1. Area of application; Form
1.1. The sale and delivery of goods (hereinafter referred to as "Products") to our customers (hereinafter referred to as "Purchaser") shall be made exclusively on the basis of these General Terms and Conditions of Sale and Delivery ("hereinafter referred to as "Terms and Conditions of Sale"). Terms and conditions that conflict with, supplement or deviate from our Terms and Conditions of Sale shall not apply unless we expressly agree to their validity in writing. Neither silence nor the acceptance or execution of orders - even without reservation - shall be deemed to constitute acceptance of contradictory, additional or deviating terms and conditions; this shall also apply if the customer refers to contradictory, additional or deviating terms and conditions in the course of correspondence (e.g. in orders).
1.2. Our Terms and Conditions of Sale shall only apply to entrepreneurs within the meaning of Section 14 (1) of the German Civil Code (BGB), legal entities under public law or special funds under public law.
2. Conclusion of contract
2.1. Our offers are non-binding in the sense of an invitatio ad offerendum. In this respect, any advertising of products, for example in our catalog or our online store (available at: https://www.kippwerk.de/), is only a non-binding offer.
2.2. The ordering of products by the customer shall be deemed a binding offer within the meaning of § 145 BGB. We may accept this offer within two (2) weeks of receipt.
2.3. Acceptance is made in text form (e.g. by order confirmation) or by execution of the order.
2.4. When ordering in our online store, the customer usually receives an order confirmation immediately after sending the order. This does not constitute acceptance.
2.5. Our offer is aimed exclusively at entrepreneurs within the meaning of Section 14 (1) BGB. In this respect, we can demand that you provide us with sufficient proof of your entrepreneurial status before concluding the contract. The data required for the proof must be provided by you completely and truthfully.
2.6. You can order in our online store as a registered user. As a registered user, you do not have to enter your personal data each time you place an order. You can simply log in to your customer account before or during the ordering process using your e-mail address and the password you chose when you registered. Registration alone does not constitute any obligation to purchase the goods we offer. For information on the processing of your data, please read our data protection information (available at https://www.kippwerk.de/de/datenschutz). When you register, you choose a personal user name and password. You are obliged to keep the password secret and not to disclose it to third parties, i.e. persons outside your company or persons in your company who are not authorized to represent you.
2.7. We reserve ownership rights and copyrights to all our documents, in particular to illustrations, drawings, calculations and other documents; unless they are publicly accessible (in particular in our catalog and our online store), they may not be made accessible to third parties.
2.8. We are entitled to make technical changes without the customer's consent if and to the extent that these deviate only insignificantly from the requirements owed by us and do not adversely affect the relationship between performance and consideration for the customer.
3. Prices; terms of payment
3.1. The list prices valid at the time of delivery plus value added tax (VAT) shall apply. Value added tax shall only not be charged in cases where the conditions for tax exemption are met.
3.2. For deliveries made one (1) month or later after conclusion of the contract, we may adjust the prices at our reasonable discretion due to changes in cost elements (in particular labor and/or material costs).
3.3. Unless otherwise agreed, prices are net prices in euros based on Incoterms® 2020 “DAP” (Delivered at Place) plus packaging and sales tax at the statutory rate as well as any other taxes and duties. Notwithstanding the cost provisions of the DAP delivery term, KIPP reserves the right to invoice the transport costs incurred separately.
3.4. Unless otherwise agreed, payment must be made by bank transfer to our account within thirty (30) days of the invoice date.
3.5. In the case of special designs that are not part of our product range, there may be deviations from the order quantity for technical production reasons. Unless expressly agreed otherwise, excess or shortfall quantities of up to 10% shall constitute contractual fulfilment of the delivery obligation. In this case, the actual delivery quantity shall be invoiced.
3.6. For small orders we charge a minimum quantity surcharge.
4. Delivery; delivery period
4.1. Unless otherwise agreed, the Incoterms® 2020 provision "DAP" shall apply to the delivery.
4.2. Partial deliveries are permissible, provided they are not unreasonable for the customer.
4.3. The delivery period shall be specified by us upon acceptance of the order or agreed individually. Deadlines specified by us for the dispatch of the goods are always only approximate and may therefore be exceeded by up to five (5) working days. This does not apply if a fixed delivery date has been agreed.
4.4. The start of the agreed delivery periods requires the clarification of all technical questions with the customer as well as the timely and proper fulfilment of the customer's obligations.
4.5. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible, we shall inform the customer of this immediately and at the same time inform the customer of the expected new delivery deadline. If we are unable to provide the service owed within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already provided by the customer. The service is not provided, for example, in the event of late delivery by our supplier, if we have concluded a congruent covering transaction, in the event of other disruptions in the supply chain, for example due to force majeure, or if we are not obliged to procure the goods in individual cases.
4.6. If non-compliance with the agreed delivery periods or delivery dates is due to force majeure or other unavoidable events for which we are not responsible, the delivery periods and delivery dates scheduled for the delivery shall be extended accordingly. This also applies to labor disputes affecting us or our suppliers. If events of force majeure or other events beyond our control last longer than three (3) months, the customer shall be entitled to withdraw from the contract, provided that an adjustment of the contract is not possible. Force majeure presupposes that it is an external event caused by elementary forces of nature or by actions of third parties, which is unforeseeable according to human insight and experience, cannot be prevented or rendered harmless by economically acceptable means even by the utmost care reasonably to be expected in the circumstances and could not be accepted by us due to its frequency.
4.7. Unless expressly agreed otherwise, all deliveries comply with the statutory product requirements in Germany. With regard to statutory product requirements outside Germany, we do not assume any warranty or guarantee; in particular, the customer shall not be entitled to any claims against us because statutory product requirements outside Germany are not complied with.
5. Warranty for defects
5.1. The customer's warranty claims for material defects and defects of title shall be governed by the statutory provisions, unless otherwise specified below.
5.2. The defectiveness shall be determined by the quality agreed between the parties and any expressly assumed use of the products (including accessories and instructions). All product descriptions and manufacturer's specifications that were expressly the basis of the purchase contracts or were publicly announced by us in catalogs or on our Internet homepage at the time of the conclusion of the contract shall be deemed to be an agreement on quality in this sense. Only if and insofar as the quality has not been agreed shall it be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 (3) BGB).
5.3. Insofar as the customer can demand subsequent performance, we shall be entitled, at our discretion, to remedy the defect or to deliver a defect-free item. If the type of subsequent performance chosen by us is unreasonable in the individual case, the customer may reject it.
5.4. The customer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, dismantling and installation costs, in accordance with the statutory provisions and these Terms and Conditions of Sale, if a defect actually exists. Otherwise, we may demand reimbursement from the customer for the costs arising from the unjustified request to remedy the defect if the customer knew or could have recognized that there was in fact no defect.
5.5. If the subsequent performance fails, in particular if it is delayed beyond a reasonable period of time for reasons for which we are responsible, the customer shall be entitled, at his discretion, to withdraw from the contract or to demand a corresponding reduction in the purchase price.
5.6. The infringement of industrial property rights of third parties, e.g. patents or utility models, shall not constitute a defect if the infringement of industrial property rights is caused by an application not foreseeable by us or by the fact that the delivery is modified by the customer or used together with products not supplied by us.
5.7. Warranty claims of the Buyer shall become time-barred twelve (12) months after the transfer of risk. This period shall not apply to claims for damages by the Buyer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents or under the Product Liability Act, which shall in each case become statute-barred in accordance with the statutory provisions.
6. Liability
6.1. Unless otherwise stated in these Terms and Conditions of Sale, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
6.2. We shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in cases of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability, for
6.2.1. for damages resulting from injury to life, limb or health,
6.2.2. for damages arising from the breach of an essential contractual obligation (an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for foreseeable, typically occurring damages.
6.3. The limitations of liability resulting from Clause 6.2. shall also apply to third parties and in the event of breaches of duty by persons (including in their favor) whose fault we are responsible for in accordance with statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee has been given for the quality of the goods and for claims of the customer under the Product Liability Act.
7. Retention of title
7.1. We reserve title to the products until they have been paid for in full.
7.2. The products subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access to the goods belonging to us (e.g. seizures).
7.3. In the event of any breach of contract by the customer, in particular default in payment, we shall be entitled to exercise our statutory rights and demand the return of the products. We shall be entitled to realize the products after they have been handed over; the proceeds of realization shall be set off against the customer's liabilities - less reasonable realization costs.
7.4. Until revoked, the customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
7.4.1. The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
7.4.2. The customer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer stated in Clause 7.2. shall also apply with regard to the assigned claims.
7.4.3. The customer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations to us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right in accordance with Clause 7.3. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, we shall also be entitled to revoke the customer's authorization to resell and process the goods subject to retention of title.
7.4.4. We undertake to release the securities to which we are entitled at the request of the customer to the extent that the value of our securities exceeds the claims to be secured by more than 20%; we shall be responsible for selecting the securities to be released.
8. Export bans
8.1. The Customer may not sell, export or re-export goods supplied under or in connection with this contract that fall within the scope of Article 12g of Council Regulation (EU) No. 833/2014, either directly or indirectly, to Russia or for use in Russia.
8.2. Likewise, the Purchaser may not sell, export or re-export goods supplied in connection with this contract that fall within the scope of Article 8g of Council Regulation (EU) No. 765/2006, either directly or indirectly, to Belarus or for use in Belarus.
8.3. The Purchaser shall endeavor with due care and by exhausting all reasonable means to ensure that the purpose of Clause 8.6.1. is not frustrated by third parties in the further commercial chain, including possible resellers.
8.4. The Buyer shall establish and maintain an appropriate monitoring mechanism to detect conduct by third parties in the wider supply chain, including potential resellers, which would defeat the purpose of Clause 8.6.1.
9. Intellectual property
9.1. The Customer warrants that it owns all intellectual property rights, including but not limited to copyrights, patents, design rights and trademarks, which are necessary for us to fulfill our obligations to the Customer. The Customer further warrants that it owns all rights to all product specifications provided to us and used by us in the performance of the order.
9.2. In the event that a third party makes a claim against us alleging that the manufacture of a product or the execution of another order infringes the industrial property rights of the third party, the customer shall indemnify us against all such claims.
10. Subcontractors and suppliers
10.1. Unless otherwise agreed, we are entitled to appoint and replace subcontractors and suppliers.
10.2. In the event that the customer obliges or instructs us to engage a specific subcontractor or supplier (hereinafter referred to as "named supplier"), we shall not be liable for negligent or intentional breaches of duty by the customer in the selection of the named supplier or for breaches of contractual provisions or statutory regulations by the named supplier. The customer shall remain fully responsible for ensuring delivery by the named supplier and for the performance of the named supplier, in particular for the quality of the delivery and timely performance and our delivery. The purchaser is liable for all damages and costs incurred by us as a result of a breach of contract or duty by the named supplier and is obliged to indemnify us against all claims asserted against us by the named supplier.
10.3. We shall be entitled to request all relevant documentation from the purchaser regarding the terms and conditions of the nominated supplier and to review these before submitting a quotation to the purchaser. If the customer does not provide this information within a reasonable period of time after our request, we are entitled to assume that conditions corresponding to our standard conditions apply. We shall be entitled to a corresponding price adjustment if the conditions actually applicable are not comparable.
11. Tools and test equipment
11.1. All tools and test equipment that the customer has made available to us for the manufacture and testing of the products are the property of the customer. All tools and test equipment manufactured by us on the basis of an order placed by the customer and at the customer's expense shall not become the customer's property until the customer has paid for the tools and test equipment in full and on time. All tools and test equipment which are the property of the customer shall be delivered to the customer on request.
11.2. We shall ensure that tools and test equipment owned by the customer and in our possession or in the possession of our subcontractors are stored, maintained and adequately insured at our expense. The costs of any necessary maintenance or repair of the tools and test equipment shall be borne by the customer. We shall only bear the costs of repairs if and insofar as repairs are necessary due to culpable breaches of duty on our part. The customer shall be responsible for the replacement of tools and test equipment at the customer's expense if this is necessary . As far as possible, we shall inform the customer in good time in advance of any such need for replacement. If breaches of duty by the customer mean that tools and test equipment cannot be used to fulfill our obligations, we shall be released from our performance obligations in this respect.
11.3. We will mark the tools and test equipment that are the property of the customer.
12. Secrecy
12.1. The Customer is obliged to keep secret all confidential information (including business secrets) which it learns in connection with the business relationship with us and in particular not to disclose it to third parties. Confidential information is information that is marked as confidential or whose confidentiality is evident from the circumstances, irrespective of whether it has been communicated in written, electronic, embodied or oral form. Confidential information as defined above does not include information that
12.1.1. were obvious at the time of transmission or were known to the customer or became so subsequently;
12.1.2. have been made available to the customer without breach of law by third parties; or
12.1.3. the customer has developed himself without using confidential information.
12.2. The customer is prohibited from reverse engineering. "Reverse engineering" refers to all actions, including observing, testing, examining, disassembling and, if necessary, reassembling, with the aim of obtaining confidential information.
12.3. The confidentiality obligation under Clause 12.1. shall also not apply, except in the cases of § 5 GeschGehG, if the Customer is obliged to disclose the confidential information by law or on the basis of a final or legally binding official or court decision. In this case, the customer shall inform us of the resulting obligation to disclose immediately after becoming aware of the official or court decision. In addition, in the course of disclosure, the customer shall make it clear that, if this is the case, it is a matter of business secrets and shall work towards ensuring that the provisions of §§ 16 et seq. GeschGehG are applied.
12.4. If the customer breaches its obligations under this confidentiality clause, it shall owe a contractual penalty, unless it is not responsible for the breach of duty. The amount of the contractual penalty shall be determined by us in reasonable proportion to the economic value of the trade secret.
13. Offsetting, right of retention and assignment
13.1. The customer shall only be entitled to offset counterclaims or withhold payments to the extent that his counterclaims have been legally established, are undisputed or have been recognized by us.
13.2. The assignment of a claim of the customer against us is only legally effective with our consent or approval; § 354a HGB remains unaffected.
14. Written form, text form
14.1. Verbal declarations prior to or upon conclusion of the contract require our confirmation in writing or text form to be effective.
14.2. Legally relevant declarations and notifications by the customer in relation to the contract (e.g. setting of deadlines, notification of defects) must be made in writing or text form, unless stricter formal requirements exist by law.
15. Severability clause
15.1. Should a provision in these Terms and Conditions of Sale and the other agreements be or become invalid, this shall not affect the validity of all other provisions of the Terms and Conditions of Sale or agreements. The contracting parties are obliged to replace the invalid provision with a provision that comes as close as possible to the economic purpose of the invalid provision but is nevertheless valid.
16. Choice of law and place of jurisdiction
16.1.These Terms and Conditions of Sale shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG).
16.2. The exclusive place of jurisdiction for all disputes arising from or in connection with the business relationship between us and the customer shall be Rottweil. However, we are also entitled to sue the customer at his place of business. Mandatory places of jurisdiction shall remain unaffected.