General
1. The following terms and conditions of sale apply to all our offers, deliveries, and services, including information and advice. They also apply to future business relationships with customers, even if we no longer expressly refer to them upon conclusion of the contract.
2. Other terms and conditions – in particular, our customers' general terms and conditions of purchase – do not apply, even if we do not expressly object to them upon presentation. Verbal agreements are only valid after our written confirmation. This also applies to the waiver of the written form requirement.
3. The customer accepts our general terms and conditions upon acceptance of the goods at the latest.
Conclusion of Contract
1. Our offers are subject to change unless a binding period has been expressly agreed. The contractual relationship is only established when we send the customer an order confirmation that corresponds to the essential components of their order. If our delivery is made without prior confirmation, the contract is concluded upon performance of the service, whereby, regarding the contractual terms, our invoice simultaneously serves as order confirmation.
2. These Terms and Conditions are an integral part of every offer we make.
3. Documents, illustrations, drawings, units of weight and measurement, data, references to standards, and information in advertising materials included in the offer do not constitute specifications of quality, assurances of properties, or guarantees unless expressly designated as such in writing. Assurances regarding product quality only become part of the contract if they are expressly confirmed in writing. This also applies to information in brochures.
4. An electronic signature in accordance with the current state of the art and the applicable statutory provisions is permissible for the effective conclusion of a contract. It replaces the written form requirement and is also valid for amendments to the contract.
Intellectual Property Rights
1. Drawings enclosed with offers remain our property. Rights of use are not transferred to the customer. They may only be made accessible to third parties with our consent and must be returned to us immediately if a contractual relationship is not established.
2. For custom-made products, the customer is responsible for verifying the extent to which the ordered workpieces are free from third-party intellectual property rights. If third-party rights are affected during the execution of the order placed by the customer, the customer must indemnify us against all claims asserted by third parties.
3. In international transactions, we assume no liability for the freedom of the goods from third-party rights or claims of which we are not aware. Verification of the intellectual property rights situation in the country of destination is the sole responsibility of the customer. If the buyer is aware of existing intellectual property rights, he must inform us immediately.
4. We remain the owner of all development results associated with our delivery items. Rights of use are not transferred to the customer in this respect. Furthermore, we reserve the unrestricted right to use all models and tools that were manufactured by us or on our behalf in connection with the respective customer order and that remain our property.
Prices
1. Prices are net prices and apply according to the registered office of Kröger Engineering, excluding packaging, transport, and transport insurance.
2. All our prices are fixed prices and are non-discountable. All customers receive the current unit price.
Payments
1. All payments are due without deduction 14 days after the invoice date. Receipt of payment is decisive for repayment. Bills of exchange and checks will only be accepted based on a corresponding agreement and only on account of performance. In these cases, repayment only occurs when we can finally dispose of the respective amount. All bill of exchange, check, and discount fees, as well as all other costs, are borne exclusively by the customer.
2. Payment default occurs 14 days after the invoice is due. If the date of receipt of the invoice is uncertain, the debtor shall be in default no later than 30 days after the due date and receipt of the consideration.
3. If the customer defaults on a payment, we are entitled, at our discretion, to charge default interest at a rate of 8 percentage points above the base interest rate or to compensate for the precisely calculated damage we have incurred because of the default. Section 353 of the German Commercial Code (HGB) remains unaffected.
4. Despite any contrary provisions of our customer, we are entitled to initially offset the customer's payment against any existing outstanding debts. If interest and costs have already been incurred, we are entitled to offset our customers’ payments first against the costs, then against the interest, and finally against the principal amount.
5. The customer is only entitled to a right to set off or retention if their counterclaims have been legally established, are undisputed, or have been acknowledged by us. 6. The assignment of all claims of the customer against us to third parties requires our express written consent to be effective. Section 354a of the German Commercial Code (HGB) remains unaffected.
7. If, after the conclusion of a contract, we become aware of a significant deterioration in the customer's financial circumstances (e.g., application for the opening of insolvency proceedings, adverse credit reports, or interim default in payment), we are entitled to carry out outstanding deliveries or services only against advance payment or appropriate security, whereby any delivery or service deadlines will be extended or postponed accordingly. If we have already delivered, we can demand immediate payment of our invoice.
8. If we are obliged to make advance payments and, after the conclusion of the contract, become aware of circumstances under which our claim for payment is jeopardized by the customer's inability to pay, we can, in addition to the statutory claims based on the retention of title agreed in the provision, prohibit the resale and processing of the delivered goods and demand their return or the transfer of indirect possession of the delivered goods at the customer's expense, and revoke the collection authorization under the conditions of the Retention of Title provision, Section 8. The customer hereby authorizes us to enter his premises and collect the delivered goods in the aforementioned cases. Taking back the goods shall only constitute a withdrawal from the contract if we expressly declare this.
9. In the event of default in payment, we may, after written notice, suspend the fulfillment of our obligations until receipt of payment. In this case, we are also entitled to withdraw from the contract after setting a reasonable deadline.
Shipping and Transfer of Risk
1. Unless otherwise agreed in writing, the delivery clause shall be deemed to include the assumption of packaging, transport costs, and transport insurance.
2. We will not cover the delivery with transport insurance unless expressly requested by our customer.
3. Packaging will be determined by us at our discretion. The packaging costs will be invoiced to the customer.
4. Goods reported as ready for shipment must be accepted immediately; otherwise, we are entitled to ship them at our own discretion or to store them at the usual shipping costs and at the customer's risk. We are also entitled to do this if the shipment undertaken by us cannot be carried out through no fault of our own. The goods are deemed to have been delivered one week after the start of storage.
5. In the absence of specific instructions, the choice of means of transport and route shall be at our discretion.
6. Upon handover to the railway, freight forwarder or freight/air carrier or one week after the start of storage, but no later than upon leaving the factory or warehouse, the risk shall pass on to our customer, even if we have undertaken delivery.
Dates and Deadlines
1. Specified dates and deadlines for our deliveries and services are non-binding unless expressly agreed otherwise in writing. The deadlines only begin to run once agreement has been reached on the details of the execution required to provide our services, the customer has provided the information, documents, and materials required by them, and – if advance payment or a down payment has been agreed – has paid the agreed price or down payment. Failure to cooperate or requests for changes by the customer will result in a reasonable postponement of the dates or an extension of the deadlines by at least the period by which the customer is in arrears with its obligations.
2. Unforeseeable and unavoidable events (e.g., war, war-like conditions, energy or raw material shortages, sabotage, strikes) as well as all other operational disruptions or official interventions for which we are not responsible release us from our obligation to deliver and perform for the duration of their occurrence, even if they occur during an already existing delay. Deadlines and deadlines will be extended accordingly. This also applies to late or improper deliveries or services by our suppliers for which we are not responsible.
3. In the event of non-compliance with a binding deadline for reasons for which we are responsible, the customer may – provided that it can be proven that the customer has suffered damage as a result of the delay – demand compensation for each completed week of delay of 0.5% up to a maximum of 5% of the value of the part of the delivery for which we are in default. Any further claims by the customer are excluded in all cases of delayed delivery, even after the expiration of any grace period granted to us. This shall not apply, for example, to cases of intent, gross negligence, or injury to life, limb, or health, where liability is mandatory. The customer's right to withdraw after the fruitless expiration of a grace period granted to us remains unaffected. The customer is obligated, at our request, to declare within a reasonable period whether they are withdrawing from the contract due to the delay in delivery and/or demanding compensation instead of performance or are insisting on delivery.
4. If the customer defaults on acceptance or culpably violates other obligations to cooperate, we shall be entitled to claim compensation for the damage incurred, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the time the customer defaults on acceptance.
Retention of Title
2. The return of the goods or the assertion of retention of title does not require a prior declaration of withdrawal from the contract.
3. The customer always carries out any processing or working of the delivered goods on our behalf. If the reserved goods are processed or inseparably combined with other items not belonging to us, we acquire co-ownership of the new item in proportion to the invoice value of the goods to the other processed or mixed items at the time of processing.
4. If our ownership expires due to combination or mixing, the customer hereby transfers to us the ownership rights to the new inventory or item to the extent of the invoice value of the reserved goods and shall store them for us free of charge. The co-ownership rights arising from this shall be deemed to be reserved goods within the meaning of Section 1).
5. The customer may only sell the reserved goods in the ordinary course of business under its normal terms and conditions and as long as it is not in default, provided that the claims from the resale are transferred to us in accordance with the following clauses 6 and 7. The customer is not entitled to any other disposition of the reserved goods.
6. The customers’ claims from the further processing of the reserved goods are hereby assigned to us. We accept the assignment. They serve as security to the same extent as the reserved goods.
7. If the reserved goods are sold by the customer together with other goods not supplied by us, the assignment of the claim from the resale shall only apply to the amount of our invoice value of the respective reserved goods sold. In the case of the sale of goods, in which we have co-ownership shares in accordance with clause 2, the purpose of the claim shall apply to the amount of these co-ownership shares.
8. The customer is entitled to collect claims arising from the sale in accordance with clauses 5 and 6 until we revoke this right. We reserve the right to revoke this right in the cases specified in the Payments provision if the customer defaults on payment, an application for the opening of insolvency proceedings has been filed, or if payments have been suspended. In these cases, the customer is obligated to immediately notify us of the assigned claims and their debtors, to provide all information necessary for collection, to hand over the relevant documents, and to notify the debtors of the assignment. The customer is not authorized to assign the claim under any circumstances.
9. If the value of the existing collateral exceeds the total secured claims by more than 20%, we are obliged to release collateral of our choice. The customer must notify us immediately of any seizure or other interference by third parties.
10. The manufacturer is entitled to refuse to issue an e-learning certificate in the event of non-compliance with offers, agreements, or personnel qualifications. Passing the e-learning test does not entitle you to receive a certificate.
Liability for Material Defects
1. Within the scope of the following provisions, we warrant that the delivered products and services provided are free from defects at the time of transfer of risk for the delivery or service that negate or significantly reduce their value or suitability for normal use or use as stipulated in the contract.
2. If defects in our services and deliveries exist at the time of transfer of risk, we will, at our discretion, repair or replace the goods or services free of charge. We do not provide a warranty for wear and tears due to normal use or defects caused by improper use, improper handling, improper storage, or failure to comply with the manufacturer's instructions, assembly instructions, or instructions for use. The warranty expires in the event of improper handling by the customer or by third parties commissioned by the customer.
3. Unless expressly agreed otherwise in writing, all information about our products, in particular illustrations, drawings, technical information, and references to standards and specifications contained in our offers and brochures, do not constitute guarantees of quality and/or durability within the meaning of Sections 443 and 276 of the German Civil Code (BGB), but merely descriptions or markings. The same applies to the delivery of samples.
4. The customer must inspect the goods immediately upon delivery, even if samples were previously provided, and notify us immediately in writing of any defects or quantity deviations discovered. Otherwise, the goods are deemed to have been accepted, unless the defects are not apparent during the inspection. The customer must notify us of any hidden defects in writing immediately upon discovery.
5. We must be given the opportunity to determine the reported defect. In urgent cases where operational safety is at risk or to prevent disproportionate damage to the customer, we must determine the reported defect immediately. Any goods that are the subject of a complaint must be returned to us immediately upon request. If the customer fails to comply with these obligations or makes modifications to the goods that have already been complained about without our consent, the customer will lose any rights due to a material defect.
6. If we fail to fulfill our warranty obligations or do not do so within a reasonable period, or if the repair is initially unsuccessful, the customer may set a final deadline in writing within which we must fulfill our obligations. Setting a deadline is not required if it is unreasonable for the customer. After the expiration of this deadline without success, the customer may, at their discretion, demand a reduction in the price, withdraw from the contract, or have the necessary repair carried out themselves or by a third party at our expense and risk. If the repair was successfully carried out by the customer or a third party, all customer claims shall be settled with reimbursement of the necessary costs reimbursed to them.
7. We will cover the costs incurred for the purpose of rectification (in particular transport, travel, labor, and material costs). If the expenses increase due to the items being transported to a location other than the customer's delivery location after delivery, the customer will bear the additional costs, unless the transport corresponds to the intended use. If we rectify a defect, the customer must allow the work to be carried out immediately and make the defective goods available to us for inspection and processing.
8. Any costs incurred due to any unjustified complaints about defects shall be borne by the customer. These costs will be invoiced based on the time and effort involved.
9. If the repair or replacement delivery fails, the customer is entitled, without prejudice to any claims for damages, to demand a reduction in the price or to withdraw from the contract.
10. Claims for defects shall not apply in the case of only insignificant deviations from the agreed quality and only insignificant impairment of usability.
11. Further claims by the customer are excluded in accordance with the retention of title provision.
12. The customer is responsible for providing proof of a defect.
Authority to Represent
1. Sales representatives are only authorized to accept orders, but not to accept further declarations of intent from the customer, nor to conclude purchase agreements or make other legal declarations on our behalf.
General Limitation of Liability
1. Unless otherwise stated below, any other and further claims of the customer against us, regardless of the legal basis, in particular for breach of obligations arising from the contractual relationship and tort, are excluded.
2. This limitation of liability does not apply to mandatory liability, e.g., under the Product Liability Act (in the event of failure to comply with the annual expert examination by a person authorized by the manufacturer), in the event of intent, gross negligence on the part of our legal representatives or senior employees, or in the event of culpable breach of material contractual obligations. In the event of culpable breach of material contractual obligations, we are liable – except in cases of intent or gross negligence on the part of our legal representatives or senior employees – only for damages typical for the contract and reasonably foreseeable. It also does not apply to damages resulting from injury to life, body or health and in the absence of guaranteed quality, if and to the extent that the guarantee is specifically intended to protect the customer against damage that did not arise from the delivered goods themselves.
3. To the extent that our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, legal representatives, and vicarious agents.
4. Claims for damages and material defects to which the customer is entitled against us shall expire one year after delivery of the goods to the customer. This shall not apply if the law stipulates longer periods in Section 438 Paragraph 1 No. 2 and Section 479 Paragraph 1 of the German Civil Code (BGB), nor in cases of injury to life, body, or health, in the event of an intentional or grossly negligent breach of duty by us, or in the event of fraudulent concealment of a defect. The statutory provisions regarding suspension of the expiration, suspension, and recommencement of time limits remain unaffected. For claims for damages under the Product Liability Act, the statutory limitation periods apply. The statutory limitation periods also apply in the event of intentional and grossly negligent breaches of duty.
Miscellaneous
1. The legal relationship between the parties shall be governed exclusively by German law, excluding the UN Convention on Contracts for the International Sale of Goods (UNCITRAL/CISG).
2. If the customer is a merchant, the place of jurisdiction shall be the registered office of Kröger Engineering. However, we are also entitled to sue the customer at the court of his or her registered office. Unless otherwise stated in the order confirmation, the place of performance for our services shall be the location of our registered office. The place of performance for payment obligations shall be the registered office of Kröger Engineering.
3. Should individually provisions of these General Terms and Conditions be invalid or void in whole or in part, the contracting parties undertake to agree to a provision that largely achieves the meaning and purpose of the invalid or void provision.
4. The customer agrees and is informed that all data concerning him or her from the business relationship will be stored electronically.
Severability Clause
If individual provisions of these Terms and Conditions are or become invalid or unlawful, this shall not affect the validity of the remaining provisions or the entire legal transaction. Until such time as effective amendments are made, the statutory provisions that most closely reflect the intent of these Terms and Conditions shall apply.
November 1, 2017
Kröger Engineering
Management