As of: 2014

§ 1 Scope

These terms and conditions apply to all contracts concluded by Bernd Kußmaul GmbH (hereinafter referred to as Kussmaul) with customers (hereinafter referred to as Customers) – where Kussmaul acts as the seller – or suppliers (hereinafter referred to as Suppliers) – where Kussmaul acts as the buyer.

§ 2 Prices

The prices agreed upon at the conclusion of a long-term supply contract with customers apply ex-works, exclusive of packaging. The prices agreed upon at the conclusion of a long-term supply contract with suppliers apply free Kussmaul, including packaging.

§ 3 Retention of Title

Kussmaul retains ownership of the goods supplied to the customer until the full payment of the purchase price and the fulfillment of all claims existing or arising later from Kussmaul towards the customer at the time of delivery. The customer may sell, mix, and/or process the goods as part of its regular business operations. The retention of title extends in proportion to the invoice value of Kussmaul’s goods to the value of the new product. The mixing and/or processing is deemed to be carried out for Kussmaul without Kussmaul incurring any liability. If the co-ownership in the new product does not directly transfer to Kussmaul, the customer hereby assigns the corresponding co-ownership share to Kussmaul. The customer will keep the item for Kussmaul as retention property in the event of such co-ownership.
In case of resale of goods still under retention of title, the customer assigns to Kussmaul the part of the total claim against the buyer corresponding to the value share of Kussmaul’s ownership or co-ownership of the sold goods until all claims are settled. The customer must immediately notify Kussmaul of any seizure or other interference with Kussmaul’s rights. If the value of the securities granted to Kussmaul exceeds its total claims by more than 20%, Kussmaul is obligated to transfer back such securities upon the customer’s request; Kussmaul has a right of choice in this case.
In the relationship between Kussmaul and suppliers, the statutory regulations apply instead of the above provisions in § 3.

§ 4 Payment Terms

1. Customers must make payments to Kussmaul’s designated payment office. The statutory regulations apply to suppliers.
2. Customers and suppliers may only offset claims against Kussmaul that are undisputed or have been legally established.
3. Kussmaul invoices upon or immediately after delivery of the goods with “30 days net”. The customer is in default with the payment obligation if not paid within 30 days after the invoice is due and received.
In the relationship between Kussmaul and suppliers, the statutory regulations apply, with a 2% discount if Kussmaul pays within 10 days after receipt of the invoice.

§ 5 Delivery Time

1. The delivery time is governed by the mutual written agreements. Delivery dates stated by Kussmaul are non-binding unless Kussmaul explicitly and in writing guarantees a delivery date.
2. The deadlines are extended as follows:
a) all documents to be provided by the customer to Kussmaul;
b) all approvals and permits to be provided by the customer;
c) the approval/clarification of the construction plans by the customer.
3. If the customer does not comply with agreed payment terms and other obligations, Kussmaul is not bound by the delivery period.
4. If non-compliance with the delivery period is due to mobilization, war, uprisings, strikes, lockouts, operating disruptions, difficulties in obtaining goods or energy, irregularities in unloading, labor force obstacles, official measures, or any other unforeseen hindrances, the delivery period will be reasonably extended, and Kussmaul is entitled to withdraw from the contract without any claims from the customer. The customer has the right to withdraw if the agreed delivery period is exceeded by more than four weeks.

§ 6 Risk Transfer

1. The risk of accidental loss or deterioration of the delivered goods transfers to the customer as soon as:
a) the goods are dispatched by Kussmaul or are collected by the customer. Packaging is done with the utmost care.
b) the shipment or delivery is delayed at the customer’s request or due to reasons for which the customer is responsible, the risk transfers as of the delay commencement.

§ 7 Acceptance

The goods delivered by Kussmaul or to be collected by the customer must be accepted by the customer even if they have insignificant defects. Partial deliveries are allowed.

§ 8 Quality, Warranty

The parts supplied by Kussmaul must meet average quality standards. This quality is determined according to the customer’s drawings and specifications. Kussmaul ensures necessary quality control.

§ 9 Liability for Damages

Liability for damages, whether for customers or suppliers, is excluded, including claims for reimbursement of futile expenses. Kussmaul is not liable for damage to the goods themselves or for consequential damages of any kind.

§ 10 Jurisdiction and Law

The jurisdiction for all disputes with customers and suppliers is Stuttgart. German law applies to the contractual relationships with customers and suppliers.

§ 11 Miscellaneous

Should any of the above conditions be invalid or unenforceable, it will not affect the validity of the remaining provisions. Invalid conditions shall be replaced by others that come as close as possible to the intended economic purpose.