General terms and conditions

Kleinbongartz & Kaiser oHG
KUKKO Tools
General Terms and Conditions of Delivery and Payment

These General Terms and Conditions of Delivery and Payment shall apply to all - including future - contracts with entrepreneurs, legal entities under public law and special funds under public law for deliveries and other services, including contracts for work and services, consulting contracts, contract work and the delivery of fungible and non-fungible items. The Purchaser's terms and conditions of purchase shall not apply in any case.

Verbal agreements, collateral agreements, promises, guarantees and other assurances by our employees shall only become binding upon our written confirmation.

Our offers are subject to change. Orders become binding only with our order confirmation.

The information and illustrations contained in brochures and catalogs are approximate values customary in the industry unless we have expressly designated them as binding.

Unless otherwise agreed, our prices are ex our works and do not include packaging, freight, postage, insurance and value added tax. Unless otherwise agreed, our price list valid at the time of conclusion of the contract shall apply.

The minimum invoice value is 50.- Euro net value of goods. If the invoice value falls below the minimum value, a handling fee of currently 8.- Euro will be charged.

If the goods are delivered packaged, we shall charge for the packaging at cost price; within the scope of the statutory regulations, we shall take back packaging delivered by us if it is returned to us carriage paid by the customer within a reasonable period of time.
 

If public charges, wage, material or energy costs or other external costs included in the agreed price change later than two months after conclusion of the contract or if they arise for the first time, we shall be entitled to change the price to the corresponding extent.

Payments shall be made in accordance with the payment terms and discounts stated on the invoices as of the invoice date, otherwise immediately net. Cash discount always refers only to the invoice value excluding freight and requires the complete settlement of all due liabilities of the purchaser at the time of cash discounting. We must be able to dispose of the amount on the due date.
 

In the event of overdue payment, we shall be entitled to charge interest on arrears at a rate of 8 percentage points above the respective prime rate of the ECB.
 

Bills of exchange shall only be accepted by agreement and subject to their discountability. Discount and collection charges shall be borne by the customer.
 

If, after conclusion of the contract, it becomes apparent that our claim to payment is jeopardized by the purchaser's inability to pay, or if the purchaser defaults on payment of a not inconsiderable amount, or if other circumstances arise which indicate a significant deterioration in the purchaser's ability to pay (e.g. significant downgrading of the purchaser's limit under our trade credit insurance, so that there is no longer any cover for the order), we shall be entitled to the rights under Section 321 of the German Civil Code. We shall then also be entitled to declare due all claims not yet due from the current business relationship and to demand the immediate redemption of bills of exchange against their return.
 

The Purchaser shall only be entitled to a right of retention and a right of set-off to the extent that its counterclaims are undisputed or have been finally determined by a court of law.

Returns will only be credited if we have given our prior consent. A credit note for originally packed and resalable goods will be issued with 2/3 of the calculated value of the goods in case of freight paid return.

As there are contractual obligations in many countries, our products may only be exported and re-exported with our express permission. The terms of sale, delivery and payment applicable to export will be stated in our written offer.

In the case of call orders, we shall be entitled to manufacture or have manufactured the entire order quantity in one go. Unless otherwise agreed, call-off dates and quantities are subject to our delivery or manufacturing capabilities; however, we must be notified of the call-off at least one month before the delivery date. If the goods are not called off in accordance with the contract, we shall be entitled to invoice them as delivered or to withdraw from the contract after a reasonable period of grace has elapsed.

Unless otherwise agreed, we deliver "ex works". Decisive for compliance with the delivery date or the delivery period is the notification by us that the goods are ready for dispatch or collection. If the dispatch or the collection of the goods is delayed for reasons for which the customer is responsible, he shall be charged for the costs incurred thereby.
 

Partial deliveries are permitted to a reasonable extent and may be invoiced separately by us.
 

Within a tolerance of up to 10% of the total order quantity, production-related excess or short deliveries are permissible; the total price will change accordingly.
 

Goods notified as ready for dispatch must be taken over by the customer without delay. Otherwise, we shall be entitled to dispatch them at our own discretion or to store them at the expense and risk of the customer.
 

In the absence of a special agreement, we shall choose the means and route of transport.
 

With the handing over of the goods to the railroad, the forwarding agent or the carrier, at the latest, however, when the goods leave the warehouse or the factory, the risk shall pass to the orderer in all transactions, also in the case of carriage paid and free domicile deliveries, even if we have assumed the delivery. The obligation and costs of unloading shall be borne by the customer. We shall only provide insurance on the instruction and at the expense of the purchaser.
 

Our delivery obligation is subject to correct and timely self-delivery, unless the incorrect or delayed self-delivery is our fault.
 

Delivery periods shall be extended to a reasonable extent in the event of labor disputes, in particular strikes and lockouts, as well as the occurrence of unforeseeable obstacles beyond our control, insofar as such obstacles demonstrably have a significant influence on the manufacture or delivery of the goods. This shall also apply if the circumstances occur at our suppliers. These regulations apply accordingly to delivery dates. If the execution of the contract becomes unreasonable for one of the parties, it may withdraw from the contract in this respect.

We retain title to the delivered goods until they have been paid for (goods subject to retention of title), namely until all claims - including conditional claims - arising from the business relationship have been satisfied, irrespective of the legal basis.
 

The customer may only sell the goods subject to retention of title in the ordinary course of business under his normal terms and conditions and as long as he is not in default, provided that the claims from the resale are transferred to us. He shall not be entitled to dispose of the reserved goods in any other way.
 

In the event of breaches of duty by the customer, in particular in the event of 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 customer to perform; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The customer shall be obliged to surrender the goods.
 

The customer's claims arising from the resale or leasing of the goods subject to retention of title are hereby assigned to us by way of security. The authorization to collect claims from the resale shall expire in the event of our revocation, which is possible at the latest in the event of default of payment by the customer.
 

Treatment and processing of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code) without obligating us. The processed goods shall be deemed to be goods subject to retention of title. In the event of processing, combination and mixing of the reserved goods with other goods by the customer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership expires as a result of processing, combining or mixing, the customer shall already now transfer to us the ownership rights to which it is entitled in the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall hold them in safe custody for us. The co-ownership rights arising hereunder shall be deemed to be reserved goods.
 

The customer shall inform us without delay of any compulsory enforcement measures by third parties against the goods subject to retention of title, against the claims assigned to us or against other securities, handing over the documents necessary for an intervention. This shall also apply to other impairments of the reserved goods.
 

If the realizable value of the existing securities exceeds the secured claims by more than 20% in total, we shall be obliged to release securities of our choice to this extent at the request of the customer.

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 the customer, the latter shall assume the risk of suitability for the intended use. Assurances or guarantees must be expressly designated as such in writing.
 

Material defects must be reported in writing immediately, at the latest seven days after delivery. Material defects that cannot be discovered within this period even with the most careful inspection must be reported in writing without delay, at the latest within seven days of discovery.
 

If an acceptance of the goods or an initial sample inspection has been agreed, the notification of defects which the customer could have detected during the acceptance or initial sample inspection shall be excluded.
 

As long as the customer does not give us the opportunity to convince ourselves of the defect, and in particular does not provide us with the rejected goods or samples thereof upon request, the customer may not invoke defects in the goods.
 

We may, at our discretion, remedy the defect or deliver goods free of defects.
 

We shall only bear expenses in connection with subsequent performance to the extent that they are reasonable (proportionate) for us compared to the value that the goods would have had without the defect and the significance of the defect. Excluded are costs incurred by the customer in connection with the installation and/or removal of the defective item, for the self-remedy of a defect as well as additional expenses arising from the fact that the sold and delivered goods are located at a place other than the agreed place of performance.

Due to breach of contractual and non-contractual obligations, we shall be liable for damages - also for our executive employees and other vicarious agents - only in case of intent and gross negligence, limited to the typical contractual damage foreseeable at the time of conclusion of the contract; otherwise, our liability, also for damage caused by defects and consequential damage caused by defects, shall be excluded.
 

The above limitations shall not apply in the event of a culpable breach of material contractual obligations; these include the obligation to deliver on time and free of defects as well as protective and custodial obligations which are intended to enable the customer to use the delivery item in accordance with the contract. Furthermore, these limitations shall not apply in the event of culpably caused damage to life, limb and health, nor if and to the extent that we have fraudulently concealed defects or have assumed a guarantee for the quality of the delivered goods, nor in cases of mandatory liability under the Product Liability Act. The statutory provisions on the burden of proof shall remain unaffected.
 

If we are in default with a delivery or other service, the customer may demand compensation for the damage caused by default in addition to the service in accordance with Sections 35 to 36; in the event of slight negligence, however, this shall be limited to a maximum of 10% of the agreed price for the service in default. The Purchaser's right to claim damages in lieu of performance in accordance with Clauses 35 to 36 shall remain unaffected.
 

Contractual claims which the purchaser has against us on the grounds of or in connection with the delivery of the goods shall become statute-barred one year after delivery of the goods. This period shall also apply to such goods which have been used for a building in accordance with their usual manner of use and have caused the defectiveness thereof, unless this manner of use has been agreed in writing. This shall not affect our liability for intentional and grossly negligent breaches of duty, culpably caused damage to life, limb and health or the limitation of statutory rights of recourse (§§ 478, 479 BGB).
 

We reserve the property rights and copyrights to cost estimates, drafts, drawings and other documents; they may only be made accessible to third parties in agreement with us. Drawings and other documents belonging to offers shall be returned upon request.

Manufacturing costs for production equipment (samples, tools, molds, templates) shall be charged separately to the Purchaser unless otherwise agreed. This shall also apply to production equipment which has to be replaced due to wear and tear.
 

For production equipment, our liability is limited to our own customary care. Costs for maintenance, storage and care shall be borne by the customer.
 

If the customer suspends or terminates cooperation with us during the production period of the means of production, all production costs incurred up to that time shall be borne by the customer.
 

The means of production shall remain in our possession, even if the customer has paid for them, at least until the delivery contract has been settled. Thereafter, the customer is entitled to demand the return of the means of production if the customer has fully complied with all obligations arising from the business relationship.
 

We shall keep the means of production in safe custody until one year after the last delivery to the customer. The obligation to keep the production equipment in safe custody ends if the customer does not demand the return of the production equipment despite a written deadline of 1 month and has not placed a new order.
 

Insofar as we have delivered items in accordance with drawings, models, samples or other documents provided by the customer, the customer shall guarantee that the industrial property rights of third parties are not infringed. If third parties prohibit us from manufacturing and delivering such items, in particular by invoking industrial property rights, we shall be entitled - without being obliged to examine the legal situation - to cease any further activity in this respect and to demand compensation in the event that the purchaser is responsible. The customer also undertakes to indemnify us immediately against all claims of third parties in connection therewith.
 

The customer shall use all documents (including samples, models and data) and knowledge which it receives from the business relationship only for the jointly pursued purposes and shall keep them secret with the same care as its own documents and knowledge if we designate them as confidential or have 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 aforementioned obligation shall not apply to documents and knowledge which are generally known or which were already known to the Purchaser at the time of receipt without the Purchaser being obliged to maintain secrecy, or which are subsequently transferred by a third party authorized to disclose them, or which are developed by the Purchaser without exploitation of documents or knowledge to be kept secret.

With the issue of new sales documents, all previous price quotations or offers are invalid. We reserve the right to make design changes or improvements to tools and associated deviations from illustrations and from dimensions and weights stated in the catalog.

The place of performance, also for the purchaser's obligations, is our place of business.
 

The place of jurisdiction is our registered office. We are also entitled to take legal action at the customer's place of business.
 

German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
 

June 2011

Online Dispute Resolution
Online Dispute Resolution pursuant to Article 14 (1) ODR Regulation: The European Commission provides a platform for online dispute resolution (OS), which can be found at http://ec.europa.eu/consumers/odr/.