Express-Küchen GmbH & Co. KG
Am Mühlenbach 1
49328 Melle
General Terms and Conditions of Sale and Delivery
of
Express Küchen GmbH & Co. KG
Melle
Date: 01 October 2012
§ 1 Scope of application
(1) These General Terms and Conditions of Sale and Delivery shall only apply to contracts with entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law ("Customer").
(2) The contractual relationship between the customer and us shall be governed exclusively by these General Terms and Conditions of Sale and Delivery. Any deviating terms and conditions of the customer are hereby expressly rejected. These General Terms and Conditions shall also apply exclusively if we carry out the delivery to the customer without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.
(3) Subject to an amendment to our General Terms and Conditions of Sale and Delivery, these contractual terms and conditions shall also form the basis of future contracts between us and the customer without the need for their renewed inclusion.
§ 2 Contractual declarations
(1) Unless the circumstances indicate otherwise, our offers are only invitations to the customer to submit definitive contractual offers to us ("invitatio ad offerendum"). We are authorised to accept contractual offers from the customer within three weeks. During this period, the customer is bound by his contractual declarations.
(2) When accepting orders, we assume the creditworthiness of the customer and reserve the right in individual cases to make the acceptance of the customer's order dependent on the provision of a bank guarantee or liquidity commitment from the principal bank in the amount of the expected invoice amount. If the lack of creditworthiness only becomes known after conclusion of the contract, we may, after consultation with the customer, withdraw from the contract or demand security within one week.
(3) Contractual offers on our part are non-binding, unless otherwise stated in the order confirmation.
(4) All agreements made between us and the customer for the purpose of executing this contract must be documented in writing.
(5) The customer may only rely on the legal validity of agreements made with employees who are not authorised to represent the company in the commercial register if the agreement is confirmed in writing by the management.
§ 3 Prices
(1) Unless otherwise stated in the order confirmation, our prices are net (excluding VAT) "ex works". Value added tax shall be added at the applicable rate.
(2) All taxes and other duties incurred for deliveries and services in the country of destination shall be borne by the customer.
(3) Discounts granted to the Buyer shall only be granted if business is conducted smoothly. They shall therefore be cancelled in particular if insolvency proceedings are instituted against the Buyer's assets, - the Buyer does not settle the claim within the payment period set or a legal dispute is pending between the Buyer and us arising from or in connection with this contract.
§ 4 Payment modalities
(1) The customer must fulfil our payment claims immediately and without deduction. The deduction of a discount requires a special written agreement. Bills of exchange and cheques shall only be accepted by us on the basis of a separate agreement and only on account of performance.
(2) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by us. The customer shall also have no right of retention due to disputed counterclaims that have not been recognised by declaratory judgement.
§ 5 Default of payment
Subject to an earlier reminder, the customer shall be in default no later than 14 days after the due date and receipt of an invoice or an equivalent request for payment.
§ 6 Right of cancellation
We are entitled to withdraw from the contract if there is a significant deterioration in the customer's financial circumstances, in particular if seizures or other enforcement measures are taken against him or if judicial or extrajudicial insolvency proceedings are opened.
§ 7 Liability of the customer for damages
If we have a claim for damages against the customer instead of performance in accordance with the statutory provisions, this shall amount to a lump sum of 10% of the agreed purchase price, subject to proof of higher damages by us. The customer is entitled to prove that no damage has been incurred at all or that the damage is significantly lower than the lump sum.
§ 8 Services
In the absence of any agreements to the contrary, we shall be entitled to make partial deliveries and render partial services, provided that the deviation is within the customary commercial tolerances or the delivery item is different items of furniture that do not belong together.
§ 9 Delivery time
(1) Agreed delivery periods shall be deemed approximate and subject to correct and timely delivery to us.
(2) Compliance with our delivery obligation presupposes the timely and proper fulfilment of the customer's obligations.
(3) Delivery periods shall be extended in the event of force majeure and the occurrence of unforeseen events for which we are not responsible, even if they occur at our plant or at a subcontractor, by the duration of the hindrance. In particular, the following shall come into question: operational disruption, strikes or lockouts at our premises or those of our suppliers, delays in the delivery of essential raw materials. Proof of a causal connection between the aforementioned cases and the subsequent delivery cannot be demanded.
(4) If delivery is not possible for a period of one month for the reasons stated in paragraphs 2 and 3 for reasons for which we are not responsible, we shall have the right to withdraw from the contract.
(5) Non-compliance with delivery dates and deadlines, taking into account an extension in accordance with paragraphs 2 and 3, shall only entitle the customer to assert the rights to which he is entitled, in particular cancellation, if he has set us a reasonable grace period of at least 14 days in writing.
(6) Any claims for damages due to delayed delivery shall be limited to 15 % of the purchase price (net), unless the delay in delivery was caused intentionally or by gross negligence.
(7) If the customer does not collect the goods at the place of fulfilment within 14 days despite notification of readiness for dispatch, we shall be entitled to withdraw from the contract and to sell the goods elsewhere. Any storage costs incurred and the risk of storage shall be borne by the customer.
§ 10 Place of performance, transfer of risk, delivery
Unless otherwise agreed, delivery shall be "ex works" (EXW) Melle in accordance with Incoterms 2010.
§ 11 Target quality of the goods
(1) The target quality of the goods is based on the contractual agreements. Unless expressly stipulated, we do not assume any no-fault guarantee for this. This also applies to the reference to DIN standards.
(2) Customary deviations in the design, structure, colours and dimensions of the purchased goods, which are due to the nature of the materials used, shall not entitle the customer to assert warranty claims insofar as the value of the purchased item or its suitability for the general or contractually agreed use is only insignificantly reduced.
§ 12 Obligation to give notice of defects
Deliveries must be inspected immediately upon receipt by the customer or by the recipient designated by the customer. After unconditional acceptance of the goods by the customer or a person authorised by the customer, any subsequent complaint regarding the external condition of the goods shall be excluded.
of the delivery are excluded. Other defects in the goods, insofar as they are recognisable, can only be notified within 3 working days of receipt, otherwise only within 3 working days of discovery. Notification of defects must be made in text form.
§ 13 Warranty
(1) If there is a defect in the purchased item and this has been reported in good time, we shall initially provide a warranty at our discretion by delivering faultless replacement goods or by repairing the delivered goods ("subsequent fulfilment"). Defective goods may only be returned to us with our prior consent. If the goods are returned without our prior consent, we shall be entitled to refuse to accept them.
(2) In the event of subsequent fulfilment, the customer shall only be entitled to reduce the agreed purchase price, to withdraw from the contract or - under the conditions of § 14 - to demand compensation for damages due to the delivery of defective goods after two unsuccessful attempts.
(3) The limitation period for all claims for defects is 24 months. The delivery of replacement goods shall take place exclusively in fulfilment of our warranty obligations for the original goods.
(4) If, in the event of a resale of the goods to a consumer within the meaning of § 13 BGB, a claim is made against the customer by the consumer as a result of a defect, the customer's recourse against us shall be governed by the statutory provisions of §§ 478, 479 BGB, subject to any claims for damages which are subject to § 14 of these Terms and Conditions of Sale and Delivery. The same shall apply if recourse is taken against the customer by another intermediary in the supply chain due to warranty claims of a consumer.
§ 14 Liability
(1) Our liability is generally limited to damages that we or our vicarious agents have caused intentionally or through gross negligence. We shall only be liable for simple negligence in the event of injury to life, limb or health and the breach of cardinal obligations. A cardinal obligation is an obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer regularly relies or may rely.
(2) If we are liable for breaches of duty due to simple negligence, our liability shall be limited to the amount of damages typical for contracts of the type in question that were foreseeable at the time the contract was concluded or at the latest when the breach of duty was committed. This shall not apply in the event of injury to life, limb or health.
(3) Claims for damages, which by law do not require fault, remain unaffected by the provisions in paragraph (1) and paragraph (2).
§ 15 Retention of title
(1) All deliveries are subject to retention of title. The delivered goods shall remain our property until full payment of all claims to which we are currently or in the future entitled against the customer. The customer is revocably authorised to process or resell the delivered goods in the ordinary course of business. If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to assert our rights arising from the retention of title, in particular to take back the goods delivered under retention of title, without prior cancellation of the respective purchase contract.
(2) If the goods subject to retention of title are processed into a new movable item, the processing shall always be carried out on our behalf, without any obligation on our part. The new item shall become our property. If the goods subject to retention of title are processed together with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our goods subject to retention of title to the other processed items at the time of processing. In all other respects, the same shall apply to the new movable item created by processing as to the purchased item delivered under retention of title.
(3) If the goods subject to retention of title are combined, mixed or blended with other items not belonging to us, we shall become co-owners in accordance with the statutory provisions. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall store the items owned or co-owned by us free of charge.
(4) In the event of resale of the goods subject to retention of title, the customer hereby assigns to us all claims against his customers or third parties arising from the resale, irrespective of whether the delivered goods have been resold without or after processing; we hereby accept the assignment. If the resold goods subject to retention of title are co-owned by us, the assignment of claims shall extend to the amount corresponding to the proportionate value of our co-ownership. If the customer is unable to make an assignment in accordance with the above provisions, in particular as a result of prior assignments to third parties, the resale shall not be deemed to be in the ordinary course of business within the meaning of this provision. The customer is authorised to collect the claims assigned to us until revoked by us. Our authorisation to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer fulfils his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. We are also authorised to notify the debtor of the assignment ourselves.
(5) The customer must inform us immediately of any enforcement measures or other interventions by third parties in the goods subject to retention of title or in the assigned claims, handing over the documents necessary for proceedings. If the third party is not in a position to reimburse us for the judicial and extrajudicial costs, the customer shall be liable for the loss incurred by us.
(6) The right to resell, use or install the goods subject to retention of title and the authorisation to collect the assigned claims shall expire upon suspension of payment, application for and opening of judicial insolvency proceedings or out-of-court composition proceedings; the direct debit authorisation shall also expire in the event of a cheque or bill of exchange protest.
(7) We are obliged to release securities to which we are entitled at our own discretion if their estimated value exceeds 150 percent of the sum of the outstanding claims.
§ 16 Place of fulfilment
Unless otherwise stated in these terms and conditions and in the order confirmation, our place of business shall be the place of fulfilment for all mutual obligations.
§ 17 Applicable law
All legal relationships between us and the customer arising from or in connection with this contract shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
§ 18 Place of jurisdiction
The place of jurisdiction for all disputes between us and domestic customers arising from or in connection with this contract shall be our registered office or, at our discretion, the general or a special place of jurisdiction of the customer, provided that the customer is a merchant, a legal entity under public law or a special fund under public law and the legal dispute does not concern a non-pecuniary claim which is assigned to the local courts irrespective of the value of the subject matter of the dispute, nor is an exclusive place of jurisdiction established. The same applies to legal disputes with persons who have moved their place of residence or habitual abode outside the area of application of the Code of Civil Procedure after the conclusion of the contract, or whose place of residence or habitual abode is unknown at the time a lawsuit is filed.
§ 19 Privacy policy
In accordance with § 33 of the Federal Data Protection Act, we would like to point out that data arising in connection with the business relationship will be stored in files.
1. scope of application
1.1 These Terms and Conditions of Purchase shall only apply to companies within the meaning of Section 310 (1) of the German Civil Code (BGB).
1.2 These General Terms and Conditions of Purchase shall apply to all deliveries and services to us unless expressly agreed otherwise.
1.3 We hereby object to any general terms and conditions of the supplier that deviate from our terms and conditions of purchase. This shall also apply if the supplier refers to its terms and conditions in the course of correspondence.
2. Contractual declarations
2.1 The supplier is obliged to accept our order within a period of 2 weeks after receipt.
2.2 We reserve the property rights and copyrights to all documents provided to the supplier in connection with the order, e.g. calculations, drawings etc.. The supplier undertakes not to disclose or make accessible these documents to third parties unless we give the supplier our express written consent to do so. These documents are to be used exclusively for production based on our order. They must be returned to us immediately if the supplier has not accepted our order within the period specified in No. 2.1. If our order is accepted, the documents must be returned to us unsolicited at the latest upon completion of the order.
2.3 Orders, contracts and call-offs as well as their amendments/additions must be made in writing.
3. Fees and terms of payment
3.1 A price stated in our order is binding. If no special agreement has been made, the prices are understood to be delivered to the named place of destination (DAP according to Incoterms 2010) including packaging. Value added tax is not included.
3.2 An invoice for each delivery or service must be submitted to the respective home address separately from the consignment. Invoices must fulfil the requirements of § 14 Para. 4 UStG (Value Added Tax Act), correspond in wording to our order designations and contain our order number. The exact name of the ordering department and the date of the order must be stated in the invoice text. The supplier shall be liable for all consequences arising from non-compliance with these obligations, unless he can prove that he is not responsible for them.
3.3 Payment of the invoice shall be made by bank transfer if the goods/services supplied do not give rise to any complaints. The period for payment of the invoice shall commence as soon as the delivery or service has been accepted in full and the properly issued invoice has been received. If the start date of the period falls between the 1st and the 15th of a month, payment shall be made on the 1st of the following month; if the start date of the period falls between the 16th and the last day of the month, payment shall be made on the 16th of the following month with a 5% discount or net 120 days after the start date of the period. If the payment date (16th or 1st) falls on a Friday or not on a bank working day, payment will generally not be made until the next bank working day.
Invoices that do not fulfil the requirements of §14 Para. 4 UStG or are incorrect do not constitute a due date and can be returned by us at any time. In the latter case, payment shall only become due upon receipt of the corrected invoice. In the event of incorrect delivery or performance, we shall be entitled to withhold payment until proper fulfilment, without loss of rebates, discounts and similar payment benefits. Further claims remain unaffected. In the event of premature acceptance of deliveries, the payment period shall only commence from the delivery date specified in the order or from receipt of the invoice - whichever date is later.
3.4 We shall be entitled to rights of set-off and retention to the extent permitted by law.
4. Delivery time
4.1 The delivery date stated in the order is binding. Delivery before the specified delivery date is only permitted with our prior express written consent. Partial deliveries shall not be accepted unless we have expressly authorised them in advance. The name of the person who has given this authorisation must be stated on the delivery document.
4.2 The supplier is obliged to inform us immediately in writing if circumstances occur or become known which indicate that the agreed delivery time cannot be met. The date of receipt of the goods at the place of destination shall be deemed to be the date of compliance with the delivery time.
4.3 If the supplier is in default of delivery, we shall be entitled to demand liquidated damages for default in the amount of 0.3% of the contractually agreed price per day after the occurrence of the delay in delivery, but not more than 15% of the agreed price in total. The supplier shall be at liberty to provide evidence of lower damages. We shall be entitled to demand compensation in lieu of performance or to withdraw from the contract after the fruitless expiry of a reasonable period. If we demand compensation, the supplier has the right to prove to us that he is not responsible for a breach of duty.
5. Warranty
5.1 We shall inspect the goods for any deviations in quality and quantity within a reasonable period of time. The complaint shall be deemed timely if it is received by the supplier within a period of 7 working days, calculated from receipt of the goods or - in the case of hidden defects - from discovery.
5.2 The supplier warrants that the delivered goods comply with the statutory and official provisions applicable to their distribution and use in addition to the other requirements to be complied with. We shall be entitled to the statutory claims for defects in full. In any case, we are entitled to demand that the supplier either rectify the defect or deliver a new item, at our discretion. We expressly reserve the right to claim damages, in particular the right to claim damages in lieu of performance. We are entitled to remedy the defect ourselves at the supplier's expense if there is imminent danger or particular urgency.
5.3 Claims for defects - for whatever legal reason - shall become time-barred 24 months after delivery. Longer statutory limitation periods shall remain unaffected by this.
6. Rights of third parties
6.1 The delivery and its utilisation by us must not infringe any third-party property rights. We shall notify the supplier of any claims asserted by third parties. We shall not recognise such claims on our part. In this respect, we authorise the supplier to take over the dispute with the third parties in and out of court.
6.2 In the event of an infringement of industrial property rights of third parties, the supplier shall, at its own expense, defend against claims asserted against us by third parties for infringement of industrial property rights due to the supplier's deliveries and services. The supplier shall indemnify us against all claims arising from the use of such industrial property rights.
6.3 If the utilisation of the delivery by us is impaired by existing industrial property rights of third parties, the supplier shall either acquire the corresponding authorisation at his own expense or modify or replace the affected parts of the delivery in such a way that the utilisation of the delivery does not conflict with any industrial property rights of third parties and at the same time complies with the contractual agreements.
7. Retention of title
7.1 If we provide parts to the supplier, we reserve title to these parts. Processing or remodelling by the supplier shall be carried out on our behalf. If our reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our item (purchase price plus VAT) to the other processed items at the time of processing.
7.2 If the item provided by us is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved item (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the supplier's item is to be regarded as the main item, it is agreed that the supplier shall transfer co-ownership to us on a pro rata basis; the supplier shall hold the sole ownership or co-ownership for us.
7.3 We reserve title to tools; the supplier is obliged to use the tools exclusively for the manufacture of the goods ordered by us. The supplier shall be obliged to insure the tools belonging to us at replacement value against fire, water damage and theft at its own expense. The supplier is obliged to carry out any necessary maintenance and inspection work on our tools as well as all servicing and repair work at his own expense and in good time. He must notify us immediately of any malfunctions; if he culpably fails to do so, claims for damages shall remain unaffected.
7.4 If the security rights to which we are entitled under No. 7.1 or No. 7.2 exceed the purchase price of all our goods subject to retention of title that have not yet been paid for by more than 10 %, we shall be obliged to release the security rights at our discretion at the supplier's request.
8. Product liability
8.1 Insofar as the supplier is responsible for product damage, he shall be obliged to indemnify us against claims for damages by third parties upon first request if the cause lies within his sphere of control and organisation and he himself is liable in relation to third parties.
8.2 In this context, the supplier is also obliged to reimburse any expenses arising from or in connection with a recall action carried out by us. We shall inform the supplier of the content and scope of the recall measures to be carried out - as far as possible and reasonable - and give him the opportunity to comment. Other statutory claims remain unaffected.
8.3 The supplier undertakes to maintain product liability insurance with a lump sum cover of EUR 10 million per personal injury/property damage. If we are entitled to further claims for damages, these shall remain unaffected. The supplier shall provide us with a copy of the valid insurance policy upon request.
9. Prohibition of assignment
The supplier is not authorised to assign its claims against us to third parties without our written consent; such consent may only be refused for good cause.
10. Spare parts for discontinued series requirements
The supplier undertakes to supply spare parts at reasonable prices for a period of 5 years, even after series production has been discontinued. Individual parts may also be supplied from current production with our consent. Consent will only be granted if no additional costs are incurred by us and no deterioration in quality occurs. We agree to premature termination of readiness for delivery after the expiry of 5 years if a final delivery is economically justifiable and the demand is foreseeable.
11. Tools, moulds, patterns, etc.
Tools, moulds, samples, models, profiles, drawings, test specifications, standard sheets, print templates and gauges provided by us, as well as items manufactured on the basis thereof, may not be passed on to third parties or used for purposes other than the contractual purposes without our written consent. They must be secured against unauthorised inspection and use. Subject to further rights, we may demand their surrender if the supplier violates these obligations or the business relationship regarding the respective contractual product is terminated.
12. Confidentiality/data protection
12.1 The supplier is obliged to keep all illustrations, drawings, calculations and other documents and information received strictly confidential. They may only be disclosed to third parties with our express consent. The confidentiality obligation shall also apply after the fulfilment of this contract; it shall expire if and to the extent that the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents provided has become generally known.
2.2 In accordance with § 33 of the Federal Data Protection Act, we would like to point out that data arising in connection with the business relationship will be stored in files.
13. Code of conduct
We maintain business relationships exclusively with companies that are prepared to submit to the same ethical principles that apply to the Nolte Group. The supplier undertakes to comply with the "Code of Conduct of the Nolte Group" and to fulfill all obligations arising from this Code of Conduct. If the supplier fails to do so and we lose a customer as a result, the supplier shall compensate us for the resulting damage.
14 Place of performance, place of jurisdiction and applicable law
14.1 The place of performance for our payments is our registered office.
14.2 The place of performance for deliveries by the supplier shall be our registered office or the place to which the supplier is to deliver in accordance with the content of our order. The supplier shall bear the risk of delivery until acceptance of the goods by us or our authorized representative at the place of destination (DAP according to Incoterms 2010).
14.3 The exclusive place of jurisdiction for all disputes between the Supplier and us arising from or in connection with this contract shall be our place of business or, at our option, the Supplier's place of business, depending on the amount in dispute.
14.4 All legal relationships between the Supplier and us arising from or in connection with our business relationship shall be governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
Express Küchen GmbH & Co. KG
Am Mühlenbach 1
49328 Melle
TEL: +49 (5226) 5942-0
MAIL: info@express-kuechen.de