General Terms and Conditions
CONTENT OF THE CONTRACT
- All deliveries, services and offers of KAPELOU shall be directed to persons who, at the time of conclusion of the contract, are acting in the course of their trade, business or profession (entrepreneurs) (“Buyer”) and shall be governed exclusively by these General Terms and Conditions (“GTC”). Deviating terms and conditions of purchase of the purchaser shall not become part of the contract even through acceptance of the order.
- Any deviating, conflicting or supplementary terms and conditions of a Buyer shall not become part of the contract, even if KAPELOU does not separately object to their application in individual cases. Even if KAPELOU refers to a letter containing or referring to contractual terms and conditions of the Buyer or a third party, this shall not be deemed to constitute KAPELOU’s consent to the application of such contractual terms and conditions.
- The commercial offer sent by KAPELOU is a mere invitation to conclude a contract (Invitation ad offerendum), unless expressly agreed otherwise in individual cases. There shall be no ancillary agreements in addition to the offer.
- The offer is valid only for the specified period and then automatically loses its validity.
- After the Buyer has sent the order based on the offer, a contract for the specified deliveries and services shall be concluded – in the absence of any special agreement – upon KAPELOU’s order confirmation.
- KAPELOU shall retain title and copyright to samples, cost estimates, drawings and similar information. They may not be made available to third parties.
- KAPELOU undertakes to make information and documents designated as confidential by the Buyer available to third parties only with the Buyer’s consent.
- KAPELOU undertakes not to disclose to third parties any information and documents designated by the Buyer as confidential without the Buyer’s consent.
- Changes to an existing contract may only be made by mutual agreement between the parties to the contract.
- Orders, order confirmations and further changes to existing contracts must be made in writing. Transmission by telecommunication, in particular by fax or e-mail, shall be sufficient to comply with the written form requirement, provided that a copy of the signed declaration is transmitted.
PRICE AND PAYMENT
- The prices shall apply to the scope of services and delivery specified in the order confirmations. Additional or special services will be charged separately. Prices are quoted in EUR and, in the absence of a special agreement, ex works (FCA). Value added tax at the respective statutory rate shall be added to the prices.
- in the absence of a special agreement, payments are due according to the following schedule:
a. 10% of the total price (gross) down payment after order confirmation by KAPELOU (Order confirmation).
b. 40% of the total price (gross) after signing of the technical documentation / layout
c. 40% of the total price (gross) after completion of the individual components, prior to delivery.If the Buyer is more than five working days overdue with a payment, KAPELOU shall cease all work in progress relating to the project. KAPELOU shall further be entitled to terminate the contractual relationship unilaterally.
d. 10% of the total price (gross) after acceptance of the equipment or after delivery if no assembly / installation is carried out by KAPELOU.
- Unless otherwise agreed, the Buyer shall make the corresponding payment within two (2) weeks of KAPELOU’s request to do so (invoicing shall suffice).
- If the Buyer defaults on a payment, the outstanding amounts shall bear interest at the rate of 10 percent p.a. from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.
- If the project cannot be completed due to non-payment or other reasons for which KAPELOU is not responsible, KAPELOU shall not refund any payments already made (in particular the 10% deposit).
- In the absence of any special agreement, a deposit of 10% of the total price (gross) shall be payable immediately upon conclusion of the contract and shall be paid into KAPELOU’s account without any deductions. KAPELOU shall issue a corresponding invoice for all payments on account and send it to the Buyer.
- The Buyer shall have the right to withhold payments or to set off payments against counterclaims only to the extent that its counterclaims are undisputed or have been finally adjudicated.
- The buyer has the right to offset counterclaims from other legal relationships only insofar as they are undisputed or legally established.
DELIVERY / DELIVERY TIME / DELIVERY DELAYS
- The delivery time shall be determined by the agreements of the contracting parties. KAPELOU’s compliance with the delivery time shall be subject to the condition that all commercial and technical questions between the contracting parties have been clarified and that the Buyer has fulfilled all obligations incumbent upon him, such as the provision of the required official certificates or permits or the payment of a deposit. If this is not the case, the delivery period shall be extended accordingly. This shall not apply if KAPELOU is responsible for the delay.
- Compliance with the delivery period shall be subject to correct and timely self-delivery. KAPELOU shall notify any delays that become apparent as soon as possible.
- The delivery period shall be deemed to have been complied with if the goods to be delivered have left KAPELOU’s works before the expiry of the delivery period or if KAPELOU has notified the customer that the goods are ready for dispatch. If acceptance is required, the date of acceptance shall be decisive, or alternatively the date of notification of readiness for acceptance, except in the case of justified refusal of acceptance.
- If shipment or acceptance of the delivery item is delayed for reasons for which the Purchaser is responsible, the costs incurred by the delay shall be charged to the Purchaser, starting one month after notification of readiness for shipment or acceptance.
- If non-compliance with the delivery period is due to force majeure, labor disputes or other events beyond the control of KAPELOU, the delivery period shall be extended accordingly. KAPELOU shall notify the Buyer of the beginning and end of such circumstances as soon as possible.
- The Buyer may withdraw from the contract without notice if KAPELOU is finally unable to perform the entire contract prior to the passing of risk.
- The Buyer may also rescind the contract if it becomes impossible to perform part of an order and the Buyer has a justified interest in refusing partial delivery. If this is not the case, the Buyer shall pay the contract price attributable to the partial delivery. The same shall apply in the event of KAPELOU’s inability to perform. Section VIII.2 shall apply in all other respects. 8.
- If the impossibility or inability to perform occurs during the delay in acceptance or if the Buyer is solely or predominantly responsible for these circumstances, the Buyer shall remain obliged to make counter-performance.
- If KAPELOU is in default and the Buyer suffers damage as a result thereof, the Buyer shall be entitled to claim liquidated damages for default. Such compensation shall amount to 0.5% for each full week of delay, but shall not exceed a total of 5% of the value of that part of the total delivery that cannot be used on time or in accordance with the contract as a result of the delay. The Buyer may not assert a claim exceeding this amount. 10.
- If the Buyer grants KAPELOU, which is in default, a reasonable period of time after the due date for performance – taking into account the statutory exceptions – and if such period of time is not complied with, the Buyer shall be entitled to rescind the contract within the scope of the statutory provisions. Upon KAPELOU’s request, the Buyer undertakes to declare within a reasonable period of time whether it will exercise its right to withdraw from the contract.
- Unloading of the goods shall be the Buyer’s responsibility and must be ensured immediately after the arrival of the transport vehicles (within a maximum of two (2) hours). This shall also be the case if KAPELOU carries out the assembly of the equipment.
- If any defects are found in the transported goods during unloading, the carrier shall be notified immediately and these defects shall be documented and confirmed by the carrier.
- The transported goods shall be unpacked by KAPELOU’s employees.
- The Buyer shall dispose of the transport packaging. The Purchaser shall provide an appropriate waste disposal system.
- Installation of the equipment shall only be undertaken by KAPELOU if this has been agreed in the corresponding offer and shall be limited to the equipment described therein.
- The start of the installation work shall be announced by KAPELOU at least one (1) week prior to the start of the work and shall be agreed with the Buyer.
- The installation time stated in the offer is an estimate to the best of our knowledge and belief. Delays are possible and must be accepted by the Buyer. KAPELOU shall endeavor to comply with the promised times.
- If the Buyer is responsible for a delay in the installation and assembly of the equipment, the Buyer shall accept the corresponding delays in the completion date. Any additional costs incurred by KAPELOU shall be invoiced on a time and material basis.
- If KAPELOU is responsible for the installation, it shall be KAPELOU’s decision as to which installers are to be employed. Subcontractors’ employees may also be used.
- The requirements for the location and environment of the installation shall be complied with. Separate KAPELOU document shall apply in this regard.
- In the event of damage to or loss of the components, the already installed parts of the plant or the equipment, KAPELOU shall arrange for appropriate replacement at the Buyer’s expense.
- The Buyer shall ensure a safe working environment for the workers employed by KAPELOU in accordance with the applicable standards. If this is not the case, KAPELOU shall be entitled to interrupt the work. Any additional costs incurred shall be charged to the Buyer by KAPELOU and any delays shall be accepted by the Buyer.
- If the installation work also includes the installation of software and its integration into an existing software system at the Buyer’s premises, the Buyer shall, at KAPELOU’s request, name an appropriate contact person for such existing software and ensure the availability of such contact person during the installation work by KAPELOU.
- The acceptance of the equipment shall be carried out jointly by the Purchaser and KAPELOU. KAPELOU shall give 3 days’ notice of the date of acceptance. The KAPELOU acceptance document shall be completed and signed by both parties. 2.
- The Buyer shall be obliged to confirm and sign the acceptance no later than three days after the acceptance has been carried out or to state in writing the reasons why this cannot be done. KAPELOU shall confirm any defects and, if confirmed, shall remedy them within ten (10) working days. After elimination of the defects, a new acceptance of the affected areas shall be carried out. The acceptance of the complete plant shall then be confirmed by the Purchaser. 3.
- If the Purchaser refuses acceptance of the plant and no list of defects is submitted, the plant shall be deemed to have been accepted as complete and free of defects after five (5) working days have elapsed since the last scheduled acceptance.
- Acceptance may not be refused on the basis of minor defects which do not affect the performance and function of the equipment. KAPELOU shall make every effort to remedy such defects as soon as possible.
- If acceptance is delayed or does not take place due to circumstances beyond KAPELOU’s control, the risk shall pass to the Buyer on the date of notification of readiness for shipment or acceptance.
- Partial deliveries shall be permissible insofar as they are reasonable for the Buyer.
RESERVATION OF TITLE
- KAPELOU shall retain title to the delivery item until receipt of all payments – including any additional ancillary services owed – under the delivery contract.
- KAPELOU shall be entitled to insure the delivered goods against theft, breakage, fire, water and other damage at the Buyer’s expense, unless the Buyer can prove that it has taken out such insurance itself.
- The Buyer may neither sell nor pledge the delivery item nor assign it as security. In the event of seizure, confiscation or other dispositions by third parties, the Buyer shall notify KAPELOU thereof without undue delay.
- In the event of a breach of contract by the Buyer, in particular in the event of default in payment, KAPELOU shall be entitled to take back the delivered goods after issuing a reminder and the Buyer shall be obliged to surrender the goods.
- KAPELOU may only demand the return of the delivered goods on the basis of its retention of title if it has withdrawn from the contract.
CLAIMS FOR DEFECTS / WARRANTY
KAPELOU shall be liable for material defects and defects of title of the delivery under exclusion of further claims – subject to section VIII – as follows:
- Defects of quality
- All parts which prove to be defective as a result of circumstances arising prior to the transfer of risk shall, at KAPELOU’s option, be repaired or replaced free of defects. KAPELOU shall be notified immediately in writing of any such defects. Replaced parts shall become the property of KAPELOU.
- The Purchaser shall, after consultation with KAPELOU, give KAPELOU the necessary time and opportunity to carry out all repairs and replacements which KAPELOU deems necessary; otherwise KAPELOU shall be released from liability for any consequences arising therefrom.
- Only in urgent cases where operational safety is at risk or in order to prevent disproportionately large damage, in which case KAPELOU must be notified immediately, shall the Buyer be entitled to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from KAPELOU.
- KAPELOU shall bear the expenses incurred for the purpose of subsequent performance, provided that the complaint proves to be justified and does not impose a disproportionate burden on KAPELOU. In the event that KAPELOU sells a newly manufactured item, KAPELOU shall also reimburse, to the extent of its statutory obligation, any expenses incurred by the Buyer in connection with any recourse claims in the supply chain.
- Within the scope of the statutory provisions, the Buyer shall be entitled to rescind the contract if KAPELOU – taking into account the statutory exceptions – fails to meet a reasonable deadline set for it to remedy the defect or make a replacement delivery due to a material defect. If the defect is only insignificant, the Buyer shall only be entitled to a reduction of the contract price. 6.
- Otherwise, the right to a reduction of the contract price shall be excluded. 7.
- Further claims shall be determined exclusively in accordance with Section VIII.2 of these Terms and Conditions.
- No liability is assumed in particular in the following cases: Unsuitable or improper use, faulty assembly or commissioning by the Buyer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable equipment, defective construction work, unsuitable foundation soil, chemical, electro-chemical or electrical influences – unless KAPELOU is responsible for them.
- If the Buyer or a third party carries out improper repairs, KAPELOU shall not be liable for the resulting consequences. The same shall apply to any modifications made to the delivered goods without KAPELOU’s prior consent.
- Defects of title
- If the use of the delivered goods leads to an infringement of industrial property rights or copyrights in Germany, KAPELOU shall, at its own expense, procure for the Buyer the right to continue using the delivered goods or modify the delivered goods in a manner reasonable for the Buyer so that the infringement of the industrial property rights no longer exists.
If this is not possible under economically reasonable conditions or within a reasonable period of time, the Purchaser shall be entitled to rescind the contract. Subject to the aforementioned conditions, KAPELOU shall also be entitled to rescind the contract.
In addition, KAPELOU shall indemnify the Buyer against any undisputed or legally established claims of the holders of the property rights concerned.
- KAPELOU’s obligations set forth in Section VII Clause 10 shall be subject to Section VIII. Section 2 in the event of an infringement of intellectual property rights or copyrights.
They shall only apply if
a. The Buyer notifies KAPELOU without undue delay of any infringements of intellectual property rights or copyrights which have been asserted,
b. The Buyer supports KAPELOU to a reasonable extent in defending against the claims asserted or enables KAPELOU to carry out the modification measures pursuant to Section 8,
c. KAPELOU reserves the right to take all defensive measures, including out-of-court settlements,
d. The defect of title is not based on an instruction given by the Buyer, and
e. The infringement of rights has not been caused by the fact that the Buyer has modified the delivered goods without authorization or has used them in a manner not in accordance with the contract.
LIABILITY OF THE SELLER / EXCLUSION OF LIABILITY
- If the Purchaser is unable to use the delivery item in accordance with the contract as a result of KAPELOU’s culpably omitted or incorrect suggestions or advice given before or after the conclusion of the contract, or as a result of KAPELOU’s culpable breach of other ancillary contractual obligations – in particular instructions for the operation and maintenance of the delivery item – the provisions of Sections VII and VIII.2 shall apply to the exclusion of any further claims by the Purchaser.
- KAPELOU shall only be liable for damage not occurring to the delivery item itself – irrespective of the legal grounds – in the following cases
a. In the event of intent,
b. In the event of gross negligence on the part of the owner/the executive bodies or senior employees,
c. In the event of culpable injury to life, limb or health,
d. In the case of defects which he has fraudulently concealed or the absence of which he has guaranteed,
e. Within the scope of a guarantee promise,
f. In the case of defects in the delivery item, insofar as liability exists under product liability law for personal injury or material damage to privately used items.
- In the event of a culpable breach of material contractual obligations, KAPELOU shall also be liable in the event of gross negligence on the part of non-executive employees and in the event of slight negligence, in the latter case limited to reasonably foreseeable damage typical of the contract.
- Further claims are excluded
All claims of the Buyer – on whatever legal grounds – shall become statute-barred after twelve (12) months; this shall also apply to the limitation of recourse claims in the supply chain pursuant to Section 445b (1) of the German Civil Code (BGB), provided that the last contract in this supply chain is not a purchase of consumer goods. The suspension of the statute of limitations under Section 445b (2) of the German Civil Code shall remain unaffected. The statutory time limits shall apply to claims for damages under Section VIII.2. a. to d. and f.. They shall also apply to defects in a building or to delivery items which have been used for a building in accordance with their customary use and have caused its defectiveness.
- Operation of the equipment by the purchaser may only take place after complete and signed acceptance without defects.
- Software use, intellectual property
a. All documents and products (including drawings, layouts, calculations, simulations, inventions, “know-how”, software, hardware, etc.) provided to the Buyer by KAPELOU shall remain the intellectual property of KAPELOU.
b. This shall also apply to all documents, materials, products and samples which have already been exchanged or made available prior to the signing of the offer.
c. If software is included in the scope of delivery, the Buyer shall be granted a non-exclusive right to use the software supplied, including its documentation.
d. It shall be provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
e. The Buyer may only reproduce, revise, translate or convert the software from object code to source code to the extent permitted by law (§§ 69 a ff. UrhG). The Purchaser undertakes not to remove any manufacturer’s details – in particular copyright notices – or to change them without KAPELOU’s prior express consent.
f. All other rights to the software and the documentation, including copies thereof, shall remain with KAPELOU or the software supplier. The granting of sub-licenses shall not be permitted.
g. In the event that KAPELOU’s intellectual property rights are used in violation of the terms and conditions set forth herein, the Buyer shall compensate KAPELOU for all losses, including lost profits, caused by such unlawful acts.
INSPECTION OF THE PLANT / DOCUMENTATION 1.
- KAPELOU shall be entitled to inspect the installed equipment during operation. For this purpose, a notice of visit shall be sent to the Buyer ten (10) working days in advance. Upon Buyer’s request, KAPELOU shall name all persons participating in the visit, including their names, functions and company affiliation.
- The Buyer shall have the right to refuse a visit if there are good reasons to do so.
- KAPELOU shall be entitled to take photographs and film recordings of the installation during the installation work and during subsequent operation. These recordings shall be agreed with the Buyer and shall be at the free disposal of both the Buyer and KAPELOU.
- KAPELOU may mention the name of the Buyer in connection with presentation material and promotional events and identify it as a reference.
- The Buyer may revoke in writing the use of image and video material and the use of the Buyer’s name with effect for the future.
APPLICABLE LAW / PLACE OF JURISDICTION
- All legal relations between KAPELOU and the Buyer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
- The place of jurisdiction shall be the court having jurisdiction over KAPELOU’s registered office. KAPELOU shall, however, be entitled to bring an action at the Purchaser’s principal place of business. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
TRANSMISSION OF INVOICES
- (1) The Buyer agrees that, as an alternative to invoicing and transmission on paper, invoices may also be issued electronically and transmitted in a legally effective manner, e.g. by e-mail with file attachment. An invoice transmitted from Standard-Telefax to Standard-Telefax shall be deemed a paper invoice.
FINAL PROVISIONS / SEVERABILITY CLAUSE
- KAPELOU” within the scope of these Terms and Conditions may be any company of the KAPELOU Group.
- “Working days” shall mean all days of the week except Saturday, Sunday and public holidays.
- In case of breach of their obligations under this agreement, the parties shall bear the responsibility set forth in this agreement and the applicable law.
- The parties shall not be liable for the breach of their obligations under this agreement if it occurred without their own fault. The party shall not be at fault if it proves that it has used its best efforts to duly perform its obligation.
- The parties shall endeavor to settle all disputes arising in connection with this contract, its conclusion or those arising in the course of the performance of this contract, first by negotiation between representatives of the parties.
- If the parties fail to reach an agreement within fifteen (15) business days of the filing of a claim under this Agreement, the parties, individually or jointly, shall have the right to seek arbitration by an arbitration board of their choice. The language of arbitration shall be German. German law shall be exclusively applicable.
- In the event of force majeure, the period of performance of the obligations shall be postponed by the duration of the period during which such circumstances exist.
- If a party is prevented from fulfilling its obligations under the agreement due to force majeure, this shall be notified to the other party within three (3) working days. The performance of obligations under the Agreement may be suspended during the continuing consequences of force majeure. These obligations shall not expire, but shall be made up for. The entire process of fulfilling the obligations may be interrupted accordingly and the completion date may be postponed.
- These General Terms and Conditions shall apply without restriction unless deviations are specified in KAPELOU’s offer and are thus included in the contract. Such individual agreements shall take precedence over the GTC.
- These General Terms and Conditions are available in German and English. In case of doubt the German version has priority.
- The ineffectiveness of one of the provisions of these GTCs is not a reason for the ineffectiveness of other provisions of these GTCs as a whole..
End of the document.