Terms and Conditions for Kögl GmbH
In case of doubt, the latest German version shall apply.
§ 1 Jurisdiction and Defence Clause
(1) The following Terms and Conditions apply to contractors, according to § 14 BGB, legal persons under public law and special assets governed by public law. They also apply to all future transactions with these contracting parties.
(2) Our Terms and Conditions apply to all deliveries and services, as well as our purchases, exclusively. They are acknowledged and accepted by order submission, order confirmation or with the acceptance of our deliveries or services.
(3) The divergent conditions in our contracting partners Terms and Conditions are not acknowledged in our contracts, unless explicitly stated otherwise.
§ 2 Offers, Contract Acceptance, Contract Documents
(1) All our offers are without obligation and non-binding, unless otherwise stated. Orders and assignments have only been accepted by us when we have officially confirmed them. Offers made to us can be accepted within 2 weeks.
(2) All agreements must be recorded in writing in the contract itself. This includes alterations and amendments of the contract. Verbal subsidiary agreements will not be made when agreeing upon the contract.
(3) We reserve the ownership and copyright of all depictions, drawings, calculations, samples and any other tenders and documents. They may not be disclosed to any third parties without our permission.
§ 3 Prices, Price Modifications, Packaging
(1) Services, for which no fixed price was agreed upon, are charged according to the prices valid on the day of delivery or service completion. Insofar as not otherwise stated in the order confirmation, our prices shall apply ex works including standard packaging. The prices do not include the statuary VAT; this will be calculated and stated in the invoice separately at the applicable rate at the date of the invoice.
(2) Should considerable changes occur relating to the cost of production after submission of tenders or conclusion of contract, we reserve the right for us and our contract partners to alter the prices with consideration of the relevant price factors, should deliveries be scheduled to 4 months or more after conclusion of contract.
§ 4 Delivery Times, Partial Services, Call Orders
(1) Without explicit agreement upon a binding date, production and delivery times are considered as estimates. The agreed time period begins only when all previous technical and commercial questions have been fully answered. Also the correct and timely fulfilment of obligations required from our contracting partners is a prerequisite for our delivery obligations.
(2) In cases of force majeure or in the event of unforeseen impediments, which, despite our best efforts, according to the circumstances, remain beyond our control, we reserve the right to postpone the completion and delivery dates, regardless of where these hindrances have occurred. Circumstances which would involve a postponed delivery are, amongst others: industrial action, official interference of the national and international authorities for which we carry no blame, as well as power cuts, delays in supplies of goods and materials, disruptions of operations and productions in our own company as well as in that of the supplier. Furthermore, the agreed completion and delivery times can be prolonged when the contract is altered in such a way that the delivery times are affected. We are obliged to notify our contracting partner immediately should one of these events occur, as well as offer details about the expected duration of the delay as soon as this can be estimated. Upon request, we can refund potential advance payments for the duration of the hindrance of performance.
(3) Should our services be rendered impossible for the long-term because of force majeure or hindrances for which we carry no blame, we shall be released from the obligation to deliver. Our contracting partner is entitled to withdraw from the contract in these situations, after the expiration of an appropriate grace period with the threat of refusal of performance. Further claims, especially claims for damages due to non-fulfilment, non-timely or incomplete fulfilment are excluded, unless we, or our executive staff, are liable for intent or gross negligence.
(4) We reserve the right to fulfil our contractual duties in instalments. Should we store items belonging to our contracting partners in our warehouse, these should be collected from us by request, within 12 months of storage.
(5) The supply of the contracting partner's goods, which are to be processed by us, shall be free of charge, unwrapped and suitable for a fork lift truck. Should the delivery of the goods not fulfil these requirements, we will charge the contracting partner with the additional expenses involved in providing the goods' condition we require, as outlined in sentence 1.
§ 5 Shipment, Insurance, Transfer of Risk
(1) Deliveries will be made by train, post, freight forwarding or our own shipping facility as we see fit. The cost of transport, custom duties, toll rates and all other additional transportation expenses are charged to the contracting partner.
(2) Upon request by the contracting partner, we shall arrange for an insurance cover for the transport. The contracting partner will bear the associated costs. We are in no way obliged to take out transport insurance.
(3) The goods are always transported at the risk of the contracting partner. This also applies to Franko, FOB, CIF, FCA or CIP transactions according to Incoterms 2000. If the goods are ready to be dispatched, yet the acceptance or shipment is delayed by a cause for which we carry no blame, the risk shall pass to the contracting partner upon receipt of the notice indicating readiness for shipment.
§ 6 Reservation of Proprietary Rights
(1) The goods delivered by us remain in our ownership until complete payment of all services, including potential costs that were incurred after conclusion of contract, has been made. Payment is acknowledged when the invoice amount has been received into one of our accounts. In the event of actions in breach of contract by the contracting partner, especially of delayed payment, we are entitled to reclaim the goods, without prejudice to our further statutory rights.
(2) Our contracing partner is not entitled to use the conditional goods as a credit document, in particular to pledge them or give them to third parties for safekeeping. The contracting partner is obliged to inform us immediately of any pledging or other access of third parties to the conditional goods in writing. Should the third party be unable to cover the costs of judicial and extra-judicial means and proceedings required for the release demands, the liability is that of the contracting partner.
(3) If the contracting partner resells the conditional goods, all claims arising from the resale to third parties, or based on any other legal grounds, amounting to the final invoice amount and subsidiary claims, shall be assigned to us from the beginning; regardless of whether the conditional goods are resold without, or after, finishing. The contracting party remains authorised to collect these claims, until revoked by us, even after the assignment. This does not affect our right to collect these claims ourselves. However, we undertake not to collect these claims ourselves, nor make use of our right of revocation, as long as the contract partner fulfils the payment obligations to us and has not ceased to make payments, is not in default and no application has been lodged to open insolvency proceedings. Should one of these circumstances arise, our contracting partner is obligated to disclose all assigned claims and the respective debtors, including all necessary information and documents to enable the collection of such claims, to us, as well as to inform the debtors (third parties) of the assignment. The contracting partner is not permitted to resell the reserved goods if the buyer has excluded or limited the transfer of the claims against them. Should the contracting partner sell us the claims as part of genuine factoring, the customer immediately assigns to us, in the amount of the final commercial invoice amount, his present and future claims against the factor arising from the purchase of resale receivables insofar as these concern the goods delivered by us.
(4) An alteration or restructuring of any conditional goods in our ownership is to be only performed on our behalf, resulting in our immediate ownership of the altered or restructured goods. Should any alterations or structural changes be undertaken with goods that are not in our ownership, we shall acquire joint ownership of the new item in the ratio of the value of the conditional goods to the other goods involved in the alteration or restructuring at the time of the alteration or restructuring. If the conditional goods are bonded, mixed or blended with items not in our ownership, we will acquire joint ownership of the new product in the share ratio of the relevant materials used at the time of bonding, mixing or blending. Should the contracting partner acquire sole ownership by bonding, mixing or blending, it is agreed upon at the conclusion of the contract, that our (joint) ownership of the item, in proportion to the value (calculated by the invoice value of our goods) is to be transferred to us. In these cases the contracting partner holds the (joint) ownership in trust for us.
(5) Upon the contracting partner's request, we are obliged to release the securities to which we are entitled, insofar as the realisable value of our securities exceeds the claims to be secured by more than 20%. The selection of the securities to release are incumbent upon us.
(6) Should the reservation of title not be effective under the law of the country to which the goods are delivered, the contracting partner shall, upon our request, provide a relevant and equivalent security, which must remain in place until final payment has been made. If the contracting partner does not comply, we reserve the right to demand immediate payment of any and all still unsettled claims, regardless of potentially agreed payment deadlines or deferment of payments.
(7) Insofar as we are recipients of goods, we contradict the validity of a potentially agreed upon reservation of title made by our contracting partner in her/his own favour.
§ 7 Compulsory Insurance
(1) The contracting partner is obliged to handle all the goods supplied by us under reservation of title with care, and to take out an insurance policy covering the risk of loss, theft, vandalism and natural hazards (storms, lightening, water and earthquakes) at her/his own expense. Upon our request, the contracting partner is obliged to provide evidence of the insurance.
(2) Insurance claims relating to our retention of ownership deliveries, will be transferred to us in the full invoiced amount addressed to our contracting partner, at the time of purchasing the insurance cover. The transfer of the insurance claims to us is conditional on the full compensation of our claims.
§ 8 User Requirements, Product Features
(1) Potential information granted about the suitability and application of our products and services are non-binding and in no way acquit the contracting partner from running own tests and examinations. In fact, these tests and trials are imperative, considering the comprehensive variety of each product's possible application in specific circumstances. Also, when provided with technical support, the contracting partner is solely responsible for the successful application, as well as the technical and economic usability of the product.
(2) Pictures, drawings, dimensions, weights and surface finishes that are shown in catalogues, price lists, other printed materials or data carriers, represent only approximations customary in the trade. Our samples and examples are only to be considered as indicative display items with respect to quality, size and other characteristics. The information we give about dimensions, characteristics and intended purposes are merely descriptive and contain no guarantee of qualities or characteristics.
(3) Wood which has been worked on with varnishes, glazes and/or paints, is, like the raw and untreated wood we work with, a natural product, whose natural characteristics shall be contractually accepted by the contracting partner. In particular the biological, physical and chemical characteristics of the natural product, as well as the wide spectrum of natural colour and structural variations within one type of wood, are considered as contractual qualities for our deliveries and services. It is the contracting partner's responsibility to consider these circumstances and potential consequences in the relevant situations in relation to the planned deployment of the natural product wood. Minor variations from the original colour tone shown are unavoidable in the production process when it comes to treated wood, and do not affect the contractual conditions of our deliveries and services.
§ 9 Complaints, Warranties, Liabilities
(1) Warranty claims require that commercial inspections and requirements have been fulfilled. Complaints are to be made to us in writing within 2 weeks of delivery, if the defect is obvious or has been discovered during a correct initial examination, which has to include a trial run in every case, or within 2 weeks of discovering the defect, if the defect could not be detected during the correct initial examination (as mentioned before).
(2) Should the requirements outlined in point (1) be fulfilled, and our delivery is indeed defective or lacking in an assured feature, we are obliged to rectify the situation (by eliminating defects or providing a substitute delivery). An assured feature is only granted if this has been formally agreed upon in writing. The potential additional costs arising from the supplementary performance, which could arise if the goods are transferred to a location other than the place of fulfilment, are not carried by us.
(3) Further claims within the context of our warranty obligations, especially compensation for all direct damages (including lost profit) or indirect damages (property damages) and other consequential damages, are, regardless of which legal grounds the claims may be based upon (impossibility of performance, delay, non-fulfilment, culpa in contrahendo, positive infringement of the contract or illegal actions), excluded, unless the claims are based upon intent or gross negligence on the part of one of our corporate bodies or executive employees. Our liability in the event of an insignificant negligent violation is excluded, unless significant obligations are violated, which arise from the nature of the contract, the observation of which is of special significance for achieving the object of the contract (cardinal duties), or an assured characteristic has not been granted or a fraudulent withholding of information on deficiencies, or if an infringement of the Product Liability Act has occurred. A limitation of liability is not effective and we accept liability in accordance with the legal requirements of the governing law, in the case of any culpable injury to life, physical integrity or health of the contract partner, and for any defects whose absence should have been guaranteed for.
(4) Any liability exemptions and limitations shall equally apply to personal claims against our employees. In the event of any violations of obligations essential to the contract, which were not committed in gross negligence or intentional, our compensation duty is limited to the sum covered by our business liability insurance or product liability insurance. Indirect damages are not covered. Upon request, we can give the contracting partner insight into our insurance policies.
(5) The period of limitation for warranty claims is 1 year. It begins with the risk transfer and is also valid for compensation claims due to possible consequential damage from defects. For claims against intentional, gross negligence or fraudulent behaviour, as well as for claims based on a product lacking an assured quality and for claims under the Product Liability Act, the statutory liability conditions and limitation periods apply.
(6) We accept no liability for defects or damages which occur due to the contracting partner's failure to observe the information given in the instruction manuals on the product's application, maintenance and operation.
§ 10 Payments, Offsetting, Retention, Lump Sums of Compensations
(1) Every payment is to be made within 30 days without deductions. Invoice amounts are, unless otherwise specified, due for immediate payment upon receipt of invoice. For payments made within 10 calendar days of the invoice date, we grant a 3% discount. Deductions of any type are excluded. There is no interest paid on deposits. In the case of minor orders with a net value of less than €100, we charge a €5 fee for processing, postage and packaging.
(2) Bills of exchange and cheques will not be accepted instead of payments, but only as conditional payments. The payment obligation of the contracting partner is seen as fulfilled in these cases, when the full amount of the bill of exchange and/or the cheque has been transferred to us free of a chargeback.
(3) The basis of the conclusion of our contract is the creditworthiness of the contracting partner. Should we become aware of any reasons to doubt the contracting partner's ability to fulfil the contractual payment obligations, for example, if an application is filed for insolvency proceedings or insolvency proceedings are opened, or in the event of overindebtedness, illiquidity or suspension of payments, we reserve the right to withhold any further deliveries or to terminate the contract, should we not be provided with a security of sustainable value within a reasonable period of time.
(4) The contracting partner is only entitled to withholding and offsetting rights against our claims, if the counterclaims have been legally established, or have been recognised and acknowledged by us.
(5) Should the contracting partner not accept the contract object in breach of duty, we reserve the right to demand 25% of the contract sum as damage without evidence, if the setting of a reasonable deadline has not been observed and we claim for damages. In these cases, our contracting partner retains the right to prove that the caused damage is either not genuine, or not in the agreed amount. We, however, also reserve the right to claim for higher compensation for damages.
§ 11 Requirements for the Written Form, Data Protection and Consent
(1) Should explanations in writing be demanded from either contracting party within these Terms and Conditions, Telegram, Fax and Emails suffice to observe the written form requirements.
(2) The contracting partner is hereby informed of, and agrees with, our automated processing of her/his personal data necessary to establish, execute or terminate the legal relationship between us. We reserve the right to transfer the contracting partner's data to our affiliated companies and to use them for product information for the contracting partner. Upon request by the contracting partner, we will immediately terminate the transmission of product information. Upon request, we also immediately delete all the remaining personal data which are no longer needed for the completion and settlement of all outstanding legal processes.
§ 12 Place of Performance, Place of Jurisdiction, Applicable Law
(1) The place of performance for all our obligations and services outlined in the contract is our registered office (89347 Bubesheim, GERMANY).
(2) The place of jurisdiction for all types of dispute, including proceedings for cheques, bills and deeds, is our registered office (D-89347 Bubesheim). Yet we reserve the right to also sue at the company or residential address of the contracting partner, should we wish to.
(3) The legal relationship with the contracting partner shall be governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and the law of conflicts.
(4) Should one of these Terms and Conditions of Business be or become partially or wholly invalid, it shall be replaced by the legal regulations. This does not affect the validity of the remaining Terms and Conditions and the contract itself.
Correct as of March 2017