Terms and Conditions of
K2 Systems GmbH
due to the inability to remedy the fault may only be declared within three
weeks after end of this period. The period is delayed for the duration of
(2) The customer may only demand the rescission of the contract due to
a delay in performance if we are exclusively or predominantly responsible
for the delay, unless after assessing the different interests, the adherence
to the contract cannot be reasonably imposed on the customer due to
(3) Any declarations made in this context shall only be valid if recorded
(4) Notice of termination in accordance with Section 649 BGB shall
remain valid in accordance with the legal regulations.
(5) We are entitled to cancel the contractual relationship with immediate
effect for the following reasons: if the customer has provided incorrect
information regarding its credit worthiness or definitively discontinued
payments or if proceedings have been filed against it for affirmation in
lieu of an oath, if insolvency proceedings have been filed regarding the
customer’s assets or comparable proceedings under different legal
systems have been commenced or if an application to do so has been
filed, unless the customer pays in advance without delay. Furthermore,
we may cancel the contractual relationship without delay if the customer
has to pay in advance and it is at least 14 days in default in this regard.
§ 9 Customer’s General Duties
(1) The customer is obliged to have all of our deliveries and services checked
by a competent employee either immediately after delivery, or on
receipt according to § 1, para. 1, or upon accessibility in accordance with
the commercial law regulations (Section 377 of the German Civil Code
(HGB)), and send notification of recognizable and/or recognized
defects immediately and in writing, including a detailed description of
(2) The customer acknowledges that we are dependent on its comprehensive
support in order to provide the deliveries and services owed by us
successfully and in a timely manner. The customer therefore undertakes
to provide all required information in full in a timely manner for the
service to be performed properly.
(3) The customer undertakes to test our services thoroughly for usability
in the specific application and to subject these to a functional test before
assembly, any subsequent delivery etc. This also applies to delivery items
which the customer receives free of charge within the terms of the
(4) The customer shall secure data that can be affected, negatively influenced
or endangered by our services at appropriate intervals, but at least
once daily, in a machinereadable form and shall thereby guarantee that
this data will be retrievable with reasonable effort.
(5) The customer shall take adequate precautions in case we partially or
completely fail to provide our deliveries and services appropriately (e.g.
by securing data, fault diagnosis, checking the results regularly, emergency
§ 10 Limitation of Use, Indemnity
(1) Unless otherwise explicitly agreed in writing, our services are not
intended for use in life-sustaining or life-supporting devices and systems,
nuclear power plants, for military purposes, application in aerospace or
other purposes where malfunction of the product can, within reasonable
assessment, lead to life-threatening situations or cause catastrophic
(2) If the customer breaches para. 1, this shall occur at the customer‘s
own risk and sole responsibility. The customer hereby indemnifies and
holds harmless both ourselves and the respective producer to the full
extent at first request from any liability resulting from the use of goods in
the above-mentioned contexts, including the cost of an appropriate
§ 11 Material Defects
(1) Our services have the stipulated properties and condition, and are
suitable for the contractually agreed use, or if no agreement is reached,
are fit for normal use. Without explicit further agreement, it is solely
guaranteed that our services will be free from defects in accordance with
the current state of the art. It is the customer’s sole responsibility
to guarantee the fitness and security of our services for an application
provided by the customer. A negligible reduction in quality shall not be
taken into account.
(2) Warranty is excluded:
a) if our products are not stored, installed, operated or used properly by
the customer or a third party,
b) in case of natural wear and tear,
c) if the product is not maintained properly,
d) if the product is used in connection with unsuitable equipment,
e) in case of defects caused by repairs or other work carried out by third
parties, which were not explicitly approved by us. It is the customer’s
responsibility to prove that these exclusion criteria do not apply. In addition,
the customer’s right to claim defects requires that it has properly
attended to its obligations to inspect and give notice of non-conformity
in accordance with § 9 para. 1 and has given notice of hidden defects in
writing immediately after their discovery.
(3) In case of material defects, we may firstly provide supplementary
performance. The supplementary performance shall be carried out according
to our choice by remedying the defect, by delivering goods and/or
services that do not have the defect, or by pointing out a possible way to
avoid the effects of the defect. At least two attempts to remedy a defect
have to be accepted. The customer shall accept an equivalent new
or earlier product version without defect as supplementary performance,
if this can be reasonably imposed on it.
(4) The customer shall support us in connection with the analysis of
errors and remedy of the defect by precisely describing any problems
occurring, by informing us comprehensively and giving us the necessary
time and opportunity to remedy the defect.
(5) We may demand payment if additional costs are incurred by us due to
our products or services being modified or incorrectly operated. We may
demand reimbursement of expenses if no defect is found. The burden of
proof shall lie with the customer. Section 254 BGB shall apply accordingly.
If expenses, including cost of transport, travel, work and material
increase during the attempt to remedy the defect, we are not obliged
to bear these costs if expenses increase due to the fact that the delivery
item was subsequently transported by the customer to a different place
than the place of delivery, unless the transport complies with its contractual
and intended use. Staff and material costs that the customer claims
due to defects of our services must be charged based on net costs.
(6) Defective goods may only be returned to us for the purpose of the
supplementary performance with the prior written consent in accordance
with the rules existing in our company. The risk of accidental loss or
deterioration of the goods shall only pass at the time of the acceptance
by us at our business premises.
(7) If we definitively refuse to remedy the defects, or if the remedy definitively
fails or is unreasonable for the customer, the customer is allowed
either to terminate the contract in accordance with the legal regulations
in compliance with § 9, or reduce payment appropriately and, if we are
responsible, additionally claim damages and reimbursement of expenses
in accordance with § 13. The claims shall lapse in accordance with § 14.
This shall not affect the regulations of Sections 478, 479 BGB, unless
United Nations Convention on Contracts for the International Sale of
Goods (CISG) is applicable.
§ 12 Defects of Title
(1) Unless otherwise agreed, we are obliged to perform our services free
from industrial property rights and third-party copyrights (hereinafter referred
to as property rights) solely in the country of the place of delivery.
If a third party asserts a justified claim against the customer owing to the
infringement of property rights caused by services provided by us based
on the contract, we shall be liable to our customer within the period
defined in § 14 as follows:
(2) We will either obtain a right of use for the services in question,
change them accordingly to avoid the infringement of the property right
or replace them according to our choice and at our expense. If we are
not able to do so under reasonable conditions, the customer shall be
entitled to statutory rights of withdrawal or reduction. The customer
may not claim damages for futile expenses.
(3) Our obligation to pay damages is based on the legal stipulation in
accordance with § 13.