General Terms and Conditions

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 or, in the case of international deliveries, FCA Braunschweig in accordance with INCOTERMS 2020; 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. Any customs duties, fees, additional taxes, and other public charges shall be borne by the customer.

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. The customer shall bear all domestic and foreign bank charges.

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. Any manufacturer’s warranty, if applicable, shall remain unaffected thereby.

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.

7.7. If the customer has its registered office outside Germany, the customer shall be entitled, in the event of delivery of goods not in conformity with the contract, to rescind the contract or demand replacement delivery only if claims for damages against KOSATEC are excluded, or if it would be unreasonable for the customer to utilize the non-conforming goods and claim compensation for the remaining loss. In such cases, KOSATEC shall first be entitled to remedy the defect. If the defect remedy fails and/or leads to an unreasonable delay, the customer shall be entitled, at its discretion, to rescind the contract or to demand replacement delivery. The customer shall also be entitled to do so if the defect remedy causes unreasonable inconvenience or if there is uncertainty regarding the reimbursement of any expenses incurred by the customer.

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. If the customer has its registered office outside Germany, the following shall apply: KOSATEC shall be liable to the customer for damages in accordance with the statutory provisions if a breach of contract is based on intentional or grossly negligent conduct attributable to KOSATEC; any fault on the part of KOSATEC’s representatives or vicarious agents shall be attributable to KOSATEC. KOSATEC shall also be liable in accordance with the statutory provisions insofar as KOSATEC breaches a material contractual obligation. In all other respects, KOSATEC’s liability shall be excluded.

8.7. 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:

9.5. If the retention of title is not effective under the law of the country of destination to which the goods are delivered, KOSATEC may require the customer to assist in establishing a security right for KOSATEC that complies with the provisions of that country. Such security right shall take the place of the retention of title. The obligation to release securities pursuant to section 9.4.4 shall remain unaffected.

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. All deliveries and services by KOSATEC are subject to the condition that their performance is not prevented by any obstacles arising from sanctions or export control regulations (“Export Control”).

12.2. For the purposes of this clause, “Sanctions” means all economic and financial sanctions or trade embargoes implemented, administered, and enforced in particular by the European Union (EU), the Member States of the EU, the United Kingdom, the United Nations Security Council, or the United States of America, provided that such sanctions or their observance do not constitute a violation of applicable national law (anti-blocking regulations).

12.3. The sanctions and export control regulations applicable at the relevant time shall apply to the contracts concluded with the Customer.

12.4. The Customer warrants that neither it nor any of its group companies nor, to the best of its knowledge, any of its legal representatives (a) is a natural or legal person subject to Sanctions; or (b) is owned or controlled by a natural or legal person subject to Sanctions. If this situation changes during the performance of the contract, the Customer shall notify KOSATEC without undue delay. If the Customer fails to do so, KOSATEC shall be entitled to withdraw from or terminate the contract and to stop any deliveries, and the Customer shall have no claims against KOSATEC arising therefrom.

12.5. Re-export prohibitions and monitoring obligations

12.6. With respect to all countries or territories not mentioned in 12.5.1, the Customer warrants that it will acknowledge and comply with the Sanctions under 12.2, i.e. it will not directly or indirectly sell, export, supply, perform, transfer, or otherwise make available the delivered goods or rendered services to any persons, companies, entities, organizations, or countries in violation of such Sanctions. The Customer undertakes to impose this obligation on its own purchasers as well. The Customer shall promptly inform KOSATEC if it obtains knowledge or indications of events or circumstances that may lead to a breach by KOSATEC or the Customer of Sanctions in connection with the contract. If the Customer fails to do so, KOSATEC shall be entitled to withdraw from or terminate the contract and to stop deliveries or services, without the Customer having any claims against KOSATEC as a result.

12.7. Deliveries of goods and services by KOSATEC may be subject to export control and may require approval or a licence from an export control authority or other competent body. Such approvals or licences include, in particular, export and transfer permits. This applies especially if KOSATEC’s goods (items, technology, or software) are classified as armaments or dual-use goods. KOSATEC is entitled to obtain a “null decision” or recipient inquiry. If the Customer carries out an export or transfer of goods supplied by KOSATEC and/or provides services received from KOSATEC, the Customer undertakes to obtain all required approvals or licences.

12.8. The Customer guarantees that it will not use, or cause to be used, the goods supplied by KOSATEC (hardware, software, or technology, irrespective of the mode of provision) or the services rendered by KOSATEC (including any technical support) for critical purposes or critical end-uses. Critical uses include, in particular, use in connection with (i) the development, manufacture, or use of ABC weapons including delivery technology, (ii) military purposes, (iii) nuclear purposes, (iv) repression and/or human-rights violations, (v) terrorist purposes, (vi) drug- or torture-related crimes, or (vii) armed conflicts. The Customer undertakes to impose this obligation on its own purchasers as well.

12.9. Upon first request, the Customer shall promptly provide KOSATEC with complete and truthful information, documents, and declarations necessary to verify compliance with Sanctions and Export Control by KOSATEC and, where applicable, to apply for required licences, if these are not already available to KOSATEC. In particular, the Customer shall provide complete and truthful information, documents, and declarations concerning the (end) user and/or (end) destination and/or (end) use of the goods and services to be supplied, free of charge and, if required, in original form. This includes, in particular, the issuance of an End-User Certificate (EUC).

12.10. Delays due to export control and licensing procedures

12.11. If performance of the contract violates this Section 12 or applicable Sanctions and Export Control under 12.2, KOSATEC shall be entitled to refuse performance, withdraw from, or terminate the contract with immediate effect. KOSATEC undertakes, to the extent legally permissible, to inform the Customer of the reasons for refusal of performance. KOSATEC shall not be liable for non-performance of the contract under this Section 12 or due to applicable Sanctions and Export Control pursuant to 12.2, unless such non-performance is due to KOSATEC’s intentional or grossly negligent conduct toward the Customer.

12.12. The Customer shall fully indemnify KOSATEC against all claims asserted by authorities or other third parties against KOSATEC arising from any non-compliance by the Customer with this clause and/or other provisions relating to applicable Sanctions and Export Control under 12.2, and shall compensate KOSATEC for all expenses and damages incurred in this connection, whether material or immaterial, including fines and penalties. This shall not apply if the breach results from KOSATEC’s intentional or grossly negligent violation of contractual obligations toward the Customer.

12.13. In the event of withdrawal from or termination of the contract, the Customer shall reimburse KOSATEC for all costs incurred in connection with the performance of the contract – in particular material and production costs – to the extent that such costs are attributable to a culpable breach by the Customer of this clause.

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.