Terms and conditions of delivery and payment of A. Kolckmann GmbH

As of: 10/2016

1. General terms of contract

1.1 All offers and agreements are solely based on the terms of contract below; likewise, the acceptance and execution of orders shall only be based on our terms and conditions of sale unless an agreement to the contrary has been made in writing in the individual case.

1.2 Our terms and conditions of delivery and payment shall also apply to future transactions without requiring an express agreement in this regard in each individual case.

1.3 Any opposing general terms and conditions of the customer shall not form part of the contract even if they are not expressly opposed.

1.4 Any documents, in particular drawings, illustrations and suchlike, provided by us shall remain our property and may only be used for the contractual purpose. If the contractual purpose does not oppose it, the documents shall be returned upon request.

2. Offers and orders

2.1 All offers and information provided in the catalogues, including our price lists, are subject to change at any time. All orders and agreements, be they made orally, telephonically, by fax or electronic means, require our relevant written confirmation to be effective.

2.2 The customer shall be bound to their order placed with us until the time of delivery or until they receive a written response from us, but no longer than four weeks from when we receive the order.

2.3 Drawings, illustrations, performance measures, weight and consumption information are only approximate and therefore binding only if they are expressly confirmed by us in writing, thereby becoming part of the contract.

3. Delivery

3.1 Our delivery dates are determined with the required care and based on a normal production process. The delivery period shall commence on the day of order confirmation, but not before full clarification of all details in connection with the order and all other requirements that the buyer must fulfil.

3.2 The delivery date shall be regarded as having been complied with upon timely notification of shipment readiness even if the shipment is not made for reasons beyond our control.

3.3 The delivery period shall extend – also in the event of a delay in delivery – if unforeseen obstacles occur that we are unable to prevent despite having taken reasonable care in accordance with the circumstances of the case – irrespective of whether they arose at our factory or at one of our sub-suppliers, e.g. business disruption, delay in the delivery of important raw materials, effects of industrial action or similar – as well as in all cases of force majeure. The same shall apply if, after contract conclusion, an extension to the production time is required due to changes in technical details by the customer.

3.4 Shipment to the destination specified by the customer shall be at the risk of the customer. The risk of deterioration or accidental loss of the goods shall pass to the customer at the time of loading even if it is our own vehicles that are loaded. Shipments shall be insured only at the express request of the customer. If the shipment is carried out using our transport means, our liability shall be based on the law.

3.5 Unless agreed to in writing to the contrary, partial deliveries are also permitted. Partial deliveries may be billed as separate deliveries. Production-related excess or short deliveries are permitted to a reasonable extent.

3.6 If the customer does not fully meet its obligations from previous orders, we shall be entitled to refuse delivery.

4. Prices

4.1 Prices are quoted in euros ex-works in Alfdorf incl. packaging. However, they exclude freight, customs duties and other costs arising due to the purchase or shipment of the goods. A coupon surcharge in accordance with our current processes shall be levied on goods for which the ordering party requires customisation.

4.2 Additional costs for customers’ special requests (urgent shipment, in particular type of transport means/routes, partial shipments, transport insurance, etc.) shall be borne by the customer.

4.3 If a change or addition to the order is made on request by the customer at a later date, we shall be entitled to adjust the price accordingly even if no special agreement was made in this regard in the subsequent order.

4.4 Cost estimates are binding only if they are given in writing and expressly designated as binding.

4.5 Prices quoted exclude value-added tax. The value-added tax rate applicable on the date of delivery shall apply.

5. Payment

5.1 Unless agreed to otherwise in writing, invoices are payable 30 days from the date of invoice. This does not apply to payment by bill of exchange. If payment is made only after the due date, interest of 8 percentage points above the base interest rate shall be charged on the invoice amount. A separate warning shall not be required.

5.2 Partial payments granted may be revoked if an agreed instalment is in arrears for more than one week. The costs for the discounting of bills of exchange shall be borne by the customer and shall be paid immediately in cash.

5.3 Cheques or bills of exchange shall be accepted only in accordance with a separate agreement and then only for payment purposes and not in lieu of fulfilment. Credit balances for payment transfers, cheques or bills of exchange shall only be issued subject to receipt. Acceptance does not imply deferment, and passing on or prolongation does not imply fulfilment. Credits shall be paid on the date on which we can freely access the proceeds.

5.4 In the event of a deterioration in the financial situation of the customer, we shall be entitled to demand immediate payment or security despite having accepted bills of exchange or cheques. If neither payment nor collateral is received, we shall be entitled to withdraw from all existing contracts and claim the losses arising including the earnings foregone and the portion of costs reimbursable for general expenses not earned.

5.5 In the event of unknown ordering parties, we reserve the right to execute the delivery on the basis of cash on delivery or payment in advance.

5.6 Each partial delivery shall be regarded as a transaction in itself and is payable separately.

5.7 Payments shall be made exclusively in euros.

5.8 Setoffs, rights of retention and deductions of any kind are prohibited without our written consent or legally valid court decision.

5.9 Payments shall always be used to settle the oldest amounts due as well as the default interest and costs incurred thereby.

6. Notification of defects and other complaints

6.1 Complaints may be submitted in writing with legal effect only within 12 days after receipt of the goods or, in the event of hidden defects, only within one week after the determination of same, but no later than three months after delivery.

6.2 After expiry of these deadlines, the goods shall be regarded as fully approved with the result that notifications of defects and complaints can no longer be made and objections to the purchase price receivable no longer be raised.

6.3 No complaints of apparent defects may be made after commencement of customisation or other processing of the goods.

6.4 Complaints about minor, technically unavoidable deviations in quality, colour, width, weight, equipment or design may not be made. This also applies to industry-standard deviations unless delivery according to the sample has been expressly agreed in writing.

6.5 For deviations that are substantiated and recognised by us, we have the right to subsequent improvement or delivery of defect-free replacement goods, at our choice, within 12 working days of receipt of the defective goods. Any parts replaced by us in terms of the warranty shall be sent back to us by the customer carriage paid and free of charge.
Our company shall be accorded at least two subsequent improvement attempts. If these fail, the customer may exercise its right to withdraw from the purchase agreement.

6.6 We shall be liable for replacement deliveries and subsequent improvement work to the same extent as for the original delivery item.

6.7 Any inappropriate or unprofessional processing, storage or use of the goods by the purchaser shall release us from any liability for subsequent improvement or replacement delivery.

6.8 Second-grade and/or stocklot goods shall, in principle, be delivered under exclusion of any liability for defects to the extent that defects were not maliciously concealed. Our liability is also limited to the invoice amount in the event of consequential damages with respect to defective products – unless wilful intent or gross negligent by us is proven.

7. Reservation of title

7.1 All goods supplied by us shall remain our property until all the debts of the customer, irrespective of the legal ground, have been paid in full. This especially applies until the bills of exchange or cheques issued by the customer have been paid in full.

7.2 Any disposal, pledging, transfer by way of security or relinquishment of the items purchased is prohibited without our written consent as long as the reservation of title is in existence.

7.3 Goods may be disposed of in accordance with the intended purpose and in the normal course of business. This right shall lapse, however, if the customer discontinues payments. If the customer is in arrears with payments, we may revoke the right to the intended use or resale of the unpaid goods.

7.4 If the goods are resold by the customer, the customer shall assign the claims resulting from the sale to us in advance. These claims shall pass to us on conclusion of the sale transaction. If the third-party debtor makes payments to the customer in the context of this subrogation, the amounts paid shall be regarded as funds received in trust and shall be paid to us by the customer without delay irrespective of payment terms to the contrary agreed between the customer and its third-party debtor and without taking into account current rights accepted. In this regard, the customer acts as our authorised agent.

7.5 The customer shall notify us immediately by registered letter in the event of interventions by creditors, in particular regarding pledges. The customer shall take all measures required to secure our ownership of the goods. The customer shall appear and advance the costs of such measures, in particular including the costs for any intervention proceedings set in motion by us.

7.6 If the customer fails to meet his payment obligations, discontinues payments, if insolvency proceedings are pursued or out-of-court composition proceedings are instituted by same, the remaining debt from all contractual agreements between us and the customer shall become due for payment immediately, including any bills of exchange with a later due date. If this remaining debt is not paid immediately, we shall be entitled to repossess the sold items that are subject to reservation of title. The customer herewith expressly recognises their surrender obligation and further recognises that our taking possession of these items does not represent trespass. All the costs arising from repossession of the purchased goods shall be borne by the customer. Notwithstanding the continued existence of the payment obligations, we are entitled to dispose of the purchased items by selling them on the open market under the most favourable terms available. The proceeds shall be credited to the total debt of the customer after deduction of costs.

7.7 If the customer’s purchased item is combined with or integrated into another movable object, with the result that, in the mind of the public, a new item is created or the purchased item becomes a significant component of a new object, the reservation of title shall not lapse; we shall in fact acquire ownership or co-ownership in the new object pursuant to section 947 of the German Civil Code (BGB). If, within the meaning of section 950 BGB, the customer’s purchased item is processed or altered, the contractual partners shall agree that the processing was carried out for us and that we acquire ownership or co-ownership in the goods in the proportion of the value of the other goods also processed but not originating from us. If an increase in value arises due to the processing, we shall acquire co-ownership in the proportion of the material value of the purchased item to the new object. If such a newly created item is disposed of, the above-mentioned extended right of reservation shall apply mutatis mutandis.

7.8 If the customer’s purchased item is combined with land, the parties agree that this combination is only temporary and that the purchased item therefore does not become an integral part of the land.

7.9 If the collateral held exceeds the value of all our receivables by more than 20 percent, we undertake to release purchased items at our choice.

8. Right of withdrawal, extent of liability

8.1 If four weeks have passed after the due delivery date, the customer is entitled to set a period of grace of at least another four weeks. If this additional period also lapses, the customer is entitled to withdraw from the contract.

8.2 If a substantiated defect recognised by us is not rectified within a period of 12 working days, or if no replacement delivery is made, the customer shall also be entitled to set a period of grace of four weeks. If the defect is also not remedied within this period or if no subsequent delivery is made, the customer may also withdraw from the contract in this case.

8.3 Rights to conversion and reduction, damage claims arising from non-performance or faulty performance as well as from delay, pre-contractual obligations and liabilities in tort are excluded unless they are proven to be based on wilful intent or gross negligence on our part.

8.4 We shall not be liable for contractual penalties, accidental damages, foregone profits and other losses.

9. Prohibition of export

9.1 Our products may be resold abroad by domestic customers in Germany only with our express consent.

10. Final provisions

10.1 The customer may not transfer their contractual rights to third parties without our express written consent.

10.2 The place of performance for delivery and payment as well as – to the extent legally permissible – the exclusive place of jurisdiction for all disputes arising directly or indirectly from this contract – including disputes relating to cheques or bills of exchange and disputes relating to ownership rights – shall be Alfdorf. In addition, we have the right to choose to file suit at the place of the customer's headquarters.

10.3 All the legal relationships between us and the customer are subject solely to German law, to the express exclusion of the UN Convention on Contracts for the International Sale of Goods.

10.4 Should any individual provisions of this contract or terms and conditions of business be invalid or void, this shall not affect the validity of the remainder of the contractual provisions and clauses of the terms and conditions of business.

10.5 Should mandatory legal regulations for non-commercial transactions conflict with these terms and conditions of business, these legal regulations shall take priority for non-commercial transactions without invalidating the other provisions.