Terms and Conditions
General information / scope of application
- These General Terms and Conditions of Purchase form an integral part of H.Kunkel orders and shall apply to all, including future, orders of goods, services and their processing. We hereby reject all terms and conditions from the contracting party that deviate or differ from these T&Cs unless expressly acknowledged in writing by H.Kunkel. Our Terms and Conditions of Purchase also apply in the event that we accept the contracting party’s deliveries and services without reservation in acknowledgement of the contracting party’s terms and conditions that oppose or deviate from our Terms and Conditions of Purchase.
- Orders shall only become binding when we have confirmed them in writing.
- In case of doubt, the Incoterms in their respective latest version shall be decisive for the interpretation of trade terms.
- The contracting party must specify our project and order numbers.
Offer / offer documents
- If any contracting parties prepare quotations, this shall be free of charge and without obligation.
- We reserve all ownership rights and copyrights to illustrations, calculations and other documents. These documents may not be made accessible to third parties without our explicit written consent. They shall be used exclusively for providing the services required to process our order or enquiries. All documents must be returned to us after processing the order, or, if an order is not commissioned, without a request being issued.
Price / pricing
- The agreed prices are fixed and quoted exclusive of the applicable value added tax. There is free delivery to the point of use and packaging and freight charges are also included.
- In the case of delivery not being included, we shall assume only the most favourable freight costs, unless a special kind of shipment is mandatory.
- H.Kunkel shall make all payments upon receipt of invoice as per VAT laws and regulations. In the event that payment is made in advance, the contracting party must list all services and payments in advance on a final invoice.
- Payments made by H.Kunkel do not in any way constitute recognition or acceptance of an order.
- In the absence of other agreements or more favourable conditions from the contracting party, payments shall be payable at our own discretion within 14 days with a discount of 2% or paid net within 30 days.
- Payment and discount periods shall run from receipt of invoice, however, at the earliest after receipt of the goods and/or service, not before their acceptance, and, insofar as documentation (reports, certification, instructions etc.) is part of the scope of the service, not before the transfer of these to us as per the contract.
- In the case of the acceptance of early deliveries, the due date shall depend on the agreed delivery date.
- Payments shall be made by cheque or bank transfer. Payment shall be considered to be duly on time if the cheque is posted on the due date or the bank transfer is effected with the bank on the due date.
- There shall be no interest payable from the due date. Default interest shall amount to 5% above the base rate as per § 247 of the BGB (German Civil Code). We shall be entitled to prove a lower level of default damages than claimed by the contracting party.
- We shall be entitled to set-off and retention rights to the extent stipulated by law.
Term of delivery / delay in delivery
- The delivery dates which we have agreed to are binding.
- Part deliveries shall only be permissible with our prior written consent.
- Should the contracting party become aware that the agreed deadlines will not be adhered to, this must be reported to H.Kunkel immediately, at first verbally and subsequently in writing.
- The contracting party shall give assurance that the agreed deadlines will be met and acknowledge the existence of the schedule compliance penalties. The contracting party shall pay H.Kunkel a contractual penalty amounting to 1%, up to a maximum of 10%, of the job value for each delay of a week, or part thereof, if the agreed deadlines are not kept to. A schedule compliance penalty is due for payment whenever the contracting party provides their service later than the agreed deadline, unless there is evidence of force majeure and the contracting party did not already find themselves in default before entering the contract. The schedule compliance penalty may be charged until the final payment is made. Compensation for damages will not be demanded in addition to the schedule compliance penalty, provided that the following points do not result in other actions.
- If there are delays to the service provided by the contracting party, H.Kunkel is entitled to have the delivery / service performed by a third party, at the contracting party’s own expense, once a reasonable fixed period of grace has expired and the contracting party still has not performed the delivery / service. The contracting party must hand any documents which they possess and which are required for this to H.Kunkel without undue delay. Insofar as property rights hinder the third party in doing this, the contracting party is obliged to immediately provide appropriate exemption from these rights. There will be no limitation on the schedule compliance penalties if the contracting party does not comply with such a request from H.Kunkel within a period of one week.
- H.Kunkel may instead choose to withdraw from the contract once a reasonable fixed period of grace has expired. Any due schedule compliance penalties up until the time of withdrawal shall still remain payable.
Object, scope and execution of services
- Orders, contracts and amendments shall only be considered binding if they have been agreed or confirmed by H.Kunkel in writing. Correspondence should always be exchanged with the department that placed the order. Arrangements made with other departments shall require the express written confirmation from the department that placed the order, forming an addendum to the contract. This shall apply to agreements that are made which make changes to fixed points of the contract.
- The contracting party shall confirm in writing that they accept the order in full within 5 working days of receiving the order.
- The conclusion of the contract shall be treated confidentially by the contracting party.
- Unless otherwise agreed, the contracting party shall deliver all items, or all of the parts, that are required for correct operation based on the requested characteristics, even if the individual components required for this are not explicitly stated. The contracting party is solely responsible for checking the details provided by H.Kunkel. The supplied parts are to be designed and arranged in such a manner that they can be easily and quickly maintained, inspected and substituted. Parts subject to regular wear and tear must have a long service life and correspond to the latest material development technology.
- The contracting party shall be obligated to acquire current information themselves on the applicable laws, regulations and other provisions which are necessary to provide their services / deliveries.
- The contracting party must ensure that any certificates of origin (e.g. declarations from suppliers, movement certificates in the sense of determining the source as per EEC/EFTA) that are requested by H.Kunkel contain all of the required details and are correctly signed and supplied without undue delay.
Infringement of industrial property rights
- The contracting party assures that equipment which is constructed or operated as per the contractual delivery and performance conditions does not violate any third-party property rights.
- The contracting party shall indemnify H.Kunkel from all claims that are asserted due to infringements of such industrial property rights and any costs relating to such infringements.
Warranties and liability
- The delivery / service must correspond to the intended use, the latest technological developments and the applicable regulations from authorities and professional associations. If any guidelines are available for the machines, equipment or facilities and their components, then they are to be taken into consideration in the following order:
Regulations and laws
Accident prevention regulations
DIN, VDE, VDI, EN
Iron / steel operational forms
H.Kunkel and/or H.Kunkel customer guidelines / company standards
H.Kunkel standard technical documentation
- The contracting party must receive written permission from H.Kunkel if deviations from such guidelines or from the stated order of precedence are necessary in any case. The contracting party’s liability for defects will not be restricted by this approval.
- The 2-year warranty period shall commence on the date of approval as stated in the H.Kunkel written statement of acceptance. In the event that the approval is delayed, through no fault of the contracting party, H.Kunkel shall be prepared to agree an appropriate latest deadline if the contracting party wishes for this to happen. The warranty period for spare parts which are specifically noted as being such in the contract shall be 2 years after being put into operation and shall end no later than 36 months after delivery in full to H.Kunkel.
- Any defects, including the absence of characteristics which have been promised, in the delivery / service that are reported during the warranty period are to be immediately rectified by the contracting party for H.Kunkel without cost. If this is not possible, or it is not reasonable to accept repaired parts, the contracting party must replace the defective parts with ones without any defects at no cost to H.Kunkel. Services performed by engineers and, if necessary, the deployment of employees on the construction are to be provided by the contracting party for H.Kunkel free of charge.
- In urgent cases, or in the event that the contracting party does not meet their warranty obligations, H.Kunkel shall be entitled to take the necessary actions at the contracting party’s own cost and without having any effect on their warranty obligations. With the exception of urgent cases, the contracting party shall be informed before any actions are taken; the contracting party shall receive a report after the repair work is completed covering the type and scope of the defects and the work carried out.
- If the defect cannot be rectified or is deemed to be unreasonable, the right to change or see a decrease in price shall remain unaffected by this. The warranty period for repaired or replacement parts shall start again upon completion of a new written statement of acceptance if the defect is rectified or a replacement delivery is made. If a new written statement of acceptance does not materialise then the warranty period shall start again on the date when the repaired or replacement parts are reassembled.
- For all equipment which, due to the resulting service interruption, cannot be used as stipulated in the contract as a result of the repair work or delivery of spare parts, the warranty period shall be extended for the duration of the interruption.
- H.Kunkel and/or H.Kunkel’s customer is/are not entitled to assert any claims for damages arising from the production downtime and loss of profit.
- The warranty claim expires 12 months after complaint was raised, but no earlier than on expiry of the warranty period.
- The contracting party’s total liability for all claims from H.Kunkel arising from the contract is limited to 30% of the total value of the job. This does not include any contributions which are paid by the contracting party’s insurance company. The contracting party shall have unlimited liability if he causes damage as a result of intention or gross negligence. The contracting party must be held accountable for negligence caused by commissioned third parties as per the German Civil Code (BGB) in the same way as for its own negligence. Contrary to § 831 of the BGB, the contracting party cannot acquit themselves by providing evidence of an orderly selection and monitoring of their employees or commissioned third parties.
Evidence of performance and inspection
- If a joint inspection for approval is agreed, this shall take place at the receiving location stated by H.Kunkel. The contracting party must make an application in writing to organise the inspection date. For machines and facilities which are subject to an operational trial, an inspection must be carried out without undue delay and during the period of between 4 weeks at the earliest and no later than 3 months after commencement of the trial. Machines or facilities may also be used during the operational trial for production as far as is possible. The resulting costs from the inspection shall be borne by the contracting party. The contracting party and H.Kunkel shall be responsible for bearing the personnel costs incurred for the inspection themselves.
- If the inspection reveals that the machine or facility has not been built as per the contract, the contracting party must apply for another inspection to take place within 3 months. All costs incurred as part of repeating the inspections shall be borne by the contracting party.
- If defects are established which do not have an effect on the performance or function of the machine or facility, then they may be approved subject to the defects being fixed immediately. H.Kunkel shall be entitled to withhold an appropriate amount from the final payment until such defects have been rectified.
- The approval will be confirmed to the contracting party using H.Kunkel’s or their customer’s acceptance protocol. The approval does affect H.Kunkel’s warranty claims.
Documents, drawings and other documentation
- All drawings must be discussed with H.Kunkel before commencing any work. Once the work has been completed, the contracting party must transmit to H.Kunkel all of the drawings correlating to the work carried out, all calculations and other technical documentation regarding the deliveries / services in the requested number and format. This must be done before the approval. The documents are to be updated as soon as any subsequent changes are made by the contracting party. The contracting party is obligated to transfer the property to H.Kunkel without charge. The intellectual property thereof shall not be affected by this. H.Kunkel or third parties are permitted to use the documentation to carry out repair work and alterations and to manufacture replacement parts without charge.
- The sole responsibility of the contracting party in terms of deliveries and services shall not be affected by H.Kunkel’s approval with regards to drawings, calculations and other technical documents. This shall also apply to propositions and suggestions made by H.Kunkel and to alterations discussed between H.Kunkel and the contracting party, provided that the contracting party does not object in writing.
- All construction documents, equipment, tools, models etc. which are provided to the contracting party remain the property of H.Kunkel and are only permitted to be used for purposes stated in the contracts and may only be given to third parties in this respect. H.Kunkel reserves all rights to drawings made according to their instructions and to all procedures developed by H.Kunkel.
Withdrawal, termination and interruption
- If the contract is terminated by H.Kunkel due to breach of contract by the contracting party, the deliveries / services performed up to that date shall be invoiced at the contractual prices as long as such services can be properly used by H.Kunkel. Invoicing shall be carried out on a contractual basis. The damages arising for H.Kunkel shall be taken into account when invoicing. The same shall apply with regards to any schedule compliance penalties which have become due.
- The contracting party undertakes to treat in confidence the contractual stipulations and documentation. The contracting party is only permitted to name H.Kunkel as a reference if written permission has been received. The contracting party shall be obliged to keep confidential all information and documents which they have received to fulfil the contractual obligations. The contracting party is also forbidden from making such information and documents accessible, either directly or indirectly, to third parties and may not use them for any other reason apart from fulfilling their contractual obligations. All of these items remain the exclusive property of H.Kunkel.
- The contracting party’s obligations as per Item 12 (1) shall not apply if the technical information and documents that are transmitted by H.Kunkel are considered to be of a general technological standard or if the contracting party was already aware of them upon receipt or if they can be dispensed of if they subsequently become the best demonstrated available technology or if the contracting party receives them from a third party without infringing any confidentiality agreements.
- The contracting party’s obligations as per Item 12 (1) shall continue to apply for a duration of 10 years after the contract is concluded and shall remain in force in the event that the contractual relationship prematurely ends.
- Unless otherwise agreed, the contracting party is not permitted to transfer their contractual rights and obligations, in part or in whole, to third parties without having received express written consent in advance from H.Kunkel.
- The contracting party is especially obligated to perform the services themselves as per the contract and to carry out any work associated with this.
- The contracting party may only commission such services and work to third parties if they normally commission this to third parties as part of their operational procedures.
- In any case, third parties who support the contracting party to fulfil their contractual obligations shall be considered as vicarious agents of the contracting party.
Place of Fulfilment / jurisdiction / applicable law / other provisions
- The place of performance for delivery and payment shall be the intended site. The registered office of H.Kunkel shall be the place of performance for documentation and payments made.
- The place of jurisdiction for both contracting parties, also for actions on a bill of exchange, shall be the registered office of H.Kunkel. H.Kunkel shall be entitled to choose the contracting party’s general place of jurisdiction.
- The contract and all of the contractual relationships associated with it between the contracting party and H.Kunkel are subject exclusively to German law, excluding foreign law.
- If any provision of this contract is or becomes ineffective, this shall in no way affect the validity of the remaining provisions.