Sales Terms and Conditions K67 Berlin UG
§ A.1 General; scope of application
(1) The Sales Terms and Conditions (“T/C”) of K67 Berlin UG, Leipziger Straße 61, 10117 Berlin, Germany, set out below shall form part of all sales agreements concluded between us and the Customer and apply in particular to contracts for the sale and/or delivery of K67 kiosks (“kiosks”), irrespective of whether these are used and restored or newly manufactured. The T/C consists of this general part which applies to all types of contracts and a special part depending on the type of contract concluded (sale of newly manufactured kiosks or sale of used and restored kiosks).
(2) The T/C apply to all our business relationships with our customers (“Customer”). The T/C only apply if the Customer is an entrepreneur with respect to § 14 German Civil Code (BGB), a legal entity under public law or a special fund under public law.
(3) Our T/C apply exclusively. We hereby object to any counter confirmation, counter-offer or other reference by the Customer to its terms and conditions; any dissenting terms and conditions of the Customer shall only apply if we have confirmed the same explicitly in writing. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Customer without reservation in the knowledge of the Customer’s terms and conditions.
(4) Unless otherwise agreed, the T/C in the version valid at the time of the Customer’s order or in any case in the version last notified to him in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
(5) The legal relationship between us and the Customer shall be governed solely by the written sales Contract, including these T/C. This Contract fully reflects all agreements between the contracting parties on the subject matter of the Contract. Verbal promises made by us or our agents prior to the conclusion of this contract are not legally binding and verbal agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding.
§ A.2 Conclusion of Contract
(1) Our offers are subject to change and non-binding unless they are explicitly marked as binding or contain a specific acceptance period. This also applies if we have provided the Customer with catalogues, technical documentation or other product descriptions or documents (in written or electronic form) on the kiosks.
(2) Orders placed by the Customer are binding. They shall only be deemed to have been accepted when we have confirmed them in writing. We may accept orders within 14 days after receipt. If we do not specifically confirm in writing a contract concluded orally or by telephone, the invoice issued by us shall be deemed to be the confirmation.
§ A.3 Copyright
(1) The kiosks are a work of applied art and as such protected by copyright. The sole author is Slovenian architect and designer Saša J. Mächtig. We hereby guarantee that we are fully authorized to represent the author.
(2) Unless otherwise stipulated in these T/C and unless legal exceptions apply, any form of exploitation of the kiosks requires our written consent. A grant of rights of use is associated with the sales Contract only insofar as regulated in the following paragraphs.
(3) The Customer is granted the non-exclusive, transferable right to use the delivered kiosk as a means of point of sale or as a piece of furniture and to exhibit the kiosk in private or public, without any limitations to place or time.
(4) The Customer is only granted the non-exclusive, transferable right to make reproductions of the kiosk in the form of pictures, videos or paintings and distribute them to the public, without any limitations to place or time. The Customer shall name the author on every such reproduction (for example: © Saša J. Mächtig). The Customer is explicitly not granted the right to make reproductions of the kiosks itself or parts thereof.
(5) The Customer is allowed to resell or sublet the kiosk to a third party provided that he immediately informs us of the name and the address of the new owner or tenant.
(6) We shall remain entitled to prohibit any distortion or other impairment of the kiosk which is likely to jeopardise the author’s legitimate intellectual or personal interests in the work. The Customer may not destroy the kiosk without first granting us the opportunity to collect the kiosk by setting a deadline of at least three months to collect the kiosk. If we decide to collect the kiosk, the Customer shall transfer it to us free of charge. The cost of the collection shall be borne by us. Distortion, impairment or destruction of the kiosk in breach of the aforementioned obligations violates the author’s moral rights and obliges the Customer to compensate for immaterial damage.
§ A.4 Shipment and delivery
(1) The delivery shall be made ex warehouse, which is also the place of performance for all obligations arising from the Contract unless otherwise specified. At the request and expense of the Customer, the kiosk shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. (2) The risk of accidental loss and accidental deterioration of the kiosk shall pass to the Customer at the latest when the kiosk is handed over. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the kiosk as well as the risk of delay shall pass to the Customer as soon as the kiosk is delivered to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
(3) The kiosk shall be transported uninsured. Any transport insurance shall be provided only upon express demand of the Customer. Any costs arising therefrom shall be at the expense of the Customer only.
(4) If the Customer provides the means of transport, then it shall be responsible for its availabiltity on time. We shall be informed immediately of any delays. Any costs arising therefrom shall be at the expense of the Customer only.
(5) If the Customer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the Customer is responsible, we are entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation per calendar day, depending on the size and type of the kiosk and starting with the delivery deadline or in the absence of a delivery deadline – with the notification that the kiosk is ready for dispatch. The proof of a higher damage and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum is to be credited against further monetary claims. The Customer is permitted to prove that we have not incurred any damage at all or only a significantly lower damage than the aforementioned lump sum.
§ A.5 Delivery period and delays
(1) The delivery dates shall be agreed upon individually or stated by us upon acceptance of the order. If shipment has been agreed, delivery deadlines and delivery dates refer to the time of the handover to the forwarder, carrier or other third party commissioned with the transport.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Customer of this without delay and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery deadline, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the Customer. A case of non-availability of the performance in this sense shall be deemed to be, in particular, the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
(3) We are not liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the Contract, including but not limited to operational disruption of all kinds, difficulties in the procurement of materials, war, terrorist conflict, strike, epidemics/ pandemics, acts of public authorities, subsequent cease of export or import opportunities, fire damages, floods and our reservation of timely supply from our own suppliers in accordance with subsection (2), for which we are not responsible. Insofar as such events make it significantly more difficult or impossible for us to deliver, and the hindrance is not only of temporary duration, we are entitled to withdraw from the Contract. In the event of hindrances of temporary duration, the delivery deadlines shall be extended or the delivery deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Customer cannot reasonably be expected to accept the delivery as a result of the delay, he may withdraw from the Contract by means of an immediate written declaration to us.
(4) If any agreed time of delivery or unloading shall be exceeded and there shall be no incident referred to in subsection (3) above, then the Customer must specify to us a reasonable cure period of minimum two weeks. If we shall fail to meet such deadline also, then the Customer shall have the right to rescind the Contract but shall have no right to seek compensation for breach of contract or default unless in cases of willful misconduct or gross negligence on our part. Unless the default has not been caused by willful misconduct on our side, the liability to compensation of damages is limited to predictable damage typically caused by such incident.
(5) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. If we are in delay with a delivery our liability for damages shall be limited in accordance with § A.8.
§ A.6 Prices and payment conditions
(1) The prices apply to the scope of services and deliveries listed in the relevant Contract.
Additional or special services or deliveries will be charged separately. The prices are quoted in EUR ex warehouse excluding packaging, transport and transport insurance in the case of a sale by delivery to a place other than the place of performance, the statutory value added tax (VAT) at the time of delivery, customs duties for export deliveries as well as fees and other public charges.
(2) We are entitled to demand an advance payment before delivery of up to 10 % of the overall price.
(3) Invoice amounts are to be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of receipt by us shall be decisive for the date of payment. If the Customer fails to make payment when due, the outstanding amounts shall be subject to interest of 5% p.a. from the due date. The assertion of higher interest and further damages in the event of default shall remain unaffected.
(4) Offsetting with counterclaims of the Customer or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established or arise from the same order under which the delivery in question was made.
§ A.7 Retention of Title (1) We retain title to the kiosk until receipt of all payments arising from the business relationship in full. In case of breach of contract by the Customer including, without limitation, default in payment, we are entitled to take possession of the kiosk.
(2) The Customer shall handle the kiosk with due care, maintain suitable insurance for the kiosk (including, but not limited to water, fire and theft insurance) and, to the extent necessary, service and maintain the kiosk.
(3) The Customer shall inform us immediately if the kiosk becomes subject to the rights of third persons, in the case of seizure or other interventions by third parties so that we can take necessary legal action.
(4) The Customer shall have the right to resell the kiosk delivered by us within the ordinary course of business. For this case, the Customer hereby assigns all claims arising out of such resale to us. We accept the assignment. Notwithstanding our right to claim direct payment the Customer shall be entitled to receive the payment on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the Customer complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments. If such a case occurs, we may demand that the Customer informs us of the assigned claims and their debtors, provides us with all information necessary and informs the debtors of the assignment.
(5) Insofar as the above securities exceed the secured claim by more than 10 %, we are obligated, upon our election, to release such securities upon the Customer’s request.
§ A.8 Liability for damages
(1) Our liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this § A.8, insofar as fault is relevant in each case.
(2) We shall not be liable in the event of simple negligence on the part of our corporate bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver the kiosk in due time, its freedom from defects of title as well as such material defects that impair its functionality or usability more than insignificantly, as well as advisory, protective and custodial obligations that are intended to enable the Customer to use the delivery item in accordance with the Contract or are intended to protect the life and limb of the Customer’s personnel or to protect the Customer’s property from significant damage.
(3) Insofar as we are liable on the merits for damages in accordance with subsection (2), this liability shall be limited to damages which we foresaw as a possible consequence of a breach of Contract at the time of conclusion of the Contract or which we should have foreseen by exercising due care. Indirect damage and consequential damage which are the result of defects in the kiosk are also only eligible for compensation insofar as such damage is typically to be expected when the kiosk is used as intended. (4) The above exclusions and limitations of liability shall apply to the same extent in favor of our corporate bodies, legal representatives, employees and other vicarious agents.
(5) The limitations of this § A.8 do not apply to our liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
§ A.9 Other Provisions
(1) The invalidity of any provision of these T/C shall not affect the validity of the other provisions. Invalid provisions shall be deemed to be replaced by such valid provisions that shall be suitable to implement the economic purpose of the deleted provision to the greatest extent possible.
(2) Supplements and amendments to the Contract, including these T/C, must be in writing in order to be effective. This also applies to the amendment of this written form clause.
(3) The law of the Federal Republic of Germany shall apply to these T/C and the contractual relationship between us and the Customer to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
(4) The Courts of Berlin shall have jurisdiction over all disputes arising from this Agreement.
Special Terms and Conditions for Sales of newly manufactured kiosks
§ B.1 Scope of Application
These Special Terms and Conditions for Sales of newly manufactured kiosks apply to the sale of all kiosks which have been newly manufactured by us or by a third party commissioned by us.
§ B.2 Warranty
(1) Precondition for any warranty claim of the Customer is the Customer’s full compliance with all requirements regarding inspection and objection established by sec. 377 HGB (German Commercial Code). The kiosk is to be carefully inspected immediately after delivery to the Customer or to the third party designated by the Customer (the inspection can also take the form of the joint completion of a handover protocol). With regard to obvious defects or other defects that would have been recognisable in the course of an immediate, careful inspection, it shall be deemed to have been approved by the Customer if we do not receive a written notice of defects within seven working days after delivery. With regard to other defects, the kiosk is deemed to have been approved by the Customer if the notice of defect is not received by us within seven working days after the time at which the defect first became apparent; however, if the defect was already apparent at an earlier point in time during normal use, this earlier point in time is decisive for the start of the period for giving notice of defect. If the Customer fails to properly inspect the kiosk and/or give notice of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.
(2) The statutory provisions shall apply to the rights of the Customer in the event of material defects and defects of title unless otherwise stipulated below.
(3) The warranty period shall be one year from delivery. This period shall not apply to claims for damages by the Customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by us or our vicarious agents, which shall in each case be time-barred in accordance with the statutory provisions.
(4) In the event of material defects in the kiosk, we shall first be obliged and entitled to rectify the defect or to make a replacement delivery at our discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Customer may withdraw from the Contract or reduce the purchase price appropriately.
(5) We are entitled to make the subsequent performance owed dependent on the Customer paying the purchase price due. However, the Customer is entitled to retain a reasonable part of the purchase price in relation to the defect.
(6) The Customer must give us the time and opportunity necessary for the subsequent performance owed, in particular access to the kiosk in question.
(7) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions,if there is actually a defect. Otherwise, we may demand reimbursement from the Customer (in particular inspection and transport costs) arising from the unjustified request to remedy the defect, unless the lack of defectiveness was not recognisable to the Customer.
(8) If a defect is due to a fault of ours, the Customer may claim damages only under the conditions set out in § A.8. ☐
Special Terms and Conditions for Sales of used and restored kiosks
§ C.1 Scope of Application
These Special Terms and Conditions for Sales of used and restored kiosks apply to the sale of all kiosks which are used and restored.
§ C.2 Condition of the kiosk
The customer is aware that the object of sale is a used and restored kiosk. The kiosk shows age-appropriate signs of use which are listed in the separate handover protocol to the Contract.
§ C.3 Warranty
The kiosk is sold without any guarantee and to the exclusion of any warranty. This does not apply in the case of intentional or grossly negligent breach of obligations, fraudulent concealment of defects or the assumption of a guarantee for the condition of the kiosk as well as in the case of injury to life, body and health of the Customer.