Terms and conditions of sale and delivery of KVT Bielefeld GmbH
Stand Januar 2008
I. Validity of the terms and conditions
1. We conclude contracts solely under the following terms and conditions. Any deviations from these terms and conditions shall only be effective when we confirm them in writing. The customer’s terms and conditions, which we do not recognise in writing, shall not be binding for us, even when we do not expressly contradict them.
2. These terms and conditions shall also apply to future contracts, even when their validity is not expressly agreed upon.
3. The requirement for a written form, within the meaning of these terms and conditions, shall be fulfilled by emails and faxed letters.
II. Offers, cost estimates, scope of delivery
1. Our offers are non-binding. Agreements made orally or by telephone require our written confirmation in order to be valid.
2. The documents belonging to our offers, such as figures and drawings, weight and dimensional information, as well as information in brochures, are only approximations, insofar as we have not expressly confirmed them as binding. We retain rights of property and copyright for cost estimates, drawings and other documents. These documents may not be made accessible to third parties without our permission.
3. The scope of the delivery shall be determined in accordance with our written order confirmation. If one is not present then our offer shall be decisive. Supplementary agreements and changes require our written permission.
III. Prices and payment terms and conditions
1. Prices shall apply/ex works Bielefeld (Incoterms 2000), excluding packaging and plus the value added tax that is legally valid on the day of invoicing. Changes to material prices and payments, which occur four months after the conclusion of the contract, entitle us to corresponding price changes.
2. Payment by bills of exchange and cheques shall only be accepted on account of performance. In the acceptance of bills of exchange, the payment of which must take place outside Germany, or at other courts, we shall accept no liability for the timely presentation and disputing. Discount charges shall be calculated from the day the invoice amount is due. If the Customer does not meet its payment obligations – in particular, if it does not cash cheques or bills of exchange, or if it ceases payment – then we are entitled to demand the payment of the entire remaining amount, even if we have accepted cheques and bills of exchange. We also reserve the right to request pre-payments.
3. The setting of counterclaims, or the assertion of rights of retention, shall only be permissible insofar as the Customer’s claims are indisputable or established.
4. If, after the conclusion of the contract, it becomes clear that our claim to the payment is at risk due to the Customer’s lack of ability to pay, then we can refuse to provide the service which is required of us, and to determine a deadline for the Customer for payment pari passu, against delivery or security. In the case that the deadline passes without the Customer fulfilling payment, we are entitled to withdraw from the contract and demand damages. The setting of a deadline shall be superfluous if the Customer expressly refuses payment, or if certain circumstances are present that justify our immediate withdrawal, after giving consideration to the interests of both parties.
IV. Retention of property
1. The goods supplied shall remain our property until the complete payment of the agreed prices, including all receivables from the business connection and future receivables, as well as until the cashing of bills of exchange and checks. If there is a current account relationship between us and the Customer, then the retention of title shall secure the balance claim.
2. If the Customer pays by cheque and we issue a refinancing bill of exchange for this, then the retention of title shall only expire when recourse can no longer be taken to us, based on the bill of exchange.
3. The Customer shall be permitted a resale in the ordinary course of business. The Customer shall now and already assign its claims from the resale of the reserved goods, especially the claim to payment from its Purchaser, to us. We accept this assignment. The Customer shall be obliged to notify its debtors of the assignment at our request. The Customer must inform us of their receivables and the names of their debtors.
4. The Customer shall be entitled to collect the claims from the resale. In the case of delayed payment, or if we become aware of circumstances that are liable, in accordance with best commercial judgement, to reduce the credit worthiness of the Customer, we are entitled to revoke the collection right.
5. Handling and processing the reserved goods shall be handled for us as the Manufacturer, as per Section 950 of the German Civil Code [BGB]. If the reserved goods are processed or mixed with other objects that do not belong to us, then we shall acquire the 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 the processing or mixture.
6. The chattel mortgaging of goods that are in our property is not permitted. In the event of access to the reserved goods by third parties, the Customer shall point out our ownership of the goods and shall immediately inform us, sending a copy of the attachment order.
7. In the case of the Customer’s behaviour that in any way infringes the Contract, we shall be entitled to withdraw from the Contract and to demand back the goods that we have supplied. Any claims to damages remain unaffected. In the event of the Customer’s lack of ability to meet payments, we shall be able to revoke the authorisation to sell or process the goods.
8. If the realisable value of the securities granted exceed our claims by more than 20%, then we shall be obliged to reassign or release securities, according to our choice, at the Customer’s request.
V. Delivery time
1. The deadlines stated in our order confirmations, or otherwise agreed with the Customer, shall be final. The adherence to these deadlines requires the timely receipt of all documents to be delivered by the Customer, as well as the adherence to the agreed payment terms and conditions and other obligations. If these requirements are not fulfilled in good time, then the delivery deadline shall be extended by the duration of the delay.
2. Partial deliveries are permitted to an extent that is reasonable for the Customer.
3. If we are prevented from fulfilling our obligations due to unforeseeable exceptional circumstances, which we could not avoid, despite the reasonable care after the circumstances of the case – whether these occur in our factory, or for our upstream suppliers – e.g. operational interruptions, governmental interventions, delays in the delivery of significant raw materials and building materials – then the delivery deadline shall be extended for the duration of the delay, if the delivery or service does not become impossible. Also in the case of a strike or lockout, the delivery deadline shall be extended in an appropriate scope. If the delivery or service becomes impossible due to the circumstances specified above, then we shall be released from our delivery obligation. If the delivery time is extended by more than one month in the cases named above, then the Customer shall be entitled to withdraw from the Contract. The assertion of claims for damages shall be excluded.
4. If the previously-stated circumstances arise for the Customer, then the same legal consequences shall also apply to its acceptance obligation. We can only invoke the circumstances named in Point 3 if we inform the Customer without delay.
5. If the shipping or delivery is delayed at the Customer’s request, then, beginning one month after the notification of completion or readiness to ship, we can invoice storage fees in the amount of one half of one percent of the net invoice amount at the start of every month. The storage fee shall be limited to five percent of the net invoice amount, unless we can prove the costs were higher.
VI. The Customer’s rights in the event of defects
1. We hereby assign our claims against suppliers of significant sub-contracted parts to the Customer. The Customer can only make us liable for these defects when a prior legal action against the third-party supplier was unsuccessful. If the third-party supplier has its headquarters outside Germany, then the prior out-of-court recourse shall be sufficient. The Customer is obligated to inform us about the action of our Suppliers, and shall continually inform us about the proceedings, on request.
2. The Customer must inform us of any defects immediately, and in writing.
3. In the case of justified claims for defect, we have the right to make subsequent improvements, or deliver a replacement within a reasonable deadline of at least 14 days, in accordance with our decision. If the subsequent fulfilment fails, then the Customer can withdraw from the Contract, insofar as the breach of contract is not only minor. The Customer is also entitled to assert claims for damages or expenses. The Customer’s right to self-performance, as per Section 637 BGB, shall remain unaffected. The claim for subsequent fulfilment shall be triggered separately for each defect. The Customer shall not have a right to reduction in the event of minor defects.
4. If the Customer withdraws from the Contract, it must return to us the delivery item and – regardless of other claims – pay an appropriate fee of an amount of at least 20%, plus any value added tax that is due, for the time of use.
5. The Customer’s claims for expenses that are necessary for the purpose of subsequent fulfilment – in particular, transport, mileage, work and material costs – shall be excluded, insofar as the expenses increase because the delivery object was subsequently moved to a place other than the place of delivery, by the Customer or a third party, unless the moving corresponds to the intended use of the delivery object, or was agreed on with us at the conclusion of contract.
6. The Customer’s claims due to defects shall become time-barred in 12 months. This shall not apply insofar as the law prescribes longer deadlines in Sections 438 Paragraph 1 No. 2, 479 Paragraph 1, and 634a Paragraph 1 No.2 BGB, namely for buildings and items for buildings, recourse claims and construction defects.
VII. Limitations of liability, damages
1. We shall not be held responsible for the slightly negligent infringement of insignificant contractual obligations.
2. Our liability for consequential damages shall be excluded, except in the case of deliberate harmful intent, gross negligence or infringement of significant contractual obligations. Insofar as we shall be held liable for consequential damages from defects, the liability shall be limited to foreseeable damages that cannot be traced back to exceptional circumstances.
3. The Customer’s claims resulting from product liability, or harm to body or health that is attributable to us, as well as in the case of loss of life of the Customer, or of its agents, shall remain unaffected.
4. The shortening of the limitation period, as per Point VI. 6., shall not apply if we can be ascribed gross negligence, or in the event of physical injury or harm to health for which we are responsible, or in the event of loss of the life of the Customer, or its agents.
5. The burden of proof for facts establishing a limitation of liability or an exclusion of liability, shall be incumbent on us.
VIII. International business
1. If the Customer has its headquarters outside Germany, or if we supply a branch of the Customer that is outside Germany, then, in addition to these Terms and Conditions, the CISG dated 11 April 1980 shall also apply. Legal matters that are not regulated in the CISG shall be determined in accordance with German Law.
2. The CISG is modified as follows:
a) We shall only owe replacement deliveries, as per Article 46 CISG, if the breach of contract for the delivery object poses a significant infringement of contract.
b) Early deliveries shall be possible contrary to Article 52 CISG.
c) If interest is owed, as per Article 78 CISG, then the amount shall be determined by the valid interest rate in Germany; it shall be 8% above the base rate, in accordance with Section 247 BGB.
IX. Place of fulfilment and jurisdiction
1. The place of fulfilment for all obligations resulting from the contractual relationship, is Bielefeld.
2. The place of jurisdiction for all disputes arising from the contents of the Contract, if the customer is a businessperson, a legal person under public law, or a special fund under public law, hall be Bielefeld. However, we reserve the right to seek redress in the Court that is responsible for the Customer’s headquarters.
3. Only German law shall apply.
X. Data protection
We are entitled to store, transmit, edit and delete the Customer’s personal data. The Customer is hereby informed of this, as per Section 26 of the German Federal Data Protection Act [BDSG].