Terms and Conditions
General Terms and Conditions of Delivery and Payment
of the Kussmann & Berkenhoff GmbH
51469 Bergisch Gladbach
- These Terms and Conditions of Sale shall apply to companies, legal entities under public law and special funds under public law.
Our deliveries and services are provided exclusively on the basis of the following terms and conditions.
Terms and conditions of the partner which are not expressly recognised by us shall not be valid.
- The contracting parties shall immediately confirm verbal agreements in detail in writing.
- Orders shall only become binding upon our order confirmation.
- The information and illustrations contained in brochures and catalogues are approximate values customary in the industry, unless they have been expressly designated as binding by us.
Long-term and call-off contracts, price adjustment
- Unlimited contracts can be terminated with a notice period of 6 months.
- in the case of long-term contracts (contracts with a term of more than 12 months and open-ended contracts), if there is a substantial change in wage, material or energy costs, each contracting party shall be entitled to demand an appropriate adjustment of the price taking these factors into account.
- If a binding order quantity has not been agreed, we shall base our calculation on the non-binding order quantity (target quantity) expected by the partner for a specific period. If the partner purchases less than the target quantity, we shall be entitled to increase the unit price accordingly.
If the partner accepts more than the target quantity, we shall reduce the unit price accordingly, provided that the partner has announced the additional requirement at least 2 – 3 months prior to delivery.
- in the case of delivery contracts n on call, unless otherwise agreed, binding quantities must be notified to us by call-off at least 2 months before the delivery date.
Additional costs caused by a delayed call or subsequent changes to the call-off with regard to time and quantity by our partner shall be borne by him; our calculation shall be decisive in this respect.
- Each contractual partner shall only use all documents (including samples, models and data) and knowledge received from the business relationship for the jointly pursued purposes and shall keep them secret from third parties with the same care as its own documents and knowledge if the other contractual partner describes them as confidential or has an obvious interest in keeping them secret.
This obligation begins with the first receipt of the documents or knowledge and ends 36 months after the end of the business relationship.
The obligation shall not apply to documents and knowledge which are generally known or which were already known to the contracting party upon receipt without the contracting party being obliged to maintain secrecy or which are subsequently transmitted by a third party authorised to pass them on or which are developed by the receiving contracting party without exploitation of documents or knowledge of the other contracting party which are to be kept secret.
Drawings and descriptions
- If one contractual partner makes available to the other drawings or technical documents relating to the goods to be delivered or their manufacture, these shall remain the property of the submitting contractual partner.
Samples and production equipment
- he production costs for samples and means of production (tools, moulds, templates, etc.) shall be invoiced separately from the goods to be delivered, unless otherwise agreed. This also applies to production equipment which must be replaced as a result of wear and tear.
- The costs for maintenance and proper storage as well as the risk of damage or destruction shall be borne by us.
If the partner suspends or terminates the cooperation during the production period of the samples or means of production, all production costs incurred up to that point shall be borne by him.
- The means of production shall remain in our possession at least until completion of the delivery contract, even if the partner has paid for them. Thereafter, the partner is entitled to demand the return of the means of production if an amicable agreement has been reached on the date of return and the partner has fulfilled his contractual obligations in full.
- We shall keep the means of production free of charge for three years after the last delivery to our partner. Thereafter, we shall request our partner in writing to comment on further use within 6 weeks. Our obligation to hold the goods in safe custody ends if no statement is made within these 6 weeks or no new order is placed.
- customer-related means of production may only be used by us for deliveries to third parties with the prior written consent of our partner.
- Our prices are quoted in Euro and exclude value added tax, packaging, freight, postage and insurance.
Terms of payment
- All invoices are due for payment within 30 days of the invoice date.
- If we have undisputedly delivered partially defective goods, our partner shall nevertheless be obliged to make payment for the defective part, unless the partial delivery is of no interest to him. Otherwise, the partner may only offset counterclaims which have been legally established or are undisputed.
- In the event of overdue payment, we shall be entitled to charge interest on arrears at the rate charged to us by the bank for current account credits, but at least 8 percentage points above the respective base interest rate of the European Central Bank.
- In the event of default in payment, we may suspend performance of our obligations until payment has been received following written notification to the partner.
- Bills of exchange and cheques shall only be accepted after agreement and only on account of performance and subject to their discountability. Discount charges will be charged from the due date of the invoice amount. A guarantee for the timely presentation of the bill of exchange and cheque and for the collection of bill protest is excluded.
- If it becomes apparent after conclusion of the contract that our payment claim is at risk due to the partner’s lack of ability to pay, we may refuse performance and set the partner a reasonable deadline within which he must pay concurrently with delivery or provide security. If the partner refuses or the deadline expires without success, we shall be entitled to withdraw from the contract and claim damages.
- Unless otherwise agreed, we deliver “ex works”. Decisive for compliance with the delivery date or the delivery period is the notification of readiness for dispatch or collection by us.
- The delivery period shall commence with the dispatch of our order confirmation and shall be extended accordingly if the requirements of Clause 55 are met.
- partial deliveries are permissible to a reasonable extent. They shall be invoiced separately.
- Within a tolerance of 7 per cent of the total order quantity, production-related excess or short deliveries are excluded.
Shipping and transfer of risk
- Goods declared ready for dispatch must be accepted by the partner without delay. Otherwise we shall be entitled to dispatch them at our discretion or to store them at the partner’s expense and risk.
- Unless otherwise agreed, we shall choose the means and route of transport.
- The risk shall pass to the partner when the goods are handed over to the railway, the forwarding agent or the carrier or when storage begins, but no later than when the goods leave the factory or warehouse, even if we have assumed responsibility for delivery.
Delay in delivery
32. if we can foresee that the goods cannot be delivered within the delivery period, we will inform the partner immediately and in writing, inform him of the reasons for this and, if possible, state the expected delivery date.
33 If the delivery is delayed due to a circumstance listed in Clause 55 or due to any action or omission on the part of the partner, the delivery period shall be extended by a reasonable amount in accordance with the circumstances.
34 The partner is only entitled to withdraw from the contract if we are responsible for non-compliance with the delivery date and he has unsuccessfully set us a reasonable grace period.
Retention of title
We retain title to the delivered goods until all claims arising from the business relationship with the partner have been satisfied.
The partner is entitled to sell these goods in the ordinary course of business as long as he fulfils his obligations arising from the business relationship with us in good time. However, he may neither pledge the reserved goods nor assign them by way of security. He is obliged to secure our rights in the event of credited resale of the reserved goods.
37 In the event of breaches of duty by the partner, in particular default in payment, we shall be entitled to rescind the contract and take back the goods after the unsuccessful expiry of a reasonable deadline set for the partner; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The partner is obliged to surrender the goods.
We shall be entitled to withdraw from the contract if an application is made to open insolvency proceedings against the assets of the partner.
38) All claims and rights arising from the sale or rental of goods to which the partner is entitled and to which we are entitled shall be assigned by the partner to us as security. We hereby accept the assignment.
39 The partner shall always carry out any treatment or processing of the reserved goods on our behalf. If the reserved goods are processed or inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the invoice value of the reserved goods to the other processed or mixed objects at the time of processing or mixing.
If our goods are combined or inseparably mixed with other movable objects to form a uniform object and if the other object is to be regarded as the main object, the partner shall transfer proportionate co-ownership to us to the extent that the main object belongs to him. In all other respects, the same shall apply to the object created by processing or combining or mixing as to the reserved goods.
The partner must inform us immediately of any enforcement measures taken by third parties against the reserved goods, the claims assigned to us and other securities, handing over the documents necessary for an intervention. This shall also apply to impairment of any other kind.
If the value of the existing securities exceeds the secured claims by more than 20 percent in total, we shall be obliged to release securities of our choice at the request of the partner.
The quality of the goods shall be governed exclusively by the agreed technical delivery specifications. If we have to deliver according to drawings, specifications, samples, etc. of our partner, the latter shall assume the risk of suitability for the intended purpose. The decisive factor for the contractual condition of the goods shall be the time of transfer of risk in accordance with Clause 31.43. We shall not be liable for material defects caused by unsuitable or improper use, faulty assembly or commissioning by the partner or third parties, normal wear and tear, faulty or negligent handling, nor for the consequences of improper modifications or repair work carried out by the partner or third parties without our consent. The same applies to defects which only insignificantly reduce the value or suitability of the goods.
44 Claims for material defects shall become statute-barred after 12 months. This shall not apply if the law prescribes mandatory longer periods, in particular for defects in a building and for goods which have been used for a building in accordance with their normal use and which have caused its defectiveness.
45. if acceptance of the goods or an initial sample inspection has been agreed, notification of defects which the partner would have been able to ascertain by careful acceptance or initial sample inspection shall be excluded.
46 We shall be given the opportunity to determine the defect complained of. Goods complained of shall be returned to us immediately upon request; we shall bear the transport costs if the notice of defect is justified. If the partner does not fulfil these obligations or makes changes to the goods already complained about without our consent, he loses any claims for material defects.
47 In the event of a justified, timely notice of defect, we shall, at our discretion, repair the goods complained of or supply a faultless replacement.
If we do not fulfil these obligations or do not fulfil them in accordance with the contract within a reasonable time, the partner may set us a final deadline in writing within which we must fulfil our obligations. If this period expires without success, the partner may demand a price reduction, withdraw from the contract or carry out the necessary repair itself or have it carried out by a third party at our expense and risk. A reimbursement of costs is excluded if the expenses increase because the goods have been moved to another location after our delivery, unless this corresponds to the intended use of the goods.
The partner’s statutory rights of recourse against us shall only exist insofar as the partner has not reached any agreements with his customer which go beyond the statutory claims based on defects. Furthermore, Clause 48, last sentence, shall apply mutatis mutandis to the scope of the rights of recourse.
Other claims, liability
Insofar as nothing to the contrary results from the following, other and further claims of the partner against us are excluded. This applies in particular to claims for damages due to breach of duties arising from the contractual obligation and tort. We are therefore not liable for damages which have not occurred to the delivered goods themselves. Above all, we shall not be liable for loss of profit or other financial loss of the partner.51 The above limitations of liability shall not apply in the event of intent, gross negligence on the part of our legal representatives or executive employees or in the event of culpable breach of material contractual obligations. In the event of culpable breach of essential contractual obligations, we shall be liable – except in cases of intent or gross negligence on the part of our legal representatives or executive employees – only for reasonably foreseeable damage typical of the contract.
52 Furthermore, the limitation of liability shall not apply in cases in which liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivered goods. It shall also not apply in the event of injury to life, body or health and in the absence of warranted characteristics, if and insofar as the purpose of the warranty was to protect the partner against damage which did not occur to the delivered goods themselves.
53 Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, legal representatives and vicarious agents.
54 The statutory regulations on the burden of proof shall remain unaffected.
Force majeure, labour disputes, unrest, official measures, failure to deliver by our suppliers and other unforeseeable, unavoidable and serious events shall release the contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the affected contractual partner is in default, unless he has caused the default intentionally or through gross negligence. The contracting parties shall be obliged to provide the necessary information without undue delay and to adjust their obligations to the changed circumstances in good faith.
Place of performance, place of jurisdiction and applicable law
Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.57 Our place of business shall be the place of jurisdiction for all legal disputes, including those relating to a bill of exchange or cheque process. We are also entitled to sue at the partner’s place of business.
58 The law of the Federal Republic of Germany shall apply exclusively to the contractual relationship. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG – “Vienna Sales Convention”) is excluded.
The business language is German