ALLGEMEINE GESCHÄFTS- UND LIEFERBEDINGUNGEN.
KARL GmbH & Co. KG Schleif- und Polierwerkzeuge
1. Acceptance of order
a. Our terms and conditions of sale shall apply exclusively; contradictory terms
and conditions of Customer or those deviating from our terms shall only be acknowledged
by us if we expressly approve their validity in writing. Our terms and conditions of sale shall apply even if we implement delivery to Customer without reservation despite knowledge of contradictory terms and conditions of Customer or those deviating from our terms.
b. All agreements made between us and Customer for the purpose of implementation of the present contract were recorded in writing in the present contract.
c. These terms and conditions shall also apply to future transactions with the Customer.
2. Prices and excess or short delivery
a. Deliveries shall be exclusively made ex factory. Unless expressly agreed otherwise, prices shall apply ex factory, not including packing and shipping.
b. Value added tax at the statutory rate is not included in the prices; it is shown in invoices as a separate item at the rate in force on the day of issue of the invoice.
c. We reserve the right to amend our prices reasonably if after the conclusion of the contract decreases or increases in costs, in particular due to changes in material prices or wage agreements occur. We shall prove them to Customer upon request.
d. We shall be entitled to excess or short delivery.
a. Deliveries shall take place ex works or ex stock. Risks, risk of breakage and onus of proof of proper packaging and loading shall pass to the Customer on delivery to carrier, including carriage paid deliveries.
b. If delivery is done with our vehicles or with vehicles of the delivery factory, handover is effected at the latest when the goods have been made available to the Customer in front of the place of delivery when the goods have been provided to the recipient on the vehicle in front of the delivery location on a stable roadway. The process of unloading lies within the sole responsibility of the Customer. Any unloading activities on part of the vehicle’s staff or their assistance in unloading does not in any way involve the assumption of any risk or responsibility. It is the sole responsibility of the Customer to provide suitable unloading equipment and required staff for performing the unloading.
c. If storage of goods at our end is required, this shall be done for the Customer's account and at his risk. In case Customer wishes the delivery to be postponed by more than two weeks after the term agreed upon, or, in case no term has been agreed upon, by more than two weeks after announcement of delivery, we can charge as a flat rate for each month a storage sum amounting to 0,5 % of the price of the goods to be delivered, at most, however, amounting to 5 %. We expressly allow the Customer to produce evidence that his default in acceptance has not caused any damage or essentially less damage. We are allowed to produce evidence that higher damage has been caused.
d. At the Buyer's request and expense an insurance policy shall be taken out. we only act as intermediaries, to the exclusion of
all liability on our part.
4. Notice of and liability for defects
a. Customer’s claims from defects shall presuppose that it has complied with its duties of examination and notification pursuant to § 377 German Commercial Code. Defects must immediately be notified in writing including supporting evidence. The Customer is solely responsible for providing evidence that his claim is justified, especially for showing defects itself, the moment that the defect was notices, and for submitting the notice of defects in time. In divergence from § 91 section 2 German Commercial Law, commercial agents are not allowed to receiving complaints in accordance with § 377 German Commercial Law.
b. If notification of defect is justified, we shall only be obliged to remedying o the defects or to provision of a defect-free commodity at our choice. In the event of remedying of the defect, we shall be obliged to bear all the expenditure necessary for the purpose of remedying the defect, in particular transport, travel, work and material costs, to the extent that they are not increased by the fact that the object of purchase has been taken to a place other than the place of performance. If during examination of the defect claimed by the Customer it becomes clear that actually a defect does not exist, the Customer has to reimburse costs incurred. Here, we charge as a flat rate 45,00 EUR per hour or part of an hour and 0,51 EUR per each travel kilometre. Customer is allowed to produce evidence as to that no damage or significantly less damage has been caused to us.
c. If we fail to comply with remedying of the defects, Customer shall be entitled to reduce the purchase price or to withdraw from the contract. The right of withdrawal, however, shall be excluded in the case of only slight breaches of contract, particularly if defects are only minor.
d. We will be liable in accordance with statutory provisions insofar as the Customer makes claims for damages that are based on intent or gross negligence, including intent or gross negligence by our representatives or vicarious agents. Insofar as we cannot be charged with intentional or grossly negligent breach of contract, the liability for damages will be limited to the foreseeable typically occurring loss. In case of only slight breaches of contract, in particular if defects are only minor, Customer has no right to withdraw from the contract.
e. We will be liable in accordance with the statutory provisions insofar as we culpably breach a significant contractual duty; in this event, liability for damages will be limited to the foreseeable typically occurring loss.
f. Liability on account of culpable injury to life, limb or health shall not be affected; this
shall also apply to mandatory liability as provided for in the product liability law.
g. Unless anything to the contrary shall have been provided for above, liability is excluded.
The period of limitation for claims arising out of defects (delivery, service) is twelve months, for whatever legal reason. This, however, does not apply in cases pursuant to § 438 section 1 No. 1 German Code of Civil Law (legal defects in immovables), § 438 section 1 No. 2 German Code of Civil Law (building work, items for building work), § 479 section 1 German Civil Code (entrepreneurs right to recourse) or § 634a section 1 No. 2 (building work or work consisting in the provision of planning or supervision services). The terms set in aforementioned sentence No. 2 are subject to a limitation period of two years. Limitation periods pursuant to sentence 1 also apply for all claims for damages against us in connection with the defects – for whatever legal reason. Insofar as claims for damages of any kind are raised against us that are not associated with a defect, the limitation period pursuant to section 1 sentence 1 is applied.
The limitation periods set under section 1 and section 2 shall not apply under the following condition:
Limitation periods generally do not apply in the case of intent. Neither do they apply in case of fraudulent concealment of the defect [or if we have given a guarantee for the state of the (delivery, service)]. In case of our fraudulent concealment of a defect, statutory limitation periods will apply that would be applicable in case of absence of fraudulent concealment, instead of those set under section 1 (that is § 438 section 1 No. 1 German Code of Civil Law (legal defects in immovables) No. 2 (building work, items for building work) und No. 3 (any other deliveries) and/or § 634a section 1 No. 1 German Code of Civil Law (manufacturing/maintenance/modification of an object or planning and/or monitoring services) and/or No. 2 (building work or work consisting in the provision of planning or monitoring services) and/or No. 3 any other services)] but under exclusion of an extension of the period in the event of malice pursuant to §§ 438 section 3 and/or 634a section 3 German Code of Civil Law).
The periods of limitations also do not apply to compensation claims in the case of injuries to life and limb or health or violation of liberty, for claims according to product liability law, or a grossly negligent breach of duty or if we breach major contract duties.
For all claims, the limitation period shall start with the delivery, for immaterial goods with the acceptance.
Unless stipulated explicitly elsewhere, the statutory regulations on the start of the period of limitations, suspension of the period, stay and recommencement
of the period remain unaffected.
The customer shall only be entitled to declare his withdrawal of the contract or reduction when we have not redressed the notice of defect within eight weeks after receipt of a justified notice of defect. We do not assume any guarantee for the features of an item or for its durability.
5. Right of withdrawal
The Customer shall be entitled to withdraw from the contract in case the delivery announced is delayed by eight week and then a two-weeks extension of term set by the Customer expires without any result. Exceeding of the delivery term set for only a relatively small partial amount does not entitle the Customer to withdraw from the contract. The following circumstances entitle us to withdraw from the contract:
a. Unforeseeable technical problems which relate directly to the kind of order, making its execution impossible or unreasonable for us or our delivery factory.
b. War, strikes, shortages of raw materials or energy as well all other kinds of significant operational disturbances or force majeure at our end or at our delivery factory’s end. Withdrawal of the contract is to be submitted in writing within 14 days after notice of the circumstances entitling to withdrawal.
a. Payments need to be settled by the due date. Unless otherwise agreed, the amount due (without discount) is to be paid within 30 days from the date of invoice. The statutory regulations concerning the consequences of default in payment shall apply. When payment is settled within 8 days from the date of invoice, we grant a 2% discount of the net order value.
b. In case of financial difficulties encountered by the Customer after conclusion of the contract, we are entitled to demand cash payments or any other financial securities, such as a bank guarantee, before delivery. In case of cash payment, the discount is granted. Any agreed-to discounts do not apply if there are other outstanding invoices from our company at the time the discounted invoice amount is received.
c. In case of default of payment of at least two invoices due, in case of cessation of payment, in case of out-of-court settlement negotiations being initiated or when filing request for insolvency proceedings on part of the Customer all our invoices immediately become due. Agreed-on discounts of the amounts due, such as cash discount etc., may no longer be deducted.
d. The customer is only entitled to set-off when his counterclaims have been legally established, are undisputed, or have been recognized by us.
e. The Customer may only exercise the right of retention if its counter claim relates to the same contract. In case of the existence of defects, the Customer shall not be entitled to the right of retention, unless the delivery is obviously defect and/or the Customer is obviously entitled to decline accept ion of services. Given this, Customer shall be entitled to the right of retention if the retained amount is proportionate in relation to the defects and the estimated costs for remedying (in particular remedy of defects). Customer shall not be entitled to raise claims and assert rights if the Customer did not settle payments due and the payment due is proportionate in relation to the value of the delivery and/or services (even being defected).
7. Retention of title
a. The Company reserves the title in the goods until full payment of any accounts receivable from a current business relationship.
b. The customer is obligated to handle the goods with due care.
c. Customer is obliged to immediately inform us about any seizure of the goods by any third party, for example in the event of an attachment, as well as of any possible damage to or destruction of the goods. Customer has to immediately indicate any change of ownership of the goods and the own domicile change.
d. We shall be entitle to withdraw from the contract and to claim return of the goods in case of breach of contract on part of the Customer, in particular in case of default of payment or infringement of any obligation along with items 7b) to 7d) of the present terms. The Customer shall be entitled to sell and to use goods in normal business operations. However, he herewith already assigns to us all claims to the amount of the invoice sum total which the Customer accrued as a result of the sale to a third-party. We herewith accept such assignment. The Customer is entitled to collect the assigned claims. We reserve the right to collect the amount receivable ourselves should the Customer not properly fulfil his payment obligations or get in payment arrears.
e. Any processing or manufacturing processes carried out on the goods by the Customer shall at all times be in our name and on our behalf. If processing takes place using objects that we do not own, we purchase the joint ownership of the new object in relationship to the value of the goods delivered and to the other processed objects.
8. Concluding provisions
a. The law of the Federal Republic of Germany shall apply. The United Nations Convention on the International Sale of Goods shall not apply.
b. If the Customer is a merchant, a legal person under public law or a special fund under public law, the courts of our business location shall have jurisdiction. Same applies if the Customer is unknown at the time of filing of the action, if the Customer’s usual place of residence is unknown or if the Customer has no general place of jurisdiction within the Federal Republic of Germany.
c. If a particular provision of the contract with the Customer, including this document, prove invalid, in full or in part, or become so in the future, this shall not affect the validity of the remaining provisions or of the contract as such. The whole, or partly invalid provision, should be replaced by a provision, the commercial success of wich is as near as possible to the invalid one.