General Terms and Conditions of Sale and Delivery of KVH Hartung GmbH
(hereinafter KVH) Status 04.01.2022
1. Scope of application / general
(1) The following terms and conditions shall apply only to entrepreneurs, legal entities under public law or a special fund under public law.
(2) Der Verkauf und die Lieferung erfolgt nur zu den nachstehenden Bedingungen. Anderweitige Vereinbarungen bedürfen zu ihrer Gültigkeit der schriftlichen Bestätigung durch KVH. Abweichende Geschäftsbedingungen des Kunden gelten auch ohne ausdrücklichen Widerspruch als abgelehnt, soweit sie von KVH nicht ausdrücklich schriftlich anerkannt werden.
(3) In the case of continuous business relations, these terms and conditions also apply to future transactions in which no express reference is made to them, provided that the customer has received them in connection with an order previously confirmed by KVH or it was and is otherwise reasonably possible for the customer to become aware of them.
(4) Should individual provisions be or become invalid, this shall not affect the remaining provisions of these General Terms and Conditions.
2. Offers
(1) Unless otherwise agreed in writing, offers and cost estimates from KVH are subject to confirmation.
(2) Documents, information, illustrations, drawings, weights, dimensions and performance data forming part of the quotation are only approximate unless they have been expressly designated in writing as binding. The customer’s knowledge of the technical, chemical and physical properties of the plastics offered, processed and/or supplied is assumed. If such knowledge does not exist, the customer is obliged to consult KVH; claims arising from lack of or incomplete knowledge are otherwise excluded. KVH manufactures all products exclusively in accordance with KVH’s “General Manufacturing Guidelines for Plastic Products in the Vacuum Forming Process” (as at January 2019), unless expressly agreed otherwise in writing.
(3) Unless otherwise agreed in writing, all documents relating to the quotation (in particular drafts and drawings of KVH) remain the property of KVH and must not be made available to third parties; they must be returned within 14 days at the request of KVH or if a contract is not concluded. If the documents are not returned within the specified period, KVH is entitled to assert the resulting damage due to default without setting a further deadline, while retaining its other claims.
(4) In the event that the quotation documents are handed over to third parties in breach of the contract or are used for the customer’s own production, the customer is obliged to pay KVH a contractual penalty of 10% of the selling price contained in the quotation for each case. If such a sales price has not yet been fixed, the usual sales price is to be used as the basis for calculating the contractual penalty. The contractual penalty also applies in the event that a contract for the services offered is not concluded between KVH and the customer. This does not affect the right to claim further damages. The contractual penalty is due on transfer of the quotation documents to third parties and/or on use for the customer’s own production.
3. Rates
(1) Unless otherwise agreed in writing, prices are ex works KVH-Krailling and do not include packaging, freight, customs duties, import duties and value added tax.
(2) The prices are based on the cost factors valid at the time of acceptance of the order. If, after acceptance of the order, there is a change in the main cost factors, in particular in the prices of wages and materials, the parties shall be mutually entitled to adjust the prices up to the amount of the change in costs. The party wishing to derive a claim in its favor from the above provision shall bear the burden of proving the existence of the conditions for the claim.
(3) KVH is not bound by the previous prices in the case of new orders (= follow-up orders) unless the parties have concluded a framework agreement to the contrary.
(4) If the customer fails to take the quantities agreed in the framework agreement, KVH is entitled to adjust the price at least to the extent that KVH receives the calculated price for risk and profit from the agreed quantities.
4. Delivery and acceptance
(1) Agreed delivery times are only approximate unless they are expressly designated as binding in writing. Delivery times commence on the date of confirmation of the order, but only after receipt of all documents required for execution of the order, in particular the declaration of release of the reference samples and, in the case of agreement of advance payment, when payment has been credited to one of the KVH accounts specified in the order confirmation. The delivery time is deemed to have been met on notification that the goods are ready for dispatch, if dispatch is delayed or impossible through no fault of KVH.
(2) If, due to KVH’s own fault, there is a delay in delivery of an individual order, the customer is entitled, provided that KVH has not acted with gross negligence or wilful misconduct, to claim compensation for the delay or to withdraw from the individual contract after expiry of a reasonable period of grace to be set by him, to the exclusion of any further claims. The compensation for delay is limited to a maximum of 5% of the unfulfilled part of the individual contract. Withdrawal by the customer is excluded if the customer itself is in default of acceptance.
(3) Reasonable partial deliveries as well as reasonable deviations from the order quantities of up to plus/minus 10% are permissible.
(4) Force majeure, as well as circumstances which make it impossible for KVH or our suppliers to deliver on time despite reasonable efforts, in particular traffic and operational disruptions, industrial disputes, insufficient supply of raw materials, Covid 19 pandemic or other pandemics in Germany or abroad, insofar as the supply and/or production chains of KVH are affected, extend the delivery time by the duration of the impediment and a reasonable start-up period or entitle KVH to withdraw in whole or in part from the part of the contract not yet fulfilled. This also applies if the impediments occur during an already existing delay.
(5) If the conditions of subsection 4 exist, the customer is entitled to request KVH to declare within a period of 3 weeks whether KVH intends to withdraw or to deliver within a reasonable period of grace. If KVH does not make a declaration within the aforementioned grace period, the customer is entitled to withdraw from the unfulfilled part of the contract.
5. Packaging, dispatch, transfer of risk and default of acceptance
(1) Unless otherwise agreed in writing, KVH will choose the packaging, method and route of shipment. All shipments are made at the customer’s expense.
(2) The risk for all deliveries, including freight-free deliveries, passes to the customer when the goods leave the factory. In the event of delays in dispatch for which the customer is responsible, the risk shall already pass to the customer upon notification of readiness for dispatch.
(3) At the written request of the customer, the goods shall be insured at the customer’s expense against risks to be specified by the customer.
6. Molds / Tools
(1) Unless otherwise agreed in writing, preliminary models, moulds, negative moulds, tools and devices manufactured by KVH itself or on behalf of KVH remain the property of KVH on account of the design work. They will be used exclusively for the customer’s orders as long as the customer meets his payment and acceptance obligations. Any other use requires the express written agreement of both parties. KVH’s obligation to retain them expires 2 years after the last (parts) delivery from the mould and prior notification of the customer.
(2) The costs for the production of the molds are borne by the customer. The price for molds also includes the costs for the one-time sampling, but not the costs for testing and processing devices or changes initiated by the customer. These are to be paid for separately.
7. Payment
(1) Unless otherwise agreed in writing, the claims for deliveries or other services shall be paid in accordance with the invoices issued without deduction within 14 days of the invoice date. Partial deliveries may be invoiced separately in accordance with the provisions of sentence 1.
(2) Unless otherwise agreed in writing, contrary to the provision in subsection 1, the receivables for molds and devices shall be invoiced at a rate of
1/3 at order confirmation
1/3 upon readiness for delivery
1/3 after delivery
in each case within 14 days without deduction. Upon confirmation of change orders by the customer prior to completion of the mold, all costs incurred up to that point shall be reimbursed to the extent that they exceed the down payment.
(3) Unless otherwise agreed in writing, contrary to the provision in subsection 1, the receivables for deliveries of larger volumes, i.e. orders with a delivery volume of 10,000.00 EUR net or more, shall be paid in accordance with the provision in subsection 2.
(4) If the payment dates are exceeded, interest on arrears shall be charged at the statutory interest rate of 9 percentage points above the prime rate of the European Central Bank (ECB).
(5) We reserve the right to refuse checks or bills of exchange. Checks or bills of exchange shall only be accepted on account of performance; all associated costs shall be borne by the customer.
(6) The Customer may only offset or assert a right of retention if its claims are undisputed or have been finally determined by a court of law.
(7) Delay in payment of more than 10 week-days or circumstances which give rise to serious doubts about the creditworthiness of the customer, as well as the filing of an application for insolvency by the customer, will result in the immediate maturity of all claims of KVH. In this case, KVH is entitled to demand advance payment for outstanding deliveries and to withdraw from the contract / all contracts, if applicable, after expiry of a payment period of 14 days. Such circumstances release KVH from its obligation to deliver, but do not release the customer from his obligation to accept delivery.
(8) KVH is entitled to charge the customer a flat reminder fee of EUR 15.00 per reminder for any reminders required as a result of the customer’s default in payment. In addition, the customer shall bear the necessary expenses incurred by KVH as a result of the default in payment as well as the legal costs incurred.
8. Retention of title
(1) Deliveries remain the property of KVH until all existing claims of KVH against the customer have been satisfied. In the case of a current account, the reserved ownership of the supplies is deemed to be security for the balance due to KVH.
(2) Processing or transformation by the customer is carried out on behalf of KVH to the exclusion of the acquisition of ownership in accordance with § 950 BGB; KVH becomes co-owner of the item thus created in proportion to the net invoice value of its goods to the net invoice value of the goods to be processed or transformed, which serves as reserved goods to secure the claims of KVH in accordance with subsection 1.
(3) In the event of combination/mixing by the customer with other goods not belonging to KVH, the provisions of §§ 947, 948 of the German Civil Code (BGB) apply, with the result that KVH’s co-ownership share in the new item is now deemed to be reserved goods within the meaning of these conditions.
(4) The customer is entitled to resell the goods subject to retention of title only in the ordinary course of business and on condition that he also agrees a retention of title with his customers in accordance with subsections 1 to 3.
(5) In the event of resale, the customer hereby assigns to KVH, until all claims of KVH have been satisfied, all claims and other justified claims against his customers arising from the resale, together with all ancillary rights, which KVH hereby accepts. At the request of KVH, the customer is obliged to provide KVH without delay with information and to hand over documents required to enforce KVH’s rights against the customer’s customers.
(6) The customer is not entitled to pledge the goods subject to retention of title or to assign them as security without the express written consent of KVH.
(7) KVH must be notified immediately by the customer of any seizure, attachment or other interference with the reserved property by third parties. The documents handed to the customer (e.g. the seizure report) must be enclosed with the notification and the seized items and the address of the seizure creditor must be stated. Intervention costs resulting from the impairment shall in any case be borne by the customer, unless they are to be borne by third parties.
(8) If the value of the securities held by KVH exceeds the total claims of KVH against the customer by more than 10%, KVH is entitled, at the customer’s request, to release securities of its own choice.
9. Notification of defects and warranty
(1) All references to the suitability for use of products manufactured/delivered by KVH are based on experience and official test values. As a matter of principle, they serve only as non-binding suggestions. In many cases, the final assessment can only be made on the basis of tests carried out under practical conditions.
(2) A guarantee and/or a warranted property based on such information cannot be derived with regard to the technical, chemical and physical properties/resistance of the materials used; likewise, no liability can be derived for consequential damage incurred by our customers or third parties as a result.
(3) Complaints about incomplete or incorrect delivery or complaints about externally visible defects must be notified to the supplier and KVH immediately on delivery of the goods and the complaint must be documented in writing. If such notification is not made, it will be assumed that the goods have been delivered in a condition in accordance with the contract.
(4) In the case of defects which are not externally apparent, the complaint must be made in writing to the supplier and KVH within 7 days of delivery of the goods. If the notice is not given within the period set, the presumption of subsection 3 applies.
(5) In the event of a justified notice of defect – in which case the reference samples approved in writing by the customer determine the quality and workmanship to be expected – KVH is obliged to provide subsequent performance in accordance with the statutory provisions of §§ 437, 439 of the German Civil Code (BGB). If KVH fails to meet this obligation within a reasonable period or if the rectification of defects fails despite repeated attempts, the customer is entitled to reduce the price or to withdraw from the individual contract. Further claims, in particular claims for reimbursement of expenses or damages due to defects or consequential damages, shall only exist within the scope of the provisions under Section 10
Replaced parts which become the property of KVH must be returned to KVH carriage paid on request.
(6) Unauthorized reworking and improper handling will result in the loss of all claims for defects. Only in order to prevent disproportionate damage or in the event of delay in rectifying the defect, if at the same time written notice has been given of the intention to rectify the defect himself, is the customer entitled to rectify the defect himself and to demand reimbursement of the reasonable costs incurred.
(7) Wear and tear caused by contractual use shall not give rise to any warranty claims.
(8) For third-party products, the liability of KVH is limited to the assignment of the warranty claims to which KVH is entitled against the supplier of the third-party products. KVH gives no warranty for damage resulting in particular from unsuitable or improper use; unsuitable or improper commissioning and/or handling; faulty assembly by the customer or his vicarious agents and/or assistants; improper loading or use of unsuitable media by the customer or third parties; lack of and/or defective maintenance.
10. Provision for Export Controls
(1) KVH Hartung GmbH’s offer and confirmation order as well as KVH Hartung GmbH’s fulfillment of the contract shall be subject to the proviso that the fulfilment of the contract is not being restricted by any applicable national, European and international export control laws.
(2) In case of delayed licensing proceedings, for which KVH Hartung GmbH is not responsible, KVH Hartung GmbH is released from its obligation to meet delivery times. Agreed deadlines shall be extended by the duration of the delay.
(3) The buyer will not use KVH Hartung GmbH’s goods for any nuclear or MWD purposes or for military purposes in weapon embargoed countries. Further, the buyer will not re-deliver KVH Hartung GmbH’s goods to any third party to be used for nuclear or MWD purposes or for military purposes in weapon embargoed countries.
(4) The buyer shall indemnify and hold harmless KVH Hartung GmbH from and against any actions and claims arising out of non-compliance with the foregoing section and the buyer shall compensate KVH Hartung GmbH for any damages, losses and expenses resulting thereof.
11 General limitations of liability
(1) In all cases in which KVH, in derogation of the above conditions, is obliged to pay compensation for expenses or damages on the basis of contractual or statutory claim standards, KVH is liable only insofar as KVH, its representatives or vicarious agents are guilty of intent, gross negligence or injury to life, limb or health. Liability without fault under the Product Liability Act and liability for the fulfillment of a guarantee of quality remain unaffected. Liability for culpable breach of essential contractual obligations shall also remain unaffected; liability shall, however, be limited to the foreseeable damage typical for the contract except in the cases of sentence 1.
(2) Insofar as the customer specifies binding material specifications, the customer releases KVH from the obligation to check whether the specified material specifications are suitable for the intended purpose in accordance with the technical, chemical and physical properties. This testing obligation is assumed exclusively by the customer, if necessary by his own laboratories and/or third party laboratories and/or testing institutes. By granting the production release, the customer declares at the same time that he has complied with the testing obligation incumbent upon him and that he has no objections to the production and the present material specifications.
12. Security interests
The parties agree that the provisions of § 650f of the German Civil Code (BGB) shall apply mutatis mutandis to the underlying individual contracts. Accordingly, KVH is entitled to demand security from the customer for the advance services to be rendered by it, including associated ancillary claims, up to the amount of the anticipated remuneration claim as it results from the underlying individual contract, as well as for ancillary claims. KVH must set the customer a reasonable deadline for the provision of security, after the fruitless expiry of which KVH is entitled, after prior written notification to the customer, to refuse performance. The customer is entitled, at his discretion, to provide security in the form of a bank guarantee or other promise of payment from a credit institution or credit insurer authorized to do business in the area of application of German law.
13. Industrial property rights and defects of title
(1) If KVH is to supply goods in accordance with drawings, models or samples supplied by the customer, the customer is responsible for ensuring that the industrial property rights of third parties in the country of destination of the goods are not infringed thereby. KVH will draw the customer’s attention to any rights of which it is aware. The customer indemnifies KVH against claims by third parties and must pay compensation for any damage incurred. If the customer is prohibited from manufacturing / supplying by a third party with reference to an industrial property right belonging to the third party, KVH is entitled – without examining the legal position – to suspend work until the legal position has been clarified by the customer and the third party and to invoice the customer for the services provided up to that time. If the continuation of the order is no longer reasonable for KVH due to the delay, KVH is entitled to withdraw from the contract / all contracts, if applicable, insofar as there are also infringements of property rights in accordance with this subsection. In this case KVH is entitled to the contractually agreed remuneration less the expenses saved.
(2) Drawings and samples supplied to KVH which have not led to the conclusion of a contract will be returned at the request of the customer; otherwise KVH is entitled to destroy them 3 months after submission of the quotation, after giving prior notice to the customer in good time of its intention to destroy them. This obligation applies accordingly to the customer.
(3) KVH is entitled to the copyrights and, where applicable, industrial property rights, in particular all rights of use and exploitation in respect of the models, moulds and devices designed by KVH or by third parties on behalf of KVH.
(4) The provisions of Clause 9 apply mutatis mutandis to other defects in title.
14. Place of performance and jurisdiction
(1) The place of performance for delivery, payment and other obligations arising from the contract is Krailling.
(2) Munich is agreed as the exclusive place of jurisdiction, also for proceedings involving documents and checks.
(3) German law shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 for the Federal Republic of Germany (UN Sales Convention) is excluded.