1. Effectiveness of the Business Terms
1.1 The delivery of goods, performance of services, and submission of quotes, by KOBIL Systems GmbH is exclusively subject to these Business Terms. Thus, they also apply to any future business relation, even where this has not been explicitly agreed. These Business Terms are considered accepted at the time goods or services are received, at the latest, unless the sold-to party is a consumer pursuant to Art. 474, Sec. 1, German Civil Code (BGB). The general business terms of the sold-to party, especially the conditions of purchase, are hereby objected to even at this point, that is, they shall not be accepted even if KOBIL fails to repeat its explicit objection to them after their submission to KOBIL.
1.2 Any deviation from these Business Terms shall be effective only if this has been confirmed in writing by KOBIL.
2. Quote, and Conclusion of Contract
2.1 Any quote submitted by KOBIL is subject to change and non-binding. Declarations of acceptance as well as any order and purchase order, require our written or telex confirmation to become legally effective. The same applies to amendments, modifications, and subsidiary agreements. In case of immediate delivery, the invoice may take the form of the written confirmation.
2.2 Drawings, illustrations, measurements, weights, or other performance data are binding only if this has been explicitly agreed in writing.
2.3 KOBIL sales staff is not authorized to enter into oral subsidiary agreements or to make oral confirmations that exceed the contents of the written agreement.
Unless otherwise stated, the prices KOBIL may state in a given quote shall be good 30 days after the date of the quote. The definitive prices shall be the ones quoted in the KOBIL order confirmation. Additional deliveries and services shall be separately billed. Unless otherwise arranged, prices are considered to exclude shipping, packaging, carriage insurance freight, as well as the VAT applicable at the time of delivery, ex KOBIL warehouse or, in the case of direct shipping, ex German border or ex German port of entry.
4. Delivery and Performance Period
4.1 Deadlines, delivery and performance periods shall be non-binding unless explicitly arranged otherwise in writing. The statement of specific deadlines and periods for the delivery and performance by KOBIL are subject to the reservation that KOBIL in turn receive correct and timely delivery by suppliers and vendors.
4.2 KOBIL shall not be held responsible if a given delivery is delayed or cannot be delivered at all because of force majeure. Force majeure is defined particularly as strike, lock-out, events of war, terrorist attacks, government licenses withheld, etc. even if these concern the suppliers or sub-suppliers of KOBIL. KOBIL has the right to delay delivery or performance for the duration of the impediment plus an appropriate start-up period, or else to terminate the contract wholly or in part in regard to that part of the delivery which has not been filled. The obligation to deliver or perform shall extend itself by the time span by which the sold-to party itself is late in performing its contractual duties.
4.3 If the impediment persists for more than 6 weeks, the sold-to party shall have the right, after granting a reasonable grace period, to terminate the contract in regard to the part not yet filled. If the delivery or performance period is extended, or if KOBIL is released from one of its duties, the fact shall not constitute grounds for a damage claim by the sold-to party. KOBIL has the right to invoke the above-mentioned circumstance (4.2 and 4.3, especially the right to withdraw from the contract) if KOBIL notifies the sold-to party of the non-availability without delay, and reimburses the sold-to party’s consideration, if any, without delay.
4.4 If KOBIL is responsible for not keeping promised periods and deadlines, or if it has caused a delay, the sold-to party shall be entitled to a compensation for damages resulting from delay in the amount of 0.25% for each completed week during which the delay persists, though no more than a total of 5% of the invoice value of the deliveries and services affected by the delay. Beyond this, any other claim is ruled out, unless the delay has been caused by grave negligence, at the least, on the part of KOBIL.
4.5 KOBIL has the right to make partial delivery, or to render partial services, respectively, at any time.
5. Delay in Taking and Accepting Delivery
5.1 For the time of the delayed acceptance by the sold-to party, KOBIL has the right to store the goods to be delivered at the risk and expense of the sold-to party. KOBIL may use a freight carrier or storage company toward this end.
5.2 During the time of the delay in acceptance or taking delivery, the sold-to party shall pay, without further substantiation, to KOBIL a flat sum equalling 1% of the purchase price or the agreed remuneration, though in no case more than € 200.00, per month in lieu of the resulting storage costs and expense incurred for keeping the goods available. If the costs incurred are higher than this, KOBIL may demand from the sold-to party the reimbursement of such costs, subject to substantiation. The sold-to party is at liberty to demonstrate that the damage was not caused at all or to a lesser extent.
5.3 If the sold-to party refuses acceptance of the goods to be delivered, or the services to be provided, upon expiration of the granted grace period, or if the sold-to party declares that it cannot accept the goods or services, KOBIL may refuse fulfillment of the contract, and demand damages in lieu of payment. KOBIL has the right, at its discretion, to demand from the sold-to party damages either in the form of a flat sum equalling 25% of the agreed purchase price, or in the form of compensation for the damage effectively caused.
6. Quantity Delivered, Acceptance
6.1 KOBIL and the freight carrier must be notified in writing of any visible difference in quantity immediately upon receipt of the goods, any concealed difference in quantity within 4 days following receipt of the goods, unless the sold-to party is a consumer pursuant to Art. 474, German Civil Code.
6.2 KOBIL may demand, at any time, from the sold-to party the full or partial acceptance of the services performed.
7. Passing of the Risk
The risk passes on to the sold-to party as soon as the shipment is handed over to the shipping agent, or as soon as it is dispatched from the KOBIL warehouse. This applies even if KOBIL uses in-house staff and/or company vehicles to ship the goods. If delivery is delayed or becomes impossible without any fault on the part of KOBIL, the risk passes to the sold-to party with the notification of the readiness of delivery. If KOBIL agrees to pay for the shipping costs on a case-to-case basis, this does not affect the passing of the risk. In the case of a consumer goods purchase, Art. 446, German Civil Code, shall apply.
8.1 KOBIL guarantees that the products it sells are free of manufacturing and material defects. This warranty is limited to two years in any case, and commences at the time of delivery to the sold-to party. This applies in particular in the event that the product becomes the object of a consumer goods purchase pursuant to Art. 474, German Civil Code, in regard to possible claims of recourse within the delivery chain.
8.2 In case the KOBIL operating or maintenance instructions are not heeded; if the products or installations are modified; if parts are replaced; or if consumables are used that fail to meet the original specifications, KOBIL shall not be liable for any damage that can be traced back to any of these circumstances. This also applies explicitly if the defect can be traced back to improper usage, storage or handling of a device, or to outside manipulation, or to the opening of a device. Minor deviations from the specified colour, dimensions and/or other quality and performance characteristics of a given product do not justify a warranty claim.
8.3 The sold-to party is obliged to check the delivered product, inasmuch as doing so is feasible within the normal course of business, and to notify KOBIL of possible damages in writing and without delay, but in no case later than one week after receiving the product. Any defect that is not discovered within this period and despite careful inspection of the product, should be reported by the sold-to party immediately after its discovery and in writing. If the sold-to party fails to report the defect, the delivery is considered as accepted.
8.4 a) In case of a justified notice of defect by an entrepreneur, KOBIL may demand at its own discretion that the defective product, or the defective part of the product, be returned to KOBIL. KOBIL will then decide whether to repair the product or to replace it.
b) If the sold-to party is the actual consumer, Section 439, German Civil Code, applies.
Any liability for loss of data due to an attempted remediation is ruled out. The sold-to party itself should ensure a proper data backup before sending the device in, or before having it repaired, respectively.
8.5 If all attempts to remedy the defect fail, the sold-to party may demand that the purchase order be cancelled or the price of purchase be reduced. Claiming this right is subject to the condition that an adequate grace period for remediation of the defect has been set, combined with the declaration that after the passage of said grace period any further attempts at remediation shall be declined.
8.6 Any warranty for normal wear and tear is ruled out.
8.7 The right to file a warranty claim against KOBIL is the prerogative of the sold-to party, and cannot be assigned.
8.8 The foregoing provisions represent the full and sole warranty for KOBIL products and services, to the exclusion of any other warranty claim, except in cases of premeditation or grave negligence on the part of KOBIL.
9. Retention of Title
9.1 Any delivery by KOBIL is subject to the retention of title. Accordingly, the delivered goods (hereinafter: “the conditional goods”) remain the property of KOBIL until payment in full has been received. The sold-to party shall store the conditional goods of KOBIL free of charge.
9.2 The sold-to party is entitled to process and sell the conditional goods in the course of proper business transactions as long as the sold-to party’s payments are not late. Pawning or transfer of ownership by way of security is not permitted. Any claims resulting from the further sale or from any other legal reason (insurance, unlawful action) in regard to the conditional goods (including any balance due on current accounts) are fully assigned to KOBIL for safeguarding purposes even at this time. KOBIL authorises the sold-to party subject to revocation to collect the accounts receivables assigned to KOBIL for its own account and in its own name. This direct debit authorisation can be revoked only if the sold-to party fails to make its payments in time.
9.3 In case any third party has access to the conditional goods, the sold-to party shall reveal KOBIL’s conditional ownership of the goods, and shall notify KOBIL immediately.
9.4 If the sold-to party delays its payments, or if it fails to fulfil other essential contract duties due to its own fault, KOBIL shall have the right to retrieve the conditional goods or to demand transfer of the sold-to party’s claims for recovery of the goods vis-à-vis any third party. Neither the retrieval of the conditional goods, nor their pawning, by KOBIL constitutes a withdrawal from the contract, provided the sold-to party is not a consumer pursuant to Art. 474, German Civil Code.
10.1 Unless otherwise arranged, the invoices of KOBIL must be paid, without deduction, 10 days after date of invoice. Deliveries are principally unpaid, that is, with expenses to be borne by the sold-to party, using a parcel service, freight carrier, or a company vehicle, unless other arrangements have explicitly been made.
10.2 KOBIL is entitled, even in face of provisions to the contrary as defined by the sold-to party, to apply payments to legacy debts. If costs and interest have already accrued, KOBIL is entitled to apply the payment first of all to the costs, then to the interest, and finally to the principal. The sold-to or ordering party must be notified of this.
10.3 A payment is considered made once KOBIL is able to dispose of the amount. Checks are only accepted by way of provisional performance, and are not considered as payment until redeemed.
10.4 If KOBIL becomes aware of circumstances that call the credit worthiness of the sold-to or ordering party into question, especially if it fails to redeem a check, or if it suspends its payments, or if KOBIL becomes aware of other circumstances that call the creditworthiness of the sold-to party into question, KOBIL is entitled to invoice the entire residual debt even if the checks have been honoured. In this case, KOBIL is moreover entitled to demand advance payments or collateral.
10.5 The sold-to party is only permitted to set-off, retain or reduce the remuneration if the counterclaims have been legally asserted or are undisputed.
11. Covenant not to Assign
The assignment of claims against KOBIL to any third party is ruled out, unless KOBIL has explicitly consented to such an assignment. To the extent that no claims pursuant to Art. 8, No. 7, above (Warranty Claims), are at issue, the consent shall be granted if the sold-to party substantiates essential concerns that supersede the interest KOBIL has in maintaining the covenant not to assign.
12. Limitation of Liability
Damage claims, be they of a contractual or a tortious nature, can be raised by the sold-to party only to the extent that they can be traced back to premeditated or gravely negligent action on the part of KOBIL or one of the persons performing an obligation for which KOBIL is vicariously liable.
To the extent that software and its installation and networking is included in the delivery scope, this software is handed over to the sold-to party solely for one-time usage, that is, it must neither be copied, nor handed over to be used by anyone else, unless otherwise agreed. A multiple right of usage requires a separate written agreement. The software delivered and its installation and networking may not be modified in any way without KOBIL’s explicit approval. The sold-to party shall be liable for the full extent of the damage resulting from any breach of this provision.
The sold-to party is obliged to keep secret for an indefinite period of time any information that may have been disclosed to it in oral form in conjunction with KOBIL deliveries and services, inasmuch as such information is clearly recognizable as business or trade secrets of KOBIL and as confidential in nature, and—unless this is required in order to realise the contract purpose—neither to record such information, nor to pass it on to any third party, nor to exploit it in any way.
KOBIL has the right to process any data it received on the sold-to party inasmuch as it regards the business relationship and the context of the latter pursuant to the German Data Protection Act (BDSG).
The exportation of KOBIL goods in any country outside the EU requires the written consent by KOBIL, regardless of the fact that the sold-to party is on its own with the procurement of government import and export permits, if any. The sold-to party is responsible for the observation of all relevant provisions up to the time of delivery to the end consumer.
17. Applicable Law
17.1 These Business Terms and the entire legal relationship between KOBIL and the sold-to party are subject to the laws of the Federal Republic of Germany. The applicability of the unified international transaction law is hereby explicitly ruled out.
17.2 To the extent that the sold-to party is a merchant pursuant to the German Commercial Code (HGB), a legal entity under public law, or a trust fund under public law, or has no place of jurisdiction in Germany, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Worms, Germany.
17.3 If any one or several provisions of this Agreement is, or becomes, ineffective, the place of the ineffective provision shall be taken by an effective provision that comes closest, in a commercial sense, to the originally intended purpose of the provision.
KOBIL Systems GmbH
(As of 1/2002)