General terms and conditions of sale, delivery
I. Decisive conditions, conclusion of contract
The following terms and conditions shall apply exclusively to all orders. Any conflicting terms and conditions of business or purchase shall have no legal effect, even if we do not expressly object and carry out the delivery without reservation. By placing an order and/or accepting delivery, the ordering party shall acknowledge our terms and conditions.
The order shall become binding for us when we give our written confirmation or start executing the order. All agreements made between us and the ordering party for the purpose of executing this contract shall be set out in writing in this contract. Any amendments, additions or other subsidiary agreements shall require our written confirmation to be binding. Any expressly agreed contractual provisions shall take precedence over the provisions in these general terms and conditions.
II. Offer, cost estimate, dimensions, weights, quantities
Our offers as well as the prices and delivery options stated in our catalogues, print material, letters etc. are subject to change without notice, unless otherwise stated in the order confirmation or unless we have expressly declared otherwise in writing. Cost estimates shall not be binding.
Unless they are expressly marked as binding, attached documents such as illustrations, drawings, weight and measurement specifications are approximate values in keeping with standard industry practice. In particular with regard to our valves, we reserve the right to deviate in terms of dimensions and materials. Insofar as flow rates and resistance coefficients of our valves are listed in our catalogues, these figures merely enable the correct selection and dimensioning of the valves to be fitted or give an indication of the pump capacities to be installed.
The values for operating pressures and temperatures given in our tables are only valid up to a nominal width of DN 80. Deviating operating pressures and temperatures represent special designs, for which surcharges apply.
In the case of special designs, the ordering party must provide detailed information on pressure, medium and temperature.
We reserve property rights and copyrights to illustrations, brochures, calculations and other documents; they must not be made accessible to third parties. This shall apply in particular to such written documents that are designated as “confidential”; the ordering party shall require our express written consent before passing them on to third parties.
Deviations in dimensions, weight and quantity within the scope of customary commercial tolerances, relevant DIN regulations and technical casting requirements shall be permissible. Specifications of dimensions and weights in our offers and order confirmations shall not constitute quality guarantees.
The delivery weights and quantities determined by us shall be decisive for the calculation.
III. Prices, reservation of right to change prices
Unless otherwise stated, our prices shall be in euros ex works, plus any VAT, excluding packaging, freight, customs duty and insurance, which may be charged separately.
For all orders – including orders on call and successive delivery contracts – where delivery is made later than four months after placing the order in accordance with the contract or at the ordering party’s request , we shall be entitled to pass on material and wage price increases to the ordering party within the scope of and as compensation for these price increases between conclusion of the contract and delivery.
The following shall apply to entrepreneurs within the meaning of section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB): If the price at the time of performance of the service has increased due to a change in the market price or an increase in the fees charged by third parties involved in the performance of the service, the higher price shall apply. If this price is more than 20 per cent higher than the agreed price, the customer shall have the right to withdraw from the contract promptly after we have notified him accordingly.
Price agreements for reworking business shall apply on condition that the ordering party provides the necessary material 6 weeks before the delivery date carriage-free. If this is not the case we shall be entitled to cover our metal needs at the ordering party's expense at current prices.
IV. Shipment, packaging, costs, transfer of risk
Shipment shall be effected at the expense and risk of the ordering party. Unless otherwise agreed in writing, the delivery term shall be “FCA (Free Carrier) Olpe” (Incoterms® 2020). This shall even apply if we have undertaken to bear the transport costs. We shall not be liable – even in the case of carriage paid delivery – for damage or loss during transport. Unless otherwise agreed, we shall decide on the type of packaging and shipment.
Goods which have been notified as ready for dispatch must be collected immediately, otherwise we shall be entitled, at our own discretion, to either dispatch them or store them at the cost usually charged by a forwarding agency and at the ordering party’s risk. One week after commencement of storage, the goods shall be deemed delivered. If dispatch is delayed due to circumstances for which we are not responsible, risk shall pass to the ordering party on the date when he was notified that the goods were ready for dispatch.
Risk shall pass to the ordering party when the goods are handed over to the railway, the forwarding agent or the carrier or 1 week after the commencement of storage, but at the latest when the goods leave the factory or warehouse, even if we have undertaken to deliver them.
V. Terms of payment and consequences in case of non-compliance, set-off
Our receivables shall be payable in accordance with the agreed terms of payment or as specified in the order confirmation. After the due date, we shall charge annual interest of 9 percentage points (5 percentage points for private consumers) over the respective base interest rate.
Unless there is a separate agreement or specifications in the order confirmation, our receivables shall be payable free of postage and expenses within 30 days of receipt of our invoice or an equivalent list of receivables, but no later than 30 days after the due date and receipt of the consideration. Subsequently, we shall charge annual interest at a rate of 9 percentage points (5 percentage points for private consumers) over the respective base interest rate.
The customer may only set off our claims against counterclaims that are undisputed or legally enforceable or such claims that are ready for decision.
VI. Delivery terms and liability regulations, purchase obligations for master and call orders,
The delivery term shall start as soon as all execution details, in particular technical issues, have been clarified, both parties have agreed on all conditions of the transaction and the ordering party has made the agreed down payment, if any. The delivery date shall be deemed observed if the delivery item has left the factory or the ordering party has been notified that the goods are ready for dispatch before its expiry.
Unless otherwise agreed or unless otherwise provided for in the contractual relationship, the delivery term stated by us shall always be non-binding.
If, for reasons for which we are responsible, our delivery is neither made in due time nor within a grace period to be set by the ordering party, the ordering party shall be entitled to withdraw from the ordered delivery.
The following shall apply to claims for damages due to delayed performance or non-performance instead of performance: If we are in default of delivery, in respect of which we are only guilty of ordinary negligence, the ordering party’s claim for compensation for default damages proven by him shall be limited to 0.5 per cent for each completed week of the delay but no more than a maximum of 5 per cent of the invoice value of the order affected by the delay.
If the ordering party can demand compensation for damages instead of performance, we shall be liable for damages in the event of sale to a private consumer (section 13 of the German Civil Code) if major obligations of the contract are violated even in the case of ordinary negligence, but any claims shall be limited to compensation for the damage foreseeable at the time of conclusion of the contract. In the case of sale to an entrepreneur, the same shall apply with the proviso that the claims shall be limited to fifty per cent of the order value.
In cases where one party is affected by force majeure (including strike and lockout in third-party companies), each party shall be entitled to suspend the performance of their contractual obligations without being liable for damages and/or reimbursement of expenses. However, the above provisions shall not apply to claims for damages arising from injury to life, body or health or from intentional or grossly negligent breaches of obligations by the contracting party or their vicarious agents.
The other contracting party shall be notified of the impediment to performance promptly and without undue delay.
Force majeure within this meaning shall be deemed to have occurred in the case of an event external to the business, externally 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 under the circumstances, and is not to be accepted by the business operator even due to its frequency in the business.
If contractual performance is delayed by more than four (4) months for reasons of force majeure as defined above, and if the parties have not agreed on a new basis for continuing contractual performance at the end of the delay, either party may, after this period and if the cause of non-performance continues to exist, give written notice of termination of the contract to the other party or, if the legal requirements are met, withdraw from the contract.
Partial deliveries of up to 10 per cent shall be permissible, unless the ordering party has specified in writing in the order that partial deliveries shall not be permissible.
If we postpone dispatch at the ordering party’s request, the ordering party shall be charged the costs incurred by storage, starting 1 month after notification of readiness for dispatch, but in the case of storage at the supplier's factory at least 0.5 per cent of the invoice amount for each month. However, the supplier shall be entitled to dispose otherwise of the delivery item after the fruitless expiry of a reasonable period of time and to effect delivery to the ordering party within a reasonably extended period of time.
Agreed delivery terms and dates shall be extended or postponed by the period by which the ordering party is in arrears with his obligations, without prejudice to our rights arising from default on the part of the ordering party. If the ordering party is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred to us in this respect, including any extra expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased item shall also pass to the ordering party at the point in time when the ordering party defaults on acceptance. In the event that the ordering party defaults on acceptance we may refuse further delivery.
Master and call orders must be called off within 8 months of the date of the order confirmation at the latest. The delivery period must not exceed 3 months. If the orders are not called off within the specified period or the delivery time is exceeded, we shall be entitled to withdraw from the contract after the expiry of a reasonable grace period and to claim damages for non-performance.
Goods may only be returned after prior agreement. In the case of goods returned for credit, 20 per cent shall be deducted as a handling fee. In the event that we take back goods that are subject to a reservation of title, we shall also be entitled to demand compensation for use or compensation for the reduction in value of the goods during the period of possession by the ordering party.
VII. Notice of defects, claims for defects, liability regulation
Notwithstanding the more extensive inspection and complaint obligations (section 377 of the German Commercial Code (Handelsgesetzbuch – HGB) existing in the case of a mutual commercial transaction, the ordering party must inspect the delivered goods for obvious defects and notify us in writing of any complaints regarding such obvious defects – the same shall apply to incomplete or incorrect deliveries – within one week of receipt of the goods and, in the case of defects which only become obvious later, within one week of their detection by the ordering party; otherwise the goods shall be deemed to have been approved in respect of the obvious defect and the ordering party can no longer derive any rights against us in this respect. This shall not apply in the case of a direct sale to a private consumer.
In the event of a justified notice of defect, we shall be obliged to rectify the delivered goods free of charge or, at our discretion, to make a replacement delivery. In the case of a sale to a private consumer, whether directly or through the subcontractor in the supply chain, the consumer or the subcontractor shall have the right of choice. If the rectification or replacement should fail despite two attempts, or if we refuse it without justification or delay it unreasonably, the ordering party shall be entitled to demand a reduction of the payment or, if a construction service is not the object of the liability for defects, to demand cancellation of the contract at his discretion.
The following shall apply to claims for compensation, subject to the provision in clause VIII (Other liability): In the case of sale to a private consumer, whether directly or through subcontractors in the supply chain, we shall be liable for compensation instead of performance in the event of a breach of the main obligations of the contract, even in the case of ordinary negligence, but any claims for compensation shall be limited to compensation for the damage foreseeable at the time of conclusion of the contract, unless we fraudulently concealed the defect or granted a guarantee for the quality of the item. In the case of sale to an entrepreneur, the same shall apply with the proviso that the claims shall be limited to fifty per cent of the value of the defective item, however sentence 1 shall also apply in this case if a private consumer buys the goods in the supply chain and has claims arising from a breach of obligations.
Warranty shall be ruled out if the defect is due to a violation of operating, maintenance or installation instructions, unsuitable or improper use, incorrect or negligent treatment by the ordering party, natural wear and tear as well as any interference with the delivery item by the ordering party or third parties.
VIII. Other liability (limitation and exclusion)
Apart from the above-mentioned claims for default and defects, we shall accept no liability unless the damage is due to a grossly negligent breach of obligations on our part or due to an intentional or grossly negligent breach of obligations by our legal representatives or vicarious agents, or unless the damages either result from injuries to life, body or health that are due to a breach of obligations on our part or due to an intentional or negligent breach of obligations by our legal representatives or vicarious agents, or are damages that are usually and typically insurable subject to reasonable terms and conditions through a third-party liability insurance to be taken out by us. This shall apply in particular to claims for damages arising from culpa in contrahendo, a breach of secondary obligations and unlawful acts.
Claims under the German Product Liability Act (Produkthaftungsgesetz – ProdHaftG) and from a guarantee shall not be affected.
IX. Statute of limitations, time limits
The claims under clause VII. (1) and (2) shall become statute-barred within one year of the delivery being handed over to the ordering party.
As an exception, these claims shall become statute-barred within the statutory period of limitation
- in the case of an intentional, fraudulent or grossly negligent breach of obligations by us, our legal representatives or vicarious agents;
- n the case of damages resulting from injury to life, body or health, due to a negligent breach of obligations on our part or due to an intentional or negligent breach of obligations by our legal representatives or vicarious agents;
- for claims arising from a guarantee for the quality of the item;
- in the case of a direct sale to a private consumer;
- insofar as we are obliged to reimburse the expenses which the ordering party has to bear in relation to a private consumer and/or a subcontractor in the supply chain due to the sale of a new item for the purpose of rectification (section 478 para. (2) of the German Civil Code);
- if the item delivered by us has been used for a building in accordance with its normal use and has resulted in the defectiveness of the building and Part B of the German Contracting Rules for Building Works (Teil B der Verdingungsordnung für Bauleistungen) was not the overall basis of the contractual relationship.
In all cases, the limitation period shall commence in accordance with statutory provisions. The statutory provisions on suspension of the statute of limitations, suspension and recommencement of the periods shall remain unaffected. In the case of claims for damages under the German Product Liability Act, the statutory limitation regulations shall apply. The statutory limitation rules shall also apply in the case of intentional and grossly negligent breaches of obligations.
To the extent that we are liable pursuant to clause VIII. because the damage in question is of a kind that can usually and typically be insured subject to reasonable terms and conditions through a liability insurance policy to be taken out by us, the limitation period shall be 1 year.
X. Property rights, equipment, models and drawings
If deliveries are made according to drawings or other information provided by the ordering party, the ordering party shall be responsible for their correctness and for ensuring that the property rights of third parties are not infringed; the customer shall indemnify us against all claims of a property right owner.
Tools, moulds, models and equipment required for the ordered goods can be charged by us in full or proportionately. They shall remain our property unless expressly agreed otherwise with the customer. If they are manufactured according to specifications of the ordering party, they shall be used exclusively for deliveries to the ordering party as long as the ordering party meets his acceptance and payment obligations and the business relationship continues.
The costs for the maintenance, modification and use of the models or casting equipment including the subsequent moulds shall be borne by the ordering party. If the patterns or moulds are provided by the ordering party, the ordering party shall be liable for ensuring that they are correctly designed for the casting process and that the models and casting equipment are executed in a way that fits the intended use. We shall not be obliged – except by written agreement – to check the conformity of the casting equipment provided with the attached drawings. We may modify production equipment provided by the ordering party after consultation and approval if this appears necessary to us for reasons related to the casting process. Models, moulds, die-casting equipment and other materials provided to us by the ordering party shall be stored by us with the necessary care. We shall accept no liability in the event of a possible loss, not even for consequential damage, unless we, our legal representative or vicarious agents are guilty of an intentional, fraudulent or grossly negligent breach of obligations.
The ordering party shall bear the costs of modification, maintenance and replacement of his production equipment.
Drawings and documents handed over to the ordering party by us shall not be passed on to third parties unless we have given our written consent. We shall be entitled to demand the return of these drawings and documents at any time.
XI. Reservation of title
We shall reserve title to the delivery item (reserved goods) until all our claims against the ordering party arising from the business relationship, including future receivables, also those arising from contracts concluded at the same time or later, have been settled. In the case of a current account, the reserved property and all rights shall be deemed securities for our entire outstanding balance in addition to interest and costs.
In the event of seizure or other interventions by third parties, the ordering party shall notify us promptly.
The ordering party shall be entitled to process and resell the delivery item in the ordinary course of business. This power shall end if the ordering party is in default of payment, or if the ordering party ceases to make payments, or if an insolvency petition is filed against the ordering party. He shall be obliged to resell the reserved goods only subject to a reservation of title and to ensure that the receivables from the resale are transferred to us in accordance with clauses 5 and 6. The use of the reserved goods for the fulfilment of contracts for work and contracts for work and materials shall also be deemed to be a resale. He shall not be entitled to dispose of the reserved goods in any other way, in particular to pledge them or assign them as security.
An assignment of the receivables from the resale of our reserved goods shall not be permitted, unless it is an assignment by way of genuine factoring that is reported to us and in which the factoring proceeds exceed the value of our secured receivables. On the crediting of the factoring proceeds, our receivable shall be due immediately.
By processing the reserved goods, the ordering party shall not acquire ownership of the new item pursuant to section 950 of the German Civil Code. The processing and transformation of the goods by the ordering party shall always be carried out in our name and on our behalf, but without any obligation on our part. From then on, the processed goods shall be deemed to be reserved goods.
If the reserved goods are processed, combined or intermixed with other goods, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership expires due to combination, intermixing or processing, the ordering party hereby already assigns to us the ownership and expectant rights to the new stock or item within the scope of the invoice value of the reserved goods, in the case of processing in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used, and shall store them for us free of charge. Our co-ownership rights shall be deemed reserved goods.
The ordering party’s receivables from the resale of the reserved goods are hereby already assigned to us. They shall serve as security to the same extent as the reserved goods.
If the reserved goods are resold by the ordering party together with other goods, the receivable from the resale shall be assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other goods. In the event of a resale of goods in which we have co-ownership shares in accordance with clause 4, a part of the receivables corresponding to our co-ownership share shall be assigned to us.
If a secured event occurs (objective insolvency, non-payment, suspension of payments, insolvency, etc.), the ordering party undertakes to provide us with an exact list of his receivables with names and addresses, to notify his customers of the assignment promptly and to provide us with all information necessary for the assertion of the assigned receivables.
If the value of the existing securities exceeds the secured receivables by a total of more than 20 per cent, we shall be obliged to release securities of our choice at the ordering party's request, taking into account the ordering party's interests.
Based on the reservation of title, we may demand the return of the delivery item if we have withdrawn from the contract. We shall be entitled to withdraw from the contract without regard to the further requirements of section 323 of the German Civil Code from the point in time when the customer is in default of payment in whole or in part; in particular, no further deadline need be set by us to exercise our right of withdrawal. The same shall apply if the customer ceases to make payments or if an insolvency petition is filed against him. All costs arising from the repossession of the delivery item shall be borne by the ordering party. We shall be entitled to freely dispose over the returned delivery item.
XII. Place of performance, legal venue, governing law
The place of performance shall be our registered place of business, unless otherwise stated in the order confirmation.
The place of jurisdiction in the case of contracts with merchants and legal entities shall be the competent court at our registered place of business. However, we shall also be entitled to take legal action against the ordering party at the court of his registered place of business.
The legal relations between the parties shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (UNCITRAL/CISG) and the UN Statute of Limitations.
XIII. Data processing
We are entitled to process personal data within the scope of the business relationship. The rights of data subjects are very important to us. Our entire privacy statement, as well as the rights of data subjects, can be viewed at any time on our website under the link https://www.kemper-olpe.de/de/metanavigation/datenschutz/.
XIV. Final provisions, miscellaneous
- Personal data of the supplier shall be stored by us in accordance with the provisions of the General Data Protection Regulation (GDPR).
- The contractual language shall be German. Insofar as the contract partners additionally use another language, the German wording shall take precedence.
- Weight measurements shall be determined using calibrated measuring instruments and originate from freely programmable additional equipment. The calibrated measured values shall be stored unchanged for at least three months after receipt of delivery and can be viewed by the customer.
Last updated: September 2021