Terms and Conditions

General Terms and Conditions

Between Kaiser & Kühne Freizeitgeräte GmbH, Eystrup, and the client (hereinafter referred to as AG hereinafter referred to as the "Terms and Conditions"), the following General Terms and Conditions Terms and Conditions called) as agreed.

1. SCOPE OF VALIDITY AND ORDERS

1.1 These GTC are an integral part of the contract for all our offers and order confirmations to the Customer and for all contracts between us and the Customer for deliveries and services provided by us. These GTC shall also apply to all future offers, order confirmations and contracts for our deliveries and services, even if they are not mentioned separately or not expressly agreed again.

1.2 Unless expressly agreed otherwise, our GTC shall apply exclusively. Conflicting, contradictory, supplementary or deviating general terms and conditions of the Customer shall not become part of the contract, even if the Customer includes them in his order or his acceptance of our offer and we do not expressly object to them or we carry out our deliveries and services without reservation in the knowledge of these general terms and conditions of the Customer. Our General Terms and Conditions shall also become part of the contract if the Customer objects to the inclusion of our General Terms and Conditions in its order, its acceptance of our offer or in its General Terms and Conditions.

1.3 Individual agreements made with the Customer in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these GTCS. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or our written confirmation.

1.4 Information provided by us on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. Such details in our offers, order confirmations or other documents or declarations are not a guarantee of quality features, but descriptions or characterisations of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.

1.5 These GTC apply exclusively to companies 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, CANCELLATION RIGHTS

2.1 Our offers are subject to change and non-binding unless we expressly label them as binding or they contain a specific acceptance period. If our offer is labelled as binding without specifying an acceptance period, an acceptance period of 8 days shall apply. Insofar as our offers and order confirmations for deliveries and services subject to payment do not contain specific prices, the prices according to our price list valid at the time of our offer or order confirmation shall apply.

2.2 Incoming orders or commissions from the Customer shall be binding for the Customer. Unless otherwise stated, we shall be entitled to accept such a contractual offer from the Customer within 2 weeks of receipt by us.

2.3 If the period between the conclusion of the order and the agreed date of delivery or service is more than four months, we shall be entitled to pass on to the Customer any increases in material prices and wages occurring during this period. The same shall apply if the agreed date of delivery or service is postponed for reasons for which we are not responsible, or if this is based on an agreement with the Customer and there are more than four months between the realisation of the order and the new delivery date.

2.4 All prices are quoted in euros ex works plus statutory VAT and freight costs in accordance with the respective current freight price lists or, if cost components are not included therein, in the amount of the costs actually incurred. In the case of export deliveries, the Customer shall also bear customs duties, fees and other export-related public charges.

2.5 We shall be entitled to demand reimbursement from the Customer of costs for special packaging depending on transport and/or customer requirements, insurance depending on customer requirements, assembly services and unloading assistance as well as for different types of dispatch and delivery to destinations other than those specified in the order confirmation and to invoice these or the difference in costs separately to the Customer.

2.6 Expenses incurred due to changes in the type or scope of the delivery or service at the request of the Customer after our order confirmation and/or due to the fulfilment of subsequent or unforeseeable official conditions and requirements shall also be invoiced separately at the agreed purchase price.

2.7 We grant the Customer the right to cancel an order in whole or in part by written declaration to us. If the order includes special services (e.g. special designs, custom-made products, etc.) or if we have incurred special expenses for the purpose of fulfilling this order, in particular orders from sub-suppliers, the Customer shall reimburse us for the costs incurred up to the time of receipt of the cancellation notice. If we receive the Customer's declaration of cancellation after the expiry of a period of one week from receipt of our order confirmation, we shall be entitled to compensation from the Customer in the amount of 20% of the order value plus any applicable VAT in addition to this reimbursement of costs. We shall not be obliged to reverse the reciprocal services rendered up to receipt of the cancellation notice; we shall be entitled to offset any advances or advance payments received from the Customer for services rendered up to that point against our claims against the Customer and shall hereby return these by offsetting them.

3. DELIVERY

3.1 The delivery times stated by us (dates and deadlines for delivery and performance) are only approximate. The stated delivery times are only binding if we expressly declare or promise a fixed delivery period or a fixed delivery date as binding in our written order confirmation.

3.2 The delivery period shall not commence until all technical questions and other details of the order have been clarified with the Customer and the Customer has duly fulfilled its other contractual obligations in good time. These obligations of the Customer include in particular the timely provision of the place of delivery and the payment of an agreed down payment. We shall be entitled - without prejudice to our rights and claims due to default on the part of the Customer - to demand from the Customer an extension of deadlines or a postponement of dates for delivery and performance by the period in which the Customer does not fulfil its contractual obligations towards us and the order is not clear.

3.3 The fulfilment of and compliance with our delivery and performance obligations is subject to the timely and correct delivery to us. We shall not be liable in the event of delayed or omitted deliveries (impossibility) due to simple negligence on the part of our suppliers; however, we undertake to assign to the purchaser any claims for compensation to which we may be entitled against the suppliers.

3.4 In cases of force majeure and other unforeseeable or unavoidable events for which we are not responsible and which make the provision of our delivery and service significantly more difficult or temporarily impossible in whole or in part, in particular strikes, lockouts, official orders, transport disruptions, shortages of raw materials, difficulties in procuring energy, transport and import restrictions, supply bottlenecks, war, unrest, epidemics or pandemics, even if they occur at our suppliers or subcontractors, the agreed delivery period shall be extended or the agreed delivery date postponed to a reasonable extent by the duration of the disruption plus a reasonable start-up time of usually at least 21 days. We shall inform the Customer of the occurrence and the expected or actual end of such an event immediately after becoming aware of it. If the impediment to performance lasts longer than three months, both contracting parties shall have the right to withdraw from the contract. The cancellation shall extend to the unfulfilled part of the contract, unless partial deliveries and services rendered are unusable for the Customer. Claims for damages are excluded in this case.

3.5 We are entitled to make partial deliveries if the partial delivery can be used by the Customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Customer does not incur any significant additional work or costs as a result, unless we declare our willingness to bear these costs. We are authorised to invoice permissible partial deliveries as they are made.

3.6 If the Customer is in default of acceptance or culpably violates its obligations to co-operate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. The Customer's obligation to pay the purchase price on the due date shall remain unaffected by this. In cases of default of acceptance, we shall store the goods at the Customer's risk and expense. We shall insure the goods at the request and expense of the Customer. We expressly reserve further rights and claims.

3.7 Delivery shall be made to the agreed destination at the delivery point to be specified by the Customer. The ordered goods shall be delivered disassembled. If the Customer has not ordered any assembly services from us, the delivery shall be unloaded. In this case, the Customer shall be responsible for the timely provision of suitable technical unloading aids and personnel for unloading as well as for the unloading process.

3.8 Unless otherwise agreed, the risk of accidental loss or accidental deterioration shall pass to the Customer ex works upon handover to the forwarding agent or carrier. Unless otherwise agreed, we shall deliver through a forwarding agent or carrier appointed by us. In the case of collection by the Customer, this risk shall pass to the Customer when the goods leave the manufacturing plant or warehouse.

4. INVOICING, PAYMENT

4.1 Invoices shall be sent by standardised electronic transmission. In agreed cases or at the request of the client, invoices may be issued in paper form. The Client agrees that we may issue our invoices electronically and transmit them to the Client. The Customer is obliged to provide the necessary technical requirements for the receipt and verification of the electronic invoice and to provide us with the relevant contact details without delay. All payments by the Customer shall be made by bank transfer free of costs and charges for us.

4.2 Unless expressly agreed otherwise, our invoices shall be due upon invoicing and payable without deduction within 30 days of dispatch of the invoice (invoice date). We are entitled to demand advance payments for our deliveries and services and reserve the right to make our delivery and service dependent on receipt of the advance payment.

4.3 The Customer shall be in default without further reminder if payment is not made within the payment deadlines applicable to the invoices or instalment requests. In the event of default in payment, we shall be entitled to charge the Customer default interest in the amount of 9% points above the applicable base interest rate per annum. We reserve the right to assert further statutory or agreed rights and claims due to default, in particular for damages or higher interest (including statutory maturity or default interest). If the Customer is in default of payment, all our claims against the Customer shall become due immediately and we shall only make further deliveries against advance payment.

4.4 The assertion of rights of retention and set-off on the part of the Customer requires that his claim against us has been legally established or recognised by us.

4.5 If, after conclusion of the contract, we become aware of facts that the fulfilment of our claim to payment is jeopardised by the Customer's inability to pay, in particular due to deterioration in its financial circumstances, default in payment from previous deliveries, suspension of payment or application for the opening of insolvency proceedings, or that the Customer's creditworthiness is questionable according to sound business judgement, we shall be entitled to refuse delivery and performance until our payment claims have been fulfilled or appropriate security has been provided for them. Any agreed rebates and discounts shall then be deemed to have lapsed.

5. RESERVATION OF TITLE

5.1 We reserve title to the goods delivered by us until all claims against the Customer arising from the business relationship have been settled. Goods that are subject to retention of title in accordance with this provision and the following provisions are hereinafter referred to as „goods subject to retention of title“.

5.2 The Customer shall store the reserved goods for us free of charge. He is obliged to insure the reserved goods adequately at his own expense, in particular against theft, fire, natural disasters and other damage, until the transfer of ownership.

5.3 In the event of a breach of contract by the Customer, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods subject to retention of title on the basis of the retention of title. The demand for return does not at the same time include a declaration of cancellation; rather, we are entitled to demand only the return of the goods and reserve the right to cancel the contract. If the Customer does not pay the purchase price due, we may only assert these rights if we have previously set the Customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.

5.4 The Customer is revocably authorised to process the reserved goods and to sell them processed or unprocessed in the ordinary course of business. If the Customer is in default of payment or culpably breaches its obligations under the contract or in the other cases mentioned in 5.3 above, we shall be entitled to revoke the authorisation to resell.

5.5 If the reserved goods are processed by the Customer, the processing shall be carried out on our behalf and for us as manufacturer free of charge and without any further obligation on our part in such a way that we directly acquire ownership or, if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods, co-ownership (fractional ownership) of the newly created item in the ratio of the invoice value of the reserved goods to the value of the newly created item. If no such acquisition of ownership occurs for us, the Customer hereby transfers its future ownership or - in the above-mentioned ratio - co-ownership of the newly created item to us as security. If the goods subject to retention of title are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, we shall, insofar as the main item belongs to us, transfer co-ownership of the uniform item to the Customer on a pro rata basis in the aforementioned ratio.

5.6 The Customer hereby assigns to us as security all present or future claims against the purchaser - in the case of co-ownership by us of the reserved goods in proportion to the co-ownership share - which accrue to him against third parties from the resale or further processing of the reserved goods. This also includes such claims of the Customer against third parties which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from unauthorised action in the event of loss or destruction of the reserved goods. We accept this assignment. At the same time, the Customer authorises us to collect these claims in the name and for the account of the Customer, insofar as the assignment of the claim requires the consent of the third party. Furthermore, the Customer irrevocably authorises us to make all declarations to the building contractor on behalf of the Customer in accordance with § 16 paragraph 6 sentence 2 VOB/B.

5.7 The Customer shall remain revocably authorised to collect the assigned claim in trust for us in accordance with 5.6 above and shall be obliged to transfer to us any payments received in the amount of the invoice value. We shall not collect the claim as long as the Customer fulfils its payment obligations to us, there is no deficiency in its ability to pay and we do not assert our right in accordance with 5.3 above. If this is the case, however, we may demand that the Customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment.

5.8 The Customer may neither pledge the reserved goods delivered by us nor assign them as security to third parties. The Customer must inform us immediately of any enforcement measures by third parties against the reserved goods, the assigned claims and our other securities, handing over the documents necessary for an intervention. The Customer shall bear the costs of extrajudicial endeavours to release and recover the goods. This shall also apply to the costs of a justified judicial intervention if these cannot be recovered from the third party.

5.9 We shall release the goods subject to retention of title and the other securities taking their place insofar as their value exceeds the amount of the secured claims by more than 10 %. The selection of the items to be released shall be at our discretion.

6. WARRANTY

6.1 We grant warranty as follows and for the following warranty periods:

30 years on

• Breakage and rotting of the robinia wood/robinia plywood posts with tubular base,
• All parts made of stainless steel (e.g. material quality 1.4301)
• All parts made of hot-dip galvanised steel.

5 years on

• Swing axles,
• Carousel bearing,
• all other parts, unless a wearing part (see below).

6.2 The guarantee period begins on the invoice date for delivery without installation and on the acceptance date for installation, but no later than 3 working days after completion of the installation.

6.3 Warranty claims are excluded for corrosion-related damage to products that come into direct contact with chlorinated water or salt water due to their location or that are installed so close to the coastline that they are exposed to salty spray water. Otherwise, a limited warranty with a warranty period of 5 years in the event of corrosion applies for installation distances of up to 200 metres from the coastline.

Weather-related dry cracks in vertically installed wooden posts do not justify any rights or claims under the guarantee (see supplement to DIN EN 1176, note on 4.2.7.6).

6.4 Excluded from our warranty are all parts that are subject to wear and tear due to use, in particular bearings (excluding carousel bearings), joints, excavator buckets, shafts, chains, ropes, running surfaces, powder coatings, as well as defects and damage caused by improper assembly or assembly not in accordance with our assembly instructions, wilful destruction and vandalism or lack of maintenance.

6.5 Under certain conditions, surface corrosion, discoloured surfaces and other cosmetic damage may occur on metal surfaces due to outdoor use. So-called flash rust can occur on stainless steel surfaces. The cause of this is contact with rusting iron parts brought in from outside and not the material itself. Appearances of this kind do not justify any rights or claims under the guarantee granted here.

6.6 In the event of a warranty claim, we have the choice of repair or delivery of equivalent replacement goods and their professional installation. Synthetic fall protection will not be restored. Other rights and claims of the Customer against us, in particular for damages, are not granted with this guarantee and are excluded from this guarantee. Any contractual or statutory rights and claims of the Customer against us remain unaffected by this.

6.7 Rights and claims arising from the guarantee granted here only exist on condition that the equipment is maintained by trained personnel and in accordance with our specifications and, if necessary, is repaired professionally using original spare parts. Proof of proper maintenance (submission of complete inspection and maintenance reports in accordance with the requirements of DIN EN 1176, Part 7) shall be provided by the customer or the operator of the play equipment.

6.8 The assertion of claims under the guarantee requires the presentation of the invoice with the date of purchase. Warranty claims can only be asserted within a preclusive period of 10 working days from discovery of the warranty claim.

7. WARRANTY, CLAIMS FOR DEFECTS

7.1 The Customer's rights and claims for defects shall be subject to compliance with its obligations to inspect and notify defects in accordance with § 377 HGB (German Commercial Code). The delivered items must be carefully inspected immediately after delivery to the Customer or to the third party designated by the Customer. With regard to obvious defects or other defects that would have been recognisable during an immediate, careful inspection, they shall be deemed to have been approved by the Customer if the Customer does not notify us of them in writing within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Customer if we do not receive the notice of defects within seven working days of the time at which the defect became apparent; however, if the defect was already apparent at an earlier time under normal use, this earlier time shall be decisive for the start of the notice period.

7.2 We shall not assume any warranty for defects that are attributable, for example, to a goods description, specification of the Customer or any other statement of the Customer. Furthermore, our responsibility does not extend to parts, materials and other equipment manufactured and/or made available to us by the Customer or by third parties on the Customer's behalf. Unless expressly agreed otherwise, the Customer shall be responsible for checking and guaranteeing the suitability of the installation substrate.

7.3 Our warranty for defects also does not cover defects or damage caused by improper use or storage, misuse, incorrect commissioning, modification or unauthorised repair, natural wear and tear or other reasons within the sphere of the Customer. Rights and warranty claims shall also not exist for such defects or damage which are attributable to the fact that the Customer modifies the delivery item or has it modified by third parties without our consent and the rectification of defects is thereby made impossible or unreasonably difficult; insofar as we rectify defects in this case or provide subsequent fulfilment for this purpose, the Customer shall bear the additional costs of subsequent fulfilment arising from the modification carried out or arranged by it.

7.4 In the event of a complaint, we shall be entitled, at our discretion, to demand that the Customer send us the rejected goods for inspection or subsequent fulfilment, make them available to us, allow us access to them or send us photos of them. For the purpose of subsequent fulfilment, we have the right to rectify defects at our discretion by way of repair or replacement delivery. In the event of failure or impossibility, unreasonableness, refusal or unreasonable delay in subsequent fulfilment by us, the Customer may withdraw from the contract or reduce the price without prejudice to any claims for damages.

7.5 In the event of defects in components from other manufacturers which we are unable to rectify for licence or factual reasons, we shall, at our discretion, assert the warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. Warranty claims against us for such defects shall only exist under the other conditions and in accordance with these GTC if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency.

7.6 Claims of the Customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded if the expenses increase because the goods delivered by us have been taken to a place other than the Customer's delivery address at the Customer's instruction, unless the transfer corresponds to the contractually stipulated purpose. If we incur such costs in the course of subsequent fulfilment, the Customer shall reimburse these costs.

7.7 The warranty period for claims for defects of the Customer that are not subject to the 5-year period of § 438 or § 634 BGB is 1 year. The warranty period shall commence upon delivery of the goods. The warranty period of one year shall also apply to wearing parts whose ageing is caused by use, in particular all moving parts, as well as to components whose ageing is caused by environmental influences.

7.8 In the event of fraudulent concealment of a defect or in the event of the assumption of a guarantee for the quality of the goods at the time of the transfer of risk within the meaning of § 444 BGB, the rights of the Customer shall be governed exclusively by the statutory provisions or the guarantee assumed.

8. INSTALLATION SERVICES

8.1 Assembly services are generally not included in the scope of services and must be ordered separately by the Client. The provisions of this Section 8 shall only apply if the Principal has additionally commissioned assembly services. In this case, the provisions of VOB/B and VOB/C in the version applicable at the time of conclusion of the contract shall apply to the assembly services in addition to the GTC.

8.2 In the event of additional commissioning of assembly services by the Customer, the place of delivery shall be the assembly company commissioned by us.

8.3 The client is responsible for the safety of the construction site. When commissioning the installation, the client is obliged to provide us with the route of all supply and disposal lines, underground cables, etc. in good time before the start of the installation and to provide precise information on the location and orientation of the equipment and the installation substrate.

8.4 The Customer shall be obliged to bear and reimburse us for any damage, costs and additional expenses incurred as a result of the Customer providing incorrect or incomplete information on the route of supply and disposal lines, underground cables, etc. as well as on the location, alignment of the equipment and the installation substrate.

8.5 The Customer shall provide the necessary preliminary services for the assembly work to be carried out, which are necessary for a proper construction process, at its own expense. If additional services and additional expenses are necessary on our part, which are attributable to inadequate preliminary work by the Customer, the Customer shall reimburse us for these costs.

8.6 Our installation prices only apply to installations in floor classes 1 and 3 in accordance with DIN 18300, 2019 edition.

8.7 The Client shall be liable for any damage to the installed device, e.g. due to vandalism, signs of use or environmental influences, from the time of completion of the installation.

8.8 If acceptance is required, the delivery and the installation work shall be deemed to have been accepted if

• the delivery has been made and the installation has been completed,
• we have informed the client of this with reference to the fictitious acceptance and requested him to accept,
• six working days have elapsed since installation or the client has started using the installed device (e.g. has put the delivered system into operation) and in this case six working days have elapsed since installation and
• the Customer has failed to accept the goods within this period for a reason other than a defect notified to us which makes the use of the installed appliance impossible or significantly impairs it.

9. LIMITATION OF LIABILITY

9.1 In the event of a breach of material contractual obligations due to slight negligence, our liability shall be limited to compensation for foreseeable damage typical of the contract. Essential contractual obligations in this sense are those whose breach jeopardises the achievement of the contract or whose fulfilment is essential for the proper execution of the contract and on whose compliance the client may regularly rely. In this case, our liability shall be limited to the amount covered by our public liability insurance or financial loss liability insurance.

9.2 We shall be liable in accordance with the statutory provisions for the culpable breach of material contractual obligations, for the absence of guaranteed characteristics and for injury to life, limb and health. Our liability under the Product Liability Act also remains unaffected.

9.3 Insofar as our liability for damages is limited or excluded in accordance with these GTC or a limitation period for liability claims is shortened, this shall not apply in the event that we are responsible for the damage due to wilful intent or gross negligence.

9.4 The above provisions do not imply a change in the burden of proof to the detriment of the customer.

9.5 Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our legal representatives, employees and other vicarious agents.

10. COPYRIGHTS, INDUSTRIAL PROPERTY RIGHTS

10.1 We reserve the ownership and copyright rights of use and exploitation of all offers and cost estimates submitted by us as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Customer. The Customer is not authorised to make these items accessible to third parties, either as such or in terms of content, to disclose them to third parties, to use them itself or through third parties or to reproduce them without our express consent. At our request, the Customer shall return these items to us in full and destroy any copies made if the Customer no longer requires them in the ordinary course of business for the contractually intended purpose of their provision or if negotiations do not lead to the conclusion of a contract.

10.2 The client guarantees that he is the owner of the copyrights and industrial property rights to the planning documents provided to us that are necessary for the execution of our order. The Customer shall indemnify us on first demand against all costs, damages and expenses arising from the fact that a third party asserts claims against us for infringement of its rights in this respect. The Customer shall assume all costs incurred by us as a result and shall reimburse us for lost profits if the order cannot be executed or fulfilled in full or at all as a result.

11. PROHIBITION OF ASSIGNMENT

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

12. APPLICABLE LAW, PLACE OF JURISDICTION

12.1 The law of the Federal Republic of Germany shall apply exclusively. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.

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

12.3 The exclusive local and international place of jurisdiction is Eystrup, Federal Republic of Germany. We are also authorised to conduct legal proceedings against the Customer at its general place of jurisdiction.

Status: Eystrup, January 2022