The following General Business Terms and Conditions are deemed agreed upon between Kaiser & Kühne Freizeitgeräte GmbH, Eystrup, and the customer (hereinafter, the “Customer”).

1. Scope of applicability and orders

1.1 These General Business Terms and Conditions constitute a contractual component of all of our offers and order confirmations issued to the Customer, and of all contracts concluded with the Customer by us for deliveries and services. These General Business Terms and Conditions also apply to all future offers, order confirmations and contracts for our deliveries and services, even where they are not expressly referred to again or expressly agreed upon again.

1.2 Unless expressly agreed otherwise, our General Business Terms and Conditions apply exclusively. Differing general business terms and conditions of the Customer that conflict with supplement or derogate from our General Business Terms and Conditions do not become a component of the contract, even where the Customer includes them in its order or in its acceptance of our offer and we do not expressly object to them or where we carry out our deliveries and services without reservation despite awareness of such general business terms and conditions. Our General Business Terms and Conditions thus also become a component of the contract even where the Customer objects to our General Business Terms and Conditions in its order, in its acceptance of our offer or in its general business terms and conditions.

1.3 Individual agreements reached with the Customer in a given case (including side agreements, supplementations and amendments) take precedence over these General Business Terms and Conditions. A written contract or our written confirmation is decisive with regard to the content of such agreements, subject to proof of the contrary.

1.4 Details we provide about the subject of the delivery or service (e.g. weights, sizes, values in use, load-bearing capacity, tolerances, and technical data), as well as our depictions of same (e.g., drawings and images), are approximate only other than where usability for the contractually intended purpose requires precise conformity. Such details in our offers, order confirmations or other documents or declarations do not constitute a guarantee of characteristics of state, but rather a description or designation of the delivery or service. Variances that are customary in the trade and variances that are the result of legal requirements or represent technical improvements, as well as the substitution of components, are permissible to the extent that they do not interfere with usability for the contractually intended purpose.

1.5 These General Business Terms and Conditions are applicable solely with regard to enterprises and entrepreneurs within the meaning of section 14 of the German Civil Code (BGB), legal entities under public law, and special funds under public law.

2. Conclusion of contract, prices, right of cancellation

2.1 Our offers are non-binding and subject to change, other than where we expressly designate them as binding or where they contain a specific acceptance period. If our offer is designated as binding without specifying an acceptance period, it remains binding for an acceptance period of eight days. To the extent that our offers and order confirmations for chargeable deliveries and services do not include any specific price details, the prices pursuant to our price list that is in effect at the time of our offer or order confirmation are applicable to them.

2.2 Orders received from the Customer are binding on the Customer. Unless provided for otherwise herein, we are entitled to accept such an offer of contract by the Customer within two weeks of receipt by us.

2.3 If the period between the time at which the order comes into effect and the agreed date for the delivery or service amounts to more than four months, we are entitled to pass any increases in wages or the prices of materials that occur during this period on to the Customer. The same applies where the agreed date for the delivery or service is postponed for reasons for which we are not responsible for, or where this is based on an agreement with the Customer and the period between the time at which the order comes into effect and the new delivery date amounts to more than four months.

2.4 All prices are in Euros, ex works, plus value-added tax and freight costs pursuant to the current freight price lists or, to the extent that cost components are not included there, in the amount of the costs actually incurred in the case of export shipments, the Customer also bears customs duties, fees and other export-related public charges.

2.5 We are entitled to demand that the Customer reimburses us for the costs of special packaging that is dependent on the method of transport desired by the Customer, for insurance that is desired by the Customer, for installation services and unloading assistance and for types of shipment and delivery to destinations different than those indicated in the order confirmation, and to invoice the Customer separately for such costs or cost differences.

2.6 Expenses incurred as a result of changes that are made to the type or scope of the delivery or service at the Customer’s request after we provide our order confirmation and/or as a result of complying with subsequent or unforeseeable official requirements or directives will likewise be invoiced separately from the agreed purchase price.

2.7 We grant the Customer the right to cancel an order in whole or in part by notifying us thereof in writing. If the order includes special services (e.g. customized designs, customized products or similar), or if we have incurred special expenses for the purpose of fulfilling this order, particularly for orders placed with upstream suppliers, the Customer must reimburse us for the costs incurred for this up to the time of receipt of the notice of cancellation. If we receive the Customer’s notice of cancellation after expiry of a period of one week following receipt of our order confirmation, then in addition to reimbursement of these costs, we have a claim against the Customer to compensation equal to 20% of the order value, plus any value-added tax due. We are not obligated to return the mutual performance provided up to the time of receipt of the notice of cancellation. We are entitled to offset advance payments we received, or deductions applied by the Customer on services rendered up to that point in time against our claims against the Customer and will hereby reimburse them by means of offsetting.

3. Delivery

3.1 The delivery times indicated by us (deadlines and time periods for delivery and service) are only approximate. The indicated delivery times are binding only if we expressly declare or agree in our written order confirmation that a fixed delivery period or a fixed delivery deadline is binding.

3.2 The delivery period first begins to run when all technical questions and other order details have been clarified with the Customer and it has met its other contractual obligations in a proper and timely manner. These obligations of the Customer include the prompt communication of the delivery location and the making of an agreed down payment. Notwithstanding our rights and claims based on default by the Customer, we are entitled to demand that the Customer extend time periods or postpone deadlines for the delivery and service by the period of time in which the Customer is not meeting its contractual obligations to us and order clarity does not exist.

3.3 Our fulfilment of and compliance with our delivery obligations is conditioned on timely and correct deliveries to us from our upstream suppliers. We are not liable for delayed or failed deliveries (impossibility) caused by the simple negligence of our upstream suppliers. However, we undertake to assign any claims for compensation against upstream suppliers to the Customer.

3.4 In cases of force majeure or other unforeseeable and unavoidable events for which we are not responsible and that make provision of our delivery or service substantially more difficult or temporarily impossible, either in whole or in part, including strike, lock-out, official directives, transport disruptions, lack of raw materials, difficulties with energy procurement, transport and import restrictions, supply bottlenecks, war, unrest, and epidemic or pandemic situations, even where they occur at our suppliers or sub-suppliers, the agreed delivery period is extended or the agreed delivery deadline is postponed to a reasonable extent by the duration of the disruption, plus a reasonable ramp-up time of at least 21 days in most cases. We will promptly notify the Customer about the occurrence of such an event, as well as about when it is expected to end or has ended, after we learn of it. If the impediment to performance lasts longer than three months, both contracting parties have the right to terminate the contract. Termination applies to the unfulfilled part of the contract, other than where the partial deliveries and services already rendered cannot be utilized by the Customer. In such case, claims for compensation of damages are excluded.

3.5 We are entitled to make partial deliveries if the Customer can utilize the partial delivery within the scope of the contractually intended purpose, delivery of the remaining ordered goods is assured, and this does not cause the Customer to incur any substantial added effort and expense, other than where we declare our willingness to assume these costs. We are entitled to invoice permissible partial deliveries when they are made.

3.6 If the Customer is in default in acceptance or if it culpably breaches other duties of cooperation, we are entitled to demand compensation of the damage suffered as a result, including any added expenses. The foregoing does not affect Customer’s obligation to pay the purchase price when due. In cases of default in acceptance, we will handle storage at the Customer’s risk and expense. If desired by the Customer, we will insure the goods at its expense. We expressly reserve more extensive rights and claims.

3.7 Delivery is made to the agreed destination at the delivery location specified by the Customer. Ordered goods are delivered uninstalled. Other than where the Customer has arranged to have us provide installation services, delivery does not include unloading. In such cases, the Customer is responsible for the timely provision of suitable technical equipment and staff for unloading, as well as for the unloading process.

3.8 Unless agreed otherwise, the risk of accidental loss and accidental deterioration passes to the Customer ex works with handover to the shipper or freight forwarder. Unless agreed otherwise, we make delivery by using a shipper or freight forwarder specified by us. If the Customer collects the goods itself, this risk passes to the Customer when they leave the manufacturer’s plant or warehouse.

4. Invoicing, payment

4.1 Invoices are sent in a standardized manner by means of electronic transmission. In agreed cases, or where so requested by the Customer, invoices can be sent in paper form. The Customer consents that we may prepare our invoices electronically and transmit them to the Customer. The Customer is obligated to maintain the technical conditions necessary for receiving and reviewing electronic invoices and to provide us with the associated contact details without delay. The Customer must make all payments by bank transfer at no charge or expense to us.

4.2 Unless otherwise expressly agreed, our invoices are due when the invoice is issued and are payable without deduction within 30 days of the invoice being sent (invoice date).). We are entitled to demand advance payments for our deliveries and services, and we reserve the ability to make our delivery and service dependent on receipt of the advance payment.

4.3 The Customer is in default, without any further payment reminder, if payment is not made by the payment deadlines applicable to the invoices or instalment demands. In the event of payment default, we are entitled to charge the Customer default interest equal to nine percentage points above the applicable base rate of interest per annum. We reserve the ability to assert other statutory or agreed rights and claims due to default, particularly for compensation of damages or higher interest rates (including statutory interest payable after the due date or statutory default interest). In the event of payment default by the Customer, all claims that we have against the Customer become immediately due and payable, and further deliveries will be made by us only against advance payment.

4.4 The assertion of the Customer’s rights of retention and set-off are conditioned on the Customer’s claim against us having been reduced to an enforceable judgment or on our acknowledgment of it.

4.5 If, after contract conclusion, facts come to light indicating that the satisfaction of our payment claim is jeopardized or, in accordance with reasonable business judgement, that the Customer’s creditworthiness is in question as a result of shortcomings in the Customer’s performance ability, particularly as a result of a deterioration of its financial circumstances, payment default under earlier deliveries, discontinuation of payment, or application for commencement of insolvency proceedings, we are entitled to refuse delivery and service until our payment claims have been satisfied or appropriate security has been posted for them. Any rebates and discounts that may have been agreed upon will then be deemed to have been forfeited.

5.  Retention of title

5.1 We retain title to the goods delivered by us until all claims against the Customer under the business relationship have been satisfied. Goods that are subject to retention of title in accordance with this arrangement and with the following provisions are henceforth referred to as “goods subject to retention of title”.

5.2 The Customer holds the goods subject to retention of title in safe custody for us at no charge. Until transfer of title, it is obligated to adequately insure the goods subject to retention of title at its own expense, particularly against theft, fire, natural disasters, and other damage.

5.3 In the event of conduct by the Customer in breach of contract, particularly in the case of non-payment of the due and owing purchase price, we are entitled in accordance with statutory provisions to terminate the contract and/or to demand surrender of the goods subject to retention of title based on the retention of title. The demand for surrender does not at the same time constitute notice of termination. Rather, we are entitled to demand only that the goods be surrendered and reserve the ability to terminate the contract. If the Customer does not pay the due and owing purchase price, we may assert these rights only if we had previously set a reasonable deadline for the Customer to make payment or if the setting of such a deadline may be dispensed in accordance with statutory provisions.

5.4 The Customer is revocably entitled to process the goods subject to retention of title and to sell them in the ordinary course of business in processed or unprocessed condition. If payment default occurs, if the Customer culpably breaches its obligations under the contract, and in the other cases specified in Section 5.3, we are entitled to revoke the authority to resell the goods subject to retention of title.

5.5 If the goods subject to retention of title are processed by the Customer, processing is undertaken on our behalf and for us as manufacturer without any further obligation on our part, i.e. in such a way that we directly acquire title or, if the processing is undertaken with materials of several title holders, or if the value of the processed item is higher than the value of the goods subject to retention of title, co-title (fractional title) to the newly created item in the proportion that the invoice value of the goods subject to retention of title has to the value of the new created item. To the extent that title does not vest in us in this way, the Customer hereby assigns to us as security its future title or – in the aforementioned ratio – co-title to the newly created item. If the goods subject to retention of title are combined or inseparably intermixed with other items to form a uniform item, and if one of the other items is the principal item, then we assign to the Customer pro-rata co-title to the uniform item in the aforementioned ratio to the extent that we own the principal item.

5.6 As security, the Customer hereby assigns to us all current and future claims against the purchaser – where we have co-title to the goods subject to retention of title, on a pro-rata basis in accordance with the share of co-title – that it has against third parties from the resale or further processing of the goods subject to retention of title. This also covers those claims of the Customer against third parties that take the place of the goods subject to retention of title or otherwise arise with respect to the goods subject to retention of title, such as insurance claims or tort claims in the event of loss or destruction of the goods subject to retention of title. We hereby accept this assignment. At the same time, the Customer authorizes us to collect these claims in the name of and for the account of the Customer, insofar as the assignment of claim requires the consent of the third party. In addition, the Customer irrevocably authorizes us to submit to the building contractor all declarations pursuant to section 16 (6) sentence 2 of the German Construction Contract Procedures, Part B (VOB/B).

5.7 The Customer remains revocably authorized to collect for us in trust the assigned claim pursuant to Section 5.6, above, and it is obligated to remit to us any payments received in respect of this in the amount of the invoice value. We will refrain from collecting the claim if the Customer is meeting its payment obligations to us, there is no shortcoming in its ability to perform, and we do not assert our right pursuant to Section 5.3, above. If this is the case, however, then we may demand that the Customer discloses to us the assigned claims and the parties owing them, provides all information necessary for collection, turns over the associated documents, and notifies the parties owing the claims of the assignment.

5.8 The Customer may neither pledge the goods subject to retention of title that were delivered by us nor assign them to third parties for the purpose of security. The Customer must immediately notify us of any compulsory enforcement measures taken by third parties with respect to the goods subject to retention of title, the assigned claims, or other collateral and provide us with the documents required for intervention. The costs for out-of-court efforts for release and return are to be borne by the Customer. The same applies to costs for justified court intervention if they cannot be recovered from the third party.

5.9 We will release the goods subject to retention of title and the other collateral replacing it when their value exceeds the secured claims by more than 10%. We are free to choose the items to be released.

6.  Warranty

6.1 We provide a warranty as follows and for the following warranty periods:

30 years for

  • Breakage and rotting of the robinia wood support posts with pipe base,
  • All parts made of stainless steel (e.g., materials quality 1.4301)
  • All parts made of galvanized steel.

5 years for

  • Swing axles,
  • Carousel bearings,
  • All other parts, other than wearing parts (see below).

6.2 The warranty period begins in the case of delivery without installation, on the invoice date and, in the case of installation, on the date of inspection and acceptance, but not later than three business days following completion of the installation.

6.3 Warranty claims are excluded for damage due to corrosion suffered by products that are in direct contact with chlorinated water or saltwater at the location or are installed so close to the coastline that they are exposed to salty spray water. In addition, the warranty is limited in the case of installations within 200 meters of the coastline with a warranty period of 5 years in the event of corrosion.

Dry cracks in vertically installed wood support posts that are attributable to weather do not establish any warranty rights or claims (see addendum to DIN EN 1176, notice regarding

6.4 Excluded from our warranty are all parts subject to wear occasioned by use, particularly bearings (not including carousel bearings), hinges, excavator shovels, shafts, chains, ropes, treads, and powder coatings, as well as defects and damages caused by installation that was performed improperly or not in accordance with our installation instructions, wilful destruction and vandalism, or lack of maintenance.

6.5 Under certain conditions metal surfaces may experience corrosion, discolouring, or other cosmetic damage in connection with outdoor use. A “rust film” may emerge on stainless-steel surfaces. This is caused by contact with rusting iron parts brought in from elsewhere and not by the material itself. Occurrences of this type do not establish rights or claims under the warranty provided here.

6.6 Where a warranty claim is made, we can choose between repair and delivery of equivalent replacement goods. Other rights and claims of the Customer against us, particularly for compensation of damages, are not granted under this warranty and are excluded from it. The foregoing does not affect any contractual or statutory rights and claims of the Customer against us.

6.7 Rights and claims under the warranty provided here exist only on condition that the equipment has been maintained by trained personnel in accordance with our specifications and, where necessary, repairs have been made professionally using original replacement parts. The Customer or the operator of the playground equipment must furnish proof of proper maintenance (submission of complete inspection and maintenance records in accordance with the specifications in DIN EN 1176, Part 7).

6.8 The assertion of warranty claims requires submission of the invoice with purchase date. Warranty claims must be asserted within 10 days of discovering the warranty case, failing which they are excluded.

7.  Warranty in the case of defects, claims for defects

7.1 The Customer’s rights and claims due to defects are conditioned on compliance with its obligations to inspect and give notice of defects in accordance with section 377 of the German Commercial Code (HGB). The delivered objects must be carefully inspected immediately following delivery to the Customer or to the third party designated by it. With respect to obvious defects or other defects that would have been identifiable in the case of an immediate, careful inspection, the delivered objects are deemed approved unless the Customer sends us a written notice of defects within seven business days of delivery. With respect to other defects, the delivered objects are deemed approved by the Customer unless we receive the notice of defects within seven business days of the time at which the defect became apparent. However, if the defect was apparent at an earlier time in the case of normal use, this earlier time is definitive for the start of the period for sending a notice of defects.

7.2 We assume no liability for defects that are attributable, e.g., to a goods description, a specification by the Customer, or some other statement by the Customer. In addition, we are not responsible for parts, materials, and other pieces of equipment that were manufactured by the Customer or by third parties on its behalf and/or were provided to us. Unless expressly agreed otherwise, the Customer is responsible for inspecting and ensuring the suitability of the installation subsurface.

7.3 Our warranty for defects also does not cover any defects or damages that were caused by improper use or storage, misuse, improper operation, modification or unauthorized repair, natural wear and tear, or other causes in the Customer’s sphere. Rights and claims based on warranty also do not exist for such defects and damages that are attributable to the fact that the Customer modified, or had third parties modify, the delivered object without our consent, and that this makes elimination of the defect impossible or unreasonably complicates it. Insofar as we eliminate defects in this case or provide a cure for them, the Customer bears the added costs of remedy caused by the modification that it performed or arranged for.

7.4 In the case of a notice of defects, we are entitled to demand that the Customer sends us the objected-to goods, makes them available to us, provides us with access to them or sends us photos of them at our discretion. To the supplementary performance, we have the right to eliminate defects by means of repair or replacement delivery, at our discretion, for the purposes of inspection or remedy. If the remedy fails, or in the event of impossibility, unacceptability, refusal, or unreasonable delay of the supplementary performance by us, then notwithstanding any claims for compensation of damages the Customer can terminate the contract or reduce the price.

7.5 In the case of defects in components of other manufacturers that we cannot eliminate for license-related or factual reasons, we will assert the warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer at our discretion. In the case of such defects, warranty claims against us under the other requirements and in accordance with these General Business Terms and Conditions exist only if court enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or has no prospects for success, e.g. due to insolvency.

7.6 Claims of the Customer because of expenses necessary for the purpose of the supplementary performance, including transport, travel, labour, and materials costs, are excluded to the extent that the expenses increase because that goods delivered by us had been brought at the Customer’s instruction to a location different than the delivery address of the ordering party, unless this was consistent with the contractually specified purpose. If we incur costs in connection with the supplementary performance, the Customer must reimburse us for them.

7.7 The warranty period for the Customer’s claims for defects that are not subject to the five-year period in section 438 or section 634 BGB is one year. The warranty period begins to run with delivery of the goods. The warranty period of one year also applies to wear parts whose aging was caused by use, particularly all movable parts, as well as to components whose aging was caused by environmental influences.

7.8 In case of fraudulent concealment of a defect, or in the case of provision of a guarantee for the quality of the goods at the time of transfer of risk within the meaning of section 444 BGB, the Customer’s rights are determined solely by statutory provisions or the provided guarantee.

8.  Installation services

8.1 Installation services are not included in the scope of performance and must be ordered separately by the Customer. The arrangements in this Section 8 apply only if additional installation services were ordered by the Customer. In such case, the provisions of VOB/B and VOB/C, in the version in effect at the time of contract conclusion, are applicable to the installation services, in addition to the General Business Terms and Conditions.

8.2 If the Customer additionally orders installation services, the place of delivery is the installation firm that we engage.

8.3 The Customer is responsible for securing the construction site. Where it has ordered installation, the Customer is obligated to hand over the routes of all utility and waste lines, underground cables, etc., in good time, prior to the start of the installation, and to provide precise details about the location and orientation of the equipment, as well as about the installation subsurface.

8.4 The Customer is obligated to bear and reimburse us for damages, costs, and added expenses that are incurred because of the fact that the Customer provided incorrect or incomplete details about the routing of utility and waste lines, underground cables, e.g.., or about the location and orientation of the equipment and the installation subsurface.

8.5 The Customer must carry out the required preliminary work for the installation services to be rendered that is necessary for a proper construction process at its own expense. If additional services and added expenses become necessary on our side that are attributable to defective preliminary work by the Customer, it must reimburse us for these costs.

8.6 Our offered installation prices apply only for installations in soil classes 1 and 3 pursuant to the 2019 edition of DIN 18300.

8.7 Following completion of the installation, the Customer is liable for any damages to the installed equipment, such as due to vandalism, signs of wear through use, or environmental influences.

8.8 If an inspection and acceptance procedure must be conducted, the delivery and the installation service are considered inspected and accepted when

  • the delivery has been made and the installation has been completed,
  • we have notified the Customer of this under reference to constructive inspection and acceptance and have called upon it to conduct the inspection and acceptance procedure,
  • six business days have elapsed since installation, or the Customer has started to use the installed equipment (e.g. has put the delivered equipment into operation) and in this case six business days have elapsed since installation, and
  • the Customer has failed to perform the acceptance and inspection procedure during this period for a reason other than due to a defect notified to us that makes use of the installed equipment impossible or substantially interferes with same.

9.  Limitation of liability

9.1 In the case of a breach of core contractual obligations due to simple negligence our liability is limited to compensation of damage that is foreseeable and typical of the contract. Core contractual obligations in this sense mean those whose breach jeopardizes the achievement of the contract or whose fulfillment is essential to proper performance of the contract and on whose compliance the Customer is normally entitled to rely. In such case, our liability is limited in terms of amount to the coverage limit in our business liability insurance policy or pecuniary loss liability insurance policy.

9.2 We are liable in accordance with statutory provisions for the culpable breach of core contractual obligations, for the absence of a guaranteed quality, and for loss of life, bodily injury, and damage to health. Our liability under the German Product Liability Act (Produkthaftungsgesetz) likewise remains unaffected.

9.3 To the extent that our liability for compensation of damages is limited or excluded in accordance with these General Business Terms and Conditions, or if a limitation period for liability claims has been shortened, this does not apply where we are responsible for the damage due to willful misconduct or gross negligence.

9.4 The foregoing provisions are not associated with a change in the burden of proof to the detriment of the Customer.

9.5 If our liability is excluded or limited, this also applies to the personal liability of our statutory representatives, employees, and other persons we use to perform an obligation (Erfüllungsgehilfen).

10. Copyrights, industrial property rights

10.1 We reserve title and rights of use and exploitation under copyright law in and to all offers and cost estimates provided by us, as well as drawings, images, calculations, brochures, catalogues, models, tools, and other documents and resources made available to the Customer. The Customer is not entitled to make these items accessible to third parties, either as such or in substance, to disclose them to third parties, or to use or reproduce them itself or through third parties without our express consent. The Customer must return these items to us in their entirety at our demand and destroy any copies it made if the Customer no longer requires them in the ordinary course of business for the contractually intended purpose, or if negotiations do not result in conclusion of a contract.

10.2 The Customer warrants that it is the holder of the copyrights and industrial property rights in and to the design documents provided to us, where such rights are necessary for carrying out our order. The Customer must indemnify us on first demand against all costs, damages, and expenses that are incurred as a result of the fact that a third party asserts claims against us due to an infringement of its rights in this respect. In this regard, the Customer must assume all costs incurred by us from this and compensate us for lost profit, insofar as the order cannot be carried out or fulfilled because of this or cannot be carried out or fulfilled in full.

11. Prohibition of assignment

Claims against us of any nature may be assigned only with our written consent.

12. Applicable law, place of jurisdiction

12.1 The law of the Federal Republic of Germany is exclusively applicable. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) are not applicable.

12.2 Unless agreed otherwise, Eystrup is the place of performance.

12.3 Eystrup, Federal Republic of Germany, is the exclusive place of jurisdiction with local and international competence. We are also entitled to bring legal proceedings against the Customer at its place of general jurisdiction.

Version: Eystrup, January 2022