General Terms and Conditions (AGB)

12-2011

General Terms of Sale
We thank you for your order and accept same under the express condition that you asssent to our General Terms and Conditions (AGB) set forth herein.

Please note that the English translation of our General Terms and Conditions is provided for the convenience of our international partners. However, only the German language-version of our General Terms and Conditions  (Allgemeine Geschäftsbedingungen (AGB)) is legally binding. Nevertheless we are open to negotiating individual project contracts which will only apply to the specified project.

 

§ 1 Scope
(1) These terms and conditions of sale exclusively apply to entrepreneurs, public-law legal entities or public-law special funds within the meaning of section 310, paragraph 1 German Civil Code (BGB). Agreements that differ from or supplement our General Terms and Conditions will only be effective with prior written consent by KOWOTEST GmbH.
(2)The General Terms and Contions apply to future and similar business transactions between KOWOTEST GmbH and the customer.

§ 2 Quotation and Conclusion of Contract
In case an order by the customer represents an offer within the meaning of section 145 German Civil Code (BGB), we may at our option accept such orders within two weeks of receipt.

§ 3 Contract Documents
KOWOTEST GmbH reserves ownership and intellectual property rights to illustrations, technical specifications and other documents made availabe by KOWOTEST GmbH to the customer. This also applies to any written materials designated as "confidential". These materials may not be made accessible to third parties without consent by KOWOTEST GmbH. The customer must obtain express approval in writing by KOWOTEST GmbH before making such material available to other parties. In case KOWOTEST GmbH rejects the offer of the customer within the period specified in section 2 hereof, these materials must be returned to KOWOTEST GmbH without undue delay.

§ 4 Prices and Terms of Payment
(1) Unless otherwise specified in our written confirmation, our prices are "ex works" and exclusive of packing which will be invoiced separately. Our prices are exclusive of applicable value added tax (VAT). Applicable value added tax on the billing day will be shown separately on the invoice.
(2) Payments of invoices must be made in full to one of the bank accounts stated on the KOWOTEST GmbH invoice without any deductions. No decutions will be accepted without the prior written consent by KOWOTEST GmbH.
(3) Unless otherwise specified payment is due within 30 days of delivery. Default interest on arrears will be charged at 8% p.a. above the base rate. Further damage claims shall remain unaffected.
(4) Provided that no fixed price was stipulated, KOWOTEST GmbH reserves the right to modify prices in accordance with changes in wages, salaries, material and distribution costs for deliveries occuring after conclusion of the contract.

§ 5 Set-Off and Rights of Retention
The customer may only set-off counterclaims which are uncontested or declared legally valid. The customer is only entitled to exercise a right of retention to the extent that customer's counterclaim is based on the same contractual relationship.

§ 6 Delivery Period
(1) The prerequisite for the adherence to the delivery period stated by us is the timely and proper fulfillment of customer's obligations. KOWOTEST GmbH reserves the right to defense of non-performance.
(2) In case customer defaults in acceptance or violates any other duties of contractual cooperation, KOWOTEST GmbH shall be entitled to claim compensation for the damage incurred including any additional expenses. KOWOTEST GmbH reserves the right to assert further claims. Insofar as the aforementioned conditions apply, the risk of accidental loss or accidental deterioration of the purchased goods passes to the customer as soon as customer defaults in acceptance or defaults in payment.
(3) Other statutory claims and right of the customer ensuing from delays in delivery remain unaffected.

§ 7 Dispatch and Transfer of Risk
In case the purchased goods are dispatched upon request by the customer, the risk of accidental loss or accidental damage passes to the customer as soon as the goods are dispatched but no later than the purchased goods leave our warehouse. This applies regardless of whether the goods are shipped from the place of fulfillment and regardless of who bears the shipping costs incurred.

§ 8 Retention of Title
(1) Title and property in the goods shall not pass to the customer until KOWOTEST GmbH has received payment in full for all goods delivered to customer under the delivery contract. This also applies to future contracts between KOWOTEST GmbH and its customers even if no explicit reference is made to the terms and conditions. In case of breach of contract by the customer, KOWOTEST GmbH is entitled to retake the goods.
(2) Customer is obliged to treat pruchased goods with due care until ownership has been transferred. In particular customer undertakes to insure purchased goods to their full replacement value against damage by fire, water and theft. Until transfer of ownership, customer must immediately inform KOWOTEST GmbH in writing in the event of attachment, seizure or any other third party involvement. In case the third party is not in a position to reimburse KOWOTEST GmbH for the court and out-of-court legal costs incurred due to legal action pursuant to section 771 ZPO, the customer shall be liable for the loss incurred by us.
(3) Customer shall be entitled to resell purchased goods subject to retention of title in regular business transactions; customer assigns to KOWOTEST GmbH all claims for payment amounting to invoice sum (including VAT) such as due customer from resale to his customer or a third party irrespective of whether the purchased goods have been processed or not. Notwithstanding KOWOTEST GmbH's right to collect direct payment, customer shall remain authorised to receive payment for assigend claims. However, KOWOTEST GmbH will not undertake to collect payment arising from such claims provided that customer meets his payment obligations from the proceeds collected, does not default in payment and provided in particular that no application to open insolvency proceedings has been submitted and that payments continue to be made.
(4) The processing or reworking of purchased goods by the customer shall be deemed to take place on behalf of KOWOTEST GmbH. In this case, the expectant rights of the customer to the purchased goods/reworked items shall continue. In case the processing or reworking involves goods that do not belong to to KOWOTEST GmbH, KOWOTEST GmbH shall gain co-title to the new product in ratio of the value of the purchased goods (total invoice amount including VAT) relative to the value of the other processed items at the time of processing/reworking. This also applies in the event that customer combines purchased goods with other products. In the event that the combination of goods is such that goods purchased by the customer are deemed to be the main item, it is herewith agreed that customer will tranfer co-title to the new product proportionally to KOWOTEST GmbH and that Customer shall safeguard the new product in which KOWOTEST GmbH has co-title with customary due diligence.

§ 9 Warranty, Notice of Defects, Recourse/Manufacturer's Recourse
(1) Warranty claims of the customer are conditional on proper fulfilment of customer's obligation to duly inspect purchsed goods and to notify KOWOTEST GmbH of any defects pursuant to section 377 German Commercial Code (HGB).
(2) Defects must be reported in writing within 8 days of delivery of purchased goods.
(3) If within such a period it is proven to KOWOTEST GmbH's reasonable satisfaction that the defective or non-conforming goods were already defective or non-conforming at transfer of risk, despite due care, skill and diligence exercised by KOWOTEST GmbH, such goods shall at KOWOTEST GmbH's option be repaired or replaced. KOWOTEST GmbH must be accorded the opporunity of subsequent remedy within a reasonable period of time. Notwithstanding any of the aforesaid, statutory recourse claims shall remain unaffacted.
(4) In the event that subsequent remedy fails, Customer can rescind the contract or demand appropriate reduction in the puchase price - irrespective of any other claims for damages.
(5) KOWOTEST GmbH shall not be liable for negligible deviations from agreed specifications, minor impairment of servicability, natural wear and tear and/or damage incurred after passing of risk as a result of incorrect or negligible handling, excessive use, the use of unsuitable operating equipment, insufficient maintenance or external influences that have not been provided for in the contract. KOWOTEST GmbH shall also not be liable for damages incurred due to unapproved changes and/or modifications performed by the buyer or a third party.
(6) Customer cannot claim compensation for expenses incurred from subsequent remedy, including but not limited to costs for shipping, transport, labour, material and follow-up costs.
(7) Recourse claims of the customer against KOWOTEST GmbH are only admissable insofar as the customer has not entered any agreement that exceeds statutory warranty claims.

§ 10 Miscellaneous
(1) This contract and all legal relations between the parties is subject to the law of the Federal Republic of Germany, to the exclusion of the United nations Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of fulfillment and sole jurisdiction for all disputes between KOWOTEST GmbH and the customer Langenfeld unless otherwise stipulated in the order confirmation.
(3) All agreements concluded between KOWOTEST GmbH and the customer for the purpose of fulfilling this contract are set forth in writing in this contract.
(4) In the event of individual provisions of this contract being or becoming ineffective or unenforceable or in the event that contract contain a gap this shall not affect the validity of the contract as a whole. In place of the ineffective or unenforceable provision, the parties hereto shall agree on an effective or enforceable provision which in its economic effect comes closest to the ineffective or unenforceable provision or fills the gap.