General Terms & Conditions

KÜS-Technik GmbH

Version dated: 24/04/2024

§ 1 Scope of these terms and conditions

1.
Contracts with KÜS Technik GmbH are only concluded in keeping with the following terms and conditions. Contrary or different conditions of the contract partner will not be accepted unless expressly confirmed in writing.

2.
These terms and conditions apply to all services provided by KÜS Technik GmbH and all obligations arising from the contractual relationship with the client. Where entrepreneurs and legal entities under public law are concerned, these terms and conditions also apply to all future business relations.

§ 2 Contract conclusion

Orders placed with KÜS Technik GmbH and by KÜS Technik GmbH with contractors only become binding upon their confirmation in writing. Order changes, order amendments and side agreements require a written confirmation as well.

§ 3 Services provided by KÜS Technik GmbH

1.
KÜS Technik GmbH provides its services in keeping with the recognized rules of engineering, impartially, regardless of economic and financial influences, and equally to all clients.

2.
KÜS Technik GmbH can also provide its contractual services by means of contractually involved assessment personnel vested with the respectively required powers of inspection.

3.
The service scope and fee of KÜS Technik GmbH are exclusively based on the definitions laid down in writing upon order placement. If a need to adjust the scope of work and thus also the fee emerges in the order execution, KÜS Technik GmbH and the client will agree a commensurate adjustment of the scope of work and fee in writing. If no commensurate adjustment of the scope of work and fee can be agreed, or adherence to the contract is unacceptable for either contracting party for this reason, this party has a right to withdraw. In this case the client needs to pay an adequate fee for the services provided by KÜS Technik GmbH until such withdrawal.

§ 4 Order execution and client duty to cooperate

1.
KÜS Technik GmbH merely owes the services precisely detailed contractually insofar as not explicitly agreed otherwise. These services are provided in keeping with the principles detailed in § 3.

2.
If the appropriate execution of an order requires an act of cooperation on the part of the client, the client is obliged to perform it in due time and at the client’s own expense. Expenses will only be reimbursed to the client where this has been explicitly agreed in writing. Should the client fail to fulfil its cooperation duties altogether or in due time or form, KÜS Technik GmbH is entitled to invoice the client with the resulting additional expense. The right to assert further legal claims remains reserved.

3.
The client undertakes to inform the contractor beforehand in writing of all assessment-relevant processes and circumstances required for due order execution.

4.
DKÜS Technik GmbH accepts no liability for the correctness of the laws, guidelines and standards underlying the orders.

5.
KÜS Technik GmbH is entitled to freely decide the assessment method and type at its workmanlike discretion.

6.
Auxiliary services that are required or useful for the assessment must be provided to KÜS Technik GmbH by the client, or by a third party in the client’s name, free of charge. The client is obliged to make every reasonable effort necessary to provide the required or useful auxiliary services. In the provision of such auxiliary services, the client is required to monitor and observe the applicable statutory or official regulations.

§ 5 Deadlines and due dates

Order deadlines and due dates are only binding insofar as agreed in writing. Where this is not the case, KÜS Technik GmbH will only be in default with its performance obligation if the client has beforehand fruitlessly set it a reasonable deadline in writing for providing the owed service. Irrespective of this, set time periods only start upon the full provision of all auxiliary services owed by the client, and upon receipt of any advance payment agreed. If the client fails to perform the required acts of cooperation in time or expresses retrospective wishes for changes, the performance periods will be extended accordingly.

§ 6 Prices and payment terms

1.
The fees quoted by KÜS Technik GmbH are decisive for orders executed by KÜS Technik GmbH. These fees include the respective statutory VAT. Invoices made out by KÜS Technik GmbH become due without deductions immediately upon invoicing unless agreed otherwise in writing.

2.
Set-off and the assertion of retention rights based on counterclaims are only permitted where the counterclaim is undisputed or has been determined without further legal recourse.

3.
If in default of payment, the client owes default interest of 5 % above the base rate. This does not apply insofar as KÜS Technik GmbH is able to prove higher default damages. Should the client default, KÜS Technik GmbH can make the execution and/or further execution of the order conditional upon further payments by the client. If the client continues to default on the payment of an invoice despite the setting of a grace period, KÜS Technik GmbH can withdraw from current contracts and/or claim damages.

§ 7 Confidentiality

1.
KÜS Technik GmbH undertakes to keep all business and trade secrets it gains knowledge of confidential and not disclose or utilize them unauthorizedly outside the execution of the order. The collected data are processed in keeping with the respectively applicable legal basis. This also applies to any data sent to KÜS Technik GmbH in writing or electronically for order execution purposes, as well as the results of tests and contents of expert opinions.

2.
KÜS Technik GmbH is entitled to create copies and/or records for documentation purposes of any documents and information provided to it in writing or electronically, and keep them in its archive. KÜS Technik GmbH will also comply with the respectively applicable legal basis in this respect.

3.
The client is only permitted to use the test certificates, identifications of deficiencies, test reports or other documents created by KÜS Technik GmbH for the contractually agreed purpose.

4.
The client permits KÜS Technik GmbH to use the data collected and findings made in the assessment activity in an anonymized form in the internal and external knowledge sharing insofar as necessary.

5.
Data subjects can view all the details of KÜS Technik GmbH’s processing of personal data at https://www.kues-technik.de/datenschutz/. KÜS Technik GmbH’s data protection officer can be reached by email to datenschutz@kues.de and by mail addressed to: KÜS-Bundesgeschäftsstelle, Datenschutzbeauftragter, Zur KÜS 1, 66679 Losheim am See.

§ 8 Copyrights

The client is not entitled to share or utilize the output of KÜS Technik GmbH over and beyond the contractually agreed purpose, and particularly to publish it. This always requires previous permission by KÜS Technik GmbH in writing. In the use of KÜS Technik GmbH output for advertising statements, the client needs to release KÜS Technik GmbH from all third-party claims under competition law.

§ 9 Warranty

1.
If defects occur within the statutory warranty period, KÜS Technik GmbH can initially exercise its right to subsequent performance. Subsequent performance is either provided by remedy (rectification) or new creation of the work (redelivery) at KÜS Technik GmbH’s own discretion. Should the subsequent performance fail, the client is entitled to demand a reduction or withdraw from the contract at the client’s discretion.

2.
If defects are only minor, the client is not due any right of withdrawal, however. The same applies insofar as KÜS Technik GmbH is not answerable for the breach of duty underlying a defect.

3.
The client is required to immediately inform KÜS Technik GmbH in writing of every discovery of obvious defects relating to the performance of the assessment activities.

4.
Damage compensation claims arising from warranty liabilities remain unaffected.

§ 10 Liability

1.
Irrespective of the legal grounds, KÜS Technik GmbH is only liable for damages caused by its employees if they caused them by deliberate intent or gross negligence. All damage compensation claims over and beyond this are excluded. Excepted from this are damages arising from injury to life, body and health. The client is required to immediately inform KÜS Technik GmbH in writing of any damages KÜS Technik GmbH is liable for or have them assessed by KÜS Technik GmbH.

2.
We do not accept any liability for damages arising from force majeure. To be regarded as force majeure are unforeseeable events that are unpreventable by the customary due care such as power failures, fires, explosions or similar occurring in our organization for no fault of our own.

3.
The client is required to take out the customary insurance policies against direct or indirect damages.

§ 11 Termination

1.
The contract can be terminated in writing by either party at any time for cause.

2.
Should the assignment be ended before the full provision of the services assigned to us – for example by the client terminating, or cancellation by mutual consent – we are entitled to charge a fee for the services provided until that point, with the fee amount for the provided services based on the ratio between the actually provided services and the services not provided. If we have provided 70 % of the assigned services by the time of the assignment being ended, for example, we would be entitled to 70 % of the total agreed fee accordingly.
We are also entitled to claim a fee for the services not provided by the termination date. This fee equals the value of the services not provided in relation to the total price minus incurred expenses, with the saved expenses set to 30 % in general.

3.
Cause is provided for the client if KÜS Technik GmbH repeatedly commits gross breaches of its contractual duties.

4.
Cause is especially provided for KÜS Technik GmbH if the client refuses the necessary cooperation, and if the client attempts to inadmissibly distort the result of an expert opinion or other service provided by KÜS Technik GmbH upon a deterioration of the client’s assets or defaulting on debt.

§ 12 Final provisions

1.
All legal relations with clients are governed by the laws of the Federal Republic of Germany.

2.
The place of fulfilment for all services arising from the contractual relationship is the location of KÜS Technik GmbH.

3.
The exclusive place of jurisdiction for all disputes arising from the contractual relationship is the location of KÜS Technik GmbH insofar as the client is a merchant within the meaning of the German commercial code, a legal entity under public law, or a special fund under public law.

4.
In all other respects, the place of jurisdiction for all claims of KÜS Technik GmbH against the client is the client’s place of residence insofar as the client is not a merchant.

5.
If the client has no place of general jurisdiction in Germany, the exclusive place of jurisdiction is the location of KÜS Technik GmbH.

6.
Should a provision of these terms and conditions be or become ineffective or should they turn out to contain a loophole, the validity of the remaining provisions will not be affected as a consequence. In this case the client and KÜS Technik GmbH will undertake to approximate the intended purpose by agreeing a substitute clause.