§ 1
General


  1. These General Terms and Conditions apply to all current and future business transactions even where Keller HCW GmbH does not draw the Customer’s attention to them again in relation to subsequent transactions. The Customer’s terms and conditions of sale and delivery shall not under any circumstances form part of the contract. This shall apply even if Keller HCW GmbH is aware of them, or fails to
    exclude them expressly on subsequent occasions, unless their application is expressly permitted, in writing.
  2. The General Terms and Conditions apply with respect to traders and legal entities under public law as well as with respect to special government funds. Traders within the meaning of the General Terms and Conditions are natural persons or legal entities or partnerships with legal capacity with whom business transactions are entered into and who are acting in the exercise of a commercial or independent
    professional activity.
  3. These General Terms and Conditions also apply to installation and repair work by Keller HCW GmbH. In addition, our Installation Conditions also apply. 
  4. For the purpose of the interpretation of trade terms, the applicable version of Incoterms shall apply authoritatively in case of doubt.
  5. The contractual language for international contracts shall be German or English according to the choice of the parties.


§ 2
Offer and Conclusion of the Contract


  1. Offers remain subject to change at all times. We reserve the right to make reasonable technical changes as well as changes in design, colour, and/or weight. Illustrations, drawings, dimensions, weights and other performance data are only binding where this has been expressly agreed in writing.
  2. Keller HCW GmbH reserves title and copyright to cost estimates, drawings and other documents. These documents may not be made accessible to third parties without express, written agreement. The Customer may not use documents made available to it for any purpose other than that provided for in the Contract. The Customer shall be liable for any improper use and also assumes liability on behalf of its staff and organs.
  3. The Contract comes into effect by way of the written order confirmation from Keller HCW GmbH or, where there is no such confirmation, by implementation of the order.
  4. All additions, amendments or ancillary agreements to the Contract must be in writing, or confirmed in writing, in order to be valid. Our sales staff are not authorised to conclude ancillary agreements or to provide assurances which go beyond that contained in the written agreements.
  5. Where the order is placed by electronic means, Keller HCW GmbH will confirm receipt of the order without delay by the same means. This confirmation of receipt only documents receipt of the order and does not constitute a binding acceptance. Acceptance may however be attached to the confirmation of receipt.
 

§ 3
Price and Payment


  1. In the absence of any special agreement, the prices apply ex works in euro. The prices are subject to value added tax at the applicable statutory rate. With respect to the ancillary costs, we refer to the provisions of sub-clause 9. below and to Clause 4 (1) and (3). We reserve the right to amend our prices accordingly if, eight weeks after conclusion of the contract, cost reductions or increases take place, particularly as a result of collective agreements or changes in the price of materials. We will provide
    the Customer with proof of this on request.
  2. In the case of orders via our Online-Shop, in the absence of any agreement to the contrary, payment plus value added tax without any deductions shall be due prior to delivery (payment in advance).
    Otherwise, in the absence of any other agreement, payment shall be made as
    follows:
    - one third in advance plus value added tax within 10 calendar days of receipt of order confirmation;
    - one third plus value added tax as soon as the Customer has been notified that the main parts
      are ready for shipping, i.e. prior to shipping of the same;
    - one third plus remaining value added tax by the 15th of the month following invoicing.
    Payments must be made without any deductions to the bank account designated by Keller HCW GmbH.
  3. In the absence of any agreement to the contrary, invoices for replacement parts and repairs are payable net.
  4. Where several invoices are outstanding, Keller HCW GmbH reserves the right to first use a payment, instalment payment or prepayment by the Customer to pay off the debt which offers the least security, where there is more than one debt with a similar level of security, to pay off the oldest debt and where there are debts of the same age, to pay them off proportionally. 
  5. The Customer only has a right of set-off where its counterclaims are subject to a final court judgement or are undisputed by Keller HCW GmbH. The Customer may only exercise a right of retention where its counterclaim is based on the same contractual relationship. 
  6. Default on payment is governed by the statutory provisions subject to the proviso that the Customer shall be in default by way of a warning after the due date or, without any additional requirement, by way of a failure to effect performance within 14 days of the due date and receipt of invoice. While in default, the Customer shall be liable for interest on the money owed at a rate of 8 % above the base interest rate. The right to show and claim a higher loss remains reserved.
  7. Bills of exchange, cheques and other securities will only be accepted on account of payment and following prior written agreement. All costs associated with the acceptance (e.g. recovery and discount charges) must be reimbursed without delay by the Customer. The duration of bills of exchange is limited to 90 days from the invoice date. 
  8. The limitation period in respect of claims by Keller HCW GmbH for the purchase price or contractor’s fee shall be five years.
  9. Where, in the case of deliveries to countries outside the Federal Republic of Germany, tax, customs duty or similar charges arise in the Customer’s country, which are payable by Keller HCW GmbH, the agreed prices shall increase by the relevant amounts.
 

§ 4
Packaging and Shipment


  1. In the absence of any other agreement, the Customer shall be invoiced separately for the costs of packaging, shipping, payment transfers and customs duty. In this regard, Keller HCW GmbH may choose whether to invoice for a lump sum or for the actual costs. The lump sum amounts to 5 % of the gross invoice amount. The Customer is entitled to provide Keller HCW GmbH with evidence that the costs were lower.
  2. The type of packaging and method of shipment shall be decided by Keller HCW GmbH according to its prudent judgement.
  3. Insurance of the goods against damage in transit will only be carried out on the specific instructions of the Customer. The Customer will be invoiced separately for the cost of such insurance.
  4. Where shipment or acceptance is delayed due to reasons for which the Customer is responsible, the latter shall bear the costs resulting from the delay. Keller HCW GmbH shall choose whether to invoice for a lump sum or for the actual costs. The lump sum shall be 0.5 % of the gross invoice amount for each month or any part thereof. The lump sum is limited to 5 % of the gross invoice amount. The Customer is
    entitled to prove that the costs were lower. Following the expiry of a reasonable extension of time, Keller HCW GmbH is also entitled to dispose of the delivery item elsewhere or to deliver it to the Customer after a reasonable extension of time..
 

§ 5
Scope and Delivery


  1. The written order confirmation of KELLER HCW GmbH shall determine the scope of delivery. Ancillary agreements and changes require the written confirmation of KELLER HCW GmbH. 
  2. The subject matter of delivery has been produced in accordance with the principles established in the law on technical work materials of 24 June 1968 (as amended on the date of conclusion of the contract). The cost of additional equipment, which becomes necessary as a result of local conditions, due to the assembly of plant components , or arising from directives, regulations or orders, issued after conclusion
    of the contract, or because the competent local authorities have a different interpretation of the generally accepted technical rules, shall be borne by the Customer.
  3. In the case of the delivery of fire-proof and insulating materials, the Customer is obliged to accept an over-delivery of materials, particularly due to the risk of breakage, of up to 5% of the ordered quantity. 
  4. Soil surveys for the establishment of furnace equipment will not be carried out by KELLER HCW GmbH. All details about foundations and the prices related thereto are based on a soil bearing capacity of 2 kp/cm² as well as on the fact that the nature of the foundation soil is such that it can be dug and is free of ground water. Variations which lead to difficulties shall be borne at the expense of the Customer. With respect to machinery, the values given on the foundation plan shall apply..
  5. Due to continual advances in technology, KELLER HCW GmbH reserves the right to make changes and improvements in construction, use of materials and design insofar as this has no detrimental effect on the serviceability of the delivery item. 
  6. In the absence of any agreement to the contrary, KELLER HCW GmbH undertakes to effect delivery free of third-party intellectual property rights and copyrights only in respect of the country in which the place of delivery is located.
  7. Special conditions apply with respect to the assembly of the delivery item and/or with respect to its inspection and start-up. 

 


§ 6
Transfer of Risk and Acceptance


  1. The risk passes to the Customer as soon as the goods pass to the party that is to effect transport, or leave our warehouse facility for the purpose of shipment. This also applies to partial deliveries. 
  2. Where performance by Keller HCW GmbH involves the creation of a structure and/or plant, the risk shall pass to the Customer on its becoming operational.
  3. If the goods are ready for shipment and shipping is delayed at the Customer’s request, or for another reason for which the Customer is responsible, risk shall pass to the Customer on notification of readiness for shipment.
  4. Where the Customer fails to collect the goods following notification of readiness for shipment, or where it is otherwise in default of performance of other essential contractual conditions, Keller HCW GmbH may, having provided a reasonable extension of time, rescind the contract and claim damages in lieu of performance. In this regard, it can either claim compensation for the actual loss or a lump sum of 15%
    of the gross invoice amount unless the Customer proves that the actual loss was lower.
 

§ 7
Delivery Period


  1. The delivery period depends on the contractual agreements. Binding delivery dates or deadlines require the written confirmation of Keller HCW GmbH in order to be valid. Compliance with the delivery deadline requires the Customer to have carried out its contractual duties and obligations as agreed. If this is not the case, the delivery period will be extended by a reasonable amount unless Keller HCW GmbH is responsible for the delay. The delivery deadline is complied with where, by the time of its expiry, the
    delivery item has left the plant or notification of readiness for shipment has been given.
  2. Compliance with the delivery period is conditional upon our being supplied correctly and on time. This only applies where a failure in supply has not been caused by Keller HCW GmbH, in particular where a congruent covering transaction has been concluded with its supplier. Keller HCW GmbH shall notify the Customer without delay that performance is not possible. Any counter-performance which has already
    been effected shall be reimbursed without delay.
  3. Delivery dates or deadlines shall be postponed or extended appropriately where we are prevented from effecting performance on time due to force majeure, industrial disputes or other circumstances for which we are not responsible. This also applies where corresponding circumstances arise in relation to our suppliers. Keller HCW GmbH shall not be liable under any legal grounds for the loss resulting herefrom.
    Where the obstruction lasts for longer than 3 months, the Customer is entitled, following a reasonable extension of time, to rescind the contract with respect to the part which has not yet been fulfilled. The Customer shall not be entitled to damages in this case.
  4. Where the Customer incurs a loss due to a delay in delivery for which Keller HCW GmbH is responsible, the statutory provisions apply. Where Keller HCW GmbH subsequently has to pay damages, these shall be limited to loss which, at the time of conclusion of the contract, was foreseeable and typical. For each full week of delay, this shall be 0.5 %, but in total no more than 5 %, of the value of that part of the overall delivery which, as a result of the delay, cannot be used within the required time or in accordance with the contract. Other claims are excluded. The foregoing restrictions do not apply where Keller HCW GmbH is subject to mandatory liability in cases of intent, gross negligence, loss of life or personal injury.
  5. Keller HCW GmbH is at all times entitled to effect partial delivery and partial performance unless partial fulfilment of the contract is of no interest to the Customer.
  6. Delivered items must be accepted by the Customer even where they have minor defects.
 

$ 8
Warranty


  1. Keller HCW GmbH guarantees that the products and services delivered will be free of defects for a period of 12 months from delivery of the goods or acceptance of the work. The short limitation period shall not apply insofar as the Customer’s rights relate to a structure, or to a piece of work consisting in the planning and supervision of a structure, or where rights under the Product Liability Act are affected, or where Keller HCW GmbH is alleged to have acted intentionally or with gross negligence or where loss of life, personal injury or damage to health has occurred which is attributable to Keller HCW GmbH.
  2. In principle, it is agreed that the quality of the goods is determined only according to the product specification by Keller HCW GmbH. Public statements, claims or advertising do not represent a contractual description of the quality of the goods. The Customer shall not receive any guarantees in the legal sense.
  3. With respect to defects in the goods, we shall, in the first instance, comply with warranty obligations by way of either repair or replacement (subsequent performance), as we think fit. Where subsequent performance fails, the Customer may, as it thinks fit, request a lowering of the price (reduction) or cancellation of the contract (rescission) or claim damages within the framework of the limitation of
    liability (Clause 9). Where only a minor infringement of the contract is involved, particularly only a minor defect, the Customer shall have no right to cancel the Contract. 
  4. Obvious defects in the goods must be reported, in writing, without delay and in any case within one week of receipt. Failure to effect such notification results in the loss of the right to assert a claim under warranty. Sending the notification on time is sufficient to comply with the deadline. The Customer shall provide complete proof of all requirements for asserting a claim, in particular as regards the defect itself, the timing of its discovery and the fact that notification was effected within the deadline. 
  5. In the event that the Customer decides to rescind the contract due to a defect in title or quality following the failure of subsequent performance, it shall have no additional right to claim damages for the defect. Where the Customer opts to claim damages following the failure of subsequent performance, the delivered goods shall remain with the Customer provided this is reasonable. Damages shall be limited in this case to the difference between the purchase price and the value of the defective item. The foregoing limitations shall not apply where the breach of contract is the result of intent or gross negligence on the part of Keller HCW GmbH or where damages are payable due to personal injury, damage to health or loss of life.
  6. Liability for normal wear and tear or damage caused by inappropriate or improper use is excluded. Also excluded are rights under warranty due to non-reproducible software defects. Where there is a failure to comply with operating, handling or maintenance instructions, where changes are made to the products, parts are replaced or consumables used which do not correspond to the original specifications, or where the raw and work materials being handled are different from those on which the order was based, any liability under warranty shall cease to apply unless the Customer can substantiate its claim that the defect did not result from these circumstances.
  7. Subject to any agreement to the contrary, used items are sold without any warranty unless there has been an intentional or grossly negligent breach of contract by Keller HCW GmbH or loss of life, personal injury or damage to health due to negligence on the part of Keller HCW GmbH. 
  8. In the event that the Customer receives defective assembly instructions and neither Keller HCW GmbH nor its statutory representatives or agents can be accused of acting with intent or gross negligence, we are only obliged to supply defect-free assembly instructions to the exclusion of all additional claims. This obligation only exists where the defect in the assembly instructions prevents proper assembly.
  9. Where the order placed with Keller HCW GmbH is limited to the delivery of complete structural and parts drawings, Keller HCW GmbH can only be held liable under warranty in accordance with the foregoing provisions as regards defects in the documentation delivered. Keller HCW GmbH accepts no liability for defects in execution on the part of the Customer.
 

§ 9
Liability


  1. We are liable under the statutory provisions insofar as the Customer brings a claim in damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or agents. Insofar as we are not accused of any intentional breach of contract, liability for damages is limited to foreseeable loss which typically occurs. We are also liable in accordance with the statutory provisions insofar as we are in culpable breach of a material contractual condition; in this case, liability for damages is also limited to foreseeable loss which typically occurs. Liability for loss of life, personal injury or damage to health due to negligence remains unaffected; this also applies to mandatory liability under the Product Liability Act.
  2. The Customer’s right to claim damages shall expire one year after the transfer of risk. In the case of damages claims due to intent or gross negligence, the breach of material contractual conditions or in the case of loss of life, personal injury or damage to health, the statutory limitation periods shall apply. 
 

$ 10
Reservation of Title


  1. All supplied goods shall remain the property of Keller HCW GmbH until payment, in full, of all receivables to which Keller HCW GmbH is entitled under the business relationship with the Customer, including all recognised open account balances. We undertake to release the securities to which we are entitled at the Customer’s request insofar as the realised value of our securities exceeds the claims secured by
    more than 10%; we shall be responsible for deciding which securities should be released. The Customer is obliged to handle the purchased item with care, and, in particular, is obliged to insure it sufficiently at its own expense against fire, water and theft at the replacement value. Insofar as maintenance and inspection work is necessary, the Customer shall effect this at its own expense at the right time. 
  2. The Customer is entitled to process and sell the goods subject to the reservation of title during the ordinary course of business provided it is not in default of payment. The goods may not be pledged or assigned by way of security. The Customer hereby assigns, in full, to Keller HCW GmbH, by way of security, all receivables relating to the goods subject to the reservation of title, arising from resale or other legal basis (insurance, tort). The latter accepts the assignment. Keller HCW GmbH authorises the Customer to collect the assigned receivables for its own account and in its own name. The collection authorisation may only be revoked if the Customer fails to comply properly with its payment obligations. 
  3. In the case of attachment of the goods subject to the reservation of title, by third parties, the Customer shall make reference to the fact that Keller HCW GmbH has title to the goods and notify the latter without delay. In addition, in the case of attachment of the goods subject to the reservation of title, by third parties, the Customer shall bear all the costs necessary to remove the attachment, in particular by way of a third-party objection, and to reacquire the item. 
  4. In the case of conduct by the Customer which is in breach of contract, in particular default on payment, Keller HCW GmbH is entitled to redeem the goods subject to the reservation of title. The Customer is obliged to effect restitution. For the purposes of collecting the goods, Keller HCW GmbH is entitled to enter the operating facilities or other premises of the Customer in which the goods subject to the reservation of title are located. By redeeming the purchased goods we rescind the contract. Following redemption of the purchased item we are entitled to dispose of it, the proceeds of disposal shall be set off against the Customer’s debts – less the reasonable cost of disposal.
  5. In the case of deliveries outside the Federal Republic of Germany in relation to which the foregoing liens cannot be effectively agreed, a lien will be deemed to have been agreed in respect of all unpaid receivables arising under the business relationship between the Customer and Keller HCW GmbH which comes closest to the foregoing liens and is permitted and possible under the respective legal system.
 

$ 11
Concluding Provisions


  1. The law of the Federal Republic of Germany shall apply exclusively. The UN law on the international sale of goods is expressly excluded including where the Customer’s terms and conditions provide for its application.
  2. The exclusive place of jurisdiction in respect of all disputes under this contract is Osnabruck. The same applies where the Customer has no place of general jurisdiction in Germany or where its domicile or place of residence is unknown at the time that proceedings are issued. Keller HCW GmbH is however entitled to bring proceedings against the Customer in the location of its registered office or place of business.
  3. Place of performance in respect of all obligations under the business relationship is our registered Office.
  4. Where individual provisions of the contract with the Customer, including these General Terms and Conditions, are or become wholly or partially invalid, this will not affect the validity of the remaining provisions. The partial or whole provision shall be replaced by a provision which, in its economic effect, comes as close as possible to the invalid provision.