General Terms and Conditions of Delivery
1. Scope of Application
Under these Terms and Conditions, the “contractor” is KNOKE Beschlagtechnik GmbH, and the “purchaser” is the respective ordering party. The following Terms and Conditions of Delivery shall be part of the contract between the contractor and the purchaser, unless otherwise agreed upon in individual cases. They shall apply to all offers, supplies and services (hereinafter “Supplies”) and to all future business relations, even if not expressly agreed upon again. These Terms and Conditions of Delivery shall be deemed accepted by the ordering party no later than when the Services are taken receipt of. General terms and conditions of business or purchase of the purchaser that conflict herewith shall not apply, even if not expressly objected to by the contractor.
Our offers are subject to change. Orders and verbal additional stipulations shall only be deemed accepted when they have been confirmed in writing. The information shown in the order confirmation is solely and exclusively authoritative for the scope of the delivery. We reserve the right to make changes to the design of our products where this does not limit functionality or bring significant changes to the appearance of our products. In case of doubt, illustrations, drawings, data regarding dimensions and weights or other properties of the contractual performance only reflect approximate values. Drawings and documents shall remain our property. For orders based on drawings or models, the ordering party undertakes to guarantee that property rights of third parties are not infringed. Over or under-deliveries up to 10% are permissible.
The delivery terms and dates of delivery only specify the time of the delivery approximately, unless a binding agreement is made in relation to them. The delivery term and date of delivery shall be deemed to have been met if the goods are shipped or the purchaser is informed of their readiness for shipment within the agreed time limit or on the agreed date.
If the purchaser does not fulfil a duty to co-operate or does not fulfil it in a timely manner, we shall be entitled to amend the delivery time at reasonable discretion. After expiry of an extension of time granted we will be entitled to withdraw from the contract. If we are hindered in the implementation of our delivery due to force majeure, labour disputes or operational disruptions within our company or those of our suppliers, the delivery term shall be extended accordingly. If the delivery term is not met for reasons for which we are accountable, claims for compensation are excluded provided that they do not relate to deliberate intent or gross negligence.
Additionally, the ordering party can claim compensation for the late delivery of the part of the total order that cannot be used in accordance with the contract due to not being delivered on time. This shall equate to 1/2% of the total value of the affected part of the total delivery for every full week of delay, but not beyond 5% in total. Any further claims are excluded.
If the ordering party falls into default of acceptance, we shall be entitled to charge them the resulting storage costs as of two weeks from the notification of the readiness for shipping, but equating to at least 1/2% of the invoice amount, for each full week. Claims for compensation arising from late deliveries shall be excluded.
Partial deliveries shall be permissible provided that no agreement to the contrary is made. All deliveries shall be made freight collect at the cost and risk of the ordering party. The risk shall be transferred to the ordering party as soon as the goods leave our plant or are reported as ready for collection or shipment. The ordering party shall be liable for packaging costs.
4. Prices and payment
If a written agreement is not made regarding prices, the prices listed in our latest price lists shall apply, with the addition of value-added tax. Where no written agreement is made to the contrary, our invoices must be paid net within 30 days from the invoice date. Invoices for services and repairs must be paid immediately without a discount. A cash discount from new invoices is not permitted provided that older outstanding invoices remain unpaid.
Cheques and bills of exchange shall only be accepted on account of performance and only where agreed.
All exchange and discount charges shall be borne by the purchaser and are to be settled immediately. If the purchaser does not fulfil their payment obligations, if a cheque or bill of exchange is not cashed or if circumstances come to our attention that are likely to impair the creditworthiness of the ordering party, then all our receivables shall become payable immediately, including those for which we have already accepted bills of exchange. Moreover, in this event we shall be entitled to demand payment in advance or sureties before carrying out any open deliveries and we shall have the right, after allowing a reasonable period of grace, to withdraw from existing contracts and to claim damages for non-performance.
If the payment date is not met, and at the latest following a reminder, we shall be authorised to collect interest calculated at a rate of 3% above the relevant discount rate.
5. Reservation of proprietary rights
All delivered goods shall remain our property until all the receivables from the business dealing have been paid and the cheques and bills of exchange submitted have been cashed. The purchaser is not authorised to transfer the goods as collateral or to assign them as security. In the event of pledges by third parties, the purchaser must inform the third party of our ownership and inform us without delay of the situation as well as send us a copy of the minutes of attachment.
Any claims of the ordering party arising from the resale of the goods supplied shall be transferred to us; we hereby accept said transfer. If the value of the securities given to us in accordance with the terms above exceeds our trade receivables by more than 20%, we undertake to release the securities of our choice at the request of the ordering party.
The time of delivery shall be decisive for determining whether the state of the Supplies conforms with the contract. The Supplies delivered shall be inspected immediately upon receipt. Defect-related complaints shall be raised immediately and shall be received by the Contractor in writing no later than within five working days upon delivery. In particular, this shall apply to visible defects and in respect of the completeness of the delivery. Upon receipt of the delivery, the Customer shall immediately report any transportation damage to the freighter carrier and, secure that respective damage claims are attested on the consignment note. Other defects not immediately discovered even upon diligent examination shall be reported in writing without undue delay, upon discovery of the defect. The Customer’s right to assert claims arising from defects shall not be assignable. The warranty period shall begin at the time of delivery. Rectification or replacement shall not suspend the warranty period. The warranty period shall be 2 (two) years starting from delivery unless otherwise specified in the order confirmation.
If the item delivered is defective, the Contractor shall render supplementary performance. However, the Contractor may, at its own option, either rectify the defective item delivered or replace it with a new defect-free delivery.
The Customer shall make the defective item available to the Contractor for examination and supplementary performance. The installation, removal and transportation costs shall be borne by the Customer. The Contractor shall render supplementary performance within a reasonable period.
No warranty claim will be accepted in the event that the purchaser does not comply with our request to make the affected goods or samples available to us, therefore not giving us the opportunity to ascertain whether or not any insufficiency exists.
The Contractor shall also inform the Customer of the result of the examination of the defective item. If the Contractor reaches the conclusion that the defect reported is not covered by the warranty, the Customer shall reimburse the Contractor for the costs for rectification or replacement.
A prerequisite for the Contractor’s obligation to honour the warranty is that the Supplies delivered have been faultlessly installed by a recognised and authorised specialist company following the relevant standards and recognized technical rules and must have been used in strict compliance with the directives / instructions issued by the Contractor (technical documentation etc.). The warranty period shall lapse, if the defect arisen was caused by improper alteration, improper processing or any other improper treatment The Contractor shall not be liable for damage resulting from usage-related depreciation, normal wear and tear, excessive use, defective servicing, damage caused by force, non-adherence to the Contractor’s technical documentation, incorrect use or operation as well as unsuitable operating materials.
If the Contractor defaults on the removal of a defect reported, the Customer upon written notice to the Contractor shall have the right to eliminate the defect itself, or have the defect eliminated by third parties, at cost prices. The necessary respective costs shall be reimbursed by the Contractor. If the defect has not been remedied despite two rectification attempts or two replacement deliveries, the Customer may, after a reasonable grace period set by the Customer has expired, assert its right to reduce the price or terminate the contract. The Contractor shall not be liable for damage outside of the delivered item itself. This shall also apply to consequential damages of any kind, except where the Contractor is at fault due to wrongful intent or gross negligence, or where the guaranteed features were specifically intended to prevent the risk of defect-related consequential loss. This exclusion of liability shall not apply in cases where the Contractor is liable under the product liability.
7. Other claims
Damage claims of the Customer on any legal basis resulting from any breach of contractual obligations or from tort shall be limited as specified below. This shall not apply insofar as, for example, liability is mandatory under the Product liability law or in cases of wrongful intent or gross negligence, in cases of mortal injury, physical harm or health damage or in cases of breach of material contractual duties. However, damages for breach of material contractual duties shall be limited to the foreseeable damage typical of this type of contract, except in cases of liability owing to wrongful intent or gross negligence or cases of mortal injury, physical harm or health damage.
Insofar as the Contractor’s liability is excluded or limited this shall also apply to the personal liability of its employees, workers, personnel and other authorised agents. Insofar as the Customer is entitled to damage claims these shall become time-barred after 12 months. The statutory limitation periods shall apply in cases of wrongful intent and in cases of damage claims under the Product liability law.
All commercial or technical information originating from the Contractor shall, insofar as this information is not provably public knowledge, or the Contractor has not earmarked this information for on-selling by the Customer, be kept secret to third parties. The Customer shall make available this information only to persons within its organization who need to use this information and who are also bound to secrecy; this information shall remain exclusively the Contractor’s property. Such information shall not be copied, or used commercially, without the Contractor’s prior written consent. At the Contractor’s request, all information originating from the Contractor (including any copies or records made) and items made available on loan shall be promptly and completely returned to the Contractor or be destroyed.
9. Industrial Property Rights and Copyrights
The Contractor shall not be liable for claims ensuing from any infringement of industrial property rights or copyrights of third parties (hereinafter “Property Rights”), if the Property Right is, or was, owned by the Customer or a company in which the Customer directly or indirectly holds a majority interest in terms of the capital or the voting rights.. The Contractor shall be liable for claims resulting from any infringement of Property Rights only if at least one Property Right from the family of Property Rights has been published by the European Patent Office. The Customer shall promptly inform the Contractor of (alleged) property right infringements, or other risks in this regard, that it becomes aware of and shall, on request, leave it to the Contractor – insofar as possible – to conduct legal disputes (also out of court). The Contractor shall, at its own option, be entitled to acquire a right of use for the item delivered infringing a Property Right or modify this delivered item in such a way no more infringing the respective Property Right, or replace it with a similar item that no longer infringes the Property Right. If it is not possible for the Contractor to do so on reasonable terms or within a reasonable period, the Customer shall – insofar as it has enabled the Contractor to carry out a modification – be entitled to the statutory rights of rescission. The Customer’s rescission claims in relation to the Contractor shall exist only insofar as the Customer has not made with its customers any agreements beyond the statutory claims, e.g. goodwill agreements.
The Customer shall not be entitled to any claims insofar as it is responsible for the property right infringement, or the Customer has failed to reasonably assist the Contractor in the defence against third-party claims. Furthermore, the Customer shall not be entitled to any claims in cases where the items delivered are manufactured in accordance with the Customer’s specifications or instructions, or the (alleged) property right infringement results from use in combination with another item not originating from the Contractor, or the items delivered are used in a manner that the Contractor was unable to foresee. Further claims are hereby excluded.
10. Place of performance, legal venue and applicable laws
The place of performance is Enger (Germany). The competent court of jurisdiction for all disputes arising from this contract is the court at the registered seat of KNOKE Beschlagtechnik GmbH. These terms and conditions are governed by the laws of the Federal Republic of Germany, to the exclusion of conflict of laws provisions. Application of the The Hague Uniform Laws on Sales, the United Nations Convention on Contracts for the International Sale of Goods or other conventions relating to legislation for the purchase of goods, is excluded.
11. Severability Clause
If any of the above provisions are or become ineffective, this shall not affect the validity of the remaining provisions. Rather, the Contractor and the Customer shall, instead, agree upon a legally permissible provision.