General Terms and Conditions of Delivery and Payment

for contracts concerning the purchase of elevators and elevator components via the “ProKon” configurator or in any other way

  1. by persons who, when concluding the contract, act in the course of their commercial or independent professional activity (entrepreneurs), or
  2. by legal entities under private law or public law, or by a special fund under public law.

§ 1 General

  1. Unless overriding individual conditions or special terms of delivery and payment have been agreed, all deliveries and services are subject to these General Terms and Conditions of Delivery and Payment. Deviating purchasing conditions of the buyer shall not become part of the contract, even if the order is accepted.
  2. Regardless of whether the buyer has requested the offer from Kohler Fördertechnik GmbH via the configurator or in another manner, the contract is concluded upon written or configurator-based acceptance of the offer by Kohler Fördertechnik GmbH.
  3. Kohler Fördertechnik GmbH reserves ownership and copyright rights to all offer documents, cost estimates, drawings, samples, and similar information, whether of a physical or non-physical nature – including in electronic form – and such materials may not be made accessible to third parties. In return, Kohler Fördertechnik GmbH undertakes to make information and documents designated by the buyer as confidential accessible to third parties only to the extent required for order processing or with the buyer’s consent.

§ 2 Prices and Payment Terms

  1. The prices apply ex forwarding location chosen by Kohler Fördertechnik GmbH, including packaging at the factory, but excluding loading and unloading – for deliveries and services not performed by the buyer directly within the Federal Republic of Germany, plus the applicable value-added tax (VAT).
  2. The quoted prices are determined individually for each inquiry. The contract price corresponds to the price stated in the order confirmation, in euros.
  3. Payments shall be made – unless otherwise specifically agreed – without any deductions to the account of Kohler Fördertechnik GmbH within 14 calendar days from receipt of the invoice, as follows:
    1. 50% down payment after receipt of the order confirmation,
    2. 50% remaining payment after notification of readiness for dispatch has been sent.
  4. If the buyer is in default of payment, Kohler Fördertechnik GmbH shall charge default interest at a rate of 9% above the respective base interest rate of the European Central Bank (ECB) per annum.
  5. The buyer shall only be entitled to withhold payments or to offset them against counterclaims arising from other legal relationships insofar as such counterclaims are undisputed or have been legally established.

§ 3 Offers, Acceptances, Order Confirmations, and Commercial Documentation

  1. The configuration of the requested elevator systems is carried out under the sole responsibility of the buyer. If the configuration is performed via the “ProKon” product configurator, the calculation is generated automatically based on the buyer’s input. Kohler Fördertechnik GmbH provides the buyer with the ProKon software, through which the elevator systems can be independently configured and calculated, and through which an offer from Kohler Fördertechnik GmbH can be created and commissioned by the buyer. Kohler Fördertechnik GmbH prepares for the buyer a standardized system drawing, a schematic cabin drawing, and drawings of the cabin and external control panels according to the configuration ordered by the buyer. The review of configurations, quotations, and order confirmations, including all drawings and specifications, is the sole responsibility of the buyer.
  2. By accepting this offer, the buyer transfers the basic data from the offer to Kohler Fördertechnik GmbH, which fully describe and define the system to be delivered.
  3. Kohler Fördertechnik GmbH then documents the acceptance of the offer by issuing an order confirmation based on the offer. Any information or documents that deviate from the offer will not be taken into account. The data transferred with the acceptance shall be deemed approved and released for production. No verification of the data is carried out by Kohler Fördertechnik GmbH.

§ 4 Delivery, Delivery Period, and Delay

  1. All deliveries of orders are made “ex works,” including packaging, or from the forwarding location chosen by Kohler Fördertechnik GmbH, where the components for an order are consolidated. All costs for transport (in particular toll charges pursuant to the ABMG), insurance, export fees, loading and unloading, etc., shall be borne by the buyer. The risk shall pass to the buyer upon handover at the point of collection, even if partial deliveries are made.
  2. The estimated delivery time is derived from the offer provided by Kohler Fördertechnik GmbH. This information is non-binding and refers to the complete and unambiguous clarification and communication of all commercial and technical requirements as specified by and to Kohler Fördertechnik GmbH. It also presupposes that the buyer has fulfilled all obligations incumbent upon them, such as providing the necessary official certificates or approvals, or making a down payment. If this is not the case, the delivery time shall be extended accordingly, depending on the availability of capacities and components. This does not apply if Kohler Fördertechnik GmbH is responsible for the delay.
  3. Compliance with the delivery time is subject to correct and timely self-supply. Any foreseeable delays will be communicated by Kohler Fördertechnik GmbH as soon as possible.
  4. The delivery time is deemed met if the delivery item has left the factory or if readiness for shipment has been notified before its expiry.
  5. If the shipment or acceptance of the delivery item is delayed for reasons attributable to the purchaser, the costs incurred as a result of the delay will be charged to them, starting one month after notification of readiness for shipment or acceptance.

  6. Kohler Fördertechnik GmbH and the purchaser may withdraw from the contract without notice if Kohler Fördertechnik GmbH becomes permanently unable to perform the entire service before the transfer of risk. The purchaser may also withdraw from the contract if, in the case of an order, the performance of part of the delivery becomes impossible and the purchaser has a legitimate interest in rejecting the partial delivery. If this is not the case, the purchaser must pay the contract price corresponding to the partial delivery. The same applies in the event of Kohler Fördertechnik GmbH’s inability to perform. Otherwise, §7 (2) shall apply. If the impossibility or inability arises during the purchaser’s delay in acceptance, or if the purchaser is solely or largely responsible for these circumstances, they remain obligated to provide payment.

  7. Claims arising from delivery delays are determined exclusively in accordance with §7 (2) of these terms and conditions.

§ 5 Changes and Cancellations

  1. The purchaser is aware that the products of Kohler Fördertechnik GmbH consist of standardized components and systems. Changes are no longer possible after the order has been placed.
  2. If a change to the ordered configuration becomes absolutely necessary at the purchaser’s request, and the purchaser cancels the order, the requested modified system configuration must be newly requested — that is, reconfigured, recalculated, reoffered, and the offer must then be accepted.
  3. In the event of a cancellation, the purchaser undertakes to reimburse Kohler Fördertechnik GmbH for the cancellation costs, i.e., the order amount minus any expenses saved.
  4. Kohler Fördertechnik GmbH reserves the right to make technical modifications to the contractual item from the time the offer is submitted until completion of the order without prior notice, provided that the intended use and design purpose of the product are fulfilled to an equal or higher standard.

§ 6 Force Majeure

In the event of force majeure, the delivery period of Kohler Fördertechnik GmbH shall be reasonably extended in the case of labor disputes, particularly strikes and lockouts, as well as in the event of unforeseen obstacles beyond the control of Kohler Fördertechnik GmbH, provided that such obstacles demonstrably have a significant impact on the completion or delivery of the delivery item. This also applies if such circumstances occur at the suppliers of Kohler Fördertechnik GmbH.

§ 7 Transfer of Risk and Acceptance

  1. The risk of accidental loss passes to the purchaser when the delivery item is handed over at the shipping location, as chosen by Kohler Fördertechnik GmbH, to the purchaser or to the carrier commissioned by the purchaser — even if partial deliveries are made or if Kohler Fördertechnik GmbH has undertaken other services, such as shipping costs or delivery and installation. If an acceptance has been agreed upon, it shall be decisive for the transfer of risk. Acceptance must be carried out immediately after Kohler Fördertechnik GmbH has notified the purchaser of readiness for acceptance. The purchaser may not refuse acceptance in the case of an insignificant defect.

  2. If shipment or acceptance is delayed or does not take place due to circumstances not attributable to Kohler Fördertechnik GmbH, the risk shall pass to the purchaser on the date of notification of readiness for shipment or acceptance. If the purchaser is in default of acceptance, fails to perform a required act of cooperation, or if delivery by Kohler Fördertechnik GmbH is delayed for other reasons attributable to the purchaser, Kohler Fördertechnik GmbH is entitled to claim compensation for any resulting damages as well as any additional expenses incurred (such as storage costs). Due to the above-mentioned reasons, Kohler Fördertechnik GmbH may charge the purchaser additional storage costs amounting to €15.00 per square meter per month, unless Kohler Fördertechnik GmbH proves higher damages or the purchaser proves that Kohler Fördertechnik GmbH has suffered no damage or only a lesser one.

  3. Kohler Fördertechnik GmbH undertakes, at the purchaser’s expense, to take out the insurances requested by the purchaser.
  4. Partial deliveries are permissible as long as they are reasonable for the purchaser.

§ 8 Retention of Title

  1. Kohler Fördertechnik GmbH retains ownership of the delivery item until all payments under the delivery contract have been received.
  2. If the retention of title expires, in particular through resale, combination, or processing, an extended retention of title shall apply:
    1. In the event of combination or processing, Kohler Fördertechnik GmbH acquires indirect ownership and all resulting rights. The purchaser hereby assigns to Kohler Fördertechnik GmbH all claims arising from contracts, particularly work contracts, that they obtain upon the loss of ownership, even if these claims are not yet due.

    2. In the event of resale of goods delivered by Kohler Fördertechnik GmbH, the purchaser is obliged to preserve the retention of title by reserving ownership in turn against their own purchaser. The purchaser hereby assigns to Kohler Fördertechnik GmbH all claims they acquire in this way.

  3. The purchaser is obliged, upon request, to provide complete and comprehensive information about the whereabouts of the goods delivered under retention of title, the nature of any potential loss of Kohler Fördertechnik GmbH’s ownership, the claims acquired as a result, and the identity of the third party involved.
  4. Upon receipt of the claims by the purchaser, they are obliged to immediately satisfy the corresponding claims of Kohler Fördertechnik GmbH.
  5. At Kohler Fördertechnik GmbH’s request, the purchaser is obliged to provide a written assignment declaration. Kohler Fördertechnik GmbH is entitled to disclose the assignment.
  6. Any assignment of claims arising from deliveries of items supplied by Kohler Fördertechnik GmbH to third parties, particularly for the purpose of obtaining credit, is prohibited.
  7. The purchaser is obliged to notify Kohler Fördertechnik GmbH immediately of any seizures or other restrictions on Kohler Fördertechnik GmbH’s ownership. Any violation of this obligation makes the purchaser liable for damages. Any resulting intervention costs shall be borne by the purchaser.
  8. Kohler Fördertechnik GmbH shall, at the purchaser’s request, release the securities granted to it at its discretion, provided that their value exceeds the claims by more than 20% on a sustainable basis.
  9. The purchaser must insure the delivery item against transport, fire, theft, and water damage from the time of handover until the final transfer of ownership and bear the costs thereof.

§ 9 Safety, Official Requirements, Approvals, Regulations, Laws

  1. Kohler Fördertechnik GmbH develops, designs, and manufactures elevator systems in accordance with the applicable European law and relevant standards, thereby ensuring that the delivered elevator systems meet all the necessary requirements for market placement.
  2. The responsibility for selecting the appropriate and required elevator technology, complying with official laws, regulations, and requirements, as well as obtaining the necessary permits for the installation and market placement of the ordered and delivered elevator system on site, lies solely with the purchaser.

§ 10 Inspection for Defects

The purchaser must immediately inspect the goods upon receipt for quality and quantity deviations and notify Kohler Fördertechnik GmbH in writing of any identifiable defects upon receipt; otherwise, the assertion of warranty claims is excluded. Defects not immediately apparent must be reported to Kohler Fördertechnik GmbH in writing within two weeks of their discovery. Timely dispatch of the notification is sufficient to meet the deadline. The purchaser bears the full burden of proof for all requirements of the claim, in particular for the defect itself, the time of its detection, and the timeliness of the defect notification.

§ 11 Claims for Defects

Kohler Fördertechnik GmbH shall be liable for material and legal defects of the delivery, to the exclusion of further claims – subject to §7 – as follows:

  1. Material Defects:
    1. The warranty period for all delivered components, assemblies, and systems is 12 months from delivery ex works.
    2. All parts that are found to be defective due to a circumstance occurring before the transfer of risk shall, at the discretion of Kohler Fördertechnik GmbH, be either repaired or replaced free of defects. The discovery of such defects must be reported to Kohler Fördertechnik GmbH in writing without delay. Replaced parts become the property of Kohler Fördertechnik GmbH.
    3. The purchaser must provide Kohler Fördertechnik GmbH, after being notified, with the necessary time and opportunity to carry out all repairs and replacement deliveries deemed necessary by Kohler Fördertechnik GmbH; otherwise, Kohler Fördertechnik GmbH shall be released from liability for any resulting consequences.
    4. Only in urgent cases where operational safety is at risk or to prevent disproportionately large damage — of which Kohler Fördertechnik GmbH must be notified immediately — does the purchaser have the right to remedy the defect themselves or through a third party and claim reimbursement from Kohler Fördertechnik GmbH for the necessary expenses. In doing so, the work for defect remediation is to be carried out under the same cost considerations as if it were performed in the name and at the expense of the purchaser themselves. The replaced parts must be returned to Kohler Fördertechnik GmbH by the purchaser free of charge within a maximum period of four weeks.
    5. Kohler Fördertechnik GmbH shall bear — to the extent the complaint is found to be justified — the necessary expenses for subsequent performance, i.e., the cost of the replacement part including shipping, as well as the reasonable costs of removal and installation, provided that this does not result in a disproportionate burden on Kohler Fördertechnik GmbH.
    6. If the complaint is found to be unjustified, the purchaser shall reimburse Kohler Fördertechnik GmbH for all costs incurred in connection with the complaint.
    7. To the extent that expenses increase because the purchaser has moved the purchased item to a location other than the place of performance after delivery, any resulting additional costs shall be borne by the purchaser.
    8. The Kohler Fördertechnik GmbH shall also, within the scope of its statutory obligations, reimburse the expenses incurred by the purchaser in connection with recourse claims within the supply chain when selling a newly manufactured item.
    9. The purchaser’s warranty rights require that they have duly fulfilled their inspection and notification obligations in accordance with Section 377 of the German Commercial Code (HGB) and as specified in clause 12. The twelve-month warranty period does not apply in cases of gross negligence on the part of Kohler Fördertechnik GmbH, or in the event of bodily injury, harm to health, or loss of life attributable to Kohler Fördertechnik GmbH. The liability of Kohler Fördertechnik GmbH under the German Product Liability Act remains unaffected.

    10. Further claims by the purchaser, in particular claims for compensation for damages not arising from the delivered item itself, are excluded. This exclusion of liability does not apply in cases of intent, gross negligence on the part of the owner or executive employees, or in the event of culpable breach of essential contractual obligations. In the case of a culpable breach of essential contractual obligations, Kohler Fördertechnik GmbH shall – except in cases of intent or gross negligence by the owner or executive employees – be liable only for typical, reasonably foreseeable damages.The exclusion of liability also does not apply in cases where, under the German Product Liability Act, liability exists for personal injury or property damage to privately used items caused by defects in the delivered product. It likewise does not apply where expressly guaranteed characteristics are lacking, if such a guarantee was specifically intended to protect the purchaser against damages not arising from the delivered item itself.

    11. No warranty or liability shall be assumed, in particular, in cases of incorrect assembly or commissioning, improper modifications or repair work carried out by the purchaser or third parties, unsuitable or improper use, natural wear and tear, incorrect or negligent handling, inadequate maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical, or electrical influences, as well as for wear parts – provided that these are not attributable to Kohler Fördertechnik GmbH.
    12. If the purchaser or a third party carries out improper repairs, Kohler Fördertechnik GmbH shall not be liable for any resulting consequences. The same applies to any modifications to the delivered item made without the prior consent of Kohler Fördertechnik GmbH.
    13. Any further claims shall be governed exclusively by Section 7(2) of these Terms and Conditions.
  2. Defects of Title:

    1. If the use of the delivered item results in the infringement of industrial property rights or copyrights within Germany, Kohler Fördertechnik GmbH shall, at its own expense, generally obtain for the purchaser the right to continue using the item or shall modify the delivered item in a manner reasonable for the purchaser so that the infringement no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period, the purchaser shall be entitled to withdraw from the contract. Under the same conditions, Kohler Fördertechnik GmbH shall also have the right to withdraw from the contract. Furthermore, Kohler Fördertechnik GmbH shall indemnify the purchaser against any undisputed or legally established claims of the respective holders of such property rights.

    2. The obligations of Kohler Fördertechnik GmbH specified in Section 6(8) are, subject to Section 7(2), final in the event of an infringement of industrial property rights or copyrights.

They apply only if

  • the purchaser promptly notifies Kohler Fördertechnik GmbH of any asserted infringements of industrial property rights or copyrights,
  • the purchaser provides Kohler Fördertechnik GmbH with reasonable assistance in defending against the asserted claims and/or enables Kohler Fördertechnik GmbH to carry out the modification measures in accordance with Section 6(8),
  • Kohler Fördertechnik GmbH retains the right to undertake all defensive actions, including out-of-court settlements,
  • the defect of title is not based on an instruction from the purchaser, and
  • the infringement was not caused by the purchaser’s unauthorized modification of the delivered item or by its use in a manner contrary to the contract.

§ 12 Liability of the Supplier and Exclusion of Liability

  1. If the delivered item cannot be used by the purchaser in accordance with the contract as a result of culpably omitted or incorrect proposals or consultations by Kohler Fördertechnik GmbH—whether made before or after conclusion of the contract—or due to the culpable breach of other contractual ancillary obligations, particularly instructions for operation and maintenance of the delivered item, then the provisions of Sections 6 and 7(2) shall apply, to the exclusion of any further claims by the purchaser.
  2. For damages not arising from the delivered item itself, Kohler Fördertechnik GmbH shall be liable – regardless of the legal basis – only
    1. in cases of intent or gross negligence,
    2. in the event of culpable injury to life, body, or health,
    3. for defects that have been fraudulently concealed,
    4. within the scope of a warranty commitment, and
    5. for defects in the delivered item where liability exists under the Product Liability Act for personal injury or property damage to privately used items.

In the event of a culpable breach of essential contractual obligations, Kohler Fördertechnik GmbH shall also be liable for simple negligence; however, such liability shall be limited to the typical, reasonably foreseeable damage under the contract.

All further claims are excluded.

§ 13 Limitation Period

All claims of the purchaser – regardless of the legal grounds – shall become time-barred after 12 months; this also applies to the limitation of recourse claims within the supply chain in accordance with Section 445b(1) of the German Civil Code (BGB), provided that the last contract in this supply chain is not a consumer goods purchase. The suspension of expiry under Section 445b(2) BGB remains unaffected. For claims for damages under Section VII.2(a–c) and (e), the statutory limitation periods apply. These statutory periods also apply to defects in a building or to delivered items that, in accordance with their customary use, have been used for a building and have caused its defectiveness.

§ 14 Software Use

Insofar as software is included in the scope of delivery, the purchaser is granted a non-exclusive right to use the delivered software, including its documentation. The software is provided for use on the specific delivered item for which it is intended. Use of the software on more than one system is prohibited.

The purchaser may reproduce, modify, translate, or convert the software from object code into source code only to the extent permitted by law (§§ 69a et seq. of the German Copyright Act – UrhG). The purchaser undertakes not to remove or alter manufacturer information – in particular copyright notices – without the prior express consent of Kohler Fördertechnik GmbH.

All other rights to the software and accompanying documentation, including copies, remain with Kohler Fördertechnik GmbH or the software supplier. The granting of sublicenses is not permitted.

§ 15 Applicable Law and Place of Jurisdiction

  1. All legal relations between Kohler Fördertechnik GmbH and the purchaser shall be governed exclusively by the laws of the Federal Republic of Germany applicable to legal relations between domestic parties.
  2. The place of jurisdiction shall be Kiel, the registered office of Kohler Fördertechnik GmbH. However, Kohler Fördertechnik GmbH shall also be entitled to bring an action at the purchaser’s principal place of business.