Allgemeine Geschäftsbedingungen
1. Scope of Application
(1) KTM Elektronik Aufzüge Service GmbH – hereinafter referred to as “KTM” – sells exclusively on the basis of the following Terms and Conditions. By placing an order and/or by tacitly accepting the order confirmation, the Buyer acknowledges these Terms and Conditions as binding. Any assurances or agreements that conflict with the following Terms and Conditions shall only be valid if expressly confirmed by KTM in writing.
(2) The Buyer’s or purchaser’s terms and conditions – hereinafter referred to as “Buyer” – shall only be recognized to the extent that they are consistent in substance with KTM’s Terms and Conditions. Otherwise, they shall not apply, even if KTM does not expressly object to them or performs its contractual obligations without reservation.
(3) These Terms and Conditions do not apply to consumers within the meaning of Section 13 of the German Civil Code (BGB).
2. Non-binding Offers
(1) All offers made by KTM are non-binding unless otherwise stated in the order confirmation or unless KTM expressly declares otherwise in writing. They merely constitute an invitation to the Buyer to submit an offer. A contract shall only be concluded upon written order confirmation by KTM or upon execution of the order.
(2) Public statements by KTM, the manufacturer of the delivered goods, or their agents—especially in advertising or labeling—do not constitute a description of the goods’ quality or a guarantee thereof.
3. Prices and VAT
(1) The prices stated in the order confirmation shall apply. Prices are exclusive of VAT and exclude packaging, handling charges, freight, insurance, customs duties, and other expenses; these will be invoiced separately.
(2) If, after conclusion of the contract, order-related costs (e.g., material and labor costs, public charges, or other costs) change significantly, the parties shall agree on an adjustment. This does not apply to contracts where delivery is to take place within 4 months after conclusion of the contract. In contracts with a term exceeding 12 months or indefinite contracts, if a significant change in material and labor costs, public charges, or other costs occurs 4 weeks after conclusion, either party shall be entitled to demand an appropriate price adjustment considering these factors. KTM shall provide evidence of the cost increases upon request.
(3) For deliveries to other EU Member States, the Buyer must provide KTM with its VAT identification number prior to delivery under which it carries out intra-EU acquisition taxation. Otherwise, the Buyer must pay, in addition to the agreed price, the VAT amount legally owed by KTM.
4. Shipping
(1) Shipping shall always be at the Buyer’s expense and risk. Even in the case of delivery free of freight, postage/prepaid freight is deemed merely an advance payment made by KTM on behalf of the recipient.
(2) KTM is entitled to make partial deliveries unless such partial deliveries are unreasonable for the Buyer.
(3) If the Buyer is in default of acceptance of the contractual delivery or culpably violates other duties to cooperate, KTM shall—without prejudice to any other claims—be entitled to store the goods at the Buyer’s risk and to demand reimbursement from the Buyer for any additional expenses incurred due to the default of acceptance (e.g., storage costs). In this case, the risk of accidental loss or accidental deterioration of the goods shall pass to the Buyer at the time the Buyer enters into default of acceptance. Further rights and claims of KTM remain reserved.
(4) If the Buyer fails to accept delivery even after expiry of a reasonable grace period, KTM shall, after prior notice, be entitled to sell the goods elsewhere and to charge the Buyer 25% of the purchase price as liquidated minimum damages, unless the Buyer proves that the actual damage was lower. KTM remains entitled to assert further damages.
(5) In the event of transport damage, the Buyer must notify the carrier immediately and arrange for an official inspection/recording of facts by the competent authorities. Insurance of the goods against transport damage shall only be effected upon the Buyer’s special written instruction. The cost of such insurance will be invoiced to the Buyer separately.
5. Deliveries and Services
(1) Time specifications, in particular delivery times stated by KTM within the scope of services, shall only be binding if expressly agreed as binding by KTM.
(2) Lack of materials, delivery delays by suppliers, and operational disruptions shall release KTM from its obligation to perform for the duration of the impediment. If such impediments are not merely temporary, KTM shall be entitled to cancel the deliveries and services. KTM will inform the Buyer immediately about such delivery or performance impediments.
(3) If and as long as the Buyer does not perform required acts of cooperation necessary for processing the order in time, the performance period shall be extended—taking into account KTM’s business situation—by at least the period of the delay.
6. Payment
(1) Withholding payment due to any counterclaims of the Buyer is excluded unless the counterclaim arises from the same contractual relationship. Set-off against counterclaims is excluded unless such claims are undisputed or have been finally adjudicated.
(2) The Buyer is not entitled to assign rights or claims arising from this contract to third parties without KTM’s prior consent.
(3) If the Buyer fails to meet its payment obligations, KTM shall be entitled to withhold performance or delivery in whole or in part until the due amounts have been paid. Otherwise, the statutory default rules apply.
(4) If KTM is obliged to perform in advance and, after conclusion of the contract, it becomes apparent that a material deterioration in the Buyer’s financial position occurs that endangers payment of the purchase price, the statutory provisions shall apply.
(5) For deliveries and services to Buyers abroad, a separate agreement shall be concluded.
7. Retention of Title
(1) KTM retains title to the delivered goods until full payment of the purchase price and of all present and future claims arising from the business relationship against the Buyer, including any balance drawn by KTM (goods subject to retention of title). Cheques or bills of exchange are not accepted.
(2) Processing and transformation shall always be carried out for KTM as manufacturer, however without obligations for KTM. If KTM’s title is extinguished by processing, etc., KTM shall acquire (co-)ownership of the new item in the ratio of the invoice value of the delivered goods to the other processed goods at the time of processing.
(3) If the Buyer acquires sole ownership by combination or mixing, it hereby transfers to KTM co-ownership in the ratio of the invoice value of the delivered goods to the other combined or mixed goods at the time of combination or mixing. The Buyer shall store the (co-)owned items for KTM free of charge. If the goods are in the possession of a third party, the Buyer hereby assigns to KTM its claim for surrender against such third party; KTM hereby accepts this assignment. Any (co-)ownership obtained by KTM under these provisions shall pass to the Buyer under the same conditions as title to the goods delivered by KTM.
(4) As long as the Buyer is not in default, it is entitled to resell the goods subject to retention of title in the ordinary course of business. The Buyer hereby assigns to KTM, in advance, all claims arising from such resale against third parties up to the respective invoice value (including VAT). KTM hereby accepts this assignment.
(5) If the goods subject to retention of title are sold together with other goods not delivered by KTM, the assignment of the claim from resale shall apply only up to the invoice value of the respective resold goods subject to retention of title. In the case of resale of goods in which KTM holds co-ownership shares pursuant to paragraphs (2) and (3), the assignment shall apply in the amount of these co-ownership shares.
(6) Notwithstanding this assignment, the Buyer remains authorized to collect the claims. KTM’s right to collect the claims itself remains unaffected. KTM undertakes not to collect the claim as long as the Buyer is not in payment default and, in particular, has not filed for the opening of insolvency proceedings. Upon request, the Buyer must inform KTM of the assigned claims and their debtors and provide KTM with all information and documents necessary for collection. Upon special request by KTM, the Buyer shall notify the respective third-party debtors of the assignment to KTM.
(7) Any other disposal of the goods subject to retention of title is prohibited. In particular, the Buyer is not entitled to transfer the goods as security or pledge them. The claims assigned to KTM may only be pledged or assigned to third parties with KTM’s prior consent.
(8) The Buyer must inform KTM in writing without undue delay of any third-party interventions or seizures affecting the goods subject to retention of title. The Buyer shall bear the costs required to protect KTM’s rights, unless such costs can be recovered from the third party.
(9) KTM undertakes, upon the Buyer’s request, to release securities provided by the Buyer under this contract insofar as they are not temporarily indispensable to secure KTM’s claims, in particular if they exceed the value of the claims to be secured and not yet settled by more than 20%.
(10) If the Buyer is in payment default, KTM shall be entitled to demand surrender of the goods subject to retention of title at the Buyer’s expense or to demand assignment of any rights to possession of the Buyer vis-à-vis third parties. This shall not apply in the event of filed or opened insolvency proceedings of the Buyer under which KTM is not entitled to demand immediate surrender of the delivered goods because the insolvency administrator demands performance of the purchase contract (Section 103 (1) German Insolvency Code (InsO)). Furthermore, after setting a reasonable deadline, KTM is entitled to revoke the Buyer’s right of resale pursuant to paragraph (4) and any authorization to collect pursuant to paragraph (6), to collect the claims, and to use, realize, or resell the goods subject to retention of title. KTM may offset the proceeds from realization of the goods against the outstanding claims. The Buyer shall be liable for any loss if the proceeds of realization are below the purchase price.
(11) KTM is entitled to assign its claims arising from deliveries and services for financing purposes.
8. Warranty for Defects
(1) The statutory provisions of the German Commercial Code (HGB) and the German Civil Code (BGB) shall apply to defects in delivery. The statutory rights of choice regarding defect remedy are also applicable.
(2) The limitation period for all warranty claims, including recourse claims pursuant to Section 445a BGB, is 24 months and begins upon delivery of the goods (date of delivery note or service report). This does not apply where the law provides longer limitation periods in Section 438 (1) No. 2 BGB (buildings and items typically used in buildings) and Section 478 (2) and (3) BGB. The statutory limitation rules also apply in cases of intentional or grossly negligent breach of duty or in the event of damage resulting from injury to life, body, or health. Section 445b (2) sentence 1 BGB (suspension of limitation) does not apply except in the cases of Section 478 (2) and (3) BGB. For repair of goods and products, a limitation period of twelve months applies, commencing upon delivery (date of delivery note or service report).
(3) Further claims of the Buyer are excluded in accordance with Clause 13 (Liability).
9. Liability
(1) Subject to the following provisions, KTM shall be liable in principle within the statutory framework for all culpably caused personal injury, property damage, and financial loss. If KTM is responsible for damage to the Buyer under the above, the following applies: Liability is limited in amount to the typically occurring, foreseeable damage and to a maximum of the value of the respective order. Liability for indirect damages and consequential damages, in particular loss of profit, production downtime, recourse claims of customers and/or business interruption, is excluded.
(2) The above limitations of liability shall not apply in cases of mandatory statutory exceptions. The above liability limitations and/or exclusions shall also apply to employees, staff, representatives, and vicarious agents of KTM.
10. Confidentiality
(1) Each contracting party shall use all documents (including samples, models, and data) and knowledge obtained from the business relationship only for the jointly pursued purposes and shall keep them confidential from third parties with the same care as it applies to its own corresponding documents and knowledge, if the other contracting party designates them as confidential or if there is an obvious interest in their confidentiality.
(2) This obligation begins upon first receipt of the documents or knowledge and ends 36 months after the end of the business relationship.
11. Liability for Third-Party Intellectual Property Rights
Liability for infringement of third-party industrial property rights and copyrights is excluded insofar as KTM manufactures only according to the Buyer’s drawings, models, samples, or order. The Buyer shall indemnify KTM against all third-party claims asserted in this context.
12. Infringement of Intellectual Property
KTM retains ownership and copyright in illustrations, brochures, calculations, and other documents; they may only be made accessible to third parties if this is necessary for the performance of KTM’s services. KTM’s consent must be obtained in advance before making them accessible.
13. Data Protection
The current version of our data protection policy is published on the internet at:
https://ktmelektronikaufzuge.de
14. Governing Law, Place of Jurisdiction
(1) The contractual relationship shall be governed by the laws of the Federal Republic of Germany.
(2) The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Hamburg.
15. Severability Clause
Should any of the above provisions be invalid, the validity of the remaining provisions shall not be affected. An interpretation shall then be found that comes as close as possible to the intended economic purpose.
Final note (bottom part)
At the time of conclusion of the contract, the General Terms and Conditions published on our homepage at (insert address here) shall apply. These are also available in paper form in our office premises for inspection and can be provided as a copy upon request.