General terms and conditions
of the company:
KP Glas GmbH & Co KG
– AGBs (German version)
– GTC (English version)
Deliveries and services of the company KP Glas GmbH & Co. KG, hereinafter referred to as the supplier, to customers, hereinafter referred to as the orderer or buyer, are exclusively subject to the following terms and conditions.
1.1 These Terms and Conditions of Delivery shall form an integral part of all contracts between the Supplier and the Customer/Buyer, , unless expressly agreed otherwise in writing. Any terms and conditions of the customer that conflict with or deviate from these terms and conditions shall be excluded even if we do not expressly object to such terms and conditions and perform the service.
1.2 The applicability of these GTC shall be agreed with the Purchaser upon the first conclusion of the contract, at the latest upon acceptance of the goods these GTC shall be deemed accepted. They shall also apply to future transactions of the same kind with the Purchaser until the Supplier has informed the Purchaser of new GTC or has released them online in an updated form.
2. OFFER AND CONCLUSION OF CONTRACT
2.1 These GTC shall become an integral part of the contract. Subsidiary agreements, amendments and supplements shall only be effective if they have been agreed in writing.
2.2 Offers made by the Supplier are always subject to change and non-binding and do not obligate the Supplier to conclude a contract. The validity for offers generally expires after two weeks. Quotations must then be requested again.
2.3 An order is only accepted insofar as it has been confirmed in writing by the Supplier.
2.4 The type and scope of the service shall be determined exclusively by the order confirmation.
2.5 Quantities stated in the order acceptance shall be complied with by the Supplier as far as possible. Deviations within the limits of what is customary in the trade are permitted, provided they do not exceed 10%.
2.6 Data on weights, contents, dimensions and other are average values. Deviations that are customary in the industry and technically unavoidable are permissible.
2.7 Product color definitions are made on the basis of the standard specifications of the respective producer (usually according to standard sheet “T 102” of BV Glas) and, if necessary, are to be checked by the customer before the order is placed. Product representations on the supplier’s homepage may distort the product colors and shapes.
2.8 The delivery date/price stated by KP Glas in the order confirmation is an expected delivery date/price and is subject to proper and timely self-delivery by our supplier at the originally stated prices and dates. Exceptional circumstances, for example due to political or economic crises, can lead to delays or, in the worst case, to delivery failures and release KP Glas from the obligation to deliver.
3. PRICES AND PAYMENT
3.1 The Supplier’s sales prices are subject to change without notice net and, unless otherwise agreed in writing, shall be understood as prices in Euro excluding packaging and valid ex works. Loading at the factory is included.
3.2 Packaging and transport costs shall be charged separately.
3.3 The terms of payment shall be stated either in the offer, the order confirmation or in the invoice. In the event of any discrepancies, the invoice shall prevail. The deduction of a cash discount is only permissible with a special written agreement.
3.4 The Supplier reserves the right to make reasonable price changes after conclusion of the contract, e.g. due to increased costs or prices of our suppliers/subcontractors, e.g. due to increased raw material, energy, wage and distribution costs. This also applies to existing fixed price agreements. If an agreement is not reached within six weeks, either party may withdraw from the part of the contract not yet performed by delivery, provided that there is no obligation on the part of the supplier to accept delivery from its supplier/subcontractor. See also point 2.8 for further details.
3.5 The terms of payment are to be taken from the Supplier’s order confirmation. Unless otherwise agreed in writing, our invoices are payable within 14 days without deduction after the invoice date. First and second deliveries are made only against prepayment. A subsequent change in the terms of payment requires the written consent of the Supplier.
3.6 Payments shall be made without deduction free Supplier’s payment office. In the event of default, the supplier is entitled to demand interest on arrears in the amount of 5% above the discount rate of the Deutsche Bundesbank from the purchaser, unless the purchaser proves a lower damage. The right to claim further and higher damages caused by default is reserved.
3.7 The Buyer shall only be entitled to set-off if its counterclaims have been legally established or acknowledged by us and the counterclaims do not relate to claims for manufacture or rectification of defects. The purchaser may only exercise a right of retention insofar as the claims result from the same contractual relationship.
3.8 Only undisputed or legally established mutual, similar and due claims can be offset by written declaration to the other partner.
3.9 In the event of non-compliance with the terms of payment or if the credit unworthiness of the Purchaser becomes known, all claims against the Purchaser shall become due. Upon request, the Buyer shall in this case be obliged to make immediate advance payments to the Supplier for any outstanding deliveries. Furthermore, in this case the supplier is entitled to withdraw from the contract after setting a deadline or to claim damages for non-performance.
3.10 Checks and bills of exchange shall only be accepted on account of payment against reimbursement of the customary bank charges. The supplier is not responsible for the timely presentation of checks and bills of exchange. The Purchaser’s invocation of Art. 53 par. 1 of the Bills of Exchange Act is excluded.
3.11 Telephone information about prices, delivery possibilities, etc. shall only become binding after written confirmation. When ordering by telephone, the supplier is not responsible for hearing errors and misunderstandings.
4. DELIVERY TIME, ACCEPTANCE AND CALL-OFF CONTRACTS
4.1. Dates and deadlines for deliveries are only binding if agreed in writing. The delivery period begins with the agreed date documented in the order confirmation, however not before the provision of any permits or documents to be procured by the customer.
4.2 The Purchaser is obliged to accept goods delivered on time and must, for its part, create all the necessary conditions for this in good time.
4.3 Delivered goods shall be accepted by the Purchaser even if they show insignificant complaints (e.g. cosmetic defects according to ATLB).
4.4 Information on the delivery period shall be subject to timely and proper delivery by our suppliers. Operational disruptions, traffic disruptions, lockouts and other cases of force majeure in connection with our own supply shall release the Supplier from compliance with its delivery obligation for their duration. The Supplier shall notify the Purchaser immediately upon the occurrence of such events. For the duration of such hindrance, the Purchaser shall also be released from its contractual obligations, in particular the payment of the purchase price. If the delay is unreasonable for the Purchaser, the latter may withdraw from the contract by written declaration after a reasonable period to be set by him.
4.5 Information on delivery times for new productions is always non-binding, depending on technical necessities. Any notices given by the Supplier in this respect shall not be deemed to be a contractual warranty.
4.6 Deliveries are permitted up to 4 weeks before the agreed delivery date.
4.7 The delivery period shall be extended accordingly in the event of labor disputes (in particular strikes and lockouts) or the occurrence of unforeseen obstacles beyond the control of the supplier , insofar as completion or delivery are demonstrably delayed as a result. The same shall apply to delays at subcontractors.
4.8 If the Purchaser is in default of acceptance or culpably violates other duties to cooperate or if shipment is delayed at the request of the Purchaser, the Supplier’s proven expenses resulting therefrom shall be invoiced to the Purchaser, subject to special agreements, by way of storage costs or otherwise, but at least 10% of the invoice amount per month. The same procedure is followed for agreed self-collection . The Supplier shall be entitled to set the Purchaser a deadline for acceptance of the delivery or for collection by the Purchaser and to withdraw from the contract after threatening refusal. The Supplier shall be entitled to claim any resulting damage from the Purchaser.
4.9 In the case of call-off contracts, contracts for a fixed quantity of goods, the acceptance of which takes place within a certain period at the request of the Purchaser – if necessary in partial quantities – the Supplier shall be entitled, but not obliged, to deliver quantities not accepted in due time.
4.10 In the case of call-off contracts, each delivery shall be deemed to be a separate transaction with regard to the obligation to inspect and give notice of defects as well as the price adjustment. Defects in a partial delivery do not entitle the customer to withdraw from the entire contract.
4.11 If, in the case of call-off contracts, the Purchaser defaults on the acceptance of partial or total quantities of goods, the Supplier shall be entitled to store the goods for the account and at the risk of the Purchaser and to invoice the Purchaser for the costs of storage as well as a reasonable compensation for expenses. Optionally, in the event of default in acceptance, the Supplier shall also be entitled to withdraw from the contract and/or claim damages after expiry of a reasonable grace period set by the Supplier. In this context, the Supplier shall be entitled to the rights arising from default in acceptance even if the Purchaser breaches the obligation to take delivery with respect to individual partial quantities.
5. PACKAGING, SHIPPING, TRANSFER OF RISK
5.1 The choice of packaging for the goods shall be made by the Supplier (customary).
5.2 If the goods are delivered on loan packaging such as pallets, intermediate layers, etc., this packaging shall remain the property of the Supplier and shall be treated with care by the Purchaser. Disposable packaging such as cardboard, foil, etc. must be disposed of by the customer.
5.3 The return of the returnable packaging shall be at the expense and risk of the Purchaser, unless otherwise agreed in writing.
5.4 The Customer is obliged to return the returnable packaging within 90 days from the date of receipt of the delivery according to the agreement. If the Purchaser fails to comply with this obligation, or if the loaned packaging is damaged, the Supplier shall be entitled to invoice the Purchaser for the costs of pallets and intermediate layers as good as new, even without a reminder.
5.5 The risk shall pass to the Purchaser upon dispatch of the delivery items or dispatch of the first partial delivery . This shall also apply if the Supplier has assumed further services such as delivery or installation.
5.6 If the shipment is delayed due to circumstances for which the Purchaser is responsible, the risk shall pass to the Purchaser as of the notification of readiness for shipment.
5.7 Delivered goods shall be accepted without prejudice to the Purchaser’s warranty claims according to these GTCs.
5.8 The Supplier shall be entitled to make partial deliveries, provided that these are reasonable for the Purchaser and appear advantageous for a speedy processing.
6. RETENTION OF TITLE, ASSIGNMENT OF RECEIVABLES
6.1 The Supplier shall retain title to the delivery item until all claims arising from the business relationship with the Purchaser have been settled. The retention of title also extends to the acknowledged balance, insofar as claims against the purchaser are booked to current invoices . The Supplier shall be entitled to take back the delivery if the Purchaser acts in breach of the contract.
6.2 Unless the provisions of the Abzahlungsgesetz apply, the taking back of the delivery item does not constitute a withdrawal from the contract, unless the Supplier has expressly declared this in writing . The seizure of the delivery item always constitutes a withdrawal from the contract. In the event of seizure or other interventions by third parties, the Purchaser shall notify the Supplier without delay . If the costs cannot be recovered otherwise, the Purchaser shall be liable for any loss incurred by the Supplier.
6.3 The Purchaser shall be entitled to sell the delivery item in the ordinary course of business; However, he already now assigns to the supplier all claims in the amount of the final invoice amount including tax arising from the resale of the goods to his customers or to third parties. third parties, irrespective of whether the delivery item was delivered without or after processing. has been sold on. The customer is authorized to collect this claim even after its assignment. The authority of the supplier to collect the claim himself remains unaffected by this ; however, the supplier undertakes not to collect the claim as long as the purchaser duly fulfills his payment obligations and is not in default of payment.
If the Purchaser does not duly meet its payment obligations or if it is in default of payment , the Supplier may demand that the Purchaser discloses to it the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and notifies the debtors or third parties of the assignment.
6.4 The processing or transformation of the delivery item by the Purchaser shall always be carried out for the Supplier. If the delivery item is processed with other items not belonging to the supplier , the supplier shall acquire co-ownership of the new item in the ratio of the value of the delivery item to the other processed items at the time of processing. For the rest, the same shall apply to the item created by the processing as to the reserved goods.
6.5 The Supplier undertakes to release the securities to which it is entitled at the request of the Purchaser to the extent that their value exceeds the claims to be secured, insofar as these have not yet been settled , by more than 20%.
6.6 Subject to the Supplier’s consent, the Purchaser is prohibited from assigning the Purchaser’s claims against Purchasers to third parties .
7.1 Unless separately agreed, the ATLB/STLB of the respective manufacturer shall apply on the basis of the general European manufacturing guidelines and statutory requirements in their most recent version.
7.2 Warranty claims of the Purchaser shall require that the Purchaser has duly complied with its obligations to inspect the goods and to give notice of defects pursuant to § 377 of the German Commercial Code (HGB). Defects must be documented in writing.
7.3 The goods shall be deemed accepted and taken over as customary in the trade upon their application or use. We shall not be liable for any damage arising in connection with the use or processing of the delivered goods.
7.4 The Supplier shall not be liable for the delivered goods being suitable for the particular purposes envisaged by the Purchaser, unless these contents have become part of the contract. In this respect, any warranty claims, including claims for reduction, are excluded.
7.5 Insofar as there is a defect for which the Supplier is responsible, the Supplier shall be entitled, at the Supplier’s option, to remedy the defect, to provide a replacement (in each case carriage paid), whereby the Purchaser shall be entitled, if the remedy or replacement fails, to reduce the purchase price or, at its option, to withdraw from the contract. Offsetting from other transactions is not permitted. Replaced parts become the property of the supplier.
7.6 However, a claim for complaint can only be asserted if the defect loss amounts to more than 0.25% of the total order quantity. In the case of material defects, also only to the extent that the complaint is recognized by the supplier’s suppliers/sub-suppliers.
7.7 In the case of custom-made products, excess or short quantities must be accepted as delivered to the Supplier depending on the total production period.
7.8 Warranty claims shall become statute-barred after 12 months from delivery. No warranty shall be provided for used items, except for any liability for damages in accordance with § 10 of these GTC.
8. DEFAULT; CONDUCT ENDANGERING THE CONTRACT
8.1. In the event of default in payment by the Purchaser, the Supplier shall be entitled to take back the Retained Goods after issuing a reminder and warning of refusal , and the Purchaser shall be obliged to surrender the Retained Goods.
8.2. The Supplier shall be entitled to prohibit the resale or further use of the goods in case of default of payment . For this purpose, the Supplier may also enter the Purchaser’s premises and take away the goods there. This removal is not a withdrawal from the contract, subject to a written declaration.
8.3. In the event of default on the part of the Purchaser, the Supplier shall be entitled to demand immediate payment of any deferred liabilities from other transactions. Likewise, bills of exchange accepted on account of payment may be made payable irrespective of their term.
8.4. In the event of default, the Supplier shall be entitled to demand advance payment for outstanding deliveries.
8.5. The aforementioned rights of the Supplier may only be waived, for example, by means of a bank guarantee , if this has been agreed with the Supplier in writing.
9.1 The Supplier shall be liable to the Purchaser for damages due to breach of contractual and non-contractual obligations only in case of intent and gross negligence. Indirect damages will not be compensated subject to the following provisions.
9.2 The limitation of liability shall not apply if the damage has been caused by a serious organizational fault of the Supplier. The Supplier shall be liable to the full amount subject to clause 9.4 in the event of gross negligence on the part of the managing directors and executive employees.
9.3 The Supplier shall be liable for any culpable breach of material contractual obligations.
9.4 Liability shall be limited to compensation for the foreseeable damage typical for the contract.
9.5 Liability under the Product Liability Act shall remain unaffected. Insofar as the liability of the Supplier is excluded or limited, this shall also apply to the personal liability of its employees, representatives and vicarious agents.
9.6 The limitation of liability shall not apply to damages caused by the Supplier, its legal representatives or vicarious agents resulting from injury to life, body or health. Furthermore, it shall not apply to claims under the Product Liability Act and in the event of culpable breach of material contractual obligations; in the latter case, the liability of the Supplier in the event of slight and average negligence shall be limited to the reasonably foreseeable damage typical for the contract.
10. PROPERTY RIGHTS
If the customer provides drawings, samples or models, he shall guarantee that these are free of copyrights, industrial property rights or other rights of third parties. The Purchaser shall indemnify the Supplier against any such claims. Compensation for any damage incurred must be paid by the customer himself.
11. SECRECY, DOCUMENTS PROVIDED AND INTELLECTUAL PROPERTY
11.1 Offers and other information prepared by the Supplier are confidential and intended only for the intended recipient. The transfer to third parties requires the express written consent of the supplier. The contracting parties undertake to treat as business secrets all commercial and technical details which are not in the public domain and which become known to them as a result of the business relationship. Drawings, models, templates and similar objects may not be handed over or otherwise made accessible to third parties without authorization .
11.2 The Supplier reserves the property rights and copyrights to all documents provided to the Purchaser in connection with the placing of the order. These may not be made accessible to third parties unless the Supplier grants the Purchaser express written consent to do so.
11.3 All rights and claims to quality and production data, molds, tools, designs, models, drawings as well as to all other materials and information received by the Buyer from the Supplier, including all related intellectual property rights, shall remain with the Supplier. The latter shall be entitled to all intellectual property rights as well as to all rights to all work results arising in the course of the performance of a contract.
12. WARRANTED PROPERTIES
Properties are only warranted if the supplier expressly describes them in writing as warranted .
13. PROOF OF EXPORT, CONFIRMATION OF ARRIVAL
13.1 If the Customer collects the goods itself or has them collected by an agent and transports or dispatches them to a third country outside the customs territory of the European Union, the Customer shall provide the Supplier with the export documents required for tax purposes. If such evidence is not submitted to in a timely manner, the Customer shall pay the VAT rate applicable to deliveries within the Federal Republic of Germany from the invoice amount.
13.2 In the event that the Customer collects the goods himself or has them collected by a third party and sends or transports them to another EU member state, the Customer shall provide the confirmation of arrival required for tax purposes. If no timely proof is provided by the Purchaser, the Purchaser shall pay the VAT rate applicable to deliveries within the Federal Republic of Germany from the invoice amount.
14. TERMINATION, RESCISSION, ASSIGNMENT
14.1. If the Purchaser terminates or withdraws from a contract without the Supplier being responsible for the termination or withdrawal through culpable breach of contract, shall be entitled to the Supplier’s agreed remuneration for the performance of the contract less the expenses saved. The claim for compensation shall not apply if the Purchaser proves that the Supplier has sold the goods elsewhere or has maliciously failed to sell them elsewhere. In this case, the supplier is only entitled to the difference between the lost and the obtained or maliciously not obtained profit.
14.2 The Supplier shall be entitled to transfer its contractual rights, in particular payment claims, in whole or in part to third parties, including reputable financing providers, at any time without prior notice to the Purchaser and to disclose the contractual information necessary for this purpose to the transferee and any third parties having a legal interest in the transferee or in the transfer, to the extent necessary for the transfer.
14.3 The Buyer may not transfer the rights and obligations arising from the business relationship without the consent of the Supplier.
15. APPLICABLE LAW, PLACE OF JURISDICTION, MISCELLANEOUS
15.1. In the event of cessation of payments by one of the contracting parties or application for insolvency proceedings against the assets of one of the contracting parties, the other party shall be entitled to withdraw from the contract for the unfulfilled part. The rights of the insolvency administrator shall remain unaffected.
15.2. The place of performance for all obligations and the place of jurisdiction shall be the registered office of the Supplier. The Supplier shall be entitled to bring an action at the Purchaser’s place of business.
15.3. This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
15.4. All agreements that change these general terms and conditions must be agreed in writing to be effective . The waiver of the written form requirement requires a written agreement.
15.5 The Supplier points out that these GTC shall apply as of 01.07.2021 and previous provisions shall lose their effectiveness as of this date, unless otherwise agreed in writing.
16. SEVERABILITY CLAUSE, PARTIAL INVALIDITY
If individual provisions of these GTC should be invalid or contradictory or if these GTC contain loopholes, this shall not affect the validity of the remaining provisions. In place of these invalid provisions, the contracting parties undertake to work towards the adoption of a resolution and inclusion in these Articles of Association of those valid provisions which most closely reflect the meaning and purpose of the invalid provisions. In the event of any gaps, the contracting parties undertake to work towards the adoption of a resolution and inclusion in the GTC of those provisions which correspond to what would have been agreed in accordance with the spirit and purpose of this contract had the matter been considered from the outset.
Status: March 2022; KP Glas GmbH & Co. KG