Allgemeine Geschäftsbedingungen

1.1. The business relationship between the customer and KOSATEC shall be subject exclusively to the following General Terms and Conditions of Sale and Delivery (TOS) as last amended at the time of placing the purchase order.

1.2. These TOS apply in particular to contracts for the sale and/or supply of movable goods, regardless of whether such goods are manufactured by ourselves or purchased by us from third-party suppliers (sections 433, 651 of the German Civil Code, hereinafter: BGB). These TOS, as amended from time to time, also apply as a framework agreement to any contracts for the sale and/or supply of movable goods entered into with you in the future without any particular reference to their application being required from KOSATEC in each individual case.

1.3. Deviating, complementary or conflicting terms of the customer shall be incorporated in the agreement only if and to the extent that KOSATEC expressly consented to their application. That applies also where KOSATEC has knowledge of the terms of the customer and effects a delivery to the customer without reservation.

2.1. The contract shall come into effect if and when KOSATEC confirms the customer‘s purchase order when placed by the customer, or delivers the goods or has them ready for dispatch.

2.2. In case of purchase orders placed via electronic means, KOSATEC shall promptly acknowledge receipt of the purchase order. Such acknowledgement of receipt shall, however, not in itself constitute an acceptance of the customer’s offer by KOSATEC.

2.3. None of KOSATEC’s employees, except chief executive officers and authorised signatories (Prokuristen), has the authority to enter into any oral agreements deviating from these TOS. This applies in particular to any assumption of guarantees.

3.1. In case of non-availability, at the time of the customer‘s purchase order, of any items of the product chosen by the customer, KOSATEC shall notify the customer thereof. Where a product is permanently unavailable, the customer shall likewise be notified. In any such case, no contract shall come into effect.

3.2. Where the product referred to in the purchase order is only temporarily unavailable, KOSATEC shall likewise make prompt notification thereof. In case of any delay in delivery of more than two weeks, the customer shall be entitled to withdraw from the contract. Notwithstanding the foregoing, KOSATEC shall in such case also be entitled to cancel the contract. In the latter case, KOSATEC shall promptly refund to the customer any payments which may have been already made.

4.1. Where delivery periods have been specified by KOSATEC and made the basis of the purchase order, such periods shall be extended in the event of force majeure, e.g. mobilization, war, riot, epidemics or any similar event occurring through no fault of KOSATEC, e.g. strike or lockout, such extension applying for the duration of any such event or the effects thereof. The same applies where the customer fails to comply with any applicable duties of active cooperation.

4.2. Delivery shall be ex warehouse; the latter place shall also be the place of performance. Goods shall be delivered to another place of destination upon the request and at the expense of the customer (sale by delivery to a place other than the place of performance at the customer’s request). Unless otherwise agreed, KOSATEC shall determine the method of shipment in its own discretion (including without limitation carrier, routing, packaging).

4.3. The risk of accidental loss or accidental deterioration of the goods shall pass to the customer no later than upon delivery. However, in case of sale by delivery to a place other than the place of performance at the customer’s request, the risk of such accidental loss or accidental deterioration as well as of any delay in delivery shall pass to the customer upon hand-over of the goods to the forwarder, carrier or other person or agent entrusted with the shipment. Delivery shall also be deemed to have occurred in the case of any delay in acceptance by the customer.

4.4. If and to the extent that deliveries are agreed to be subject to acceptance, the risk shall pass upon such acceptance. Further in respect of such agreed acceptance, the statutory provisions for contracts for work and services apply correspondingly and in all respects. Delivery and/or acceptance shall also be deemed to have occurred in the case of any delay in acceptance by the customer.

5.1. Unless otherwise agreed in individual cases, prices charged shall be KOSATEC’s current list prices in effect at the time of the conclusion of the contract and shall be quoted ex works Braunschweig/Germany plus packaging and statutory VAT at current rate.

5.2. Unless otherwise agreed, in case of sales by delivery to a place other than the place of performance at the customer’s request (section 4.2.), any costs of transport and, where applicable, of any transport insurance requested as well as any applicable customs and other public duties shall be borne by the customer.

6.1. Payment of the purchase price and/or remuneration shall be due immediately upon conclusion of the contract. Payment shall be made depending on the chosen method of making the purchase order.

6.2. Upon expiry of an agreed payment period, the customer shall be in default of payment. During the period of default, the purchase price shall bear interest at the applicable statutory default interest rate. KOSATEC reserves the right to claim further damages caused by default. Any rights against merchants under commercial law to claim interest from the due date shall remain unaffected (section 353 of the German Commercial Code, hereinafter: HGB).

7.1. Unless otherwise provided hereinafter, KOSATEC shall be liable for defects in quality as provided by the applicable statutory provisions, including without limitation sections 434 et seq. BGB. Special statutory provisions in a supply chain for the final delivery of products to a consumer shall in any case remain unaffected (recourse against supplier under sections 327u, 445a-445c and 478, BGB).

7.2. The limitation period for warranty claims based on defects in quality in respect of new items delivered by KOSATEC shall be 12 months; in respect of second-hand items, any liability for defects in quality shall be excluded. That shall not apply to claims for damages.

7.3. Where the customer can no longer claim, as a result of such claim having become time-barred, that an item which is free of defects be delivered or that a defect be remedied, that shall no longer give rise to any claims for damages. That shall not apply in the event that KOSATEC breached her obligation to deliver an item which is free of defects or her obligation to remedy the defect at a time when such right of the customer was not yet time-barred. Any claims for damages arising therefrom shall be subject to the statutory limitation periods.

7.4. The statutory limitation periods apply in case of injury to life, body or health, in case of intentional or grossly negligent breach of duty by KOSATEC, in case of fraudulent concealment of a defect and in case of assumption of a guarantee of quality.

7.5. A guarantee by KOSATEC for delivered goods shall be deemed to exist only where expressly so given in the product description of the item concerned.

7.6. Claims for damages and/or reimbursement of wasted expenditure shall be available only subject to the provisions of section 8 and shall be excluded unless as admitted thereunder.

8.1. KOSATEC shall be liable without limitation for intentional conduct and gross negligence.

8.2. KOSATEC‘s liability for damages resulting from breach in simple negligence of essential contractual obligations (cardinal obligations), i. e. contractual obligations the fulfilment of which is fundamental to the proper execution of the contract and may regularly and justifiably be relied upon by the customer, shall be limited in amount to the risk that is foreseeable given the type of contract.

8.3. KOSATEC‘s liability for damages resulting from breach in simple negligence of non-essential contractual obligations shall be excluded.

8.4. The foregoing provisions on limitation and exclusion of liability shall not apply in case of personal injury (injury to life, body or health), in case of any guarantees given by KOSATEC or in case of fraudulent conduct.

8.5. The foregoing provisions shall not affect any liability of KOSATEC under the Product Liability Act (Produkthaftungsgesetz).

8.6. The foregoing provisions on liability shall also apply to KOSATEC‘s employees and other agents.

9.1. All goods sold shall remain KOSATEC’s property until receipt of full payment of all claims arising now or in future from the sales contract and from the ongoing business relationship (secured claims).

9.2. Goods delivered subject to retention of title shall not be given in pledge to any third party, nor assigned as collateral security until full payment of the secured claims is received. The customer shall promptly notify KOSATEC in text form of any action or attempt by third parties to seize or take possession of goods owned by KOSATEC.

9.3. If the customer acts contrary to the contract, including without limitation if the customer fails to make payment of the purchase price when due, KOSATEC shall have the right in accordance with statutory provisions to withdraw from the contract and to claim restitution of any goods on the grounds of the retention of title and the withdrawal from the contract. In case of failure by the customer to make payment of the purchase price when due, KOSATEC shall be entitled to exercise such rights only if it has set the customer a reasonable deadline for payment to no avail or if such deadline may be dispensed with according to statutory provisions.

9.4. The customer shall be permitted to resell and/or further process any goods subject to retention of title in the ordinary course of business. In such case, the following provisions apply in addition:

10.1. Software offered by KOSATEC constitutes works subject to copyright or other protection.

10.2. Any sale of software shall be subject, in addition to these TOS, to the terms and conditions of business and licence terms of the manufacturer of any such software concerned. Such terms and conditions are usually enclosed with the data carrier or included therein.

10.3. According to the licence terms of the manufacturer, the purchaser is usually granted no more than a single unlimited licence, such that the purchaser is not permitted to copy it or to allow it to be used by others. A multiple licence requires a specific agreement made to that effect.

10.4. By concluding the contract, the customer accepts also the terms and conditions of business and licence terms for any software concerned in relation to the manufacturer.

11.1. The customer shall be entitled to set off against KOSATEC’s claims only if the customer’s counterclaim has either been finally adjudicated upon or accepted by KOSATEC or is undisputed. Furthermore, the customer shall be entitled to exercise any right of retention only if and to the extent that such right is based on a counterclaim of the customer which arises from the same contractual relationship.

11.2. The customer may not without KOSATEC’s consent assign or transfer to any third party any rights or obligations arising from the agreements entered into with KOSATEC.

11.3. Where any assignment made without KOSATEC’s consent is legally effective pursuant to section 345a HGB despite such lack of consent, that shall not affect KOSATEC’s right to set-off any counterclaims even against the customer (former creditor).

12.1 KOSATEC draws attention to the fact that any export of goods delivered is not permitted without prior approval by the public authorities. Binding information with regard to export is available from the Federal Office of Economic Affairs and Export Control (Bundesamt für Wirtschaft und Ausfuhrkontrolle, ‘BAFA’), Eschborn/Taunus/Germany, www.bafa.de. Approval declarations must be obtained by the customer prior to the transfer of goods.

12.2 Sanctions clause in accordance with Council Regulation (EU) No 833/2014

13.1. The contractual language shall be German.

13.2. Any agreements between the customer and KOSATEC shall be governed by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and of any conflict of laws provisions which would lead to the application of any law other than that of Germany.

13.3. The exclusive place of jurisdiction in case of contracts with merchants within the meaning of the provisions of the German Commercial Code (HGB), legal persons under public law or special funds under public law shall be the court having jurisdiction for Braunschweig/Germany. The same applies if the customer has no place of general jurisdiction in Germany or if the customer against whom legal action is to be brought has transferred its domicile or habitual residence to a foreign country after the conclusion of the contract, or if its domicile or habitual residence is unknown at the time when legal action is brought. KOSATEC shall also be entitled to bring legal action at the customer’s place of business.