General Terms and Conditions of Sale and Payment of the Kesseböhmer Group of Companies
We conclude contracts exclusively on the basis of our following terms and conditions. Deviations from these conditions are only effective if confirmed by us in writing. Terms and conditions of the customer which we do not accept in writing are not binding for us, even if we do not expressly object to them. These terms and conditions shall also apply to future orders, even if their validity is not expressly agreed again. The written form within the meaning of these terms and conditions will be deemed met by e-mails and fax letters.
1. Our quotations are subject to confirmation. Orders placed with us only become binding in type and scope through our order confirmation. Changes and additions must be made in writing.
2. The documents belonging to our quotations, such as illustrations and drawings, details of weights, colors and dimensions, samples and details in brochures are only approximate unless we expressly designate them as binding. We reserve the property rights and copyrights to all quotation documents and other documents handed over to the customer. These documents may not be passed on, reproduced, or made accessible to third parties without our consent.
3. Support services (e.g. installation, training, or consulting) will be invoiced separately according to time and effort.
III. PRICES AND TERMS OF PAYMENT
1. Unless otherwise stated in our order confirmation, prices apply ex works excluding packaging and plus the statutory value added tax applicable on the date of invoicing. Changes in material prices and wages occurring four months after conclusion of the contract entitle us to make corresponding price adjustments. The deduction of a discount requires a special written agreement.
2. Unless otherwise stated in our order confirmation, the purchase price will be due for payment without deduction within 30 days. In the event of default in payment, the statutory rules will apply.
3. If, after the conclusion of the contract, it becomes apparent that our claim for payment is jeopardized by the customer’s inability to pay (e.g. in the event of non-compliance with payment terms), we may refuse our performance and set the customer a deadline for payment concurrently against delivery or provision of security. In case of unsuccessful expiry of the deadline, all outstanding claims will become due and we will be entitled to withdraw from the contract and to claim damages. The setting of a deadline is dispensable if the customer finally refuses payment or if its inability to perform is evident.
4. Checks and bills of exchange are only accepted on account of performance. Costs associated with this will be borne by the customer. Offsetting with counterclaims or the assertion of rights of retention is only permissible insofar as the customer’s claims are undisputed or have been established as final and absolute.
IV. MOLDS AND TOOLS
Molds and tools manufactured by us or on our behalf with which we manufacture for the customer remain our property, even if the customer has paid for them in full or in part. However, such molds and tools will be used exclusively for the orders of this customer as long as he fulfills his payment and acceptance obligations. Our obligation to store them expires two years after the last delivery from the mold or tool.
V. DELIVERY TIME
1. The start of the delivery period stated in our order confirmation or otherwise agreed with the customer presupposes the clarification of all technical questions, the timely and proper fulfillment of the customer’s obligations (e.g. agreed down payment, handover of necessary documents, timely and sufficient provision of materials). If these prerequisites are not fulfilled in time, the deadline will be extended by the duration of the delay. We reserve the right to plead non-performance of the contract. Partial deliveries are permissible to a reasonable extent for the customer and deviations from the order quantities of up to +/-10%. The delivery period will be deemed to have been met upon notification of readiness for dispatch.
2. If we are prevented from fulfilling our obligations due to unforeseen extraordinary circumstances that we are unable to avert despite reasonable care (e.g. operational disruptions, strike, lockout, official interventions, delays in the delivery of essential raw materials and building materials), the delivery period will be extended by the duration of the impediment, provided that the delivery or service is not rendered impossible, irrespective of whether these circumstances occur in our works or in the works of one of our suppliers. If the delivery or service becomes impossible as a result, we will be released from our delivery obligation. If the delivery time is extended by more than two months, the customer will be entitled to withdraw from the contract. The assertion of claims for damages is excluded.
3. We will be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents will be attributed to us. If the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages will be limited to 0.5% for each full week of delay, and in total to a maximum of 5% of the value of that part of the delivery that has not been made within a reasonable period of grace granted to us. In any case, our liability for damages will be limited to the foreseeable, typically occurring damage.
4. If the customer is in default of acceptance or culpably violates other duties to cooperate, we will be entitled to demand compensation for the damage incurred by us, including additional expenses. The risk of accidental loss or accidental deterioration of the object of sale will pass to the customer the moment the customer is in default of acceptance or debtor’s delay.
5. If the dispatch or delivery is delayed at the request of the customer, we may charge storage costs amounting to 0.5% of the net invoice amount for each month or part thereof, starting two weeks after notification of readiness for dispatch, up to a maximum of 5%. We reserve the right to assert further claims.
VI. LIABILITY FOR DEFECTS
1. We must be notified immediately of any defects found in writing and in a comprehensible form, stating the information that is useful for identifying the defect.
2. In the event of justified notices of defect, we will have the right to rectify the defect or to deliver a replacement within a reasonable period of at least 14 days at our discretion. If the subsequent performance fails, the customer will be entitled to demand withdrawal or reduction at its discretion.
3. We will be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents, or on the breach of material contractual obligations. Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
VII. LIMITATIONS OF LIABILITY
1. Any further liability for damages than provided for in Section VI is excluded, irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage in accordance with Section 823 BGB. Insofar as we are liable for consequential damages (only in the case of intent, gross negligence and breach of essential contractual obligations), liability is limited to foreseeable, typically occurring damages.
2. The limitation period for claims for defects is 12 months, calculated from the transfer of risk. The limitation period in the case of a delivery recourse according to Sections 478, 479 BGB remains unaffected. The shortening of the limitation period will not apply if we can be accused of gross negligence or in the case of bodily injury or damage to health attributable to us or in the case of loss of life of the customer or his vicarious agents.
2. Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
4. The statutory provisions apply to the customer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated in these General Terms and Conditions. In all cases, the special statutory provisions will remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier’s recourse pursuant to Section 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the customer or another entrepreneur, e.g. by incorporation into another product.”
VIII. RESERVATION OF OWNERSHIP
1. The delivered goods will remain our property until full payment of the agreed price, including all claims arising from the business relationship and future claims as well as until bills of exchange and checks have been honored. If there is a current account relationship between the customer and us, the retention of title will secure the balance claim.
2. If the customer pays by check, and we issue a refinancing bill of exchange for this purpose, the retention of title will expire only when we can no longer claim from the bill of exchange.
3. The customer is permitted to resell the goods in the ordinary course of business. The customer hereby assigns to us all claims arising from the resale of the goods subject to retention of title, in particular the claim for payment against its customers. We accept this assignment. The customer is obliged to notify debtors of the assignment at our request. Claims and names of the customer’s debtors will be notified to us.
4. The customer is entitled to collect claims from the resale. In the event of default in payment or if we become aware of circumstances that, according to commercial judgment, are suitable to reduce the creditworthiness of the customer, we will be entitled to revoke the right of collection.
5. Processing of the goods subject to retention of title will be carried out on our behalf as manufacturer within the meaning of Section 950 BGB (German Civil Code). If the reserved goods are processed or mixed with other items not belonging to us, we will acquire co-ownership of the new item in the ratio of the net invoice value of the reserved goods to the net invoice value of the other goods used at the time of processing or mixing.
6. The collateral assignment of goods under our ownership is not permitted. In the event of access by third parties to the goods subject to retention of title, in particular seizure, the customer will point out our ownership of the goods and notify us immediately by sending a copy of the seizure protocol.
7. We are entitled to withdraw from the contract in the event of breach of contract by the customer and to demand the return of the goods delivered by us. Any claims for damages will remain unaffected. In the event of the customer’s inability to pay, we may revoke the right to sell or process the goods.
8. If the realizable value of the securities granted exceeds our claims by more than 20%, we will be obliged to retransfer or release securities at our discretion at the customer’s request.
IX. PROPERTY RIGHTS
1. If we have to produce or deliver according to drawings, models, samples, or using parts provided by the customer, the customer shall be responsible for ensuring that the property rights of third parties are not infringed thereby. If necessary, the customer shall indemnify us against claims of third parties and compensate us for any damages. If we are prohibited from production or delivery by a third party with reference to the third party’s property rights, we may stop the work without prior examination of the legal situation and demand reimbursement of expenses and damages from the customer. Drawings and samples provided to us by the customer which have not led to an order will be returned to him at his request and at his expense. We are entitled to destroy these documents if the customer does not request their return within three months after submission of the quotation.
2. The customer acknowledges the industrial property rights to which we are entitled to the delivered goods and any drawings and documents handed over by us, and will observe these and defend them against third parties in consultation with us.
X. FINAL PROVISIONS
1. The place of performance for all obligations arising from the contractual relationship is the registered office of our company.
2. If the customer is a merchant, a legal entity under public law, or a special fund under public law, the place of jurisdiction for all disputes arising from the contractual relationship is the registered office of the company or the court responsible for the location of the branch carrying out the delivery. However, we will be free to bring an action before the court having jurisdiction for the customer’s place of business. German law will apply exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
3. Should one of the above conditions be legally ineffective or be declared legally ineffective, the validity of the remaining conditions will remain unaffected. The invalid or declared invalid condition shall be replaced by the statutory provision.