1. Area of application / choice of law / place of jurisdiction
(1) The following conditions apply to all contractual relationships between Kromberg & Schubert GmbH Cable & Wire (hereinafter "Kroschu") and their respective customers (hereinafter also the "Client") as well as all resulting deliveries and services that Kroschu does in business dealings with the client, unless it is a matter of business with consumers. These conditions also apply if they are not mentioned in subsequent contracts.
(2) These conditions apply exclusively. Terms and conditions of the client to the contrary are in no way part of the contract.
(3) As far as legally permissible, the court responsible for Kroschus' place of business is exclusively responsible for all disputes arising from or in connection with the concluded contract - including the validity of the contract itself. In deviation from this, however, Kroschu is alternatively entitled, at Kroschu's choice, to assert claims against the client also at his place of business.
(4) For all reciprocal claims and rights from or in connection with the concluded contract, German law applies exclusively to the exclusion of the United Nations Convention on the International Sale of Goods of April 11, 1980 (CISG) as well as the referral provisions of German international private law.
2. Remuneration / Payments
(1) The prices stated in our order confirmation apply exclusively. Unless expressly agreed otherwise in writing, Kroschus prices apply ex Kroschus' respective manufacturer of the goods sold (EXW Incoterms 2010) without loading. Packaging and freight costs, customs duties, fees and public charges for export deliveries are not included in the agreed prices, unless otherwise expressly agreed in writing. Additional or changed services that the client subsequently orders are to be paid for separately. We name the respective manufacturer when submitting the offer to sell the goods.
(2) Additional or reduced costs compared to the metal bases mentioned in the offer are determined via the quotations of the non-ferrous metal consumers (DEL) (source: http://www.del-notiz.org). The courses are updated daily in the Kroschus system on working days (except Saturdays) and made available to the client on request. In addition, 1% procurement costs are charged. If it is not possible to buy at the prices determined by DEL, the actual metal procurement price will be calculated. Copper surcharges or discounts are always strictly net. A provision of metal always requires Kroschus' prior written confirmation.
(3) All prices are net prices, unless otherwise expressly agreed in writing. According to the contractual terms of payment, payments must be made strictly net without any deductions by the client. Checks and bills of exchange are only accepted on account of performance.
(4) The client is only entitled to offset if his claims are undisputed, legally established or ready for a decision. The client is only entitled to rights of retention if they are based on the same contractual relationship.
(5) Claims of the client may only be assigned to third parties with Kroschus' prior written consent. § 354a HGB remains unaffected.
3. Delivery / delivery dates / self-delivery reservation
(1) Unless otherwise expressly agreed in writing, Kroschu delivers exclusively ex works (EXW Incoterms 2010) without loading; this also applies to the transfer of risk and the place of performance.
(2) Delivery times are only binding if an express written individual agreement has been made. The agreed delivery deadlines are met with the existence and notification of readiness for dispatch or - if a dispatch has also been taken over by Kroschus - with the timely departure from the factory.
Compliance with delivery and service deadlines always requires the clarification of all technical questions. This includes in particular the timely receipt of all documents to be procured by the client, any necessary releases and approvals as well as compliance with the agreed terms of payment and other obligations of the client. If the aforementioned requirements are not met, the deadlines are extended accordingly; this does not apply if Kroschu is responsible for the delay.
(3) The delivery schedule, which is usually transmitted weekly, contains the following fixing horizons: Fixing horizon 1 (35 days) = production release, fixed quantities and dates, changes are only possible after mutual agreement; Freeze horizon 2 (63 days) = material release. All further information beyond the fixing horizon 2 is to be understood as a non-binding planning forecast.
(4) Kroschu is entitled to partial deliveries and partial services, provided that these are reasonable for the client in the specific case.
(5) If Kroschu does not deliver himself, although Kroschu has placed identical orders with reliable suppliers, Kroschu is released from the obligation to perform and can withdraw from the contract. Kroschu is obliged to inform the client immediately about the unavailability of the service and will immediately reimburse any consideration already provided by the client.
(6) Unless otherwise expressly agreed in writing, any dispatch takes place at the risk of the customer. According to EXW Incoterms 2010, the risk is transferred to the client. If the customer is in default of acceptance, Kroschu is entitled to demand the expenses that Kroschu incurs as a result. In addition, with the occurrence of default in acceptance, the risk of accidental loss and accidental deterioration of the goods is transferred to the customer.
(7) Contractual penalties for late deliveries and services from Kroschus Ware are by no means part of the contract.
(8) If Kroschu defaults on delivery, the customer is entitled to compensation for the damage that can be proven to have occurred. However, Kroschus liability is limited in amount to the damage that is foreseeable and typical for the contract when the contract is concluded, unless there is an intentional or grossly negligent breach of duty or damage that is based on injury to life, body or health and the underlying breach of duty Kroschu or Kroschus vicarious agents have to represent . Likewise, Kroschu is only liable for lost profits of the client in the event of an intentional or grossly negligent breach of duty.
(9) If the client causes a delay in delivery or dispatch, Kroschu is entitled to charge the client for the resulting additional costs. Without prejudice to the evidence of higher or lower storage costs, Kroschu is in any case entitled to charge the client a location fee of 0.5% of the net price of the items in the affected delivery per week, but no more than 5% of the net price of the items in the affected delivery. This location fee will be deducted from the calculation of the additional costs incurred.
4. Force Majeure
(1) In cases of force majeure, Kroschu is released from the obligation to perform for the duration and to the extent of the effect. Force majeure is any event that is beyond Kroschu's sphere of influence, as a result of which Kroschu is completely or partially prevented from fulfilling its obligations, including fire damage, floods, strikes and legal lockouts as well as operational disruptions or official orders that are not the fault of Kroschu. Supply difficulties and other service disruptions on the part of Kroschu's sub-suppliers are only deemed to be force majeure if the sub-supplier is prevented from providing the service incumbent on him due to an event in accordance with sentence 1.
(2) Kroschu will immediately notify the client of the occurrence and the cessation of force majeure and will endeavor to remedy the force majeure and to limit its effects as far as possible.
(3) Each contractual partner is entitled to withdraw from the contracts affected by this if the force majeure continues for more than 8 (eight) weeks. The right of each contractual partner to terminate the contract for an important reason in the event of prolonged force majeure remains unaffected.
5. Packaging regulations, return of packaging
(1) Kroschus general presentation and packaging regulations apply in the current version, a copy of which is made available to the client on request.
(2) Undamaged bobbins, drums and barrels will be taken back by Kroschu under the condition that Kroschu will unilaterally assess reusability at Kroschu's respective work, without the customer having a legal claim to this. The client bears the costs for the return transport.
(3) Cardboard boxes, cardboard and foils must be disposed of by the customer at his own expense. Recyclable one-way pallets used by Kroschu must also be disposed of by the customer at his own expense.
(4) If used by Kroschu, the casing, support timbers and other charging devices will be charged at cost and will not be taken back.
(5) Cable drums that are owned by Kabeltrommel GmbH & Co. KG (KTG) must be returned to KTG after they have been emptied. The takeover is carried out free of charge by freight forwarders on behalf of KTG. The decision for use is left to the KTG. The client is aware of the conditions for the transfer of cable and rope reels from KTG and the client accepts and recognizes these as binding for him.
6. Retention of Title
(1) Kroschu retains ownership of the goods delivered by Kroschu until all claims from the legal relationship on which the delivery is based have been met in full (reserved goods ). Until then, the client is not authorized to pledge the goods or assign them as security.
(2) The client is only entitled to process the delivered goods in the ordinary course of business or to combine them with other items, or to mix or sell them. A proper course of business within the meaning of these terms and conditions does not exist if, in the case of sales by the customer or other dispositions in favor of third parties, the assignment of his claims to third parties is excluded.
(3) In the event of a sale, such as processing, combining or mixing, the client hereby assigns the claims against third parties, namely in the amount of the purchase price of the reserved goods, to Kroschu, without the need for a special agreement in individual cases. Kroschu already accepts the assignment.
(4) If the realizable value of the securities given to Kroschu exceeds the secured claims not only temporarily by more than 10 percent or if the estimated value of the securities given to Kroschu exceeds 150% of the value of the secured claims, Kroschu is obliged to release the securities at Kroschu's choice if requested by the client. When selecting the securities to be released, Kroschu will take into account the legitimate interests of the client.
7. Limitation of Liability
(1) Kroschu is liable in accordance with the statutory provisions for any defects in the goods delivered by Kroschu within the agreed warranty periods, unless otherwise regulated below. Unless otherwise expressly agreed in writing, the following applies: (i) Kroschus specifications only provide descriptions of services within the meaning of Section 434 (1) sentence 1 BGB (agreed quality), and not guarantees from the seller (neither independent guarantees within the meaning of Section 311 BGB or quality guarantees within the meaning of § 443 BGB); (ii) a certain suitability or a certain purpose is not owed, the client bears the risk of suitability and use. If the buyer has built a defective item delivered by Kroschu into another item or attached it to another item in accordance with its type and intended use, the client can only incur any expenses for removing the defective item and installing or attaching the repaired or delivered item free of defects demand if Kroschu is responsible for the defectiveness of the delivered item.
(2) In any case, claims for defects on the part of the customer require that he inspects the goods delivered by Kroschu immediately after delivery and, if a defect is found, notifies Kroschu immediately. If he fails to report, Kroschus goods are deemed to have been approved, unless it is a matter of a defect that was not recognizable during the examination. If such a defect appears later, the report must be made immediately after it is discovered; otherwise, the goods are considered approved even with regard to this defect.
(3) Unless otherwise stipulated above or below, Kroschu is liable in accordance with the statutory provisions for all damage for which Kroschu is responsible and which occurs when Kroschu or Kroschu's vicarious agents provide Kroschu's contractual services. However, Kroschus liability is always limited in amount to the damage that is foreseeable and typical for the contract at the time the contract is concluded, unless there is malice or an intentional or grossly negligent breach of duty or damage based on injury to life, body or health whose underlying breach of duty Kroschu or Kroschus vicarious agents are responsible for. Claims under the Product Liability Act also remain unaffected. The right of the customer to supplementary performance, reduction in price and withdrawal also remains unaffected by the above regulation.
(4) The limitation period for defects in the goods delivered by Kroschu is twelve months, unless there is an intentional or grossly negligent breach of duty or an injury to life, body or health caused by one of Kroschu's or Kroschu's vicarious agents The defect for which it is responsible is based, or Kroschu has fraudulently concealed the defect. §§ 438 Paragraph 1 No. 2, 634a Paragraph 1 No. 2 BGB and § 478 BGB remain unaffected.
(5) Parts exchanged as part of the supplementary performance become Kroschus' property. In this respect, the client is obliged to transfer ownership back.
8. Defects that can be traced back to specifications of the buyer
If a defect is due to the specifications or other specifications of the buyer or to materials, products or components supplied by third-party suppliers at the buyer's request or prescribed by the buyer, Kroschu is not liable, not even proportionately, for this defect if Kroschu informs the buyer before Production pointed out the problem or the problem was not recognizable for Kroschu as a specialist company.
9. Trade Secrets
The client is obliged to treat all commercial and technical details of the assignment as business secrets. Concepts, drafts, software, drawings, tools, samples, models, brands or the like produced by Kroschu, which Kroschu leaves to the client, remain exclusively Kroschus property and may only be passed on to third parties with Kroschu's express written consent.
Kroschus currently valid certificates can be viewed on our homepage at https://www.kroschu-cable.de/en/downloads.html.