Terms and Conditions of Sale for Kalthoff Luftfilter und Filtermedien GmbH

(Valid as of 05/2014)

1. General

1.1
All goods and services shall be supplied on the basis of these terms and conditions (T&Cs) as well as any separate contractual terms which may have been agreed. If the Buyer’s terms of purchase differ from these T&Cs, they shall not constitute part of the contract even after an order has been accepted.
In the absence of a separate agreement, a contract shall only materialise when it has been confirmed in writing by Kalthoff Luftfilter und Filtermedien GmbH (hereinafter known as Kalthoff).

1.2
Kalthoff shall retain the title rights and copyrights to samples, cost estimates, drawings and similar information of a tangible and intangible nature – even in electronic format. Kalthoff shall undertake to only allow third parties access to that information and documents marked by the Buyer as being confidential with his consent.

2. Price and Payment

2.1
In the absence of a separate agreement thereto the prices shall apply ex works including loading in the works but excluding, however, packing and unloading. Value added tax shall be added to the prices at the rate in force at that time.

2.2
In the absence of a separate agreement thereto payment is to be made in full to Kalthoff’s bank account, and to be more precise, net cash within 30 days from the date of invoice. Payment must be made so that Kalthoff is able to dispose of the sum on the date on which payment is due.

2.3
The Buyer shall only be entitled to retain payments insofar as his counter-claims are undisputed or have been adjudicated.

2.4
The Buyer shall only be entitled to offset counter-claims from other legal relationships insofar as they are undisputed or adjudicated.

3. Delivery period, Delays in delivery

3.1
The delivery period is shown by the agreements made between the Parties. Compliance with them by Kalthoff shall assume that all commercial and technical queries between the Parties to the contract have been clarified and that the Buyer has fulfilled all obligations incumbent upon him such as, for example, furnishing the necessary official certificates or approvals or the payment of a down payment. If this is not the case, the delivery period shall be extended accordingly. This shall not apply insofar as Kalthoff is to blame for the delay.

3.2
Compliance with the delivery period shall be subject to the reservation that Kalthoff has been supplied with the correct goods on time. Kalthoff is to inform the Buyer as soon as possible of any looming delays.

3.3
Compliance with the delivery period shall have been achieved if the item to be supplied has left our works by the time the delivery period has expired of if Kalthoff has notified the Buyer that the item is ready for dispatch. Insofar as an acceptance test has to be conducted, the acceptance test date shall count – unless the Buyer is entitled to refuse acceptance. Alternatively it shall be the date on which the supplied item is ready to undergo the acceptance test which shall count.

3.4
If the dispatch or acceptance of the item to be supplied is delayed for reasons for which the Buyer is responsible, he shall consequently be invoiced for the costs incurred as a result of the delay beginning one month after he has been notified that the item to be supplied is ready for dispatch or for the acceptance test.

3.5
If non-compliance of the delivery period is attributable to force majeure, labour disputes or other events beyond the control of Kalthoff, the delivery period shall be extended by an appropriate length of time. Kalthoff shall inform the Buyer when such circumstances begin and end as soon as possible.

3.6
The Buyer may withdraw from the contract without setting a period of time for delivery if it becomes impossible once and for all for Kalthoff to render the entire performance prior to the passing of risk. The Buyer may, moreover, withdraw from the contract if, when an order is placed, it becomes impossible to carry out part of the delivery to be supplied and he has a justified interest in rejecting a partial delivery. If this is not the case, the Buyer shall consequently have to pay that part of the contractual price attributable to the part of the delivery which cannot be supplied. The same shall apply in the event of incapacity. Moreover, Section 7.2 shall apply.
If impossibility or incapacity occurs during a default in taking delivery or if the Buyer is solely or mostly responsible for these circumstances he shall continue to be obliged to render his counter-performance.

3.7
If Kalthoff finds himself in default and if the Buyer accrues a loss as a result, he shall consequently be entitled to demand a lump sum as default compensation. It will amount to 0.5% of the value of the part of the overall consignment which cannot be used on time or as intended by the contract in as a result of the delay for each full week of the delay, not exceeding in total 5% of the value of the said part of the consignment.
If – taking statutory exceptions into account – the Buyer sets Kalthoff a reasonable period for performance after performance is due and Kalthoff fails to comply with the period, the Buyer shall be entitled in line with the statutory regulations to withdraw from the contract. At Kalthoff’s request, he shall undertake to state within a reasonable period of time whether he intends to make use of his right to withdraw from the contract.
Other claims arising as a result of a delay in delivery shall only be determined by Section 7.2 of these T&Cs.

4. Passing of risk, Acceptance

4.1
Risk shall pass over to the Buyer when the item to be supplied has left the works, and to be more precise, even in those cases in which part deliveries are supplied or Kalthoff has taken over other performances as well such as, for example, dispatch costs or delivery and assembly.  Insofar as an acceptance test has to be conducted, risk shall pass over when the acceptance test has been successful. It must be conducted immediately on the acceptance test date, alternatively after Kalthoff has reported that the item to be supplied is ready for the acceptance test to be carried out. The Buyer must not refuse acceptance on account of a minor defect.

4.2
If there is a delay in dispatch or if the goods are not dispatched, or if there is a delay in the acceptance test or if it is not carried out, as a result of circumstances for which Kalthoff is not responsible, risk shall pass over to the Buyer on the date on which he is notified that the item to be supplied is ready for dispatch or for the acceptance test. Kalthoff shall undertake to take out insurance cover at the Buyer’s expense, as requested.

4.3
Part deliveries are allowed provided that the Buyer can reasonably be expected to accept them.

5. Reservation of title

5.1
Kalthoff shall reserve the title to the item to be supplied until all payments – including any there may be for auxillary services also owed in addition to the item to be supplied – relating to the supply contract have been received.

5.2
Kalthoff shall be entitled to insure the item to be supplied at the Buyer’s cost against theft, breakage, fire damage, water damage and other damages, unless the Buyer has submitted proof that he has taken out insurance himself.

5.3
The Buyer must not sell, pledge or assign the item to be supplied by bill of sale as a security. If the item supplied is subject to levy of execution as well as confiscation or other third party disposals, he must notify Kalthoff of this immediately.

5.4
In the event that the Buyer commits a breach of contract, in particular if he is in default with payment, Kalthoff shall be entitled to take back the item supplied after sending the Buyer a written warning to that effect and the Buyer shall be obliged to hand over the item supplied to Kalthoff.

5.5
Kalthoff may only demand, as a result of the reservation of title, the return of the item supplied if it has withdrawn from the contract.

5.6
The application for the opening of insolvency proceedings on the Buyer’s assets shall entitle Kalthoff to withdraw from the contract and to demand the immediate return of the item supplied.

6. Warranty claims

Kalthoff may only be held liable for legal and quality defects in the items supplied. Subject to Section 7, no other claims shall be admitted:

6.1
Quality defects:

6.1.1
All those parts which as a result of a factor existing prior to the passing of risk turn out to be defective are, as Kalthoff chooses, to be repaired or replaced. The identification of such defects is to be notified to Kalthoff immediately in writing. Replaced parts shall become the property of Kalthoff.

6.1.2
The Buyer shall, by arrangement, have to allow Kalthoff the time and opportunity necessary to carry out all repairs and replacements deemed necessary by Kalthoff; otherwise Kalthoff shall be exempted from the liability for the resultant consequences. Only in urgent cases in which operational safety is jeopardised or to avert disproportionately greater damage, whereby Kalthoff is to be notified immediately, shall the Buyer be entitled to rectify the defect himself or have it rectified by third parties and to demand that Kalthoff refund the necessary expenditure.

6.1.3
Provided that complaint turns out to be justified, Kalthoff shall bear the direct costs of the repair or supplying a replacement including dispatch.

6.1.4
The Buyer shall, in line with the statutory regulations, be entitled to withdraw from the contract if Kalthoff – taking into consideration the statutory exceptions – has allowed a reasonable period of time he has been set to carry out a repair or provide a replacement in response to a quality defect elapse unsuccessfully. If the defect is no more than minor, the Buyer shall only be able to   reduce the purchase price. The contract price may not be reduced in other circumstances.

6.1.5
Other claims shall only be determined in accordance with Section 7.2 of these T&Cs.

6.1.6
No liability shall be accepted in the following cases in particular:
Unsuitable or improper use, faulty assembly and/ or start-up by the Buyer or third party, natural wear and tear, incorrect or negligence handling, improper maintenance, unsuitable working materials, defective building work, unsuitable foundation / building ground, chemical, electrochemical or electrical factors – provided that Kalthoff is not responsible for them.

6.1.7
If the Buyer or a third party carries out a repair unprofessionally, Kalthoff cannot be held liable for the consequences. The same shall apply for modifications carried out to the supplied item without the prior consent of Kalthoff.

6.2
Legal defects:

6.2.1
If the use of the item supplied results in a breach of industrial property rights or copyrights within Germany, Kalthoff shall, at its own expense, procure the Buyer the right to continue using the item supplied as a matter of principle or modify the item supplied in such a way which the Buyer can reasonably be expected to accept, so that the proprietary rights are no longer breached.
If this is not possible at economically appropriate terms or within a reasonable period of time, the Buyer shall be entitled to withdraw from the contract. Given the preconditions named above, Kalthoff shall also be entitled to withdraw from the contract.
In addition to this, Kalthoff shall exempt the Buyer from uncontested or adjudicated claims asserted by the holder of the proprietary rights concerned.

6.2.2
Kalthoff’s obligations named in Section 6.2.1 shall, subject to Section 7.2, be definitive in the event that there is a breach of a proprietary right or copyright. They shall only exist if:

• the Buyer informs Kalthoff immediately of breaches of proprietary rights or copyrights asserted or
• the Buyer provides Kalthoff with a reasonable amount of support in mounting a defence against the claims asserted or enables Kalthoff to carry out the modification measures required in accordance with Section 6.2.1,
• Kalthoff shall continue to reserve the right to take defensive measures including out-of-court arrangements,
• the legal defect is not attributable to an instruction issued by the Buyer and
• the legal breach was not caused as a result of the Buyer modifying the supplied item acting on his own authority and the Buyer has not used the supplied item in a way contrary to the contract.

7. Liability, Exclusion of liability

7.1
If the item supplied cannot be used by the Buyer as intended in the contract as a result of Kalthoff being to blame for ignoring proposals or giving incorrect advice prior to or after the contract was signed, or as a result of a culpable breach of other additional contractual obligations – in particular instruction for operating and maintaining the supplied item, the regulations in Sections 6 and 7.2 shall consequently apply to the exclusion of the Buyer’s other claims.

7.2
Kalthoff shall be liable for damages not incurred by the supplied item itself – for whatever legal reasons – only
a) for its intent,
b) for its gross negligence  by its owner / its executive bodies or senior staff,
c) for culpable death, personal injury or physical harm,
d) for defects maliciously concealed by Kalthoff
e) in connection with a promised guarantee,
f) for defects in the supplied item, insofar as Kalthoff is liable under the German Product Liability Act for personal injury or property damage to privately used items.
If Kalthoff is in culpable breach of important contractual duties it shall also be liable for gross negligence committed by non-senior staff and for ordinary negligence, limited in the latter case to the damage typical for the contract and reasonably foreseeable. No other claims will be admitted.

8. Period of limitation

All the Buyer’s claims – regardless of whatever legal reasons upon which they are based – shall become time-barred in 12 months. The statutory periods shall apply for compensation claims for damages in accordance with Section 7.2 a-d and f. They shall also apply for a defect in a structure or for items supplied which have been used in accordance with their normal method of use for a structure and have caused its deficiency.

9. Software usage

Insofar as the scope of delivery includes software, the Buyer shall be granted a non-exclusive right to use the software plus its documentation. It shall be handed over for use on the supplied item designed for it. The use of the software on more than one system is forbidden.
The Buyer may only reproduce, revise, translate or convert from the object code into the source code to the extent allowed by law (Section 69 a et seq. of the German Copyright Act [UrhG]). The Buyer shall undertake not to remove information about the manufacturer – in particular copyright notations ? or to amend them without the express prior consent of Kalthoff.
All other rights to the software and to the documentation including copies shall be retained by Kalthoff or the software supplier.

10. Applicable law, Place of jurisdiction

10.1
All legal relationships between Kalthoff and the Buyer shall be governed by the law of the Federal Republic of Germany for legal relationships between German parties. The UN Convention on Contracts for the International Sale of Goods [CISG] shall not apply.

10.2
The place of jurisdiction shall be the court where Kalthoff is based. Kalthoff shall, however, be entitled to sue the Buyer at the court where his company headquarters is based.

Terms and Conditions of Purchase for
Kalthoff Luftfilter und Filtermedien GmbH

(Valid as of 01/2012)

1. Scope

All dealings between Kalthoff Luftfilter und Filtermedien GmbH (hereinafter “Kalthoff“) and
you, including all future business, shall be governed solely by the following Conditions of Purchase. Should you use contrary, differing, or additional conditions, they shall not apply to Kalthoff, even if Kalthoff does not expressly reject them and even if you indicate that you intend to supply goods on your own terms only. You recognize that these Conditions of Purchase alone are binding by the time of delivery of the ordered goods at the very latest.

2. Placement of contract

2.1
Orders placed by Kalthoff are only binding if they are in written form (fax, email, letter). Verbal or telephone orders are not binding, and require written confirmation to be valid.

2.2
Kalthoff reserves all rights of ownership and copyright to pictures, drawings, calculations, specimens, models, and other documents; they must not be disclosed or made available to third parties without Kalthoff‘s prior written consent. They are to be used solely for the purpose of the order and are to be returned to Kalthoff on request on completion of the order.

3. Delivery

3.1
Each order must be delivered in a separately packed consignment.
Kalthoff can specify the packaging type and mode of carriage. If Kalthoff does not do so, you are obliged to choose the standard Commercial packaging type and mode of carriage.

3.2
Each consignment must be accompanied by delivery documents showing the order date and order number; the delivery documents should be given to the forwarding agent or courier Service or should be attached to the consignment in a clearly visible and readily accessible place.

3.3
Agreed delivery dates are binding. They are only met if the goods are received at the delivery address stated in the order, during the delivery hours specified in the margin, on the agreed delivery date. Kalthoff reserves the right to extend these delivery dates as it sees fit, without prejudice to its rights under section 3.5.

3.4
If you become aware of any circumstances which would prevent the agreed delivery date from being met, you must notify Kalthoff in writing immediately, indicating the likely duration.

3.5
If the delivery deadline is not met, Kalthoff is entitled to exercise its statutory rights. In particular, Kalthoff has the right, in the event of noncompliance within an appropriate period, to rescind the contract. Kalthoff is also entitled, in the event of non-compliance within an appropriate period, to demand compensation in lieu of fulfillment of the contract, unless you can demonstrate that the delay is not your fault.

3.6
The place of performance is the delivery address stated in the order in each case. Hence the risks of accidental loss or deterioration of the goods do not pass to Kalthoff until the goods are delivered to the delivery address.

3.7
If delivery is delayed due to unforeseeable, unavoidable circumstances which are beyond your control and for which you are not responsible – such as force majeure, outbreak of war, or natural disasters – you are released from your delivery obligations for as long as and to the extent that the impediment operates. The parties are obliged to bring their mutual obligations into line with the changed circumstances in good faith; this can mean that, even after the impediment has been removed, Kalthoff may choose either not to receive the remaining deliveries or to demand that deliveries be continued on modified terms.

4. Prices and terms of payment

4.1
The price for supplying the goods which is shown in the order is a fixed price and covers free delivery to the delivery address stated in the order. It includes the costs of packaging and carriage; VAT will be paid on top of this.

4.2
Unless agreed otherwise, all payments arising out of this contract are deemed to be payable in Euros. In the absence of any agreement to the contrary, therefore, Kalthoff shall make payment in Euros.

4.3
The sums invoiced shall be paid within the periods specified in the order. These periods commence on the day the invoice is received at Kalthoff, though never before the goods are received at Kalthoff.

4.4
For each order, an invoice stating the order date and order numbershould be sent in duplicate and separately from the goods.

4.5
Kalthoff has a right of set-off and right of retention to the extent allowed by the law.

5. Transfer of ownership

5.1
Ownership of the goods supplied by you does not pass to Kalthoff until the purchase price has been paid in full. Any prolongation or extension of the retention of ownership is excluded.

6. Rights in the event of defects

6.1
After receiving the goods, Kalthoff shall check them for possible defects without culpable delay. Kalthoff will report obvious defects without culpable delay after receiving the goods and hidden defects without culpable delay after discovering these defects, unless a longer period is appropriate in the individual case.

6.2
If a material defect is detected within six months of the transfer of risks, it shall be assumed that this defect was already present in the goods at the time of the transfer of risks, unless such an assumption is incompatible with the nature of the item or of the material defect.

6.3
If goods are defective, Kalthoff shall be entitled to demand that the defect be eliminated at no cost to itself or that the defective goods be replaced within a timeframe determined by Kalthoff, as it so chooses. Transport, travel, labor, and materials costs incurred in remedying defects or replacing defective goods shall be borne by you.

6.4
In an emergency, where plant safety is at risk or there is a need to prevent excessive damage, or if you do not remedy a defect in the time allowed, Kalthoff is entitled, after notifying you accordingly, to remedy the defect itself or have it remedied by third parties and demand that you reimburse it for the necessary costs.

6.5
If the defect is not remedied or the consignment not replaced within the appropriate period laid down by Kalthoff or if the remedial work/replacement fails or is unacceptable to Kalthoff or if you have refused to remedy the defect or replace the consignment because of a disproportionately high cost or some other justified reason, Kalthoff can rescind the contract, reduce the purchase price, or demand compensation or reimbursement for its expenses, as it so chooses; a right to compensation exists only insofar as responsibility for the defect lies with you. The above rights may be exercised simultaneously by Kalthoff, provided that this is not excluded by the law.

6.6
The period of limitation for defect claims by Kalthoff is 24 months from the transfer of risks, and 5 years in the case of building materials and building components.

6.7
The period of limitation for defect claims by Kalthoff is suspended while measures to eliminate defects are in progress. In the case of goods that are replaced, a separate new period of Limitation as stated in section 6.6 commences on their delivery to Kalthoff.

6.8
Kalthoff is entitled to make any claims for compensation allowed under the law, regardless of the provisions mentioned above.

7. Product liability

If damage arises as a result of the product and if you are responsible for the defect that caused the damage, you shall release Kalthoff from third parties‘ claims for damages at the first request.

8. Protective rights

8.1
You warrant that the contractual use of the goods in the Federal Republic of Germany and in countries to which the goods are sent by Kalthoff in accordance with the relevant provisions does not violate industrial property rights, copyrights, or protective rights of third parties (hereinafter referred to as “protective rights“).

8.2
On written request you shall release Kalthoff and its customers from all third-party Claims arising as a result of the violation of such protective rights and also from all expenses necessarily arising in connection with claims by third parties.

8.3
Sections 8.1 and 8.2 shall not apply if you produced the goods according to drawings, models or other equivalent descriptions or data which were supplied to you by Kalthoff and you were unable to discern that the products made by you would violate protective rights.

8.4
The parties to the contract undertake to inform each other immediately if they become aware of any risks of violation of protective rights or any alleged violations thereof, so that action can be taken to counter such liability claims.

9. Final provisions

9.1
Orders may not be passed on to third parties without prior written consent from Kalthoff; this includes the transfer of rights and demands entailed therein – apart from demands for payment.

9.2
Should any of the provisions of these Conditions of Purchase prove invalid, the validity of the remaining provisions shall not be affected thereby. In such instances the parties undertake to replace the invalid provision with the one which best achieves the economic purpose of the invalid Provision.

9.3
Changes and additions to the contract and/or to these Conditions of Purchase must be in written form, as must subsidiary Agreements.

9.4
The place of jurisdiction for all disputes arising in connection with the contract is Dortmund. However, Kalthoff is entitled to take proceedings against you at the relevant place of Performance and at any other justified legal venue.

9.5
The applicable law is the law of the Federal Republic of Germany, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Note: The solely binding version is written in German. Other language versions are translations that may deviate in content and are not binding.