GENERAL TERMS OF TRADE OF KAGERER & CO. GMBH
1. GENERAL PROVISIONS
1) The following General Terms of Trade are only intended for businessmen, not for private consumers (Section 13 of the BGB / German Civil Code). They apply to all present and future contracts concluded with KAGERER & Co. GmbH (the “Seller”) and form an integral part thereof.
2) Any terms of trade of a contractual partner (the “Purchaser”) different from, or conflicting with, the present General Terms of Trade “GTTs” will not be valid; this also applies in the event the Seller does not expressly object to the Buyer’s terms of trade.
2. CONTRACTUAL RELATIONS
1) The Seller’s offers are not binding to him. All goods listed in the Seller’s current pricelist are actually available.
2) The Purchaser is obliged to accept the goods ordered.
3) In the event a supplier fails to deliver the goods ordered or cannot deliver them in a timely manner, the Seller will be released from his obligation to make timely and complete delivery, provided that the Seller is not at fault.
All prices in the pricelist are quoted in EUROS and ex warehouse. Prices are subject to change and are stated exclusive of the statutory sales tax (VAT).
1) The Seller reserves the right to make partial delivery of the goods. Each partial delivery may be invoiced separately.
2) There are no fixed delivery times, unless individually arranged in writing. The Seller’s obligation to deliver is subject to the timely and due performance of Purchaser’s obligations.
3) Shipment of goods will occur ex Seller’s registered office or ex warehouse. Where delivery terms are agreed upon, the most recent version of the INCOTERMS, as amended from time to time, will apply.
4) From the time of transfer of ownership of the goods to the Purchaser or to the forwarding agent, all risk in the goods (such as sinking, loss, theft, and damage) will pass to the Purchaser. This also applies in the event of carriage-paid delivery. The Purchaser must acknowledge receipt of goods after making sure that the delivered goods are in conformity with the specifications made on the bill of lading. The Purchaser’s signature is deemed to be a legally binding acceptance of the delivery being in order. The copy of the bill of lading is handed back to the Seller. It serves as a basis for invoicing. Any changes the Purchaser makes to the bill of lading must be clearly recorded on the copy.
1) Upon receipt of the goods, payments must be made in full within 8 days of the issuance of the invoice. There is no discount allowed.
2) In the event of a default in payment, the Seller is entitled to charge interest for late payment in accordance with Section 288 of the BGB (German Civil Code).
3) The Purchaser may not set off any amount owing against claims, unless such claims have been acknowledged by the Seller or have been established by non-appealable judgment. The same applies to the right of retention.
6. RESERVATION OF TITLE
1) Title to goods remains with the Seller until payment in full of all present and future claims arising from the current business relationship with the Purchaser.
2) The Purchaser may treat or process and resell the goods in the course of regular business operations. Any claims of the Purchaser resulting from the resale of such goods under retention of title will herewith be assigned in advance to the Seller in the amount of the respective Seller’s invoice value. The Seller accepts such transfer.
3) The Purchaser continues to be entitled to collect outstanding receivables after such assignment. In the event of Purchaser’s delay in payment, failure of payment, or application of insolvency proceedings to be opened, the Seller reserves the right to collect any outstanding claim. In such event the Purchaser is obliged to provide to the Seller all information required to collect the outstanding claim and to notify the assignment to the debtor.
4) It is the Purchaser’s duty to promptly inform the Seller of any enforcement measure concerning the goods under retention of title or concerning the claim assigned in advance and to hand over all documentation required for an intervention.
5) Handling and processing, by the Purchaser, of the goods under retention of title will always be done in the name and on behalf of the Seller. Where goods are processed in combination with goods which are not Seller’s property, co-ownership of the new goods created by way of processing will be assigned to the Seller in proportion of the value of the item provided by the Seller. In replacement of such newly created goods being handed over to the Seller, the Purchaser will hold them in custody for the Seller.
7. WARRANTY / LIABILITY
1) The Purchaser has the duty to promptly inspect the delivered goods for defects, upon their receipt. With respect to highly perishable goods, the Seller is to be notified of such apparent defects within 24 hours after their detection, with respect to other goods within 14 days. Hidden defects must be brought to Seller’s attention promptly after their detection. The Seller cannot grant warranty for any claims outside the above time limits. The Purchaser undertakes to store the goods in an appropriate manner and to not destroy them in the event of complaint and, in all other respects, to proceed in accordance with Seller’s instructions (such as saving all packaging labels for the purpose of traceability).
2) Minor deviations in quality, quantity, weight, or in similar features, as are customary in the industry, will have to be accepted by the Purchaser. If defects are apparent, the Seller may make a replacement delivery at Seller’s choice. If Seller’s cure (secondary performance) is unsuccessful, the Purchaser may either request that the price be reduced (abatement) or that the contract be cancelled (rescission).
3) If the Purchaser has the right to claim for damages against the Seller, the Seller’s liability is limited to € 1.000 or, alternatively, to the damage which, with respect to the nature of the goods, was foreseeable at the time of entering into the contract and which may typically be expected to occur. The same applies to Seller’s vicarious agents. The Seller does not accept liability for indirect and/or consequential damages, including particularly loss of production or loss of profit. Force majeure, malfunction, industrial actions, or any other obstacles beyond Seller’s and his supplier’s control will release the Seller from his obligation to deliver the goods for the duration of the incidence and its impacts, without the Purchaser being entitled to claim compensation.
4) The above limitations and exceptions to liability do not apply to claims arising from a quality guarantee assumed by the Seller or from fraudulent concealment nor in the case of deliberate action, gross negligence, violation of essential contractual obligations, or liability under the law regarding product liability, nor do they apply to claims from negligent injury to life, body or health.
5) The limitation period for the aforesaid claims is one year from delivery of goods.
8. DATA PROTECTION
1) In accordance with Section 33 Federal Data Protection Act (BDSG), the Seller undertakes to collect and save personal data in machine-readable form only to the extent required to enter into, amend, where applicable, and perform this contract.
2) The Purchaser has the right to request, at any time, information on scope and purpose of the data processing and other receivers of the data. Furthermore, Purchaser is entitled to have its data corrected, disabled and eventually deleted when proper contract performance for the agreed purpose ends.
9. FINAL PROVISIONS
1) Should any provision of these General Terms of Trade or of any other agreement be found invalid or unenforceable for any reason, then that provision shall not affect the validity and enforceability of the remaining provisions. The parties shall endeavour in good faith negotiations to replace the invalid or unenforceable provision by a valid and an enforceable provision the economic effect of which comes as close as possible to that of the invalid or unenforceable provision.
2) Place of performance of the mutual obligations shall be the Seller’s place of business, to the extent permitted by law. Place of jurisdiction shall be the Seller’s place of business, to the extent permitted by law. These General Terms of Trade are governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.