General Terms and Conditions of Sale, Service, Delivery and Payment

1. General

We only accept orders on the following terms and conditions, unless we expressly agreed otherwise. Provided that nothing has been agreed hereinafter, the VOB/B [German Construction Contract Procedures Part B] in its respective valid version shall apply. On request, the text of the VOB/B will be made available to the Principal. The work contract law of the BGB [German Civil Code] shall apply, subordinated.

2. Conclusion of a Contract and Written Form Requirement

All orders placed with us will only become binding after our written order confirmation or at the beginning of the works.

Offers made by us are not binding until our order confirmation and/or the beginning of the works. Price quotes with regard to the sale of material as well as information about stock and delivery times are not binding and may be revoked at any time. Dates for the delivery of materials will be adhered to as far as possible; however, claims for damages due to a delayed delivery shall be excluded.

3. Sale of Materials

3.1. The calculation is based on the prices applicable at the day of the delivery and the VAT applicable at that time.

The prices are quoted for the purchase of large stocks and/or original packages ex warehouse in Kornwestheim.

3.2. Transportation Risk/Delivery. All shipments are carried out at the customer’s account and risk. The Customer shall be obliged to insure the goods against fire and theft. The goods are either packed in pallets or cartons. The costs for packaging and delivery shall be borne by the Buyer.

3.3. Warranty. The statutory limitation period shall apply in case of visible and hidden defects.

The defects must be notified in writing. Notices of defect may only be asserted if the Customer proves the proper processing, normal usage, storage and proper care. Customary or minor deviations in quality, colour and weight cannot be accepted as defects. In the event of a justified notice of defect the Customer shall be entitled to a replacement. If a replacement is not possible, the purchase price shall be reduced. Any further claims such as conversion or compensation shall be excluded.

4. Execution

4.1. Completion deadlines shall only be binding if they have been expressly agreed. Individual deadlines requested by the Principal shall only be binding for us if they have been confirmed by us (Section 5 No. 1 VOB [German Construction Contract Procedures]). In this case, the Principal guarantees site clearance throughout the whole agreed execution period.

4.2. We shall not be liable for the observance of deadlines as well as delays which were caused by circumstances in terms of Section 6 No. 2 VOB/B.

4.3. If the observance of deadlines is prevented due to delays of preliminary works of other craftsmen or insufficient coordination of the preceding works, surcharges for necessary overtime and public holidays shall be reimbursed to us, insofar as the construction management or the Principal insists on the observance of the deadlines or the shortening of the extension of time justified in accordance with Section 6 No. 2 VOB.

5. Supplementary Contracts

If a service not provided for in the Contract is requested from us we shall be entitled to separate remuneration (Section 6 No. 2 VOB/B). There shall be no need for a separate notification of the entitlement.

6. Payments/Invoicing

6.1. Objections of the Principal against the estimate prepared by us and enclosed to the final invoice shall be made within two months upon receipt at the latest for faster invoice verification. The Principal shall bear the burden of proof for the justification of later corrections.

6.2. All invoices shall be payable net upon the respective receipt. Every other method of payment shall require an express agreement.

6.3. All offer and contract prices stated by us shall be net prices. The VAT shall be paid by the Principal in the respective statutory amount.

7. Expanded and Extended Retention of Title

In the case of ongoing business relations, the goods remain our property until all receivables of the company Kipp GmbH – Murrstrasse 1 – 70806 Kornwestheim – telephone +49 7154 8242-0 – fax +49 7154 8242-10 – from the current account and/or business relationship have been completely paid.

In case of a current account relationship, the retention of title shall continue to exist even after adding to the current account and/or after balancing. In the event that the Buyer processes, combines or mixes the goods received, we shall receive the (co-)ownership; it is also common that a processing is carried out on our behalf (manufacturer clause). In the event of a resale of the goods not yet fully paid for, the claims shall be assigned to us in the amount of the invoice in advance.

8. Set-off and Retention

The set-off against our remuneration entitlements shall only be permissible with counterclaims which are undisputed or have been established with legal effect.

If the Principal is a registered trader, the assertion of retention rights shall by excluded, unless the counterclaim is undisputed or has been established with legal effect.

9. Acceptance

In the event that a formal acceptance is not agreed and has also not been requested by the Principal, the acceptance of our services shall be deemed to be made within 12 working days upon written notification of the completion or six days upon utilization of our services at the latest in accordance with Section 12 No. 5 VOB/B.

10. Termination

In the event that the Principal terminates the Contract even though the prerequisites stated in Section 8 No. 3 VOB are not fulfilled, we shall be entitled to the agreed upon remuneration in accordance with Section 8 No. 1 VOB/B. The amount of the expenses saved and therefore to be deducted in accordance with Section 8 No. 1 para. 2 VOB/B shall be agreed to be 80% of the contractually agreed remuneration. The Principal shall be entitled to prove any higher expenses to be deducted.

11. Liability for Material Defects

11.1. Prior to the acceptance of our services, our liability for material defects shall be determined in accordance with Section 4 VOB/B. After setting a reasonable deadline for the rectification of the defect and a threat to terminate the Contract, the Principal may withdraw the Order with regard to the part which has not yet been executed.

11.2. After the acceptance, the liability for material defects shall be determined in accordance with Section 13 VOB/B.

It shall begin with the acceptance of the services in accordance with Section 12 VOB/B and shall be four years for services executed to buildings in accordance with Section 13 No. 4 VOB/B.

11.3. The liability for material defects shall include the rectification of any defects which make the value or fitness of our services void or diminish the value of fitness in accordance with Section 13 No. 1/5 VOB/B. The diminution can only be requested in case of final failure of the rectification or if it is impossible or unreasonable to rectify the defect in accordance with Section 13 No. 6 VOB/B. In the event that we do not fulfil a request to rectify a defect within a reasonable period of time and with the threat of substitute performance, the Principal can have the existing defects rectified at our expense after having notified us of such in advance.

11.4. With the exception of personal injury contractual and tortious liability claims shall be excluded, unless we acted with intent or gross negligent. Any claims for damages shall be limited to 50% of the net contract price.

11.5. We shall not be liable for damages caused by preliminary and subsequent services of a third party in accordance with Section 13 No. 3 VOB/B or which result from an instruction of the Principal or from the properties or fitness of used materials requested by the Principal. To the extent that defects where caused by materials which we acquired from any third parties, all claims for damages existing in this regard against any third parties will be assigned to the Principal upon request.

12. Final Provisions

12.1. Oral side agreements with the MA of our company shall require a written confirmation from the Principal in order to be effective.

12.2. In the event that one of the clauses stated above is or becomes ineffective, the validity of the remaining provisions as well as the agreement of the VOB/B and BGB shall remain unaffected by this. In case of doubt they shall be interpreted in a way that they do not contradict Section 305 et seqq. BGB.

12.3. Place of performance and jurisdiction shall be Ludwigsburg, insofar as the Principal is a trader in accordance with Section 1 et seq. HGB [German Trade Code]. However, this does not exclude the taking of legal actions at the commercial seat of the Buyer.