General Terms and Conditions of Delivery and Business
General Terms and Conditions of Delivery and Business of KASPAR SCHULZ Brauereimaschinenfabrik & Appartebauanstalt GmbH - As at: Jan. 2022
I. Scope of applicability
All deliveries and services of KASPAR SCHULZ Brauereimaschinenfabrik & Apparatebauanstalt GmbH (hereinafter referred to as “deliveries") are based on these General Terms and Conditions of Delivery and Business. Deviating contractual terms and conditions of the Customer shall not become part of the contract unless they are expressly and unambiguously confirmed in writing by an authorised representative of KASPAR SCHULZ Brauereimaschinenfabrik & Apparatebauanstalt GmbH (hereinafter the “Supplier”).
II. Validity of the offer
Offers of the Supplier are subject to confirmation. The validity of the offer is limited to 30 days from the date of the offer, unless a different offer is made.
III. Scope of delivery and services
Deliveries shall be limited to the scope stated in the Supplier's offer. All other goods and services are expressly excluded.
IV. Conclusion of the contract
A contract shall be concluded upon written order confirmation by the Supplier, unless expressly agreed otherwise.
Provisions of orders or other documents of the Customer which are incompatible with or go beyond these General Terms and Conditions of Delivery and Service and the Supplier's offer shall only apply if they have been expressly accepted by the Supplier.
Ancillary agreements and amendments always require written confirmation by the Supplier.
V. Services on site
The basis for the Supplier's on-site services, such as assembly, commissioning, repairs and services, is unrestricted access to the place of performance and its unrestricted use, so that the Supplier can perform its on-site services without delay or interruption. Should this not be the case for reasons for which the Supplier is not responsible, the Supplier shall be entitled to reimbursement of the additional costs incurred by it as a result and reasonable adjustment of the contractually agreed execution dates.
Included in the Customer's scope of performance are all the on-site supplies and performances which the Supplier requires for its on-site services that are not explicitly included in the Supplier's contractually defined scope. These include, but are not limited to, the provision of construction work, raw materials and process materials, illumination/lighting, heating, social/sanitary and office space.
If the Customer provides the Supplier with personnel, it shall ensure that they are qualified and are available to the Supplier to a sufficient extent. The responsibility for the performance of the personnel provided shall remain with the Customer.
VI. Delivery time / delay
Delivery times are only binding if they have been expressly agreed and marked as such. Compliance with deadlines by the Supplier shall be subject to the timely, complete and correct receipt by the Supplier of all documents to be provided by the Customer as well as necessary permits and approvals, as well as compliance with the agreed terms of payment, provision of security and the fulfilment of other obligations of the Customer. If these requirements are not fulfilled in time, the delivery times shall be extended appropriately, if necessary taking into account the periods required for resuming work on the delivery.
VII Prices and terms of payment
Unless otherwise agreed, our prices are ex works (EXW according to Incoterms 2020) excluding packaging and loading and plus the current VAT at the relevant time.
Our prices do not include any fees, customs duties, levies or other taxes which may be incurred in the course of the performance of the contract. These shall be additionally paid by the Customer, irrespective of whether the Customer or the Supplier is the party liable for payment.
The terms of payment of our respective offer apply.
All payments are due within 10 days of the invoice date, net without deduction.
Payments shall be deemed to have been made when the corresponding amount is available in the Supplier's account.
Bank and other transaction costs shall be borne by the Customer.
The Customer shall not be entitled to withhold payments if the conditions for the payments cannot be fulfilled for reasons beyond the Supplier's control, which includes, but is not limited to, failure of the Customer to accept announced equipment deliveries, carry out tests or release any documents.
VIII. Price escalation clause
In the event that, after conclusion of the contract, the net purchase prices to be paid by the contractor for the contractual materials (in particular stainless steel) increase by more than 5.00 per cent at the time of delivery, each of the two contracting parties shall have the right to demand that the other enter into supplementary negotiations with the aim of bringing about, by agreement, an appropriate adjustment of the contractually agreed prices for the contractual materials concerned to the current delivery prices.
IX. Retention of title
Deliveries remain the property of the Supplier until all claims of the Supplier have been settled in full.
The Supplier authorises the Customer to dispose of the goods in the ordinary course of business. In this case, the Customer shall assign to the Supplier all claims in the amount of the final invoice amount (including VAT) accruing to the Customer from the resale against its customers or third parties, irrespective of whether the delivery has been resold with or without further processing. The Customer shall remain authorised to collect this claim even after the assignment. The authority of the Supplier to collect the claims itself remains unaffected. However, the Supplier undertakes not to collect the claim as long as the Customer meets its payment obligations under the agreed contracts, the Customer's financial situation does not deteriorate significantly, the Customer is not in payment default and, in particular, no application for the initiation of insolvency proceedings has been filed, the Customer is not insolvent and no other valid reason exists. If this is the case, however, the Supplier may demand that the Customer disclose the assigned claims of the Supplier and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors of the assignment. This advance assignment includes the acquired claim as well as collateral provided and possible compensation for the claim.
Furthermore, the customer is not permitted to pledge deliveries with retention of title or to assign them as security. In the event of seizure, confiscation or other measures by third parties, the Supplier must be notified immediately.
X. Transfer of risk / acceptance
The risk shall pass to the Customer when the delivery leaves the works, even if partial deliveries are made or the Supplier has assumed other services, such as shipment or delivery and installation. Insofar as acceptance has to take place by contract, this shall be decisive for the transfer of risk. It must be carried out without delay on the acceptance date or alternatively after the Supplier's notification of readiness for acceptance. The Customer may not refuse acceptance in the case of insignificant defects.
If shipment or acceptance are delayed or do not take place for reasons for which the Supplier is not responsible, the risk shall pass to the Customer. However, the Supplier undertakes to take out the insurance policies requested by the Customer at the latter's request and expense.
In the event of a delay in acceptance by more than one month for reasons for which the Supplier is not responsible, acceptance shall be deemed to have taken place at the latest three months after notification by the Supplier that the goods are ready for delivery.
If the Customer uses the delivery commercially before the actual acceptance, the acceptance shall be deemed to have taken place as a result and the risk shall pass to the Customer at the beginning of the commercial use.
XI. Liability for material defects
The Customer must notify us in writing of any defects in the delivery without delay, but no later than two weeks after their discovery. If the Customer fails to give proper or timely notice of defects, liability for such defects shall be excluded.
The limitation period for claims for defects is 24 months, counting from the date of delivery or readiness for dispatch of the delivery. If the Customer and the Supplier have agreed on an acceptance arrangement in an individual contract, the time of acceptance shall be deemed to be the beginning of the limitation period, but no later than three months after notification that the delivery is ready for dispatch, should the acceptance be delayed for reasons for which the Supplier is not responsible.
Insofar as there is a defect in the delivery, the Supplier shall be obliged, at its discretion and to the exclusion of further claims, to rectify the defect or to redeliver the defective part.
The Supplier is entitled to repair or redeliver a defective part of the delivery at least three times before failure of the subsequent performance is deemed to have occurred.
The place of subsequent performance shall be the Supplier's works. The Customer shall give the Supplier the necessary time and opportunity to remedy the defect.
If the Customer has incorporated a defective part of the delivery into another item or real property, the Customer shall bear the necessary costs and the risk for removing the defective part and for installing the repaired or newly delivered part.
Insofar as notifications of defects turn out to be unjustified through no fault of the Supplier, the Customer shall reimburse the Supplier for the costs incurred and proven for the purpose of the alleged subsequent performance.
The Supplier shall be entitled to make the rectification of defects conditional on whether the Customer has paid the due purchase price. However, if a defect is present, the Customer shall be entitled to withhold a reasonable part of the purchase price in proportion to the costs of remedying the defect until the defect has been remedied.
In general, the following applies: Claims for defects shall not exist in the event of unsuitable or improper use or faulty assembly or commissioning by the Customer or third parties, natural wear and tear, unsuitable processing and operating materials, defective supplies or chemical, electrochemical or electrical influences, unless they were caused by the Supplier.
XII. Liability for defects of title
The Supplier's liability for defects of title is limited to the following provision:
If the delivery is used to infringe industrial property rights or copyrights in the Federal Republic of Germany, as a rule the Supplier shall, at its own expense, procure for the Customer the right to continue using the delivery or modify the delivery in a manner reasonable for the Customer so that the infringement of the property right no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the Customer shall be entitled to withdraw from the contract. Under the aforementioned circumstances, the Supplier also has the right to withdraw from the contract.
In addition, the Supplier shall indemnify the Customer against undisputed or legally established claims of the owners of the property rights concerned.
This liability provision applies to the Supplier, its legal representatives, employees and/or vicarious agents.
In the event of damage to property or financial loss caused by slight negligence, the Supplier shall be liable for typical contractual and foreseeable damage in accordance with the type and amount of cover provided by its liability insurance.
The Supplier's liability for indirect and/or consequential damages, such as loss of production, loss of turnover and profit, damage to or loss of raw materials or end products, idle times for personnel, plant downtimes, recall costs, compensation obligations of the Customer, loss of information and data or loss of images, shall be excluded - irrespective of the legal grounds.
The total liability of the Supplier for all claims arising from a contract is limited in total to 30% of the contract price.
Limitations of the Supplier's liability within the framework of the contractual provisions shall not apply if there are legally binding liabilities, such as in cases of intent, gross negligence or injury to life and limb. In such cases, the Supplier's liability shall be limited only to the extent permitted by the applicable statutory provisions.
XIV. Force majeure
The Customer and the Supplier shall be entitled to suspend their obligations under the contract if performance is prevented by circumstances which are unforeseen events. Unforeseen events are in particular cases of force majeure, such as strikes, war, official orders, a credibly made rejection of a significant part of the delivery without fault, other proven delays without fault, fire, natural disasters, epidemics, pandemics, military mobilisation, insurrection, confiscation, terrorism or sabotage.
If the delay resulting from unforeseen events is more than three months, either party shall have the right to terminate the contract in writing. In this case, the Supplier shall be entitled to payment of all payments due up to the time of termination as well as remuneration for all deliveries and services provided up to that time which can no longer be averted, including the goods and services which the Supplier is obliged to pay for.
XV. Confidentiality, intellectual property
All documents and information of the Supplier - whether passed on orally or in writing - which the Customer has received directly or indirectly from the Supplier may be used by the Customer solely for the purpose of operating, maintaining or repairing the delivery and only for the respective project. This information is considered proprietary and confidential information.
XVI. Software usage
Insofar as software is part of the delivery, the Customer shall be granted a non-exclusive right to use the delivered software including its documentation. It is provided exclusively for use on the delivery item intended for that purpose. Any other use is not permitted.
The Customer may only reproduce, revise, translate or convert the software from the object code to the source code to the extent permitted by law (Section 69a et seq. of the German Copyright Act (UrhG)). The Customer undertakes not to remove manufacturer's details - in particular copyright notices - or change them without the Supplier's prior written consent.
All other rights to the software and the documentation, including copies, shall remain with the Supplier. The granting of sub-licences is not permitted.
XVII. Foreign trade law, export control
The Supplier's performance of the contract is subject to the proviso that there are no obstacles to performance due to national or international regulations, in particular export control regulations as well as embargoes, import restrictions or other sanctions. The parties undertake to provide all information and documentation required for the export/transfer/import. Delays due to export inspections or approval procedures shall invalidate deadlines and delivery times. Claims for damages are excluded in this respect and due to the aforementioned exceeding of deadlines.
XVIII. Applicable law, place of jurisdiction
The laws of the Federal Republic of Germany apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of jurisdiction for both parties for all disputes arising directly or indirectly from the contract is the head office of the defendant.
XIX. Final provision
Should individual provisions of these General Terms and Conditions of Delivery and Business or additionally agreed individual provisions be invalid in whole or in part, this shall not affect the validity of the remaining provisions.
The parties undertake to replace the invalid provisions with provisions that come as close as possible to the economic sense and purpose of the invalid provisions in an effective manner.
Assignment of this contract or claims hereunder is only permitted with the prior consent of the other party. Excluded from this are the provisions of section 8 of these General Terms and Conditions of Delivery and Business.