General Terms and Conditions W. Krömker GmbH
1. General provisions/Scope of application
1.1 These General Terms and Conditions for Deliveries and Services shall apply exclusively to all deliveries and services of W. Krömker GmbH (hereinafter referred to as ‘Krömker’).
1.2 Deviations require written confirmation to be valid. Deviating conditions derived from the customer do not apply, unless Krömker has explicitly agreed upon their validity in written form. These Terms and Conditions shall also apply should Krömker carry out any deliveries and/or services in the knowledge that the customer's terms and conditions may deviate from its own.
1.3 If not expressly stipulated, the text form is also valid along with the written form.
1.4 The General Terms and Conditions shall also apply to future transactions, in their current form, even if they are not communicated or forwarded to the buyer in detail.
2. Offers/Range of services
2.1 Krömker’s offers including prices, quantities, terms of delivery and delivery possibilities shall be non-binding until confirmation of the order or unconditional execution of the order. We reserve the right to make technical changes insofar as is reasonable.
2.2 The scope of delivery shall be determined by mutual declarations. Weight and dimension specifications provided in brochures and offers are only approximate. Reasonable deviations and changes in the design as well as the use of new or newly refurbished parts remain reserved.
2.3 Any reference to technical standards merely represents a description of the service provided, insofar that the guarantee is not expressly accepted as a guarantee obligation for compliance with the technical standard. This shall also apply to illustrations, drawings, dimensions, weights, performance specifications in brochures, cost estimates and data sheets, etc. If a guarantee of quality or durability is given at the time the contract is concluded, these shall require the written form in all cases.
2.4 Krömker reserves all rights of ownership, copyrights and industrial property rights on drawings, technical documents and other data, information and documents of physical and non-physical nature – and also in electronic form. Except with the express prior consent of Krömker, the customer is not entitled to reproduce, copy, make available to third parties or otherwise disclose or to use these documents in any manner conflicting with the interests of Krömker. If no order is placed, the documents must be returned immediately upon request.
3. Placement of orders/Conclusion of contract
3.1 By ordering merchandise, the customer bindingly declares himself/herself willing to purchase the merchandise ordered. The customer is solely responsible for selecting the good and the quantity thereof.
3.2 Krömker is entitled to accept the contractual offer made in the order within two weeks of receipt. Acceptance shall be made by a written confirmation or supply of the goods to the customer.
3.3 Krömker must confirm all changes or amendments of an order in writing. Changes to the order, in particular changes to the quantities ordered, are not possible or permitted for confirmed dates within one month of the order being placed. In the event an order is cancelled, the customer shall in principle bear all materials procured for fulfilling the cancelled order (including the procurement and financing costs). In the event that the confirmed order dates are postponed by more than three calendar months, the customer shall bear all additional storage, insurance and financing costs resulting from this change.
3.4 Contract conclusion shall always be subject to correct and timely receipt of deliveries used for own purposes by any suppliers. This shall only apply in cases where Krömker is not responsible for non-delivery, particularly in the event that a congruent covering transaction is entered into with the supplier. The customer shall be notified immediately if a service is unavailable. The return service shall be refunded without delay.
3.5 Should the customer order goods electronically, Krömker shall save the wording of the contract. The customer shall be sent the order placement, order confirmation with all order information as well as the General Terms and Conditions.
3.6 If several customers are party to the agreement, these will mutually empower each other in all the affairs affecting the purchase to accept Krömker’s legally binding declarations. The service shall be provided by Krömker to any of the customers for and against all other customers.
4. Use of software
4.1 If software is included in the scope of the delivery, all rights to the know-how and rights to protect intellectual property (e.g. inventions, copyrights) remain with Krömker unless otherwise agreed and regardless of the obligation to provide the software to the customer. Krömker is entitled to use the knowledge acquired in connection with executing the contract without restriction.
4.2 If software is included in the scope of delivery, Krömker grants the customer a non-exclusive and non-transferable right to use it.
4.3 If software is supplied as part of a device or for a specific device, the customer may only use the software with the designated hardware or the software supplied with the hardware, unless otherwise agreed. The use of the software on any other device shall require the express prior written consent of Krömker, unless the customer temporarily uses the software because of a hardware defect with a replacement device of the same type.
4.4 Unless Krömker explicitly grants the customer a multiple license, the customer shall be granted a single license to the software; he/she may only use the software on one device or workstation at the same time. The customer is, however, entitled to create a copy for back-up purposes only. In the case of a multiple license, the customer must observe the information Krömker provides on reproduction and record the location of all reproductions. These records must be presented to Krömker on request.
4.5 Krömker assumes no obligation to provide software services. These require a separate agreement.
5.1 All prices shall be defined as EX WORKS (Incoterms 2010) Bückeburg, unless any provisions to the contrary have been made.
5.2 Prices are defined in euros plus the value added tax, if any, at the prevailing statutory rate. In addition, any and all taxes, customs duties or charges possibly levied even according to the rules of a law other than these German Terms and Conditions apply. Disposable or transport packaging is included in the price and shall not be credited in case of return. Reusable packaging (e.g. pallets) are provided only on loan. If no particular type of delivery or particular delivery route is specified, Krömker reserves the right to select the most cost-efficient solution. Costs for special packaging requested by the customer shall be charged separately.
5.3 If a quantity discount applies, this refers to the closed acceptance of an order to a single delivery address.
5.4 For blanket orders, the prices applicable on the day of delivery shall apply unless other agreements have been made.
5.5 In the event that Krömker increases or decreases its prices for raw material, freight and/or wages, etc. in the time between submitting the offer and accepting the order and executing it, Krömker shall be entitled to adjust the selling price accordingly without regard for the offer and order confirmation.
6. Payment conditions
6.1 If no special agreements have been made, the following terms of payment apply as of the date of the invoice: - Within the EU: 30 days net - Outside the EU: 45 days net
6.2 For deliveries and services abroad the payment shall be made by means of an irrevocable and confirmed letter of credit of a major bank of the Federal Republic of Germany, payable in favour of Krömker against presentation of the documents to this major bank.
6.3 Cheques and any other means of payment shall only be accepted on account of performance. For these means of payment, the day on which Krömker receives the payment shall be deemed as the receipt of payment. 6.4 Krömker shall determine to which of its accounts customer payments are made. Krömker shall be entitled to offset any claims by the customer which he/she has against the affiliated companies of Krömker.
6.5 The customer shall only have the right to retain payments or offset them against any counterclaims insofar as its counterclaims are undisputed or have become res judicata. Other rights of retention can only be asserted to the extent that these rights are based upon the same contractual relationship.
6.6 The customer shall be in default of payment at the latest 30 days after invoicing for domestic business transactions and 45 days for foreign business transactions (see 6.1). Krömker is entitled to charge interest on arrears of payment at 8 percentage points above the base interest rate as damages for delayed payment. In all other cases, Krömker is entitled to demand advance payment or the security deposit or stop delivery.
6.7 Special terms of payment are reserved for deliveries to foreign countries.
6.8 Should the customer’s financial status be subject to major changes, in particular in the case of threatening insolvency, Krömker shall be entitled to either rescind from the contract or to demand a security deposit or advance payment for the full or part of the purchasing price. Should the customer be in arrears with (part) payments due to (threatening) insolvency, Krömker shall be entitled to retain any further deliveries until full payment of the outstanding amount. This shall not affect the customer’s duty to accept the goods.
7. Shipment/Packaging/Transfer of Risk
7.1 Delivery of the goods shall be effected by collection ex works (EX WORKS, Incoterms 2010).
7.2 The risk of accidental loss or random deterioration of the goods shall be transferred to the customer on collection ex works on handover – also in the case of partial deliveries or for assumption of other services such as delivery and installations – when shipped on delivery of the goods to the forwarder, the haulier or any other person or institution instructed with the shipment of the goods. Unless otherwise agreed, transport insurance shall be taken out by the customer only. If the shipment is delayed as a result of circumstances for which the buyer is responsible, the risk shall be transferred to the buyer from the day on which the goods are declared ready to ship.
7.3 Should Krömker carry out assembly and commissioning of the delivery items in the context of a delivery contract, the risk passes over to the customer from the moment of operational readiness. Should operation not take place 12 days following submission of written notification of the completion of assembly for reasons beyond the responsibility of Krömker, the risk passes over to the customer on expiry of this period. In this case, the Krömker is obligated to point out to the customer that the goods are regarded as accepted. If assembly is delayed for reasons for which the customer is responsible, then the risk passes to the customer for the period of the delay.
7.4 Krömker assumes that the person signing the delivery note on acceptance will be authorised to accept the goods and confirm receipt and to accept the delivery list by signature of the delivery note.
7.5 Should no instructions have been given, shipment shall be effected to the best discretion but without being bound to the cheapest transport costs. The customer shall be responsible for any expenses incurred by part deliveries.
8. Delivery/Delivery times
8.1 Unless otherwise specified, delivery periods are always nonbinding. Delays in delivery allow the customer to withdraw from the agreement only after an appropriate grace period. Should a downpayment and partial deliveries have been made, the downpayment may only be offset against the last partial delivery.
8.2 Compliance with the deadline for deliveries and services requires that all commercial and technical questions have been clarified between Krömker and the customer, and that the customer has fulfilled all of his/her obligations, such as the provision of documentation, permits, approvals and releases which he/she is to procure, or the making of a downpayment. Where this is not the case, the delivery time shall be reasonably extended. This does not apply insofar as Krömker is responsible for the delay.
8.3 The delivery date shall be deemed to have been met if the delivery item has left the factory by its expiry or the item has been declared ready for shipment. If the item is subject to an acceptance procedure, the delivery date shall be decisive, or, alternatively, the date of notice of readiness for acceptance, except in cases of justified refusal to accept.
8.4 Partial deliveries are possible.
8.5 The period for provision of services and delivery shall be appropriately extended in case of measures within the scope of industrial disputes, in particular strike and lockout as well as in case of the occurrence of unforeseen obstacles which do not lie within Krömker’s intention, unless the delivery or performance thereby becomes impossible.
8.6 Unless otherwise agreed, in the case of blanket purchase orders, Krömker grants a period of three months from the date of the order. Should the period of acceptance have expired, Krömker shall be entitled at its discretion to either invoice the goods or to cancel the order for that part of the contract that has not been completed.
9. Retention of title
9.1 The supplied and/or installed items (goods subject to retention of title) remain property of Krömker until complete settlement of all, also future, claims from the business relationship with the customer, regardless of the legal grounds, also if payments are made for particularly designated claims. In the case of open accounts, the reserved property is deemed to be security for the amount outstanding of Krömker. Machining or processing of the goods subject to the retention of title is considered to be carried out on behalf of Krömker, who is to be considered as the manufacturer pursuant to Section 950 German Civil Code (BGB), and shall retain title to its products at any time and processing stage during the processing. This machining or processing shall be deemed to be free of charge and without obligation for Krömker. In the event that goods subject to retention of title are processed, combined or mixed with moveable items not belonging to Krömker, Krömker shall be entitled to co-ownership of the new item at a ratio of the invoiced value of the goods subject to retention of title to the value of the other items used by the customer at the time they were processed, combined or mixed. Otherwise, the same shall apply for the new goods created from the processing, combining or mixing as for the goods subject to the retention of title. They are regarded as goods subject to retention of title in compliance with these General Terms and Conditions. In the event of delayed payment related to buildings or other property components, the customer undertakes to demand the separation of the delivered and/or built-in items (reserved goods) upon request of Krömker and to transfer ownership of these objects back to Krömker. These items are regarded as goods subject to retention of title in compliance with these General Terms and Conditions. Rights of retention are excluded, in particular because of the substitution of uses for these objects.
9.2 Any claims of the customer arising from a further sale of the reserved goods subject to retention of title are assigned to Krömker, ready now as security for all present and future claims of Krömker arising from the business relationship, regardless of whether the goods subject to retention of title are resold without or after processing and whether they are resold to one or more buyers. The customer shall be authorised to collect these assigned claims also after the assignment, unless he/she continues his/her payments or Krömker revokes this authorisation for collection. This does not affect the authority of Krömker to collect the assigned claims directly. On request, the customer shall notify Krömker immediately in writing, to whom he/she has sold the delivery items, which claims have arisen as a result of this sale and to hand over all documents necessary for collection.
9.3 The customer is only entitled and authorised to resell the goods subject to the retention of title on account of a sales contract, work contract, contract for labour and materials or other contract, if the customer reserves title of Krömker to the delivered goods vis-à-vis any such third party until the goods have been paid in full by such third party. The customer is not entitled for other disposals of the goods subject to retention of title in particular pledges and security transfers. At the request of Krömker, the customer shall be obligated to disclose to his/her buyer the assignment for payment to Krömker.
9.4 If the value of the existing securities for Krömker exceeds the secured claims by a total of more than 20%, Krömker shall be obliged, upon request of the customer or a third party affected by the Krömker’s over-securing, to release securities to this extent at the option of Krömker.
9.5 In the event of pledges, confiscation or other restraints by third parties, the customer shall notify Krömker without delay.
9.6 In case of a breach of the contract by the customer, in particular in case of a delay for payment, Krömker shall be entitled to take back the goods delivered after issuing a reminder and the customer shall be obliged to surrender them. The assertion of the right of retention as well as the seizure of the delivery item by Krömker are not valid for cancellation of the contract.
9.7 An application to commence insolvency proceedings against the assets of the customer shall entitle Krömker to withdraw from the contract and demand the immediate return of the delivery item.
10. Inspection obligations/Notification of defects
10.1 The customer must inspect the deliveries (i.e. packaging and products) immediately after receiving them. In the event of damage during transport, a damage report must be sent to the transport company (post office, railway, freight forwarder, etc.) to secure any claims for damages and Krömker should be informed.
10.2 Obvious defects, including transport damage, must immediately be communicated in writing to Krömer GmbH, but at the latest within one week after receiving the delivery. The customer shall lose the right to remedy the defect if he/she does not notify Krömker with an exact description of the defect within a week after he/she discovered it or should have noticed it. Notifications of defects sent in due course shall suffice to comply with this deadline. Written confirmation shall be required should the notification of defects be made verbally or via telephone due to the urgency of the situation. The goods shall be left untouched for Krömker to inspect the alleged defects.
10.3 Should the customer be prevented to accept and/or inspect the goods due to strikes or lockouts, the period of acceptance as well as the period for making claims shall be adequately extended in accordance with the preceding provision.
11. Under the exclusion of further claims – subject to Section 12, Krömker guarantees the following for material defects of deliveries and services:
11.1 At the discretion of Krömker, all parts which exhibit material defects within the limitation period shall be repaired or provided again to the extent that the defect and/or cause of the defect was not already obvious at the time of transfer of risk.
11.2 With respect to the quality of goods, generally only the product description of Krömker or the offer shall be deemed as agreed. Public statements, recommendations or advertising shall not constitute any contractual condition of the goods. A material defect does not exist, in so far as the good is suited for customary use and shows a condition that is usual with goods of the same type and which the customer could also expect. A material defect shall also not exist in the case of incorrect assembly instructions if the assembly has been carried out correctly. Should Krömker supply a slightly different good or a slightly different quantity of goods than as stipulated in the contract, this shall not constitute a defect. Should the customer receive incorrect instructions for assembly/use, Krömker shall only be liable for supplying an installation manual free of defects and only in the case where the defect of the installation manual is not compatible with proper installation.
11.3 Krömker shall not be liable for any damage resulting from non-compliance with the instructions for assembly and/or installation and/or the operating instructions, or from unsuitable or improper storage and/or use of the products, from faulty assembly or installation or from faulty commissioning by the customers, from normal wear and tear, or from faulty or negligent handling by the buyer, nor for any damage caused by unsuitable components or parts or replacement materials, chemical, electrochemical, electrical, atmospheric and other unforeseeable influences, provided that any such damage is not predominantly attributable to any fault on the side of Krömker.
11.4 After reaching an agreement with Krömker, the customer shall provide the necessary time and opportunity to undertake improvements or the replacement delivery which Krömker deems necessary, in particular to send, on demand, the delivery object to Krömker or to a workshop to be defined by Krömker on a case-by-case basis; otherwise, Krömker shall be relieved of the liability for the resulting consequences. The customer has the right to repair the defect himself/herself or by a third party and to demand reimbursement of the necessary costs from Krömker in urgent cases of endangerment of company safety or to avoid disproportionate damage, whereby in such case Krömker shall be notified immediately.
11.5 From the costs arising from the repair or replacement delivery, Krömker shall bear the costs of the replacement parts including their shipping, together with proportionate costs for dismantling and assembly insofar as the claim is deemed as justified; furthermore, if this can be reasonably demanded depending on the case in question, the costs of any necessary of fitters and helpers shall be borne. Krömker is entitled to refuse supplementary performance in the case where it would be associated with unreasonable costs. Parts replaced shall become the property of Krömker.
11.6 Within the framework of the statutory provisions, the customer shall also have a right to cancel the contract only if Krömker (under consideration of the legal exceptions) allows a reasonable deadline for the subsequent improvement or replacement delivery due to a material defect to elapse fruitlessly. If conditions of withdrawal exist, but the defect is only immaterial, the customer is only entitled to a right to reduction of the contract price. The right to demand a reduction in the contract price is excluded in all other cases.
11.7 If the customer chooses to withdraw from the contract on the grounds of defect of title or material defect following failed subsequent performance, he/she is not entitled to any additional compensation for damages. General Terms and Conditions of Krömker GmbH
11.8 Should a customer or a third party improperly undertake remedies, Krömker shall not be liable for any consequences resulting there from. The same shall apply to any changes made to the delivery item without Krömker’s prior consent.
11.9 The customer cannot assert any claims for supplementary performance, when he/she becomes aware of the defect upon concluding the contract or does not recognise it due to gross negligence, unless there is fraudulent intent or a guarantee of quality. With regard to further claims, section 12 of these General Terms and Conditions applies.
11.10 If Krömker rectifies the defect, the duration of the limitation period shall be interrupted during the period in which the customer is not able to use the delivery item because of these activities by Krömker.
11.11 All claims for subsequent performance including any claims from damages are excluded for used delivery items, except for any newly repaired parts.
11.12 Krömker retains the right to return service, in so far as the obligation to provide supplementary performance is impossible due to non-contractual performance. If the impediment to performance occurs due to a sole or predominant fault of the customer, or it is late accepting the provision of the service, then Krömker retains its right to return service.
11.13 If Krömker expressly issues a written guarantee for the quality or durability of an item, the customer is entitled to file statutory damage compensation claims against Krömker in addition to the rights arising from the guarantee. Section 11.1 to 11.12 and Section 12 asserting such claims. Furthermore, the customer shall not receive any guarantee in the legal sense. Manufacturers guarantees shall however remain unaffected by this.
12. Liability for defects of title/Infringement of intellectual property rights
12.1 Krömker shall be obliged to perform the deliveries free from defects from title, for example, industrial property rights and copyrights of third parties (hereinafter referred to as ‘Intellectual Property Rights’), only in the country of the place of delivery. If a third party asserts justified claims against the customer due to the infringement of Intellectual Property Rights resulting from deliveries provided by Krömker which are used as per contract, Krömker shall be liable to the customer within the period stipulated as follows: (i) Krömker shall, at its discretion and own costs, either obtain a right to use the concerned deliveries or to modify them to prevent an infringement of the Intellectual Property Right, or replace them. (ii) If this is not possible for Krömker under reasonable conditions, the customer shall have the right to withdraw from the contract or to reduce the contract price as well as the right to claim damages according to Section 12. The above obligations of Krömker shall apply only on the condition that the customer promptly informs Krömker in writing about any claims asserted by third parties, that the customer does not acknowledge any infringement, and that the right of Krömker to conduct any defence measures or settlement negotiations shall remain unaffected. If the customer ceases to use the deliveries or services on the ground of claims by third parties, the customer shall make sure, such as by express notice to the third party, that the cessation of use does not constitute an acknowledgement of an infringement of Intellectual Property Rights.
12.2 Customer claims based on defects shall be excluded, insofar as he/she is responsible for the infringement of property right.
12.3 Claims of the customer shall also be excluded insofar as the infringement of the Intellectual Property Rights is caused by specific customer requirements, through any use which was not foreseeable by Krömker or because of the customer modifying the deliveries and/or services or using them together with products not delivered by Krömker.
12.4 Any further claims based on defects shall be excluded.
13. Other liability
13.1 Krömker is liable for damage caused by wilful misconduct, caused by gross negligence by its bodies and managing staff, in a culpable loss of life, injury or adverse effect on health; in case of defects maliciously concealed or whose absence was guaranteed by Krömker, as well as in case of delivery item defects to the extent as liability is provided under the product liability law for personal injury and property damage in relation to privately used items.
13.2 In case of any violation of material contractual obligations, Krömker shall also be liable for the gross negligence of non-managerial staff as well as for or minor negligence, whereby the latter instance shall be limited to the reasonably foreseeable damage that is typical of the contract.
13.3 Notwithstanding the liability stipulated in Section 13.1, Krömker shall not be liable for financial loss or consequential damages, for compensation for loss of profit, loss of production, interruption of business, contractual claims of third parties, lost usage, financing expenditure, interest loss and claims under a covering purchase, nor for loss of data, information and programmes.
13.4 The customer shall take all necessary and reasonable measures to prevent or limit damages, in particular the customer shall ensure the regular back-up of programmes and data. Under the conditions set out in Sections 13.1 and 13.2, Krömker shall only be liable for the reconstruction of data if the customer has determined with certainty that this data can be reconstructed from other data material with reasonable effort.
13.5 Broader or other claims of damage made by the customer against Krömker or its vicarious agents other than those stipulated in Section 13 here shall be excluded no matter the legal foundation.
14. Statue of limitations
14.1 All warranty claims for defects shall expire one year from delivery. This shall not apply if the customer fails to give proper notice regarding the defective parts (Section 10.1 of these Terms and Conditions) or the goods delivered have been installed in other customer items or have been altered by the customer. The possibility for the customer to prove that the modification or the installation of the goods has not caused the defect remains unaffected.
14.2 The statutory period shall apply to wilful or malicious conduct and to claims made under product liability law and to the company’s right of recourse (Section 479 Para. 1 German Civil Code [BGB]).
15. In accordance with Section 28 of the Federal Data Protection Act, Krömker advises that the customer data received in conjunction with the business relationship is processed and saved for its own purposes by Krömker.
16. Safety regulations
16.1 The customer must comply with all applicable national or international laws, provisions and regulations regarding medical devices, including, but not limited to, the Medical Device Directive and its guidelines of the European Commission (MEDDEV).
16.2 Without prejudice to all other provisions of the MEDDEV, the customer is obligated to notify Krömker immediately of an issue with a Krömker product or signs that a Krömker product is not safe.
16.3 The customer is obliged to ensure that a product can be traced at any time in case of a recall.
16.4. The customer may not remove references to Krömker as the manufacturer of the product, other notices and instructions for use or serial numbers and shall not sell the products without such notices and instructions for use.
17. Place of jurisdiction/Applicable law/Miscellaneous
17.1 The place of performance for all payment obligations of the customer is Bückeburg, Germany.
17.2 The law of the Federal Republic of Germany shall apply. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) shall be explicitly excluded.
17.3 All disputes, controversies or claims between the parties arising out of or in relation to this business, including the validity, invalidity, breach or termination thereof, shall be resolved by arbitration by the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) according to the provisions which are valid on the date on which the initiation of procedure is notified in accordance with these rules. The number of arbitrators involved is three; the number of arbitrators is however restricted to one in cases where the dispute value is less than €500,000.00. The court of arbitration is located in Munich, Germany. Arbitral awards are legally binding and mandatory for the parties involved in arbitration proceedings.
17.4 The place of jurisdiction is Bückeburg, Germany. Krömker is, however, entitled at its discretion to also avail itself of the jurisdiction responsible for the domicile of the customer.
18. Severability clause Should individual terms of the Agreement with the customer including these General Terms and Conditions be entirely or partially ineffective or lose their effectiveness, the validity of the other regulations shall not be affected by this. The entirely or partially invalid provision shall then be replaced by a provision whose economic purpose comes as close as possible to that of the invalid provision.
Issued on: 1st November 2015