1 Contracting partner, subject, scope, conflicting GTCT
1.1 These General Terms of Delivery for equipment and vehicles (the Terms of Delivery) of Kiefer GmbH, Furter Str. 1, 84405 Dorfen (Germany) (KIEFER) apply to the sale and delivery of equipment and vehicles with spare parts and options, including the execution of repairs and servicing, for KIEFER's Contracting partners. They do not apply to consumers.
1.2 The nature and scope of the services to be performed by KIEFER are governed by the contractual agreements and otherwise exclusively by these Terms of Delivery. Any General Terms and Conditions (GTCT) of the Contracting partner shall not form an integral part of the contract; silence on the part of KIEFER regarding the inclusion of the Contracting partner's GTC shall not be deemed acceptance of those GTCT.
1.3 The Contracting partner does not receive the contractual services as a consumer, but for the purpose of its municipal, commercial or self-employed professional activity or, in the case of a university, for the purposes of the university.
2.1 Offers from KIEFER are non-binding and subject to change. Orders must be accepted in writing by KIEFER.
2.2 KIEFER reserves the right to make changes to the design in the course of technical development, insofar as such changes are reasonable for the Contracting partner. This does not apply to spare parts.
3 Delivery periods, delivery and shipping
3.1 The delivery period begins on confirmation of the order by KIEFER. If the Contracting partner has not provided the documents required for delivery or execution or has otherwise not fulfilled its contractual obligation, the delivery period shall not begin until the documents have been provided or the contractual obligation has been fulfilled. Delivery constitutes notice that the goods are ready for dispatch or the goods leaving the factory or warehouse.
3.2 Cases of force majeure, strikes, lockouts, operational disruptions for which KIEFER is not responsible or other circumstances for which KIEFER is not responsible shall extend the delivery period as long as and to the extent that the events affect timely performance of the whole contract or the part of the contract that is soon due for performance. If the events cause a delay in delivery of more than three months, both parties are entitled to withdraw from the contract.
3.3 KIEFER is entitled to make partial deliveries.
3.4 The risk of accidental loss or accidental deterioration shall pass to the Contracting partner upon delivery of the goods to the Contracting partner or to the carrier; this shall also apply if KIEFER has undertaken to perform further services, such as shipping or installation, or the customer has commissioned KIEFER as carrier. This also applies if the goods are dispatched from a place other than the place of performance. If the goods are specified and ready for dispatch and acceptance of the consignment is delayed for reasons for which KIEFER is not responsible, the risk shall pass to the customer upon dispatch of the notice of readiness for dispatch. This provision also applies to partial deliveries. Transport insurance is only taken out in agreement with the Contracting partner.
3.5 If the Contracting partner does not accept the goods within two weeks of KIEFER giving notice that they are ready or after the goods have arrived at their destination, KIEFER shall be entitled to store the goods at the expense and risk of the Contracting partner and to invoice the goods as delivered. Storage costs are 0.5% of the invoice amount per month.
3.6 After expiry of the additional period of two weeks to be set in writing by KIEFER in accordance with clause 3.5, KIEFER shall be entitled to take back, sell or auction the goods. If the goods are taken back, KIEFER may claim 15% of the agreed price as lump-sum damages, unless the Contracting partner proves lesser damage. Any assertion of further claims for damages remains unaffected. The costs of return transport, storage and auction shall be borne by the Contracting partner.
4.1 Unless otherwise agreed, the prices are in Euro at the prices valid at the time of the order. The prices are calculated plus value added tax at the respective statutory rate, other fees, charges, taxes and customs duties, as well as any packaging, loading, shipping and insurance. In the event of obvious spelling or calculation errors, we are entitled to make corrections.
4.2 Additional work, special designs and changes made on request will be invoiced separately by KIEFER on the basis of wage and material costs.
4.3 Even after conclusion of the contract, KIEFER is entitled to increase prices if increases are based on circumstances that have only occurred after conclusion of the contract and were not foreseeable. In this case, the customer has the right to withdraw from the contract if it exercises its right of withdrawal within two weeks of receipt of the price adjustment.
5 Terms of payment:
5.1 Payments are due on receipt of invoice in cash without deduction to the designated account.
5.2 Payment periods for discounts, rebates and other agreed deductions are calculated from the corresponding invoice date. Discounts can only be claimed by the Contracting partner if the Contracting partner is not in arrears with the payment of receivables owed to KIEFER at the time of payment.
5.3 KIEFER only accepts cheques, money orders and bills of exchange by written agreement and then only for payment, not in lieu of payment, and only on condition that they are eligible for discount. Costs associated with collection of payment or the discount shall be borne by the Contracting partner. If a Contracting partner's own or third-party bills of exchange are disputed, all claims against the Contracting partner, including those from bills of exchange with a later due date, shall be due for payment immediately.
5.4 The Contracting partner shall be in default at the latest 30 days after the due date of the invoice, without the need for a reminder. In the event of default, KIEFER shall be entitled to demand interest and a lump sum for default at the statutory amount. The assertion of a claim for higher interest or greater damages is not excluded.
5.5 If partial payment has been agreed and if the Contracting partner is more than 10 days in arrears with an instalment, the entire outstanding balance shall become due for payment immediately.
5.6 If KIEFER becomes aware of circumstances which cast doubt on the creditworthiness of the Contracting partner, e.g. disputed bills of exchange or seizures, KIEFER shall be entitled to demand that all claims still outstanding from the entire business relationship shall be due without the need for notice of default. In this event, KIEFER may make further deliveries dependent on advance payment by the Contracting partner or cash on delivery.
5.7 If, in the event of clause 5.3 or 5.5, the Contracting partner does not immediately pay the entire outstanding amount or the advance or cash on delivery payments requested by KIEFER, the Contracting partner shall lose the right to use the delivered item. In this case, KIEFER may withdraw from the contract after the expiry of a reasonable grace period and claim damages for non-performance of 15% of the sale price, unless KIEFER proves greater loss. The Contracting partner is free to prove a lesser actual reduction in value.
5.8 The exercise of a right of retention by the Contracting partner is excluded, unless it is founded on the same contractual basis. Offsetting is only permitted against undisputed or legally established claims.
5.9 Payments to representatives without written power to accept payment do not release the party from the obligation.
5.10 KIEFER is free to assign claims against the Contracting partner.
6 Reservation of proprietary rights
6.1 The delivered goods remain the property of KIEFER until all claims arising from the business relationship with the Contracting partner, including future claims, have been paid in full for the first time. This reservation also applies to current account balance claims.
6.2 The Contracting partner may only sell the goods supplied by KIEFER in the ordinary course of business. In particular, the Contracting partner may not assign or pledge these goods as security. It must immediately notify KIEFER at its own expense of any access by third parties to the goods under reservation of proprietary rights and send all documents (e.g. records of seizures). The Contracting partner shall bear the costs of the measures directed against shipments. The Contracting partner is not authorised to resell to buyers with whom it has agreed a prohibition of assignment.
6.3 Until complete repayment of all claims, including those from current accounts, the Contracting partner hereby now assigns all claims to KIEFER that it obtains from the sale or other legal basis with regard to the goods delivered by KIEFER or other items, of which KIEFER has ownership or co-ownership. If the assigned claim of the Contracting partner against the third-party debtor has been included in a current account relationship, the assignment refers to the balance. Payments received by the Contracting partner on the basis of these claims must be retained separately for KIEFER and forwarded to KIEFER without delay. The Contracting partner is not entitled to assign or sell claims to which it is entitled on the basis of the resale or other legal basis with regard to the goods delivered by KIEFER or other objects owned or co-owned by KIEFER. If the value of the assigned claims exceeds KIEFER's claims by a total of more than 25%, at the request of the Contracting partner KIEFER shall assign claims that the Contracting partner has assigned to KIEFER back to the Contracting partner to the extent of the excess. Upon request, the Contracting partner must inform KIEFER of the assigned claims and their debtors, provide all information required for collection, hand over the applicable documents and inform the debtor of the assignment. The Contracting partner is authorised to collect the assigned claims, as long as it fulfils its payment obligation to KIEFER in accordance with the contract. If claims of KIEFER are due, the Contracting partner must immediately pay the amounts collected by the Contracting partner to KIEFER.
6.4 The power to resell the goods under reservation of proprietary rights and to collect the claim assigned to KIEFER shall cease on cessation of payments, an application for the initiation of insolvency proceedings, judicial or out-of-court settlement proceedings to avert insolvency, the submission of an affidavit (Section 807 ZPO), if payment difficulties arise or if there is a significant deterioration in the financial circumstances of the Contracting partner.
6.5 The Contracting partner must store the items under ownership in a proper and clearly identifiable way, separate from other goods. Despite the reservation of proprietary rights, the Contracting partner bears the risk of destruction and deterioration of the goods as well as for accident, force majeure, loss and theft. If the Contracting partner has failed to insure the received merchandise sufficiently, KIEFER shall be entitled, without being obliged to do so, to insure the delivered merchandise against damage, in particular against theft, breakage, fire and water damage, to an appropriate amount and extent at the cost of the Contracting partner. As long as KIEFER's reservation of proprietary rights exists, the costs of necessary repairs shall be borne by the Contracting partner. Moreover, the goods under reservation of proprietary rights shall be used with due care and consideration, properly maintained and serviced, and protected against damage, value-impairing events and theft to a reasonable extent.
6.6 If the Contracting partner uses a financing company or a bank, it must inform this organisation explicitly of the fact that the Supplier reserves its proprietary rights until the price total including accrued interest and cost has been paid.
Commissioning of delivered devices, machines and vehicles must only be performed after complete and thorough study of the pertinent operating instructions and only under consideration of those. The Contracting partner must ensure that it also applies the same obligation on its Contracting partner, in the event of resale.
8.1 KIEFER warrants that all its own products are free of defects in material and workmanship in accordance with the following provision.
8.2 KIEFER provides a warranty for compact excavators and vehicles of at least one year from delivery and for a maximum of 1,000 operating hours, but not for more than two years. Used equipment is excluded from the warranty. The warranty expires if devices are used that are not approved by KIEFER. Otherwise, warranty claims shall lapse one year after delivery of the delivery item.
8.3 For the parts manufactured by KIEFER, KIEFER provides a warranty to the effect that KIEFER will, free of charge, replace or repair parts that were already defective or unusable at the time of transfer of risk. Otherwise, the Contracting partner shall bear the costs. The Contracting partner shall give KIEFER the necessary time and opportunity to carry out all repairs and replacement deliveries which KIEFER deems reasonably necessary; otherwise KIEFER shall be released from subsequent performance. If spare parts are supplied, the defective parts must be returned to KIEFER. If subsequent performance is not possible or fails, the customer has the right to a reduction of the remunerati on or cancellation of the contract. If modifications or repair work is carried out incorrectly by the Contracting partner or third parties without the prior consent of KIEFER, the warranty shall not apply to all the consequences that arise.
8.4 KIEFER is not bound by the warranty if the defect is due to improper handling, intervention by third parties, use of incorrect operating materials or other than original spare parts. Likewise, KIEFER does not provide any warranty for natural wear and tear of parts. No liability is accepted for damage and errors that have arisen for the following reasons: Unsuitable and improper use, faulty assembly and commissioning by fault of the Contracting partner or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials, replacement materials, chemical, electrochemical or electrical influences, unless attributable to KIEFER.
8.5 The Contracting partner must inspect the delivery item immediately upon receipt and notify KIEFER of issues, such as incomplete delivery and/or externally visible defects, within 8 days of receipt of the delivery item. Failure to comply with this obligation will result in the exclusion of claims for defects.
9.1 KIEFER is only liable for damage on whatever legal grounds if caused by intent or gross negligence or the intentional or negligent breach of essential contractual obligations, the fulfilment of which is essential for the proper performance of the contract and on fulfilment of which the Contracting partner may ordinarily rely. In the event of simple negligence, KIEFER's liability is limited to the damage that is typically foreseeable for the contract. KIEFER shall only be liable for consequential damage caused by a defect in the event of intent or gross negligence; the customer's statutory claims for compensation for the damage caused by delay in correcting the defect shall remain unaffected. The above provisions regarding liability also apply accordingly to liability for reimbursement of wasted expenses.
9.2 The above limitations and exclusions of liability do not apply to damage resulting from injury to life, body or health for which KIEFER is responsible and do not apply to liability arising from guarantees and the Product Liability Act.
9.3 The above provisions also apply in favour of the employees and subcontractors of KIEFER.
10 Goods on commission
The Contracting partner shall be liable for the loss or damage of the merchandise in its care and for the effects of improper storage, unless the loss or damage is caused by circumstances which could not have been avoided by the due care and diligence of a prudent business person.
11 Written form requirement
Any cancellation, amendment or change of contracts between KIEFER and its Contracting partners requires the written form to be valid. This written form requirement shall be deemed to have been observed also by the use of telefax or electronic mail.
12 Place of performance and jurisdiction
If the Contracting partner is a merchant, a person under public law or a special fund under public law, the courts at KIEFER's registered office shall have local jurisdiction for all disputes arising from or in connection with this contract. Exclusive places of jurisdiction remain unaffected by this provision. Place of performance for both parties is the registered office of KIEFER. Irrespective of the above provision, KIEFER shall always be entitled to bring an action before the court at the domicile of the Contracting partner. The legal relations in connection with this contract shall be governed by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 and German conflict of laws provisions.
Place of performance for delivery, payment and all other mutual obligations is the registered office of KIEFER.
Dorfen, October 2015