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General Terms and Conditions of Business

You can download the General Terms & Conditions of Business (pdf) here.
 

1. General/Validity

1.1
The General Terms and Conditions of Business of Gustav Klauke GmbH and its affiliated companies (hereinafter designated "Klauke") shall apply to the exclusion of all others. General terms and conditions of Business of Klauke's contractual partner (hereinafter referred to as the "Terms and Conditions") that conflict with or differ from the General Terms and Conditions of Business of Gustav Klauke GmbH (hereinafter referred to as "Purchaser") will not be recognised, unless Klauke has explicitly consented to their applicability in writing. These Terms and Conditions shall still apply even if, having knowledge of terms and conditions of Purchaser that contradict or differ from its own Terms and Conditions, Klauke effects delivery to Purchaser without reservation.

1.2 These Terms and Conditions shall also apply to all future dealings with Purchaser, even if, having knowledge of terms and conditions that contradict its own terms and conditions, Klauke nevertheless delivers the goods to Purchaser.

1.3 These Terms and Conditions shall apply only in respect of companies, legal entities under public law and special funds under public law as defined in § 310 paragraph 1 BGB (German Civil Code) and not to end consumers.

2. Offer and acceptance

2.1
All offers from Klauke are subject to change. We reserve the right to remove items, exclude deliveries and change prices. The scope of the delivery obligation is determined by the order confirmation and/or Klauke's offer. Verbal and telephone agreements shall not be effective until confirmed in writing.

2.2 If the order is to be defined as an offer pursuant to § 145 of the German Civil Code (BGB), Klauke can accept it within four weeks. The contract enters into force at the latest on dispatch of the goods ordered and in the event of part-deliveries on dispatch of the first consignment.

2.3 The documents, drawings, details of weights and dimensions, samples etc. contained in the offer provide only approximate information and do not constitute a qualitative description of the nature of the goods. Klauke is entitled to supply goods differing from the descriptions in the offer, provided that these differences are not of a fundamental or essential nature and the purpose as defined in the contract is not restricted in the result.

2.4 To the extent that Klauke manufactures parts on the basis of customer drawings, the drawings produced by Klauke and approved by Purchaser will be authoritative. Any departures from approved drawings must be agreed on separately and any extra costs for this recompensed.

2.5 Insofar as Purchaser requests individual cost estimates these must be remunerated.  If an order is placed, the associated charges will be offset against the purchase price.

3. Industrial property rights

3.1
Klauke reserves the copyright and ownership rights to all illustrations, drawings, calculations as well as all software and firmware incorporated into the goods and other documents or made available for use with them. This applies in particular to written documents in connection with the business. The purchaser may only make these available to third parties with Klauke's prior written consent. The purchaser may transfer licences to third parties who buy, rent or lease the goods provided that such third parties agree in writing to be bound by the relevant licence.

3.2 If deliveries are made on the basis of drawings or other information provided by the purchaser and third-party proprietary rights are asserted as a result, Clause 4 shall not apply and the purchaser shall indemnify Klauke internally against all claims arising from the fault of the purchaser.

3.3. Klauke grants the purchaser the non-exclusive and non-transferable right to use "logos, photos and texts" free of charge. The purchaser is not authorised to confer sub-licences.

3.4 Purchaser undertakes not to use Klauke brands as part of its company or in any other way to identify its business operations. When using Klauke brands, the purchaser must take appropriate measures to make it clear that Klauke is not the manufacturer of the purchaser's products. This notwithstanding, Purchaser shall exempt Klauke inter se from all claims by third parties upon the first written request. 

3.5 Klauke reserves the right to revoke at any time the rights granted, in particular those for the use of brands, logos, drawings, product names, photos and texts.

4. Patent infringement

4.1
Subject to the restrictions mentioned in Clause 8, Klauke shall indemnify the purchaser in the event of infringement of patents, utility models, registered designs, brands or copyrights ("intellectual property rights") existing at the time of conclusion of the contract and arising from the use or sale of the goods, against all claims asserted against the purchaser as a result of this infringement or enforced in the future, reasonable costs and compensation payments. However, Klauke is not obliged to indemnify the purchaser  accordingly if (i) such an infringement arises because Klauke has followed samples or instructions provided by the purchaser or the goods in a manner, for a purpose or in a country which  was not specified or communicated to Klauke prior to the date of conclusion of the contract or goods were used in combination with other devices or software, or (ii) Klauke has acquired, at its own expense, the rights to continue to use the goods or has modified or replaced the goods so that they no longer constitute an infringement or (iii) such alleged infringement occurs more than three years after delivery of the goods.

4.2 Klauke is not obliged to indemnify the purchaser according to Clause 4.1 if: (i) the purchaser has failed to notify Klauke at the earliest possible time in writing of any claims made or to be made, or of any threatened or filed actions against the purchaser, and/or the purchaser has not permitted Klauke to conduct any legal disputes arising from this at its own expense, (ii) the purchaser has made concessions without Klauke's prior written consent which are or may be detrimental to Klauke with respect to such claims or actions or (iii) the goods have been modified without Klauke's prior written consent.

5. Delivery/Delivery period/Default

5.1
Delivery deadlines and delivery dates shall only be deemed to have been agreed with binding force if they have been explicitly confirmed in writing in the offer. Klauke shall not be obliged to meet the delivery deadline or delivery date if Purchaser has not met its requirements (with regard to payment of instalments, furnishing of required documents etc.) in good time. The right to plead non-performance of the contract remains reserved.

5.2 Delivery periods shall begin at the earliest on the day on which the contract has been concluded in writing Commencement presupposes that all questions of a technical nature have been clarified.

5.3 In the event of subsequent change requests on the part of purchaser, Klauke shall be released from the obligation to meet the delivery term or delivery deadline and may, at its discretion, propose a new date.

5.4 The delivery period shall be deemed to have been met if the item to be delivered has left Klauke's factory or Klauke has notified readiness for shipping before expiry of said period. If delivery is delayed due to any act or omission on the part of the purchaser, Klauke shall be entitled to transport and to place the goods into a suitable store at purchaser's expense. In this case the delivery shall be deemed to have been effected, the risk shall pass to the purchaser upon storage of the goods and the purchaser shall be obliged to make a payment to Klauke.

5.5 In the event of a delay in delivery Purchaser shall have recourse to the claims accorded by law. The coming into effect of the delivery delay is determined according to the statutory regulations. In each case, however, Purchaser must issue a reminder. If the purchaser demands compensation for damages, Klauke is entitled to prove that Klauke is not responsible for the breach of the contractual obligation. The purchaser cannot assert any claimsdue to delivery delays which is not based on intent or gross negligence on the part of Klauke. This shall apply in particular to delivery delays due to force majeure or non-delivery by subcontractors. In such circumstances, the agreed delivery deadline or delivery period shall be extended by the duration of the impediment to delivery.

5.6 Returns are only possible if Klauke has given its explicit written consent to them beforehand. Parts must be from the latest product range and be returned in their original packaging in a flawless, saleable condition. The return consignment is to be carriage paid at sender's risk less 15 % redemption fee. Processing fees will be deducted on a time and material basis and may include, but are not limited to, recoding, cleaning and repackaging.

5.7 If the purchaser fails to accept delivery of the goods or neglects other obligations in respect of cooperation, Klauke shall then be entitled to claim compensation for damages for any loss incurred as a result, including any additional expenses.

5.8 In the case of customised products, Klauke reserves the right to effect a delivery that is 10 % over or under the requested quantity.

6. Transfer of risk/packaging/inspection

6.1
The risk and ownership shall pass to the purchaser at the latest upon dispatch of the goods in accordance with the Incoterm agreed and specified in the individual contract/order, even if partial deliveries are made.

6.2 Unless otherwise agreed, delivery shall be "ex factory" (EXW Incoterms 2010). Klauke only insures the goods against insurable risks at the express request and expense of the purchaser.

6.3 Transport packaging and all other packaging as defined in the German Packaging Regulations are non-returnable, with the exception of pallets. The purchaser is obliged to dispose of the packaging at its own expense.

6.4 The purchaser must inspect the goods at their own expense immediately upon receipt, but in any case no later than 30 days after receipt. The purchaser must notify Klauke in writing immediately, but in any case no later than 45 days after receipt of the goods, of any defects, faults, deviations from the expected quality and other complaints of any kind with regard to the quantity, quality, condition, dispatch, execution, price or appearance of the goods received by the purchaser. If Klauke does not receive such written notification, it is assumed that the purchaser has inspected all the goods and accepted them without conditions and waives any rights and claims, in particular to reject the goods and to claim damages in this respect. The seller may not return goods without Klauke giving prior notice of the reasons, the seller must obtain Klauke's written consent and follow Klauke's instructions in connection with the authorisation of the return.

6.5 Klauke reserves the right to retrieve the goods in the event of the purchaser's insolvency or to initiate proceedings against the purchaser.

7. Prices/Terms of Payment

7.1
Unless specified otherwise in the order confirmation, the prices quoted are always "ex factory" (Incoterms 2010) excluding packing, which will be billed separately.

7.2 The prices quoted are net and exclusive of statutory sales tax at the relevant amount at the time and which will be added to them.

7.3 The following surcharge per kg of copper is used for products made of electrolytic copper: (MK Note - 127)/100.  The "MK Note" is the MK copper quotation line of the https://www.westmetall.com/de/markdaten.php  price index found on the day before submission of the offer or order, as determined by Klauke at its discretion.

7.4 Klauke may invoice the purchaser for any extra expenditure incurred as a result of subsequent change requests.

7.5 The purchase price is due and must be paid without deductions within 20 days from date of invoice and delivery of the goods. Discounts shall be deemed to have been agreed only if Klauke has explicitly provided written confirmation of them.

7.6 Klauke is entitled to offsetting, even in the event of conflicting terms of payment on the part of the purchaser. If costs or interest charges have already been incurred, Klauke shall be entitled to first of all offset payments against these costs, then against the interest charges and finally against the primary debt.

7.7 Klauke is entitled to assign claims within the Emerson Electric Co. group of companies.

7.8 Purchaser shall only be entitled to offset payments if and to the extent that its counterclaims have been legally established, are uncontested or have been recognised by Klauke in writing. In the event of defects in the delivery, the purchaser's counterclaims shall not be affected. The purchaser's right of retention is limited to claims deriving from the contractual relationship.

7.9 Klauke shall be entitled to charge a flat rate shipping charge of at least € 6.00 per consignment for third party deliveries (where the delivery address differs from the ordering address). Higher shipping costs will be agreed with the customer in individual cases.

8. Liability for material deficiencies/Liability

8.1
Klauke guarantees that its goods have no defects in material or workmanship for a period of one year from the date of delivery, unless Klauke expressly states otherwise in writing. In order to claim this guarantee, the affected goods must be sent to Klauke or an authorised Klauke Service Center with the freight prepaid. The following are excluded from this guarantee, in particular: goods which (a) have been outside Klauke's factory (or authorised Klauke Service Centers) or in a manner which, in Klauke's sole discretion, has impaired, repaired or altered their fitness for purpose; (b) have been improperly handled, operated, serviced, repaired or altered by anyone outside of Klauke (or authorised Klauke Service Centers); or (c) are subject to normal wear and tear or improper handling, neglect, improper installation or accident. Klauke's obligations under this guarantee are limited to the repair (subsequent improvement) or exchange (replacement) of defective goods or the issue of a credit note at Klauke's discretion. All returned goods will be checked. If this check does not reveal any defects covered by the guarantee, there will be no replacement of the goods and no corresponding credit note.

8.2 Klauke may repair defects several times and, at its own discretion, can switch from a repair to replacement delivery. Klauke is responsible for all costs incurred in connection with subsequent performance, in particular for transport, shipping, labour and material costs, with the exception of costs incurred in transporting the goods to a location other than the place of performance. The purchaser may set Klauke a reasonable deadline of at least four weeks for subsequent performance and, in the event of failure of subsequent performance, demand a reduction in the contract price within the deadline after expiry or, if the defect is significant, they may withdraw from the contract. Compensation can only be claimed in accordance with Clause 8.7 and must meet the following conditions.

8.3 The purchaser's right of recourse against Klauke in respect of claims based on material defects asserted against the purchaser by its customers shall be excluded if these customers have not fulfilled their obligation to inspect the goods and notify Klauke of defects or if the goods have been altered by subsequent processing.

8.4 No employee, agent, dealer, distributor or other person is authorised to provide guarantees on behalf of Klauke. This guarantee applies only to persons or companies who purchase goods from Klauke for the purpose of resale.

8.5 The purchaser shall be obliged to comply with its duty of examination pursuant to § 377 of the German Commercial Code (HGB), even if the goods are resold.

8.6 Klauke shall only be liable to the purchaser for damage caused by intent or gross negligence. In the event of a breach of material contractual obligations, Klauke shall, however, be liable for any culpable conduct of its personnel (statutory representatives, executives and other vicarious agents) causing the damage.

8.7 Except in the case of damage caused intentionally by Klauke employees and damage caused by gross intent on the part of Klauke legal representatives or executive Klauke employees, Klauke shall not be liable to pay damages for indirect damage and in particular not to compensate for lost profits, unless such damage is covered by the protective purpose of an expressly assumed guarantee.

8.8 Except in the case of damage caused intentionally by Klauke employees and damage caused by gross intent on the part of Klauke's legal representatives or executive employees, Klauke's liability is in each individual case limited in amount to such damage that was typically foreseeable at the time the contract was concluded.

8.9 Claims due to injury to life, body and health, due to the violation of guarantees, which Klauke has expressly given in writing, as well as claims according to the provisions of the Product Liability Act remain unaffected by this.

9. Prohibition on assignment

All claims of the purchaser against Klauke deriving from the contractual relationship are non-assignable.

10. Product liability

10.1
The purchaser may only use the goods for their intended purpose and must ensure that these goods are only resold to persons who are familiar with the risks and dangers associated with the goods.

10.2 When using the goods as a raw material or component of its own products, the purchaser shall be obliged, when introducing the finished product to the market, to include the goods supplied by Klauke when discharging its obligation to warn. Within the internal relationship, the purchaser shall exempt Klauke from the assertion of claims in the event of a breach of this obligation on first demand.

11. Regulatory compliance

11.1
The purchaser must comply with all applicable international, national and local regulations in connection with the purchase and use of Klauke's goods and the fulfilment of its obligations under this contract. The purchaser acknowledges that Klauke goods are subject to export controls as well as laws and other regulations on economic sanctions. In particular, the purchaser acknowledges that for the export, re-export or retransfer of Klauke goods to third countries or to other end users or for another end use, an export permit or other official permits may be required. The purchaser declares and assures that it observes all applicable export controls as well as laws and other provisions on economic sanctions in connection with Klauke goods.

11.2 The purchaser acknowledges that, in connection with the business relationships governed by these Terms and Conditions, the purchaser has not made or will not make any direct or indirect payments or  give any valuables to any member or employee of any governmental authority or to any intermediary for disclosure to such member or employee of any governmental authority or to any intermediary if this would violate the laws of Germany, the United States or the European Union, applicable international law or the Emerson Electric Co. Code of Conduct for Suppliers and Other Business Partners. https://www.emerson.com/documents/corporate/emerson-supplier-code-of-conduct-en-us-173520.pdf . Klauke may cancel or suspend the delivery of goods unilaterally and with immediate effect in writing in the following cases: In the event of a material breach of any of these Terms and Conditions, fraud or misrepresentation with respect to the conclusion or performance of these Terms and Conditions, if Klauke becomes aware of circumstances indicating that the purchaser is pursuing unlawful acts or unethical business practices in connection with the performance of these Terms and Conditions, or if the purchaser or any of its owners or officers becomes the subject of government

investigations for corruption.

11.3 Except to the extent otherwise required by applicable law, Klauke is not responsible for the collection, treatment, recovery and disposal of the goods, or any part thereof, which are deemed by law to be 'waste', or any items for which the Goods or any part thereof are replacements. If Klauke is required by applicable law, including the statutory provisions on waste electrical and electronic equipment, the European Directive 2012/19/EU (WEEE) and the related statutory provisions in EU member states to dispose of goods or parts thereof that are considered "waste", the purchaser shall pay, unless prohibited by applicable law, to Klauke, in addition to the contract price, Klauke's standard fee for the disposal of such goods or, if no standard fee is provided, the costs (including all handling, transportation and disposal costs and a reasonable mark-up for overhead) incurred in disposing of such goods.

12. Force majeure

12.1
The contract (with the exception of the purchaser's obligation to pay Klauke all sums due under this contract) shall be suspended without liability if and to the extent that its performance is prevented or delayed by circumstances beyond the control of the party concerned, in particular: Force majeure, war, armed conflict or terrorist attack, riot, fire, explosion, accident, flood, sabotage, governmental decision or action (including but not limited to prohibition of export or re-export or non-granting or revocation of applicable export licences), industrial action, strike, lockout or injunction. Klauke has no obligation to supply goods until it has received the necessary licenses or authorisations or fulfils the requirements for obtaining general licenses or license exceptions under the applicable import, export control and sanction laws, regulations, orders and requirements in their current versions (in particular in the United States, the European Union and the country in which Klauke is domiciled or from which the goods are supplied). If such licenses, approvals or permits are refused or revoked, or changes are made to applicable laws, regulations, orders or requirements that prevent Klauke from fulfilling the contract, or that would reasonably expose Klauke or its affiliates to liability under applicable laws, regulations, orders or requirements, Klauke shall be released from all obligations under this contract without liability.

12.2 If either party is prevented from fulfilling its obligations under this Clause for more than 180 consecutive calendar days, either party may, without liability, terminate the unperformed part of the contract by issuing a written notice to the other party.

13. Miscellaneous/Final provisions

13.1
Place of performance is Remscheid.

13.2 In respect of all legal disputes deriving from the contract the venue is Remscheid. However, Klauke shall be entitled to bring an action against purchaser at the court where the purchaser has its general place of jurisdiction or a branch office.

13.3 The contract is subject exclusively to German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

13.4 Insofar as individual provisions of the contractual relationship become ineffective, the effectiveness of the remaining provisions shall not be affected. The contractual parties shall endeavour to replace the ineffective provision with an effective provision that corresponds as closely as possible to the commercial purpose of the contract.

 

Remscheid, June 2019