General Terms and Conditions of Business
§ 1 General, Range of Application
(1) The following General Terms and Conditions of Business of the company Kohlhoff Ltd. (hereinafter referred to as the user) are valid for all business transactions that are carried out by the user with customers.
(2) Regulations to the contrary or opposing these General Terms and Conditions of Business are objected. Regulations that are contrary to these General Terms and Conditions of Business only take effect after express agreement by an authorized managing representative of the user and the respective customer. The complete communication that means the declarations relevant to this contract is made in German language.
(3) The General Terms and Conditions of Business with their respective current version at the time of ordering are also valid for future orders, even if these are not again explicitly agreed upon.
§ 2 Conclusion of the Contract
(1) Individual written orders are binding allowing for herein stated additional contract terms. After acceptance of the offer the customer receives a corresponding confirmation of order. Except where otherwise stated, acceptance by the customer has to be declared within 10 calendar days.
(2) Offers of the user in the form of prospectuses, brochures or in the Internet are not binding appeals to the customer to order goods at the user. By communication of an order by means of E-mail, telefax, telephone or posted, the customer submits a binding offer with the agreement to sign a purchase contract. The user is entitled to accept this offer within 10 calendar days by mailing a confirmation of order or the ordered goods. After expiration of the deadline and without having reached any conclusions, the offer is considered as refused.
(3) The user is not obliged to control dates (specifications, measures, samples etc.), material or the suitability of the ordered goods for the purposes of the customer. Correspondence that is not part of the written confirmation of order is not element of the contract. This has to be checked up by the customer immediately after receipt and in the event of any doubts concerning the terms of contract, these have to be stated in writing. In case of any alterations concerning measures etc., the user is entitled to adjust, if necessary, the price accordingly.
§ 3 Prices
(1) The mentioned prices are basically plus the respectively valid legal sales tax. If the customer is the consumer, the respectively valid sales tax is included in the prices.
(2) Additional services and special arrangements are always subject to a separate setting out in writing and are charged separately. This particularly also includes services at the customer or the installation of other goods.
(3) A lump sum is charged for packaging and delivery, the exact amount of which is separately stated for each delivery.
§ 4 Terms of Payment For written offers as per § 2
(1), the terms of payment are based on the offer. Except where otherwise stated, an advance payment of 50% of the amount of order becomes due with the confirmation of order. The user is entitled to refuse the order handling until receipt of this advance payment. Apart from that, statutory provisions come into existence. The remaining amount becomes immediately due at receipt of invoice.
§ 5 Terms of Delivery / Default of Acceptance
(1) Except where otherwise stated, the goods have to be collected by the customer at the business premises of the user in Altenholz. If delivery of the goods has been agreed upon, dispatch of these is carried out ex warehouse of the supplier in the user’s name or directly by the user to the address of delivery stated by the customer. The user is entitled to supply part deliveries.
(2) Availability of the goods and their date of delivery are stipulated between the parties in individual contracts. In the absence of an explicit agreement, the term of delivery is about 14 days as from conclusion of the contract. The given statements refer to the point of time of delivery given by the user or a third party and do not refer to the arrival at the customer. Statements about dates of delivery are not binding as far as these have not, as an exception, been agreed upon as binding and in writing. Any delivery is subject to the fact that the user himself is supplied punctually and properly; the following paragraphs are effective.
(3) If articles ordered by the customer are not available, contrary to expectations and in spite of proper planning, for reasons the user cannot be made liable for, he is entitled to withdraw from the contract. The customer is immediately informed about the unavailability and, if necessary, about the right of cancellation. In case of cancellation, any potential considerations received, are immediately reimbursed.
(4) Any delays in delivery caused by reasons the user cannot be held liable for (superior force, third-party negligence etc.), the deadline is reasonably extended. The customer is informed immediately. If the reasons for delay take longer than 4 weeks after conclusion of the contract or date of delivery, every party is entitled to withdraw from the contract. As far as the user is liable for the delays, he is held liable as per § 8 of these terms.
(5) The passing of risk is subject to statutory provisions. Settling place is the business location of the user.
§ 6 Retention of Title
(1) The ordered goods remain property of the user until all demands of the user resulting from the business relation with the customer have been fulfilled. Is the customer the consumer, this current account reservation is only valid for claims that have already been perfected at the time of conclusion of the contract.
(2) Before the transfer of ownership resale, leasing, pawning, trust receipt, processing, other dispositions or redesign are not allowed without explicit written consent of the user.
(3) In derogation of the previous paragraph, entrepreneurs are allowed to process, to lease or to sell the reserved goods according to proper business practices, as long as he is not in default. The claims resulting from the resale, processing or any other legal ground (insurance, leasing, unauthorized handling) with regard to the reserved goods, are already now assigned by the customer to the full extent to the user who accepts the assignment. On demand of the user the customer is obliged to disclose the name of the buyer, to indicate to him the assignment as well as to give information concerning the enforcement of rights resulting from the assignment and to hand over papers. The customer is authorized, until revoked, to collect claims assigned to the user on the user’s account and under his own name. This authorization will be withdrawn if a petition of insolvency with regard to the customer’s property is filed and the only other reason for withdrawing this authorization is a delay in payment on the part of the customer.
(4) In case of access to the reserved goods by a third party, the customer will point out to the user’s property and inform the user immediately.
(5) In case of not immaterial conduct of the customer which is contrary to the terms of contract, especially in the event of a delay in payment, the user is entitled to take back the reserved goods and if necessary he can demand, within the legal framework, the assignment of the customer’s claims for recovery of property towards a third party.
§ 7 Guaranty / Withdrawal
(1) Claims of the customer towards the user in case of deficiencies are based on legal provisions within the time allowed by the law, provided the following regulations do not state deviations.
(2) Damages that are perhaps caused by an improper handling or measures that are contrary to the terms of contract on the part of the customer during installation, connection, operation, use or storage do not substantiate a claim towards the user. Improper handling and conduct contrary to the terms of the contract are mainly defined on the basis of the individual declarations of the producer or on the basis of the product information of the user as well as according to the general empirical values of good seamanship.
(3) If used goods are purchased, the period of warranty is reduced to one year as from receipt of the goods if the customer is the consumer. Otherwise warranty is excluded.
(4) Is the customer an entrepreneur, a trader or a freelancer and the ordered performance is intended for his trading business, his claims with regard to deficiencies are subject to a period of limitation of one year as from receipt of the goods; this is also valid for new objects. §479 BGB (Recourse in the supply chain for the purchase of consumer goods) remains unaffected.
(5) In case of evident deficiencies and damage caused in transit, the customer is requested to inform the user immediately and to mark complaints at delivery on the Bill of Lading. This facilitates the raising of possible claims on the part of the user towards his supplier or towards the transport company: Is the customer the consumer, this omission does not affect his potential warranty claims. For merchants § 377 HGB is effective.
(6) Any guaranty on materials etc. are independent guaranty bonds of the individual supplier/producer and do not substantiate any claim towards the user, as far as this has not been explicitly agreed upon in writing.
(7) If the contract is about the supply of a new production of a movable object and if no consumer is part to the agreement, the customer’s claims with regard to supplementary performance to eliminate the deficiency, is limited. This does not affect the right of the customer to reduce the price or to withdraw from the contract if the supplementary performance as per his choice, proves to be a failure.
(8) Settling place for the supplementary performance are the business premises of the user. They are, therefore obliged within the scope of the demand for supplementary performance to send the object in question to the user’s business premises. According to § 439 Abs. 2 BGB the user is obliged to exempt the customer, as far as he is the consumer, from the corresponding transportation charges, provided there has actually been a deficiency. This obligation is, however, limited to the costs of a standard transport ex/till address of delivery stated in the contract. Dispatch has beforehand to be agreed upon with the user who is entitled to provide for the transport himself.
§ 8 Liability
(1) The user is only liable for intent and gross negligence. This is not effective for death, injury of health or the body and if essential contractual obligations are violated. In these cases the user is liable according to the statutory regulations. Liability as per the regulations of the product liability law, remains as well unaffected.
(2) For the rest liability is excluded. In particular, the user does not assume responsibility for materials provided by the customer or for suitability of the ship for the supplied goods. With regard to the utilization of the goods, the rules of a good seamanship are to be considered.
§ 9 Offset / Retention
The customer is not entitled to set off with own claims against pecuniary claims of the user which do not result from the same legal transaction or to make use of retention provided the claims of the customer are undisputed and have legal force.
§ 10 Proprietary Right
The documents (drawings, models, drafts, calculations, etc.) prepared by the user are copyrighted. With their delivery the user concedes to the customer an ordinary not exclusive and non-transferable use. Passing- on to a third party or duplication is subject to the consent of the user.
§ 11 Concluding Provisions
(1) Should one or several regulations of these provisions be non-effective, this does not result in a legal invalidity of the whole contract. The non-effective regulation will be replaced by a regulation, the economic success of which will approach the non-effective one as far as possible.
(2) Is the customer a merchant, a juridical person of public law or special property under public law, Kiel is the exclusive place of jurisdiction for all disputes resulting directly or indirectly from the contractual relation. The same is valid if the customer does not have a general place of jurisdiction within the country, if the customer, after conclusion of the contract, has shifted his domicile or usual residence to a country abroad or if his dwelling place is unknown at the time of the institution of legal proceedings.
(3) The German Law is valid for the conclusion and settlement of all contracts. Validity of UN Purchase Law is excluded.