General terms and conditions
Otto Kind GmbH & Co KG
Conditions of sale
1. General - Scope
1.1 Our conditions of sale shall apply exclusively; we do not recognise any terms and conditions of the customer (buyer or purchaser) that conflict with or deviate from our conditions of sale unless we have expressly agreed to their validity. Our conditions of sale shall also apply to all future transactions between the parties as well as if we carry out the delivery to the purchaser without reservation in the knowledge of terms and conditions of the purchaser that are contrary to or deviate from our conditions of sale.
1.2 All agreements made between us and the purchaser for the purpose of executing a contract shall be set down in the contract or otherwise in writing.
1.3 Our conditions of sale shall only apply to companies, legal entities under public law and special public law funds within the meaning of § 310 (1) of the German Civil Code (BGB).
2. Offer - Offer documents - Conclusion of contract
2.1 Our offer and our quotations are subject to change unless expressly stated otherwise. They are to be understood as an invitation to the customer to place an order. The customer is bound to his order for three weeks - calculated from the date of receipt of the order. A contract is concluded if we have confirmed the order in writing within this period (order confirmation). If a change in governmental or official import conditions prevents delivery, we are entitled to withdraw from the contract. In such a case, we shall conclude a new contract with the customer adapted to the changed conditions at the customer's request.
2.2 Our order confirmation is generated by machine and does not require a signature to be effective.
2.3 We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents which are designated as "confidential". The purchaser must obtain our express written consent before passing them on to third parties. The drawings and other documents must be returned immediately on request if a contract is not concluded.
Sentences 1 to 3 shall apply mutatis mutandis to documents of the customer; however, these may be made accessible to such third parties to whom we have permissibly transferred deliveries or services.
2.4 The documents belonging to our offer such as samples, illustrations and drawings are only approximately authoritative unless they are expressly designated as binding.
2.5 Changes to orders and deadlines by the purchaser can only be taken into account free of charge within 2 days of receipt of the order confirmation. Changes after this deadline affect the production process; we check and confirm the possibility of such changes in each individual case. For changes that are still possible, we charge according to the following rates: Standard items:
• up to 5 days after order confirmation 5 % of the order value, at least 75 Euro
• from 6 days after order confirmation 15 % of the order value, at least 150 Euro
Special article:
• up to 5 days after order confirmation 5 % of the order value, at least 100 Euro
• from 6 days after order confirmation 15 % of the order value, at least 200 Euro
2.6 We are entitled to assign our claims against the customer to a third party.
3. Prices - Terms of payment
3.1 Our prices apply from a net order value of € 1000. Statutory value added tax is not included in our prices (also in those stated in these conditions of sale). It will be shown separately in the invoice at the statutory rate on the day of invoicing.
3.2 Unless otherwise agreed, our prices shall apply "ex works" excluding packaging, transport costs / freight, transport insurance requested by the customer as well as assembly and operating materials and customs; these shall be invoiced separately. If prices are agreed free domicile or free place of use ("unloading point"), they shall be understood to include packaging and transport costs / freight as well as assembly and operating materials but excluding any transport insurance and customs duty requested by the customer.
3.3 Flat-rate costs and shortage surcharge
If the net order value is less than € 1000, we will charge an additional flat-rate fee of € 30 per unloading point for delivery by forwarding agent. If the shipment is made by parcel service, the flat-rate cost is reduced to € 12. In the case of small orders with a net value of less than € 100, we charge a surcharge of € 50 in addition to the above-mentioned flat rate.
3.4 Delivery by forwarding agent - general:
-Impeccable access to the unloading point, immediate unloading by the purchaser and a dry and clean installation site are required. The local conditions must be known to us before delivery. For this purpose, a transport questionnaire prepared by us must be completed in full and returned to us by the customer no later than 1 week before delivery. -The unloading point must be freely accessible with the product and accessible for 1 person with the usual means of transport. If the delivery free unloading point is not possible with 1 person, the end buyer must provide the necessary additional assistants. -Basically, a truck without lifting platform is planned. If unloading on site without a lifting platform is not possible, the lifting platform variant can be booked on request and for a flat fee. A written order for this is required from the customer.
- Upon request and if the contact details are available, our logistics partners will notify the customer by telephone 1 - 3 days before delivery. The notification is an announcement of delivery. Changes of date and subsequent fixing of dates are no longer possible after handover of the goods to the respective carrier.
- For deliveries, we assume acceptance of the goods on a working day (Monday to Friday) of the specified calendar week between 07:00 and 17:00.
-For the loading/unloading of a complete truck, a period of 2 hours is foreseen, proportionally less for smaller loads.
3.5 Delivery by forwarding agent -prices-:
-We charge the customer for the actual costs incurred by the carrier. Special conditions apply for delivery to islands, which we will be happy to provide on request.
-We charge an additional fee for all of the following flat rates: We charge a flat rate of € 7 for the provision of a delivery receipt.
We charge a flat rate of € 12.50 for the notification.
Truck with lifting platform: Flat rate € 95.
For the return transport of undeliverable or refused consignments, as well as futile journeys, we charge the forwarding costs and a handling fee of € 25.
For deliveries on a daily fixed date, we charge a flat rate of € 50 for goods with a value of less than € 2000. For deliveries at a fixed time, we charge a flat rate of € 75.
For general cargo deliveries on the following day we charge: € 30
for deliveries until 12:00: € 45
for deliveries until 10:00: € 60 For loading/unloading (over 2 hours) we charge €120 per hour or part thereof. In case of reallocation (changed delivery address), we charge an additional lump sum of € 150 and the additionally charged freight costs of the carrier.
3.6 Taking back goods: The taking back of goods is generally only possible after prior consultation and approval on our part and is generally associated with costs. No return of custom-made products. Proportionate outward and return freight costs as well as individual handling and restocking costs on request. 30% inspection and restocking fee. 3.7 We reserve the right to change our prices appropriately if cost reductions or cost increases occur after conclusion of the contract, in particular due to collective wage agreements or material price changes.
3.8 Unless otherwise agreed, the purchase price shall be paid net (without deduction) within 30 days of the invoice date. In the event of default of payment by the purchaser, we shall be entitled to claim default interest at an annual rate of 9 percentage points above the base rate (§§ 247, 288 para. 2 BGB). If we are able to prove higher damages caused by default, we shall be entitled to claim such damages. However, the purchaser shall be entitled to prove to us that we have incurred no damage or significantly less damage as a result of the default in payment.
3.9 The purchaser shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by us. The customer shall only be entitled to assert rights of retention on the basis of counterclaims arising from the same legal relationship.
3.10 We shall only accept bills of exchange, cheques and other order papers by agreement and only on account of performance. The costs of collection, bank interest and charges shall be borne by the purchaser. Discount charges amounting to 9 percentage points per annum above the base interest rate (§§ 247, 288 para. 2 BGB) shall be charged for bills of exchange.
3.11 If the purchaser defaults on his payment obligation to us under this or any other contract or if we become aware of circumstances which give rise to the risk of a lack of solvency on the part of the purchaser, we shall be entitled to declare all claims under this and other contracts immediately due and payable. In such cases, we shall also be entitled, without prejudice to further claims, to demand advance payment or security for the invoice amount prior to delivery.
If the customer does not pay the due residual claim immediately, his right to use the contractual goods shall expire. We are then entitled to demand the immediate return of the goods - excluding any right of retention. The customer shall bear all costs incurred thereby. We are entitled to realise the contractual goods in the best possible way by private sale in order to fulfil the customer's payment obligation. The proceeds shall be offset against the total claim against the customer after deduction of the costs and any excess proceeds shall be paid to the customer.
3.12 The customer shall bear all fees, costs and expenses incurred in connection with any legally successful legal action against him outside Germany.
4. Delivery time - Partial deliveries
4.1 The start of the delivery period stated by us is subject to the clarification of all technical questions.
4.2 Compliance with our delivery obligation further presupposes the timely and proper fulfilment of the purchaser's obligations. We reserve the right to plead non-performance of the contract.
4.3 If the purchaser is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
4.4 If the conditions of section 4.3 are met, the risk of accidental loss or accidental deterioration of the contractual goods shall pass to the purchaser at the point in time at which the customer is in default of acceptance or debtor's delay.
4.5 We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date pursuant to § 376 of the German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the purchaser is entitled to claim that his interest in the further performance of the contract has ceased to exist.
4.6 We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is not due to an intentional or grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
4.7 We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, the liability for damages shall also be limited to the foreseeable, typically occurring damage.
4.8 If the delay in delivery is only due to the slightly negligent breach of a non-essential contractual obligation, our liability for damages shall be excluded.
4.9 If a delay in delivery is due to a breach of duty for which we are not responsible, which also does not consist of a defect in the contractual goods, the purchaser shall not be entitled to withdraw from the contract.
4.10 We are entitled to make partial deliveries which are to be invoiced separately.
5. Transfer of risk - packaging
5.1 Unless otherwise agreed, delivery is agreed "ex works". The risk of accidental perishing or accidental deterioration shall pass to the customer when the goods are made available for collection, at the latest when they are loaded onto the means of transport.
5.2 Transport packaging and all other packaging in accordance with the Packaging Act shall not be taken back, with the exception of circulating packaging. The purchaser shall dispose of the packaging at its own expense.
5.3 The amount of packaging is reduced to a minimum for reasons of environmental protection. As far as it is technically possible, unpacked delivery is made.
5.4 If and to the extent requested by the purchaser, we shall cover the delivery by transport insurance; the costs incurred in this respect shall be borne by the purchaser.
6. Claims for defects of the purchaser, standard of fault and liability regulation
6.1 The rights of the purchaser in the event of defects presuppose that the purchaser has duly complied with its obligations to inspect and give notice of defects pursuant to § 377 of the German Commercial Code (HGB).
6.2 The information in our product and service descriptions, in our catalogues and other advertising statements shall only constitute a quality pursuant to § 434 (1) sentence 3 of the German Civil Code (BGB) insofar as it refers to our contractual goods and reflect their characteristics.
6.3 We shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the contractual goods were taken to a place other than the place of performance.
6.4 If the supplementary performance demanded by the purchaser pursuant to § 439 BGB (German Civil Code) fails without the existence of an intentional or grossly negligent breach of duty for which we are responsible, the purchaser shall be entitled, at its option, to withdraw from the contract or to claim a corresponding reduction of the purchase price (abatement).
6.5 We shall be liable in accordance with the statutory provisions if the purchaser asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents, or the assumption of a guarantee or a procurement risk. We shall also be liable in accordance with the statutory provisions for injury to life, limb or health. Furthermore, we are liable in accordance with the mandatory provisions of the Product Liability Act.
6.6 In the event of a merely slightly negligent breach of significant obligations, our liability for damages shall be limited to the foreseeable, typically occurring damage.
6.7 Apart from that, our liability for damages is excluded - regardless of the legal nature of the asserted claim.
6.8 Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
6.9 The purchaser's claims for subsequent performance (removal of the defect or delivery of a defect-free item), reduction (reduction of the purchase price) and withdrawal from the contract in the event of defects in the contractual goods shall become statute-barred after 12 months, calculated from the transfer of risk, but no later than from the delivery of the contractual goods. The purchaser's claims for damages shall become statute-barred after 24 months. Otherwise, the regular limitation period of § 195 BGB shall apply.
7. Retention of title
7.1 We reserve title to the contractual goods until receipt of all payments under the purchase contract with the purchaser. Insofar as we agree with the purchaser on payment of the purchase price debt on the basis of the cheque/bill of exchange procedure, the reservation shall also extend to the encashment by the purchaser of the bills of exchange accepted by us and shall not expire through the crediting of the cheques received by us. In the event the purchaser acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the contractual goods. The taking back of the contractual goods by us does not constitute a withdrawal from the contract unless we have expressly declared this in writing. The seizure of the contractual goods by us shall always constitute a withdrawal from the contract. After taking back the contractual goods, we shall be entitled to realise them. The proceeds of realisation shall be credited against the purchaser's liabilities - less reasonable realisation costs.
7.2 The purchaser is obliged to treat the contractual goods with care; in particular, he is obliged to insure them adequately at replacement value against fire, water and theft at his own expense. If maintenance and inspection work is required, the purchaser must carry this out in good time at its own expense.
7.3 In the event of seizures or other interventions by third parties, the purchaser must inform us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the purchaser shall be liable for the loss incurred by us.
7.4 The purchaser is entitled to resell the contractual goods in the ordinary course of business; however, he already now assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim, which accrue to him from the resale against his customers or third parties, irrespective of whether the contractual goods have been resold without or after processing. The purchaser shall remain authorised to collect this claim until revocation even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the purchaser meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the purchaser discloses to us the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
7.5 The processing or transformation of the contract goods by the purchaser shall always be carried out for us. If the contract goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the contract goods (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the contractual goods delivered subject to reservation of title.
7.6 If the contract goods are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the contract goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the purchaser's item is to be regarded as the main item, it shall be deemed agreed that the purchaser transfers co-ownership to us on a pro rata basis. The purchaser shall hold the sole ownership or co-ownership thus created in safe custody for us.
7.7 The purchaser also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the contractual goods with a property.
7.8 We undertake to release the securities to which we are entitled at the request of the purchaser to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released is incumbent on us.
8. Data processing
We are entitled to use the data received about the purchaser in connection with the business relationship for our business purposes in accordance with the Data Protection Basic Regulation.
9. Applicable law - Written form - Severability clause
9.1 The law of the Federal Republic of Germany shall apply exclusively. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
9.2 All contractual agreements and supplements to these terms and conditions must be in writing to be effective.
9.3 Should individual provisions of these Terms and Conditions or of accompanying agreements be invalid in whole or in part, this shall not affect the validity of the remaining provisions or the remaining agreements.
10. Place of jurisdiction - Place of performance
10.1 If the purchaser is a registered trader, our registered office shall be the place of jurisdiction. However, we are also entitled to sue the purchaser at the court responsible for his place of business.
10.2 Unless otherwise stated in our order confirmation, our place of business shall be the place of performance.
Gummersbach, 25.10.2022