General Terms of Sale, Delivery and Payment of the Company KBL GmbH for Business Transactions with Entrepreneurs
§ 1 Scope of Our General Terms
These General Terms shall apply exclusively vis-à-vis entrepreneurs and refer to the sale of products. We will not acknowledge any contradicting or deviating conditions from customers unless we expressly consent to the applicability of such conditions. Our General Terms shall apply even if we render our contractual services while being aware that there are conditions of the customer contradicting or deviating from our General Terms.
§ 2 Prices, Payment Terms
1. The indicated prices are net prices. The total price payable by the customer is composed of the net price plus statutory VAT (if VAT is owed), and delivery / freight charges. Furthermore, the customer shall bear customs duties as well as any taxes and fees incurred outside the Federal Republic of Germany.
2. The total price as described in subsection 1 above shall be payable immediately upon receipt of the goods. There is no cash discount granted. If a customer enters into default of payment, we are entitled to claim default interest of 9 % p.a. above the base rate.
3. We are entitled to credit payments of a customer first against the oldest debt of this customer, if the customer has not made any repayment arrangement. If, besides the principal amount, the customer also owes interest and charges, the customer’s payment is first credited against the charges, then against the interest and then against the principal amount. This scheme shall apply even if the customer defines another offset scheme.
4. If we are entitled to claim damages for non-performance, such damages shall amount to 15 % of the purchase price including the ancillary costs. We reserve the right to evidence higher damages. The customer shall be entitled to evidence to us that no damage or a significantly lower damage has been incurred due to non-performance.
5. The customer shall have offset and retention rights regarding the purchase price only if the customer’s counterclaims are final and absolute, undisputed or acknowledged by us. The same shall apply with respect to the customer’s rights to refuse performance and to exercise retention rights
6. If we are obliged to render advance performance under a mutual agreement, we may refuse the performance owed by us if it becomes recognizable after signature of the agreement that our claim against the counterparty is at risk due to a lack of capacity on part of the customer. If the financial situation deteriorates significantly or in case of imminent illiquidity, we are entitled to perform deliveries only against advance payment or against the provision of appropriate security. If such security is not provided within a reasonable period, we are entitled to rescind the contract claim damages due to non-performance after expiry of such period.
§ 3 Change of Prices
1. Our prices are FCA loading ramp of our Dernbach warehouse pursuant to Incoterms 2010 ® plus statutory VAT. The customer is obliged to provide us with its VAT ID, if available, within 7 days after signature of the respective contract.
2. Price changes in the scope of a purchase contract shall be admissible if the period between the conclusion of the contract and the agreed delivery date is longer than 6 weeks. If wages, material costs or market prices increase during this period, we shall be entitled to increase the price to a reasonable extent corresponding the cost increases. We will substantiate such cost increases upon the customer’s request.
§ 4 Transfer of Risk, Packaging and Shipment
1. Our products are shipped FCA loading ramp of our Dernbach plant.
2. If we agree upon the shipment of products in deviation from subsection 1 above, such shipment is carried out at the customer’s risk and costs. Wes hall be free to choose the shipping method if no specific method has been agreed.
3. In cases as set forth in subsection 2 above, we shall be liable for faults of our own forwarding staff only if intent or gross negligence is at hand on our part or on part of our agents. We will not accept the return of packaging material.
4. A transport insurance shall be established only upon the customer’s request. The costs of such insurance shall be reimbursed by the customer.
§ 5 Time of Delivery and Performance
1. If a delivery period has been agreed, such period shall start only upon receipt of all required information, documentation, certificates and the agreed advance payment, if any, from the customer. The same applies if the cooperation of the customer is required. The decisive date for observance of the performance period shall be the date of shipment by us.
2. The performance period shall extend in case of unforeseeable events beyond our control, e.g. force majeure, act of sovereignty, strikes, lock-outs, interruption of operations, delayed delivery of substantial materials to the extent such obstacles demonstrably have a significant impact on the delivery of the item to be delivered and are beyond our scope of influence. The foregoing shall apply also if such circumstances occur on part of sub-contractors. The performance period shall extend in accordance with the duration of such measures and obstacles. The aforementioned circumstances are beyond our control also if they occur during an already existing delay.
3. If a delivery period has been agreed, we are entitled to perform delivery on the first day of such period, provided such first day is a workday. The customer shall take receipt of the consignment within 10 days after receipt of our announcement of readiness. If the period of acceptance is exceeded by more than 5 workdays, we are entitled to store the goods at our premises at the customer’s cost and to invoice the agreed total price; any further legal remedies shall be reserved. Any additional costs incurred due to the delay of acceptance may be asserted separately.
4. To the extent the customer enters into default of acceptance, the risk of accidental loss or deterioration of the purchased item shall pass to the customer upon such entry into default.
5. Delivery shall take place subject to timely and proper delivery to ourselves, also with respect to individual components required for the manufacturing of the final product: If we are unable to perform the owed service although we have concluded a congruent hedging transaction, we shall be relieved from the duty to perform. The foregoing shall apply only if we have not culpably brought about such circumstances and the obstacle on part of our suppliers is not only of a temporary nature. We shall inform the customer of such situation without undue delay and return to the customer any payments already made.
§ 6 Defects
1. No material defects exist, if we deliver an insufficient quantity or higher quality goods to the customer. If we deliver an insufficient quantity, the customer is solely entitled to demand the subsequent delivery of the outstanding quantity.
2. The place of performance for the supplementary performance is our headquarter. The customer must transport or send the item to our headquarters in order to inspect the item for which a complaint has been lodged as well as to execute the supplementary performance. Alternatively, the customer may remove the component, which may possibly be defective, and send it to us for inspection.
3. The supplementary performance takes place either by removing the defect or delivering an item free of defects, at our discretion. Defect removal occurs by delivering a defect-free spare part. Parts removed as part of the supplementary performance become our property.
4. We are not obliged to install the defect-free spare part to be delivered as part of the supplementary performance in the sold item or reimburse the costs that arise from removing the defective part and installing the replacement part for the customer.
5. The customer shall bear the costs of the supplementary performance that arise from transporting the purchased item to a location other than the place of performance.
6. Supplementary performance shall take place only if the customer has paid the purchase price less a reasonable retention amount. Such retention amount shall not exceed the threefold of the costs of the supplementary performance.
7. We shall not assume any liability for the freedom of the goods from third-party rights and claims based on industrial or intellectual property. The assessment of property rights in the country of destination is within the sole responsibility of the customer. As far as we are aware that the goods are subject to property rights in the country of destination, we will inform the customer accordingly.
§ 7 Liability
1. We shall be liable for any culpable injury of life, body or health in the scope of statutory law.
2. In all other respects, any claims of the customer shall be excluded.
3. Subsection 2 above shall not apply
- in case of deliberate act or gross negligence on our part;
- if a liability is given under the Product Liability Act;
- if a defect has been fraudulently concealed by us;
- if we have guaranteed a certain quality of an item / our performance or granted a guarantee of durability and the defect is subject to such guarantee;
- for claims based on a culpable breach of our duty to hand over the purchased item free of material and legal defects and of our duty to procure ownership regarding purchased items;
4. Our liability shall be limited to such defects that typically have to be reckoned with in the scope of the contract concluded.
5. 5. In case of slight negligence on our part, the customer’s compensation claim for a delayed delivery shall be limited to 50 % of the agreed purchase price.
§ 8 Retention of Title
1. We reserve the ownership regarding the purchased items until all receivables arising from our business relationship with the customer have been fully satisfied. The same shall apply also if individual invoice items or all invoice items are included in a current account and the balance has been drawn or acknowledged.
2. The customer shall be entitled to resell the purchased item in the ordinary course of business. However, the customer shall assign to us already as of now all claims in the invoice amount of our claim that it may gain against purchasers or third parties for the resale of items. The customer shall remain entitled to collect such claims even after an assignment as described above. Our right to collect such claims ourselves shall remain unaffected thereof. However, we will not collect such claims as long as the customer fulfils its payment obligations. If the customer is in default, we shall be entitled to request information on the assigned claims and claim disclosure of the related documents as well as notification of the assignment by the customer. We commit ourselves to release the securities to which we are entitled upon the customer’s request to the extent such securities exceed the value of the claims to be secured by more than 20 %.
3. If the agreements pursuant to Section 8 (1) and (2) are invalid or they become impracticable the customer shall be obliged to provide at its discretion another security that is admissible under applicable law that approximates the concept of retention of title as far as possible or constitutes an equivalent collateral. Furthermore, the customer shall undertake to take all measures necessary under applicable law for the establishment and approval of such securities and evidence such measures to us upon request.
§ 9 Assembly
The assembly of the purchased item is not included in the scope of performance and shall be performed only under a separate agreement against payment of a separate remuneration.
§ 10 Place of Performance
The place of performance for all performances, especially the payment obligation of the customer, shall be our registered office.
§ 11 Place of Jurisdiction
If the customer is a merchant, the following shall apply: The exclusive place of jurisdiction for all obligations and disputes arising from the contract shall be the place of our registered office. We reserve the right to take legal action against the customer before the courts at the customer’s registered seat.
§ 12 Applicable Law
The applicable law shall be German law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
§ 13 Invalidity of a Clause
Should any provision be or become invalid, this shall not affect the validity of the remaining provisions. In the event of an invalid provision, the parties shall negotiate a valid substitute provision that most closely resembles the economic intent pursued by the parties with the invalid provision.
56307 Dernbach Germany
Telefon +49 (0) 2689 94260
Fax +49 (0) 2689 942666