General Terms and Conditions (GTC) of Business

Please download our General Terms and Conditions (pdf)

 

1. General Scope/Validity

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

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

2. Offer and Acceptance.

2.1
All offers from Klauke are subject to change. We reserve the right to remove items from the product range and to make delivery exclusions and price changes. The scope of Klauke's delivery obligation shall be determined by Klauke's order confirmation and/or 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 as a 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 all copyright and proprietary rights to diagrams, drawings, calculations, any software or firmware incorporated into or provided for use with the goods and other documents. This shall apply in particular to those written documents associated with the transaction. Purchaser may not make them available to third parties without Klauke's prior written consent. Purchaser may transfer any licence to another party which purchases,

rents or leases the goods, provided the other party accepts and agrees 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 Purchaser and third-party proprietary rights are asserted as a result, clause 4 shall not apply and Purchaser shall indemnify Klauke inter se against all such claims caused by Purchaser’s negligence.

3.3. Klauke grants Purchaser the non-exclusive and non­transferable right to use is brand logo texts free of charge. Purchaser is not authorized to confer sublicense.

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, Purchaser must deploy suitable means to make clear that Klauke is the manufacturer of 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, including rights to the use of brands, logos, drawings, product names, photos and texts.

4. Patent Infringement

4.1
Subject to the limitations set forth in Clause 8, Klauke shall indemnify Purchaser in the event of any claim for infringement of Letters Patent, Registered Design, Design Right, Trade Mark or Copyright ("Intellectual Property Rights") issued at the date of formation of the contract arising from the use or sale of the goods, against all reasonable costs and damages awarded against Purchaser in any action for such infringement, or for which Purchaser may become liable in any such action, provided always that Klauke shall not be liable to so indemnify Purchaser in the event that: (i) such infringement arises as a result of Klauke having followed a design or instruction furnished or given by Purchaser, or the goods having been used in a manner or for a purpose or in a country not specified by or disclosed to Klauke prior to the date of the contract or in association or combination with any other equipment or software, or (ii) Klauke has at its expense procured for Purchaser the right to continue to use the goods or has modified or replaced the goods so that the goods no longer infringe, or (iii) such alleged infringement has occurred more than three years after delivery of the goods.

4.2 Klauke shall not be liable to indemnify Purchaser under Clause 4.1 in the event that: (i) Purchaser has failed to give Klauke the earliest possible notice in writing of any claim made or to be made or of any action threatened or brought against Purchaser and/or Purchaser has failed to permit Klauke, at Klauke's expense, to conduct and control any litigation that may ensue and all negotiations for a settlement of the claim, or (ii) Purchaser has made without Klauke's prior written consent any admission which is or may be prejudicial to Klauke in respect of any such claim or action, or (iii) the goods have been modified without Klauke's prior written authorisation.

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 obligations (in respect of payment of installments, furnishing of required documents etc.) in good time and reserves the right to plead non-performance of the contract.

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

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 suggest a new date at its discretion.

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 of Purchaser, Klauke shall be entitled to transport and to place the goods into a suitable store at Purchaser's expense. In this event delivery shall be deemed to be complete, risk in the goods shall pass to Purchaser upon placing the goods into the store, and Purchaser shall pay Klauke accordingly.

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 shall be determined according to the statutory regulations. In each case, however, Purchaser must issue a reminder. If Purchaser is demanding damages, Klauke is entitled to demonstrate that it is not responsible for the violation of the contractual obligation. Purchaser cannot assert any claims due to delivery delays that are not attributable to intent or gross negligence on the part of Klauke. This shall apply in particular to delivery delays due to force majeure or failure of sub-suppliers to deliver. 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, which must be from the latest product range, have to be returned in their original packing in a flawless, saleable condition. The return consignment is to be carriage paid at sender's risk less 15% redemption fee. Processing charges will be deducted at cost and may cover items such as recoding, cleaning or new packaging.

5.7 Should Purchaser fail to accept delivery of the goods or neglect other obligations in respect of cooperation, Klauke shall then be entitled to claim compensation for any loss incurred as a result, including any additional expenses.

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

6. Transfer of Title Risk/Packing /Inspection

6.1
Risk and title shall be transferred to Purchaser at the latest on shipment of the goods in accordance with the agreed Incoterm reflected in the individual contract/purchase order, even in the case of part deliveries.

6.2 Unless otherwise agreed, deliveries are Ex Works (Incoterms 2010). Klauke will only insure the goods against insurable risks at Purchaser's request and cost.

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

6.4 Purchaser, at its expense, shall promptly inspect the goods upon receipt thereof, and in no event later than thirty (30) days from the date of receipt of the goods. Purchaser shall deliver to Klauke without undue delay, but in no event later than forty-five (45) days from the date of receipt of the goods, written notice of any and all deficiencies, defects, variations from specifications or complaints of any kind with respect to the quantity, quality, condition, shipment, performance, price or appearance of the goods so received by Purchaser. In the event no such written notice is received by Klauke, Purchaser shall be deemed conclusively to have inspected and accepted all such goods unconditionally and to have waived any and all rights and claims, including without limitation any right to reject the goods or to claim damages in respect thereof. Purchaser may not return goods without first advising Klauke of the reasons therefore, obtaining from Klauke a written authorization and observing such instructions as Klauke may give in authorizing such return.

6.5 Klauke retains the rights to collect back products or initiate lawsuit against Purchaser in the event of insolvency of Purchaser.

7. Prices/Terms of Payment

7.1
Unless specified otherwise in the order confirmation, the prices quoted are always Ex Works (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 Products made from electrolytic copper are subject to the following surcharge per kg: (MK Notiz - 127)/100 where “MK Notiz” shall be the MK Copper line of the price index found at www.westmetall.com/en/markdaten.php as of the day before the quote or order is made, as determined by Klauke in its sole discretion.

7.4 Klauke shall be entitled to invoice Purchaser for any extra expenses 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 Even if Purchaser's terms of payment state the contrary, Klauke shall be entitled in each case to offset a payment against any Purchaser debt. If costs or interest charges have already been incurred, Klauke shall be entitled to first apply all offset payments against these costs, then against the interest charges and finally against the primary debt.

7.7 Klauke shall be entitled to assign claims within the Emerson Electric Co. Group.

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 Purchaser's counterclaims shall not be affected. 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 Purchaser on a case-to-case basis.

8. Liability for Material Deficiencies/Liability

8.1
Klauke covers its products with a manufacturer’s warranty (Gewährleistung) against defects in material or workmanship for a period of one year from delivery unless otherwise stated by Klauke in writing.  To take advantage of this warranty, the complete product must be delivered prepaid to Klauke or any Klauke Authorized Service Center. This warranty shall not apply to any goods including but not limited to products which: (a) Have been repaired or altered outside Klauke’s factory (or Authorized Service Center) or in any manner so as, in Klauke’s judgment, to affect its serviceability or proper operation; (b) Have been subjected by persons other than Klauke (or Authorized Service Center) to improper handling, operation, maintenance, repair or alteration; and, (c) Have been subjected to normal wear and tear, misuse, negligence, improper installation or accident. Klauke’s obligation under this warranty shall be limited to, at Klauke’s option, repair (subsequent rectification) or replacement (subsequent delivery) of any allegedly defective goods or issuance of credit. All returned goods are subject to inspection, and if examination does not disclose any defect covered by this warranty, replacement of such Goods or issuance of credit for same will not be approved.

8.2 Klauke may rectify any defect several times and may decide at its discretion to change from rectification to subsequent delivery. Klauke shall be responsible for all costs incurred in connection with its subsequent performance, especially the transport, shipping, labour and material cost, unless such costs are incurred as a result of the goods being taken to a place other than the place of performance. Purchaser may set a reasonable period of at least four (4) weeks to Klauke for it to provide subsequent performance and, if subsequent performance fails during such period, may demand reduction of the contract price after expiry of that period or, unless the defect is insignificant, may rescind the contract. Damages may only be claimed in line with clauses 8.7 and the following.

8.3 Purchaser's right of recourse against Klauke in respect of such claims due to liability for material deficiencies, which have been lodged against Purchaser by its own customers, shall be excluded if said customers have failed to discharge their obligations to examine the goods and notify any defects, or if the product has been modified by subsequent processing.

8.4 No single employee, agent, dealer, distributor or other person is authorized to give any warranty on behalf of Klauke. This warranty extends only to persons or organizations who purchase the goods from Klauke for resale.

8.5 Purchaser shall be obliged to discharge its duty of examination pursuant to § 377 of the German Commercial Code (HGB) even if the goods are resold.

8.6 Klauke shall be liable to Purchaser only for damage caused with intent or gross negligence. In the event of breach of material contractual obligations, Klauke shall, however, be liable for each fault of its personnel (statutory representatives, executive employees and other persons employed in the performance of its obligations) causing damage.

8.7 Except in case of intentional causation of damage by personnel of Klauke or causation of damage with gross  negligence by statutory representatives or executive employees of Klauke, Klauke shall not be liable for compensation for indirect damage and, in particular, Klauke shall not be liable for compensation for loss of profit, unless such damage is covered by the protective purpose of a warranty explicitly assumed.

8.8 Except in case of intentional causation of damage by personnel of Klauke or causation of damage with gross negligence by statutory representatives or executive employees of Klauke, the liability of Klauke shall, in each case, be limited in terms of amount to the damage which is typically foreseeable in the time of conclusion of the contract.

8.9 Claims to damages which result from the violation of another's life, body or health, from the violation of a guaranty given by Klauke expressly in writing as well as damage claims under the Product Liability Act shall remain unaffected.

9. Prohibition on Assignment

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

10. Product Liability

10.1
Purchaser may only use the goods for their intended purpose and must ensure that these goods are only resold to persons familiar with the risks and hazards associated with the product.

10.2 When using the goods as a starting material or component of its own products, 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. As soon as requested to do so, Purchaser shall exempt Klauke inter se from      claims lodged against it in the event of this obligation being neglected.

11. Compliance

11.1
Purchaser shall comply with all applicable international, national, and local laws and regulations in connection with its purchase and use of Klauke products and in performing its obligations hereunder. Purchaser acknowledges that Klauke products are subject to export controls and economic sanctions laws and regulations. Specifically, Purchaser acknowledges that the export, reexport, or retransfer of Klauke products to a third country or to a different end user or end use may require a license or other authorization from government(s). Purchaser represents and warrants that it is in compliance with and agrees to comply with all applicable export controls and economic sanctions laws and regulations involving Klauke goods.

11.2 Purchaser affirms that it has not and shall not, in connection with the transactions contemplated by these Terms, make or promise to make any payment or transfer anything of value, directly or indirectly,  to anyone working in an official capacity for a government, government entity, or to an intermediary for payment to any of the foregoing, if such payment or transfer would violate the laws of Germany, the United States, European Union, applicable international law, or otherwise violate the Emerson Electric Co. Code of Conduct for Suppliers and Other Business Partnershttps://www.emerson.com/documents/corporate/emerson-supplier-code-of-conduct-en-us-173520.pdf. Klauke may unilaterally terminate or withhold supply of products immediately by written notice if there is; a material breach of any of these Terms, fraud or misrepresentation with respect to entering into or the performance of these Terms; Klauke learns of circumstances that give it reason to believe that Purchaser has engaged in illegal conduct or unethical business practices in connection with performance of these Terms, or Purchaser or any of its owners or employees responsible for its services becomes the target of an investigation by an authority for alleged corruption.

11.3 Except to the extent otherwise required by applicable law, Klauke shall have no responsibility for the collection, treatment, recovery or disposal of the goods or any part thereof when they 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 waste electrical and electronic equipment legislation, European Directive 2012/19/EU(WEEE) and related legislation in EU Member States, to dispose of 'waste' goods or any part thereof, Purchaser shall, unless prohibited by applicable law, pay Klauke , in addition to the contract Price, either Klauke 's standard charge for disposing of such goods or if Klauke  does not have such a standard charge, Klauke 's 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 (other than Purchaser's obligation to pay all sums due to Klauke in accordance with the contract) shall be suspended, without liability, in the event and to the extent that its performance is prevented or delayed due to any circumstance beyond the reasonable control of the party affected, including but not limited to: Act of God, war, armed conflict or terrorist attack, riot, fire, explosion, accident, flood, sabotage; governmental decisions or actions (including but not limited to prohibition of exports or re exports or the failure to grant or the revocation of applicable export licenses), or labour trouble, strike, lockout or injunction. Klauke shall have no obligation to supply until it has received any necessary licenses or authorisations or has qualified for general licenses or license exceptions under applicable import, export control and sanctions laws, regulations, orders and requirements, as they may be amended from time to time (including without limitation those of the United States, the European Union and the jurisdiction in which the Klauke is established or from which the items are supplied). If for any reason any such licenses, authorisations or approvals are denied or revoked, or if there is a change in any such applicable laws, regulations, orders or requirements that would prohibit Klauke from fulfilling the contract, or would in the reasonable judgment of Klauke otherwise expose Klauke and/or Klauke’s Affiliate(s) to a risk of liability under applicable laws, regulations, orders or requirements, Klauke shall be relieved without liability of all obligations under the contract.

12.2 If either party is prevented from performance of its obligations by reason of this Clause for more than 180 consecutive calendar days, either party may cancel the then unperformed portion of the contract by notice in writing given to the other party, without liability.

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 in whose jurisdiction Purchaser has its general legal domicile or where Purchaser has a branch.

13.3 The contract shall be governed solely by 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