General Terms and Conditions

1. Generals

1.1  These General Terms and Conditions are binding for all deliveries and services provided by KIESEL. They shall apply in particular to brand new products, accessories, spare parts, and other services, unless otherwise agreed in writing by the contracting parties.
1.2  These General Terms and Conditions shall apply only if the contract agreed upon by the contracting parties’ forms part of purchaser’s regular operations and if purchaser is a legal entity or person under public law or represents a special public fund.
1.3  These General Terms and Conditions shall be regarded as accepted by purchaser, latest upon receipt of products or services provided by KIESEL. Deviating confirmations from purchaser referring to purchaser’s own General Terms and Conditions are hereby expressly disclaimed. The General Terms and Conditions shall govern also all future contractual agreements with purchaser; even if these General Terms and Conditions are not expressly referred to again.
1.4  These General Terms and Conditions are binding for all deliveries and services provided by KIESEL. They shall apply in particular to brand new products, accessories, spare parts, and other services, unless otherwise agreed in writing by the contracting parties.

2. Quotation and conclusion of contract

2.1  All quotations and brochures by KIESEL as well as information provided in KIESELS’s website are non-binding and subject to change. Any technical documents including information on weight and dimensions, efficiency, or operating costs of our products are only binding if expressly set forth in writing.
2.2  In case of an order confirmation issued by KIESEL, the subject of the contract shall exclusively be determined by this order confirmation.
2.3  KIESEL reserves all property rights and copyrights for estimates, drawings, and other documents. Purchaser agrees not to disclose any such documents to third parties.
2.4  The Purchaser shall assume the sole responsibility for documents provided by him, such as drawings, templates, samples, and the like. Purchaser shall be responsible to ensure that drawings submitted to KIESEL do not infringe patent rights of third parties.
2.5  KIESEL shall not be obliged to check whether quotations based on design drawings submitted by purchaser infringe any patent rights or other third-party industrial property rights in the event of fulfilment. Should KIESEL nevertheless be held liable, purchaser shall be liable to indemnify KIESEL against any legal claims.

3. Prices

3.1  All prices are quoted in Euros. Other currencies shall be accepted only if expressly agreed in writing.
3.2  All prices are exclusive value added tax. The same will be charged by separate invoice in accordance to current tax laws at the applicable rate.
3.3  KIESEL shall be entitled even after contract has been concluded to increase the purchase price reasonable – except for continuous or recurring obligations – in the event of an increase in prices for raw- or auxiliary materials, an increase in wages and salaries, an increase of shipping / freight costs, or tax increases provided shipment was not or is not to be effected within four weeks and increases take effect until delivery. In this event purchaser shall not be entitled to withdraw from the contract.

4. Payment Terms

4.1  Unless otherwise agreed, invoices shall be payable within 30 days of invoice date without any deduction. New customers are required to pay in advance. Repairs and services are payable net after date of invoice, without any deduction.If payment is not made within the period stipulated, purchaser will be in default of payment without any reminder. KIESEL shall be entitled in any case to credit payments against purchaser’s older liabilities.
4.2  Payment shall be regarded as effective when the same is at KIESEL’s disposal. Bills of exchange or checks shall be accepted by KIESEL on account of payment and for processing reasons only.
4.3  Should purchaser default on payments, KIESEL shall be entitled to charge interest as of the respective date at the rate of 8 per cent above the applicable basic interest rate. Furthermore, KIESEL reserves the right to submit evidence of higher associated costs.
4.4  Should KIESEL learn of circumstances giving legitimate doubt in regard to purchaser’s creditworthiness, especially if purchaser fails to honour a check or if purchaser ceases payments, KIESEL shall be entitled to claim all outstanding amounts due for immediate payment, demand payment in advance or provision of securities.
4.5  Purchaser shall be entitled to set off, withhold or reduce payments only if purchaser’s counterclaims are undisputed and legally acknowledged.

5. Delivery period, default of payment, and withdrawal from contract

5.1  The period allowed for delivery starts with the dispatch of the order confirmation by KIESEL, or with conclusion of contract, but not before purchaser has provided all necessary documents, permits, approvals and receipt of any stipulated down payment.
5.2  For compliance with the delivery period it is sufficient to notify purchaser that consignment is ready for dispatch, or to dispatch consignment ex works.
5.3  The delivery period shall be reasonably extended in the event of measures to be taken due to labour disputes, particularly strikes and lock-outs, or due to unforeseeable events beyond KIESEL’s reasonable control, as long as such events have an effect on fulfilment and delivery. Such events and circumstances shall be regarded also as beyond KIESEL’s reasonable control if they occur during an existing default. KIESEL shall notify purchaser about the beginning and end of such events in important cases as soon as possible.
5.4  In the event that dispatch is delayed at the request of purchaser, costs incurred due to storage of goods will be billed to purchaser, starting one month after notification of purchaser that consignment is ready for dispatch. In case of storage of the goods on KIESEL’s premises a minimum rate of 0.5 percent of the invoiced amount for each month of storage is due. Upon expiry of a reasonable deadline set by KIESEL, KIESEL shall be entitled to dispose of the delivery items otherwise and deliver the goods to purchaser at a reasonably extended deadline.
5.5  Obligation to meet delivery deadlines on the part of KIESEL pre-supposes that purchaser complies with the provisions stipulated in the contract.
5.6  In the event of purchaser unjustifiably withdrawing from contract, purchaser shall be obliged to pay KIESEL a lump sum compensation / restocking fee / inspection fee of 20 % of the net purchasing price, unless purchaser can prove that the actual damage is lower. In turn, KIESEL reserves the right to make a claim for the actual damage instead of getting paid the lump sum. Custom-made products will generally not be taken back by KIESEL.

6. Transfer of risk

6.1  The risk shall be transferred to purchaser latest at the time of dispatch of the consignment, also in case of partial deliveries, or when KIESEL renders additional services, such as shipment, transport, or assembly/installation. On purchaser’s request the consignment will be insured at purchaser’s expense against theft or damage due to transport, fire or water, or against other insurable risks.
6.2  In the case of international sea freight shipments the risk shall be transferred as per applicable INCOTERMS FOB port.
6.3  If dispatch is delayed due to circumstances that are purchaser responsibility, the risk is transferred to purchaser, starting the day on which goods are ready for dispatch. However, KIESEL shall – on purchaser’s request and expense – be obliged to effect insurance as requested by purchaser.
6.4  Partial deliveries are permissible.

7. Retention of title


Purchaser shall be entitled to resell the delivery item in the ordinary course of its business. However, purchaser hereby assigns to KIESEL as a security all trade receivables accruing to purchaser from resale of the delivered goods to the amount of the total invoice sum (including value added tax), without there being any requirement for special declarations at a later point in time, respective whether the delivery item has been resold without - or after further processing. This assignment shall also extend to balance claims arising within the scope of existing current account relations or in the event of termination of such relations of the purchaser and its customers.

Irrespective of this assignment purchaser shall remain entitled to collect receivables from its customers. KIESEL’s right to collect the receivables itself shall remain unaffected by this. However, KIESEL shall undertake not to make use of this right as long as purchaser fulfils its payment obligations from the earned revenue, does not get in default of payment, and, in particular, has not applied for opening of insolvency proceedings or has suspended payments.

In the latter case KIESEL shall be entitled to demand from purchaser to disclose the assigned receivables and the respective debtors furnish all information required for collection, deliver all corresponding documents, and notify the debtors of the assignment.

7.2  Any processing or alteration of the delivered goods by purchaser shall be made only on behalf of KIESEL. Should the delivered items be processed further with goods or objects that are not property of KIESEL, KIESEL shall obtain co-ownership of the new product in the proportion of the value of the delivery items (including value added tax) to the other goods or objects at the time of processing. For the item produced through further processing the same shall apply as for the delivery items subject to retention of title.
7.3  Should the delivered items be inextricably mixed with goods or objects that are not property of KIESEL, KIESEL shall obtain co-ownership of the new product in the proportion of the value of the delivery items (including value added tax) to the other goods or objects at the time of mixing. If this mixing is done in such a manner that the item of purchaser is to be regarded as the principal item, it is deemed agreed that purchaser shall assign co-ownership to KIESEL on a pro rata basis. Purchaser shall hold and safeguard the sole or joint title thus created on behalf of KIESEL with due diligence.
7.4  Purchaser shall assign to KIESEL as a security also receivables arising from third parties due to any connection of the delivery item with real estate of any kind.

8. Liability for defects

8.1  KIESEL shall not assume any risk of procurement nor any guarantees unless expressly agreed in writing. KIESEL shall be liable for damages or defects of consignment only as stipulated in the following:
8.1.1  All parts of consignment which within 12 months from transfer of risk turn out to be unusable or substantially impaired in their use due to circumstances occurring before the date of transfer of risk– particularly due to incorrect design, poor materials, or deficient workmanship – shall be repaired or replaced by KIESEL, as determined by KIESEL. German Civil Code § 434 BGB shall remain unaffected by this, with the exception of the expressly excluded provision of § 434, paragraph 1, clause 3 BGB.
8.1.2  Purchaser shall immediately notify KIESEL in writing of any damages or defects of the consignment, however, in case of apparent defects no later than 7 days after receipt of the delivered items.
8.1.3  KIESEL shall assume no warranty or liability for damages or defects of the consignment resulting from any of the following causes: inappropriate or improper use, incorrect assembly, installation or commissioning by purchaser or a third party, normal wear and tear, incorrect or negligent handling, unsuitable operating or replacement materials, deficient construction work, unsuitable ground, chemical, electrochemical or electrical influences, unless such damage or defect can be traced back to negligence on the part of KIESEL.
8.1.4  In order for KIESEL to perform any corrective action deemed necessary at KIESEL’s equitable discretion, purchaser shall allow sufficient time and opportunity for KIESEL to act; otherwise KIESEL shall be relieved of assuming liability for defects. Only in urgent cases when operational safety is put at risk and to avert disproportionately greater damage (whereof KIESEL shall immediately be notified by purchaser), or if KIESEL is in default with providing corrective action, purchaser shall be entitled to rectify the damage or defect itself or have it rectified by a third party, and to demand reimbursement from KIESEL.
8.2  Insofar as the complaint has proven to be justified, of all the costs resulting directly from rectification of damage or defect or from providing a replacement delivery KIESEL shall bear the costs for the replacement part including costs for its shipment as well as reasonable costs for dismantling, assembly or installation. Furthermore, KIESEL shall bear the costs for any required deployment of fitters, technicians and supporting staff (if this can equitably be demanded from KIESEL in view of circumstances of the individual case). All other costs shall be borne by purchaser.
8.3  The warranty period for the replacement part and the repair shall be 3 months, but shall by no means end before expiry of the initial warranty period for the delivered goods. The period of liability for damaged or defective goods delivered shall be extended by the time operations were suspended at purchaser’s site due to repair work.
8.4  Should KIESEL, in the event of damage or defect of consignment being attributable to KIESEL as stipulated by these General Terms and Conditions, allow an appropriate period of time to elapse without providing corrective action or replacement parts, purchaser shall be entitled to withdraw from contract. This right of withdrawal shall also apply to any other cases in which KIESEL fails to provide corrective action or replacement parts.
8.5  Any other claims on the part of purchaser, in particular any claim to demand compensation for damage not occurred at the delivered item itself, shall be made by purchaser only under the circumstances stipulated in Section 9 of these General Terms and Conditions.
8.6  As far as third-party products or parts not manufactured by KIESEL are concerned, KIESEL’s warranty and liability shall be limited to the assignment of claims against KIESEL’s suppliers.

9. Disclaimer

9.1  All claims shall be excluded from liability which go beyond the provisions stipulated in the previous sections of these General Terms and Conditions, particularly with regard to termination or reduction of contract, compensation for damage, or compensation for futile expenses, irrespective of the legal basis (for example, positive breach of contract, violation of duties during contract negotiation, out of tort).
9.2  This disclaimer shall not apply in case of intentional action or gross negligence on the part of the owner or senior management executives, or culpable breach of fundamental contractual obligations. In the event of violation of fundamental contractual obligations KIESEL shall be liable only for damage that is reasonably foreseeable and typical of the kind of contract, except for cases of intentional action or gross negligence on the part of the owner or senior management executives. Furthermore, this disclaimer shall not apply to cases in which the German Product Liability Act states that liability has to be assumed for defective delivery items causing injuries to persons or damage to objects used for private purposes. Moreover, this disclaimer shall not apply in the case of damage due to non-compliance with an assurance given on a specific quality or specific characteristics of the delivered item, if the exact purpose of this assurance was to protect purchaser from damage not arising at the delivered item themselves.

10. Construction and design changes

10.1  KIESEL reserves the right to alterations in design at any time.

11. Confidentiality of information

11.1  Unless otherwise agreed in writing, all information furnished to KIESEL in connection with the purchase order shall be treated non-confidential.

12. Applicable law, place of jurisdiction and severability clause

12.1  German law shall be applicable to these General Terms and Conditions as well as to all contractual relations between KIESEL and purchaser.
12.2  As far as purchaser is a registered merchant according to the German Code of Commercial Law, a legal person or entity under public law, or represents special funds under public law, Heilbronn/Germany shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
12.3  Should any provision stipulated in these General Terms and Conditions or any other provision under any other agreement between the contracting parties be or become ineffective, the remaining provisions shall remain unaffected thereof.
Heilbronn, August 2013
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