General terms and conditions
of the kwb Germany GmbH, 28816 Stuhr, as of 1 August 2011.
Validity
We provide our deliveries and services exclusively on the basis of these Standard Business Conditions. Any deviating terms and conditions of business of our partner which we have not expressly acknowledged shall not be valid.
Quotation and conclusion of contract
Our quotations are without engagement and non-binding. Orders/listings shall become binding only upon our written acknowledgement. The same shall apply to any supplement, alteration and subsidiary agreement.
The information, drawings, illustrations and performance descriptions contained in catalogues, price lists and any document belonging to the quotation are approximate values customary in the trade, unless where expressly stated to be binding in the order acknowledgment.
We reserve proprietary rights and copyrights in figures, drawings, calculations and other documents. This also applies to such documents in writing which are identified as "confidential". The customer is required to obtain our expressive agreement in writing prior to any circulation to third parties.
The information, drawings, illustrations and performance descriptions contained in catalogues, price lists and any document belonging to the quotation are approximate values customary in the trade, unless where expressly stated to be binding in the order acknowledgment.
We reserve proprietary rights and copyrights in figures, drawings, calculations and other documents. This also applies to such documents in writing which are identified as "confidential". The customer is required to obtain our expressive agreement in writing prior to any circulation to third parties.
Pricing terms
Unless stated otherwise, we shall be bound to the prices quoted in our quotations for a period of 30 days from the date of the quotation. The relevant prices are the prices quoted in euros in the order acknowledgment plus the applicable statutory value-added tax. Any additional deliveries and services will be charged separately.
Unless otherwise agreed, prices are quoted free at the place of destination in Germany (from the net minimum value of goods defined in the relevant price list as amended from time to time) including freight, postage, insurance and customary packaging.
If a considerable change of the cost of lab our, material or energy occurs, then each of the contractual partners shall be entitled to demand reasonable adjustment of the price taking into account these factors.
Unless otherwise agreed, prices are quoted free at the place of destination in Germany (from the net minimum value of goods defined in the relevant price list as amended from time to time) including freight, postage, insurance and customary packaging.
If a considerable change of the cost of lab our, material or energy occurs, then each of the contractual partners shall be entitled to demand reasonable adjustment of the price taking into account these factors.
Delivery
The delivery time shall be deemed to have been agreed only approximately. Even if a specific calendar date is specified as the delivery date, this shall not make the deal a transaction for delivery by a fixed date within the meaning of Section 376 (1) of the German Commercial Code (HGB).
To be a transaction for delivery by a fixed date, it shall additionally be required that the contractual partners agree that e.g. in the case of seasonal goods or advertising campaigns the contract may readily be terminated by rescission if the delivery time is not adhered to and that, if we are to blame, damages for non-performance may be claimed.
Apart from that, delivery times or dates which may be agreed bindingly or non-bindingly shall require to be agreed in writing.
Even in the case of bindingly agreed times and/or dates, we shall not be liable for any delay in delivery or performance due to force majeure events or due to any event making delivery by us significantly difficult or impossible, which events shall in particular include industrial action, unrest, action taken by the authorities, non-delivery by our suppliers etc.
Any such event shall entitle us to postpone the delivery or the provision of the service by a period of time equal to the time of the impediment plus a reasonable start-up time or to rescind the contract in part or in whole due to the part not yet performed, without the partner being entitled to claim damages based on this.
If the partner suffers any of the impediments specified above, then the same legal consequences shall apply to its obligation to take delivery.
Each of the partners shall be obligated to inform the other partner forthwith of the start and end of any impediment of the kind specified above.
Partial delivery and partial performance shall be admissible to the extent they are customary in the trade and shall be invoiced separately. They shall as an exception be in admissible if partial performance of the contract is not in the interest of the partner.
If any later change of the contract made by the partner affects the delivery time, then it may be extended reasonably.
If we fall behind with delivery and if this causes any loss to the partner, it shall be entitled to claim a lump-sum compensation for delayed delivery. The compensation shall be 0.5% per full week of delay of the value of that part of the total delivery which cannot be used as scheduled or as provided by the contract due to the delay, however, in the aggregate not exceed 5% of that value. Apart from that, the provisions of sections 34 to 38 hereof shall apply to the liability for damages for non-performance.
Retention of title
We reserve the ownership of the goods delivered until any and all claims arising from the business relationship with the partner have been satisfied.
The partner shall be entitled to sell these goods in the course of ordinary business, provided that is has discharged of its obligations arising from the business relationship with us in due time. However, it may neither pledge nor assign as security the goods subject to retention of title. The partner shall be obligated to safeguard our rights when it sells the goods subject to retention of title on credit.
If the partner falls behind with payment, we shall be entitled to demand surrender of the goods subject to retention of title at the partner‘s expense even without rescission after setting of a reasonable period of grace.
The partner shall be entitled to process and/or combine or mix the goods delivered with other goods not owned by us in the ordinary course of its business. The goods subject to retention of title are processed on our behalf without any obligation arising for us. If our goods are processed and/or combined or mixed with other goods not owned by us, we shall have co-ownership of the new goods in proportion to the invoice value of the goods subject to retention of title to the value of the other goods processed at the time of processing, combination or mixing. If the partner acquires sole ownership of the new object, it shall already now assign to us co-ownership of the new object in the proportion of the invoice value of our goods subject to retention of title to the value of the other goods processed at the time of processing, combination or mixing and keep the object on our behalf with the due diligence of a prudent businessman.
The partner already now assigns to us as security any and all claims and rights resulting from the sale of the goods in which we have proprietary rights. We hereby accept the assignment.
If our goods are sold after processing, combination or mixing or if the new goods created by the processing, combination or mixing are sold, then the partner’s receivables from the customer shall be assigned in the amount of the invoice value of our processed, combined or mixed goods or only in the amount that corresponds to our co-ownership share if that share is lower.
The partner shall forthwith inform us about any execution measures by third parties imposed on the goods subject to retention of title, the claims assigned to us or other securities and provide the documents required for intervention. The same shall apply to impediments of any other nature.
At the partner’s request, we shall release the securities to which we are entitled as per the above provisions in so far as the marketable value of the goods subject to retention of title exceeds the receivables to be secured by more than 10%. Upon redemption of all our receivables from the business relationship, ownership of the goods subject to retention of title and the receivables assigned shall be reassigned to the partner.
The partner shall be entitled to sell these goods in the course of ordinary business, provided that is has discharged of its obligations arising from the business relationship with us in due time. However, it may neither pledge nor assign as security the goods subject to retention of title. The partner shall be obligated to safeguard our rights when it sells the goods subject to retention of title on credit.
If the partner falls behind with payment, we shall be entitled to demand surrender of the goods subject to retention of title at the partner‘s expense even without rescission after setting of a reasonable period of grace.
The partner shall be entitled to process and/or combine or mix the goods delivered with other goods not owned by us in the ordinary course of its business. The goods subject to retention of title are processed on our behalf without any obligation arising for us. If our goods are processed and/or combined or mixed with other goods not owned by us, we shall have co-ownership of the new goods in proportion to the invoice value of the goods subject to retention of title to the value of the other goods processed at the time of processing, combination or mixing. If the partner acquires sole ownership of the new object, it shall already now assign to us co-ownership of the new object in the proportion of the invoice value of our goods subject to retention of title to the value of the other goods processed at the time of processing, combination or mixing and keep the object on our behalf with the due diligence of a prudent businessman.
The partner already now assigns to us as security any and all claims and rights resulting from the sale of the goods in which we have proprietary rights. We hereby accept the assignment.
If our goods are sold after processing, combination or mixing or if the new goods created by the processing, combination or mixing are sold, then the partner’s receivables from the customer shall be assigned in the amount of the invoice value of our processed, combined or mixed goods or only in the amount that corresponds to our co-ownership share if that share is lower.
The partner shall forthwith inform us about any execution measures by third parties imposed on the goods subject to retention of title, the claims assigned to us or other securities and provide the documents required for intervention. The same shall apply to impediments of any other nature.
At the partner’s request, we shall release the securities to which we are entitled as per the above provisions in so far as the marketable value of the goods subject to retention of title exceeds the receivables to be secured by more than 10%. Upon redemption of all our receivables from the business relationship, ownership of the goods subject to retention of title and the receivables assigned shall be reassigned to the partner.
Liability for defects
We shall be liable for free-of-defects manufacture of the goods delivered by us.
We shall not be liable for defects caused by improper or inexpert use, incorrect assembly or commissioning by the partner or any third party, usual wear and tear, incorrect or careless treatment, and also not for the consequences of inexpert alterations or maintenance by the partner or any third party made without our consent. The same shall apply to defects that just insignificantly reduce the goods‘ value or fitness for use.
Claims for defects under Section 437 of the German Civil Code (BGB) shall become statute barred after one year after delivery.
The partner shall without delay upon receipt of the goods at the place of destination, however, at the latest within two weeks of receipt, notify us in writing of any obvious or noticeable defects, and forthwith upon detection of any hidden defect.
In the event of a justified notification of defects given in time we shall at our choice remedy or supply fault-free replacement of the goods complained about.
If, within a reasonable period of time, we fail to discharge of these obligations or fail to discharge of them as contractually agreed, the Partner shall be entitled to fix a final time-limit within which we must discharge of our obligations. Upon unsuccessful expiry of the time-limit, the partner shall be entitled to demand reduction of the price, rescind the contractor do the necessary subsequent improvement itself or have it done by a third party at our expense and risk. If subsequent improvement has been successfully effected by the partner or a third party, then any and all of the partner’s claims shall be deemed to have been settled upon refunding of the reasonable expenses the partner has incurred. Expenses shall not be refunded to the extent they have increased because the goods have been brought to another place after delivery by us, unless where this means use of the goods as intended.
We shall not be liable for defects caused by improper or inexpert use, incorrect assembly or commissioning by the partner or any third party, usual wear and tear, incorrect or careless treatment, and also not for the consequences of inexpert alterations or maintenance by the partner or any third party made without our consent. The same shall apply to defects that just insignificantly reduce the goods‘ value or fitness for use.
Claims for defects under Section 437 of the German Civil Code (BGB) shall become statute barred after one year after delivery.
The partner shall without delay upon receipt of the goods at the place of destination, however, at the latest within two weeks of receipt, notify us in writing of any obvious or noticeable defects, and forthwith upon detection of any hidden defect.
In the event of a justified notification of defects given in time we shall at our choice remedy or supply fault-free replacement of the goods complained about.
If, within a reasonable period of time, we fail to discharge of these obligations or fail to discharge of them as contractually agreed, the Partner shall be entitled to fix a final time-limit within which we must discharge of our obligations. Upon unsuccessful expiry of the time-limit, the partner shall be entitled to demand reduction of the price, rescind the contractor do the necessary subsequent improvement itself or have it done by a third party at our expense and risk. If subsequent improvement has been successfully effected by the partner or a third party, then any and all of the partner’s claims shall be deemed to have been settled upon refunding of the reasonable expenses the partner has incurred. Expenses shall not be refunded to the extent they have increased because the goods have been brought to another place after delivery by us, unless where this means use of the goods as intended.
Payment terms
Unless otherwise agreed, all invoices shall become due for payment without deduction after delivery of the goods within30 days of the invoice date. If payment is made within 14 days of the invoice date, we shall grant a 2% discount, provided that the partner is not in arrears with other payments.
Where it is not disputed that we have supplied partially defective goods, our partner shall nevertheless be obligated to pay for that part of the goods which is not defective, unless partial delivery is not in the interest of the partner. Apart from that, the partner shall be entitled to set off any claim only against final or undisputed counter-claims.
If any payment is delayed, we shall be entitled to demand interest for default in the statutory amount as well as reasonable dunning charges which shall at least be €5 per dunning letter.
If any payment is delayed, we shall be entitled to stop discharging our obligations after written notification of the partner until the relevant payments are received.
Bills of exchange and cheques shall be accepted only by arrangement and only in lieu of performance and under the precondition of their discount ability. Discount charges shall be charged from the day the invoice amount is due. Any guarantee of correct presentation of the bill for acceptance and for bill protest shall be excluded.
If the partner uses a central settlement organization, then the invoice shall be settled only upon the crediting of the amount to our account.
If after conclusion of the contract it becomes foreseeable that our payment claim will be threatened by the partner’s insufficient ability to perform, we shall be entitled to refuse to deliver and set the partner a reasonable time-limit within which it shall match payment with delivery or furnish security. If the partner refuses this or if the time-limit expires unsuccessfully, we shall be entitled to rescind the contract and claim damages for non-performance.
Where it is not disputed that we have supplied partially defective goods, our partner shall nevertheless be obligated to pay for that part of the goods which is not defective, unless partial delivery is not in the interest of the partner. Apart from that, the partner shall be entitled to set off any claim only against final or undisputed counter-claims.
If any payment is delayed, we shall be entitled to demand interest for default in the statutory amount as well as reasonable dunning charges which shall at least be €5 per dunning letter.
If any payment is delayed, we shall be entitled to stop discharging our obligations after written notification of the partner until the relevant payments are received.
Bills of exchange and cheques shall be accepted only by arrangement and only in lieu of performance and under the precondition of their discount ability. Discount charges shall be charged from the day the invoice amount is due. Any guarantee of correct presentation of the bill for acceptance and for bill protest shall be excluded.
If the partner uses a central settlement organization, then the invoice shall be settled only upon the crediting of the amount to our account.
If after conclusion of the contract it becomes foreseeable that our payment claim will be threatened by the partner’s insufficient ability to perform, we shall be entitled to refuse to deliver and set the partner a reasonable time-limit within which it shall match payment with delivery or furnish security. If the partner refuses this or if the time-limit expires unsuccessfully, we shall be entitled to rescind the contract and claim damages for non-performance.
Sales displays
Sales displays made available to the partner free of charge shall remain our property and may be reclaimed at any time. While the partner is using the sales displays, any risk associated with this shall be transferred to the partner. The partner undertakes to use the sales displays for our goods only and to pay damages if they are lost or damaged through its fault.
Other claims
Unless where otherwise provided for in the following, other and additional claims by the partner against us shall be excluded. This shall in particular apply to claims for damages based on delay, impossibility of performance, culpable breach of other contractual duties, culpa in contrahendo and tort. We shall, therefore, not be liable for any damage caused not to the goods delivered themselves. In particular, we shall not be liable for lost profit or any other financial loss suffered by the partner.
The above liability limitations shall not apply if we cause damage deliberately or grossly negligently or if we breach fundamental contractual obligations. If we breach a fundamental contractual obligation, we shall be liable only for the reasonably foreseeable damage typically occurring in connection with this kind of contract.
The above liability limitations shall also not apply in cases in which liability for defects in the goods delivered applies under the product liability act for injury to persons and damage to property caused to objects used privately. The liability limitations shall also not apply in the case of culpable injury of health, life and limb and in the case of fraudulent concealment of a defect.
Where a guarantee of quality is given, claims for damages based on any damage not caused through our fault may only be asserted if the guarantee was intended to prevent typical consequential harm caused by a defect.
The partner’s rights of recourse under Sections 478, 479 of the German Civil Code (BGB) shall exist only if the prerequisites of Section 474 BGB are met and only in so far as the partner has not made an agreement with its customer that exceeds the statutory claims for defects and rights of recourse. Furthermore, the last sentence of section 25 shall apply by analogy to the extent of the rights of recourse.
If and where liability on our part is limited or excluded, this shall also go for the personal liability of our legal representatives and vicarious agents.
The above liability limitations shall not apply if we cause damage deliberately or grossly negligently or if we breach fundamental contractual obligations. If we breach a fundamental contractual obligation, we shall be liable only for the reasonably foreseeable damage typically occurring in connection with this kind of contract.
The above liability limitations shall also not apply in cases in which liability for defects in the goods delivered applies under the product liability act for injury to persons and damage to property caused to objects used privately. The liability limitations shall also not apply in the case of culpable injury of health, life and limb and in the case of fraudulent concealment of a defect.
Where a guarantee of quality is given, claims for damages based on any damage not caused through our fault may only be asserted if the guarantee was intended to prevent typical consequential harm caused by a defect.
The partner’s rights of recourse under Sections 478, 479 of the German Civil Code (BGB) shall exist only if the prerequisites of Section 474 BGB are met and only in so far as the partner has not made an agreement with its customer that exceeds the statutory claims for defects and rights of recourse. Furthermore, the last sentence of section 25 shall apply by analogy to the extent of the rights of recourse.
If and where liability on our part is limited or excluded, this shall also go for the personal liability of our legal representatives and vicarious agents.
Secrecy
Unless expressly agreed otherwise in writing, the information on which this contract is based shall not be regarded as secret.
Governing law, place of jurisdiction, severability and transferability of contractual rights
These Standard Business Conditions and the entire legal relationship between the parties hereto shall be governed by the laws of the Federal Republic of Germany. Application of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall be excluded.
The place of jurisdiction for any and all legal disputes, also in the context of any proceeding based on a cheque and/or a bill of exchange shall be the place where we have our registered office, provided that the partner is a merchant, a corporate body under public law or a public special fund. We shall also be entitled to bring an action at the place where the partner has its registered office.
Should any of the provisions of these Standard Business Conditions or any provision in the context of other agreements be or become invalid, then this shall not affect the validity of the contract or agreement. In such a case, the partners shall be obligated to replace the invalid provision by a relevant valid provision coming as close as possible to the commercial effect of the invalid provision.
Transfer or assignment of any of the parties‘ contractual rights shall require mutual agreement.
Governing law, place of jurisdiction, severability and transferability of contractual rights
These Standard Business Conditions and the entire legal relationship between the parties hereto shall be governed by the laws of the Federal Republic of Germany. Application of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall be excluded.
The place of jurisdiction for any and all legal disputes, also in the context of any proceeding based on a cheque and/or a bill of exchange shall be the place where we have our registered office, provided that the partner is a merchant, a corporate body under public law or a public special fund. We shall also be entitled to bring an action at the place where the partner has its registered office.
Should any of the provisions of these Standard Business Conditions or any provision in the context of other agreements be or become invalid, then this shall not affect the validity of the contract or agreement. In such a case, the partners shall be obligated to replace the invalid provision by a relevant valid provision coming as close as possible to the commercial effect of the invalid provision.
Transfer or assignment of any of the parties‘ contractual rights shall require mutual agreement.
Transfer of risk, costs of packaging
Delivery is agreed "ex works", provided that nothing else is stated in the order confirmation.
Separate agreements apply for the return of packaging.
We will cover the delivery by a transport insurance if so desired by the customer; the costs accruing for this service shall be borne by the customer.
Separate agreements apply for the return of packaging.
We will cover the delivery by a transport insurance if so desired by the customer; the costs accruing for this service shall be borne by the customer.
Applicable law, jurisdiction, partial invalidity and transferability of the contract rights
Unless expressly agreed otherwise in writing, the information on which this contract is based shall not be regarded as secret.
Governing law, place of jurisdiction, severability and transferability of contractual rights
These Standard Business Conditions and the entire legal relationship between the parties hereto shall be governed by the laws of the Federal Republic of Germany. Application of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall be excluded.
The place of jurisdiction for any and all legal disputes, also in the context of any proceeding based on a cheque and/or a bill of exchange shall be the place where we have our registered office, provided that the partner is a merchant, a corporate body under public law or a public special fund. We shall also be entitled to bring an action at the place where the partner has its registered office.
Should any of the provisions of these Standard Business Conditions or any provision in the context of other agreements be or become invalid, then this shall not affect the validity of the contract or agreement. In such a case, the partners shall be obligated to replace the invalid provision by a relevant valid provision coming as close as possible to the commercial effect of the invalid provision.
Transfer or assignment of any of the parties‘ contractual rights shall require mutual agreement.
Governing law, place of jurisdiction, severability and transferability of contractual rights
These Standard Business Conditions and the entire legal relationship between the parties hereto shall be governed by the laws of the Federal Republic of Germany. Application of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall be excluded.
The place of jurisdiction for any and all legal disputes, also in the context of any proceeding based on a cheque and/or a bill of exchange shall be the place where we have our registered office, provided that the partner is a merchant, a corporate body under public law or a public special fund. We shall also be entitled to bring an action at the place where the partner has its registered office.
Should any of the provisions of these Standard Business Conditions or any provision in the context of other agreements be or become invalid, then this shall not affect the validity of the contract or agreement. In such a case, the partners shall be obligated to replace the invalid provision by a relevant valid provision coming as close as possible to the commercial effect of the invalid provision.
Transfer or assignment of any of the parties‘ contractual rights shall require mutual agreement.