1. Scope of applicability

a) The deliveries and services of KREMPEL GMBH, AUGUST KREMPEL SÖHNE GMBH & CO. KG and KREMPEL GMBH & Co. Pressspanwerk KG (“KREMPEL”) are rendered based solely on the following General Terms and Conditions of Sale (“GTC”) as amended. The GTC of KREMPEL are available online at no charge at www.krempel.com at any time, can be stored and printed by the customer in a reproducible form.

b) These GTC shall apply only if the customer is an entrepreneur (§ 14 of the Civil Code, the “BGB”), a legal entity under public law, or an investment fund organized under public law.

c) These GTC shall apply, insofar as nothing else has been stipulated, as a master agreement in the version applicable as of the date of the order or in any event most recently communicated to the customer in the text-form and for all future transactions governing the sale and/or the delivery of movable items with the same customer, without KREMPEL having to repeatedly refer to these GTC in each individual instance.

d) Explicit objection is raised herewith to any contravening terms and conditions
 – including, but not limited to, terms and conditions of purchasing of the customers of KREMPEL. Deviations from these GTC shall not – even if KREMPEL is cognizant thereof – become part of the agreement, unless KREMPEL consents to their applicability explicitly in writing. Such deviations shall then apply only to the individual case in question. The written-form shall be required even if KREMPEL makes the delivery without reservation and in cognizance of the customer’s aforementioned terms and conditions.

e) The GTC shall apply to transactions for both deliveries and finishing.

f) In its data protection policy for customers, KREMPEL shall provide advice regarding the processing of personal data.

 

2. Order, entering into the agreement, nature and scope of the Delivery, and written-form

a) The offers from KREMPEL shall be non-binding. In the absence of any special agreement, a contract shall be formed upon receipt of the order confirmation transmitted from KREMPEL in writing (also if submitted by fax or email) at the customer. If KREMPEL does not confirm the order, then the contract shall nevertheless be formed by no later than upon fulfillment of the order.

b) The order confirmation by KREMPEL shall be exclusively dispositive for the nature and scope of the delivery by KREMPEL. If no such order confirmation was issued but KREMPEL has made an offer bound to a specific time frame and the customer has accepted this offer in a timely manner, then the scope of the delivery shall be determined by said offer.

c) No ancillary spoken agreements exist upon contract formation. Any individual stipulations explicitly made between the customer and KREMPEL in the individual instance (including ancillary agreements, restatements, and amendments) shall take precedence over these GTC in each case, if they came into existence after contract formation. A written contractual agreement or – if such an agreement is not present, subject to adducing of contrary evidence by the customer – KREMPEL’s order confirmation to the customer in accordance with item 2.a) of these GTC shall dispositively govern the content of any such individual agreements.

d) For all deliveries, KREMPEL shall be entitled to the right to excess or reduced performance within a range of 10%. KREMPEL shall also have the right to excess or reduced performances for deliveries due to on complaints of defects, substituted services, and in similar cases.

e) For on-call orders, KREMPEL shall have the right to procure the material for the entire order and to immediately produce the entirety of the ordered volume. Accordingly, any desired modifications from the customer can no longer be considered after the issuance of the order, unless a modification right was explicitly stipulated in writing upon contract formation.

 

3. Description of performance

a) The material quality of the subject of delivery and service is exhaustively described by the explicitly stipulated performance features (e.g., specifications, markings, release, other information). No properties shall be owed other than the material quality explicitly stipulated for the deliveries and services. Warranty extending beyond the warranty for this stipulation as to material quality for a specific purpose of use or specific suitability, duration of use, or durability after passage of risk shall assumed only to the extent that such is explicitly stipulated in writing at contract formation. Apart from this, the customer exclusively shall bear the suitability and usage risks. KREMPEL shall reserve the right to industry-typical or technically unavoidable deviations from physical and chemical values, including colors, recipes, processes, and usages of raw materials.

b) Deviations in size shall be subject to the standard regulatory provision applicable to the respective product.

 

4. Delivery and Delivery Time

a) Delivery dates shall be – even if a delivery date has been stipulated with the customer – merely approximate and non-binding, unless the delivery date has been expressly stipulated as fixed, i.e., if it was determined in writing upon contract formation that after the elapsing of said date, the customer no longer has any interest whatsoever in the delivery.

b) A confirmed delivery date shall be subject to correct, complete, and timely supply by the subcontracted suppliers of KREMPEL, provided that KREMPEL has entered into a commensurate coverage transaction, neither KREMPEL nor our subcontracted suppliers are at fault, and KREMPEL has no procurement obligation in the specific instance.

c) To the extent not otherwise stipulated, KREMPEL shall deliver ex works or ex stock. The delivery time is kept if the deliverable has left the works of KREMPEL prior to the lapse of the delivery time, or if KREMPEL has informed the customer that the deliverable is ready for shipment. The delivery term shall not commence as long as the customer has not properly fulfilled its obligations, e.g., as the provision of technical data and documents, approvals, as well as a stipulated down payment or handing over of a payment guarantee.

d) KREMPEL shall also have the right to make partial deliveries in the scope reasonable for the customer.

e) The return of defect-free sold shall, as a rule, be precluded.

f)If more detailed specification of the form, size, or similar properties of the delivery are reserved to the customer, then the customer shall have to assert its right by no later than four (4) weeks prior to the commencement of production. This provision shall apply mutatis mutandis to on-call orders.

g) If goods are kept warehoused and ready in storage by KREMPEL for the customer’s exclusive disposal or sold for production without provisions for the shipping thereof, then the customer shall accept the goods within one (1) week after announcement of completion of the goods.

 

5. Shipping and passage of risk

a) The risk of accidental destruction and of accidental deterioration of the goods shall pass to the customer by no later than upon their transfer

b) The risk shall pass to the customer, if KREMPEL has delivered the goods to the forwarder, carrier, or other person or facility specified for executing the shipment.

c) If the shipment is delayed due to circumstances for which the customer is at fault, then risk shall pass to the customer as of the date of notification of readiness for shipment.

d) If shipment is delayed upon the customer’s request, then KREMPEL shall have the right to dispose of the deliverable in another manner after the setting and fruitless expiration of a reasonable grace period for acceptance of the delivery, and to furnish the customer with a reasonably extended deadline.

 

6. Packaging

a) The customer shall bear the packaging costs. KREMPEL shall bill all packaging at cost. Selection of the type of packaging shall be reserved to KREMPEL.

b) For domestic transactions, KREMPEL shall take transport packaging back at no charge at the operating site stated in the delivery note (place of performance).

c) KREMPEL shall not assume any disposal costs for packaging used in transport.

 

7. Ownership proviso

a) All deliverables shall remain the property of the respective KREMPEL contracting partner until full payment of all receivables – regardless of legal grounds – arising from the business connection between the customer and its respective KREMPEL contracting partner.

b) To the extent that the law of the country in which the proviso goods are located requires special provisions to observe an effective ownership proviso, the customer shall ensure compliance with such provisions. If delivery subject to an ownership proviso is not possible under the law of the country in which the proviso goods are located, then the customer shall ensure that KREMPEL is granted the respective customary suppliers’ liens in the proviso goods. In the latter instance, as long as no verification is made to KREMPEL indicating that the ownership proviso or customary suppliers’ lien was effectively granted to KREMPEL, then KREMPEL shall not be obligated to deliver.

c) The customer shall be permitted to process the goods and to resell them in the ordinary course of business, taking into consideration the following provisions:

d) By processing the proviso goods, the customer processing said goods for KREMPEL shall not acquire sole ownership in the new item as contemplated by § 950 BGB. If the proviso goods are processed, mixed, or commingled with other items belonging to the customer or to a third party, then KREMPEL shall acquire joint title in the new object at the ratio of the value billed for the proviso goods or the value invoiced for the other processed objects. If the processing, mixing, or commingling deleteriously affects the title of KREMPEL in the proviso goods under the law of the country in which it takes place, then the customer shall be obligated (i) to procure a joint title in the new product for KREMPEL in the amount of the value of the proviso goods and under observation of all provisions applicable to such changes to the rights within the scope of its disposal rights, and (ii) to particularly ensure proper registration of the rights of KREMPEL to the extent at which such is required for the effectiveness of the rank of such rights vis-à-vis any third parties.

aa) The customer hereby assigns to KREMPEL on a pro rata basis any claims arising from resale of the proviso goods, including all secondary rights, to the extent that the goods are processed, mixed, or commingled and KREMPEL has acquired joint title in them in the amount of the value billed. In this event, KREMPEL shall be entitled to a fractional amount of the respective purchasing price claim corresponding to the ratio between the value billed for the proviso goods and the value billed for the item. KREMPEL hereby accepts these assignments. If – pursuant to the national law applicable to the customer’s receivable arising from resale – the observation of particular rules and regulations is necessary for the assignment’s effectiveness vis-à-vis third parties, including, but not limited to, with regard to registration and/or reporting, then the customer shall ensure observation with these provisions.

bb) The customer’s to processing and resale authorization shall extinguish if the customer ceases to make payments or institutes bankruptcy proceedings.

cc) The customer shall have the right to collect the claims assigned to KREMPEL, until revocation of this authorization. The collection authorization shall extinguish even without any explicit revocation, if the customer ceases to make payments. The customer shall be obligated to provide KREMPEL upon request with a precise schedule of the claims to which it is entitled, including the names and addresses of the customers, the amount of the individual claims, invoice dates, etc., to report assignments made to its customers, and to provide KREMPEL with all information required to assert the assigned claims.

e) If the customer does not conduct itself in accordance with the contract, including, but not limited to, entering into default with its payment obligations, or if the customer breaches its duty to treat the deliverable with care, then KREMPEL shall have the right to rescind contract after a warning and the setting of a grace period, and to take back the deliverable. In this event, the customer shall be obligated to release the item after declaration of rescission by KREMPEL.

f) The ownership proviso shall continue to exist even if individual claims are included in a current account and the balance is drawn and acknowledged.  KREMPEL shall be entitled to the ownership proviso not only for the acknowledged and abstract final balance, but also for the individual items entered into the current account.

g) KREMPEL hereby releases any fully paid deliverables if the security from the ownership proviso exceeds the claim to be secured by more than 20%.

h) The customer shall be allowed neither to pledge nor to transfer the deliverable as security. The customer shall inform KREMPEL without undue delay in event of attachment or seizure or other disposal by third parties.

i) The customer shall retain the proviso goods for KREMPEL. The customer shall insure said goods against damage from fire, theft, and water. The customer hereby assigns its compensation claims against insurance companies or other parties obligated to reimburse it to KREMPEL, in the amount of the respective claim by KREMPEL. KREMPEL hereby accepts the assignment.

 

8. Prices and payment

a) To the extent not otherwise stipulated in writing upon contract formation, the KREMPEL prices shall be understood to be in EURO, ex works of supplier, plus sales and value-added tax, and shipping and packaging costs (cf. on this item 6 of the GTC). The decision on the shipping route and shipping method shall be left to KREMPEL. To the extent that KREMPEL is not obligated to transport the goods, KREMPEL shall not insure them against transport damage. The costs of transportation insurance, if expressly desired, shall be borne by the customer.

b) In the event of partial deliveries, each delivery can be billed separately.

c) In the absence of a special agreement, the payment shall be made within fourteen (14) days with 2% early-payment discount or strictly net within thirty (30) days, each from the date of the invoice.

d) KREMPEL shall not be obligated to accept bills of exchange, checks, and other payment promises. Such shall be accepted only upon written agreement and always on account of performance. Bills of exchange shall only be accepted by way of collateral, subject to the possibility of discounting. In other words, they shall be deemed payment only after redemption and shall be credited only subject to reservations.

e) The date of receipt of the payment shall be the day on which the amount is on hand at KREMPEL or is credited to the bank account of KREMPEL. In the event of default of payment by the customer, KREMPEL shall have the right to charge interest in the amount of 9% per annum above the base interest rate for the duration of the default, plus a lump sum as contemplated by § 288 para. 4 BGB in the amount of EUR 40.00. It shall be possible for KREMPEL to accept deductions for the early-payment discount only if the customer is entirely free of default with its payments to KREMPEL. Such shall be without prejudice to the right of KREMPEL to assert additional compensatory damages claims.

f) For deliveries to customers headquartered within the European Union, but outside of the Federal Republic of Germany, the customer shall provide KREMPEL with the arrival confirmation without prompting and at once after receipt of the goods. If it does not cooperate in this, KREMPEL shall demand reimbursement for any resulting subsequent payments of sales and value-added tax from the customer as damages.

 

9. Offsetting, retention right, uncertainty defense, and assignment

a) Offsetting against counterclaims – to the extent that such are not undisputed or judicially ascertained – shall not be permissible.

b) The retention of payments due to any claims of the customer against any of the companies of the KREMPEL group shall be precluded, unless the retention right is based on customer claims arising from the same contractual relationship with KREMPEL.

c) If KREMPEL becomes cognizant of any material deterioration of the customer’s asset situation, or if the customer enters into default of payment, then KREMPEL shall have the right to demand immediate settlement of all unpaid billing statements, including those not yet mature, and to demand cash payment prior to completion of any pending deliveries. The customer shall have the right to avert the demand for early payment by providing appropriate security. If the demanded payment is not made and no security is paid, then KREMPEL shall have the right to refuse performance of the agreement or to rescind the contract after setting a reasonable deadline.

d) The customer shall have the right to assign or transfer claims only with the advance consent of KREMPEL.

 

10. Default and impossibility

a) Should KREMPEL enter into default with its delivery duty due to slight negligence, then for each commenced week of default the customer shall be able to claim damages in the amount of 0.5% of the net order value of the individual order, but totaling a maximum of 5% of the value of that part of the overall delivery which as a consequence of the default cannot be contractually used, or cannot be contractually used in a timely manner. This damages amount is to be set at a greater or lesser amount if KREMPEL substantiates a lower figure or if the customer substantiates a higher figure.

b) Notwithstanding any right of rescission of the customer in the event of defects [see item 14 b GTC], the customer shall be able, in the event performance is impossible for KREMPEL or in the event of default, to rescind from the contract only in the event of a breach of duty for which KREMPEL is responsible.

c) In the event of default, rescission, or compensatory damages in lieu of performance shall also require that the customer has previously established for KREMPEL, in writing, a reasonable notice period of at least four (4) weeks for rendering the contractually owed performance and, in so doing, has expressly clarified that in the event of non-compliance with this notice period, it shall rescind the contract and/or assert a claim for compensatory damages. After the expiration of this notice period, the customer shall be obligated, pursuant to KREMPEL’s request, to clarify whether the customer will further insist upon the delivery or will assert a claim for compensatory damages or will rescind the contract.

d) Such a grace period in accordance with item 10.c) GTC shall not be required if KREMPEL seriously and definitively refuses to perform the contractually owed service or if there are any special circumstances that justify immediate rescission after consideration of the mutual interests of both parties.

e) The customer shall not be able to rescind, either prior to the onset of maturity of the service or in the event of a merely slight breach of duty by KREMPEL. Finally, rescission shall also be precluded if the customer is solely or predominantly responsible for the circumstances that would empower it to rescind, or if a circumstance not due to the fault of KREMPEL occurs during the customer’s default of acceptance.

f) Item 15 of these GTC shall apply to any compensatory damages claims.

 

11. Default of Acceptance

If the customer does not accept the goods within one (1) week of the announcement of completion and the goods are provided at the place of performance or does not designate any forwarder to collect the goods from the place of performance during this time, then the customer shall be in default of acceptance. In this event, KREMPEL shall have the right to take the goods into its works storage for the customer’s account or to store them at a forwarder’s site. The goods shall then be billed. KREMPEL shall store them with the diligence of an ordinary and prudent merchant and insure them at the customer’s expense. Placement in storage shall fulfill the delivery obligation of KREMPEL.

 

12. Force majeure

Events of force majeure, as well as any other circumstances, including, but not limited to, labor disputes, unrest, war, or terrorist actions having unforeseeable consequences for performance of the services, shall release KREMPEL from its performance obligations for the duration of the impairment and in the scope of its effect, to the extent that KREMPEL is not at fault for these events. Such shall apply even if KREMPEL is in default. Such shall also apply if such force majeure renders timely performance of accepted orders impossible. Therefore, KREMPEL shall not assume any procurement risk. KREMPEL shall have the right to rescind from the agreement, to the extent that KREMPEL does not receive the deliverable despite having previously entered into a commensurate purchasing agreement with a supplier; such shall be without prejudice to the responsibility of KREMPEL for malice or negligence in accordance with the provision of item 15 of these GTC. If these circumstances continue for longer than three (3) months, then KREMPEL shall further have the right to rescind the contract without any damages claims arising on the customer’s side. KREMPEL shall inform the customer without undue delay about the lack of timely availability of the deliverable, and if KREMPEL declares its rescission, shall reimburse the corresponding compensation, if paid already, without undue delay.

 

13. Notice of defects

a) Obvious defects, i.e., defects of title or material, excess, short, or incorrect deliveries, and deviations from the material quality or durability of the delivery or service guaranteed by KREMPEL (defects) shall have to be asserted in writing without undue delay, but by no later than within fourteen (14) days of delivery of the goods to the destination. The notice shall have to include specific information on the individual defects claimed. Any defects not discernible during the usual inspection upon receipt shall also have to be asserted by the customer in writing without undue delay, but by no later than fourteen (14) days after discovery.

b) The customer shall meet its examination and notification obligations in accordance with §§ 377, 438 of the Commercial Code, “HGB”. KREMPEL does not waive objection of delayed notice of defects. Any warranty claims against KREMPEL for defects unreported or reported late shall be precluded.

 

14. Claims for defects

a) If the defect is ascertained only after commencement of installation, despite observation of the obligation in accordance with item 13 of these GTC and § 377 HGB, then the defect shall be remedied (improvement) or a substitute delivery shall be effected, at the choice of KREMPEL, insofar as the customer substantiates that the defect was already present at the time of passage of the risk. Upon coordination, the customer shall provide KREMPEL with the requisite time and opportunity for improvement or substitute delivery. The place of performance for subsequent performance shall be at the site of delivery. This shall not apply if KREMPEL selects improvement as subsequent performance and the deliverable to be improved cannot be transported to KREMPEL.

b)The customer shall be able, in lieu of subsequent improvement or subsequent delivery, to assert the statutorily intended remedies of rescission and mitigation, as well as claims for compensatory damages or reimbursement of expenditures, the latter, however, only within the scope of item 15 of these GTC, under the following circumstances: (A) in the event of failed subsequent performance, i.e., KREMPEL lets a grace period reasonably set for it to elapse, two attempts at subsequent performance were performed or a single attempt at subsequent performance was performed (two attempts in the event of deviating defects) and the defect present could not be thereby remedied, KREMPEL unjustifiably refuses or unreasonably delays a necessary subsequent improvement or substitute delivery, or if for other reasons it is unreasonable to expect subsequent improvement from the customer; (B) if the prerequisites of §§ 281 para. 2 or § 323 para. 2 BGB are met or KREMPEL justly refuses subsequent performance due to disproportionality (cf. item 14 f of these GTC). In the event of merely minor defects, the customer shall not have a right of rescission.

c) For third-party products, the warranty of KREMPEL shall be limited to assignment of the claims KREMPEL has against the supplier of the third-party product. If the customer cannot enforce its warranty rights against the supplier of the third-party product, then KREMPEL shall provide a warranty within the scope of these GTC.

d) Any parts replaced within the scope of warranty shall become the property of KREMPEL.

e) Apart from such, KREMPEL shall not be obligated to perform improvement or to make replacement deliveries if these are possible only at disproportional costs. KREMPEL shall be able to refuse any form of subsequent performance if both the expected costs for improvement and those for subsequent delivery exceed the purchasing price of the contractually owed deliverable by 100%.

f) If the complaint of defects was unjustified, then KREMPEL shall have the right to demand reimbursement from the customer for the expenses incurred by KREMPEL, unless the absence of defect was not discernible by the customer.

g) KREMPEL shall assume no warranty in the event of only insignificant deviations from the stipulated material quality, in the event of insignificant impairment of usability, or for damage caused in particular, but not solely, by the following: (A) unsuitable, improper, or defective use or storage by the purchaser or by third parties (B) natural wear, defective or negligent treatment – including, but not limited to, excessive strain, other materials, chemical or electrical influences. In the event of deviations of quality, size, and strength, the following shall apply:

aa) A defect shall not be present if the average value, in terms of the overall delivery, is within the specified tolerance, individual measurements do not evince any deviations in excess of twice the permitted tolerance or by more than 10% of the agreed value, or the parts in the delivery deviating from the agreed value or tolerance do not exceed 5% of the overall delivery.

bb) To the extent that KREMPEL has given a storage period guarantee, KREMPEL shall be liable to ensure that no storage-related damage occurs during the term of this guarantee. Such shall apply only if the goods were stored properly and in accordance with the specifications of KREMPEL.

 

15. Damages

a) To the extent that nothing divergent is stipulated in these provisions, any claims by the customer for compensation for damage of any kind shall be precluded, including claims for reimbursement for expenses and claims for replacement of indirect damage, such as lost profit. This shall specifically apply to claims due to any breach of the contractual obligations and sounding in tort. The preclusion of liability shall apply even if KREMPEL has engaged assistants or vicarious agents.

b) In deviation from item 15 a) of these GTC, KREMPEL shall be liable, regardless of legal grounds – even if KREMPEL used executives or assistants or vicarious agents – only if:

(aa) KREMPEL is at fault for gross negligence or malice,

(bb) KREMPEL has maliciously concealed a defect or assumed a warranty for the properties of the deliverables,

(cc) KREMPEL culpably causes damage to life, limb, or health, and if

(dd) KREMPEL has violated cardinal obligations, i.e., for material breaches of duty jeopardizing the attainment of the contractual purpose, or

(ii) for the breach of obligations, the fulfillment of which is a sine qua non for the proper execution of the contract and upon compliance with which the customer may ordinarily rely (“Cardinal Obligations”).

c) However, in the event of item 15 b) dd) of these GTC – breach of Cardinal Obligations – in the event of merely slight negligence, the liability of KREMPEL shall be limited to compensation for foreseeable, typically occurring damage.

d) This exclusion of liability shall not apply to claims arising from the Product Liability Act). The above provision shall not include any change to the burden of proof to the detriment of the customer.

 

16. Limitation of claims due to defects

a) In the absence of any agreements to the contrary, the limitation period of § 438 para. 1 no. 3 BGB and § 445b para. 1 BGB for all claims for defects shall be twelve (12) months from handover of the deliverables. The tolling of the expiration of § 445b para. 2 shall end after three (3) years.

b) In deviation from this, the statutory limitation periods within the scope of application of § 438 para. 1 no. 3 BGB or § 445b paras. 1 and 2 shall also apply:

- to damage arising from injury to life, limb, or health caused by a defect for which KREMPEL is at fault,

- to defects based on malicious or grossly negligent breach of obligations by KREMPEL,

- to defects maliciously concealed,

- to warranties (§§ 444 BGB), and to a consumer agreement, if the final agreement in the delivery chain, as contemplated by § 445a BGB, is a consumer agreement
(as contemplated by § 474 BGB).

c) Such shall be without prejudice to any claims arising from the statutory provisions on the tolling of the expiration, tolling, and reversion of the notice periods.

 

17. Applicable law, place of performance, venue, incoterms

a) The agreement shall be subject solely to the law of the Federal Republic of Germany. The United Nations Convention on Contracts of International Sale of Goods dated 11 April 1980 shall be precluded.

b) The place of performance for payments by the customer and for deliveries by KREMPEL shall be the KREMPEL site responsible for the respective delivery and set forth on the order confirmation (Vaihingen/Enz, Kuppenheim, Waldshut, Thalheim or Zwönitz).

c) The exclusive venue for any claims arising from the business relationships, including, but not limited to, for our deliveries, shall be the courts at the main seat of KREMPEL (Vaihingen/Enz). This venue shall also apply in the event of disputes concerning the establishment and validity of the contractual relationship. The plaintiff shall, however, also have the right to bring suit against the defendant in the court competent for its seat.

d) The INCOTERMS as amended shall apply.

 

Status: January 2019