contracting Parties. Also during a period of default, the delivery deadline shall be reasonably extended in case of the occurrence of force majeure and all unforeseeable hindrances which take place following conclusion of the contract for which we are not responsible, such as strikes, blockades, operational disruptions, non-timely self-supply (delivery delays on the part of suppliers) etc. Should the delivery time be reasonably extended for such reasons, the Customer shall not have the right to rescind the contract. We hereby expressly reject default penalties and damages claims. Following the fruitless expiry of a reasonable period of grace, the Customer shall be able to rescind the contract, but shall not be able to demand damages. Should it be apparent that the hindrance will last longer than three months, both the Customer and ourselves can rescind the contract. We will notify the Customer of the start and end of such hindrances as soon as possible. The prerequisite for compliance with the delivery deadline is the timely provision of the documents to be supplied by the Customer and the timely clarification of the technical queries to be answered by the Customer, as well as agreement concerning all contractual terms and refers to completion in the factory. Should the Customer be in arrears with an agreed advance payment, the delivery time shall be extended by the period of time in which the arrears occurred. Should it become apparent after conclusion of the contract that our payment claim is endangered due to lack of capacity to provide performance on the part of the Customer, we shall be entitled to immediately demand the rest of the purchase price or the provision of security. We shall be able to set the Customer a reasonable deadline in this respect. Following the fruitless expiry of the deadline we shall be entitled to rescind the contract. Should the Customer enter default with agreed payments or acceptance of the object of delivery, then following the fruitless expiry of a period of grace to be set by us, we shall be entitled to rescind the contract and/or demand damages in lieu of performance. In case of damages claims in lieu of performance, we shall be able to demand compensation to the amount of 20% of the purchase price in case of standard or serial products or 100% of the purchase price in case of special and individual productions, without the need for proof. In case of acceptance default on the part of the Customer, we shall be entitled to also charge the storage costs and additional expenses for insurance. Such payments shall be due immediately.
7 Delivery, shipping and transfer of risk
In the absence of a special agreement, the shipping shall take place from our factory in Rohrdorf bei Nagold according to our discretion without any guarantee concerning the cheapest carriage. All shipments shall take place at the expense and risk of the Customer, even if carriage paid delivery has been agreed. Partial deliveries shall be permitted to a reasonable extent. The risk connected to a delivery shall be transferred to the Customer at the time of leaving the factory. This shall also apply to partial deliveries. Should the shipping be delayed due to reasons for which we are not responsible, the risk shall be transferred to the Customer at the time of notification of readiness for dispatch or at the time of invoicing. In such a case, the deliverer shall be entitled to take out insurance against all possible risks at the expense of the Customer, however it shall not be obliged to do so. Should the transportation be carried out by our employee, we shall bear any risks which are connected to fault on the part of our employees. However, in all cases, the random risk shall be borne by the Customer. Should the contractually owed service include installation or assembly and should an acceptance of the service be required to take place, the risk shall be transferred on the expiry of the day on which the acceptance test was carried out or on which it was not carried out due to fault on the part of the Customer or on which it should have been carried out, however at the latest on expiry of the day in which the Customer has put the object of delivery into operation for its own commercial purposes. Should the delivered objects have been damaged or destroyed prior to acceptance at the place of delivery for reasons for which we are not responsible, the Customer shall be obliged to pay for the service which has been provided up until this point. We shall not be obliged to carry out return receipt of goods which are delivered free of defects. Should we declare ourselves prepared to retake goods which are in a defect-free, flawless and unused condition in the original packaging as a goodwill gesture, a goods credit note shall be issued, with the deduction of a restocking fee to the amount of 15% of the value of the goods, however at least 20 euros of the charged price, once the goods have been received by us. A larger deduction shall take place should the goods be incomplete and/or damaged, whereby in such cases we shall also reserve the right to refuse to take back the goods.
8 Preparation of assemblies etc
Should we have agreed a time for a delivery, assembly or installation service with the Customer, the Customer shall be obliged to take all necessary precautions at the assembly location, so that the intended work can be carried out. In particular, the Customer shall be required to make electricity, compressed air and water connections, as well as sufficient lighting available. In addition, dry and lockable rooms for the storage of the work tools of the assembly personnel must be provided. Should the customer be responsible for us not being able to complete the intended work completely or within a reasonable time, the Customer shall be obliged to reimburse us in respect of the losses incurred, in particular the additional expenses due to additional travel and useless/additionally necessary working time of our employees. When determining the loss, the additional expenses for the extra work of our employees and the costs of additional travel can be taken into account in accordance with our respectively valid assembly costs guidelines. However, the Contracting Parties shall be free to provide proof of a higher or significantly lower actual loss
9 Acceptance inspection, acceptance
In particular in the case of installation and assembly work, the Parties can agree that the contractual conformity of the object of delivery be determined by means of a joint acceptance inspection.
Should no acceptance date be agreed, we shall notify the Customer of the date of the acceptance inspection. The costs of the acceptance inspection (including the costs of sample materials and work materials) shall be borne by the Customer. However, the costs of our personnel shall be borne by us. A written protocol shall be drawn up in respect of the acceptance test, which shall be signed by both Parties. Any defects to the object of delivery shall be recorded. The object of delivery shall be accepted if it does not demonstrate any defects or only demonstrates minor defects, if the acceptance inspection was not able to be carried out due to fault on the part of the Customer or the Customer has put the object of delivery into operation for its own commercial purposes. Should it become apparent during the acceptance inspection that the object of delivery is not in accordance with the contract, we shall be entitled and obliged to immediately correct this. Otherwise, the provisions in Section 11 – guarantee, defect claims – shall apply.
10 Ownership rights
The delivered goods shall remain our property until full payment of the purchase price and the settlement of all existing and future claims under the business relationship with the Customer (goods subject to reservation of ownership). The Customer shall be entitled to sell the goods which are subject to reservation of ownership within the framework of a proper business operation, provided that it complies with its contractual obligations in relation to us. Pledging or provision of security by the Customer shall not be permitted. The Customer must immediately notify us of any third party attacks against our ownership rights. Should the Customer fail to fulfil its contractual obligations in relation to us, we shall otherwise be entitled to demand surrender of the goods which are subject to reservation of ownership; to this extent, the Customer shall not have any right of ownership by means of the purchase of the goods which are subject to reservation of ownership, the Customer hereby now assigns to us the claims against its customers accrued from the resale, including all ancillary rights. Until revocation, the Customer shall remain entitled to collect the claims which have been assigned to us. Following a request, the Customer shall be obliged to notify us of the amount of its claims and the names of the third party debtors. In case of processing of the goods which are subject to reservation of ownership, we shall be deemed to be the manufacturer and shall acquire ownership in the new object, without the Customer being able to accrue any claims under the said transfer of rights. Should the processing take place together with other materials, we shall acquire co-ownership in the manufactured item to the relationship of the gross invoice value of the goods subject to reservation of ownership with the other materials. In case of connection, mixing or blending with items other than the principal object, the co-ownership in respect of the item shall be transferred to us to the extent of the gross invoice value of the goods subject to reservation of ownership. Should the value of the securities assigned to us exceed our total claim against the Customer by more than 10%, then following a request by the Customer, we are prepared at any time reassign the security rights to the Customer to this extent, according to our choice.
11 Guarantee, defect claims
Should the purchase be a commercial transaction for both parties, the Customer must provide an immediate written compliant in respect of all types of defects, should this correspond to proper business processes, however hidden defects need not be raised until their discovery. Otherwise, the goods shall be deemed to have been approved. The warranty period shall be 12 months in a single shift operation as of the time of transfer of risk. Should the delivered goods demonstrate a significant defect, the Customer shall be able to demand correction of the defect (improvement) or the delivery of a defect-free item (replacement delivery), depending on our choice. Should we not be prepared or not in the position of being able to provide improvement or a replacement delivery, in particular should this be delayed beyond a reasonable deadline for reasons for which we are not responsible or should the improvement or replacement delivery fail in any other way, the Customer shall be entitled to rescind the contract or reduce the purchase price, depending on its choice, should further supplementary performance attempts be unreasonable for it.
No material defect claims shall exist in case of unsuitable or improper use of the object of delivery, defective assembly or putting into operation by the Customer or a third party which has not been engaged by us, in case of natural wear and tear (in particular of wear and tear parts), defective or negligent handling of the object of delivery, insufficient maintenance measures, unsuitable operating equipment and replacement materials, defective construction work, unsuitable land, chemical, electrochemical and electric or electronic influences, unless these are due to fault on our part. The Customer is aware that the full performance capacity of individually constructed equipment is not attained until the expiry of a reasonable start up period. Should acceptance be required, the limitation period shall commence on expiry of the day on which the acceptance test was carried out or, if this was not carried out due to fault on the part of the Customer, on the day it should have been performed, however at the latest on expiry of the day on which the Customer put the object of delivery into operation for its own commercial purposes. Should the defective object of delivery be a third party product, we shall be entitled to assign our material defect claims against our sub-supplier to the Customer and instruct the Customer to bring a claim against the sub-supplier before the courts.
12 Limitation of liability
We shall incur liability in accordance with the regulations of the German Product Liability Act (Produkthaftungsgesetz) and in cases of inability and impossibility for which we are responsible. We shall also incur liability for losses in accordance with the statutory provisions in case of intent, gross negligence, assumption of a guarantee, in respect of the quality of the item and in case of injury to life, body or health for which we are responsible. Should we otherwise breach a cardinal obligation or an essential contractual obligation due to simple negligence, our liability to pay damages shall be limited to losses which are typical of the contract and foreseeable. However, we shall not incur liability for pecuniary losses (in particular loss of profit) or material defects which are caused by material defects due to simple negligence. In all other cases of liability, damages claims due to a breach under the contract or liability in tort shall be excluded.
Should our liability be exclude or restricted in accordance with the provisions above, this shall also apply in respect of the personal liability of our employees, workers, colleagues, representatives and vicarious agents.
13 Place of performance, place of jurisdiction, applicable law
Unless otherwise agreed, the place of performance shall be D-72229 Rohrdorf bei Nagold (Federal Republic of Germany). The law of the Federal Republic of Germany shall apply to these terms and conditions of business and all legal relationships between ourselves and the Customer, to the exclusion of the United Nations Convention concerning the International Sale of Goods. Should the Customer be a merchant as defined in the German Commercial Code (Handelsgesetzbuch), a legal person under public law or a public law special fund, the place of jurisdiction for all rights and obligations of the contracting parties in connection with all types of transactions, including dispute connected to bills of exchange and cheques, shall be Nagold Local Court (Amtsgericht Nagold) – Federal Republic of Germany. The same shall apply should the Customer have no general place of jurisdiction in Germany, moves its place of residence or usual place of whereabouts outside of Germany following conclusion of the contract or if its place of residence of usual place of whereabouts is not known at the time of bringing of the lawsuit. However, we shall also be entitled to bring a lawsuit against the Customer at its general place of jurisdiction.
Rohrdorf , 1 July 2016