terms & Conditions

 

Documents such as drawings, weight and dimension sheets forming part of the quotation, are estimates only, and defined as not binding. Cost estimates, drawings and any other document forming part of or remitted with the quotation shall remain the exclusive property of KoWey. The copyright of any such estimates, drawings or documents remains with KoWey. They may not be made available to third parties by the Buyer.

The scope of supply as specified in the KoWey written order confirmation shall be binding. Collateral agreements and modifications require the written confirmation of KoWey.

1. The EN/DIN standards and regulations of the VDE (Association of German Electrical Engineers) shall apply for electrical equipment.

All prices shall be understood for the equipment supplied FCA in accordance with the INCOTERMS which apply on the date of the contract. For deliveries made in Germany, VAT shall be added in the amount that applies at the time of delivery.

1.Payment shall be made free of charge by remittance to KoWey's bank account without any deduction, in accordance with the following terms: 30% of the total order value payable as down-payment after receipt of the order confirmation 70% of the total order value payable after receipt of KoWey's advice that the equipment is ready for shipment.

2. No payment shall be retained or set off against possible claims of the Buyer contested by KoWey.

3. If the Buyer's payments are overdue, KoWey shall be entitled to claim interest on arrears as from the due date. The interest rate of 13 per cent per annum shall apply. In cases of delayed payment, KoWey shall be entitled to cease performance of his contractual obligations until receipt of the respective payments after having informed the Buyer hereof in writing. Should the Buyer be in arrears with his payments for more than three months, KoWey shall be entitled to withdraw from the contract by written notice and to claim damages from the Buyer. The amount of damages shall not exceed the purchase price.

The delivery period shall start with the dispatch of the order confirmation, provided that technical details are clarified and the agreed down-payment has been credited to KoWey's account or the Letter of Credit has been issued.

1. The goods are considered to be delivered within the specified period if dispatched on or prior to the expiry date of the delivery period or if notice of readiness for dispatch is given within the said time.

2. In the event of Force majeure, KoWey shall have the right to suspend the order until such circumstances have ceased provided they prove to significantly interfere with the completion or delivery of the goods. The same applies for KoWey's sub-contractors.

3. Compliance with the contractual delivery period shall be subject to fulfillment of the Buyer's contractual obligations.

4. Should the Buyer request interruption of manufacture, he shall bear all additional costs entailed by the said interruption.

1. Legal title in the delivered goods shall not pass to the Buyer until the Buyer has discharged all outstanding indebtedness to KoWey whatsoever.

2. Unless the Buyer provides evidence of an existing policy insuring the delivered goods against possible damages, KoWey shall be entitled to insure the delivered goods at the Buyer's cost and expense. Until the moment of full payment the Buyer shall neither mortgage nor assign for security the delivered goods.

2. Unless the Buyer provides evidence of an existing policy insuring the delivered goods against possible damages, KoWey shall be entitled to insure the delivered goods at the Buyer's cost and expense. Until the moment of full payment the Buyer shall neither mortgage nor assign for security the delivered goods.

3. Should confiscation, seizure or any other adjudication order be secured by a third party, the Buyer shall forthwith notify KoWey.

4. In the event of a breach of contract accountable to the Buyer, in particular default in payment, KoWey, after due notice to pay, shall be entitled to recover the delivered goods, the Buyer being obliged to restitution. KoWey enforcement of retention of title or seizure of the delivered goods shall not imply withdrawal from the contract, unless expressly stipulated by the Seller in writing. KoWey may, at his discretion negotiate the recovered goods. The proceeds of sale shall be set off against the accounts owing by the Buyer to KoWey after deduction of a reasonable amount of expense incurred.

5. Provided no non-assignment clause has been agreed between the Buyer and the sub-purchaser, the Buyer shall be entitled to sell the goods to a third party within the ordinary course of the Buyer company's business. To this end the Buyer agrees that the rights and claims (including payment of VAT if any) he has against the sub-purchaser or third party emanating from the transaction, are to be transferred to KoWey whether the goods in question are sold in their original state or processed. Still provided that the Buyer did not fail to pay at the agreed time and no petition for insolvency or receivership has been filed, the Buyer shall be authorized to collect the receivables from the sub-purchaser or third party. KoWey shall nevertheless be entitled to request the Buyer to disclose the amount of the claim transferred to the KoWey and the name of the respective debtor, to provide all such details the KoWey may require collecting the debt, to convey to KoWey all pertinent documents and to inform the debtor (third party) about the assignment.

6. KoWey and the Buyer agree that should the Buyer process the delivered goods, such processing shall be without prejudice to KoWey's rights laid down in this Article. Should the delivered goods be mixed with other objects or in any way become a constituent of other objects which are not the property of KoWey, KoWey shall be given the ownership of this new object to the extend of the delivered goods' value at the time of processing. The Buyer also undertakes to transfer to KoWey all such rights and claims he may have against the sub-purchaser or third party if they emanate from the incorporation of the delivered goods into other objects, especially if those objects are real estate. Henceforth Buyer and KoWey agree that for all objects created by or derived from incorporation or processing, the terms and conditions stipulated in Article V.5 shall likewise apply.

7. KoWey undertakes – if the Buyer so requires - to agree into a gradual release of his title in as much as the value of his retained ownership exceeds his claims by 20%. The choice as to which item or portion shall be released remains with KoWey.

KoWey shall be liable for goods not conforming to the contract whether by reason of being defective or non- complying with expressly guaranteed qualities. Without prejudice to the Buyer's rights stipulated under Article VII.7, KoWey's liability shall be limited as follows, with any further claims being excluded:

1. KoWey shall at his sole discretion either repair or exchange free of charge all parts which within six months after commissioning prove to be not fit for the purpose stipulated or only fit for restricted use as a result of circumstances arising prior to the transfer of risks - in particular defects in design, construction materials or workmanship. Notification of such defects shall be given to KoWey in writing without delay. Property of the parts replaced shall pass upon KoWey. In the event of a delay in shipment or commissioning on account of circumstances beyond KoWey's control, he shall be deemed to be discharged from liability for defective supplies no later than 12 months after transfer of risks.

2. As per the Statute of Limitations, the Buyer's right to assert claims for defective supplies shall in all cases expire within 6 months from timely notice of defect, however, no sooner than upon expiry of the contractual warranty period.

3. Unless accountable to KoWey, no liability shall be assumed for damages caused by: improper or inappropriate use, faulty assembly and/or commissioning carried out by the Buyer or a third party, normal wear, improper or careless treatment, unsuitable consumables, chemical, electrochemical or electrical interference.

4. The Buyer shall give KoWey adequate time and opportunity to repair or replace rejected items to the extent KoWey may deem necessary after communication with the Buyer - otherwise KoWey shall be released from his respective liability.

5. In so far as the notice of defect proves to be justified, KoWey share in direct costs resulting from repair and/or replacement shall be limited to the replacement of the defective item including shipment. All other costs shall be borne by the Buyer.

6.The replacement part and the performed repair shall be warranted for three months or until expiry of the contractual warranty period covering the original supply, whichever occurs earlier.

7. KoWey's liability shall not be engaged for consequences resulting from inappropriate alterations or repairs carried out by the Buyer or third parties without KoWey's prior written approval.

8. Any further claims in particular those for damages not directly caused to the delivered goods are excluded. Exclusion of liability shall not prevail in the event of damages caused by intention or gross negligence of the owner, his executive officers or managing directors and if KoWey commits any material breach of the contract. In case of a material breach of his contractual obligations, KoWey liability shall be limited to damages that can reasonably be predicted within the terms of the contract, intention or gross negligence of the owner, his executive officers or managing directors being excluded.

Buyer may exercise his right to withdraw from the contract if, prior to the transfer of risks, KoWey's inability to perform the whole of his contractual services becomes apparent.

1. In the event of a delay as per the provisions of Article IV. of these Terms and Conditions, the Buyer may exercise his right to withdraw from the contract, provided the defaulting KoWey fails to meet with the final deadline after having been granted a reasonable grace period and explicitly notified by the Buyer of his intention to refuse acceptance of the delivery after expiry of the grace period.

2. Should KoWey's inability to perform occur during default of acceptance or due to circumstances beyond KoWey's control, the Buyer's obligation to pay shall remain in force.

3. The Buyer may exercise his right to cancel the contract, if KoWey to repair or replace defective supplies within the granted grace period.

4. Any further claims of the Buyer, especially those for redhibition, cancellation or reduction as well as for damages of any kind including those damages not affecting the delivered goods, are excluded. Exclusion of liability shall not prevail in the event of damages caused by intention or gross negligence of the owner, his executive officers or managing directors and if KoWey commits any material breach of the contract.

Unless otherwise agreed, KoWey's principal place of business shall be the place of performance.

1. Provided the Buyer is a registered trader, the parties agree to submit to the non-exclusive jurisdiction of KoWey's principal place of business notwithstanding KoWey's right to submit claims to the jurisdiction of the Buyer's principal place of business.

2. The contract shall be governed by and construed in accordance with the laws of Germany. Application of the UN Convention on Contracts for the International Sale of Goods - CISG - shall be excluded.