General Terms and Conditions of Sale and Delivery
The following general terms and conditions of sale and delivery (hereinafter referred to as “General Terms and Conditions”) of KRÜSS GmbH Wissenschaftliche Laborgeräte apply to all offers and order acceptances as well as to any deliveries, Services, other services and information provided. For the purposes of these General Terms and Conditions, a “Service” includes without limitation services, laboratory measurements, consultation services, assessments, development of methods and processes. These General Terms and Conditions shall only apply to transactions with entrepreneurs. Deviating conditions, if any, shall be ineffective unless expressly confirmed by us in writing. Our General Terms and Conditions shall apply even if we accept the customer’s performance without reservation despite being aware of the customer’s terms and conditions contrary to or deviating from our General Terms and Conditions.
1. Conclusion of contract/Special right of rescission
1.1. We reserve the right to accept orders or the placement of orders within a period of two weeks. Order acceptance shall be effected in form of a written order confirmation. Neither a handwritten signature nor an electronic signature is required for the fulfillment of the requirement of written form. Notifications via fax, e-mail or otherwise in text form are sufficient to fulfill the requirement of written form. The registration for seminars become binding as soon as KRÜSS receives the written registration notification (e-mail, mail, fax, web registration form). Registrations generally relate to companies, not to individuals.
1.2. Subsequent changes or amendments shall not be binding on us unless expressly confirmed by us. Drawings, illustrations, weights and other documents relating to the offer generally apply subject to the usual tolerances, unless otherwise expressly confirmed by us. The customer shall bear the risk of incorrect information (sketches etc.) or wrong transmission of essential measurements. The customer shall be obliged to accept custom-made products.
1.3. We reserve the right to rescind the contract if the customer is included in one of the terrorist lists of the EU, US or other countries, or if delivery is prohibited by other binding export restrictions. The right of rescission shall remain in effect until the date of delivery. In addition, we reserve the right to charge the customer's account with any costs incurred up to that point.
2. Prices and terms of payment
2.1. In case of changes of the order data that are mutually agreed upon or demanded by the customer, all previously stated prices become ineffective. The prices are stipulated ex works (“EXW”, Incoterms 2020) unless otherwise expressly agreed upon. The customer shall bear the costs for packaging, postage, other shipment costs and the VAT applicable at the time of delivery. After order confirmation, any additional costs for changes made to the item or to the service upon the customer's request shall be charged to the customer.
2.2. Unless otherwise expressly agreed upon, all payments are to be made net without deductions within 30 days after the date of invoice, or immediately for services and repairs (cf. no. 2.4). Seminar fees are payable in advance (“Prepayment”). If a booked seminar is cancelled less than 14 days before its commencement, 50% of the seminar fees must be paid. Payments shall be made in euros to the bank account we stipulated, without deductions and net of expenses and costs. In case of any delay in payment, we shall be entitled to demand default interest amounting to 9 percent above the base rate and a late fee of EUR 40.00. We reserve the right to assert higher damage caused by such delay, if any.
2.3. VAT-exempt deliveries to other EU countries can only be effected if the customer provides us with the customer’s VAT ID no. and duly returns the confirmation of arrival. If we do not receive the confirmation of arrival within 4 weeks after receipt of the goods, we reserve the right to invoice VAT.
2.4. Deliveries to non-EU countries are subject to prepayment (cash in advance) or to a confirmed and irrevocable letter of credit.
2.5. If payment is not made in time, we reserve the right to refuse to execute subsequent orders.
2.6. We are entitled to refuse to perform if it becomes obvious after conclusion of the contract that our claim for payment is endangered due to the customer’s lack of financial capacities. The right to refuse performance does not apply if the payment is made or if a security is provided. We shall be entitled to set a reasonable period during which the customer is obliged to effect counter-performance or to provide security concurrently against the chosen performance. After this period has lapsed without success, we shall be entitled to rescind the contract. For more information, please see section 321 of the German Civil Code.
3. Customer’s right of set-off and retention
3.1. The customer has no right of set-off or retention except and to the extent the customer’s claims forming the basis of such right of set-off or retention are undisputed or established by declaratory judgment or are reciprocal to our claims (section 320 of the German Civil Code). Moreover, the customer may only exercise a right of retention if the customer’s counterclaim is based on the same contractual relationship.
4. Term of delivery and delay in delivery; delivery by sub-suppliers; force majeure
4.1. The term of delivery we stated will not commence until all technical issues are clarified and the customer’s obligations are fulfilled properly and in due time. To the extent import licenses or other approvals are required in the country of destination, the customer shall be obliged to provide us with the number, date of approval and term of validity thereof.
4.2. The term of delivery is subject to the proviso that our sub-suppliers supply us correctly and in due time. The term of delivery shall be deemed observed if we inform the customer that the goods are ready for dispatch within the term of delivery. Such notification obliges the customer to accept the goods immediately. Any changes to the design of the item to be delivered the customer requests during the term of delivery shall interrupt and extend the term of delivery accordingly.
4.3. If the payment mode “Prepayment” is agreed upon, the stated term of delivery will commence upon full receipt of the amount in the account stated by us.
4.4. We shall be entitled to deliver before the agreed date. Partial deliveries and services are admissible to the extent this is reasonable. If we are unable to deliver by the agreed date of delivery, we shall be entitled to stipulate a reasonable new term of delivery.
4.5. If the customer is in delay in acceptance or otherwise culpably violates their obligations to cooperate, we shall be entitled to claim compensation for any related damage incurred, including any additional expenses, e.g. storage costs. We reserve the right to assert further claims.
4.6. In case of force majeure or other unforeseeable, exceptional circumstances that are not attributable to our sphere of responsibility and that prevent us from fulfilling our obligations in due time, the term of delivery shall be extended accordingly. Force majeure includes government measures, epidemics and pandemics, riots, strikes, lock-outs, fire, machine defects, difficulties to obtain materials or energy, transport delays and other reasons beyond our control. To the extent a delay in delivery due to force majeure is longer than three months or performance of one of the parties becomes unreasonable due to one or more of the above reasons, the parties shall be entitled to rescind the contract. If the term of delivery is extended or we are exempt from the obligation to deliver, the customer shall not be entitled to assert any claims for damages based thereon. We shall only be entitled to invoke the stated circumstances if we informed the customer thereof shortly after we gained knowledge of such circumstances.
5.1. Delivery shall be made ex works (EXW Incoterms 2020). Shipment of the item will be effected at the customer’s risk. Upon making available the goods for dispatch, the risk will pass to the customer, irrespective of whether shipment is made from the place of performance and irrespective of which party bears the shipping costs.
5.2. If the goods are ready for dispatch and dispatch or acceptance thereof is delayed for reasons not attributable to our sphere of responsibility, the risk shall pass to the customer at the time the customer is informed that the goods are ready for dispatch.
5.3. Transport insurance or technical insurance shall only be taken out upon the customer’s express demand and at the customer’s expense.
5.4. The interpretation of alternative terms of delivery, such as FOB, CIF, C&F shall be subject to the Incoterms, as amended, issued by the International Chamber of Commerce (ICC).
6. Retention of title
6.1. We shall retain the title to the goods delivered until we receive full payment of all claims resulting from the business relationship with the customer.
6.2. If the customer processes goods subject to retention of title, the customer shall do so in our name and we shall have no obligations with respect thereto. We shall have the title to the new items in their respective state of processing. If goods subject to retention of title are processed, treated, mixed, blended or combined with third-party items, we shall have a pro-rata title to the new item corresponding to the ratio between the invoiced price of the goods subject to retention of title and the invoiced price of the third-party products.
6.3. The customer shall be entitled to sell the goods that are subject to our retention of title or co-title in the ordinary course of business; any pledge or transfer by way of security or assignment for security purposes of the goods subject to retention of title is inadmissible. Effective immediately, the customer shall assign to us in advance any and all claims the customer is entitled to from the resale of the goods subject to retention of title or of the products produced by processing, treatment, mixing, blending or combination, even if such products are sold together with third-party products at a total price. If any third party acquired title or co-title to the products due to statutory provisions based on processing, treatment, mixing, blending or combination, the customer – also effective immediately – shall assign to us in advance any claims the customer may have vis-à-vis such third party. For the purposes of this paragraph, assignments shall always only be made up to the amount of the invoiced price of the goods subject to retention of title. The customer shall be entitled to collect the assigned claims. Such entitlement may be revoked at any time.
6.4. Effective immediately, we accept the assignments made by the customer in accordance with this section 6.
6.5. We undertake to release any security provided to us in accordance with the above provision, in our discretion and upon the customer's request to the extent they exceed the value of the claims to be secured by more than 10%.
6.6. If any action by the customer is required for the effectiveness of the retention of title, e.g. in case of registrations, and if such actions are required in accordance with the law applicable to the country of the customer, the customer shall be obliged to take such actions.
6.7. If the customer is in delay in payment, we shall be entitled to prohibit the customer from disposing of the goods subject to retention of title in whole or in part, e.g. we may prohibit the customer from selling or processing such goods.
6.8. If the customer is objectively obliged to file an insolvency petition, the customer, without request, shall refrain from disposing of the goods subject to retention of title in any manner. The customer shall be obliged to inform us immediately of the existing quantity of goods subject to retention of title. In such case, we shall also be entitled to rescind the contract and to demand that the goods subject to retention of title be returned to us. If the goods subject to retention of title were processed, treated, mixed, blended or combined with other products, we shall be entitled to demand that they are surrendered to a trustee; the customer is obliged to inform us of any co-owners of goods subject to retention of title, stating the name of company and/or the name, address and the size of the co-ownership share. The same shall apply mutatis mutandis to any claims that were assigned to us in accordance with the above paragraphs; in addition, the customer shall be obliged to inform us without request of the names and addresses of all debtors and send us copies of the documents evidencing such debts.
7. Claims based on defects and notification of defects
7.1. The customer shall only be entitled to assert claims for defects if the customer duly fulfilled the obligations to investigate and to make a complaint in respect of a defect immediately upon receipt of goods according to section 377 of the German Commercial Code. Any complaints must be made in accordance with section 377 of the German Commercial Code immediately but not later than 5 working days upon receipt of the goods for obvious defects and for hidden defects immediately but not later than 5 working days after they were detected, otherwise the goods will be deemed accepted. In case of any suspicion of a more than merely insignificant defect of the delivered products, the customer must inform us of such suspicion without delay, even if the products need to be investigated more closely in order to verify the defect. Any violation of this obligation shall lead to the customer’s obligation to pay damages, unless such violation of obligation is not within the customer’s sphere of responsibility. Section 377 of the German Commercial Code and the above provisions apply mutatis mutandis to contracts for work and services.
7.2. Should the delivered goods be defective despite all due diligence and such defect existed at the time the risk was transferred, we shall, in our discretion, either rectify such defect or deliver replacement goods, provided the customer notified us of the defect in due time. The customer’s additional rights to rescind the contract or to reduce the purchase price are subject to statutory provisions.
7.3. The customer will not be entitled to assert claims based on defects for usual wear and tear or any damage that incurred after the transfer of risk due to wrong or negligent treatment, excessive strain, unauthorized structural changes, improper repair, non-compliance with the operating manual, unsuitable equipment or special external incidents such as events of force majeure, which were not foreseen in accordance with the contract. If the customer or any third party effects improper repairs or changes, the customer will not be entitled to assert any claims based on defects with regard to such repairs or changes and any consequences thereof.
7.4. Claims based on defects shall become statute-barred 12 months after the customer receives the goods. This will not affect the limitation period for delivery recourse as provided for under sections 445b, 478 of the German Civil Code. Claims for damages based on defects shall be excluded therefrom; such claims shall be subject to the statutory warranty period. Claims for damages incurring if we are in delay in the remedy of defects, if such remedy of defects was requested by the customer and owed by us, shall also be subject to the statutory warranty period. The customer shall be obliged to obtain our consent before returning the goods.
7.5. In case of defect and provided the customer notified us of such defect in due form and time, the customer shall be entitled to demand, in our sole discretion, either repair or replacement delivery. Based on statutory provisions, the customer shall be entitled to reasonably reduce the purchase price or to rescind the contract. The shipping cost incurring in connection with subsequent fulfillment shall be borne by us. However, should the shipping costs increase due to the fact that the customer or the customer’s customer moved the goods away from the place of performance, such increase shall be borne by the customer. The same shall apply, mutatis mutandis, to other costs we must bear in connection with subsequent fulfillment, including without limitation customs duties or other duties in the customer’s recipient country.
7.6. If our service department detects, upon testing the device, that the defect is not subject to warranty, we reserve the right to charge the customer with the costs for the return and the repair of the goods.
7.7. Warranties of quality must be expressly stipulated in writing in the written order confirmation in any case, including for follow-up transactions. In particular key word descriptions, references to generally accepted standards, the use of trademarks or quality marks or the provision of samples or patterns alone do not establish a guarantee or warranty.
8.1. Claims for damages of any kind asserted against us and our statutory representatives and vicarious agents shall be excluded except in case of willful intent and gross negligence or violation of a material contractual obligation.
8.2. For this purpose, a material contractual obligation means any obligation the fulfilment of which is a prerequisite for the due execution of the contract and on the fulfilment of which the customer may generally rely.
8.3. However, liability will be limited to the compensation of typically foreseeable damage, except in cases of slight or gross negligence.
8.4. The above limitations of liability and exclusions of liability shall neither apply to liabilities according to the Product Liability Act and other national laws implementing the European Product Liability Directive, nor to any injury to life, limb or health.
8.5. The customer waives any claims for compensation in accordance with section 284 of the German Civil Code to the extent a claim for damages instead of performance is excluded in accordance with the above provisions.
8.6. The statutory burden of proof will not be affected by the provisions contained in this section 8.
8.7. In case of application measurements, we agree to duly provide all contractual performance in accordance with the current state of science and technology, however, we do not undertake to provide a certain result. Our liability shall be limited to damage caused by willful intent or gross negligence and to the amount of the agreed remuneration or of the maximum insurance sum paid by a manufacturer’s liability insurance obliged to cover such damage. Our liability for slight negligence, for the compensation for any consequential damage or purely economic loss is excluded.
9. Confidentiality and industrial property rights
9.1. The customer shall be obliged to treat confidentially any and all business data and information to the extent they are not generally accessible or generally known.
9.2. We reserve title, copyright and other industrial property rights to any and all figures, drawings, calculations and other documentation provided by us in tangible or electronic form and to any and all software items. However, the customer shall be entitled to use the work products we provided to the extent the customer lawfully obtained such work products legally in the course of the transaction. Unless otherwise agreed upon in writing, we shall provide the results only to the principal.
9.3. We shall store and process any data of the customer we receive in connection with the business relationship in accordance with data protection regulations and not disclose them to third parties.
10. Software use, Software Assurance
10.1. To the extent the devices delivered in accordance with the contract are software-controlled, such devices are also subject to our software license conditions (End User License Agreement - EULA) and to the provisions of the software maintenance agreement concluded with the customer, if any. In case of doubt, for software, the latter will have priority over these General Terms and Conditions.
10.2. If and to the extent KRÜSS and the customer agreed that the customer will participate in KRÜSS’ Assurance program, KRÜSS will provide to the customer software updates for the product covered by the program in regular intervals by providing a download link. These updates contain performance improvements but may also contain completely new functions. The provide a more comfortable use and increase the product’s scope of functions. In addition to these General Terms and Conditions, the Software Assurance program is also subject to the special terms and conditions “Software Assurance”. In case of doubt, for software updates, the latter will have priority over these General Terms and Conditions.
11. Place of performance, place of venue/arbitral tribunal and choice of law
11.1. Place of performance for delivery and for any warranty claims is the supplier’s works, place of fulfilment for payment shall be Hamburg.
11.2. If the customer's registered office is within the EU and/or within the EEA, the following conditions apply: The exclusive place of jurisdiction shall be Hamburg, Germany, if the customer is a merchant, a public law entity or a special fund under public law or if the customer does not have a general place of jurisdiction in Germany.
11.3. However, if the customer’s registered office is outside the EU and the EEA, the arbitral tribunal of the Chamber of Commerce Hamburg shall be exclusively competent for any and all disputes arising out of and in connection with any contract that was concluded subject to these General Terms and Conditions, and such arbitral tribunal's decision shall be final and binding and the due process of law shall be excluded. The defendant shall be entitled to cross-sue before the arbitral tribunal. Place of arbitration shall be Hamburg, Germany, and arbitration proceedings shall be in German. The arbitration proceedings, including but not limited to the taking of evidence, shall be subject to the provisions contained in the rules of arbitration of the arbitral tribunal of the Chamber of Commerce Hamburg and to the regulations contained in Book No. 10 of the German Code of Civil Procedure (ZPO). The arbitral tribunal shall base its taking of evidence on the usual proceedings applied by regular courts in Germany. The principles of common law, including but not limited to document production, shall not apply, neither directly nor mutatis mutandis. If one of the parties is entitled to reimbursement of attorney’s fees from the other party in relation to the arbitral proceedings, such reimbursement of fees is limited to the amount to be invoiced in accordance with the Lawyers’ Remuneration Act (RVG).
11.4. The law of the Federal Republic of Germany shall apply exclusively. The UN Sales Convention shall be excluded.
Revised: June 2021
KRÜSS GmbH, Hamburg, Germany