General Terms and Conditions of Kittner Anlagen- und Maschinenbau EOOD
1. General Provisions
1.1. These General Terms and Conditions shall apply exclusively to all deliveries and services of Kittner Anlagen- und Maschinenbau EOOD, a limited liability company pursuant to Bulgarian law, registered in the Commercial Register of the Registry Agency under company number (UIC) 160059997, registered office and business address Industrialna Zona – Gara Kaloyanovo, 4173 Kaloyanovo, Bulgaria, hereinafter referred to as “Supplier”.
1.2. No diverging or additional terms and conditions of the Client, nor its General Terms and Conditions for Purchases, shall be accepted, including by accepting the order. This shall also apply where these General Terms and Conditions have not been rejected explicitly in the order confirmation by the Supplier.
2. Conclusion of a Contract
2.1. Catalogues, advertising materials and pricelists shall not be considered an offer.
2.2. The Client’s offer shall constitute a binding offer for the conclusion of a contract for the Supplier, even if it was received by one of its employees and shall be considered accepted by the Supplier with its explicit acceptance or start of delivery.
2.3. The scope of delivery and performance of the contract, together with all enclosed technical documentation, shall be documented by written confirmation of the order by the Supplier.
2.4. The Supplier shall have the right to deviate from the order, respectively from the agreed specification, when the product is of better quality and this deviation shall not adversely affect its price or function.
3. Delivery, Delivery Deadline
3.1. Partial deliveries shall be permitted, whereby the Supplier may issue separate invoices for each one of them.
3.2. The delivery period shall start running once the last of the following agreed terms and conditions are fulfilled: conclusion of the contract, receipt of the entire agreed technical documentation, receipt of all agreed advance payments, issuing of all administrative permits and confirmation of a letter of credit on the Supplier’s side.
A reasonable extension of the delivery period shall be possible, if:
a) The Supplier is unable to perform the contract due to force majeure circumstances. A force majeure circumstance shall be any event that is unforeseeable and to an excessively significant degree impedes performance by the Supplier. Such examples shall include overdue or improperly performed deliveries by subcontractors, administrative regulations and prescriptions, strikes, shortages of materials or energy, severe accidents at important production facilities, impassable roads, pandemics, lockdown, etc.
If the force majeure circumstances persist for more than three months, each of the parties may terminate the contract. In this case, the Client may not claim compensation.
b) The Client fails to comply with its contractual obligations and to observe the agreed terms and conditions of payment.
3.3. If, for reasons beyond its control, the Supplier delays the delivery by at least one month and thus causes damage to the Client, the latter may request a fixed compensation for delay. Without prejudice to other limitations of liability, this compensation shall be equal to 0.5% for each week commenced, but not more than 5% of the total value of the goods, the delivery of which was delayed.
3.4. A condition for compliance with the delivery period agreed between the parties is that the deliveries to the Supplier itself are performed properly and on time, and that all financial, technical and organisational terms and conditions between the Supplier and the Clients are met.
3.5. The delivery period shall be considered observed when the agreed acceptance of the goods in the factory is completed successfully, readiness for shipment is declared or the goods have left the factory.
3.6. If the Client does not accept the goods ready for shipment or withdraws from the order and if it fails to correct this non-performance of the contract within seven days of an invitation issued by the Supplier, the latter shall be entitled to terminate the contract and claim compensation.
In addition, a weekly storage fee of 0.25% of the value of the goods shall be charged for the storage of the ready goods in the Supplier's warehouse.
4. Dispatching, Transfer of Risk
4.1. In the absence of another agreement between the parties, delivery shall be performed EXW (ex works).
4.2. If, at the Client's request, the transport is organised by the Supplier, the Client must promptly, at least one week before the agreed delivery date, notify of special requirements regarding transport and insurance. Otherwise, the Supplier shall take care of appropriate transport at its own discretion, but without assuming any liability.
4.3. The risk shall be transferred to the Client once the goods leave the territory of the Supplier’s factory or upon successful acceptance of the goods by the Client in the Supplier’s factory.
4.4. If the shipment or acceptance is delayed or not performed for reasons beyond the control of the Supplier, the risk shall be transferred to the Client with the declaration of readiness for shipment of the goods. The Supplier shall be obliged to take out the necessary insurances at the request and at the expense of the Client.
The Supplier shall be entitled to take out a transportation insurance at the Client’s expense.
4.5. A detailed receipt (bill of lading) shall be attached to each delivery, containing the following data: Client order number, item number, quantity, gross/net weight, country of origin, customs tariff code and type of packaging.
4.6. In the transport documentation, the Client shall be obliged to note damages that occurred during transportation, wrong or missing goods, documenting this with photos, and to send it to the Supplier immediately.
Already at the present moment, the Client shall assign to the Supplier its rights arising from the insurance in case of damage. It shall be obliged to take all actions to preserve the rights under the insurance and, in particular, to send the necessary information and documents in a timely manner to the insurer and to the Supplier.
5. Retention of Ownership
5.1. All goods shall remain the Supplier’s property until the full payment of their purchase price. The Supplier shall be entitled to take all measures to protect its property rights. Prior to the transfer of ownership, the Client shall not be entitled to pledge, resell or use these goods as collateral.
5.2. If the Client resells goods with reserved ownership, all receivables for the purchase price from the resale, including all accessory rights, reserved property rights and collateral, shall be considered automatically transferred to the Supplier until all receivables of the Supplier against the Client are repaid.
5.3. If the Client delays payments for more than 14 days, the Supplier may terminate the contract and claim the goods back at the expense of the Client.
5.4. In case of termination of the contract, the Supplier may enter the premises of the Client to regain possession of the unpaid goods. The Client hereby gives its explicit and irrevocable consent to this.
5.5. As long as the goods are the property of the Supplier, the Client must insure the goods at his own expense against theft, damage, fire, flood and other events and risks, indicating the Supplier as a beneficiary. Additionally, the Client must take the necessary steps to guarantee the ownership of the Supplier.
5.6. Upon submission of an application for initiating insolvency proceedings, the Supplier shall be entitled to terminate the contract and demand the immediate return of the goods.
6. Prices, Invoicing, Payment Conditions
6.1. Unless agreed otherwise, all prices shall be in EURO, or the currency used at the Supplier’s seat respectively, ex-works and excluding Supplier’s packaging.
6.2. Unless agreed otherwise in writing, the price of the machines and the installations shall be paid as follows:
50% within a period of 10 days after receiving order confirmation, net, without deductions
50% within a period of 3 days after declaring readiness to send or accept, and prior to shipment, net, without deductions
6.3. Unless otherwise agreed in writing, the price for spare parts and for parts and components that wear out, shall be paid as follows:
100% upon receipt of the order confirmation, net, without deductions.
An administrative fee will be charged for all spare parts orders under 100 EUR.
6.4. Payment shall be deemed completed when the invoiced sum enters the Supplier’s account in full and the latter may freely dispose of it.
6.5. The Client may offset counter-receivables with due payments only with the Supplier’s consent or in case of an effective court judgment.
6.6. In case of overdue payment of an instalment or an agreed guarantee by the Client by more than 14 working days, the entire amount shall become due. In addition, the Supplier may terminate the contract without setting a new deadline and claim compensation of at least 10% of the invoice amount.
6.7. In case of payment by letter of credit (L/C), all costs, fees etc. for opening and confirmation shall be borne by the Client.
7.1. The Supplier warrants that the goods meet the agreed performance requirements, are manufactured in accordance with applicable rules and laws, have no material or production defects, do not violate the protected rights of third parties in the country of manufacture and are of normal commercial quality.
7.2. The warranty for goods manufactured according to the drawings, models or specifications of the Client shall be limited to material or production defects.
7.3. At its option, the Supplier shall repair all defective goods free of charge or replace them, provided that the defects are notified by the Client in writing within 14 days after acceptance of the goods. Obvious defects shall be notified to the Supplier in writing immediately after their detection. Damage to the packaging shall be noted in the relevant delivery note. As for hidden defects, they shall be reported in writing immediately, but not later than 14 days after their detection.
7.4. Within the framework of the legal provisions, the Client shall be entitled to terminate the contract only when the Supplier - taking into account the statutory exceptions - has failed to comply with the deadline for repair or replacement of parts due to a material defect.
In case of a minor defect, the Client shall only be entitled to a reduction of the agreed price. In all other cases, the right to a price reduction shall be excluded.
7.5. The warranty period shall be 12 months and shall start running as of the date of issue of the final invoice for the goods by the Supplier. It shall expire no later than 18 months after the Client accepts the goods or declares readiness to dispatch.
7.6. A 12-month warranty shall apply for repairs and spare parts, effective as of the date of delivery or performance of the repairs.
7.7. Defects or damages due to normal wear and tear, inappropriate or incorrect use or maintenance, excessive use or overload shall not be covered by the warranty (i.e. more than 8 hours per working day and/or more than 5 days per working week), improper installation or improper commissioning by the Client or third parties, non-compliance with the instructions for use, improper or negligent treatment, improperly selected working equipment, improper repair and maintenance or modification by the Client or third parties, and use of non-original spare parts, construction defects, chemical, electrochemical or electrical influences, wear, external influences, e.g. transport damage, damage due to collision or impact, weather conditions or other natural factors.
7.9. The warranty shall not cover used machines or installations, as well as consumables.
7.10. Parts, materials and articles produced by other manufacturers shall be covered by the warranty provided by the respective manufacturer.
8. Limitation of Liability
8.1. The legal rights and remedies of the Client shall be regulated exclusively by these General Terms and Conditions and they shall supersede all rights provided by law. The possibility for subsequent reduction of the sale price, termination of the contract and claims for compensation shall be excluded.
8.2. The Client cannot claim compensation due to production stoppage, loss of orders and profit, non-use, missed savings, data loss, costs of installation and dismantling of goods, processing costs and claims of third parties to recover such damages and costs.
8.3. The limitation shall not apply to the extent that the Supplier’s liability is imperative, in particular regarding unlawful deliberate acts or gross negligence of the Supplier or its employees, in case of deliberate concealment of a defect, if death, health damage or bodily injury are caused culpably.
9. Limitation Period
All Client rights, irrespective of their legal grounds, shall expire after 12 months.
10. Copyright and Ownership of Software and Documents
10.1. The Supplier reserves all property rights and copyrights on the samples, drawings, plans, technical specifications, images, permits, brochures, catalogues, models, tools and other documents and data of any kind - also in an electronic format, as well as on the software provided by the Client, unless the Client has explicitly ordered and paid for their preparation. The Client acknowledges these rights and shall not provide these documents or software to third parties without the prior written consent of the Supplier and shall refrain from using them for purposes other than those agreed. The Supplier undertakes to provide to third parties data and documents specified by the Client as confidential, only with its consent.
10.2. Insofar as software is included in the scope of delivery, the Client shall be granted a non-exclusive and non-transferable right to use the delivered software together with the enclosed documentation for the agreed purpose. Copies may be made only for the purpose of archiving or debugging, or in connection with the replacement of a defective media. The Client shall not be entitled to update, expand, decompile, decode or return the software without the prior consent of the Supplier. In case of violation of this obligation, the Supplier may revoke the right to use the software with immediate effect.
10.3. The Client may translate the software only with the Supplier’s consent. The Client undertakes not to remove data of the Supplier – in particular Copyright data – or to alter them without the Supplier’s prior explicit consent.
10.4. The Supplier reserves all other rights over software and the documentation, including copies thereof.
The parties shall not provide to third parties any confidential information, which they become aware of in their trade relations with the other party, in particular technical data, trade secrets and details of the order, such as quantities, technical specifications, the terms and conditions of the order, etc., as well as all the resulting knowledge, and shall use them exclusively for performance of the order.
12. Personal Data Protection
12.1. Within the framework of their contractual relations, the parties may exchange personal data, such as names, telephone numbers, e-mail addresses and other personal data. In this case, both parties shall use this personal data in accordance with applicable law and shall ensure that unauthorised third parties do not have access to it without the consent of the persons concerned or on other legal grounds.
12.2. The parties shall handle personal data of the other party in strict confidence and shall use this data only for the purposes of the contract.
13. Final Provisions
13.1. If a competent court or administrative body considers that a provision of these General Terms and Conditions is invalid or unenforceable, the remaining provisions shall remain in full force and effect. The parties shall replace the invalid or unenforceable provision with a provision serving a similar economic purpose, insofar as the substance of this condition has not changed significantly. The same shall apply in the event of omissions.
13.2. Delay or inaction on the part of the Supplier in connection with the exercise of a right, remedy or right to appeal shall not be considered a waiver of these rights.
13.3. All communications via telefax or electronically (e.g. via the Internet, including, but not limited to, e-mail correspondence) shall be considered to be “made in writing”.
14. Governing Law, Jurisdiction
14.1. The law of the Republic of Bulgaria shall apply in all legal relations between the Client and the Supplier. The effect of the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall be excluded.
14.2. The relevant court in the city of Plovdiv, Bulgaria shall be competent to resolve all disputes concerning the relations between the parties. However, the Supplier shall be entitled to lodge actions before the court at the Client’s principal registered office.
In effect as of August 2021
Kittner Anlagen- und Maschinenbau EOOD
Industrialna Zona Gara Kaloyanovo
Telephone: +359 32 607750
© 2021 Kittner Anlagen-und Maschinenbau EOOD