General Terms & Conditions
This General Terms & Conditions is an automatically translated version of our German AGB to provide added value to English-speaking users of this website. In case of legal action, please refer to the German version.
- The construction and supply contracts of Kaiser Ingenieurbüro GmbH, hereinafter referred to as KIB, are concluded exclusively on the basis of the following general terms and conditions.
- Any terms and conditions of the customer to the contrary shall only be effective if confirmed in writing by KIB. The same applies to amendments and supplements to these General Terms and Conditions. Verbal promises and collateral agreements require written confirmation by KIB.
II. Offer and conclusion of contract
- Offer and conclusion of contract
- The contract is not concluded until KIB has confirmed the order in writing, whereby the last offer made by KIB to the customer or the order confirmation shall apply.
- Unless expressly designated as binding, weights, dimensions, illustrations, drawings, costs, etc. are approximate values only. Cost estimates and other documents of the offer shall remain the property of KIB.
- KIB reserves the copyright to the offer; the offer and parts thereof may only be made accessible to third parties with the express consent of KIB.
- If the contract is not concluded, all documents of the offer as well as all copies made shall be returned to KIB by the offeree.
III. Prices and terms of payment
- The prices are based on the last offer made to the customer or the order confirmation. They are net prices ex KIB's registered office. Value-added tax and other statutory levies in the country of delivery as well as packaging, transport costs and insurance shall be charged separately to the Purchaser.
- All prices are guide prices unless a fixed price has been expressly agreed.
- Payments are due 10 days after invoicing without any deduction. Unless otherwise agreed, the invoice shall be issued on the basis of the offer 1/3 after conclusion of the contract, 1/3 after notification of readiness for dispatch or after request for acceptance. The remaining amount shall be invoiced by means of a final invoice based on the hours actually worked and costs incurred.
- If the payment dates are exceeded, KIB is entitled to interest on arrears at a rate of 8% above the respective base rate of the European Central Bank without further reminder. This shall not affect the right to assert any further damage caused by default.
- KIB is entitled, despite contrary provisions of the customer, to initially set off payments against older debts. If costs and interest have already been incurred due to default, KIB shall be entitled to first set off the payments against the costs, then against the interest and finally against the main services.
- Offsetting or the assertion of a right of retention due to counterclaims not recognised by KIB or not legally established is excluded.
- As far as information or circumstances indicate a bad economic situation of the customer, KIB can at any time optionally demand delivery step by step against cash payment or advance performance. All outstanding claims, including those for which KIB has accepted bills of exchange or agreed payment by instalments, shall become due immediately.
IV. Cancellation and postponement of delivery dates
- If the customer cancels confirmed orders in whole or in part with KIB's consent through no fault of KIB, KIB may assert the offer price of the order without separate proof. Any expenses saved as a result of the cancellation and any other use of the labour shall be credited to the customer.
- KIB reserves the right to claim further damages.
- An agreement on the postponement of delivery dates must be made in writing. If the delivery is delayed at the request of the customer in agreement with KIB, the costs incurred as a result shall be invoiced to the customer. The payment obligations according to III. 3. of these General Terms and Conditions shall remain in force. KIB shall be entitled, after setting and fruitless expiry of a reasonable period of grace, to otherwise dispose of the delivery item, to supply it or to withdraw from the contract.
- If the Purchaser suffers damage as a result of a delay in delivery for which KIB is responsible, it shall be entitled, to the exclusion of further claims, to demand compensation for the delay. The amount of compensation is 0.5% per week and is limited to 5% of the total value of the delivery.
- Delivery periods and dates are binding insofar as they have been expressly agreed in writing.
- Delivery periods shall commence upon receipt of the first payment by KIB, but not prior to the provision of the documents to be procured by the customer and clarification of all details of the execution.
- Force majeure, riots, strikes, lock-outs, etc., as well as significant operational disruptions through no fault of KIB's subcontractors shall result in a reasonable extension of the delivery period.
- KIB expressly reserves the right to partial deliveries and their invoicing.
- Agreed delivery dates shall be deemed to have been met if KIB notifies the customer of readiness for dispatch, acceptance or delivery or if the delivery item has left the factory.
- The fulfilment of the customer's contractual obligations is a prerequisite for KIB's adherence to delivery times.
VI. Acceptance and transfer of risk
- An acceptance takes place only with express contractual agreement. With the written request for acceptance, agreed delivery dates shall be deemed to have been complied with.
- The customer is obliged to accept the contractual product as far as it is not afflicted with considerable defects. The acceptance period shall be 2 weeks after receipt of the request for acceptance.
- If a defect is discovered at the acceptance date, the customer must set KIB a reasonable period of grace in writing to remedy the defect.
- The risk shall pass to the customer upon handover of the delivery or partial delivery to the carrier as well as upon acceptance or 2 weeks after receipt of the request for acceptance. This shall also apply if KIB has assumed additional services such as delivery, installation, etc.
- If dispatch or acceptance is delayed or rendered impossible through no fault of KIB due to circumstances for which the Purchaser is responsible, the risk shall pass to the Purchaser upon dispatch of the notification of readiness for dispatch or acceptance. The customer is liable for all damages and additional costs incurred.
VII. Retention of title
- The delivery item shall remain the property of KIB until all claims, including future claims, arising from this contract and from the entire business relationship with the customer have been fulfilled.
- The purchaser is entitled to pass on the reserved goods in the ordinary course of business under reservation of title, but not to pledge them or transfer them by way of security in any form. The customer is obliged to ensure that the rights of KIB are taken into account by third parties. In the event of access by third parties to the goods subject to retention of title, the customer must draw attention to the ownership of KIB and inform KIB immediately.
- In case of processing or transformation of the reserved goods with other materials and products, KIB acquires co-ownership which is proportionate to the invoice value of the processed reserved goods in relation to the remaining goods. Processing of the goods subject to retention of title shall be carried out for KIB as manufacturer within the meaning of § 950 BGB (German Civil Code) without obligating KIB. KIB shall acquire co-ownership of the processed goods within the meaning of the above provisions.
- In case of default of payment or financial collapse of the purchaser, KIB may enter the business premises of the purchaser to assert the retention of title and take possession of the reserved goods.
- The assertion of the retention of title or the seizure of the delivery item by KIB is not deemed to be a withdrawal from the contract if the customer is a merchant.
- The customer assigns in advance to KIB his claims from the transfer of the reserved goods in the respective invoice value of the product at the time of the order. KIB is entitled or obliged to collect such claims in the ordinary course of business. Upon request, KIB shall name the assigned claims. In order to secure its payment claims, KIB may disclose this assignment at any time.
- If the value of the securities exceeds KIB's payment claims by more than 25 %, KIB shall release the excess part of the securities at the request of the customer.
- If the value of the securities exceeds KIB's payment claims by more than 25 %, KIB shall release the excess part of the securities at the request of the customer.
- Items delivered for test and demonstration purposes remain the property of KIB. They may only be used by the customer on the basis of a separate agreement with KIB.
- KIB is entitled to insure the delivery item subject to retention of title against theft, breakage, fire, water and other damage at the expense of the customer, unless the customer has demonstrably taken out the insurance himself.
- KIB guarantees that the products are free of defects. Production, development and design are carried out with due care and to the best of our knowledge. Any defects found must be reported to KIB immediately in writing.
- KIB guarantees that the products on offer are described in a generally correct manner and that they are basically usable within this framework. The technical data and descriptions in the offer alone do not represent any assurance of specific properties. An assurance of properties in the legal sense is only given if the respective information has been confirmed in writing by KIB.
- The warranty claims against KIB expire 12 months after delivery or service. They are not transferable. Irrespective of this, KIB passes on any further warranty and guarantee promises made by the manufacturer/subcontractor to the purchaser in full, without being responsible for them itself.
- In the event of a warranty claim, KIB shall choose between repair or replacement. In the event of rectification, KIB shall bear the costs for spare parts and wages. In order to carry out the rectification, KIB shall make available to the Purchaser existing aids and assistants of the Purchaser to an appropriate extent.
- The right of the customer to assert claims arising from liability for defects shall in all cases expire 6 months from the time of the timely notification of defect, but at the earliest upon expiry of the warranty period. If dispatch, acceptance or installation is delayed through no fault of KIB, the liability expires at the latest 12 months after the transfer of risk.
- The warranty does not apply if the product is improperly installed, maintained, changed or exposed to environmental conditions by the customer or a third party which do not comply with the installation requirements, unless the customer can prove that these circumstances are not the cause of the notified defect. The same applies to unsuitable or improper use, wear and tear, changes and interventions in the machine which have not been approved by KIB, faulty or negligent handling, unsuitable operating materials, replacement materials, chemical, electrochemical and electrical influences.
- The liability for defects does not apply if the customer does not give KIB the necessary time and opportunity to repair or replace the goods. Only in cases where operational safety is endangered, in the event of disproportionately high damage or in the event of delay in remedying the defect by KIB shall the customer have the right to remedy the defect himself or have it remedied by a third party and demand reimbursement of the costs by KIB. In such cases, KIB must be contacted immediately.
- If the inspection of the notice of defect reveals that there is no warranty claim, the costs will be invoiced to the customer at the valid KIB service prices.
IX. Construction, development and planning orders
- Construction, development, planning or documentation orders are carried out by KIB at the customer's premises if necessary. Execution shall be in accordance with the customer's objectives specified in the order.
- The order acceptance by KIB does not guarantee success. The customer bears the risk of feasibility. KIB shall execute the orders with the greatest possible care within the bounds of its possibilities.
- The documents of the purchaser handed over to KIB for the execution of the order shall be made accessible exclusively to the persons entrusted with the execution; knowledge of the business affairs of the purchaser shall be kept secret. After completion of the order, all documents made available shall be handed over to the customer.
- A fixed price can be agreed for complete, self-contained orders. Otherwise III. of these conditions applies, whereby the target price is calculated according to the presumed expenditure of work and the expected result.
- KIB reserves the copyright and ownership rights to all documents and information passed on to the customer within the scope of the order until the price has been paid in full.
- KIB reserves the copyright and ownership rights to all documents and information passed on to the customer within the scope of the order until the price has been paid in full. KIB reserves the copyright and ownership rights to all documents and information passed on to the customer within the scope of the order until the price has been paid in full. KIB reserves the copyright and ownership rights to all documents and information passed on to the customer within the scope of the order.
X. Rights of withdrawal
- The customer may withdraw from the contract if the entire performance becomes finally impossible for KIB before the transfer of risk or if a case of incapacity exists. The same right of the purchaser arises in the event of KIB's delay in performance and the expiry of a reasonable period of grace in writing with the threat of rejection by the purchaser.
- KIB is entitled to a right of withdrawal as a result of unforeseeable events which considerably change the economic significance, the content of the service or have a considerable effect on the operation.
- KIB may withdraw from the contract if the design or planning objective specified by the customer proves to be economically unattainable or if fulfilment of the objective is impossible. KIB will invoice the customer for the actual costs incurred to date, concurrently with the publication of the available results.
- KIB's liability shall be limited to such damage as could reasonably have been expected to occur at the time the contract was concluded.
- If incorrect or inaccurate information provided by the customer leads to incorrect advice by KIB employees, liability for any resulting damage is excluded. The same applies if the contractual objective cannot be achieved due to incomplete or unclear information provided by the client.
- In the case of extensive construction, development, planning or documentation orders in accordance with IX. of these terms and conditions, KIB takes out a separate project liability insurance policy, the contractual amount of which covers the typical damage risk of the order. The customer/client shall be informed separately of the conclusion of such a project liability insurance policy. In such cases KIB's liability is limited to the amount corresponding to KIB's claim against the insurer under the project liability insurance.
- The liability of KIB for intentional or grossly negligent conduct and in accordance with the provisions of the Product Liability Act remains unaffected by the aforementioned limitations of liability. The personal liability of KIB employees who have acted as vicarious agents of KIB is excluded.
XII. General provisions
- The customer is not entitled to assign his claims against KIB.
- The place of performance is Endingen. The exclusive place of jurisdiction for all present and future claims arising from the business relationship with fully qualified merchants, including claims based on bills of exchange and cheques, shall be the registered office of KIB. The same place of jurisdiction shall apply if the customer does not have a general place of jurisdiction in Germany.
- The statutory provisions applicable in the Federal Republic of Germany shall apply to these General Terms and Conditions. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
- Should one or more provisions of these General Terms and Conditions be or become ineffective, or should this contract text contain a loophole, the parties to the contract shall replace or supplement the ineffective or incomplete provision with appropriate provisions that correspond to the economic purpose of the intended provision. The validity of the remaining provisions shall remain unaffected thereby.
Status as of 1/2004