Terms and Conditions

General Terms and Conditions

The following general terms and conditions (hereinafter referred to as T) are agreed between Kaiser Kühne Freizeitgeräte GmbH, Eystrup, and the client (hereinafter referred to as Client).

1. SCOPE OF APPLICATION AND ORDERS

1.1 These TC are an integral part of all our offers and order confirmations to the Client and for all contracts between us and the Client regarding our deliveries and services. These TC also apply to all future offers, order confirmations, and contracts for our deliveries and services, even if they are not specifically mentioned or expressly agreed upon again therein.

1.2 Unless expressly agreed otherwise, our TC apply exclusively. Conflicting general terms and conditions of the Client, which contradict, supplement, or deviate from our TC, shall not become part of the contract, even if the Client includes them in their order or acceptance of our offer and we do not expressly object to them, or if we perform our deliveries and services without reservation despite knowledge of these general terms and conditions of the Client. Our TC shall also become part of the contract even if the Client objects to the inclusion of our TC in their order, their acceptance of our offer, or in their general terms and conditions.

1.3 Individual agreements made with the Client in specific cases (including collateral agreements, supplements, and amendments) take precedence over these TC. For the content of such agreements, a written contract or our written confirmation shall be decisive, subject to proof to the contrary.

1.4 Information provided by us regarding the subject of delivery or service (e.g., weights, dimensions, utility values, load capacity, tolerances, and technical data) as well as our representations thereof (e.g., drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. Such information in our offers, order confirmations, or other documents or statements are not guarantees of quality characteristics, but rather descriptions or designations of the delivery or service. Customary deviations and deviations resulting from legal regulations or representing technical improvements, as well as the replacement of components with equivalent parts, are permissible, provided they do not impair the usability for the contractually intended purpose.

1.5 These TC apply exclusively to companies and entrepreneurs within the meaning of § 14 BGB, legal entities under public law, and special public funds.

2. CONCLUSION OF CONTRACT, PRICES, RIGHT OF CANCELLATION

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

2.2 Incoming orders from the Client are binding for the Client. Unless otherwise stated, we are entitled to accept such a contractual offer from the Client within 2 weeks of its receipt by us.

2.3 If the period between the conclusion of the order and the agreed date of delivery or service exceeds four months, we are entitled to pass on any material price and wage increases occurring during this period to the Client. The same applies 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 Client and more than four months lie between the conclusion of the order and the new delivery date.

2.4 All prices are in Euros ex works, plus statutory value-added tax and freight costs according to the respective current freight price lists or, if cost components are not included therein, in the amount of the actually incurred costs. For export deliveries, the Client shall additionally bear customs duties, fees, and other export-related public charges.

2.5 We are entitled to demand reimbursement from the Client for costs of transport- and/or customer-specific special packaging, customer-specific insurance, assembly services, and unloading assistance, as well as for different shipping methods and delivery to destinations other than those specified in the order confirmation, and to invoice these or the cost difference separately to the Client.

2.6 Expenses incurred due to changes in the type or scope of delivery or service at the Client’s request after our order confirmation and/or due to the fulfillment of subsequent or unforeseeable official requirements and demands will also be invoiced separately from the agreed purchase price.

2.7 We grant the Client 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, particularly orders from sub-suppliers, the Client shall reimburse us for the costs incurred up to the time of receipt of the cancellation declaration. If the Client’s cancellation declaration reaches us after a period of one week from the receipt of our order confirmation, we shall be entitled to compensation from the Client, in addition to this cost reimbursement, in the amount of 20% of the order value plus any applicable value-added tax. We are not obliged to reverse mutual services rendered up to the receipt of the cancellation declaration; we are entitled to offset advances or partial payments received from the Client for services rendered up to that point against our claims against the Client and will refund them after such offsetting.

3. DELIVERY

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

3.2 The delivery period only begins when all technical questions and other details of the order have been clarified with the Client and the Client has duly and timely fulfilled their other contractual obligations. These obligations of the Client include, in particular, the timely provision of the delivery location and the payment of an agreed down payment. We are entitled – without prejudice to our rights and claims due to the Client’s default – to demand from the Client an extension of deadlines or a postponement of dates for delivery and service for the period during which the Client fails to fulfill their contractual obligations to us and order clarity does not exist.

3.3 The fulfillment and compliance with our delivery and service obligations presupposes timely and correct self-delivery to us. In the event of delayed or non-delivery (impossibility) due to simple negligence on the part of our sub-suppliers, we shall not be liable; however, we undertake to assign any claims for compensation against the sub-suppliers to the buyer.

3.4 In cases of force majeure and other unforeseeable or unavoidable events for which we are not responsible and which significantly impede or temporarily make impossible, in whole or in part, the provision of our delivery and service, in particular strikes, lockouts, official orders, transport disruptions, raw material shortages, difficulties in energy procurement, transport and import restrictions, supply bottlenecks, war, civil unrest, epidemic or pandemic situations, even if they occur with our suppliers or sub-suppliers, 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 period, usually at least 21 days. We will promptly inform the Client of the occurrence and the expected or actual end of such an event as soon as we become aware of it. If the impediment to performance lasts longer than three months, both contracting parties have the right to withdraw from the contract. The withdrawal extends to the unfulfilled part of the contract, unless partial deliveries and services already rendered are unusable for the Client. Claims for damages are excluded in this case.

3.5 We are entitled to make partial deliveries if the partial delivery is usable for the Client within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured, and the Client does not incur significant additional effort or costs as a result, unless we declare our willingness to cover these costs. We are entitled to invoice permissible partial deliveries upon their provision.

3.6 If the Client defaults on acceptance or culpably violates their duties to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. The Client’s obligation to pay the purchase price when due remains unaffected. In cases of default of acceptance, we will arrange for storage at the Client’s risk and expense. At the Client’s request and against reimbursement of costs by them, we will insure the goods. Further rights and claims remain expressly reserved to us.

3.7 Delivery shall be made to the agreed destination at the delivery point to be designated by the Client. The ordered goods are delivered disassembled. Unless the Client has commissioned us for assembly services, delivery will be made without unloading. In this case, the Client is responsible for the timely provision of suitable technical unloading equipment and personnel for unloading, as well as for the unloading process.

3.8 Unless otherwise agreed, the risk of accidental loss or accidental deterioration passes to the Client ex works upon handover to the forwarding agent or carrier. Unless otherwise agreed, we deliver through a forwarding agent or carrier designated by us. In the case of self-collection, this risk passes to the Client upon leaving the manufacturer’s plant or warehouse.

4. INVOICING, PAYMENT

4.1 Invoices are sent as standard via electronic transmission. In agreed cases or at the Client’s request, invoicing can be done in paper form. The Client agrees that we will issue and transmit our invoices to the Client electronically. The Client is obliged to maintain the necessary technical requirements for receiving and checking the electronic invoice and to promptly provide us with the relevant contact details. All payments from the Client must be made to us free of charge and expenses by bank transfer.

4.2 Unless expressly agreed otherwise, our invoices are due upon invoicing and payable without deduction within 30 days from the 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 the receipt of the advance payment.

4.3 The Client shall be in default without further reminder if payment is not made within the payment deadlines applicable to the invoices or partial payment requests. In case of default of payment, we are entitled to charge the Client default interest at a rate of 9 percentage points above the respective applicable base interest rate per annum. The assertion of further statutory or agreed rights and claims due to default, in particular for damages or higher interest (including statutory maturity or default interest), remains reserved to us. In case of default of payment by the Client, all our claims against the Client become immediately due and further deliveries from us will only be made against advance payment.

4.4 The assertion of retention and set-off rights by the Client requires that their claim against us has been legally established or that we have acknowledged it.

4.5 If, after conclusion of the contract, we become aware of facts indicating that our payment claim is jeopardized due to the Client’s inability to perform, particularly due to a deterioration of their financial situation, payment default from previous deliveries, suspension of payments, or an application for the opening of insolvency proceedings, or if, according to sound commercial judgment, the Client’s creditworthiness is questionable, we are entitled to refuse delivery and service until our payment claims are fulfilled or adequate security is provided for them. Any agreed discounts and rebates shall then be forfeited.

5. RETENTION OF TITLE

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

5.2 The Client shall store the Retained Goods free of charge for us. They are obliged to adequately insure the Retained Goods at their own expense until ownership passes, particularly against theft, fire, natural disasters, and other damage.

5.3 In the event of contractual breach by the Client, particularly non-payment of the due purchase price, we are entitled, in accordance with statutory provisions, to withdraw from the contract and/or to demand the return of the Retained Goods based on the retention of title. The demand for return does not simultaneously imply a declaration of withdrawal; rather, we are entitled merely to demand the return of the goods and to reserve the right to withdraw from the contract. If the Client does not pay the due purchase price, we may only assert these rights if we have previously unsuccessfully set a reasonable deadline for payment to the Client or if such a deadline is dispensable according to statutory provisions.

5.4 The Client is revocably entitled to process the Retained Goods and to sell them, processed or unprocessed, in the ordinary course of business. If payment default occurs, if the Client culpably violates their obligations under the contract, or in the other cases mentioned above in 5.3, we are entitled to revoke the authorization for resale.

5.5 If the Retained Goods are processed by the Client, the processing is carried out on our behalf and for us as the manufacturer free of charge and without further obligation on our part, such 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 Retained Goods, co-ownership (fractional ownership) of the newly created item in proportion to the invoice value of the Retained Goods to the value of the newly created item. If no such acquisition of ownership occurs on our part, the Client hereby transfers their future ownership or – in the aforementioned proportion – co-ownership of the newly created item to us as security. If the Retained Goods are combined with other items to form a single item or are inseparably mixed, and one of the other items is to be regarded as the main item, we shall transfer to the Client, insofar as the main item belongs to us, a proportionate co-ownership of the single item in the aforementioned proportion.

5.6 The Client hereby assigns to us as security all present or future claims against the purchaser – in the case of our co-ownership of the Retained Goods proportionately according to the co-ownership share – which arise from the resale or further processing of the Retained Goods against third parties. This also includes such claims of the Client against third parties that replace the Retained Goods or otherwise arise with respect to the Retained Goods, such as insurance claims or claims arising from tort in the event of loss or destruction of the Retained Goods. We accept this assignment. At the same time, the Client authorizes us to collect these claims in the name and for the account of the Client, insofar as the assignment of claims requires the consent of the third party. Furthermore, the Client irrevocably authorizes us to submit all declarations in accordance with § 16 paragraph 6 sentence 2 VOB/B to the building client on behalf of the Client.

5.7 The client shall remain revocably authorized to collect the assigned claim in trust for us in accordance with 5.6 above and is obliged to transfer payments received in this respect to us in the amount of the invoice value. We will not collect the claim as long as the client meets its payment obligations to us, there is no lack of its ability to perform and we do not assert our right in accordance with 5.3 above. If this is the case, however, we may demand that the client informs us of the assigned claims and their debtors, provides all information required for collection, hands over the associated documents and notifies the debtors of the assignment.

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

5.9 We will 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 is at our discretion.

6. GUARANTEE

6.1 We grant a guarantee as follows and for the following guarantee periods:

30 years on

• Breakage and rotting through of robinia wood/robinia plywood uprights with pipe base,
• all parts made of stainless steel (e.g. material quality 1.4301)
• all parts made of hot-dip galvanized steel.

5 years on

• Swing axles,
• Carousel bearings,
• all remaining parts, unless they are wearing parts (see below).

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

6.3 Guarantee claims are excluded for corrosion-related damage to products that have 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 splash water. Otherwise, a limited guarantee with a guarantee period of 5 years applies in the event of corrosion for installation distances from the coastline of up to 200 meters.

Weather-related drying cracks in vertically installed wooden uprights do not justify any rights and claims under the guarantee (cf. supplement to DIN EN 1176, note on 4.2.7.6).

6.4 Excluded from our guarantee 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 installation or installation that does not comply with our installation instructions, willful destruction and vandalism or inadequate maintenance.

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

6.6 In the event of a guarantee claim, we have the choice of rectification or delivery of equivalent replacement goods and their professional installation. Synthetic fall protection will not be restored. Other rights and claims of the client 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 client against us remain unaffected.

6.7 Rights and claims under the guarantee granted here only exist on the condition that the equipment is maintained by trained personnel and in accordance with our specifications, and that professional repairs are carried out using original spare parts if necessary. 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 client or the operator of the playground equipment.

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

7. WARRANTY, CLAIMS FOR DEFECTS

7.1 Rights and claims of the client due to defects require compliance with its obligations to examine and give notice of defects in accordance with § 377 HGB [German Commercial Code]. The delivered items must be carefully inspected immediately after delivery to the client or to the third party designated by it. With regard to obvious defects or other defects that would have been recognizable in the event of an immediate, careful inspection, they shall be deemed to have been approved by the client if the client does not notify us of them by written notice of defects within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the client if the notice of defects is not received by us within seven working days of the point in time at which the defect appeared; however, if the defect was already obvious at an earlier point in time during normal use, this earlier point in time shall be decisive for the start of the notification period.

7.2 We do not assume any warranty for defects that are attributable, for example, to a product description, specification of the client or any other statement of the client. Furthermore, our responsibility does not extend to parts, materials and other equipment provided by the client or by third parties on its behalf and/or made available to us. Unless expressly agreed otherwise, the client is responsible for checking and guaranteeing the suitability of the installation surface.

7.3 Our warranty for defects also does not cover any defects or damage that arise due to improper use or storage, misuse, faulty commissioning, modification or unauthorized repair, natural wear and tear or other reasons within the client’s sphere of responsibility. Rights and claims due to warranty also do not exist for such defects or damage that are attributable to the fact that the client changes the delivery item without our consent or has it changed by third parties and the rectification of defects is thereby made impossible or unreasonably difficult; insofar as we rectify defects in this case or provide subsequent performance for this, the client shall bear the additional costs of subsequent performance caused by the change carried out or arranged by it.

7.4 In the event of a complaint, we are entitled, at our discretion, to demand that the client sends the rejected goods to us for inspection or subsequent performance, makes them available to us, allows us access to them or sends us photos of them. We have the right, for the purpose of subsequent performance, to remedy defects at our discretion by means of rectification or replacement delivery. In the event of failure or in the event of impossibility, unreasonableness, refusal or unreasonable delay of subsequent performance by us, the client 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 that we cannot remedy for licensing or factual reasons, we will, at our discretion, assert the warranty claims against the manufacturers and suppliers for the account of the client or assign them to the client. Warranty claims against us exist in the event of such defects under the other conditions and in accordance with these General Terms and Conditions only if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is hopeless, for example due to insolvency.

7.6 Claims of the client for expenses required for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded if the expenses increase because the goods delivered by us have been brought to a place other than the delivery address of the customer on the instructions of the client, unless the transfer corresponds to the contractually intended purpose. If we incur such costs within the scope of subsequent performance, the client shall reimburse these.

7.7 The warranty period for claims for defects of the client that are not subject to the 5-year period of § 438 or § 634 BGB [German Civil Code] is 1 year. The warranty period begins with delivery of the goods. The warranty period of one year also applies to wearing parts whose aging is caused by use, in particular all moving parts, as well as to components whose aging 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 condition of the goods at the time of the transfer of risk within the meaning of § 444 BGB, the rights of the client shall be governed exclusively by the statutory provisions or the assumed guarantee.

8. INSTALLATION SERVICES

8.1 Installation services are generally not included in the scope of services and must be commissioned separately by the client. The provisions of this section 8 only apply if installation services have also been commissioned by the client. In this case, the provisions of VOB/B [German Construction Contract Procedures, Part B] and VOB/C [German Construction Contract Procedures, Part C] in the version valid at the time of conclusion of the contract shall apply to the installation services in addition to the General Terms and Conditions.

8.2 In the event of additional commissioning of installation services by the client, the delivery point is the installation company commissioned by us.

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

8.4 The client is obliged to bear and reimburse us for damages, costs and additional expenses that arise because the client provides incorrect or incomplete information on the course of supply and disposal lines, underground cables, etc. as well as on the location, orientation of the equipment and installation surface.

8.5 The client shall provide the necessary advance services for the installation services to be performed, which are necessary for a proper construction process, at its own expense. If additional services and additional expenses become necessary on our part, which are attributable to inadequate advance services on the part of the client, the client shall reimburse us for these costs.

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

8.7 The client is liable from the completion of the installation for any damage to the installed equipment, e.g. due to vandalism, signs of wear or environmental influences.

8.8 If an acceptance is to take place, the delivery and the installation service shall be deemed accepted if

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

9. LIMITATION OF LIABILITY

9.1 In the event of a breach of essential contractual obligations due to slight negligence, our liability shall be limited to compensation for the typical, foreseeable damage. Essential contractual obligations in this sense are those whose violation endangers the achievement of the contract or whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the client may regularly rely. In this case, our liability is limited in amount to the coverage amount of our business liability or pecuniary loss liability insurance.

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

9.3 Insofar as our liability for damages is limited or excluded in accordance with these General Terms and Conditions 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 intent or gross negligence.

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

9.5 Insofar as our liability is excluded or limited, this also applies 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 to all offers and cost estimates submitted by us as well as to drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the client. The client is not entitled 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 client must return these items to us in full and destroy any copies made if the client 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 it is the owner of the copyright and industrial property rights of the planning documents provided to us that are required for the execution of our order. The client shall indemnify us on first demand against all costs, damages and expenses that arise as a result of a third party asserting claims against us for infringement of its rights in this regard. The client shall bear all costs incurred by us as a result and shall reimburse us for the lost profit if the order cannot be executed or fulfilled in full or at all as a result.

11. PROHIBITION OF ASSIGNMENT

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

12. APPLICABLE LAW, 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 The place of performance is Eystrup, unless otherwise agreed.

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

Status: Eystrup, January 2022