Status as of 08/2016, valid from 4 August 2016
I. General terms and conditions
1. For the legal relationship between KATEK Memmingen GmbH (hereinafter referred to as "supplier") and a customer, these General Terms of Delivery apply exclusively in connection with deliveries and/or services provided by the supplier (hereinafter: deliveries). General terms and conditions of the customer apply solely to the extent that the supplier has expressly agreed to them in writing. The written declarations made by both parties and which are mutually in agreement are determinative for the scope of deliveries.
2. The supplier fully reserves their right of exploitation of property rights and copyright with regard to cost estimates, drawings and other documents (hereinafter: documents). The documents may only be made accessible to third parties following prior consent by the supplier, and in cases when the order is not placed with the supplier, must be returned to the supplier immediately upon request. Clauses 1 and 2 apply accordingly to the documents of the customer; these may, however, be made accessible to such third parties as have been commissioned with deliveries by the supplier in a permissible manner.
3. The customer has the non-exclusive right to use standard software and firmware with the agreed features in a non-modified form and on the agreed devices. The customer may, without prior express agreement, create a backup copy of the standard software.
4. Partial deliveries are permissible to the extent that they are acceptable to the customer.
5. The term "damage compensation claims" in these General Terms of Delivery also includes claims for the reimbursement of futile expenses.
6. These General Terms of Sale apply only to entrepreneurs.
II. Prices, conditions of payment and offsetting
1. Prices apply ex works, exclusive of packaging and plus the respective legally applicable VAT.
2. The supplier reserves the right to transfer his claims against the purchaser to a third party.
2. In cases where the assembly or installation work is to be conducted by the supplier, and no other agreement has been made, the customer shall bear all necessary supplementary costs such as travel and transportation costs and per diems, in addition to the agreed fee.
3. Payments shall be made without deductions and free of transaction charges to the supplier's designated account.
4. The customer may only offset such payment requests as are beyond dispute or which have been declared legally binding.
III. Reservation of title
1. The objects of the deliveries (reserved goods) remain the property of the supplier until such time as all claims made by the supplier against the customer to which they are entitled according to the business relationship have been fulfilled. To the extent that the value of all security interests to which the supplier is entitled should exceed the value of all secured claims by more than 20%, the supplier shall, at the request of the customer, issue a disclaimer for the corresponding portion of the security interests. The supplier has the right to select the security interests for which a disclaimer is to be issued.
2. During the period of validity of the reservation of title, the customer is not allowed to pledge or assign security, and a resale is only permitted to resellers in the normal course of business and only under the condition that the reseller receives payment from their customer, or makes the caveat that ownership is only transferred to the customer when the customer has fulfilled their payment obligations.
3. Should the customer resell reserved goods, as a security, they shall already at this juncture assign their future claims against their customers arising from the resale, alongside all ancillary rights - including any requests for balance payments - to the supplier, without any further declarations required. If the reserved goods are resold together with other items without a unit price having been agreed for the reserved goods, the customer shall assign that portion of the total price to the supplier which corresponds to the price charged by the supplier for the reserved goods.
4. a) The customer is permitted to process the reserved goods, or to mix or combine them with other items. Processing shall be conducted for the supplier. The customer shall store the new product created as a result for the supplier with all due care. The new product shall be classified as reserved goods.
b) The supplier and customer are at this juncture already in agreement that following combination or mixing with other items not belonging to the supplier, the supplier is in all cases entitled to joint ownership of the new product in proportion to the ratio between the amount of combined or mixed reserved goods and the amount of other goods at the point in time of combination or mixing. The new product shall insofar be classified as reserved goods.
c) The provision regarding the assignment of claims according to no. 3 also applies to the new product. However, the assignment applies only up to the level of the amount charged by the supplier for the processed, combined or mixed reserved goods.
d) Should the customer combine the reserved goods with plots of land or movable properties, as a security, they shall also assign to the supplier, without any further declarations required, their claim for payment to which they are entitled for the combination, alongside all ancillary rights which total the ratio between the amount of combined reserved goods and the other combined goods at the point in time at which they were combined.
5. Until revoked, the customer is authorised to collect assigned claims arising from the resale. Should an important reason arise for doing so, in particular in the case of delay or default of payment, the initiation of insolvency proceedings, an act of protest or well-founded evidence for excessive indebtedness or the threat of failure to pay on the part of the customer, the supplier is entitled to revoke the direct debit authorisation of the customer. The supplier may also, following previous warnings and adhering to an appropriate deadline, disclose the assignment for security, utilise the assigned claims and demand the disclosure of the assignment for security by the customer to the client.
6. The customer must inform the supplier immediately of levies of execution, seizures or other decrees or interventions by third parties. Should prima facie evidence be established of a legitimate interest, the customer must immediately provide the supplier with the information required for the assertion of their rights in relation to the client, and hand over the necessary documents.
7. In cases when the customer fails to meet their obligations, in particular in cases of delay of payment, the supplier, following the fruitless expiry of an appropriate deadline for fulfilment set for the customer, is entitled to take back the goods as well as to withdraw; the legal stipulations regarding the expendability of the specification of a deadline remain unaffected. The customer is obliged to surrender. The taking back of the goods or assertion of the reservation of title, or the levy of execution of the reserved goods by the supplier, does not entail withdrawal from the contract, unless expressly declared by the supplier.
IV. Deadlines for deliveries; delay
1. The adherence to deadlines for deliveries requires the receipt in due time of all documents to be provided by the customer, the necessary approvals and clearances, in particular of plans, and the adherence to the agreed terms of payment and other obligations on the part of the customer. If these requirements are not met in due time, the deadlines will be extended as appropriate; this does not apply in cases when responsibility for the delay lies with the supplier.
2. If the failure to adhere to the deadlines is caused by
a) Force majeure, e.g. mobilisation, war, acts of terrorism, civil commotion or similar events (e.g. strikes, lock-outs)
b) A virus and other attacks by third parties on the IT system of the supplier, to the extent that they have occurred despite adherence to the standard level of care taken with protective measures
c) Obstructions due to German, US American and other applicable national, EU or international stipulations made by foreign trade legislation or due to other circumstances for which the supplier does not bear responsibility, or
d) Behind schedule or incorrect delivery to the supplier, the deadlines will be extended as appropriate.
3. If a delay occurs on the part of the supplier, the customer may - insofar as they provide evidence that damage has been caused to them as a result - demand compensation for each completed week of the delay of 0.5%, but not more than 5% of the price for the portion of deliveries which could not be used for the purpose intended as a result of the delay.
4. Both damage compensation claims by the customer due to delay of the delivery and damage compensation claims in place of performance which extend beyond those boundaries listed in no. 3 are excluded in all cases of delayed delivery, even following expiry of the deadline for delivery set for the supplier. This does not apply insofar as liability occurs in cases of intent, gross negligence or due to injury to life, body or health. The customer may only withdraw from the contract within the scope of legal provisions to the extent that the responsibility for the delay of the delivery lies with the supplier. The above provisions do not entail an alteration in the burden of proof to the disadvantage of the customer.
5. At the request of the supplier, the customer is obliged to state within an appropriate time limit whether they wish to withdraw from the contract as a result of the delay, or whether the delivery order is still valid.
6. If, at the request of the customer, shipping or delivery are delayed by more than one month after readiness of the goods for shipping was declared, the customer can be charged a storage charge of 0.5% of the price of the delivery items for each new month, while the total storage charge may not exceed 5%. The parties of the agreement have the right to prove that the storage costs were higher, or lower.
V. Passing of risk
1. The customer bears the risk, even with carriage-paid delivery, as follows:
a) For delivery without assembly or installation when it has been brought for dispatch or collected. At the request and at the expense of the customer, delivery is insured by the supplier against the usual transport risks.
b) For delivery with assembly or installation on the day of transfer to their own operation or, insofar as has been agreed, following successful trial operation.
2. If the dispatch, delivery, start, implementation of the assembly or installation, the transfer to the customer's own operation or the trial operation is delayed for reasons which are the responsibility of the customer, or the customer is delayed in accepting for other reasons, the risk is transferred to the customer.
VI. Assembly and installation
Unless otherwise agreed in writing, the following conditions apply for assembly and installation:
1. The customer shall at their own expense take responsibility for the following and ensure provision in due time:
a) All earthworks, construction and other ancillary works required which do not fall within the sector, including the necessary specialist and ancillary personnel, building materials and tools
b) The items and materials required for installation and commissioning, such as scaffolding, hoisting equipment and other devices, fuels and lubricants
c) Power and water at the site of utilisation, including connections, heating and lighting
d) At the installation site, sufficiently large, suitable, dry and lockable rooms for storing the machine parts, apparatus, materials, tools etc. and adequate working and restrooms for the installation personnel, including sanitary facilities which are suitable for the purpose; the customer must also take the same measures to protect the property of the supplier and the installation personnel at the site as they would in order to protect their own property
e) Protective clothing and protective equipment required as a result of particular circumstances at the installation site. Prior to the start of installation work, the customer must provide, without being requested to do so, the necessary information on the position of hidden power cables and gas and water pipes or similar systems, together with the necessary structural information.
2. Prior to the start of the assembly or installation work, the provisions and items required to commence the work must be provided at the assembly or installation site, and all preparatory work must be completed prior to the start of the construction work so that the assembly or installation can begin as agreed and be completed without interruption. Access routes and the assembly or installation area must be levelled and cleared.
3. If the assembly, installation or commissioning are delayed by circumstances for which the supplier is not responsible, the customer must to an appropriate degree bear the costs for the waiting time and additional journeys required by the supplier or installation personnel.
4. The customer must immediately provide to the supplier weekly certification on the duration of the working time of the installation personnel, and of the termination of the assembly, installation or commissioning.
5. If the supplier demands acceptance of the delivery following completion, this must be done by the customer within two weeks. The acceptance is regarded as having been given when the customer allows the two week deadline to pass, or when the delivery - if appropriate on completion of an agreed test phase - has been put to use.