Terms of Service
§ 1 validity
GENERAL TERMS AND CONDITIONS OF THE KNOW-HOW GMBH CO. KG (“Know-How”) General terms and conditions of business and delivery
1. All deliveries and services from Know-How take place exclusively on the basis of the following general terms and conditions ("GTC").
2. The applicability of general terms and conditions of the contractual partner (“purchaser”) is excluded. Regulations deviating from these conditions, whether verbal, in writing, in person or by e-mail, in particular in the general terms and conditions of the customer, only apply in the case of written confirmation by Know-How. This also applies if Know-How carries out the delivery without reservation in the knowledge of conflicting or deviating terms and conditions of the customer, without again contradicting the conflicting or deviating conditions of the customer.
§ 2 Conclusion of contract, order confirmation
1. The offers from Know-How are non-binding. Know-how is only bound to your offers if they are expressly designated as binding. Otherwise they are considered an invitation to submit offers. In such cases, a contract must be confirmed in writing by Know-How.
2. The written order confirmation from Know-How is decisive for the scope of the delivery. If Know-How delivers goods manufactured by third parties, order confirmations for Know-How are made subject to self-delivery.
3. Information, brochures and advertising statements of any kind, in particular descriptions, images, drawings, samples, information on quality, condition, composition, performance, consumption and usability, dimensions and weights of the contractual goods, as well as verbal ancillary agreements and assurances, too of the employees and representatives of Know-How are non-binding and require written confirmation of Know-How to be legally valid.
4. Minor deviations from the product information are considered approved, provided they are not unreasonable for the customer.
§ 3 delivery and transfer of risk
1. Specified delivery times are only approximate agreed guide times, unless they are expressly designated as binding in our order confirmation. Know-How is entitled to deliver before a specified delivery date.
2. If a binding delivery deadline is not met, the customer is only entitled to withdraw from the contract if a reasonable grace period set by him is not met. A grace period of four weeks is considered appropriate for delivery by air freight, seven weeks for sea freight in all other cases at least two weeks, beginning with the expiry of the binding delivery period. The above only applies to standard goods and parts.
3. In the case of any delivery delay caused by slight negligence, the claim for damages according to § 286 BGB is limited to a maximum of 5% of the total price of the products whose delivery Know-How is delayed.
4. Know-How is entitled to make partial deliveries insofar as this is economically reasonable for the contractual partner. Even in the case of partial deliveries, the price for the goods delivered is due for payment upon delivery and receipt of the invoice.
5. The risk is transferred to the purchaser at the latest upon delivery to the forwarding agent or another transport person. This also applies in the event that, as an exception, Know-How pays the shipping costs in accordance with a separate agreement. If there are no specific instructions from the customer, it is up to Know-How to select a suitable freight forwarder.
§ 4 prices and terms of payment
1. The agreed prices are net prices plus the respective statutory value added tax for sea freight from the port of Hamburg, air freight from the airport in all other cases from Hirschau. In addition, there are costs for packaging, assembly, installation, training, assembly work or other ancillary services, which are carried out at the prices valid at the time of the work.
2. Know-How is entitled to demand advance payments from the customer at any time.
3. Unless otherwise agreed, the invoices from Know-How are due for payment within 30 days without any deductions. In the case of repairs and services, the invoices from Know-How are due for payment within eight days without any deductions.
4. The customer is in default if he does not pay after a reminder from Know-How, which occurs after the end of the service period in the event of non-payment. Irrespective of this, the customer is in default if he does not make a payment date specified in the contract in accordance with the calendar. The legal regulation, according to which the customer is automatically in default even 30 (thirty) days after receipt of an invoice, remains unaffected.
5. In the event of default in payment by the customer, Know-How is entitled, without prejudice to its other or further rights, to pay interest at a rate of 5% above the applicable base rate according to Section 1 of the Discount Rate Transition Act (DÜG) of June 9, 1998 desire. However, the customer is permitted to prove that no damage has occurred to know-how or that the damage caused by know-how is significantly lower than the default interest listed above.
6. If the customer is in arrears with payments from a contract, Know-How has the right to withhold the delivery of goods to the customer until all claims have been met in full. In this case, Know-How is also entitled to terminate the entire contract by giving written notice (withdrawal) to the customer. Upon termination of the contract, all liabilities that the customer has towards Know-How become due and payable immediately. Know-How is released from its contractual obligation to supply the customer with goods.
7. Insofar as payment by installments has been approved in writing, the remaining claim shall be due for immediate repayment if the customer is in arrears with an installment for more than a month or does not pay the installments in full and / or on time for the third time if he is responsible for this delay Has.
8. Offsetting or exercising the right of retention due to any counterclaims of the customer that are disputed by us and have not been legally established is excluded. The customer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
§ 5 Warranty
1. Know-how guarantees that the goods delivered are free from manufacturing defects when used normally and operated in accordance with the contract. The scope of the warranty is described as follows: If a material defect occurs within six months (or, if applicable, within a period specified in the product information description, if this is longer than six months) after the first delivery date, know-how at his discretion, he is entitled to repair the defective item or to deliver a replacement.
2. Deviations in processing, design and material as well as in the printing in color, in the status and in the result can occur due to product and production conditions. Dimensional deviations of up to 5% can be given for technical reasons; these are approved by the customer and do not constitute a warranty case or cause for complaint for the entire order. Slight color deviations within a delivery are production-related and must be accepted by the customer. In the case of identical repeat orders, dimensional and / or color deviations from previous series in terms of printing technology and material cannot be ruled out and also do not constitute a warranty case. Short and / or over-quantity deliveries of up to 10% are considered approved and do not constitute a reason for complaint.
3. The customer must notify Know-How in writing of obvious defects immediately, but no later than one week after receipt of the delivery. Other defects, which cannot be discovered within this period even with careful examination, must be reported to Know-How in writing immediately after their discovery.
4. After the final failure or if the repair or replacement delivery is impossible within a reasonable period of time, the customer is entitled to demand a reduction in the purchase price (reduction) or cancellation of the contract (rescission). Further claims of the customer due to the lack of guaranteed properties remain unaffected.
5. The customer should independently check the usability of the respective product. Sections 377, 378 of the German Commercial Code (HGB) apply to mutual commercial transactions. The guarantee does not include the elimination of errors caused by external influences or operating errors. There are no warranty claims for goods and parts that are subject to natural wear and tear. Warranty claims do not exist if the customer does not follow operating or maintenance instructions, or if the customer or a third party not authorized to do so intervened in the goods or made changes to them, or if consumables were used that do not meet the specifications of the goods. Furthermore, warranty claims do not exist for damage caused by the operation of the goods together with devices or programs that are not compatible with the goods, unless Know-How has expressly promised the compatibility in writing.
6. Further warranty claims by the customer are excluded.
§ 6 Limitations of Liability (Exclusion and Limitation of Liability)
1. Except in the case of a breach of an essential contractual obligation or a cardinal obligation in a way that endangers the purpose of the contract, Know-How is not liable for damage caused by slight negligence.
2. In the case of a slightly negligent breach of an essential contractual obligation, or in the case of a grossly negligent breach by simple vicarious agents (i.e. non-executive employees or organs), the liability of Know-How is limited to the damage typical for the contract and foreseeable at the time the contract was concluded.
3. Know-How is not liable for indirect damage, consequential damage or loss of profit if the intentional or grossly negligent breach of duties by employees or agents who are not organs or executives of Know-How, or the breach of essential contractual obligations was grossly negligent or willful.
4. Warranty claims of the customer expire at the latest after two years (if the customer is a company: after one year) from the time at which the customer becomes aware of the damage, or regardless of this knowledge, at the latest after three years from the date of damaging event. This does not apply in cases of tortious warranty claims based on malice or injury to life, limb or health of persons.
5. Except in cases of liability under the Product Liability Act, for initial impossibility or for the lack of a guaranteed property, the above limitations of liability apply to all claims for damages regardless of their legal basis.
6. The above limitations of liability also apply in the event of any claims for damages by the customer against employees or agents of Know-How.
§ 7 retention of title
1. Know-How retains ownership of the goods until the purchase price has been paid in full, as well as all other payment claims due at the time the contract is concluded from the ongoing business relationship with the customer or companies affiliated with him.
2. Know-how authorizes the customer and companies affiliated with him to dispose of the goods in the ordinary course of business. However, he already now assigns to Know-How all claims in the amount of the final invoice amount (including VAT) that arise from the resale to his customers or third parties, regardless of whether the delivery item has been resold without or after processing. The customer remains authorized to collect this claim even after the assignment. The authority of Know-How to collect the claim itself remains unaffected by this. Know-How undertakes, however, not to collect the claim as long as the customer fulfills his payment obligations from the proceeds received, the financial situation of the customer does not deteriorate significantly, the customer is not in default of payment and, in particular, no application has been made to open insolvency proceedings or insolvency is present. If this is the case, however, or if there is any other important reason, Know-How can demand that the customer informs Know-How of the assigned claims and their debtors, provides all information required for collection, hands over the associated documents and provides the debtors ( Notifying third parties of the assignment. This advance assignment includes the acquired claim as well as ordered securities and any surrogate claims.
Other dispositions of the goods are not permitted and require compensation.
3. If the customer is in default of payment, Know-How is entitled to take back the goods subject to retention of title after unsuccessfully setting a grace period of two weeks. Such a measure does not mean a withdrawal from the contract, so that the claims of know-how remain in the previous scope. The withdrawal from the contract remains unaffected.
4. The customer is obliged to point out the rights of know-how in the event of seizures by third parties and to notify Know-How immediately. If the third party is unable to reimburse Know-How for the judicial and extrajudicial costs of a lawsuit in accordance with Section 771 of the German Code of Civil Procedure, the customer is liable for the expenses incurred by the know-how.
5. The customer is obliged to treat the delivery item with care, in particular to insure it adequately at its replacement value against fire, water and theft damage at its own expense. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
§ 8 Force Majeure
1.Delays in delivery and performance due to force majeure and due to unforeseeable, inevitable and serious events for which Know-How is not responsible, but which make the service impossible or delay it - such as subsequent material procurement difficulties, operational disruptions, strikes, legal lockouts, A shortage of personnel, a lack of raw materials and energy, a lack of means of transport, official orders, etc. - entitle know-how - even with binding deadlines and dates - to postpone the delivery or service for the duration of the hindrance. This also applies if the delay occurs with upstream suppliers or their sub-suppliers. Know-How undertakes to carefully select its sub-suppliers.
2. In the event of a delay in delivery or service due to force majeure, Know-How will notify the customer of the beginning and end of the underlying events. If the hindrance lasts longer than three months, the customer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part that has not yet been fulfilled. In the event of a hindrance lasting more than three months, Know-How can also withdraw from the contract if this appears appropriate taking into account the interests of the customer. If such a partial delivery is no longer of interest to the customer, taking into account the legitimate interests of Know-How, he can withdraw from the contract as a whole.
§ 9 Exemption from Liability Third Party Rights
1. Know How cannot comprehensively check and guarantee that the goods ordered by the customer violate the trademark rights of third parties, industrial property rights and / or copyrights of third parties. The examination of the rights of third parties is the sole responsibility of the purchaser, who expressly releases Know How from any liability by placing the order. Claims of any kind and resulting costs from the violation of third party rights cannot be asserted against Know How, but only against the customer. As far as a violation of the rights of third parties is recognizable for Know How, Know How will inform the customer of this immediately.
§10 deterioration of assets of the customer, contract termination
1. If the customer becomes insolvent after the conclusion of the contract, if insolvency proceedings are applied for against his assets or if circumstances arise after the conclusion of the contract that significantly impair the customer's creditworthiness, Know-How can refuse delivery until the consideration has been given or the customer provides security for she has done. The same applies if know-how of the facts supporting the essential deterioration in assets of the customer only become known through no fault after the conclusion of the contract, even if they were already available before the conclusion of the contract.
2. If the customer does not effect the consideration within a reasonable time and if he does not provide any security for his consideration within a reasonable time, Know-How is entitled to withdraw from the contract or to demand compensation for non-performance. However, the customer is permitted to prove that no damage has occurred to know-how or that the damage is significantly less.
§ 11 final provisions
1. The place of performance for deliveries and services and payment of the fee is Hirschau.
2. The customer may only transfer rights to know-how to third parties after prior written agreement.
3. Contracts between Know-How and the customer are subject to German law to the exclusion of international private law. The UN Convention on Contracts for the International Sale of Goods (CISG) does not apply.
4. The exclusive place of jurisdiction for all disputes arising directly and indirectly from the contractual relationship as well as action on bills of exchange and checks is the headquarters of Know-How. This does not apply to the judicial dunning procedure. Know-How reserves the right to sue the customer at his general place of jurisdiction.
5. Should individual provisions of the contract and / or the GTC be wholly or partially ineffective or should the contract contain a loophole, the validity of the remaining provisions or parts of such provisions shall remain unaffected. The wholly or partially ineffective provision is to be replaced by a corresponding agreement that comes as close as possible to the economic content of the ineffective provision or the ineffective part.