AGB | Krüger & Gothe

GTC

General Terms and Conditions of Krüger & Gothe GmbH

I. General provisions

All deliveries and services of Krüger & Gothe GmbH (KuG) are subject to the following General Terms and Conditions (GTC). General terms and conditions of the customer only apply if KuG has agreed to them in writing.

Deviating and/or supplementary conditions of the buyer are not binding for KuG, unless KuG has expressly agreed to such deviating agreements in writing. Such consent shall only apply to the respective transaction, but not to future transactions.

II Offers

Offers from KuG are subject to change and non-binding, unless KuG has indicated otherwise.

III Conclusion of contract

The conclusion of the contract is subject to the correct and timely delivery by KuG’s suppliers. However, this only applies in the event that KuG is not responsible for the possible non-delivery or delayed delivery. The buyer will be informed immediately about the non-availability of the service.

By placing an order, the buyer makes a binding declaration that he wishes to purchase the goods from KuG, whereby a “forecast” or call-off (e.g. from a framework agreement) is equivalent to such an order in terms of validity. The order is accepted by KuG either by a corresponding declaration by KuG or by delivery of the goods. KuG has the right to reject the order within 14 days. If KuG rejects the order with reference to other contents (such as prices or dates), this constitutes a new offer. If the order is received by KuG electronically, the confirmation of receipt does not constitute acceptance of the order.

Dates and deadlines for delivery are only binding if they have been confirmed in writing by KuG. KuG is always entitled to make partial deliveries. If no acceptance date is fixed in individual cases, KuG is entitled to deliver within 6 months after placing the order without prior reminder, whereby the payment for this delivery becomes due and payable immediately after receipt of the invoice from KuG by the buyer without any deduction.

IV. Prices, terms of payment and delivery

All KuG prices are net prices; the statutory value added tax is shown separately in invoices. KuG is also entitled to invoice its services electronically (e.g. by signed PDF file), whereby such invoices are binding and effective even without signature. The customer is always obliged to check the respective invoice from KuG within a reasonable period of time. Complaints about invoicing after 6 weeks will no longer be considered by KuG.

If KuG makes partial deliveries, these will be invoiced separately, with immediate due date and independent of the agreed total delivery, unless individual payment terms have been agreed with the customer also for such partial deliveries.

KuG reserves the right to increase prices if:

there are cost increases after conclusion of the contract, for example due to collective wage agreements, changes in freight, shipping or ancillary shipping costs or material prices.

technical changes are made by the orderer after conclusion of the contract or the orderer addresses specifications to KuG that deviate from the order. In such a case, the buyer has to bear all resulting additional costs incurred by KuG due to such changes/specifications. Such additional costs include, for example, the increased material costs, the increased personnel costs, the remuneration of the existing residual material, etc.

The buyer can only exercise a right of retention if his counterclaim is based on the same contractual relationship. The buyer is also only entitled to set-off claims against claims of KuG from the same contractual relationship with KuG.

In the case of blanket orders, the prices are agreed for specific periods and/or specific quantities. In the event of significant deviations in requirements or deadlines, the prices must be renegotiated and fixed.

Invoicing by KuG takes place after the provision of the service or upon delivery of the products. Unless otherwise agreed, the buyer is obliged to pay KuG’s invoice within 30 days of receipt of the invoice, whereby the receipt of payment by KuG is decisive for the timeliness of payment. KuG is entitled to charge interest on arrears in the amount of 0.03 % per day from the due date, whereby the calculation of further damages remains unaffected. KuG is entitled to initiate a production stop in the event of late payment of the invoice by the customer and to assert a right of retention for all goods and services against the customer, regardless of the specific contractual relationship from which the customer’s default in payment results. KuG is entitled, in particular in the case of blanket orders, to immediately stop all further cost-incurring measures that would be necessary to fulfill the contract until full payment has been received or to withdraw from the contract and to make all outstanding services due immediately.

If, at the request or through the fault of the buyer, the dispatch or delivery of the produced goods is delayed by more than one month after notification of readiness for dispatch by KuG or after a bindingly agreed acceptance date, KuG is entitled to charge the buyer a storage fee of 0.8 % of the price of the goods awaiting delivery for each month or part thereof from the delay in acceptance that has occurred. The storage fee including ancillary costs is due at the latest 6 months after expiry of the agreed delivery date.

V. Extended retention of title

All items of the deliveries remain the property of KuG until all claims of KuG against the orderer have been completely fulfilled by the orderer. In the event of breaches of duty by the buyer, such as default in payment, KuG is entitled, even without setting a deadline, to demand the return of the goods and the delivery items and/or to withdraw from the contract, whereby the buyer is then obliged to surrender them immediately. Such a request for surrender by KuG does not constitute a declaration of withdrawal, unless this is expressly declared by KuG.

If the orderer processes, mixes and resells the services and goods delivered by KuG, the retention of title applies to the resulting claims or is extended to the newly created goods. If the buyer carries out processing, inseparable mixing or transformation, this is done for KuG. If the goods and services delivered by KuG are processed by the orderer with items not owned by KuG, KuG acquires co-ownership of the newly created item in the ratio of the value of the services and goods delivered by KuG to the other processed items at the time of processing. If, after such mixing, the new product of the orderer is to be regarded as the main item (e.g. finishing product), the orderer undertakes to transfer the proportionate co-ownership to KuG. In any case, the orderer is obliged to keep the sole ownership and/or co-ownership of KuG for KuG accordingly. During the existence of the retention of title, the orderer is prohibited from pledging or transferring ownership by way of security. In the event of seizures, confiscations or other dispositions or interventions by third parties, the orderer must inform KuG immediately.

In the event of the sale of the newly manufactured products, the customer hereby assigns to KuG his claims from the resale against the customers by way of security, without the need for further declarations. KuG accepts this assignment already now. However, the assignment shall only apply to the amount to which KuG is entitled to the value of the newly manufactured goods in accordance with its outstanding invoices to the customer.

As soon as the orderer ceases to make payments or if an application is made to open insolvency proceedings against the assets of the orderer or if such an application is rejected due to lack of assets, the orderer is no longer authorized to sell the services and goods delivered by KuG and must immediately store or mark these goods and services separately with the reference “Property of Krüger & Gothe GmbH”. In addition, the buyer is obliged to have the amounts received from the claims assigned to KuG credited to a separate account. KuG is entitled to demand immediate return and collection of the delivered services and goods in the event of serious doubts about the solvency of the customer or in the event of default of payment as well as in the event of an application by the customer for the opening of insolvency proceedings against his assets or in the event of the rejection of such an application due to lack of assets.

VI Material disposition / material procurement KuG

KuG is basically responsible for the procurement and stocking of all materials necessary for production, unless the buyer provides the material himself or gives KuG appropriate specifications for procurement. In the event that material procurement becomes necessary at short notice due to excessively short delivery times caused by the buyer, the buyer shall bear the additional costs of this procurement incurred by KuG. Material stocks which are no longer required due to technical changes or due to specifications of the orderer after the order has been placed or after the conclusion of the delivery contract, the orderer must purchase from KuG against invoice or compensate KuG for the value as compensation.

In the event of a cancellation or reduction of the order volume following an order placed by the buyer with KuG or following a concluded contract, the buyer is obliged to purchase the goods already stocked by KuG (raw materials, finished products, unfinished services, goods in current assets, etc.) or goods already ordered from KuG’s subcontractors with an obligation to purchase against KuG’s invoice. In the case of finished products, the prices agreed with KuG apply. In the case of raw materials/unfinished services and goods ordered from subcontractors, the prices quoted by KuG apply, taking into account the expenses already incurred and the proportionate overhead costs to be allocated.

Even in the case of individual orders, the material is procured by KuG at the start of production, unless the customer is responsible for the provision. In the case of framework agreements, material procurement is carried out in accordance with the agreements stipulated therein. The orderer submits a monthly forecast to KuG on an ongoing basis (with a lead time of at least 6 months), which serves for production planning and has a binding order character. KuG is therefore only obliged to procure/stock materials for framework agreements if there are scheduled order call-offs, previews/forecasts or materialization releases agreed with the customer. In the case of open framework agreements without binding monthly call-offs/binding “forecasts”, KuG is only obliged to stock up to the amount of one month (planned total quantity of the year ./. 12 months) and has no further obligation to materialize to an extent exceeding this.

In the case of agreed provision of material, the buyer is obliged to deliver the material to KuG in good time before the start of production and on the basis of KuG’s production times. The material provided by the buyer is then taken over into the KuG warehouse, specially marked and managed there like KuG’s own material and subjected to inventory. The costs for the warehouse and handling are included in the production costs. The buyer is obliged to deliver the provided material in the same quality as the material calculated, ordered and used by KuG. If the buyer does not fulfill this obligation, KuG will notify the buyer immediately after recognizing the defectiveness. The buyer is then obliged to immediately provide material of the correct quality and to reimburse KuG for all costs incurred by this delay or additional production costs. Even without separate written notification, KuG’s obligation to meet agreed production and delivery dates shall lapse in such a case.

VII Logistics

For selected components, the buyer can set up a customer warehouse at KuG or at his own premises. KuG must inform the orderer about withdrawals from the customer warehouse on a monthly basis. On this basis, the orderer will then invoice KuG for the material withdrawn.

At the request of the customer, KuG is also prepared to make a so-called “last call order” in the event of a raw material delivery being discontinued (discontinuation of material by sub-suppliers) and to stock up on the corresponding material and place it in a customer warehouse. The buyer is obliged to pay for this material purchased from KuG against invoice after receipt of the goods at KuG.

VIII. Cancellation of order

In the event of possible cancellations of orders, the non-acceptance of goods and services despite existing orders/contracts/“forecasts” from individual orders or framework agreements or the reduction of purchase quantities or in the event of termination of the business relationship with the orderer (e.g. in the event of termination of the business relationship by KuG for good cause on the part of the orderer or in the event of an application for insolvency of the orderer’s assets, etc.), the orderer is obliged to immediately purchase the goods and inventories (raw materials, circulating stock and triggered orders from subcontractors) from KuG against invoice.), the orderer is obliged to immediately purchase the goods and stocks (raw material, current stock, finished goods and orders placed with subcontractors) held by KuG from KuG against invoice. For finished products, the agreed selling price will be charged, for raw materials, finished and unfinished products as well as triggered orders from subcontractors, the purchase or manufacturing prices set by KuG (with the surcharges for overhead costs, other expenses, etc.) will be applied. The invoices issued in this way are due and payable within 14 days without deduction.

If the customer postpones binding acceptance dates, KuG is entitled to charge the customer financing costs of 0.8 % per month starting from the 1st day of delay.

IX. Terms of delivery / transfer of risk

The customer shall bear the risk of accidental loss and of total or partial damage to the goods from the place of performance. This shall also apply if the goods are shipped to a place other than the place of performance.

KuG’s compliance with delivery deadlines presupposes the timely receipt of all documents to be supplied by the customer, in particular plans, approvals and releases, as well as compliance with the agreed terms of payment and other preparatory and cooperative actions to be taken by the customer.

KuG is entitled to withhold deliveries in whole or in part until full settlement of claims against the buyer, without this giving rise to a delay in delivery by KuG.

Should KuG be in default with a contractually agreed delivery through its own fault, the customer is entitled to demand compensation for delay from KuG from the 4th week of delay for each additional full week up to 0.5%, but not exceeding 5% of the order or call-off value.

X. Material defects / warranty / claims for damages

KuG is only liable for defects in the goods manufactured by it and for the value-added steps carried out by KuG in accordance with these GTC, whereby typical wear and tear does not constitute a defect. KuG provides a warranty for defects in the goods in accordance with the statutory provisions, unless otherwise specified below. Normal, typical wear and tear as well as premature wear and tear due to atypical use — for example under unusually increased load — is not a defect.

Every buyer is obliged to describe possible defects in detail. If the buyer does not fulfill this obligation, KuG is not liable for damages caused by the delayed processing of defects due to inadequate documentation. Each buyer must carefully inspect the goods for transport damage in good time before acceptance/acknowledgement, complain about this immediately, indicate it in full on the receipt, etc. and have it confirmed in writing. If the orderer does not comply with this inspection and notification obligation, all claims of the orderer against KuG in connection with these transport damages shall lapse. Each orderer is obliged to check the goods of KuG immediately after receipt by means of inspections (on the basis of the testing technology to be used according to the state of the art) for correct quantities, type and quality. Obvious defects and shortages must be reported to KuG in writing within 3 working days of receipt of the goods at the latest. Even in the case of non-obvious defects, every buyer must notify KuG in writing within one week after the condition of the goods contrary to the contract has been determined. If the orderer does not comply with this obligation to inspect and notify, all possible claims of the orderer against KuG in connection with these defects shall also lapse here.

KuG’s liability for so-called warranted characteristics or for guarantees assumed by KuG only applies if KuG has confirmed such warranted characteristics or assumed guarantees to the buyer in writing prior to the order.

Any warranty of KuG is conclusively limited to a period of 12 months, starting from the date of delivery of the respective goods and services. Any deviation from this must be made in writing to be effective.

In the event of possible defects, KuG’s liability is conclusively limited to rectification or subsequent delivery at its discretion. Further liability and compensation claims against KuG can only be asserted if the buyer proves KuG’s intentional or grossly negligent actions.

KuG assumes no liability for the electronic functionality of assemblies / products, unless the buyer has bindingly ordered corresponding electrical tests from KuG. Due to the mass character of the goods produced by KuG, KuG has the right to carry out the warranty by subsequent delivery within a reasonable period (at least 30 days) instead of rectification, whereby the buyer already accepts possible longer subsequent delivery periods (availability of the goods). If the customer decides to withdraw from the contract in the event of a possible failure of subsequent performance due to a defect, he shall not be entitled to any additional claim for damages.

If KuG is unable to fulfill its contractual obligation for a reason for which it is responsible, the customer is entitled to claim damages, whereby this claim for damages of the customer is limited to 10 % of the value of that part of the delivery / contractual obligation which cannot be put into useful operation due to the impossibility. The right of the customer to withdraw from the contract remains unaffected.

Possible claims against KuG under the Product Liability Act are not excluded by these GTC.

XI. Industrial property rights

The orderer is obliged to provide the products ordered by him from KuG for production free of third party rights. The orderer already now indemnifies KuG from all claims of such third parties.

third parties plus necessary legal costs due to the possible infringement of The customer shall be fully indemnified against any intellectual property rights.

XII. Prohibition of assignment

The buyer may only assign rights and obligations arising from contracts and orders with KuG to third parties with the prior written approval of KuG. In the event of an assignment by the buyer not approved by KuG, KuG is entitled to terminate the contract without notice for good cause or to cancel the order, in each case with the right to claim the additional costs and damages incurred by KuG as a result.

XIII Confidentiality

KuG and the respective customer will keep the documents, knowledge and information provided and specially marked confidential during the business relationship and after its expiry for at least another year. Documents, knowledge and information provided may only be published or passed on to third parties with the express written consent of the other party. Excluded from this are documents and information to suppliers which form the basis for material orders from KuG. KuG and the respective orderer will impose these obligations on their employees and suppliers. After termination of the business relationship, the documents provided may be reclaimed by either party.

The obligation of confidentiality shall not apply to data or other information that was already known at the time of transfer, for example via generally accessible or legal means. The burden of proof for access to this information outside of the transfer by the other party shall be borne by the party claiming such other access.

XIV Compliance with sanctions

The contractual partner confirms that all goods, services and technologies provided under this agreement comply with the applicable EU sanctions and regulations against Russia, in particular Regulation (EU) No. 833/2014. The contractual partner assures that no products, technologies or services are provided that violate the prohibitions of this regulation, in particular:

Armaments and dual-use goods that could be used for military or civilian purposes, provided they do not originate from Russia,
energy-related goods for the Russian energy industry, provided they do not originate from Russia,
Services in auditing, tax consulting and management consulting to support Russian companies,
investments or financing for the benefit of the Russian economy, as set out in Article 3g.

Documentation obligations

The contractual partner shall take all necessary measures to document compliance with the sanctions and to ensure that all necessary permits and licenses are available. If a service is affected by sanctions, the buyer must be informed immediately. The contractual relationship shall remain unaffected; however, any claims for damages shall remain reserved.

Liability and compensation

In the event of a breach of the aforementioned provisions, the contractual partner shall be liable in full and shall be obliged to compensate all damages incurred.

XV Place of performance, place of jurisdiction, applicable law and other matters

Place of fulfillment and exclusive place of jurisdiction for deliveries and payments, as well as all disputes arising between KuG and the respective customer from the contracts concluded between them, is the registered office of KuG. The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany, excluding the validity of the UN Convention on Contracts for the International Sale of Goods.

Should a provision of these GTC be or become invalid or unenforceable, this shall not affect the validity of the remaining GTC. In such a case, KuG will replace an ineffective provision as well as a possible loophole with a new provision that comes closest to the intended economic purpose.

In the event of circumstances that are not or not fully regulated in these GTC, the General Terms and Conditions of Delivery for Products and Services of the Electrical Industry (ZVEI) shall apply in their currently valid version. If there are further agreements between KuG and the respective customer, the following descending order applies

a. Individual, written agreements (such as delivery confirmations)

b. Supply contract with KuG and the customer

c. These General Terms and Conditions of KuG (GTC)

d. General Terms and Conditions of Delivery for Products and Services of the Electronics Industry (ZVEI) together with the Supplement Reservation of Title.

Status: 01.11.2024

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