General Terms & Conditions
Terms and conditions of business
Klinkau GmbH + Co. KG, Raiffeisenstraße 6, 87616 Marktoberdorf,
registered in the Commercial Register of the Kempten District Court under HRA 5209
Effective from 01 September 2021
- Scope of application
- The following terms and conditions of business are only applicable to business transactions with entrepreneurs in accordance with Article 14 of the German Civil Code.
- Our deliveries and services are exclusively subject to the following general business terms and conditions. They shall also be deemed accepted when an order is placed, or at the latest, when a delivery is accepted. They shall apply even if we do not expressly refer to them in subsequent contracts.
- The customer’s general business terms and conditions, or purchasing conditions, which we hereby expressly, generally and conclusively reject, shall not become valid with a contract unless they are expressly accepted by us in writing. Following the termination of any agreement to the contrary, our delivery and service will once again be based on the following conditions.
- Offers, contract conclusion, offer documents
- Our offers to the customer are subject to change. The order is the motion for the conclusion of a contract. The order shall be accepted at our discretion, when we send an order confirmation or agree to the condition of the unconditional provision of the ordered supplies or services.
- We reserve the right of ownership and copyright with illustrations, figures, calculations and other documents. This also applies to written documents which are marked “confidential”. The customer requires our express written consent before these can be passed on to third parties.
- Information on characteristics and durability, technical specifications and descriptions in our product information, advertising materials or technical data sheets, does not imply any guarantee of the characteristics or the durability of the goods to be supplied by us, unless the information is agreed in individual contracts.
III. Prices, payment, default
- The price information in our offers and price lists is subject to change unless otherwise agreed in individual instances or unless there is a framework agreement with a fixed price period. This applies both to our general price list and to individual, customer-specific price lists.
- We reserve the right to modify our prices accordingly in the event of increases or decreases in costs following the conclusion of a contract, in particular as a result of collective bargaining agreements or changes in the prices of materials. We will provide evidence of this to the customer on request.
- The prices agreed shall be applicable upon the conclusion of the respective contract and in particular the prices stated in the order confirmation or in the framework agreement or in price agreements based thereon.
- All prices are net, plus the respective value-added tax applicable at the time of delivery. Where agreed, delivery and packaging costs will be invoiced separately.
- Unless otherwise agreed, our invoices shall be payable within 30 days of receipt, without any deductions. Following the expiration of the due date given on the invoice, the customer will be in default in accordance with Article 286 Sec. 2, Nr. 2 of the German Civil Code.
- The customer can only offset counterclaims if these are undisputed or have been legally established. The same applies to the customer’s exercise of rights of retention which are not relevant to the same contractual relationship.
- If the customer is in arrears with any payment, we will be entitled to demand interest on such arrears, at a rate of nine percentage points above the respective base interest rate of the European Central Bank.
- Delivery, force majeure
- The delivery periods and delivery dates stated by us in the offer and in the order confirmation are expected delivery dates which remain dependent on the arrangement of the delivery, and do not represent binding contractual dates or even fixed dates in a legal sense.
- A delay in performance shall be acknowledged only after a reminder. The customer can only withdraw from the contract once a reasonable period of time has elapsed. Even after the expiration of this deadline, the customer will be required to accept the delivery, unless we receive a declaration of withdrawal in writing before the delivery note is sent.
- We are entitled to make partial deliveries and provide partial services if these are reasonable in the eyes of the customer.
- Compliance with our supply and service obligations presupposes the timely and proper fulfilment of the customer’s obligations.
- If we are hindered from making any delivery(ies) as a result of force majeure, the delivery time shall be automatically extended by the duration period of the force majeure event in question plus a reasonable start-up time. Force majeure amounts to circumstances which were unforeseeable at the time that the date was agreed and for which we are not responsible; circumstances which make deliveries unreasonably difficult or temporarily impossible. Examples of force majeure include delivery delays at intended sub-suppliers, industrial disputes, government measures, shortages of raw materials or energy which cannot be avoided through business diligence, significant operational disruptions due to the destruction of the company or the failure of essential manufacturing facilities or significant portions of the workforce as a result of a pandemic, serious transport disruptions (such as road blockages, fuel shortages, industrial disputes in the transport industry, general vehicle or flight bans, traffic disruption, extreme weather conditions, etc.). This also applies when such circumstances occur with pre-suppliers or subcontractors.
- Transfer of risk, transport and packaging costs
- The delivery takes place in accordance with the agreed shipping clause. When a delivery is made by us, the following conditions in accordance (under Section V No. 2 f) also apply.
- If no agreement has been concluded with regard to shipment/collection, deliveries shall be made from our factory or warehouse; the customer must collect them from there, at their own risk and costs. In such a case, the risk of accidental loss or accidental deterioration of the contractual delivery items shall be transferred once said items have been made available for collection, upon receipt of the notification of availability by the customer. Otherwise, the risk of accidental loss or accidental deterioration of the delivery items shall be transferred to the customer during a handover to the carrier (even when the delivery is free of charge or is insured by us). The carrier shall be solely responsible for safe and reliable loading.
- If the delivery is agreed, the agreed delivery location will be stipulated in our order confirmation.
- Liability on the part of our company for damages or futile expenditure – for whatever legal reason – shall only be entertained if the damages or futile expenditure was the responsibility of us or one of our vicarious agents as a result of a culpable breach of an essential contractual obligation and is attributable to a grossly negligent or intentional breach of duty on our part or on the part of one of our vicarious agents.
- If we are liable for the breach of an essential contractual obligation for which gross negligence or intent does not apply, our liability for damages shall be limited to the kind of damage which is foreseeable and which typically occurs. An essential contractual obligation exists if the breach of obligation relates to an obligation the fulfilment of which the customer was relying on and should rely on. In such a case, we shall, in particular, not be liable for loss of profit with the customer, or for unforeseeable indirect consequential damages. The above limitations of liability in accordance with Parag. 1 and 2 apply in the same way to damages which did not result from gross negligence or intent on the part of our employees or agents.
- The limitations of liability listed above do not apply to liability based on the provisions of the Product Liability Act or where there are any claims for injury to life, limb or health made against us. If the goods supplied by us lack a guaranteed quality (feature), we shall only be liable for such damages the absence of which was the subject of the guarantee.
- Any further liability for compensation shall be excluded.
- Insofar as liability for damages is excluded or limited, this shall also apply to the personal liability for damages of our staff, workers, employees, representatives and vicarious agents and assistants.
VII. Retention of title
- We shall retain ownership of the purchase item until all payments from the business relationship with the customer have been received. Insofar as we agree to payment of the purchase price debt with the customer based on the cheque/bill procedure, this retention shall be extended to the encashment of the customer’s bill of exchange accepted by us, and it shall not expire when the received cheque is credited to us.
- In the event that the customer engages in behaviour in breach of contract, in particular in the event of a payment delay, we shall be entitled to retrieve the purchase item. If we retrieve the purchase item, this constitutes a withdrawal from the contract. After retrieving the purchase item, we shall be entitled to sell it, and offset the proceeds from the sale against the liability of the customer – minus reasonable costs of sale. If the goods subject to the retention are held by a third party, the customer hereby assigns their claim for return against the third party to us. As the indirect owner of the goods subject to retention, we are entitled to enter the property, spaces and premises of the customer on/in which the goods subject to retention are stored.
- In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing, so that we can file a suit in accordance with Article 771 of the Code of Civil Procedure. If the third party is not in a position to reimburse us for the court and out-of-court costs of a lawsuit in accordance with Article 771 of the Code of Civil Procedure, the customer shall be liable for the loss that we incur.
- The customer shall be entitled to resell the purchase item in the ordinary course of business; they thereby assign to us all claims up to the final invoice amount (including VAT) of our claim accrued by them from resale against their customers or third parties, regardless of whether the purchase item is resold with further processing or not. The customer remains entitled to collect on this claim, even after the assignment. Our authority to collect on the claim itself remains unaffected. However, we shall undertake not to collect on the claim for as long as the customer meets their payment obligations arising from the proceeds received, does not default on payment and, in particular, no application to initiate insolvency or arbitration proceedings has been made or a suspension of payments has been issued. If this is the case, however, we may require that the customer inform us of the assigned claims or debtors, provide all the information required for collection, hand over the relevant documentation, and inform the debtors (third parties) of this assignment.
- The processing or transformation of the purchase item by the customer shall always be carried out for us. If the purchase item is processed with other items that do not belong to us, we shall acquire co-ownership of the new item at the proportion of the value of the purchase item compared to the other processed items at the time of their processing. The same shall also apply for items resulting from the processing, and for purchase items supplied under reservation.
- If the purchase item is inseparably combined with other items that do not belong to us, we shall acquire co-ownership of the new item proportional to the value of the purchase item against the other items mixed with them at the time that the mixing took place. In the event that this mixing takes place in such a way that the customer’s item is regarded as the main item, it is hereby agreed that the customer shall transfer proportionate co-ownership to us. The customer shall retain the resulting right of sole ownership or co-ownership for us.
- We undertake to release the securities to which we are entitled at the request of the customer, provided that the realisable value of our securities exceeds the claims to be secured by more than 10%; we are responsible for selecting the securities to be released.
VIII. Intellectual property rights relating to the manufacturing documentation to be handed over
In the event of a delivery in accordance with the customer’s specifications, in particular based on figures, models or samples provided to us, we assume no liability for the violation of any existing intellectual property rights. This also applies in the event that such figures, models or samples are made available to us by a third party on the customer’s instructions. The customer shall be solely responsible for examining the existence and scope of any such intellectual property rights. The customer is obliged to indemnify us against all third-party claims arising from infringement of intellectual property rights as well as all reasonable expenses incurred by us in connection with the same.
- Statute of limitations
Claims by the customer due to material defects shall become invalid one year from the handover/delivery to the customer. This excludes claims for damages resulting from injury to life, limb or health and/or claims for damages resulting from damage caused by us negligently or intentionally. The statutory limitation periods shall apply in this respect.
- Prohibition of assignment, place of performance, place of jurisdiction, commercial clauses
- Rights and/or claims against us, in particular due to defects in goods delivered by us or due to breaches of duty committed by us, may not be transferred, in part or in full, to third parties, or pledged to third parties, without our express written consent; Article 354a of the German Commercial Code shall remain unaffected by this.
- The law of the Federal Republic of Germany shall apply for these business terms and conditions and for the entire legal relationship between the seller and customer, excluding UN Purchasing Law.
- If the customer is a merchant, a legal entity under public law or a special assets entity under public law, the place of performance for the delivery obligation incumbent upon us shall be the respective manufacturing plant for deliveries (ex-works) and the respective storage location for deliveries (ex-storage). The place of performance for the buyer’s obligations is D-87616 Marktoberdorf.
- If the customer is a merchant, a legal entity under public law or a special assets entity under public law, or they do not have registered offices in the Federal Republic of Germany, D-87616 Marktoberdorf shall be the sole place of jurisdiction for all disputes arising in connection with the contractual relationship, either directly or indirectly. In all instances, we shall also be entitled to also implement legal action at the registered offices of the buyer, at our discretion.
- Closing provisions
In the event that any of the preceding provisions are ineffective, partially ineffective or excluded by special agreement, the effectiveness of the remaining provisions shall remain unaffected.