Kueper North America

T 843-723-7361
F 843-723-7362

Kueper North America
171 Church Street
Suite 300
Charleston, SC 29401

General terms and conditions

§ 1 Scope of the Terms of Delivery, Service and Payment

The following Terms of Delivery, Service and Payment apply to all deliveries of goods and provision of services by Küper GmbH & Co. KG (KÜPER) for companies, public law entities or special funds under public law. All - even future - legal relationships between KÜPER and the CLIENT are subject to the respectively applicable version of KÜPER?s Terms of Delivery, Service and Payment. Any provisions derogating from these terms, in particular Terms of Purchase of the CLIENT, are opposed to in their entirety and shall only become part of the contract if this has been expressly agreed to in writing.

§ 2 Offer and Confirmation of Order

1. Our offers are subject to confirmation and, as all agreements between KÜPER and the CLIENT, must be stipulated in writing. The documents that form part of the offer - illustrations, drawings, weights and dimensions - are only approximate values unless expressly termed binding. KÜPER reserves the right to the title and copyright to all quotations, drawings and other documents; they must not be made accessible to third parties.
2. A written confirmation of order from KÜPER - if issued - is decisive when it comes to the time, type and scope of the delivery of goods and provision of services as well as the respective price. Minor changes to the object or service provided in regard to the design, shape and features as well as parameters named in the description are permissible for technical reasons insofar as this does not impair the designated purpose, the quality and the functionality.

§ 3 Prices, Payments, Reduced Quantities, Samples

1. Prices, in the absence of any special agreement, are quoted ex works, inclusive of loading at the factory and commercial packaging for transportation by road. The value added tax is added in the respectively applicable statutory amount. If additional or increased levies, taxes or other direct and indirect charges - in particular duties, levies, currency conversion compensations - arise between the establishment of the agreement and the delivery due to a change of the trading name or jurisdiction, KÜPER is entitled to adjust the prices accordingly. If delivery and service deadlines of over four months were agreed to when signing the agreement KÜPER is entitled, in the event of increases in the cost of material or wages and on the basis of its original calculation of the price, to apply appropriate surcharges for the incurred increase in costs.
2. The delivery and return is carried out in any event at the cost and risk of the CLIENT. This applies even if KÜPER assumes the cost of transport or the transport per se.
3. All invoices - unless agreed otherwise in writing - are due with immediate effect and without deductions.  
4. Should KÜPER decide to accept bills of exchange or cheques then KÜPER shall accept these for reasons of processing only, and not in lieu of performance. KÜPER is entitled to withdraw at any given moment the respite implied in the acceptance of a bill of exchange and to demand immediate payment. Upon accepting bills of exchange the bank?s discount and collection fees as of the expiry date of the invoice will be calculated and are payable in cash with immediate effect.
5. The retention of payments due to claims, or offsetting these against claims are only permissible for the CLIENT if the claim(s) of KÜPER have been recognised and is/are final and absolute.

§ 4 Period of Delivery

1. Agreed delivery dates and performance deadlines are non-binding for KÜPER unless expressly determined otherwise in the written confirmation of order.
2. The delivery period commences upon the moment of sending the confirmation of order, however not prior to producing the items, documents, permits and approvals to be procured by the CLIENT as well as before receiving an agreed down payment. If elements to be procured by the CLIENT are not supplied by the agreed deadline, or are supplied but not free of defects, the period of delivery is extended for every month started by one month, plus a further month.
3. The period of delivery is deemed to have been observed if until its expiration the item to be delivered has left the factory or its readiness for dispatch has been communicated.  
4. The period of delivery is extended accordingly in the event of measures affected by industrial action, in particular strike and lock-out, as well as if unforeseen obstacles occur which lie beyond the influence of KÜPER, provided that it can be proven that such obstacles bear a considerable impact on the production or delivery of the item to be supplied. This applies equally if such circumstances arise at sub-contractors. KÜPER can not be held responsible for the aforementioned circumstances if they occur in the course of an already existing delay. KÜPER shall communicate the beginning and end of such obstacles in important cases as soon as possible to the CLIENT. In the event of a delay in delivery of less than two months, compensation for default is exempt. Moreover or in cases in which the payment of compensation is mandatory, the following applies:
5. If the CLIENT suffers damage as a result of a delay that occurred due to a fault on behalf of  KÜPER, then the CLIENT is entitled, excluding any further claims, to demand compensation for default. Such compensation amounts to 0.5% for every full week of default, and in totality to a maximum 5% of the value of such part of the overall delivery which, as a result of the delay, can not be used on time or as stipulated by the agreement.
6. If shipping is delayed upon the request of the CLIENT then the CLIENT will be charged the costs that arise for such storage beginning one week following the notification of the readiness for dispatch, and if stored at the KÜPER factory a minimum 0.5% of the invoice total for every month of storage started. However, KÜPER is entitled, after setting and the fruitless expiration of an appropriate deadline, to dispose differently of the item to be delivered and to supply the CLIENT accordingly by a suitably extended deadline. Further claims, especially any rights arising from Section 293 f. (304) of the German Civil Code (Bürgerliches Gesetzbuch - BGB) remain intact, taking into account the performance of the CLIENT.  The same applies to the CLIENT?s rights resulting from Sections 280 ff. BGB as well as for the claim for performance.
7. Compliance with the delivery date prerequisites fulfilment of the CLIENT's contractual duties.

§ 5 Passing of Risk and Acceptance

1. The risk shall pass to the CLIENT no later than at the moment of furnishing the delivered parts, i.e. at the start of loading at the staging area at KÜPER even if partial deliveries are effected or if KÜPER has accepted the provision of other services, such as assuming the shipping costs or transport and assembly. Upon the CLIENT's request and at the CLIENT's expense KÜPER shall insure the delivery against theft and damage caused through breakage, during transport, by fire or water as well as against any and all other insurable risks.
2. If the dispatch is delayed due to circumstances for which the CLIENT can not be held responsible, then the risk shall pass to the CLIENT on the day on which the delivery is ready to be dispatched; however, KÜPER shall undertake at the request and for the account of the CLIENT to take out the insurance which the CLIENT requests.
3. Delivered items, even if they bear minor defects, are to be accepted by the CLIENT irrespective of the rights resulting from Section 11.  
4. Partial deliveries are permissible.

§ 6 Refusal of Acceptance

1. If the CLIENT refuses to accept the object of the agreement, the goods delivered or the service rendered, then KÜPER may issue to the CLIENT an appropriate deadline for such acceptance. If the CLIENT has not accepted the object of the agreement within the deadline set, then KÜPER, regardless of its right to the performance of the contract, is entitled even without setting a deadline to rescind the contract and/or demand damages for non-fulfilment. In any event KÜPER may demand even without submitting proof of the actual damage that has been caused and regardless of the possibility of enforcing a higher actual claim, in general 25%, for special orders 50% of the agreed price as lump-sum payment for damages. The CLIENT reserves the right to demonstrate and prove lower damages.
2. If the acceptance has been agreed or is mandatory then KÜPER is in any event entitled to apply for the acceptance if there are no more major defects and the functionality and operability are guaranteed. Major defects according to the order confirmation constitute such defects that challenge or materially impair the capability. In such a case KÜPER shall submit to the CLIENT several possible acceptance deadlines. The CLIENT must receive such a proposal at least two weeks prior to the deadlines aimed at. If none of these proposed acceptance dates is confirmed by the CLIENT within a minimum two days before such a date and if the CLIENT does not propose on its behalf any other date that lies within a four-week scope following receipt of the proposal from KÜPER, then acceptance is deemed to have been pronounced.

§ 7 Reservation of Title

1. All goods are delivered and all services are rendered subject to the reservation of title. Goods that have been delivered remain the property of KÜPER until the full settlement of the purchase price / of the fees and all other claims of KÜPER against the CLIENT from the current business relationship.
2. If the CLIENT processes or uses goods then such processing is performed on behalf of KÜPER, which is thus deemed the manufacturer in terms of Section 950 BGB and which acquires the title to the interim or final product. When processing jointly with other goods to which the CLIENT does not hold the title, KÜPER acquires co-ownership to the new item at a ratio of the value of such good that it supplied to the value of the foreign product at the moment of processing. The same applies in the case of combinations with other items regardless of whether they are owned by the CLIENT or third parties.
3. The CLIENT is at all times entitled to revocably resell products that have been delivered within the framework of agreements made within the framework of its ordinary business operations. The CLIENT already cedes to KÜPER as a precaution all claims, inclusive of subsidiary rights, in the amount of the value of the respectively delivered goods that are connected to the resale arising from the business relationship with its buyers.  KÜPER accepts such cessation. The CLIENT is revocably entitled and obliged to indicate at any time the claims thus ceded.
4. KÜPER is entitled but not obliged to insure the good to be delivered at the expense of the CLIENT against theft and damage as a result of breakage or caused by fire or water, or otherwise, unless the CLIENT can prove that it took out insurance.
5. The CLIENT shall neither pledge the good to be delivered nor assign it by way of security. In the event of attachment or confiscation or other disposal on behalf of a third party the CLIENT shall immediately notify KÜPER. Should KÜPER, as a result of omitted or late notifications, suffer damages (e.g. due to losing a right), the CLIENT is liable to pay compensation for this.
6. If the CLIENT breeches the contract, especially in the event of a default of payment, KÜPER is entitled to take back the goods following a reminder, and the CLIENT is obliged to hand over the goods.
7. The enforcement of a reservation of title or attachment of the delivery item by KÜPER is not deemed a rescission of this contract.
8. KÜPER shall undertake to release the securities to which it is entitled upon the CLIENT?s request insofar as the value of the security that can be realised exceeds the claims to be secured by more than 20%. It is for KÜPER to choose which securities shall be released.

§ 8 Liability

1. The CLIENT's right to request compensation for damages as a result of no-fault claims is limited to cases of  
- intent, gross negligence of KÜPER, its legal representatives or vicarious agents;
  - negligent non-observance of crucial contractual obligations (cardinal obligations);
- fraudulent concealment of a defect;
- the culpable injury to life, body or health on behalf of KÜPER, its legal representatives or vicarious agents or
- defects in the items delivered and services rendered insofar as the Product Liability Act provides for liability for personal injury and damage to privately used property.
2. In the event of the negligent non-observance against crucial contractual obligations (cardinal obligations) the claim is limited to the amount of the claim typically foreseeable according to the contract.
3. Further claims for damages are excluded.
4. Insofar as there are claims for damages against KÜPER or its vicarious agents, these claims are statute-barred within a period of one year as from the statutory limitation period.

§ 9 Property Rights / Copyrights / Secrecy

1. All rights to patents, utility models, registered designs, trademarks, features and other property rights and copyrights for the object of the agreement and services remain with the owners of the rights. This applies in particular to product designations, software and naming rights.
2. The parties to the contract shall undertake to treat all commercial and technical details that are not immediately apparent and of which they learn in the course of the business relationship as a business secret.
3. Drawings, tools, software, shapes, devices, models, templates, samples and similar items that are supplied, used or provided by or for KÜPER are and remain the property of KÜPER. They must not be passed or made accessible in any way to unauthorised third parties. If the aforementioned items are produced for KÜPER they shall become the property of KÜPER during the production or making of the same already. The manufacturer shall mediate the ownership. The reproduction of such items is only permissible within the framework of operational requirements and subject to patent law, trademark law, copyright law and competitive law provisions.
4. Contract partners of the CLIENT are to be obliged accordingly by the CLIENT.
5. The CLIENT may only advertise its business relationship with KÜPER following the prior written approval.

§ 10 Conflict with Third-party Rights

1. If third parties call upon the CLIENT for reasons of a direct violation of property rights, including copyrights resulting from the delivery of goods and/or provision of services on behalf of KÜPER then KÜPER shall release the CLIENT in regard to the claims from damages recognised or ascertained by settlement against KÜPER as well as in regard to the court fees and lawyers? fees; this, however, only subject to the following requirements:
a) The CLIENT shall immediately notify KÜPER of the demand or warning of a third party without having previously initiated any steps of a defence and/or having referred to a lawyer. This does not refer to instant measures that must be initiated before being able to notify KÜPER.
b) Only KÜPER is entitled to introduce defence measures and to entrust lawyers with defensive measures and/or the issue of declarations and/or other negotiations. Upon the request of KÜPER the CLIENT shall commission a lawyer with the representation at the expense of KÜPER.
c) The CLIENT shall immediately notify and regularly update KÜPER of the matter and shall in particular provide the necessary information and documents promptly.
2. The liability of KÜPER is waived if the violation of a third party right results from the modification of the object of the agreement or of parts thereof, if the object of the agreement itself does not substantiate a violation of rights. Moreover, liability shall be waived in the event that the CLIENT, following a warning of a third party, or fully aware of a potential violation of third party rights, continued to use the object of the agreement unless KÜPER approved in writing of such further utilisation.
3. In case of a final judgement stating that any further use of the object of the agreement violates third-party property rights, including copyrights, or if according to the CLIENT's opinion there is the risk of a lawsuit for property right or copyright infringement KÜPER may, at its own expense and at its own discretion, either procure to the CLIENT the right to continue to use the object of the agreement or exchange the object of the agreement or modify it as such that the violation is revoked or at least seems less likely. Such measures do not entitle the CLIENT in any manner to enforce any type of claim against KÜPER.

§ 11 Defects, Guarantee

For defects as to the quality or title of the goods delivered or service rendered which are properly and promptly reprimanded, KÜPER shall guarantee subject to the exclusion of any further claims and Section 8 - Warranty, as follows:
1. All such goods delivered and services rendered are to be either repaired or replaced free of defects and free of charge at the discretion of KÜPER which, as a result of a circumstance that arose prior to the moment of the passing of risk, emerged to be defective. The ascertainment of such defects must be indicated instantly to  KÜPER in writing. Parts that have been replaced become the property of KÜPER.
2. To perform all repairs and/or substitute deliveries that seem necessary according to KÜPER the CLIENT, following communication with KÜPER, shall provide for the necessary time and opportunity; otherwise KÜPER is released from the liability arising from the resulting consequences. Only in urgent cases that pose a threat to the operational safety or to avert a disproportionately large damage, whereby KÜPER shall be notified immediately, the CLIENT has the right to remedy the defect itself or have it remedied by third parties and to demand that KÜPER reimburse the necessary expenses.
3. Of the direct costs arising as a result of the repairs or substitute delivery carried out by KÜPER, KÜPER shall bear - insofar as the complaint should be justified - the cost of the substitute item inclusive of shipping to the original shipping destination. Reasonable installation and fitting costs will be reimbursed in line with statutory provisions. The amount of the reimbursement is limited to the gross list price of the delivered good and service rendered. Should the substitute part be a commodity which is subject to regular wear (e.g. screen bottoms for screening gravel) and if prior to exchanging the part, partial wear has already been established, then the wear that occurred regardless of the defect is to be taken into consideration when determining the entitlement to a reimbursement of costs.
4. If the defect is only minor then the CLIENT is merely entitled to the right of reduction of the contractually agreed price.
5. In other regards the CLIENT's claims against KÜPER in their totality or in regard to individual parts are limited to the right of supplementary performance. Merely in the event of recurrently failed supplementary performance may the CLIENT, at its discretion, either reduce the price or rescind the contract.
6. A guarantee is not assumed in particular in the following cases: Inappropriate or improper use; faulty assembly that is especially not state of the art; commissioning and/or improper use on behalf of the CLIENT or third parties; natural wear; faulty or negligent treatment; improper maintenance; unsuitable operating material; defective construction work; soil unsuitable for construction; chemical, electro-chemical or electrical influences unless KÜPER is in charge of these. Also, guarantee is not assumed for consumables, regular wear and damage due to inadequate storage of the products, especially contrary to DIN 7716 (storage of rubber products) as well as for the disadvantageous modification of the products which are not based on production defects, but which are due to the products' natural ageing.
7. Such quality of the product is as a rule deemed agreed which complies with those quality characteristics listed in the manufacturer's concrete product description based on which the contract was formed. Public statements, promotions or advertisements of the manufacturer or of third parties do not represent quality characteristics of the goods in accordance with contractual stipulations.
8. For the substitute part and the later amendment the period of guarantee amounts to six months; however, at least until expiration of the original guarantee period for the delivered good.
9. As a result of modifications or repairs improperly carried out by the CLIENT or third parties without the prior approval of KÜPER the liability for the resulting consequences is annulled. In these cases the guarantee obligation of KÜPER expires in full unless the CLIENT can prove that such modifications or repairs did not cause the damage in question.
10. The guarantee period for all deliveries and services is 1 year as from the start of the statutory limitation period.

§ 12 Place of Fulfilment and Jurisdiction

The place of fulfilment for goods delivered and services rendered as well as the place of jurisdiction for all liabilities and disputes arising from or in conjunction with the contractual relationship is the head office of KÜPER or - at its discretion - the place of such KÜPER branch handling the delivery/service. KÜPER is alternatively also entitled to sue at the head office of the CLIENT or at the place of the performance. The laws of the Federal Republic of Germany apply, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The language of the contract is German.

§ 13 Written Form

Additional agreements, as a rule, only become valid if they have been stipulated in writing. Amendments and/or supplements must be stipulated in writing. This applies even to the waiver of this written form requirement.

§ 14 Severability Clause

1. Should a provision of these terms be or become invalid or should the terms contain an omission, then this does not affect the legal validity of the remaining provisions.  
2. Instead of such invalid provision such valid provision is deemed to be agreed which comes closest to what the parties had intended; the same applies in the event of an omission.