Company – General terms and conditions - GTC
General terms and conditions of sale and delivery
Kollmorgen Steuerungstechnik GmbH, D-51109 Cologne
I. Scope of the general terms and conditions
1. Deliveries, services and offers within the framework of business dealings and business with corporate bodies under public law as well as public law special funds will be provided exclusively in accordance with the conditions below.
2. These terms and conditions shall also apply to follow-up business, even if not mentioned at the time such follow-up business is transacted.
3. Contrary conditions of the customer shall apply only if agreed in writing.
4. Technical improvements of KOLLMORGEN products in terms of design, dimensions, weight, material and shape are hereby reserved.
5. KOLLMORGEN reserves any and all industrial property rights and copyrights in the products, designs, samples, services, images, software and other documents provided by the company KOLLMORGEN.
II. Prices and payment terms
1. Prices are ex works Cologne, plus statutory value-added tax. End customers within the country and abroad as well as resellers abroad have to pay in advance.
2. Payments have to be made net within 30 days from the invoice date.
3. The customer must not withhold payments due to an incomplete delivery, any warranty claims or minor defects.
4. Default shall be considered occurred upon delivery of a reminder or, in case that no reminder was sent, 30 days from the invoice date respectively.
5. If the customer defaults on payment, KOLLMORGEN shall without prejudice to any further rights be entitled to demand default interest in the amount of 5% above the Deutsche Bank base rate or the European Central Bank prime rate replacing it respectively, to the extent that the customer does not furnish proof of lower damage.
6. The customer may offset own claims or exercise any right of retention related to such claims only when said counterclaims are undisputed or established as final and absolute.
III. Passing of risk
1. The risk shall pass on to the customer as soon as the goods have left the KOLLMORGEN business premises.
2. The mode of shipment shall be up to KOLLMORGEN.
3. KOLLMORGEN shall insure shipments against transport damage and loss only upon the express, written request of the customer and shall pay damages in only if this requirement has been met.
4. In case that an insured event occurs, damage and losses must be reported immediately upon receipt of the shipment so as to safeguard any claims vis-à-vis the transport insurance provider.
5. In case of shipment including erection or assembly, the risk shall pass on to the customer on the day of taking over at the customer's premises or, to the extent agreed, upon faultless trial operation.
6. Shipments must be accepted by the customer, even if they show minor defects.
IV. Installation and assembly
1. The customer shall have to ensure at its own cost and make arrangements in a timely manner to make sure that the following is provided:
a) All earthwork, construction work and other extra work from other sectors, including the skilled and unskilled workers, construction materials and tools required therefore;
b) The utensils and materials needed for assembly and commissioning such as scaffolds, hoisting devices and other contrivances, fuels and lubricants;
c) Power and water at the installation site, including connections, heating and lighting;
d) Sufficiently large, suitable, dry and lockable rooms near the assembly site to store machine parts, equipment, materials, tools etc. and appropriate work and common rooms for the assembly personnel, including sanitary facilities appropriate to the circumstances; for the rest, the customer shall take all precautions for the protection of the property of KOLLMORGEN and the assembly personnel at the construction site the customer would take to protect its own property;
e) Protective clothing and safety devices which become necessary at the place of assembly due to special circumstances.
2. Prior to the beginning of the assembly work, the customer shall provide the required information concerning the location of hidden power, gas and water lines or similar systems as well as the needed structural details without further demand.
3. Prior to the beginning of erection or assembly, the supplies and items needed to start working must be available at the place of erection or assembly, and all preparatory work preceding the beginning of erection must have been completed to the extent that erection or assembly can be commenced as agreed and carried through without interruption. Access ways as well as the place of erection or assembly must be even and cleared.
4. In case that erection, assembly or commissioning are delayed due to circumstances the supplier is not responsible for, the customer shall have to bear the costs related to waiting time and additionally necessary travels of KOLLMORGEN or of the assembly personnel to an appropriate extent.
5. The customer shall have to confirm to KOLLMORGEN the working hours of the assembly personnel on a weekly basis as well as the completion of erection, assembly or commissioning without delay.
6. If KOLLMORGEN requests acceptance of the delivery upon completion, the customer shall have to realise such acceptance within two weeks. If the customer fails to do so, the acceptance shall be deemed to have occurred. Equally, acceptance shall be deemed occurred as soon as the delivered items - if applicable, upon completion of an agreed test phase - have been put into use.
V. Reservation of title
1. KOLLMORGEN reserves the title to the delivered goods until all demands have been fulfilled (goods subject to retention of title).
2. The customer shall be entitled to sell the goods subject to retention of title in the ordinary course of business only and as long as the customer is not in arrears with its payments. Pledging and transfer by way of security shall not be permitted.
3. The customer assigns any claims resulting from the resale of the goods subject to retention of title in the amount of the invoice value to KOLLMORGEN by way of security at this point already.
4. In case that third parties take hold of the goods subject to retention of title, the buyer shall refer them to the fact that those goods are the property of the seller and inform the seller without delay.
5. Costs and damage shall be paid for by the buyer.
6. Upon suspension of payment or the filing of an application for insolvency proceedings, the right to resale and use shall cease.
VI. Delivery, delay, impossibility
1. Delivery dates and times for delivery must be laid down in writing, with times for delivery beginning on the date of the order confirmation.
2. All delivery commitments are under the reservation that supplies are received in due time to the extent that KOLLMORGEN is not to blame for the failure of its suppliers to deliver.
3. In case that the time for delivery or a delivery date cannot be met due to force majeure or other business interruptions caused through no fault of KOLLMORGEN, the time for delivery shall be extended by the period of time for which such events persist. If the delivery is delayed in this way for more than 1 month, the customer and KOLLMORGEN shall have the right to withdraw from the contract, all further rights being excluded.
4. In case that the agreed time for delivery is not met due to KOLLMORGEN's fault, the customer shall have the right to withdraw from the contract after having granted a reasonable period of grace. In case of slight negligence, the customer shall not be entitled to assert claims for damages.
5. Partial deliveries shall be permitted and may be invoiced separately.
6. To the extent that a delivery is impossible, the customer shall be entitled to assert claims for damages unless KOLLMORGEN is not responsible for such impossibility.
7. The customer's claim for damages shall however be limited to 10% of the value of that part of the delivery which cannot be put into useful operation due to the impossibility. This limitation shall not apply to the extent that liability is mandatory in cases of intent, gross negligence or bodily injury. The burden of proof shall not be altered to the detriment of the customer in such case. The customer's right to withdraw from the contract shall remain unaffected.
VII. Warranty, compensation for damages
KOLLMORGEN shall be liable for material defects as follows:
1. All parts or services showing a material defect within the period of limitation - regardless of the time of operation - must be repaired, supplied or performed anew free of charge at KOLLMORGEN's option to the extent that the cause of such defect has existed at the time of the passage of the risk already.
2. As a rule, KOLLMORGEN grants a 12 month warranty period (from the date of delivery) to speciality retailers for all products, accessory devices and repairs unless stipulated otherwise below.
3. The customer shall report visible defects in writing without delay. Otherwise the warranty obligation will be inapplicable.
4. At first, KOLLMORGEN must be given the opportunity to remedy any defect within a reasonable period of time. If KOLLMORGEN fails to remedy the defect, the customer shall have the right to withdraw from the contract or reduce the remuneration without prejudice to any claims for damages.
5. Warranty claims cannot be asserted in case of an insignificant deviation from the agreed quality, a negligible impairment of usability, normal wear or damage caused after the passage of the risk as a result of incorrect or neglectful handling, excessive stress or unusual external influences not implied in the contract and in case of software errors which are not reproducible.
6. If the customer or third parties improperly perform modifications or repair work, warranty claims for that and for any resulting consequences will also be excluded.
7. Claims of the customer related to expenses necessary for the purpose of having defects remedied, particularly transport costs, travel costs, labour costs and material costs, shall be excluded to the extent that such expenses increase because the item of the delivery has subsequently been transported to a place other than the KOLLMORGEN workshop, unless such transport is in accordance with the intended use.
8. Statutory rights of recourse of the customer against KOLLMORGEN shall apply only to the extent that the customer has not entered into any agreements exceeding the statutory warranty claims with its own customers. The scope of the customer's right of recourse against KOLLMORGEN shall be subject to no. 7 above.
9. Repair work on KOLLMORGEN products shall exclusively be performed by KOLLMORGEN.
VIII. Work and services provided under the warranty
1. KOLLMORGEN products are subject to a warranty period of 24 months from the date of the passage of the risk.
2. The warranty granted in accordance with the above-mentioned periods by KOLLMORGEN covers the rectification of defects in KOLLMORGEN products free of charge in case of defects in workmanship or materials. If it is not possible to remedy such defects, or if such rectification is delayed to an unacceptable extent, KOLLMORGEN will send a replacement delivery.
3. In case of normal wear, abnormal handling or improper maintenance, excessive stress, unsuitable operating materials, faulty construction work, unsuitable building ground or unusual external influences not implied in the contract and in case of software errors which are not reproducible, warranty claims shall be excluded.
4. In case of repair work or other interventions involving KOLLMORGEN equipment which are associated with the defect claimed and performed by third parties, KOLLMORGEN's warranty shall expire to this effect.
IX. Other claims for damages
1. Claims for damages asserted by the customer, regardless of the legal basis, particularly claims related to the violation of obligations under the contract and to unlawful acts, shall be excluded.
2. This shall not apply to the extent that there is a mandatory liability, e.g. as per German Product Liability Act, in cases of intent, gross negligence, death, injury to body or health or due to the violation of material contractual obligations. However, compensation for the violation of material contractual obligations shall be limited to the foreseeable damage typical for this type of contract, unless intent or gross negligence are the case or there is a liability for death, injury to body or health. The stipulations above shall not alter the burden of proof to the detriment of the customer.
3. To the extent that the customer is entitled to claims for damages in accordance with this section, they shall lapse at the end of the period of limitation applicable to claims related to material defects, within 12 months.
1. Where KOLLMORGEN provides software to the customer, the customer will be granted the non-transferable right, unlimited in time, to use that software in its unmodified form for the purposes mentioned in the product description.
2. The software and the appurtenant documentation must not be passed on to third parties – with the exception of operators authorised by the customer. The customer may not manipulate programs nor extract program elements.
3. KOLLMORGEN will not be liable for damage or downtimes occurring in connection with the installation and use of the software outside of the scope of usage as defined and documented by KOLLMORGEN.
4. Kollmorgen compiles all hardware and software packages it provides very carefully with regard to reliability, compatibility and longevity. In this context, so-called freeware software modules are used as well. Some of these are pre-installed already by our suppliers, e.g. as an operating system. Please note that we provide that type of software as freeware. Thus, we will not take any responsibility for the currency, correctness, completeness or quality of the software provided. Liability claims relating to material or non-material damage caused by the use or non-use of the provided software or by the use of faulty and incomplete information respectively, shall be excluded as a rule. The liability for consequential damage caused by a defect shall be excluded as well. A list of the software packages we use can be found at our website.
We use the following software modules:
Software packages which are not freeware but subject to licensing are:
Image Magick http://www.imagemagick.org
XI. Place of jurisdiction, partial effectiveness, choice of law
1. The place of fulfilment of delivery and payment and the place of jurisdiction for all disputes shall be Cologne, Germany.
2. If one or several of the provisions above is/are or become(s) ineffective, the effectiveness of the other provisions shall remain unaffected by that. The parties to the contract will cooperate in order to find an arrangement coming as close to the ineffective provisions as possible.
3. Contractual relationships shall exclusively be governed by German law. This shall also apply to customers from countries belonging to the European Union as well as customers from non-EU countries.