Kessel - Spare parts

KESSEL AG

Spare parts catalogue 2021

8. Article index

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KESSEL AG Standard Conditions of Sale (SCS)

1. Scope of application, form

(1) The present Standard Conditions of Sale (SCS) apply to all our business relations with our

customers (“Purchaser”). The SCS apply only provided the Purchaser is an entrepreneur (§ 14 of

the German Civil Code (BGB), a public-law legal entity or public-law special assets.

(2) The SCS apply particularly to contracts for the sale and/or delivery of movable objects (“Pro-

ducts”) as well as the sale of goods, software and technology (“Goods”), irrespective of

whether we manufacture the Products/Goods ourselves or purchase them from suppliers

(§§ 433, 651 BGB). Unless anything different has been agreed, the version of the SCS which

was applicable at the time of the Purchaser’s order or at least as last communicated to him

in text form will apply as a framework agreement, also in the case of similar future contracts

and without our having to refer to them again in each individual case.

(3) Only our SCS apply. Different, contrary or complementary standard terms and conditions

of the Purchaser will only be part of the contract when and to the extent that we have

expressly consented to their application. This requirement of consent will apply in all

circumstances, for example should we also carry out the delivery without reservations,

although aware of the Purchaser’s standard terms and conditions.

(4) Individual agreements made with the Purchaser in a particular case (including side-agree-

ments, additions and amendments) will in any event have precedence over these SCS. Sub-

ject to proof to the contrary, the content of such agreements will be governed by a written

contract or our written confirmation.

(5) Legally material declarations and notices by the Purchaser with regard to the contract

(e.g. setting of a deadline, report of defects, rescission or a price reduction) must be sub-

mitted in writing, i.e. in written or text from (e.g. letter, e-mail, fax). This will not affect legal

requirements regarding form and additional evidence, particularly in the event of doubts on

the legitimacy of the party making the declaration.

(6) Reference to the application of provisions of the law are only intended for purposes of

clarification. Thus, even without such clarification, the provisions of the law will apply unless

they are directly amended or expressly excluded in these SCS.

2. Conclusion of a contract

(1) Our quotations are subject to change and not binding. This will also be the case should we

have provided the Purchaser with catalogues, technical documentation (e.g. drawing, plans,

calculations, estimates, reference to DIN norms), other product descriptions or documents –

also in electronic form – to which we reserve rights of title and copyright.

(2) The Purchaser’s order for Products is considered a binding offer to conclude a contract.

Unless the order provides for anything different, we are entitled to accept this offer to con-

clude a contract within four weeks of having received the offer.

(3) The offer may be accepted either in writing (e.g. by way of an order confirmation) or through

delivery of the Products to the Purchaser.

3. Reservation regarding matters related to the German Foreign Trade Law

The contract is subject to the reservation that its fulfilment is not subject to any hindrances

due to the domestic or international provisions of the Foreign Trade Law or contrary to any

embargos and/or other sanctions. Our Goods may be subject to restrictions under the Foreign

Trade Law. These are to be understood to include legal prohibitions and/or obligations to ob-

tain permits. Should a Product be purchased that is subject to the requirement that approval

is obtained, it will be clarified with the Purchase in each individual case how the goods are

to be shipped and whether a contract may be concluded at all. A restriction in terms of the

Foreign Trade Law may be related inter alia to the final destination and intended use of the

Products. Should Products supplied by us be forwarded to a third party at home or in a foreign

country, the Purchaser is required to comply with the applicable provisions of domestic and

international foreign trade law. If necessary, the Purchaser is required, immediately on being

requested to do so, to provide us with all information and documents required by the respon-

sible authority for approval in accordance with the Foreign Trade Law concerning the ultimate

recipient, final destination and intended use of the Products we supply as well as any res-

trictions in terms of foreign trade law in this regard. Any amendments and errors reserved.

4. Delivery period and delivery delays

(1) The delivery period will be agreed individually or stated by us on accepting the order.

Should this not be the case, the delivery period is approximately four weeks after the con-

clusion of the contract.

(2) Should we be unable to meet binding delivery dates for reasons for which we are not

responsible (service not available), we will inform the Purchaser of this fact immediately and

simultaneously give notification the probable new delivery period. Should the service also not

be available within the new delivery period, we are entitled to rescind all or part of the con-

tract; should the Provider have already paid for the service, we will reimburse this immedia-

tely. Non-delivery of the service within the meaning of the above is particularly the case in

which our supplier does not deliver to us on time, should we have concluded a parallel cover-

ing order, should neither we or our supplier be at fault or should we not be required to procure

the Products in the particular case. We assume no procurement guarantee.

(3) We will be in arrears with the delivery should we be responsible for the delay in service,

whereby our degree of blame in accordance with § 8 of these SCS is limited to deliberate

intent and gross negligence. In any event, however, a reminder by the Purchaser is required.

Should we fall into arrears with the delivery, the Purchaser may demand a lump-sum amount

as compensation for its damages due to the delay. The lump-sum compensation amount of

0.5 % of the net price (delivery value) for every complete week of arrears, subject however

to a maximum of 5 % of the delivery value of the Goods delivered late. We reserve the right

to prove that the Purchaser has not incurred any damage or has incurred considerably lower

damages than the above lump-sum amount.

(4) The Purchaser’s rights in accordance with § 8 of these SCS and our legal rights, particu-

larly in the event of an exclusion of the obligation to perform (e.g. due to impossibility or that

performance and/or subsequent fulfilment are unreasonable) are not affected.

5. Delivery, transfer of risk, formal acceptance, delay in acceptance

(1) The delivery will be made solely in the packing units stated. The delivery is carried out from the

warehouse, which is also the place of fulfilment for the delivery and of any subsequent ful- filment.

At the request and expense of the Purchaser, the Goods may be delivered to a different destina-

tion (sales shipment). Unless anything different has been agreed, we are entitled to determine

ourselves the method of shipment (particularly freight forwarder, routing, packaging). Sur-

charges for freight sent as an urgent or express shipment will be paid by the Purchaser. The

Purchaser is required to report transport damage to the freight forwarder/service provider as

soon as the shipment is received and to note any damage in writing in the shipment documents.

(2) The risk of accidental destruction and accidental deterioration will pass to the Purchaser

at the latest upon delivery. In the case of sales shipments however the risk of accidental

destruction and accidental deterioration of the Products as well as the risk of delay will pass

already on delivery of the Products to the freight forwarder, transporter or any other person

or institution appointed to carry out the delivery. Should formal acceptance have been ag-

reed, this will determine the transfer of risk. Otherwise, an agreed acceptance will also be

governed by the provisions of the law relating to contracts for specific tasks as appropriate.

Should the Purchaser be in arears in accepting the Goods, it is irrelevant whether the Goods

are handed over or subject to formal acceptance.

(3) Should the Purchaser be in arrears in accepting the Goods, fail to fulfil an obligation to

cooperate or should our delivery be delayed for other reasons for which the Purchaser is

responsible, we are entitled to demand compensation for damage incurred thereby, including

additional expenses (e.g. storage costs). For this purpose, we charge a lump-sum amount of

1.0 % of the net value of the Goods for each complete month as compensation, subject howe-

ver to a maximum of 5 % of the net value of the Goods, beginning on the delivery date or, in the

absence of the delivery date, with the notification that the Goods are ready to be delivered.

This does not affect proof of higher damage and our legal rights (particularly compensation for

additional expenses, adequate compensation, termination); the lump-sum amount is however

to be deducted from additional financial claims. The Purchaser is entitled to prove that we have

not incurred any damage or considerably lower damages than the above lump-sum amount.

6. Prices and payment conditions

(1) Unless anything different is agreed in the particular case, our current ex warehouse price

list at the time the contract is concluded plus the VAT stipulated by law will apply.

(2) In the case of a sales shipment (§ 5 paragraph 1), the Purchaser will pay the costs of trans-

port from the warehouse as well as any transport insurance requested by the Purchaser.

(3) The freight-paid limit begins at 500.00 € net goods value in the case of a closed order,

without unloading, within Germany (excluding the German islands) and ex factory below

500.00 € net goods value.

(4) We charge 10.00 € minimum quality surcharge on deliveries of less than 150.00 € net

goods value.

(5) A third-party delivery surcharge of 8 % of the net goods value will be charged on orders

that are not delivered to the Purchaser’s warehouse.

(6) The purchase price is due and payable immediately. We grant a quick-payment discount of

3 % in the event of payment within 8 days of the invoice and delivery or formal acceptance of

the Products. We grant 2 % quick-payment discount in the case of payment within 14 days or

no quick-payment discount should payment be made within 30 days. We grant 4 % quick-pay-

ment discount in the case of direct debit. We are however entitled at any time, even as part

of a continuous business relationship, only to deliver all or part of the shipment in return for

payment in advance. We will notify such a reservation at the latest with the order confirmation.

(7) The Purchaser will be in arrears 30 days after the payment deadline has expired. The inte-

rest rate on arrears stipulated by law will be charged on the purchase price whilst payment is

in arrears. We reserve the right to claim additional damages on account of payment arrears.

In relations with entrepreneurs, our right to claim the commercial interest rate after the due

date (§ 353 of the Commercial Code (HGB) is not affected.

(8) The Purchaser is only entitled to offset claims and to withhold payment provided its claim

has been established in law or is undisputed. In the event of defects in a delivery, the Pur-

chaser’s counter-claims, particularly in accordance with section 8 paragraph 6 sentence 2

of these SCS, are unaffected.

(9) Should it become clear after the contract has been concluded (e.g. though an application

for the initiation of insolvency proceedings), that our claim to the purchase price is endange-

red due to lack of ability on the part of the Purchaser to perform, we will be entitled to refuse

performance in accordance with the provisions of the law and – if applicable, after having

granted a grace period – to rescind the contract (§ 321 BGB). In the case of contracts for the

manufacture of products which are not inter-changeable (individual constructions), we may

declare rescission immediately; this will not affect the provisions of the law relating to the

necessity of setting a grace period.

7. Reservation of title

(1) We reserve title to the goods sold until all our current and future claims under the pur-

chase contract und an ongoing business relationship (secured claims) are paid for in full.

(2) Goods subject to reservation of title may neither be mortgaged to third parties nor have

title transferred by way of collateral until the secured claims are paid for in full. The Purchaser

is required to notify us immediately in writing should insolvency proceedings be applied for or

should third parties seize goods belonging to us (e.g. attachments).

(3) In the event of behaviour by the Purchaser in breach of contract, particularly non-pay-

ment of the purchase price once due, we are entitled, in accordance with the provisions

of the law to rescind the contract and/or to demand the return of the Goods on account of

reservation of title.

(4) The Purchaser is authorised until further notice in accordance with (c) below to continue

to sell and/or to process reserved goods as part of its regular business activity. In this case,

the following provisions will apply additionally.