General Terms and Conditions of Business of Emil Kreiskott GmbH Maschinenfabrik

Our following General Terms and Conditions of Business become an integral part of all contracts, our quotations, supplies and services (deliverables) unless otherwise specifically agreed in writing. Upon the first contract conclusion, we agree with the Buyer that our General Terms and Conditions of Business, as amended, shall also apply for all subsequent business transactions.

1. Quotation / Conclusion of Contract
The quantities, prices and delivery period stated in our quotations are not binding. Drawings, illustrations, dimensions, weights and other specification data are only binding if such is expressly agreed in writing.

First quotations are normally free of charge. Further quotations and draft work are only done free of charge if the supply/service contract is, and remains, legally concluded.

Contract conclusion occurs upon receipt of our written order confirmation or handover of the goods. We reserve the right to refuse an acceptance if it covers only a part of our quotation.

Amendments or contradictions in respect of these General Terms and Conditions of Business are only valid if accepted in writing in each specific case. Conflicting or deviating Terms and Conditions of Business are not binding even if not expressly rejected. Counter confirmations by the Buyer stating Buyer's own General Terms and Conditions of Business are herewith rejected. Oral collateral agreements and different Terms and Conditions of Business shall only apply if they have been expressly confirmed in writing

We reserve our ownership rights and copyrights to all illustrations, drawings, sketches and other documents; they may not be disclosed to a third party without our permission and must be sent back immediately upon request.

2. Delivery Obligation
We always endeavour to comply with any agreed delivery periods.

Force majeure, labour disputes, strikes, interruption of business for any reasons, governmental measures, war, seizure/confiscation, currency exchange embargo or other delays in delivery or service beyond our control and which we have not caused and cannot remedy at a reasonable cost shall release the Seller from his obligation, even in the case of binding deadlines and delivery periods and regardless of whether such hindrance occurs at the Seller, the Seller's supplier or the Supplier's supplier. We expressly reserve the right to postpone the delivery for the duration of the hindrance or to rescind the entire contract or a part thereof because of the not yet performed part.

3. Prices and Terms of Payment
The agreed prices are net of the applicable statutory VAT.

Prices are ex works, excluding packaging, freight, postage and transport insurance. The same applies for agreed part deliveries and urgent deliveries.

Packaging and shipping will be performed in accordance with .our best judgement but without liability for the Seller. The cost of boxes/crates shall be reimbursed at 2/3 of the invoiced price if they are returned, carriage paid, in an undamaged condition.

Special gearboxes and toothed gears that are not standard products are subject to a price surcharge due to the special manufacturing; this price surcharge will normally be agreed before the order placement. If the exact determination of the price is not possible at this point in time for any reason, the price will be determined after the manufacture on the basis of the production costs and a reasonable profit margin.

The Buyer can only complain about invoices, in writing and, within 3 days of receipt of the goods and before the processing or passing-on to a third party. Complaints do not entitle the Buyer to delay the payment.

Invoices must be paid immediately after invoice receipt. A 2% early payment discount will be granted if payment is made immediately after receipt of the goods but no later than 8 days following the invoice date, in cash, by cheque or bank transfer. Cash discounts in accordance with statutory provisions cannot be granted in the case of a later payment. Interest at a rate of 2% p.a. above the discount rate of the German Central Bank plus VAT will be charged on debts or deferred invoice payments without the need for a notice of default. The interest charged will be lower or higher if we can prove a higher interest rate or the Buyer can prove a lower burden.

In the case of larger objects, we can demand that payment be made in cash, without deduction and net of bank charges to the Seller's designated account, as follows: 

  • Advance payment of 1/3 of the invoice total after receipt of the order confirmation,
  • 1/3 as soon as the Buyer is notified that the main parts are ready for shipping,
  • and the remaining amount within a further month.

Money orders, cheques and bills of exchange will only be accepted after special written agreement and only on account of payment. Discount charges and stamp duty and collection costs shall be borne by the Buyer; they are due immediately. The Buyer may only set off against our claims if the Buyer's counterclaim has undisputedly become res judicata. The Buyer can only assert a right of retention to the extent that his claims are based on the contract of sale.

In the case of payment arrears, we are entitled, after fixing a time limit:

a.) to stop delivery or withhold the goods;

b.) to rescind the contract and claim compensation for incurred loss and lost profit;

c.) to make all invoices due for immediate payment and return current bills at the Buyer's cost. Payments made are always used to cover the oldest claim.

4. Reservation of Ownership
a) The delivered goods remain our property until full payment of the selling price and all prior incurred and accruing claims arising out of the business relationship. This also applies if individual or all claims of the Seller were included in a current invoice and the balance is struck and acknowledged. We reserve our ownership rights and copyrights to all illustrations, sketches and other documents; they may not be made accessible to a third party without our permission and must be sent back immediately upon request. In the case of a Buyer's behaviour contrary to the contract, particularly default of payment, the Seller is entitled to take back the goods after a reminder and the setting of a time limit and the Buyer is obliged to hand over the goods. If the German Consumer Credit Act (Verbraucherkreditgesetz) or a similar protective Act is not applicable, the taking-back of the goods or the distraint of property by the Seller does not represent a contract rescission unless such is expressly declared by us in writing. We expressly reserve the right to assert additional compensation claims.

b) The Buyer may only process, mix, intermingle or sell the reserved ownership goods in the proper course of business and in accordance with his Standard Terms and Conditions of Business and for as long as the Buyer is not in default. The Buyer is not entitled to otherwise dispose of the goods, for example to hand over the goods as security or for pledging purposes. All the Buyer's rights to dispose of the goods that we supplied to Buyer cease immediately in the event of a cessation of payment, an application for, or opening of, insolvency proceedings or out-of-court composition proceedings, cheque or bill of exchange protest or a distraint. In such a case, the Buyer must immediately separately collect the goods and notify us of the inventory.

c) The processing or machining of the reserved ownership goods occurs for us, as manufacturer, pursuant to Section 950 of the German Civil Code (BGB), without obligation on our part. The processed goods are reserved ownership goods pursuant to these provisions. If the reserved ownership goods are processed or inseparably combined with other items not owned by us, we acquire co-ownership of the new item in the ratio of the invoice value of the reserved ownership goods to the invoice value of the other used goods at the time of the processing or joining. If our goods are combined or inseparably joined with other items to form a main item and the new item is to be regarded as being a main item, it is agreed that the Buyer transfers to us co-ownership at said ratio if the main item is owned by the Buyer. In such a case, the Buyer is a trustee, without such resulting in a claim against us. Items or inventory resulting from the processing, combining or joining, shall be treated like reserved ownership goods pursuant to these General Terms and Conditions of Business.

d) The Buyer's payment claims resulting from the resale of the reserved ownership goods or other legal reason, e.g. unlawful act, insurance, etc., are assigned to us, regardless of whether the reserved ownership goods are sold without or after a processing, combining or mixing or whether they are sold to one or more buyers. If the reserved ownership goods are sold by the Buyer together with other goods not owned by us or after processing or combining with such goods, the assignment of the selling price claim from the resale occurs only at the percentage of the finished product resulting from the value ratio of the reserved ownership goods supplied by us to the value of the finished product. The Buyer is not authorised to effect a further assignment. Until revocation, the Buyer is authorised to collect assigned payment claims provided that he properly fulfills his payment obligations. Such authorisation does not affect our right to collect the debt ourselves. However, we undertake not to collect the debts as long as the Buyer fulfills his payment obligations.

e) The Buyer must immediately notify us telegraphically and also by registered express letter of distraint or other actions by a third party that can affect the Seller's rights based on the reserved ownership. The third party must be immediately and expressly informed about our reserved ownership.

f) The Buyer is obliged to insure the reserved ownership goods against loss and damage and prove the existence of such insurance on request.

g) Upon our request, the Buyer must inform his Buyers about the assignment to us and provide us with information and the relevant documentation necessary for the debt collection.

h) We are entitled to demand the provision or increase of security for our credit liabilities from our customers if there is a change in the risk situation due to subsequently occurring or identified circumstances, e.g. due to a worsening or likely worsening of the financial situation of the customer, a co-guarantor or co-surety or the value of the existing security.

i) We undertake to release security of our choice on request to the extent that the realisable value or the individual value of all security amounts specified in the security contracts exceeds the total value of our payment claims by more than 20% on a non-temporary basis. We will take into account the justified interests of the customer in the selection of the security to be released.

5. Defect Liability
The goods must be checked immediately after receipt.

In the case of identifiable defect, notices of defect in quantity or quality must be sent immediately in writing and no later than 3 days after receipt of the goods and before processing or passing-on to a third party. Defects that cannot be identified even by a careful check within this time limit must be notified to the Seller in writing immediately after identification. Complained-about goods must be stored and handled properly.

In the case of defects that are justified and timely complained about, we are obliged, at our choice, to repair the defect, to replace the goods or issue a credit note that does not exceed the invoice value. If the repair fails after a reasonable period, the Buyer can demand, at his choice, a price reduction or rescission of the contract. Further claims are excluded. Replaced parts become our property.

We are entitled to reject the warranty claim for as long as the Buyer has not met his obligations. Claims against us because of defective goods that we have not manufactured can only be asserted to the extent that the manufacturer has a liability towards us.

The liability for consequences of incorrect changes made to the supplied goods or repair work by the ordering party or a third party without prior permission of the Seller is excluded.

A liability for damage caused by normal wear, incorrect or negligent handling, excessive stressing, unsuitable lubricants or service fluids, chemical, electrical or electronic influences is excluded.

6. Transport Risks
The transport risk, even through our own vehicles, is borne by the Buyer. Our delivery obligation is fulfilled upon handover of the goods to the carrier. The Buyer takes care of the unloading of the goods. Defects in quality or quantity must be identified on delivery and recorded on the carrier's consignment note or otherwise documented and notified immediately to the Seller.

7. Liability Limitations
Compensation claims based on positive default of payment, on culpa in contrahendo, or on unlawful act against the Seller or his vicarious agents are excluded unless caused by an intentional act or gross negligence. This also applies for compensation claims based on non-performance however only to the extent that compensation is claimed for indirect damage/loss or consequential damage/loss caused by defect unless the liability is based on a warranty that should protect the Buyer against the risk of such damage. Any liability is limited to the damage foreseeable at the time of contract conclusion. The liability of the Seller under the Product Liability Act or other claims based on manufacturer liability remains unaffected in each case.

8. Place of Performance and Place of Jurisdiction
The law of the Federal Republic of Germany applies for the Terms and Conditions of Business and the entire business relationship between the Buyer and Seller. The place of performance for deliverables and payment and the place of jurisdiction for all current and future claims arising from the business relationship, including claims under a bill or cheque, is exclusively Wuppertal.

9. Severance Clause
Should one of the above conditions or a provision in other agreements be ineffective, such ineffectiveness shall not affect the effectiveness of other agreements or provisions. The ineffective provision shall be replaced with a provision that conforms to the intentions of the parties at the time of contract conclusion.