1. general
The following terms and conditions shall apply to all offers and orders placed with us and shall be recognized as binding by our customers without exception by placing an order and accepting the order confirmation. We expressly object to all conflicting terms and conditions of our customers. Amendments and collateral agreements shall only be valid if they are expressly confirmed by us in writing.

2 . Prices
Prices are quoted in euros ex works Unna, excluding packaging, insurance, freight, customs duties and excluding all other costs, plus VAT. VAT at the respective statutory rate. The customer alone shall bear any exchange rate risk that may arise.

Deliveries with a net value of less than € 1,500 shall be made free of charge within the Federal Republic of Germany – mainland – or free German border, unloaded and subject to a flat-rate freight charge of € 45. Deliveries of goods over € 1.500,– are generally free domicile within the FRG – mainland -, unloaded. Sea and air freight costs will be charged by prior arrangement.

Our prices are based on the wage and material prices valid at the time the contract is concluded. Unless otherwise agreed, we shall be entitled to adjust the prices to wage and salary increases and increases in the price of materials within a period of four months if there are more than four months between the conclusion of the contract and the agreed delivery date.

3. offer
Our offers are always subject to change. Conclusions and agreements shall only become binding upon our written confirmation. Plans, drafts and drawings remain our property and may not be reproduced or made accessible to third parties. All technical and dimensional information is non-binding. We reserve the right to make minor design and dimensional changes and to use substitute materials. All technical details and dimensions in the quotations and drawings are non-binding. These details are not guaranteed characteristics but descriptions or identifications of our delivery or service.

4. delivery and performance
Our written order confirmation is decisive for the scope of the delivery and service. Deviating agreements must be made in writing. Subsequent changes and additions to the order as well as additional services notified to us after conclusion of the contract shall entitle us to a reasonable additional charge. The customer is not entitled to assign claims or rights against us arising from the business relationship to third parties or to transfer them to third parties without our consent. If assembly is required, the buyer shall bear all costs. If the systems are installed by our fitters, all construction work must have progressed to such an extent that the installation can be carried out without hindrance before the start of installation. All supply lines must be laid on site up to the system in accordance with our specifications. The connections themselves must be made on site during installation. All police regulations must be complied with during construction work. The electrical connections must be made in accordance with the VDE guidelines. Any fixed installation price agreed shall only apply to the one-off dispatch of a fitter on condition that the installation can be carried out immediately after the arrival of the fitter and without interruption. If assembly or commissioning is delayed due to circumstances on the construction site for which we are not responsible, the buyer shall bear all costs for waiting time and any additional travel required by our fitters. The assembly and completion dates stated by us are approximate dates and are not binding.

5. delivery time
The delivery period confirmed by us begins with the sending of the order confirmation. In the event of necessary approval by the customer, the delivery period shall only commence upon receipt of the approved documents. If an advance payment has been agreed, the delivery period shall not commence until payment has been received.

The delivery time is set so that it is likely to be met if production runs smoothly. If our delivery time is exceeded, the buyer must set us a reasonable grace period. He cannot reject partial deliveries on our part. Delivery times and, if applicable, assembly periods shall be extended to a reasonable extent if the buyer subsequently requests technical changes, in the event of force majeure and obstacles unforeseeable by us, irrespective of whether these occur in our factory or at our suppliers. These can be, for example, operational disruptions, strikes, lockouts and delays in the delivery of essential external parts or raw materials. Insofar as these events significantly change the economic significance or the content of the service or have a significant impact on our operations, as well as in the event of subsequent impossibility of performance, the contract shall be adjusted accordingly. If this is not economically justifiable, we are entitled to withdraw from the contract in whole or in part, excluding any claims for damages by the customer. We shall be deemed to have met the delivery deadlines when the goods have left the factory or readiness for dispatch has been notified. Should a delay in delivery be justified by the customer, we shall be entitled to issue the invoice on the actual delivery date and, if necessary, to charge storage fees amounting to 0.5% of the invoice amount for each month or part thereof, but not more than 5% of the invoice amount, unless higher costs are proven in the case of storage by third parties.

If the customer suffers damage due to a delay for which we are responsible, he shall be entitled, to the exclusion of further claims, to demand compensation for delay of a maximum of 5% of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay, against proof of the damage.

6. custom-made products
Custom-made products cannot be canceled, exchanged or returned. In the event of justified complaints, we are only obliged to remedy the defects, but not to make a replacement delivery.

7. right of withdrawal of the customer
With the exception of the cases regulated in these terms and conditions, the customer may withdraw from the contract if the entire delivery finally becomes impossible for us before the transfer of risk or if it becomes impossible for us to carry out part of the delivery and the partial delivery is demonstrably of no interest to the customer. Otherwise, he may demand an appropriate reduction in the purchase price. If a binding delivery date is not met for reasons for which we are responsible, the customer may withdraw from the contract if he has set us a reasonable grace period and this grace period has expired fruitlessly for reasons for which we are responsible. All further claims of the customer are excluded (see No. 11 Warranty). If no contractual partner is responsible for the provision of the service, we shall be entitled to a portion of the remuneration corresponding to the service provided.

8. shipment/transfer of risk
All risk shall pass to the buyer when the goods leave our factory or when the buyer has been notified that the goods are ready for dispatch. This applies both in the case of transportation by our own means of transport and in the case of carriage paid delivery, irrespective of whether we have undertaken the assembly. This also applies in the case of partial deliveries. Shipment shall be at the expense and risk of the buyer without responsibility for the most favorable shipment. Complaints about missing parts can only be considered if they are recorded immediately and in writing on the carrier’s accompanying documents when the consignment is accepted. The packaging cannot be taken back.

9. terms of payment
The term of payment is 30 days after the invoice date. If payment is made within 8 days of the invoice date, we grant a discount of 2%. A discount deduction from more recent invoices is not permitted as long as older invoices have not yet been paid. Bills of exchange are only accepted by prior agreement. Discounts and charges shall always be borne by the customer. In the event of late payment, interest shall be charged at a rate of 8% above the respective base interest rate. If the customer can prove that we have not incurred any loss at all or that our loss is significantly lower than the above-mentioned lump sum, the interest shall be reduced to the actual loss incurred. We shall not be obliged to make any further deliveries from a current order before full payment of invoices due, including any interest on arrears, without being able to be put in default of delivery for this reason. We are entitled to refuse performance if, after conclusion of the contract, we have reason to fear that we will not receive the customer’s payment in full and on time due to a circumstance that has arisen, unless the customer has paid in advance or provided sufficient security. Unrecognized counterclaims may not be offset by the customer, nor may payment be withheld for this reason. If the customer is an entrepreneur and is acting in the exercise of his commercial or independent professional activity when concluding the contract, his notification of defects affects neither the obligation to pay nor the due date. In addition, the customer, who is an entrepreneur and is acting in the exercise of his commercial or independent professional activity when concluding the contract, waives the exercise of a right to refuse performance or right of retention, unless we or our legal representatives or vicarious agents are guilty of gross breach of contract or the customer’s counterclaims on which the right to refuse performance or right of retention is based are undisputed, have been legally established or are ready for a decision. All deferrals granted by us, including those tacitly granted through the acceptance of bills of exchange, may be revoked by us at any time. We are entitled to charge a processing fee of 15% of the net value of the goods if the goods are returned due to an incorrect order or if they are returned without reason. Exceptions to this are incorrect deliveries on our part. In the event of judicial or extrajudicial composition proceedings, insolvency or default of payment and in the event of judicial recovery, the discounts granted shall lapse.

10. reservation of title
The goods shall remain our property until full payment of all claims arising from deliveries of goods and services from the entire business relationship, including ancillary claims, claims for damages and redemption of checks and bills of exchange. The retention of title shall remain in force even if individual claims of the seller are included in a current account and the balance is drawn and recognized.
The buyer is obliged to store the goods delivered subject to retention of title with the care of a prudent businessman and to insure them against fire and destruction in the amount of their full value. The buyer shall store the reserved goods for the seller free of charge. He assigns to the seller his claims for compensation to which he is entitled against insurance companies or other parties liable for compensation arising from damage of the above-mentioned type, up to the invoice amount of the goods. If the goods are mixed or combined with other items, this is done on behalf of the seller without the seller being obliged to do so. By combining, mixing or processing, the buyer does not acquire ownership in accordance with the provisions of the German Civil Code. §§ 947 ff BGB to the new item. In these cases, the buyer hereby assigns to us his ownership or co-ownership rights to the mixed stocks or to the new items. The buyer may only sell or process our property in the ordinary course of business and provided that his financial circumstances do not deteriorate in the long term. The buyer assigns to us all claims against third parties, including future claims, arising from the resale of the goods owned by us as soon as the order is placed. At our request, the purchaser is obliged to notify the third party purchaser of the assignment for payment to us. The customer is only authorized to collect the claims assigned by way of security in the ordinary course of business and only revocably. The revocation may only take place if the customer violates his contractual obligations, does not meet his payment obligations to us, is insolvent or over-indebted, insolvency proceedings have been applied for against his assets, in the event of a check or bill protest or in the event of a seizure. In the aforementioned cases, the right to resell or process the goods shall also lapse. The customer is obliged to inform us of the name or company of his customers and their address if the direct debit authorization is revoked. Notwithstanding our right of revocation, the customer’s authorization to process the delivered goods, to resell them and to collect the claims assigned by way of security shall expire if the customer becomes insolvent or overindebted and if the customer applies for the opening of insolvency proceedings against his assets or if this has been applied for by third parties. If the customer is in arrears with his payment obligations, we are entitled to demand the return of the reserved goods. The assertion of the retention of title shall only be deemed a withdrawal from the contract if we expressly declare this in writing. We may satisfy our claims from the returned goods subject to retention of title by selling them on the open market. We undertake to release the securities to which we are entitled at the customer’s request to the extent that the value of our securities exceeds the claims to be secured by more than 20%. We shall be responsible for selecting the collateral to be released. The customer may neither pledge the goods nor assign them as security. Access by third parties to the goods delivered under retention of title or assigned claims must be reported to us immediately in writing, handing over the documents necessary for an intervention. Intervention and litigation costs shall be borne internally by the customer. The customer is generally permitted, after informing us, to engage in factoring for its outstanding receivables. If the buyer has sold the receivables within the framework of genuine factoring, the buyer assigns to us the receivables from the factor that take their place and forwards the proceeds of the sale to us in proportion to the value of our rights to the goods. The buyer is obliged to disclose the assignment to the factor if he is more than 10 days overdue with the payment of an invoice or if his financial circumstances deteriorate significantly. If a central settlement office is involved in the business transaction between us and the buyer, which assumes the del credere, the seller transfers the ownership upon shipment of the goods to the central settlement office with the condition precedent of payment of the purchase price by the central settlement office. The buyer is only released upon payment by the central payer.

11. warranty
Complaints and notices of defects shall only be considered if they are notified to us in writing within 3 days of receipt of the goods (for restrictions, see No. 8 Dispatch/Transfer of Risk); hidden defects must be notified in writing immediately after they become apparent (§ 377 HGB [German Commercial Code]). The further processing and installation of delivered goods shall be deemed a waiver of a notice of defects, unless the defect was not recognizable at that time. The warranty for deliveries of brand-new products is limited to a period of 12 months after delivery of the goods and to subsequent performance. Unless it is a purchase of consumer goods within the meaning of the law, claims for material defects for used items expire after 6 months. We shall determine the type of subsequent performance, i.e. free rectification of the defects notified by the customer in good time within a reasonable period or replacement delivery free of defects. We are entitled to refuse subsequent performance if it involves disproportionate costs for us. In this case, a reduction of the agreed purchase price may be demanded. After several failed attempts at rectification or replacement delivery, the buyer may also demand either a reduction in payment or rescission of the contract. The rejected goods may only be returned to us after agreement. Defective items for which we have provided a replacement shall become our property.
The warranty only covers defects that are demonstrably attributable to a circumstance prior to the transfer of risk, in particular to faulty design, low-quality material or defective workmanship. Liability for defects shall lapse in the event of defects caused by unsuitable or improper use, incorrect operation, natural wear and tear, unsuitable or inadequate operating materials, improper handling, storage and care, light sources, glass, etc. and in the event of defects caused by incorrect assembly or commissioning by the customer or third parties. Also excluded from our warranty are all damages caused by defective construction work, improper connection, chemical and electrical influences, fluctuating energy supply, excessive use, inspections or maintenance not carried out regularly, as well as non-compliance with our operating and maintenance instructions. Modifications and remedies of any kind without our consent, repairs by service companies not authorized by us and the installation of spare parts other than original Kohlhoff spare parts exclude any liability on our part. We accept no liability for any indirect damage when commissioning the systems and instructing the personnel.
For essential third-party products within our delivery, our liability shall be limited to the assignment of the warranty claims to which we are entitled against our suppliers. In addition to the aforementioned warranty claims, all further claims of the customer (see also No. 7 Customer’s right of withdrawal), in particular for personal injury, consequential costs, for damage to goods that are not the subject of the contract or for loss of profit, etc., are excluded. This exclusion of liability applies in particular to any claims for damages unless they are based on intent, gross negligence on our part or on the part of our legal representatives and vicarious agents.
Claims for damages arising from impossibility of performance, from delay, from positive breach of contract, from culpa in contrahendo and from tort are excluded unless they are based on intent or gross negligence on the part of the supplier or its executive employees. In the event of a negligent breach of duty by us, our liability shall be limited to the foreseeable damage typical of the contract. If the typical contractual risk of damage is covered by liability insurance, our liability and the liability of our legal representatives or vicarious agents shall be limited to the benefits provided by the liability insurance. This also applies to the breach of material contractual obligations. This only applies if the customer is an entrepreneur and is acting in his commercial activity when concluding the purchase contract.

12. place of fulfillment and jurisdiction
The place of performance for all rights and obligations arising from the transactions is Unna. The contractual relationship shall be governed by German law. The law on the conclusion of international sales contracts does not apply. The place of jurisdiction arising from the business relationship with registered traders is Unna.

13. other
Should one or more of the aforementioned points be or become null and void, this shall not affect the validity of the remaining provisions and the entire legal transaction. The buyer’s rights under the contract are not transferable.

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