General Terms and Conditions
Otto Kind GmbH & Co. KG
Conditions of Sale
- General – Scope
1.1 Our conditions of sale are applicable exclusively; we shall not recognise conditions of the purchaser that are contrary to or different from our conditions of sale unless we have expressly agreed their validity. Our conditions of sale shall also apply even if we have knowledge of conditions of the purchase that are contrary to or different from our conditions of sale and perform the delivery to the purchaser without protest.
1.2 All agreements that are made between us and the purchaser for the purpose of the performance of this contract shall be put in writing in this contract.
1.3 Our conditions of sale are only applicable to companies, legal persons under public law and special public law funds for the purpose of § 310 para 1 BGB.
- Quotation – Quotation documents
2.1 Our quotation is subject to confirmation unless otherwise stated in our order confirmation.
2.2 Our order confirmation is computer-generated and does not require any signature for its effectiveness.
2.3 We reserve the title and copyright for illustrations, drawings, calculations and other documents. This also applies for such written documents that are designated as "confidential". The purchaser requires our express permission in writing for their disclosure to third parties.
2.4 The documents included with our quotation such as samples, illustrations and drawings are only approximate insofar as they are not expressly designated as binding.
2.5 Changes to orders and deadlines can only be taken into account free of charge within 2 days of delivery of the order confirmation.
Changes after this deadline affect the manufacturing process. If changes are still possible, we charge according to the following rates:
- up to 5 days after order confirmation, 5% of the order value, minimum EUR 75.00
- from the 6th day after order confirmation, 15% of the order value, minimum EUR 150.00
- up to 5 days after order confirmation, 5% of the order value, minimum EUR 100
- from the 6th day after order confirmation, 15% of the order value, minimum EUR 200
- Prices, payment terms
3.1 Unless otherwise stated in the order confirmation, our prices are "ex works" excluding packaging; this will be invoiced separately.
3.2 If prices carriage paid to the address of the purchaser or the place of use are agreed, these include packaging and freight. Unimpeded access, immediate unloading by the purchaser and dry or clean-swept installation site are required.
3.3 We reserve the right to make appropriate changes to our prices if cost reductions or cost increases occur after conclusion of the contract, particularly due to tariff agreements or material price changes. We will account for these to the purchaser on request.
3.4 The statutory value added tax is not included in our prices. It will be shown separately on the invoice at the applicable rate on the date of issuing the invoice.
3.5 The deduction of discount requires a special agreement in writing.
3.6 Unless otherwise stated in our written order confirmation, the purchase price must be paid net (without deduction) within fourteen days after the invoice date. In the case of payment arrears of the purchaser, we shall be entitled to claim interest on arrears of 8 percentage points above the annual base interest rate (§§ 247, 288 para 2 BGB). If we are able to prove higher damage caused by payment arrears, we shall be entitled to claim this. However, the purchaser shall be entitled to prove to us that no or significantly lower damage has been caused to us as consequence of the payment arrears.
3.7 The purchaser shall only have offset rights if his counterclaims are established with legal force, undisputed or are recognised by us. The purchaser shall also not have any right of retention on account of disputed counterclaims.
3.8 We shall only conditionally accept bills of exchange, cheques and other payment orders as means of payment after agreement. The costs of collection and bank interest and charges shall be paid by the purchaser. Discount fees for bills of exchange shall be charged at 8 percentage points above the annual base interest rate (§§ 247, 288 para 2 BGB).
3.9 If the purchaser defaults on his payment obligation from this or any other contract or circumstances become known to us from which the risk of inability to pay on the part of the purchaser arises, we shall be entitled to make all claims from this and other contracts payable immediately. We shall also be entitled in these cases, without prejudice to any other claims to require payment in advance of delivery or collateral for the invoice amount.
- Delivery time – Partial deliveries
4.1 The start of the delivery time stated by us requires the clarification of all technical issues.
4.2 Compliance with our delivery obligation further requires the proper performance in good time of the obligations of the purchaser. We hereby reserve the right to plead lack of performance of the contract
4.3 If the purchaser comes to be in default of acceptance or culpably infringes other obligations, we shall be entitled to demand compensation for damages so caused including possible extra costs. This shall not affect any other claims.
4.4 Insofar as the conditions from clause 4.3 are present, the risk of accidental loss or accidental deterioration of the contract goods shall pass to the purchaser at the point in time when he is advised of the default of acceptance or infringement.
4.5 We accept liability in accordance with statutory provisions insofar as the the underlying purchase contract agreement specifies a fixed delivery date according to § 376 HGB. We also accept liability in accordance with statutory provisions insofar as the purchaser is entitled to claim cessation of his interest in continuing the performance of the contract as a result of a delay in delivery for which we are responsible.
4.6 We also accept liability in accordance with statutory provisions insofar as the delay in delivery is based on intentional or grossly negligent infringement of contract for which we are responsible; any fault of our representatives or vicarious agents shall be deemed to be attributable to us. Insofar as the delay in delivery is not based on any intentional or grossly negligent contract infringement attributable to us, our liability for damages shall be limited to the foreseeable, typically occurring damage.
4.7 We also accept liability in accordance with statutory provisions insofar as the delay in delivery attributable to us is based on the culpable infringement of an essential contractual obligation; however, the liability for damages in this case shall also be limited to the foreseeable, typically occurring damage.
4.8 Insofar as the delay in delivery is only based on the slightly negligent infringement of a non-essential contractual obligation, our liability for damages shall be excluded.
4.9 If any delay in delivery is based on infringement of an obligation not attributable to us that also does not consist of any defect of the contract goods, the purchaser shall not be entitled to withdraw from the contract.
4.10 We shall particularly be entitled to make billable partial deliveries.
- Transfer of risk – Packaging
5.1 Unless otherwise stated in our order confirmation, delivery "ex works" is agreed.
5.2 Transport and all other packaging shall not be taken back under the provisions of the Packaging Ordinance except for returnable packaging. The purchaser takes over the disposal of the packaging at his own expense.
5.3 The amount of packaging is minimised for environmental protection reasons. Goods are delivered without packaging insofar as technically possible.
5.4 If and to the extent that the purchaser so requests, we shall cover the delivery with transport insurance; the costs thereby incurred shall be paid by the purchaser.
- Claims for defects by the purchaser, fault scale and liability provisions
6.1 The rights of the purchaser for defects require that the purchaser has properly complied with his inspection and notification of defect obligations according to § 377 HGB (German Commercial Code).
6.2 The information in our product and service descriptions, in our catalogues and other advertisements only represent a quality according to § 434 para 1 sentence 3 BGB insofar as it refers to our contract goods and reflects their characteristics.
6.3 We shall bear the required costs for subsequent performance, in particular transport, travel, work and material costs, insofar as these are not increased by the fact that the contract goods have been brought to a location other than the place of performance.
6.4 If the subsequent performance required by the purchaser according to § 439 BGB fails without the presence of any intentional or grossly negligent infringement attributable to us, the purchaser shall be entitled at his discretion to withdraw from the contract or to claim a corresponding reduction of the purchase price.
6.5 We accept liability in accordance with statutory provisions insofar as the purchaser claims damage compensation based on intent or gross negligence, including intent or gross negligence of our representatives or vicarious agents, or acceptance of a warranty or procurement risk. We also accept liability in accordance with statutory provisions for loss of life, bodily injury or damage to health. Furthermore, we accept liability according to the mandatory provisions of the product liability law.
6.6 In the case of only slightly negligent infringement of significant obligations, our liability for damage compensation shall be limited to foreseeable, typically occurring damage.
6.7 Otherwise our liability for damages shall be excluded irrespective of the legal nature of the claim.
6.8 Insofar as our liability for damages is excluded or limited, this shall also apply with respect to the personal liability for damages of our employees, representatives and vicarious agents.
6.9 The claims of the purchaser for subsequent performance (rectification of the defect or delivery of an item without defects), reduction of the purchase price and withdrawal from the contract for defects of the contract goods become time-barred in 12 months calculated from the transfer of risk, however at the latest from delivery of the contract goods. Claims for damage compensation of the purchaser become time-barred in 24 months. Otherwise the regular time limitation period of § 195 BGB shall be applicable.
- Retention of title
7.1 We shall retain the title to the contract goods until receipt of all payments from the purchase contract with the purchaser. Insofar as we agree payment of the purchase price debt with the purchaser based on the cheque / bill of exchange process, the retention of title also extends to redemption of the bill of exchange accepted by us by the purchaser and does not expire by the crediting of the cheque received by us. In the case of breach of contract by the purchaser, particularly in the case of payment arrears, we shall be entitled to take back the reserved goods. Our recovery of the reserved goods shall not be construed as withdrawal from the contract unless we have expressly declared this in writing. There is always a withdrawal from contract if we place a lien on the reserved goods. We shall be entitled to sell the reserved goods after their return. The proceeds from the sale - minus the selling costs incurred - will be offset against the liabilities of the purchaser to us.
7.2 The purchaser shall be obliged to treat the reserved goods with care; the purchaser is particularly obliged to adequately insure these for the value as new against fire and water damage and theft. If maintenance and inspection work is required, the purchaser must do this in good time at his own costs.
7.3 In the case of liens or other interventions of third parties, the purchaser must inform us in writing immediately so that we can initiate legal proceedings according to § 771 ZPO. If the third party is not able to reinstate the legal and extra-legal costs of an action according to § 771 ZPO, the purchaser is liable to us for the loss incurred.
7.4 The purchaser shall be entitled to resell the reserved goods in the ordinary course of business; however, he hereby assigns to us in advance all receivables to the total invoice amount (including value added tax) of our receivable accrued from the resale to his customer or third parties, irrespective of whether the reserved goods have been resold without or after processing. The purchaser shall also be entitled to collect this claim after the assignment. Our entitlement to collect the claim ourselves is not affected. However, we will not collect the claim for as long as the purchaser meets his payment obligations from the proceeds, is not in arrears of payment and in particular no application for insolvency proceedings or bankruptcy has been made. However, if this is the case, we can demand the purchaser to make the assigned claims and their debtors known to us, declares all required information for collection, hands over the associated documents and notifies the assignment to the debtors (third parties).
7.5 The processing or transformation of the reserved goods will always be performed for us by the purchaser. Insofar as the reserved goods are processed with other items not belonging to us, we shall acquire joint ownership in the new item in the ratio of the value of the reserved goods (invoice amount including VAT) to the other processed items at the time of processing. The same applies for the item produced from processing as for the delivered reserved goods.
7.6 Insofar as the reserved goods are inseparably mixed with other items not belonging to us, we shall acquire joint ownership in the new item in the ratio of the value of the reserved goods (invoice amount including VAT) to the other mixed items at the time of processing. If the mixing takes place in such a way that the purchaser's item is regarded as the main item, it shall be agreed that the purchaser transfers joint ownership to us proportionally. The purchaser shall retain the resulting sole ownership or joint ownership on our behalf.
7.7 The purchaser also assigns to us the claim against a third party for the securing of our claims against him that will arise due to the combination of the reserved goods with a base item.
7.8 Insofar as the realisable value of the securities to which we are entitled exceed our claim against the purchaser by more than 10%, we will, at the request of the purchaser, release the excess amount of securities according to our discretion.
- Data processing
We are entitled to use the data received about the purchaser in connection with the business relationship for our commercial purposes in accordance with the German data protection law.
- Applicable law
The law of the Federal Republic of Germany shall be applicable exclusively. Application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
- Jurisdiction – Place of performance
10.1 If the purchaser is a registered trader, the place of jurisdiction shall be our place of business. We are however entitled to take legal action against the purchaser in the court with jurisdiction at his place of business.
10.2 Unless otherwise stated in our order confirmation, our place of business is the place of performance.
Gummersbach, June 2012