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General Terms and Conditions of KAGERER & Co. GmbH

§ 1 Scope

1) These General Terms and Conditions (hereinafter: "GTC") are intended only for traders, not for consumers (§ 13 BGB). They apply to all contracts concluded between KAGERER & Co. GmbH (hereinafter: "Seller") and its customers (hereinafter: "Buyer") and become part of the contract in each case. Unless otherwise agreed, the GTC in the version valid at the time of the Buyer's order or in any case in the version last notified to him in text form shall also apply as a framework agreement for similar future contracts without the Seller having to refer to them again in each individual case.

2) These GTC apply exclusively. Any terms and conditions of the Buyer that deviate from or conflict with these GTC shall not apply; this shall also apply if the Seller does not expressly object to the terms and conditions of the Buyer.

3) Individual agreements and specifications in the Seller's order confirmation shall take precedence over the GTC. In case of doubt, commercial clauses shall be interpreted in accordance with the INCOTERMS® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.

4) Insofar as they are not directly amended or excluded in these GTC, the statutory provisions shall apply.

§ 2 Conclusion of contract / Prices

1) Offers of the Seller are subject to change and non-binding. The order of the goods by the Buyer is considered a binding contract offer. The acceptance takes place through an order confirmation.

2) The goods listed in the respective valid price lists of the Seller are available for delivery.

3) The prices in the price list are in EURO and apply ex delivery warehouse. They are subject to change without notice and shall be increased by the statutory value added tax. 

4) Unless otherwise specified in the price lists, in the case of sale by shipment the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer; any customs duties, fees, taxes and other public charges shall be borne by the Buyer.

§ 3 Delivery period / non-availability

1) Fixed delivery periods shall be agreed individually in writing or specified by the Buyer in the order confirmation. Compliance with the Seller's delivery obligation is subject to the timely and proper fulfillment of the Buyer's obligations. 

2) If the Seller is unable to meet binding delivery deadlines for reasons for which it is not responsible (non-availability of the service), it shall inform the Buyer of this without delay and at the same time inform it of the expected new delivery deadline. If the service is also not available within the new delivery period, the Seller shall be entitled to withdraw from the contract in whole or in part; any consideration already paid by the Buyer shall be refunded. Non-availability of the performance shall be deemed to exist, for example, in the event of non-timely self-delivery by a supplier of the Seller, if the Seller has concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, for example due to force majeure, or if the Seller is not obligated to procure in the individual case.

§ 4 Delivery / Shipping / Transfer of Risk / Default of Acceptance

1) The Seller is entitled to make partial deliveries. Each partial delivery can be invoiced separately.

2) Delivery shall be made ex delivery warehouse, which is also the place of performance for the delivery. If the goods are shipped to another destination (sale by shipment), this shall be done at the request of the Buyer. Unless otherwise agreed, the Seller shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself. 

3) From the moment of handover to the Buyer or to the person carrying out the transport, the material and price risk of destruction, loss, theft and damage of the goods shall pass to the Buyer. This also applies if freight-paid delivery has been agreed. The Buyer shall confirm receipt of the goods after he has ascertained that the delivered goods correspond to the information in the delivery bill. His signature shall be considered as a legally binding acknowledgement of the correctness of the delivery. The copy of the delivery note shall be returned to the Seller. It is the basis for invoicing. If the Buyer makes changes on the delivery bill, this should be clearly noted on the copy. 

4) The Buyer is obliged to accept the goods ordered by him. If the Buyer is in default of acceptance, fails to cooperate or if the Seller's delivery is delayed for other reasons for which the Buyer is responsible, the Seller shall be entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs). The delay in acceptance shall be deemed to be handover within the meaning of § 4 para. 3) of these GTC.

§ 5 Payment

1) Unless otherwise stated in the order confirmation, the purchase price is due and payable upon receipt of the goods and within 8 days from the date of issue of the invoice. A discount deduction is not possible. 

2) Upon expiration of the payment deadline, the Buyer shall be in default. During the period of default, the purchase price shall bear interest at the applicable statutory default interest rate.

3) The Buyer shall only be entitled to rights of set-off and retention to the extent that its claim has been legally established or is undisputed. In the event of defects in the delivery, however, the Buyer's counter rights shall remain unaffected.

§ 6 Retention of title

1) The Seller retains title to its goods until full payment of all present and future claims arising from the current business relationship with the Buyer.

2) The Buyer may process or handle the goods (until revoked) in the ordinary course of business and resell them. The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims.

3) The Buyer hereby assigns to the Seller as security the claims of the Buyer arising from any resale of the reserved goods in the amount of the invoice value of the Seller's claim; the Seller accepts the assignment.

4) The Buyer shall remain authorized to collect the claim even after the assignment. The Seller reserves the right to collect the claim itself as soon as the Buyer is in default of payment, has suspended payments or an application for the opening of insolvency proceedings has been filed. In this case, the Buyer shall provide the Seller with all information necessary to collect the claim and notify the debtor of the assignment or the Seller shall be entitled to revoke the Buyer's authorization to further sell and process the goods subject to retention of title. 

5) The Buyer shall inform the Seller without delay of any compulsory enforcement measures by third parties against the reserved goods or the claim assigned in advance, handing over the documents necessary for an intervention.

6) The retention of title shall extend to the products resulting from the processing, mixing or combination of the Seller's goods at their full value, whereby the Seller shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, the latter's right of ownership remains, the Seller shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.

§ 7 Warranty / Obligation to give notice of defects / Liability / Statute of limitations

1) The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including wrong delivery and short delivery), unless otherwise stipulated below. The Buyer shall accept customary and minor deviations in quality, quantity, weight and similar characteristics.

2) The Buyer shall immediately inspect the delivered goods upon receipt for defects with regard to their condition. Obvious defects in perishable goods must be reported within 24 hours of receipt of the goods, otherwise within 10 working days. Hidden defects must be reported immediately after discovery. If these deadlines are not met, there are no warranty claims. The Buyer undertakes to store the goods properly and not to destroy them in the event of a complaint and also to proceed in accordance with the Seller's instructions in all other respects (e.g. to retain labels affixed to the packaging for the purpose of traceability). 

3) The Buyer shall give the Seller the time and opportunity required for the subsequent performance owed and, in particular, shall make the rejected goods available for inspection purposes [the place of subsequent performance shall be at the place of performance pursuant to § 4 para. 2) of these GTC].

4) The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, shall be borne or reimbursed by the Seller in accordance with the statutory provisions. Labor and material costs shall be borne or reimbursed by the Seller in accordance with the statutory provisions if a defect is actually present. Otherwise, the Seller may demand reimbursement from the Buyer of the costs arising from the unjustified effort to remedy the defect if the Buyer knew or could have known that there was actually no defect.

5) The Seller shall be liable for damages - irrespective of the legal grounds - within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, the Seller shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only (i) for damages arising from injury to life, body or health, and (ii) for damages arising from the breach of an essential contractual obligation (obligation, the fulfillment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, the Seller's liability shall be limited to compensation for the foreseeable, typically occurring damage.

4) The above limitations of liability shall also apply to third parties and to breaches of duty by persons for whose fault the Seller is responsible in accordance with the statutory provisions. They shall not apply insofar as a guarantee for the quality has been assumed or a defect has been fraudulently concealed and for claims of the Buyer under the Product Liability Act.

5) Due to a breach of duty that does not consist of a defect, the Buyer may only withdraw from the contract if the Seller is responsible for the breach of duty.

6) The general limitation period for claims arising from material defects and defects of title shall be one year from delivery, notwithstanding the statutory provisions. The limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, claims for damages of the purchaser for damages arising from injury to life, body or health as well as under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

§ 8 Data protection

1) In accordance with § 33 Federal Data Protection Act (BDSG), the seller points out that for this contract personal data will be collected and stored in machine-readable form only to the extent necessary to enter into, modify if necessary, and perform this contractual relationship. 

2) The purchaser is entitled to request information about the scope and purpose of the data processing and further recipients of the data at any time. Furthermore, he is entitled to correction, blocking and deletion of his data after completion of the purpose-related execution of the contract.

§ 9 Final provisions

1) If one or more provisions in these GTCs or in other agreements are or become invalid, the remaining contractual provisions shall remain valid. The contracting parties shall replace the invalid provision with another provision that comes as close as possible to the invalid provision in economic terms.

2) The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be, to the extent legally permissible, the registered office of the Seller. However, the Seller shall remain entitled in all cases to bring an action at the place of performance of the delivery obligation pursuant to these GTC or at the Buyer's general place of jurisdiction. 

3) These GTC and the contractual relationship between the Seller and the Buyer shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

The offers of KAGERER & Co. GmbH are exclusively directed to tradesmen, not to consumers (§ 13 BGB).

- status 01-07-2023 -