General Terms and Conditions (GTCs)
Kraemer Elektronik GmbH
1. Subject Matter of Agreement
1.1 All deliveries and services and payments in connection with the transfer of equipment by Kraemer Elektronik GmbH (hereinafter referred to as “Kraemer Elektronik”) to the Buyer, shall be based exclusively on these terms and conditions.
1.2 In the event of different or supplementary terms and conditions, Kraemer Elektronik must give its explicit written consent in order for them to be effective. All orders must be confirmed in writing by Kraemer Elektronik in order to be effective. If Kraemer Elektronik warrants that equipment will have certain characteristics, then such a warranty is binding if it has been made in writing by Kraemer Elektronik. This writing requirement can only be waived by an agreement to this effect in writing.
1.3 General Terms and Conditions of the Customer do not become part of the contract, even if these are included with quotation requests, orders, declarations of acceptance, etc. and even if these are not objected to by Kraemer Elektronik.
1.4 The condition for the delivery of respective supplies and services is the conclusion of an effective written offer and acceptance entered into between the Customer and Kraemer Elektronik.
2.1 All offers made by Kraemer Elektronik are subject to change, unless expressly stated otherwise in the offer. The conclusion of contracts and other agreements only first becomes binding upon written confirmation by Kraemer Elektronik. Kraemer Elektronik reserves the right to make minor technical changes to the offer, even after acceptance of the offer by the Customer.
2.2 Unless Kraemer Elektronik expressly grants permission therefor, the Customer shall not make the offer provided to it available to third parties either in whole or in part, or as an edited version.
2.3 The order shall be carried out based on the specifications set out in the models, illustrations, descriptions in print and other documents of Kraemer Elektronik. If changes to products occur as a result of ongoing development thereof, then Kraemer Elektronik may deliver the technically modified design. In so doing, Kraemer Elektronik is entitled to deviate from illustrations/descriptions, colors, as well as measurements, weight, quality and other information, provided that they are reasonable for the Buyer, taking into account the interest of both parties.
2.4 The expiration of the delivery period shall be interrupted for as long as the completion or delivery of the product is delayed by circumstances for which the Buyer is responsible or other unforeseen obstacles. In addition to force majeure, the following hindrances shall be taken into account: labor disputes, lack of employees, energy, or materials, traffic disruptions, breakdown in the supply of preliminary materials, disruption of operations by water, fire, breakdown of machinery, official decrees or other circumstances, regardless of whether these occur to Kraemer Elektronik or its supplier. The delivery of the goods is timely, if they have been dispatched for shipment before the deadline or the Buyer has been given notification that they are ready to pick up before this time.
2.5 Kraemer Elektronik is entitled to make partial deliveries, for which separate payment may be required.
2.6 If the Buyer is in default in payment for a previous delivery, Kraemer Elektronik is entitled to withhold deliveries without being obligated to provide compensation for any damages incurred thereby.
2.7 The minimum order value is EUR 50.00. If the value of the order is lower, a surcharge of 25.- euros shall be charged.
3. Delivery and Scope of Performance, Shipping and Packaging
3.1 Delivery and the scope of performance are set out in detail in the contract.
3.2 If the Buyer does not provide written instructions in a timely fashion, Kraemer Elektronik shall select the route and method of delivery in the exercise of due care customary in the trade. No liability shall be assumed for employing the cheapest and quickest manner of shipping.
3.3 The Buyer is responsible for the following inspection, acceptance and notification duties: The shipped goods shall be inspected upon receipt. In the event of external damage or loss, the Buyer is to undertake an ascertainment of the facts with the carrier and to promptly notify Kraemer Elektronik thereof. Kraemer Elektronik is to be given written notification of other apparent objections (defects, incorrect delivery and incorrect quantities) within two weeks of receipt of the goods.
3.4 The packaging material shall be charged to the Buyer by Kraemer Elektronik at cost and shall not be taken back by Kraemer Elektronik.
4. Deadlines, Time Periods
4.1 All deadlines/time periods are subject to change unless the delivery and performance deadlines or time periods have been designated in writing as binding by the Customer and Kraemer Elektronik.
4.2 If failure to comply with the time period for deliveries or services is demonstrably attributable to obstacles for which Kraemer Elektronik is not responsible, the time period shall be extended accordingly.
5. Remuneration and Due Dates
5.1 Remuneration and ancillary costs do not include the statutory sales tax.
5.2 Remuneration shall be due upon delivery. Invoices shall be due within 30 days of the invoice date without deductions. Late payments shall be subject to annual interest at eight (8) percent above the base rate of the European Central Bank. This shall not affect additional claims for damages.
5.3 Deliveries and services shall be calculated in EURO. Prices shall be ex works Darmstadt plus transport costs.
5.4 Payment shall be made in cash, by bank transfer or by check, free of all charges, to Kraemer Elektronik. Payment shall take effect once Kraemer Elektronik is able to definitively dispose of the amount. Bills of exchange, checks and other means of payment shall only be accepted on account of performance. Discount and bank charges are to be borne by the Buyer.
5.5 Deductions are not permitted, even if residual debts still remain from previous deliveries. The offered prices do not include any installation costs. If the Buyer wishes Kraemer Elektronik to install equipment the Buyer will be charged for the costs incurred thereby.
6. Defects in Quality and Defects in Title
6.1 Definition of defects
6.1.1 Defect in quality
A defect in quality exists if the equipment does not have the characteristics agreed in the contract
or is not suitable for the contractually agreed use.
6.1.2 Defect in title
Kraemer Elektronik and/or third parties hold the intellectual property rights to the equipment. A defect of title exists if the Customer cannot be granted a necessary right for the contractually intended use.
6.2 Limitation period
Claims for defects in quality and/or in title lapse two years after delivery of the equipment, spare parts and service parts. This shall not apply in the case of 6.11.
6.3 Modifications to equipment by the Customer
If the Customer modifies the equipment itself or has it modified by a third party, claims due to defects in quality or in title shall lapse unless the Customer can demonstrate that the errors that have occurred are not attributable to this fact and that error analysis and elimination by Kraemer Elektronik will not be impaired thereby.
6.4 Inspection and notification obligations
Following delivery of the equipment to the Customer, the Customer shall inspect both the equipment and the documentation thereto for completeness and the existence of any defects and shall promptly notify Kraemer Elektronik of any complaints in this regard. This obligation arises out of § 377 HGB (Handelsgesetzbuch = German Commercial Register). If the Customer violates this obligation, then the Customer is no longer entitled to the rights as described in the section below, for defects in quality that would have been discovered through a proper initial examination.
6.5 Notification of defects by the Customer
Any defects that occur shall be fully documented by the Customer for Kraemer Elektronik and notification thereof shall be sent to Kraemer Elektronik in writing as soon as possible after their discovery.
6.6 Subsequent performance
If Kraemer Elektronik receives notice of defects in accordance with Sections 6.4 and 6.5 , Kraemer Elektronik shall engage in subsequent improvement as follows: Kraemer Elektronik is entitled to engage in subsequent performance either by subsequent improvement or replacement, as it so chooses. Within a reasonable period of time the Customer can request replacement or repair, if any other form of subsequent performance would be unreasonable for it.
The elimination of defects by Kraemer Elektronik can take place over the telephone or in writing or through electronic instructions to the Customer for undertaking such measures. Any additional expenses incurred by Kraemer Elektronik, because the Customer has placed the equipment at another location as that put forth by the Customer above, are to be borne by the Customer. If the Customer gives notice of a defect that actually does not exist, then in regard to the costs incurred by analysis and other work, Kraemer Elektronik is entitled to charge the Customer based on the actual price list for services of Kraemer Elektronik if the Customer provided notification of this defect based on intent or gross negligence.
6.7 Reduction or rescission
If Kraemer Elektronik is unsuccessful in subsequent performance within a reasonable period of time that allows at least two attempts at subsequent improvement, the Customer is entitled to set Kraemer Elektronik a last, reasonable period of grace that allows at least two attempts for subsequent improvement. If Kraemer Elektronik is also not successful within this last period of grace, the Customer is entitled to seek a reduction in price or to rescind from the contract, as it so chooses.
It is no longer necessary for the Customer to wait for deadlines and set grace periods if it is no longer reasonable to expect the Customer to do so, in particular, if Kraemer Elektronik has finally and seriously refused to undertake subsequent performance.
Subsequent performance is already to be considered as to have finally proven ineffective after the second attempt at subsequent performance. Instead Kraemer Elektronik reserves the right to perform the number of post-fulfillment attempts during the grace period.
6.8 Claims for damages and reimbursement of expenses
In addition to rescission and reduction of the purchase price, in the event that Kraemer Elektronik has engaged in culpable behavior, the Customer can bring a claim for damages instead of seeking performance or reimbursement of expenses.
6.9 Limitation of claims for minor defects
The right to rescind and seek damages instead of seeking full performance exists only in the case of substantial defects.
6.10 Compensation for use in the event of rescission
In the event of legitimate rescission, Kraemer Elektronik is entitled to seek reasonable compensation for use by the Customer from the initial past use of the equipment up until the time of rescission. This compensation for use shall be determined after a five-year period of use of the equipment, whereby a reasonable deduction shall be provided based on the deterioration of the equipment due to the defect, which led to rescission.
6.11 Fraudulent misrepresentation/Guarantee
In the case of fraudulent misrepresentation and in the assumption of a guarantee on the part of Kraemer Elektronik, this shall not affect the statutory provisions for defects in quality and title.
The technical data, specifications, performance descriptions and promises concerning performance set out in this contract shall be understood exclusively as information concerning characteristics of the goods in the sense of § 434 Par. 1 Sentence 1 BGB (Bürgerliches Gesetzbuch = German Civil Code) and/or § 633 Par. 2 Sentence 1 BGB and not as an independent guarantee or warranty concerning characteristics or durability. Independent guarantee promises and guarantees as to characteristics of the goods or durability only exists in a legal sense when these have expressly been identified in writing as independent guarantees, guarantees as to the characteristics of the goods, or guarantees as to durability.
6.12 Measures in the event of suspected defects in title
In the event that a third party asserts claims against the Customer for the infringement of property rights by and or in regard to equipment, its designation or documentation, the Customer shall promptly inform Kraemer Elektronik to this effect and Kraemer Elektronik shall undertake defense against these claims to the extent possible. The Customer shall provide Kraemer Elektronik with all reasonable support in this respect. In particular, the Customer is to provide Kraemer Elektronik with all necessary information on the use of the equipment as far as possible in writing and is to provide the required documentation.
Insofar as third party rights are violated, Kraemer Elektronik is entitled to choose to undertake subsequent improvement itself, by which means it
a) Provides the Customer with sufficient rights of use for the purpose of this contract from the party disposing of said property rights, or
b) Replaces the equipment that violates these rights with software that does not violate any property rights if used in accordance with the contract, and which has no effect on function, or only effects that are acceptable to the Customer.
In all other respects, the provisions of Section 6 shall apply accordingly to defects in title.
6.13 Spare parts & service parts
The term “spare parts” refers only to original parts, which are indicated as such in the operating instructions and spare parts list for the equipment.
The term “service parts” refers only to the original parts specified as such in the service manual and service parts list for the equipment.
The liability of Kraemer Elektronik also applies to spare parts in the sense of 6.13.1.
However, this does not include installation and removal costs or other costs not included in the costs of the spare parts themselves.
Parts replaced or repaired by Kraemer Elektronik are warranted for a period of 1 year from the date of replacement or repair.
Availability of spare parts, service parts and accessories
The availability of all mechanical components is guaranteed for 10 years after discontinuation of the product. The availability of electronic components is guaranteed for 5 years after discontinuation of the product. Availability is subject to any adjustment in the supply of Kraemer electronics suppliers.
Liability shall not apply to defects or damages that have arisen due to improper commissioning, connection, use or handling.
This also applies to all demonstrable repair attempts carried out by unauthorized persons or by non-observance of the operating instructions/service manual.
Furthermore, this shall apply if the operating or maintenance instructions, in particular, as well as safety and warning instructions of Kraemer Elektronik, have not been observed, or if spare parts or service parts were used that do not conform to the original specifications. In such cases, no warranty claim is applicable.
In addition, any natural wear and tear in accordance with the DIN 31051/DIN-EN 13306 standard is excluded from the guarantee for all moving or rotating components or components subject to dynamic loads, including mechanically and electronically stressed components and seals. Damage caused by foreign particles (such as metals) is not covered by the guarantee if this is not demonstrably due to repair work by Kraemer Elektronik or by an authorized Kraemer Elektronik service partner, or if no original parts have been used.
7. Limitation of Liability
7.1 Scope of the provisions
Kraemer Elektronik shall be liable for damages regardless of the legal reasons thereof in an amount corresponding to the following provisions.
7.2 Intent and gross negligence
The liability of Kraemer Elektronik for damages that have been caused by intentional acts or through gross negligence on the part of Kraemer Elektronik itself or one of its statutory representatives or vicarious agents shall be unlimited in regard to amount.
7.3 Personal injuries
In the case of damage resulting in loss of life, bodily injury and impairment to health, the liability of Kraemer Elektronik or a statutory representative or vicarious agent thereof shall be unlimited in regard to amount.
7.4 Organizational fault/Guarantee
Liability for damages is also unlimited in amount when they are due to serious organizational fault on the part of Kraemer Elektronik, or if they are due to damage caused by the absence of characteristics guaranteed by Kraemer Elektronik.
7.5 Breach of essential contractual obligations
In the event of a breach of essential contractual obligations, if none of the cases set out in Sections 7.2 to 7.4 apply, the damage shall be limited to the foreseeable damage that is typical for the nature of the contract.
7.6 Exclusion of liability
Any further liability for damages is hereby excluded, in particular in regard to liability without fault.
7.7 German Product Liability Act
Liability under the Produkthaftungsgesetz (German Product Liability Act) shall remain unaffected.
7.8 Contributory negligence
If damage is attributable to a fault of Kraemer Elektronik, as well as to a fault on the part of the Customer, the Customer shall have its contributory negligence taken into account.
7.9 Loss of data
Kraemer Elektronik shall be liable for the loss of data only up to the amount that would be incurred to restore the data if stored correctly and regularly.
8. Maintenance of equipment
Kraemer Elektronik is willing to maintain the equipment on the basis of a service agreement.
9. Offsetting claims
The Customer can only offset uncontested or legally established claims against Kraemer Elektronik claims.
10. Retention of title
10.1 Kraemer Elektronik shall retain the title to the delivered goods until full payment of the purchase price, as well as the fulfillment of further claims arising out of the existing business relationship with the Buyer.
10.2 The Buyer shall designate all reserved property as the property of the Supplier and keep it separately.
10.3 The goods subject to retention of title shall not be pledged, appropriated for security or otherwise burdened with third party rights.
10.4 The Buyer is entitled to resell the goods and combine them with other movable items during the course of business. The Buyer shall ensure that the retention of title of Kraemer Elektronik is preserved.
10.5 The Seller is obligated to maintain the goods subject to retention of title in flawless condition and to insure them against usual risks. At the request of Kraemer Elektronik, the Buyer shall provide proof of insurance.
10.6 The Buyer shall report any damage to Kraemer Elektronik immediately. The Buyer shall already assign to Kraemer Elektronik any claims arising in its favor out of an instance of damage against an insurer or a third party. Kraemer Elektronik accepts the assignment.
10.7 In the case of default of payment and the establishment of a period of grace, as well as suspension of payment, the Buyer shall hand over the retained goods to Kraemer Elektronik. Any costs shall be borne by the Buyer. Kraemer Elektronik is entitled to sell the reserved goods at a reasonable price on the open market or to use them for its own purposes.
11. Data Protection
11.1 Kraemer Elektronik is entitled to process and store all relevant data about the Buyer for its own purposes. The personal data of the Buyer shall be used in compliance with the TDDSG (Teledienstdatenschutzgesetz = Teleservice Data Protection Act) and the BDSG (Bundesdatenschutzgesetz = German Federal Data Protection Act) to fulfill the sales contract.
11.2 In order to comply with the rights and obligations of the sales contract, Kraemer Elektronik is entitled to forward the data to a partner for fulfillment.
11.3 In addition, data may be transferred to Schufa (German credit investigation company) for the purpose of monitoring creditworthiness, and may also be transferred to other financial information services.
12. Modifications and Additions
12.1 Modifications and additions to this contract may only be agreed in writing. This also applies to changes to the requirement of the written form itself.
12.2 A confirmation letter of an oral agreement shall only be effective if this has been confirmed in writing by the receiving party to the contract
13. Applicable Law, Jurisdiction
13.1 This contract is subject to German law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
13.2 The court of jurisdiction shall be Darmstadt, Germany, for all disputes arising out of or in connection with this contract.
14. Invalidity of Provisions, Legal Gaps
If provisions of this contract are or prove to be invalid, or if there should prove to be gaps in this contract, then the validity of the remaining provisions remains unaffected. The statutory provisions are to apply instead of the invalid provisions.
Kraemer Elektronik GmbH
Commercial Register Darmstadt District Court HRB 3549
Sales Tax ID Number: VAT ID DE 151 021 190