Article 1 General - Scope
(1) These General Terms and Conditions of Sale shall apply to all deliveries and services of Kludi GmbH & Co. KG (referred to in the following as: Kludi); conditions of the ordering party that contradict or deviate from these General Terms and Conditions of Sale (and/or supplementary conditions) shall not apply, except where Kludi has explicitly approved their application. These General Terms and Conditions of Sale shall also apply where Kludi is aware of conditions of the ordering party that contradict or deviate from these General Terms and Conditions of Sale, and performs the delivery to the ordering party without reservation. If the ordering party accepts services/deliveries from Kludi without reservation, this shall also constitute acceptance of these General Terms and Conditions of Sale.
(2) All agreements that are made between Kludi and the ordering party regarding the performance of a contract shall be recorded in writing in the respective contract. The respective contract document shall be presumed to be complete and accurate. Where there exist between Kludi and the ordering party other unilateral or multilateral contractual agreements, and where individual clauses of those contracts conflict with clauses of these General Terms and Conditions of Sale, the clauses of those other agreements shall only replace the corresponding clauses of these General Terms and Conditions of Sale where this has been explicitly agreed.
(3) These General Terms and Conditions of Sale shall only apply vis-à-vis companies in the meaning of Article 310 of the German Civil Code (BGB).
(4) These General Terms and Conditions of Sale shall also apply to all future transactions with the ordering party, without Kludi being obliged to make specific reference to them in individual cases.
Article 2 Information, advisory services
Information and advisory services regarding the products of Kludi shall be provided on the basis of the prior experience of Kludi. The values specified in that connection shall be calculated average values. Information and advisory services shall not render unnecessary suitability testing of the goods supplied and compliance with processing instructions, in particular by the ordering party. Verbal information shall not be binding, unless an explicit agreement has been made to the contrary.
Article 3 Quotation, quotation documents
(1) If an order is subject to qualification as a quotation under Article 145 of the German Civil Code (BGB), Kludi shall be entitled to accept it within 3 weeks. A supply contract or other contract shall only then be considered to exist when Kludi has explicitly confirmed the order or other assignment, or when the goods have been delivered.
(2) Samples and specimens shall be considered non-binding samples for inspection purposes. In the case of purchases based on samples and/or specimens, deviations are reserved where these are customary for the industry or lie within the scope of normal manufacturing and technical improvement. The delivery of samples or specimens shall not constitute a guarantee of quality or shelf life, or a quality agreement, and it shall not be associated with the definition of a standard quality, unless this is explicitly indicated in the order confirmation.
(3) Samples and specimens shall be returned to Kludi in faultless condition and at the expense of the ordering party within 4 weeks. If they are not returned within this period, Kludi shall be entitled to charge the purchase price in accordance with the price list. Price lists can be requested from Kludi at any time.
(4) Where not explicitly otherwise agreed, the specifications published by Kludi in catalogues, brochures and other publications in text or image format (e.g. descriptions, photographs or drawings) shall constitute approximate specifications, and shall not constitute quality specifications or possible uses of the goods supplied by Kludi. Specifications from Kludi shall not constitute guarantees of shelf life or quality, or quality specifications, and shall correspond to the current state of knowledge at Kludi. Kludi shall not be liable for the success of the intended use.
(5) Kludi retains all property rights and copyrights, and rights of reproduction, to images, drawings, calculations, cost estimates, and other documents; it shall not be permissible for images, drawings, calculations, cost estimates and other documents to be disclosed to third parties. These documents shall be returned to Kludi if the order is not placed. The aforementioned provisions of this Para. 5 shall in particular apply to written documents marked "confidential"; the ordering party shall require the explicit approval of Kludi before the disclosure of these to third parties.
Article 4 Prices, payment conditions
(1) Unless otherwise agreed in the order confirmation, the prices of Kludi on the date of delivery apply "ex works" and exclusive of packaging and transportation; the latter will be invoiced separately.
(2) The statutory value-added tax is not included in the prices; it will be separately stated in the invoice at the statutory rate on the date of invoicing.
(3) Deliveries to destinations in EU countries and in states party to the Agreement on the European Economic Area shall be subject to an agreed carriage-paid limit of Euro 750.00 per individual order, and a small-quantity surcharge of Euro 6.00 for individual orders with a value under Euro 50.00. Where upon request of the ordering party deliveries are to be made to secondary or tertiary addresses, a surcharge of 10% of the invoice value for the order shall be charged on these delivery routes, in addition to the agreed price. For deliveries to destinations on the continents of Asia (in particular China and Russia), Australia (including New Zealand), Africa, Antarctica, South America and North America, a carriage-paid limit of EURO 500,00 shall apply per individual order, and a small-quantity surcharge of EURO 500,00 for individual orders with a value under EURO 500,00. Where upon request of the ordering party deliveries are to be made to secondary or tertiary addresses, a surcharge of 10% of the invoice value for the order shall be charged on these delivery routes, in addition to the agreed price.
(4) Where not otherwise specified in the order confirmation, the purchase price shall be due for payment net (without deduction) within 30 days after the invoice date. The statutory provisions regarding the consequences of default in payment shall apply. If the ordering party pays the purchase price within 10 days after the invoice date, an early payment discount of 3% of the invoice total shall apply, provided that all older purchase price debts have been paid in full. Any further early payment discount shall be subject to special explicit agreement. Payments shall be made in euros, and shall be payable free of postage and charges to paying agents specified by Kludi. Bills of exchange and cheques shall only constitute payment when they have been redeemed, and shall be accepted without obligation for timely presentation and protesting.
(5) In the event of default, Kludi shall be entitled to claim default interest at the statutory rate (Article 288 Para. 1, Para. 2 of the German Civil Code (BGB)). If Kludi demonstrates that the default in payment has incurred higher loss of interest, this can be claimed. The right to assert further claims is explicitly reserved. In the case of bilateral commercial transactions, Kludi shall be entitled to charge maturity interest at a rate of 4%, starting from the date of the payment claim.
(6) In the event of justified doubt in the solvency of the ordering party, in particular in the event of payment arrears, Kludi shall be entitled to demand advance payments or collateral from the ordering party for further deliveries, without prejudice to any further claims, and shall be entitled to revoke individually agreed payment periods.
(7) The ordering party shall only be entitled to rights of offsetting and retention where the counterclaims have the force of law and are recognised by Kludi. Furthermore, the ordering party shall only be entitled to a right of retention where the counterclaim derives from the same contractual relationship. Kludi shall be entitled, despite any provisions of the ordering party to the contrary, to first offset payments against any older liabilities of the ordering party. If costs and interests have already been incurred, Kludi shall be entitled first to offset the payment against the cost, then against the interest, and finally against the principal demand.
(8) All customs duties, taxes, levies etc. incurred outside the Federal Republic of Germany shall be paid by the ordering party.
Article 5 Delivery time
(1) Delivery schedules shall only be binding where this has been explicitly agreed. The delivery time specified by Kludi shall only begin after all technical questions have been clarified and Kludi has given an additional explicit delivery time confirmation. Delivery schedules shall be considered to have been complied with where the delivered product has left the facility of Kludi, or notification of dispatch readiness has been sent.
(2) Compliance with delivery obligations on the part of Kludi shall furthermore be dependent on the timely and proper fulfilment of the obligations of the ordering party; this shall in particular relate to the timely receipt of all documents to be supplied by the ordering party, and required permits and approvals, in particular for plans, and compliance with the agreed payment conditions (e.g. advance payments). The right of objection on grounds of non-fulfilment of contract shall be reserved.
(3) Where non-compliance with the agreed schedules is attributable to force majeure, e.g. mobilisation, war, rioting or similar events, e.g. strike, lockout etc., the agreed schedules shall be extended appropriately. The same shall apply in the event that Kludi itself has not received deliveries in a timely or proper manner (the agreed delivery schedules shall correspondingly be subject to proper and timely deliveries by subsuppliers).
(4) Kludi shall be entitled to make partial deliveries, where these are reasonable for the ordering party. It shall be permitted for partial deliveries to be invoiced separately.
(5) If the ordering party defaults on acceptance or culpably violates other duties of cooperation, Kludi shall be entitled to request compensation of any losses incurred by Kludi as a result, including remuneration of any excess expenditure. Further claims shall be reserved.
(6) Where the requirements of Para. (5) apply, the risk of accidental loss or accidental deterioration of the purchased product shall be transferred to the ordering party from the date at which the latter defaults on acceptance or payment.
(7) Kludi shall be liable in accordance with the statutory provisions where the underlying purchase contract constitutes a fixed date transaction in the meaning of Article 286 Para. 2 of the German Civil Code (BGB) or Article 376 of the German Commercial Code (HGB). Kludi shall also be liable in accordance with the statutory provisions where a delay in delivery for which Kludi is responsible entitles the ordering party to assert that he has no further interest in the continued performance of the contract. Subject to proper and timely deliveries by subsuppliers.
(8) Kludi shall furthermore be liable in accordance with the statutory provisions where the delay in delivery arises from intentional or grossly negligent violation of contract for which Kludi is responsible; Kludi shall be liable for violations committed by representatives or vicarious agents of Kludi. Where the delay in delivery does not arise from an intentional violation of contract for which Kludi is responsible, the liability for compensation of damages by Kludi shall be limited to the foreseeable, typical damage.
(9) Kludi shall also be liable in accordance with the statutory provisions where the delay in delivery for which Kludi is responsible arises from a culpable violation of a major contractual obligation; in this case, the liability for compensation of damages by Kludi shall be limited to the foreseeable, typical damage.
(10) Kludi shall otherwise be liable in the event of delay in delivery to pay lump-sum default compensation in the sum of 3% of the value of the delivery for each full week of delay, limited, however, to a maximum of 9% of the value of the delivery. (11) The limitations/exclusions of liability described in Para. 7-10 of this Article shall not apply in the event of death, injury or damage to health.
Article 6 Transfer of risk
(1) Unless otherwise provided for in the order confirmation, the delivery shall be agreed as "ex works". The risk shall correspondingly be transferred to the ordering party at the latest when the delivered products are dispatched, even where partial deliveries are made, or where Kludi still has to perform other services, e.g. where Kludi has accepted the dispatch costs or the transport and/or installation costs. The provisions of Article 5 Para. 6 shall also apply.
(2) The return of transport packaging and all other packaging shall not be accepted; this applies with the exception of pallets. The ordering party shall be obliged to dispose of the packaging at its own expense.
(3) Where the ordering party wishes, Kludi shall arrange for the delivery to be covered by a separate transport insurance policy; the costs incurred shall be paid by the ordering party.
(4) The statutory obligations regarding inspection and notification of defects (Article 377 of the German Commercial Code (HGB)) shall continue to apply without restriction. If the ordering party fails to perform the immediate inspection of the goods required by Article 377 of the German Commercial Code (HGB), or fails immediately to give notification of defects, the goods shall be considered approved, and the ordering party shall no longer be entitled to assert claims relating to defects or incomplete delivery. Where Kludi negotiates with the ordering party regarding a complaint raised by the latter, this shall not constitute a tacit waiver of the objection of late inspection of the goods or notification of defects without explicit notice thereof. The same shall apply to any statement from Kludi that it may be prepared to remedy the defect (or where such remediation actually takes place). Notification of defects shall require the written form.
Article 7 Liability for defects
Kludi shall be liable for any defects in delivery, excluding further claims, as follows:
(1) Claims for defects shall not exist in cases of only minor deviation from the agreed quality or - in the absence of an agreement - from the customary quality, where the impairment of function is only insignificant, in cases of natural wear or damage that occurred after the transfer of risk as a result of incorrect or negligent treatment and handling (particularly by untrained personnel), improper or inappropriate use, excessive loading, inappropriate equipment, defective construction work, inappropriate building ground, incorrect installation, incorrect use, or which occur as a result of specific external factors that have not been taken into consideration by the contract, or in case of non-reproducible software errors. If the ordering party or third parties perform unprofessional modifications or maintenance work, claims for defects cannot be asserted for these or the resulting consequences. Incorrect use, in relation to which no claims for compensation of defects shall be possible, shall in particular include the installation of the object of purchase or parts thereof in other products, or the installation of third-party components into the object of purchase, or in the event of modification of the object of purchase by the ordering party, unless an alternative has explicitly been agreed.
(2) All parts supplied that contain defects shall be either repaired or replaced free of charge at the discretion of Kludi, where and inasmuch as the cause was already present at the time of the transfer of risk (supplementary performance).
(3) In the event of a justified notification of defects, the ordering party shall give Kludi the opportunity of supplementary performance within a reasonable period.
(4) If the supplementary performance has failed or is unreasonable for the ordering party (Article 440 of the German Civil Code (BGB)), or is dispensable because a) the supplementary performance is conclusively rejected by Kludi, b) the supplementary performance has not been effected by a contractually determined deadline or within a specified period, and the ordering party has contractually bound the continuation of its interest in performance to the punctuality of the performance, or c) special circumstances exist that, under consideration of the interests of both parties, justify immediate withdrawal (Article 323 Para. 2 of the German Civil Code (BGB)), the ordering party shall immediately be entitled to reduce the purchase price or withdraw from the contract at its discretion, and (or also additionally) in accordance with Para. 10 in conjunction with Article 11 to demand compensation of damages in lieu of the performance, or reimbursement of frustrated expenditure.
(5) The expenditures required for the purpose of supplementary performance, and in particular transportation, travel, personnel and material costs, shall be paid by Kludi. This shall not apply where the expenditures increase because the object of delivery has been removed to another location than the place of fulfilment (Article 12 Para. 3) of the delivery, except where this corresponds to the intended use of the object of delivery.
(6) If the ordering party accepts a defective delivery despite being aware of the defect, he shall only be entitled to the claims and rights arising from the defect if he reserves these within the framework of the acceptance process.
(7) The statements made in brochures, advertising materials, descriptions etc. regarding dimensions, weights, performance capabilities etc. shall constitute approximate statements, and not quality specifications. They shall not constitute a guarantee of quality or shelf life. Kludi reserves the right to deviations. This shall also apply to design changes.
(8) Claims for supplementary performance shall be subject to statutory limitation in one year after the beginning of the statutory limitation period; the same shall apply for withdrawal and reduction. This period shall not apply where the law under Article 438 Para. 1 No. 2 (buildings and products for buildings), Article 479 Para. 1 (right of recourse) and Article 634a Para. 1 No. 2 (construction defects) of the German Civil Code (BGB) prescribes mandatory longer periods, and shall also not apply in cases of intent, malicious non-disclosure of the defect, or non-compliance with a quality guarantee, or violation of major contractual obligations (cardinal obligations). In such cases the statutory limitation periods shall apply. The statutory regulations regarding suspension of expiry, suspension, and recommencement of the limitation period, shall remain unaffected; in the event of supplementary performance by means of delivery of a defect-free product, the warranty period shall however end at the time when it would have ended for the defective product.
(9) Any rights of recourse of the ordering party against Kludi under Article 478 of the German Civil Code (BGB) (recourse of the principal) shall only apply where the ordering party has made no agreement with his customer that exceed the statutory claims for defect. The scope of the right of recourse against Kludi shall be governed by Article 478 Para. 2 of the German Civil Code (BGB), and Article 7 Para. 1-7, 10 and Article 11 shall apply correspondingly.
(10) Any claims by the ordering party for compensation of damages in relation to a material defect shall be determined on the basis of Article 11.
Article 8 Returns
(1) Returns of the purchased product shall be excluded, except in cases under Article 7.
(2) Purchased products returned without the approval of Kludi shall be rejected by Kludi, or sent back to the ordering party freight forward.
(3) If in individual cases and after prior explicit agreement Kludi exceptionally agrees to the return delivery, Kludi shall be entitled to invoice processing costs in the sum of at least 30% of the net value of the goods, depending on the usability of the goods. (4) The ordering party shall bear the transportation risk and transport costs.
Article 9 Retention of title
(1) Kludi shall retain the title to all delivered products (referred to in the following as: ROT goods) until the payment of all receivables, for whatever legal reason, including receivables arising in future conditional receivables from concurrent or subsequently concluded contracts. This shall also apply where payments are made on specifically designated receivables. If there are indicators justifying the assumption of insolvency on the part of the ordering party, or the threat of such, Kludi shall be entitled to withdraw from the contract without notice, and to demand the surrender of the ROT goods.
(2) Processing of the ROT goods shall take place on behalf of Kludi as the manufacturer in the meaning of Article 950 of the German Civil Code (BGB), without obligation for Kludi. The processed goods shall constitute ROT goods in the meaning of Para. 1. Where the ROT goods are processed, aggregated or mixed with other goods by the ordering party, Kludi shall have joint title to the new product in the ratio of the invoice value of the ROT goods to the invoice value of the other goods used. If the title of Kludi lapses upon aggregation or mixing, the ordering party hereby already transfers his ownership rights to the new stock or product in the scope of the invoice value of the ROT goods, and holds it in safekeeping for Kludi free of charge. The joint ownership rights thus arising shall constitute ROT goods in the meaning of Para. 1.
(3) If the ROT goods are aggregated with real property by the ordering party as an entrepreneur in the meaning of Article 946 of the German Civil Code (BGB), the ordering party shall also assign to Kludi at the time of aggregation the receivables to which he is entitled as remuneration for this aggregation, together with all auxiliary rights, and without the need for any further separate statement, as security in the sum of the ratio of the ROT goods aggregated to the other goods aggregated, or to the value of his total performance.
(4) The ordering party shall be entitled to resell, process, aggregate with other goods, or otherwise install the ROT goods only within the framework of ordinary business operations, and provided that he is not in default of payment of the purchase price. Any other utilisation of the ROT goods shall not be permitted. Distraint or other seizure of the ROT goods by third parties shall be reported to Kludi immediately. All intervention costs shall be paid by the ordering party, where they cannot be collected by the third party, and where the third-party action against execution has legitimately been taken. If the ordering party defers payment of the purchase price for his customer, he shall be obliged to retain the title to the ROT goods under the same conditions as Kludi has retained the title to the delivery of the ROT goods. The ordering party shall however not be obliged to also retain the title in relation to the receivables to which he will be entitled from his customer in future. Resale by the ordering party shall otherwise not be authorised.
(5) The receivables of the ordering party from the resale of the ROT goods are hereby already assigned to Kludi. These shall serve as security in the same manner as the ROT goods. Resale by the ordering party shall only be entitled and authorised where it is ensured that the receivables to which he is entitled as a result are transferred to Kludi.
(6) If the ROT goods are sold by the ordering party at an overall price together with other goods not supplied by Kludi, the receivables from the sale shall be assigned in the value of the invoice value of the respective ROT goods sold.
(7) If the receivables are recorded in an ongoing account, the ordering party hereby already assigns to Kludi a proportion of the balance, including the closing balance of the current account, corresponding to these receivables.
(8) The ordering party shall be authorised to collect the assigned receivables until such authorisation is revoked by Kludi. Kludi shall be entitled to revoke this authorisation if the ordering party fails to fulfil his payment obligations arising from the business relationship in a proper manner, or if circumstances become known that have the potential to significantly reduce the credit rating of the ordering party. Where the conditions are fulfilled for this right of revocation to be exercised, upon request from Kludi the ordering party shall immediately disclose the assigned receivables and the respective debtors, provide all information required for the collection of the receivables, provide Kludi with the associated documents, and notify the debtor of the assignment. Kludi themselves shall also be entitled to notify the debtor of the assignment. The ordering party shall not otherwise be entitled to assign the receivables, and in particular not as a result of the authorisation to collect thus granted.
(9) If the nominal value (invoice total of the goods or nominal total of the receivables entitlement) exceeds the securities held by Kludi for the secured receivables by a total of more than 10%, upon request from the ordering party Kludi shall be entitled to release securities of its choice.
(10) If Kludi asserts a retention of title, this shall only constitute withdrawal from the contract where this is explicitly stated by Kludi. The right of the ordering party to own the ROT goods shall lapse if he fails to fulfil his obligations arising from this or another contract.
Article 10 Use of image data, text, videos, and/or other print and digital media
(1) The use of images, image data, text, videos, and/or other media for which Kludi is entitled to industrial property rights, and in particular copyrights, exploitation rights, and rights of use, shall require the explicit prior approval of Kludi.
(2) In the event that explicit approval is granted under Para. 1, the following points shall be binding for any use of the images, image data, text, videos, and/or other media for which Kludi is entitled to industrial property rights, and in particular copyrights, exploitation rights, and rights of use, and also during the presentation of products from Kludi on internet pages of the user: a) The brand name "Kludi" must not be used in the domain name (URL) of the user. The same shall apply correspondingly to other brands in the Kludi Group, and variations thereon. b) In internet presentations and other media, only such photographs of Kludi products shall be used as are typical for the brand. Photos and silhouettes of the products used in internet presentations or other media shall be of at least the same standard as the official Kludi homepage or the print media used by Kludi. In this respect, Kludi reserves the right to make further specifications. c) The Kludi image brand / logo shall only be used in internet presentations and other media with the explicit approval of Kludi. Articles 23 and 24 of the German Trade Marks Act (MarkenG) remain unaffected. d) In the event of such approval being granted and the Kludi image brand / logo being used in internet presentations, it shall be linked to the website www.kludi.com. e) In the event of such approval being granted and the Kludi image brand / logo being used, only the original logo shall be used. It shall not be permitted for the user to modify the Kludi image brand / logo. The typefaces used on the Kludi homepage or in the print media used by Kludi shall also be used in the internet presentations of the user or in other media of the user, unless Kludi has explicitly approved another design. f) The user must be clearly identifiable as the copyright holder of his internet presentation or other media. It must be beyond doubt that the internet presentation or other media is the responsibility of the user and not of Kludi. The Kludi image brand / logo shall therefore be a maximum of 50% of the height of the logo of the user. g) Any further private or commercial use, or distribution of image data/files to third parties, shall only be permitted with the explicit prior approval of Kludi.
(3) The use of the data provided by Kludi shall exclusively be permitted with reference to Kludi using the following format: © KLUDI GmbH & Co. KG, Menden, Germany
(4) Any editing, modification, manipulation or distortion of the images and texts provided, e.g. rephotographing, graphic falsification, photocomposing, or alteration using electronic means, that exceed the scope of true-to-scale enlargement or reduction shall exclusively be permitted with the explicit approval of Kludi.
(5) In the event of a violation of the conditions of use described in this Article 10, Kludi retains the right to exclude the user from further use of the image data, and to revoke any approval already granted. All further statutory rights shall be retained.
Article 11 Compensation of damages / exclusion of liability
(1) Any claims by the ordering party for compensation of damage - for whatever legal reason - shall be excluded, subject to alternative provisions of these General Terms and Conditions of Supply. This shall not apply in the event of malicious non-disclosure of defects, in the event of non-compliance with a quality guarantee, in the event of death, injury or damage to health, and/or in the event of intentional or grossly negligent violation of obligations by Kludi, or in the event of a violation of obligations whose fulfilment is essential for the proper performance of the contract, and with which the ordering party is entitled to expect compliance (major contractual obligations / cardinal obligations). Claims under the German Product Liability Act shall also be unaffected by this limitation of liability. This limitation of liability shall apply equally to violations of obligations by the bodies and vicarious agents of Kludi.
(2) Vis-à-vis entrepreneurs, the claim for compensation of damages arising from violation of major contractual obligations shall, however, be limited to the foreseeable damage typical for the type of contract, in the absence of either intent or gross negligence, and in the absence of liability for death, injury or damage to health.
(3) The aforementioned limitation of liability shall apply equally to claims for the reimbursement of frustrated expenditure (Article 284 of the German Civil Code (BGB)). The above provision shall not constitute a change of the burden of proof to the disadvantage of the ordering party.
Article 12 Applicable law, jurisdiction, place of fulfilment
(1) Where the ordering party is a businessperson, the registered office of Kludi shall be the exclusive jurisdiction. Kludi shall however also be entitled to file claims against the ordering party at another statutory jurisdiction.
(2) The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods and the standard rules for conflicts of international private law, and in particular the Rome I Regulation.
(3) Where not otherwise agreed in the order confirmation, the place of fulfilment shall be the registered office of Kludi.
(4) If individual clauses of these General Terms and Conditions of Sale are or become ineffective, wholly or in part, this shall not affect the effectiveness of the remaining clauses and the remaining parts of such clauses.
Kludi GmbH & Co. KG, As of: January 2015