- the offers of KAGERER & Co. GmbH are directed exclusively at business operators, not at consumers (§ 13 BGB) -

General Terms and Conditions of KAGERER & Co. GmbH

§ 1 Scope of application

1) These General Terms and Conditions (hereinafter: “GTC”) are intended only for business operators, not for consumers (§ 13 BGB). They apply to all contracts concluded between KAGERER & Co. GmbH (hereinafter: “Seller”) and its customers (hereinafter: “Buyer”) and shall in each case become part of the contract. Unless otherwise agreed, the GTC in the version valid at the time of the Buyer’s order, or in any event the version last communicated to the Buyer 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. Deviating terms and conditions of the Buyer or terms and conditions that conflict with these GTC shall not apply; this also applies if the Seller does not expressly object to the Buyer’s terms and conditions.

3) Individual agreements and details in the Seller’s order confirmation take precedence over the GTC. In case of doubt, trade 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 the contract is concluded.

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

§ 2 Conclusion of contract / Prices

1) Offers by the Seller are subject to change and non-binding. The Buyer’s order of the goods shall be deemed a binding offer to enter into a contract. Acceptance shall be effected by an order confirmation.

2) Deliverable are the goods listed in the Seller’s respective valid price lists.

3) The prices in the price list are in EURO and apply ex works dispatch warehouse. They are subject to change and shall in each case be increased by statutory VAT. 

4) Unless otherwise specified in the price lists, in the case of a sale by dispatch the Buyer shall bear the transport costs from the 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 / Unavailability

1) Fixed delivery periods shall be agreed individually in writing or stated by the Buyer in the order confirmation. Compliance with the Seller’s delivery obligation requires the timely and proper fulfillment of the Buyer’s obligations. 

2) If the Seller cannot meet binding delivery periods for reasons for which it is not responsible (unavailability of performance), it will inform the Buyer thereof without undue delay and at the same time communicate the expected new delivery period. If performance is also not available within the new delivery period, the Seller is entitled to withdraw from the contract in whole or in part; any consideration already provided by the Buyer shall be refunded. Unavailability of performance exists, for example, in the event of untimely self-supply 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 obliged 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 may be invoiced separately.

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

3) From the time of handover to the Buyer or to the person carrying out the transport, the risk in rem and the price risk of destruction, loss, theft and damage to the goods shall pass to the Buyer. This also applies if delivery free of freight has been agreed. The Buyer must confirm receipt of the goods after having ensured that the delivered goods correspond to the details on the delivery note. The Buyer’s signature shall be deemed legally binding acknowledgment of the correctness of the delivery. The Seller shall receive back the copy of the delivery note. It is the basis for issuing the invoice. If the Buyer makes changes on the delivery note, this should be clearly noted on the copy. 

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

§ 5 Payment

1) Subject to differing details in the order confirmation, the purchase price is due and payable after receipt of the goods and within 8 days from the invoice date. A cash discount deduction is not possible. 

2) Upon expiry of the payment period, the Buyer shall be in default. The purchase price shall bear interest during default at the respective applicable statutory default interest rate.

3) The Buyer shall only be entitled to rights of set-off and retention insofar as its claim has been finally adjudicated 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 ongoing business relationship with the Buyer.

2) The Buyer may (until revocation) process or transform the goods in the ordinary course of business and resell them. The goods subject to retention of title may neither be pledged to third parties nor assigned by way of security prior to full payment of the secured claims.

3) The Buyer hereby assigns to the Seller, by way of security, the Buyer’s claims from any resale of the goods subject to retention of title in the amount of the invoice value of the Seller’s claim; the Seller accepts the assignment.

4) The Buyer remains 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 must provide the Seller with all information necessary to collect the claim and notify the debtor of the assignment, or the Seller is entitled to revoke the Buyer’s authority to further resell and process the goods subject to retention of title.

5) The Buyer must inform the Seller without undue delay of any third-party enforcement measures against the goods subject to retention of title or against the claim assigned in advance, enclosing the documents necessary for an intervention.

6) The retention of title extends to the products resulting from processing, mixing or combining the Seller’s goods to their full value, whereby the Seller shall be deemed the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their ownership rights remain in place, the Seller shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered subject to retention of title.

§ 7 Warranty / Obligation to give notice of defects / Liability / Limitation

1) The statutory provisions shall apply to the Buyer’s rights in the event of defects in quality and title (incl. incorrect and short delivery), unless otherwise specified below. The Buyer shall accept customary and minor deviations in quality, quantity, weight and similar characteristics.

2) The Buyer must inspect the delivered goods for defects in respect of their condition without undue delay upon receipt. Obvious defects in easily perishable goods must be reported within 24 hours of receipt of the goods, otherwise within 10 working days. Hidden defects must be reported without undue delay after discovery. If these periods are not observed, no warranty claims shall exist. The Buyer undertakes to store the goods properly and, in the event of a complaint, not to destroy them and otherwise to proceed in accordance with the Seller’s instructions (e.g. to retain labels affixed to the packaging for the purpose of traceability). 

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

4) The expenses required 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 if a defect actually exists. Otherwise, the Seller may demand reimbursement from the Buyer for the costs incurred as a result of the unjustified defect rectification effort if the Buyer knew or should have been able to recognize that no defect actually exists.

5) The Seller shall be liable for damages – regardless of the legal basis – within the scope of fault-based liability in cases of intent and gross negligence. In cases 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 resulting from injury to life, body or health, and (ii) for damages resulting from the breach of a material contractual obligation (obligation the fulfillment of which makes the proper performance of the contract possible in the first place 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 damage typically occurring. 

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

7) The Buyer may only withdraw due to a breach of duty that does not consist of a defect if the Seller is responsible for the breach of duty. 

8) The general limitation period for claims arising from defects in quality and title shall, deviating from the statutory provisions, be one year from delivery. The limitation periods under sales law also apply to the Buyer’s contractual and non-contractual claims for damages that are 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 the individual case. However, the Buyer’s claims for damages for 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 of the Federal Data Protection Act (BDSG), the Seller points out that for this contract personal data is collected and stored in machine-readable form only to the extent necessary to enter into, possibly amend and perform this contractual relationship. 

2) The Buyer is entitled at any time to request information about the scope and purpose of data processing and other recipients of the data. Furthermore, it is entitled to correction, blocking and deletion of its data after completion of the purpose-related performance of the contract. 

§ 9 Final provisions

1) If one or more provisions in these GTC 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 closest to the invalid provision in economic terms.

2) The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is, insofar as legally permissible, the Seller’s registered office. However, in all cases the Seller remains entitled 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 law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG). 

- As of 01/07/2023 -