The following general terms and conditions of sale and delivery (hereinafter referred to as “General Terms and Conditions”) of KRÜSS GmbH Wissenschaftliche Laborgeräte shall apply to all offers and order acceptances as well as to any deliveries, Services, other services and information provided. For the purposes of these General Terms and Conditions, a “Service” shall include but not be limited to services, laboratory measurements, counselling services, assessments, development of methods and processes. These General Terms and Conditions shall only apply to transactions with entrepreneurs. Any deviating agreements shall not apply unless expressly accepted by us.
1. Conclusion of contract; Special right of rescission
1.1. We reserve the right to accept orders or the placement of orders within a period of two weeks. Order acceptance shall be effected in form of a written order confirmation. Neither a handwritten signature nor an electronic signature is required for the fulfilment of the requirement of written form. Notifications via fax, e-mail or otherwise in text form shall be sufficient to fulfill the requirement of written form. Registrations for Seminars are binding upon receipt of the written registration (email, letter, fax, web form). The registration is linked to the company (not to a person).
1.2. Subsequent changes or amendments shall not be binding for us unless expressly confirmed by us in writing. Drawings, illustrations, weights and other documents relating to the offer shall generally apply subject to the usual tolerances, unless otherwise expressly confirmed by us. The customer shall bear the risk of wrong information (sketches etc.) or wrong transmission of essential measurements. The customer shall be obliged to accept custom-made products.
1.3. We reserve the right to rescind the contract if the customer is included in one of the terror lists of the EU or the US or if there are other export restrictions which prohibit a delivery. The right of rescission shall be in effect until the date of delivery. In addition, we reserve the right to charge the customer's account with any costs incurred up to that point.
2. Prices and terms of payment
2.1. In case of changes of the order data that are mutually agreed upon or demanded by the customer, all previously stated prices shall become ineffective. The prices are stipulated ex works (“EXW”, Incoterms 2010) unless otherwise expressly agreed upon. The customer shall bear the costs for packaging, postage, other shipment costs and the VAT applicable at the time of delivery. After order confirmation, any additional costs for changes made to the item or service upon the customer's request shall be charged to the customer.
2.2. Unless otherwise expressly agreed upon, all payments shall be made net without deductions within 30 days after the date of invoice or immediately for services and repairs (cf. no. 2.4). Seminar fees are to be paid in advance (“Prepayment”). If a booked seminar is cancelled less than 14 days before its commencement, 50% of the seminar fees must be paid. Payments shall be made in euros to the bank account we stipulated, without deductions and without expenses and costs. In case of any delay in payment, we shall be entitled to demand default interest amounting to 9 percent above the base rate. We reserve the right to assert higher damage caused by such delay, if any.
2.3. VAT-exempt deliveries in other EU countries can only be effected if the customer provides us with the customer’s VAT ID no. and duly returns the confirmation of arrival (“Gelangensbestätigung”). If we do not receive the confirmation of arrival within 4 weeks after receipt of the goods, we reserve the right to invoice VAT.
2.4. Deliveries to non-EU countries are subject to prepayment (cash in advance) or to a confirmed and irrevocable letter of credit.
2.5. If payment is not made in time, we reserve the right to refuse to execute subsequent orders.
2.6. We shall be entitled to refuse to perform if it becomes obvious after conclusion of the contract that our claim for payment is endangered due to the customer’s lack of financial capacities. The right to refuse performance shall not apply if the payment is made or if a security is provided. For more information, please see section 321 of the German Civil Code.
3. Customer’s right of set-off and retention
3.1. The customer shall have no right of set-off or retention unless the customer’s claims forming the basis of such right of set-off or retention are undisputed or established by declaratory judgment or are reciprocal to our claims (section 320 of the German Civil Code). Rights of retention based on other contracts shall be excluded in any case.
4. Term of delivery and delay in delivery; Delivery by sub-suppliers; Force majeure
4.1. The term of delivery we stated shall not commence until all technical issues are clarified and the customer’s obligations are fulfilled properly and in due time. To the extent import licenses or other approvals are required in the country of destination, the customer shall be obliged to provide us with the number, date of approval and term of validity thereof.
4.2. The term of delivery shall apply subject to the proviso that our sub-suppliers supply us correctly and in due time. The term of delivery shall be deemed observed if we inform the customer that the goods are ready for dispatch within the term of delivery. Such notification obliges the customer to accept the goods immediately. Any changes to the design of the item to be delivered the customer requests during the term of delivery shall interrupt and extend the term of delivery accordingly.
4.3. If the payment mode “prepayment” is agreed upon, the stated term of delivery shall commence upon full receipt of the amount in the account stated by us.
4.4. We shall be entitled to deliver before the agreed date. Partial deliveries and services are admissible to the extent this is reasonable. If we are unable to deliver by the agreed date of delivery, we shall be entitled to stipulate a reasonable new term of delivery.
4.5. If the customer is in delay in acceptance or otherwise culpably violates its obligations to cooperate, we shall be entitled to claim compensation for any related damage incurred, including any additional expenses, e.g. storage costs. We reserve the right to assert further claims.
4.6. In case of force majeure or other unforeseeable, exceptional circumstances that are not attributable to our sphere of responsibility and that prevent us from duly fulfilling our obligations, the term of delivery shall be extended accordingly. If such circumstances render delivery or service impossible or unreasonable, we shall be exempt from the obligation to perform. To the extent a delay in delivery caused by such circumstances exceeds three months, the contracting parties shall be entitled to rescind the contract. If the term of delivery is extended or we are exempt from the obligation to deliver, the customer shall not be entitled to assert any claims for damages based thereon. We shall only be entitled to invoke the stated circumstances if we informed the customer thereof shortly after we gained knowledge of such circumstances.
5.1. Delivery shall be made ex works (EXW Incoterms 2010). Shipment of the item will be effected at the Customer’s risk. Upon making available the goods for dispatch, the risk shall pass to the customer, irrespective of whether shipment is made from the place of performance and irrespective of which party bears the shipping costs.
5.2. If the goods are ready for dispatch and dispatch or acceptance thereof is delayed for reasons not attributable to our sphere of responsibility, the risk shall be transferred to the customer at the time the customer is informed that the goods are ready for dispatch.
5.3. Transport insurance or technical insurance shall only be taken out upon the customer’s express demand and at the customer’s expense.
5.4. The interpretation of alternative terms of delivery, such as FOB, CIF, C&F shall be subject to the Incoterms, as amended, issued by the International Chamber of Commerce (ICC).
6. Retention of title
6.1. We retain the title to the goods delivered until we receive full payment of all claims resulting from the business relationship with the customer.
6.2. If the customer processes goods subject to retention of title, the customer shall do so in our name and we shall have no obligations with respect thereto. We shall have the title to the new items in their respective state of processing. If goods subject to retention of title are processed, treated, mixed, blended or combined with third-party items, we shall have a pro-rata title to the new item corresponding to the ratio between the invoiced price of the goods subject to retention of title and the invoiced price of the third-party products.
6.3. The customer shall be entitled to sell the goods subject to retention of title or co-title in the ordinary course of business. Any pledge or transfer by way of security or assignment for security purposes of the goods subject to retention of title shall be inadmissible. Effective immediately, the customer shall assign to us in advance any and all claims the customer is entitled to from the resale of the goods subject to retention of title or of the products produced by such processing, treatment, mixing, blending or combination, even if such products are sold together with third-party products at a total price. If any third party acquired title or co-title to the products due to statutory provisions based on processing, treatment, mixing, blending or combination, the customer - also effective immediately - assigns to us in advance any claims the customer may have vis-à-vis such third party. For the purposes of this paragraph, assignments shall always only be made up to the amount of the invoiced price of the goods subject to retention of title. The customer shall be entitled to collect the assigned claims. Such entitlement may be revoked at any time.
6.4. Effective immediately, we accept the assignments made by the customer in accordance with this section.
6.5. We undertake to release any security provided to us in accordance with the above provision, in our discretion and upon the customer's request to the extent they exceed the value of the claims to be secured by more than 10%.
6.6. If any action by the customer is required for the effectiveness of the retention of title, e.g. in case of registrations, and if such actions are required in accordance with the law applicable to the country of the customer, the customer shall be obliged to take such actions.
6.7. If the customer is in delay in payment, we shall be entitled to prohibit the customer from disposing of the goods subject to retention of title in whole or in part, e.g. we may prohibit the customer from selling or processing such goods.
6.8. If the customer is objectively obliged to file an insolvency petition, the customer, without request, shall refrain from disposing of the goods subject to retention of title in any manner. The customer shall be obliged to inform us immediately of the existing quantity of goods subject to retention of title. In such case, we shall also be entitled to rescind the contract and to demand that the goods subject to retention of title be returned to us. If the goods subject to retention of title were processed, treated, mixed, blended or combined with other products, we shall be entitled to demand that they are surrendered to a trustee. The customer shall be entitled to inform us of any co-owners of goods subject to retention of title, stating name of company and/or name, address and size of the co-ownership share. The same shall apply mutatis mutandis to any claims that were assigned to us in accordance with the above paragraphs. In addition, the customer shall inform us without request of the names and addresses of all debtors and send us copies of the documents evidencing such debts.
7. Claims based on defects and notification of defects
7.1. The customer shall only be entitled to assert claims for defects if the customer duly fulfilled the obligations to investigate and to make a complaint in respect of a defect immediately upon receipt of goods according to section 377 of the German Commercial Code. Any complaints must be made in accordance with section 377 of the German Commercial Code immediately but not later than 5 working days upon receipt of the goods for obvious defects and for hidden defects immediately but not later than 5 working days after they were detected, otherwise the goods shall be deemed accepted. Section 377 of the German Commercial Code and the above provisions shall apply mutatis mutandis to contracts for work and services.
7.2. Should the delivered goods be defective despite all due diligence and such defect existed at the time the risk was transferred, we shall, in our discretion, either rectify such defect or deliver replacement goods, provided the customer notified us of the defect in due time. The customer’s additional rights to rescind the contract or to reduce the purchase price are subject to statutory provisions.
7.3. The customer shall not be entitled to assert claims based on defects for usual wear and tear or any damage that incurred after the transfer of risk due to wrong or negligent treatment, excessive strain, unauthorized structural changes, improper repair, non-observance of the operating manual, unsuitable equipment or special external incidents such as events of force majeure, which were not foreseen in accordance with the contract. If the customer or any third party effects improper repairs or changes, the customer shall not be entitled to assert any claims based on defects with regard to such repairs or changes and any consequences thereof.
7.4. Claims based on defects shall become statute-barred 12 months after the customer receives the goods. Claims for damages based on defects shall be excluded therefrom; such claims shall be subject to the statutory warranty period. Claims for damages incurring if we are in delay in the remedy of defects, if such remedy of defects was requested by the customer and owed by us, shall also be subject to the statutory warranty period. The customer shall be obliged to obtain our consent before returning the goods.
7.5. For warranty cases, the customer shall bear the transport costs for the shipment to us and any incidental costs, such as customs duties. We shall select the carrier for the return shipment and bear the costs for the return shipment. Customs and other duties in the country of destination shall be borne by the customer.
7.6. If our service department detects, upon testing the device, that the defect is not subject to warranty, we reserve the right to charge the customer with the costs for the return and the repair of the goods.
7.7. Warranties of quality must be expressly stipulated in writing in the written order confirmation in any case, including for follow-up transactions. In particular key word descriptions, references to generally accepted standards, the use of trademarks or quality marks or the provision of samples or patterns alone do not establish a guarantee or warranty.
8.1. Claims for damages of any kind asserted against us and our statutory representatives and vicarious agents shall be excluded except in case of willful intent and gross negligence or violation of a material contractual obligation.
8.2. For this purpose, a material contractual obligation means any obligation the fulfilment of which is a prerequisite for the due execution of the contract and on the fulfilment of which the customer may generally rely.
8.3. However, our liability shall be limited to the compensation of the typically foreseeable damage, except in cases of willful intent
8.4. The above limitations of liability and exclusions of liability shall neither apply to liabilities according to the Product Liability Act and other national laws implementing the European Product Liability Directive nor to any injury to life, limb or health.
8.5. The customer shall waive any claims for compensation in accordance with section 284 of the German Civil Code to the extent a claim for damages instead of performance is excluded in accordance with the above provisions.
8.6. For Application Measurements we ensure proper implementation of the contractual services according to rules of science and technology, however, we do not guarantee a specific result. We are only liable for willful or grossly negligence damages up to the total order amount or the maximum sum insured by our public liability insurance. Liability for slight negligence, compensation for consequential loss and pure economic loss is excluded.
9. Confidentiality and Industrial property rights
9.1. The customer shall be obliged to treat confidentially all business data and information to the extent they are not generally accessible or generally known.
9.2. We reserve title, copyright and other industrial property rights to any and all figures, drawings, calculations and other documentation provided by us in tangible or electronic form and to any and all software items. However, the customer shall be entitled to use the work products we provided to the extent the customer lawfully obtained such work products in the course of the transaction. Unless otherwise agreed upon in writing, we shall provide the results only to the principal.
9.3. We shall store and process in accordance with data protection regulations and not disclose to third parties any data of the customer we receive in connection with the business relationship.
10. Use of software
10.1. To the extent the devices delivered in accordance with the contract are software-controlled, such devices shall also be subject to our software license conditions (End User License Agreement - EULA) and to the provisions of the software maintenance agreement concluded with the customer, if any. In case of doubt, for software, the latter shall have priority over these General Terms and Conditions of Sale and Delivery.
11. Choice of law and jurisdiction
11.1. If the Customer's registered office is within the EU and/or within the EEA, the following conditions shall apply: Exclusive place of jurisdiction shall be Hamburg, Germany (if juridical applicable the responsible district court is Hamburg-Mitte), if the customer is a merchant, a public law entity or a special fund under public law or if the customer does not have a general place of jurisdiction in Germany.
11.2. However, if the Customer’s registered office is outside the EU and the EEA, the arbitral tribunal of the commercial chamber Hamburg shall be exclusively competent for any and all disputes arising out of and in connection with any contract that was concluded subject to these General Terms and Conditions and such arbitral tribunal's decision shall be final and binding and the due process of law shall be excluded. The defendant shall be entitled to cross-sue before the arbitral tribunal. Place of arbitration shall be Hamburg, Germany and arbitration proceedings shall be in German. The arbitration proceedings, including but not limited to the taking of evidence, shall be subject to the provisions contained in the rules of arbitration of the arbitral tribunal of the commercial chamber Hamburg and to the regulations contained in Book No. 10 of the German Code of Civil Procedure. The principles of common law, including but not limited to document production shall not apply, neither directly nor mutatis mutandis.
11.3. The law of the Federal Republic of Germany shall apply exclusively. The UN Sales Convention shall be excluded.
This is a translation of a German original document. While all due care has been taken with the translation, the original German version is the only legally valid document.