Terms & Conditions – KFS GROUP GmbH, Version 05
German / English

General Terms and Conditions
1.         Scope
1.1.      These General Terms and Conditions (hereinafter “T&C”) apply to all contracts – even future ones – for deliveries or other services including KFS GROUP contracts for labor, work and materials. No contracts are concluded with consumers. Agreements that differ from or supplement the T&C have priority over the T&C if the parties have agreed this in writing. These conditions are considered to have been agreed at the latest on receipt of the services by the customer.
1.2.    The customer’s T&C that vary from these conditions, even if KFS GROUP is aware of these conditions and still provides the services, are only valid if and to the extent to which these have been confirmed as valid in writing instead of these T&C by KFS GROUP.
1.3.    KFS GROUP is entitled to modify these conditions if this is necessary due to unpredictable developments that cannot be influenced by KFS GROUP and were not caused by KFS GROUP in order to restore the equivalence status between the contracting parties that existed when the contract was concluded and key regulation content of the contract (e.g. the type and scope of the service required under the contract, termination) is not affected. Changes to these T&Cs are also possible if difficulties occur when implementing the contract due to gaps in these conditions, e.g. jurisprudence considers a clause to be ineffective.
2.       Quotation and signature of contracts
2.1.    Orders issued by the customer are always considered to be binding. The contract only exists after the receipt of and in line with the content of a written order confirmation from KFS GROUP by the customer or at the latest on delivery of the goods ordered or services requested (hereinafter summarized as “services/goods”) or by the provision of the agreed service (hereinafter also summarized as “subject of the contract”) by KFS GROUP.
2.2.   The service features of the services and subjects of the contract are finally described in the service description of the relevant individual contract between KFS GROUP and the customer or the order confirmation. Catalogue statements, drawings, images, measurements, weights and other features are only binding if they have been expressly confirmed. This also applies to properties that can be expected in line with public statements by KFS GROUP or its agents, in particular in advertisements or by marking the goods. Technical and design variations that are reasonable for the customer and differ from statements made in brochures, catalogues, written documents as well as changes to models, designs and materials due to technical progress and further development may occur without this resulting in claims against KFS GROUP.
2.3.   If the subject of the contract between KFS GROUP and the customer is consulting or other services, these are only provided by KFS GROUP as a labor or delivery contract if this has been expressly agreed. In addition, KFS GROUP is not liable as a matter of principle for any consulting or other success. The services to be provided by KFS GROUP in individual cases depend on the content stated in the order confirmation.
2.4.   KFS GROUP does not undertake any guarantee in legal terms for the existence of particular characteristics of the services or goods provided if this is not expressly agreed.
3.       Delivery and service terms
3.1.    A delivery date or service provision date is agreed by KFS GROUP in writing in line with the expected ability to provide and is to be understood as subject to ontime selfdelivery and unforeseen circumstances and impediments, no matter whether these occur at KFS GROUP or another company from which KFS GROUP purchases the goods or services in full or in part. These circumstances and impediments extend the delivery or service date as relevant, even if they occur during a delay that already exists. Any subsequent period set by the customer is also extended in this case by the duration of the circumstances and impediments. KFS GROUP reserves the right to withdraw from the contract if the delay to the delivery or service resulting from a circumstance or impediment is longer than six weeks and for which KFS GROUP is not responsible.
3.2.   Adherence to the agreed written delivery periods and those for provision of services requires that the customer provides all information required for the delivery or provision of the service in good time, especially the relevant duties of cooperation. If this is not the case the delivery period or period to provide the service is extended as appropriate.
3.3.   KFS GROUP is entitled to provide reasonable partial deliveries and services.
4.       Prices and payment terms
4.1.    The deliveries and services provided by KFS GROUP are remunerated as per the individual agreement made via a fixed price or time incurred. Consulting and other services by KFS GROUP, if nothing further is agreed in the order confirmation, arr always remunerated in line with the time incurred. The level of the hourly/daily rates is taken from the agreed prices in the written order confirmation.
4.2.   Our written order confirmation is decisive for the scope of the delivery and setting the remuneration by a fixed price or as time incurred. If this varies from the order or customer’s purchase order it is still decisive if the customer does not contradict it without delay or accepts services from KFS GROUP without restriction.
4.3.   All prices are net and exclude any supplements and the relevant statutory value-added tax. Supplements may include travel expenses, accommodation costs, subsistence cost, telecommunication cost, printing cost, copying and postal cost. Net prices for the delivery of goods are understood as including normal packaging and exclude shipment costs and/or costs for transport insurance – if such has been concluded for the individual case – if nothing further has been expressly stated.
4.4.  KFS GROUP is entitled to issue partial statements and to demand partial payments.
4.5.   For fixed price agreements – if nothing further has been agreed – sub-invoices will be issued as incurred for the fixed price each week or fortnight. If KFS GROUP is remunerated by an agreed hourly rate, KFS GROUP is entitled to issue intermediate invoices for the services provided each week or fortnight.
4.6.  Invoices are due for payment at the latest 14 days after the invoice date if the relevant invoice does not state a different due date. The receipt of the payment by KFS GROUP is key to deciding whether the payment was received in good time. If the customer has delayed payment of the invoice, the delay interest is 8% per year above the relevant basic interest rate of the European Central Bank. If payment is not received by the due date KFS GROUP is entitled to terminate the contract without notice.
4.7.  KFS GROUP reserves the right to reject cheques or bills of exchange. They are only ever accepted on account of performance.
4.8.  The customer is only entitled to offset or retain payment if the counterclaims have been determined in a legally binding manner or have been expressly recognized
5.        Granting of usage rights
5.1.    KFS GROUP is entitled to exclusive usage and sale rights to any work results that are subject to trademark rights (e.g. copyrights, patents, utility patents or registered designs) created by KFS GROUP whilst providing the services.
5.2.   The customer receives simple usage rights exclusively for the purpose stated in the contract. The granting of other usage, transfer or editing rights to the customer always requires special, express agreement.
6.       Warranties for defects
6.1.    With regard to the services provided, KFS GROUP is not liable for the economic or other success of the service desired by the customer.
6.2.   In cases of material defects to the services/goods, KFS GROUP may select subsequent improvement or delivery. Exchanged parts are transferred to the ownership of KFS GROUP without compensation. If KFS GROUP does not correct faults of which it is aware within an appropriate, written subsequent period or two attempts at subsequent improvement fail, the customer is entitled either to withdraw from the contract or to demand an appropriate discount. If the customer chooses to withdraw from the contract due to legal or material defects following a failed attempt at subsequent fulfilment, he will not be entitled to damages resulting from the defect unless binding compulsory legal provisions state something to the contrary. Warranty claims lapse one year after acceptance or transfer of the goods or services except in cases of deliberate action or the warranty explicitly taken over by KFS GROUP for the characteristics of the item supplied; in this case the statutory limitation periods apply.
6.3.   Warranty claims against KFS GROUP are excluded if the customer makes changes or intervenes in the services/goods provided or uses these improperly. The warranty is not waived if the customer can prove that the changes, interventions or improper usages are not connected to the asserted defect.
6.4.  Warranty claims are only applicable to the customer as a direct contractual partner of KFS GROUP and can not be assigned.
7.        Liability
7.1.    KFS GROUP is only liable for claims for damages no matter their legal basis

a)       for damages caused by deliberate action by statutory representatives or serious organizational action, without limitation to their level;

b)      whilst limiting their level to damages that are typical of the contract and predictable, for damages from the culpable infringement of a key contractual obligation (a so-called cardinal duty, i.e. an obligation only the fulfilment of which permits the proper implementation of the contract and on which the contractual partners regularly trust or may trust), or for damages caused by the deliberate action or infringement of key contractual obligations by a vicarious agent of KFS GROUP.

7.2.   The liability for negligence (including distant subsequent damages) is restricted in each individual case of damages to the amount of the contractual fee, for ongoing debt relationships to the annual fee. In the case that the level of the restriction stated above in the individual case is not in an appropriate relationship to the risk of damages that are typical of the contract, KFS GROUP’s liability for negligence is restricted in all cases to the level of the coverage sum of KFS GROUP’s business liability insurance (max. € 10,000,000.00 per claim, max. € 20,000,000.00 per year). Such claims lapse after one year. Liability due to fraud, personal injury and pursuant to the German Product Liability Act is unaffected by this.
7.3.   KFS GROUP is not liable for the loss of data if the damage would not have occurred if the customer had undertaken proper data backup for which it is responsible. Proper data backup can be assumed if the customer backs up his data records in machine-readable form at least once a day and therefore guarantees that this data can be restored at reasonable cost. The liability of KFS GROUP for the loss of data is restricted to the typical cost of restoration that would have occurred if proper data backups were made.
8.       Reservation of title
8.1.    KFS GROUP reserves the title on all services/goods supplied until complete fulfilment of all claims by KFS GROUP from the current business relationship. Before transferring the title, the goods may not be pledged or subject to a chattel mortgage. Further sales are only permitted within the framework of a proper business process. In case of further sale of conditional commodities, the customer assigns his full purchase price claim on conclusion of the contract against the purchaser to KFS GROUP.
8.2.   If the customer has delayed payment in full or part, stops payments or there is other justified doubt about his ability to pay or creditworthiness, he is no longer entitled to utilize the goods. KFS GROUP can in such cases withdraw the customer’s recovery authorization from the recipient of the goods. KFS GROUP is then entitled to demand information about the recipient of the goods, to inform him of the transfer of claims to KFS GROUP and to recover the customers liability from the recipient of the goods.
9.       Obligation to co-operate
9.1.    The customer is aware that KFS GROUP depends on customer cooperation to provide the services that are covered by the contract. The customer is obliged to provide all documents and information that are required to carry out the services covered by the contract in good time and in full and to provide appropriate access to its rooms and systems to employees and any subcontractors or vicarious agents of KFS GROUP who have been instructed to provide the services covered by the contract for the purposes of implementing the requested services to the extent necessary to implement the contract.
9.2.   As part of its duty of cooperation the customer is obliged in particular on request by KFS GROUP employees who are instructed to provide services, to provide suitable rooms without charge and in good time where the documents, work resources or data media can be stored safely.
9.3.   All customer cooperation duties are provided without charge, if nothing further has been expressly agreed.
9.4.  If the customer does not adhere to his cooperation duties, or does not do so in good time, KFS GROUP can set the customer an appropriate period to fulfil its cooperation duties. If the cooperation duties are not fulfilled within the period set by KFS GROUP, KFS GROUP is entitled to terminate the contract for a compelling reason. Any termination does not affect other claims by KFS GROUP.
10.     Nondisclosure
10.1.  The contractual parties are obliged to treat any information and/or knowledge on internal business or operational matters that is subject to nondisclosure and of which they become aware concerning the other contractual party and/or their business partners in the strictest confidence and not to make them accessible to third parties during the contractual period and two years after it ends. This obligation does not apply if the contractual party who is obliged to maintain confidentiality proves that he was aware of the information before the cooperation with the other contractual partner, was informed of it by authorized third parties or became aware of it without this being the responsibility of the contractual party that is obliged to maintain confidentiality.
10.2.It is clear that the nondisclosure duty does not apply to work produced by the customer or services provided by the customer unless these contain information that requires non-disclosure as stated in Number 10.1..
11.      Publicity

KFS GROUP is proud to record its work for customers as case studies, in brochures and media articles. KFS GROUP typically exhibits a selection of customer projects in displays on its premises and at commercial exhibitions. These displays identify customers and provide a generic description of the work undertaken by KFS GROUP. KFS GROUP also refers to customers projects in its qualification statements for use in proposals. However, KFS GROUP does not under any circumstances reveal confidential information.  KFS GROUP will obtain written permission in advance for any other use of Client’s name.

12.     Non-Solicitation of Employees and Consultants

During the period of service and for a period of twenty-four (24) months after the date of the termination of relationship, the customer shall not directly or indirectly through any other person

a)       induce or attempt to induce any employee, independent contractor or any employee of a contractor of KFS GROUP to leave the employ or service, as applicable, or in any way interfere with the relationship between KFS GROUP, on the one hand, and any employee or independent contractor thereof, on the other hand, or

b)      b) hire any person who was an employee of KFS GROUP, in each case, until 12 months after such individual’s employment relationship with KFS GROUP has been terminated.

For each breach customer will be billed one-hundred-thousand (100,000) EUR and for the continuation of such breach for any consecutive year fifty-thousand (50,000) EUR per year.

13.     Rights of third parties

The customer is responsible for not infringing the rights of third parties if KFS GROUP executes the order as per its requirements. If KFS GROUP is engaged by a third party the customer is obliged to indemnify KFS GROUP for these claims. The indemnification duty also refers to all costs borne by KFS GROUP regarding claims by a third party.

14.     Final provisions
14.1.  The customer is not entitled to transfer claims from the existing contractual relationship between himself and KFS GROUP to third parties unless KFS GROUP expressly agrees to this transfer.
14.2.Individual variances and/or additions to the rules in these T’s & C’s must be in writing. The right of KFS GROUP to the one-sided modification of its T’s & C’s as stated in Number 1.3. remains unaffected by this.
14.3.German law is applicable to the exclusion of all others. The application of United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded
14.4.           The whole text of the present document, as well as the documents derived from it, including those in the Annexes (if applicable), have been written in German and English, both versions being deemed authentic, but for legal purposes the text in German is to be given priority of interpretation.
14.5.The exclusive court of jurisdiction for all disputes from the business relationship is agreed to be the court responsible for KFS GROUP’s head office.
14.6.            Should a provision of these T’s & C’s be or become void, the validity of the remaining provisions of the T’s & C’s shall not be affected. The statutory provision shall replace the ineffective provision.