General Terms and Conditions

General Terms and Conditions

I. Scope of Application

1. These General Terms and Conditions for delivery and payment are valid for all sales transactions of the KÄHLER GmbH Armaturen (Seller), if the purchaser is an entrepreneur, a legal body under public law or a special fund under public law (§ 310 I BGB [German Civil Code]).
2. These General Terms and Conditions for delivery and payment shall apply exclusively even if the Seller, in the knowledge of opposed or different terms and conditions of the Purchaser, performs deliveries or services without reservation. Such opposed or different terms and conditions shall be binding on the Seller only if it has expressly agreed in writing to their applicability.
3. These General Terms and Conditions for delivery and payment shall also be valid, in their most recent version, as framework agreements for all future sales transactions of the Seller with the Purchaser, without the Seller being required to refer to them in each individual case.

II. Basic Principles of the Contractual Agreement

1. The Seller’s offer will always be non-binding and subject to change.
2. The Purchaser’s order for products will be considered a binding contractual offer. If the purchase order does not stipulate otherwise, the Seller is entitled to accept it as a contractual offer within five working days. Acceptance can be declared either in writing, in textform, by e-mail, or by delivery of the product to the Purchaser.
3. The Seller reserves all ownership and copyrights to the figures, diagrams, calculations, and other documents surrendered with the offer, according to Clause II.1. of these Terms and Conditions.

III. Volume and Delivery

The written order confirmation of the Seller shall be decisive with regard to the volume of delivery. Supplements and changes to the agreement shall require confirmation by the Seller in text form or by e-mail.

IV. Payment Terms

1. The Seller’s price shall be considered “ex works” unless a different agreement is made with the Purchaser. Packaging costs are not included in the price.
2. If it has not otherwise been agreed in writing with the Purchaser, the purchase price will be net (without deductions), immediately payable by the Purchaser upon receipt of invoice. In the event that payment is received within 10 days after it becomes due, the Seller shall grant a 2% discount from the net invoiced amount. A discount deduction shall be allowed only if, at the time of payment, all invoices dating back to more than 45 days have been settled.
3. The Purchaser shall be entitled to an offset only if its counter-claim has been legally established, or is uncontested. The Purchaser shall been titled to a right to withhold payment only if its counter-claim is based on the same delivery. Cash payments, bank transfers, or payments by cheque which are made against transmittal of a bill of exchange issued by the Seller and accepted by the Purchaser, or payment for a delivery by the Purchaser’s bill of exchange, shall only count as payment when the bill of exchange has been redeemed by the drawee, and the Seller has been released from endorser’s liability – until then, there still exists a condition of sale under reservation of title, according to Clause VII. If, on account of performance, several bills of exchange of the Purchaser are issued or accepted, only the complete payment of the final bill of exchange by the Purchaser shall be considered payment for the delivery.
4. The Purchaser shall not be entitled to assign claims arising from the purchasing agreement without the Seller’s consent.
5. The Seller’s offer under Clause II No. 1 shall be based on applicable primary commodity prices at that point in time; price increases of at least 5% by our suppliers, once the order has been confirmed by the Seller, shall be passed on by the Seller to the Purchaser without surcharge. The Seller reserves the right to further price adjustments due to changed materials and labour costs after the course of four months from the order confirmation.

V. Delivery Period

1. Delivery periods shall be individually agreed upon in each case, or stated by the Seller in the acceptance of the purchase order.
2. The delivery period shall be extended to an appropriate extent in case of the occurrence of unforeseen events beyond the Seller’s control (e.g. force majeure, work stoppages, and disruptions of transport routes). The failure of timely delivery by a sub-supplier of the Seller shall count as such an event, if the Seller has concluded a delivery contract under which the Purchaser would have been able to be supplied without interruption (congruent supply transaction), and if the Seller is not responsible for the non-delivery by the sub-supplier. The Seller shall inform the Purchaser immediately in cases of such events. Should such events fundamentally complicate the delivery or make it impossible, and the hindrance not be merely temporary, the Seller may withdraw completely or in part from the agreement. In this case, offsetting services already provided by the Purchaser shall be immediately reimbursed. Other legal rights of withdrawal and cancellation of the Seller, as well as those of the Purchaser, shall otherwise remain unchanged.
3. The delivery time shall likewise be extended by an appropriate period in case of supplementary changes to service initiated by the Purchaser, and in case of delays in cooperative assistance actions by the Purchaser. Should the Purchaser cause a delay in acceptance, omit a cooperative assistance action or delay the delivery due to other causes for which the Purchaser is responsible, the Seller is entitled to store the products with the Purchaser or with a third party, at the expense and risk of the Purchaser. In case of such storage by the Seller, the Seller may demand from the Purchaser the costs of storage customary to the location. This shall apply correspondingly if shipping is delayed at the request of the Purchaser.
4. The Purchaser may only demand damages for delay after expiration of an appropriate grace period, to be set by the Purchaser.
5. Partial deliveries and services are permitted.

VI. Risk Transfer and Acceptance

1. Risk shall be passed to the Purchaser with the sending of a partial delivery, even when partial deliveries occur or the Seller has undertaken other services in addition; for example, transport costs or haulage and assembly. At request of the Purchaser and on his own expense, the Seller will insure the shipment against theft, breakage, or transport, fire, or water damage, as well as other insurable risks.
2. Should the shipment be delayed due to circumstances for which the Purchaser is responsible, the risk shall pass to the Purchaser from the day of readiness for shipment; however the Seller is obligated, at the Purchaser’s request and expense, to secure such insurances as the Purchaser may demand.

VII. Reserved Right of Title

1. The Seller’s deliveries take place, without exception, with right of title reserved. Ownership of the products delivered by the Seller (below: goods subject to reservation of title) is only passed to the Purchaser if it has fulfilled all of its obligations arising from the business relationship with the Seller, and all the liabilities arising from bills of exchange and cheques taken by the Seller at the instigation of the Purchaser have been settled.
2. The Purchaser shall be obligated to handle goods subject to reservation of title with care; it is particularly obligated to insure them at their replacement value, at its own expense, against damages caused by fire, water, and theft. Insofar as maintenance and inspection work is required, the Purchaser must perform this on time at its own expense.
3. The Purchaser may combine or mix goods subject to reservation of title with other things, process or sell them, in the customary course of business.
4. The processing or alteration by the Purchaser of the goods subject to reservation of title will always be carried out for the Seller, without liability for the Seller arising from this. Should goods subject to reservation of title be mixed or blended with other things – including goods subject to reservation of title of other suppliers – or combined with another object (primary object) in such a way that they become essential parts of it, it is agreed that co-ownership of the entire quantity, or of the primary object, passes to the Seller, in the ratio of the invoiced value of the goods subject to reservation of title to the value of the other things or the primary object at the time of mixture or blending. The entire quantity or the primary object will be kept for the Seller by the Purchaser with due care and diligence, and free of charge.
5. Should goods subject to reservation of title become the object of a purchase, factory or other contract of the Purchaser with a third party, on the basis of which the third party would acquire ownership of them, the Purchaser will then assign to the Seller its claims for value consideration, in the amount of the purchase price of the goods subject to reservation of title, plus a one-off charge of 15% for interest charges and costs; the Seller will then accept this assignment. The Purchaser may not agree with its contractual partner on a prohibition of assignment, and on its part may deliver only under reservation of ownership; upon request, the Purchaser must name the contractual partner to the Seller, and deliver or distribute the information and documents required insurance of the Seller’s rights. For recovery of the assigned receivable, the Purchaser is revocably authorised to collect the receivable itself, without prejudice to the entitlement of the Seller; the Seller will only revoke the authorisation and collect the receivable itself if the Purchaser falls into default of payments or financial collapse – suspension of payments, application for the opening of insolvency proceedings.
6. The Seller may neither pledge the goods subject to reservation of title nor convey them to a third party as security or tolerate their being attached. The Purchaser must immediately notify us of pledges or other access to goods subject to reservation of title, if necessary by transmittal of a copy of the hypothecation protocol.
7. Should the value of collateral security exceed the total amount of the receivables (including possible bills of exchange or cheque receivables) by more than 10%, the Seller shall release, at the Purchaser’s demand, a corresponding amount of collateral to be chosen by the Seller.

VIII. Warranty

1. The documents underlying the offer under Clause II.1, such as figures, diagrams, weight and mass information, are not considered an agreement on properties and condition.
2. The Purchaser must inspect the product immediately and notify the Seller in writing of any defects. Obvious defects (including false and short deliveries) must be objected to within five working days of the handover. Hidden defect claims must be raised within five working days after they become known.
3. The Seller will provide supplementary performance in cases of timely and well-founded defect claims: At the Seller’s choice, it will either take back the defective product and deliver a product free of defects(replacement delivery), or repair the defect (remedy of defect). In case of failure to provide supplementary delivery, the Customer may opt to reduce the purchase price or withdraw from the contract.
4. In case of a defect which reduces the value or serviceability of the product only by an insignificant amount, the Purchaser may neither demand supplementary performance nor reduce the purchase price.
5. Should materials or work substances be supplied by the Purchaser for the carrying out of the order, the Seller is not obligated to inspect them; the Seller gives no warranty for defects of products which are based on deficiencies in the supplied materials or work substances.
6. Subject to the regulation of Clause IX below, other claims by the Purchaser – on whatever grounds – are ruled out.
7. Defects claims are time-limited to one year from delivery of the product. The limitation period for delivery recourse shall remain unaffected by this (§§ 478, 479 BGB).

IX. Liability

1. The Seller is liable for deliberate and gross negligence. The Seller is also liable in case of simple negligence, if it involves - damages a rising from the breach of contractual obligations whose preservation is necessary to make orderly performance of the contract possible, and whose fulfilment the Purchaser normally relies upon and may rely upon; in such a case, however, liability is limited to the compensation of foreseeable, typically occurring damages - damages arising from death, injury to body and health. Cases of any sort of liability under the Product Liability Act are excluded from the above limitations on liability.
2. The Seller is not liable for damages based on inappropriate or improper use, faulty assembly or operation, faulty or negligent handling by the Purchaser or a third party, or on customary wear and tear, inappropriate operating equipment, substitution of work substances, or chemical, electrochemical or electrical influences. The causal connection between a substantial alteration of the purchased object by the Purchaser, and the defects or damages which have occurred, is assumed. In particular, no warranty for defects or damages shall be assumed if these have arisen from substantial changes carried out by the Purchaser – especially by bore holes or by the welding of other objects– on the products delivered by the Seller.
3. Insofar as the Seller’s liability is excluded or limited, this also applies to the personal liability of the Seller’s staff, contractors, employees, representatives and vicarious agents.

X. Confidentiality

The Purchaser shall have to treat all commercial and technical details connected with the contract and its execution – especially documents of all types which are given to the Purchaser by the Seller for purposes of carrying out the contract, including in electronic form – as business secrets. The Purchaser is also bound to confidentiality on the handling of the contract, and is authorised to copy such documents only under operational requirements and copyright terms. Disclosure to third parties may take place only with express consent of the Seller in text form.

XI. Place of Fulfilment, Applicable Law and Jurisdiction

1. The place of fulfilment for all obligations arising from the contractual relationship, including payment obligation, shall be Burscheid.
2. The law of the Federal Republic of Germany shall apply.
3. The place of jurisdiction is Burscheid, Germany. However, the Seller may also sue the Purchaser at its place of jurisdiction.