Terms and Conditions
General Sales Terms and Delivery Conditions of Express Küchen GmbH & Co. KG
Status October 1st, 2012
§ 1 Scope
(1) These General Sales Terms and Delivery Conditions shall only apply for agreements with companies in terms of Sec. 14 of the German Civil Code, legal entities of public law or public legal separate assets (“Customer”).
(2) The contractual relationship between the Customer and our company shall exclusively comply with the available General Sales Terms and Delivery Conditions. Deviating terms and conditions of the Customer shall herewith be expressly excluded. Only these terms and conditions shall also apply if our company carries out delivery to the client without any reservation fully aware of contradicting or deviating terms and conditions.
(3) Subject to modifications of our General Sales Terms and Delivery Conditions these contract terms shall also apply for future agreements between us and the Customer without requiring anew inclusion.
§ 2 Contractual Agreements
(1) Unless resulting differently from circumstances our offers shall only constitute requests to the Customer to send us definite tentative offers (“invitatio ad offerendum”). We are entitled to accept such tentative offers within three weeks. The Customer shall be bound to his contract during that time.
(2) When accepting orders we generally assume that the Customer is creditworthy and, in individual cases, reserve the right to depend the order acceptance on the status of a bank guarantee or liquidity commitment of the Customer’s bank amounting to the presumed invoice receivable. Should a lacking creditworthiness emerge after conclusion of the contract we are, after consultation with the customer, either entitled to withdraw from the contract or to request indemnification within one week.
(3) Tentative offers from our part shall be subject to confirmation unless the order confirmation does not state differently.
(4) All agreements made between our company and the Customer regarding the purpose of this contract shall be documented in writing.
(5) The Customer shall only rely on the validity of agreements made with employees without authority to represent the company if there is a written confirmation from the management.
§ 3 Prices
(1) Unless otherwise specified in the order confirmation our prices shall be considered net (without value-added tax) “ex works” plus value –added tax amounting to the tax rate valid at that time.
(2) Any taxes for deliveries and services incurring in the recipient country and other costs shall be borne by the Customer.
(3) Any discounts granted to the Customer shall only be granted if business transactions run smoothly. Discounts shall particularly be inapplicable if insolvency proceedings have been initiated with respect to the Customer’s assets, the Customer does not pay the receivables within the granted grace period or if legal proceeding are pending between the Customer and our company in connection with this contract.
§ 4 Terms of Payment
(1) The Customer shall compensate our payment claims immediately and without deduction. Deduction of any discount requires a special written agreement. We only accept bills of exchange and cheques will only be accepted if there is a special agreement and on account of performance.
(2) The Customer shall only be entitled to set-off rights if his counterclaims have been determined undisputed and accepted by us. If counterclaims have been determined disputed and effective, the customer shall not have any right of retention.
§ 5 Default
The Customer shall default – subject to a prior reminder – 15 days after payment date and invoice receipt or an equal request for payment.
§ 6 Right of Withdrawal
We are entitled to withdraw from the contract if there is a significant deterioration of Customer’s economic circumstances, especially if there are any distraint or other enforcement measures or if judicial or extra-judicial insolvency proceedings are opened.
§ 7 Customer‘s Liability for Damages
If our company has any damage claims instead of performances against the Customer according to legal regulations, such claim shall amount – subject to proof of higher damage caused by our company - 10 % across-the-board of the agreed purchase price. Customer
shall be entitled to proof that damage either did not arise or is significantly lower than the lump sum.
§ 8 Performances
In default of conflicting agreements, we shall be entitled to partial deliveries and services if such deviation remains within customary in trade tolerances or if the delivery item constitutes various, not mating pieces of furniture.
§ 9 Delivery Period
(1) Agreed delivery periods shall be considered approximate and subject to correct and punctual supply of ourselves.
(2) The compliance with our delivery commitment implies that the customer fulfils his obligations in good time and correctly.
(3) Delivery periods shall be extended in case of force majeure and in case of unexpected events beyond our control, even if such events have occurred at our works or at a sub-supplier around the time of the hindrance. This particularly implies: breakdown, strike or lockout on our site or at our suppliers, delayed delivery of important raw material. Proof of causal connection between the aforementioned cases and subsequent delivery cannot be requested.
(4) Should delivery not be possible for one month due to reasons mentioned in paragraphs 2 and 3 that are beyond control, we are entitled to cancel the agreement.
(5) The non-observance of delivery dates and periods in consideration of an extension according to paragraphs 2 and 3 shall entitle the customer to exercise his rights, especially the right of withdrawal, only when he granted us a proper respite of at least 14 days in writing.
(6) Any damage claims due to delay in delivery shall be limited to 15 % of the purchase price (net), unless the delay in delivery has been caused deliberately or grossly negligent.
(7) If the customer does not pick up the goods at the place of fulfilment within 14 days despite notification regarding the readiness for shipment, we are entitled to cancel the contract and to sell the goods to somebody else. Any warehouse costs incurring and the risk of storage shall be borne by the customer.
§ 10 Place of Performance, Transfer of Risk, Delivery
Unless agreed differently, delivery shall be carried out „ex works“(EXW), Melle according to Incoterms 2010.
§ 11 Target Quality of Goods
(1) The target quality of goods shall be in accordance with the contract. Unless expressly specified, we will not assume any guarantee independent of debts. This shall also apply for reference to DIN standards.
(2) Customary in trade deviations regarding execution, structure, colours and dimensions of the purchased goods that are in the nature of the materials used shall not entitle the customer to assert any warranty claims, if the value of the purchased item or its suitability for the general and specified in the agreement purpose is impaired insignificantly only.
§ 12 Requirement to make a complaint
Deliveries shall be checked by the Customer or by recipients specified by the Customer immediately upon receipt. After acceptance of the goods by the Customer or a party authorized by the Customer, any belated complaint because of the outside appearance of the delivery shall be excluded. Notices of other defects of the goods, if visible, can be sent within 3 workdays upon receipt and only within 3 workdays upon discovery. Any notices of defect shall be in writing.
§ 13 Warranty
(1) If the purchased item is defective and such defect has been notified in due time we will warrant by either replace the defective item by a perfect one or by rectifying the defects on the delivered goods (“Supplementary Performance”). Defective goods must only be returned to us with our prior approval. If goods are returned without our prior approval we are entitled to refuse to accept them.
(2) Should the supplementary performance fail twice, the Customer shall be entitled to reduce the agreed purchase price, to withdraw from the contract or – according to the requirements of § 14 – to claim damage for the delivery of defective goods.
(3) The statutory limitation for all warranty claims shall be 24 months. Replaced goods shall only be delivered in compliance with our warranty obligations for the original goods.
(4) Should, in case of resale of the goods to a consumer in terms of § 13 of the German Civil Code, the Customer be held liable by the consumer as consequence of any defect the Customer’s recourse shall be directed to us subject to possible damage claims that are subject to § 14 of these General Sales Terms and Delivery Conditions according to the legal regulations of Sec. 478, 479 of the German Civil Code. The same shall apply if the Customer is held liable by another distributor in the supply chain for warranty claims of a consumer.
§ 14 Liability
(1) Our liability shall generally be limited to damage that we or our auxiliary parties have brought about deliberately or gross negligent. For simple negligence we shall only be liable if life, body or health is violated and if material contractual obligations are infringed. A material contractual obligation is the obligation the fulfilment of which makes proper execution of the contract possible at all and on the observance of which the Customer may continuously trust.
(2) Should we be liable for a breach of duty due to negligence the amount of our liability shall be limited to damages that are typical for that kind of contracts and that were expected at the signing of the contract or during the breach of duty at the latest. This shall not apply if life, body or health is violated.
(3) Damage claims that do not imply any fault by rights shall remain unaffected by the provisions of paragraph (1) and paragraph (2).
§ 15 Retention of Title
(1) All deliveries shall be subject to retention of title. The title for the delivered goods shall remain with us until all receivables we are currently or in the future entitled to have been paid completely. The Customer shall revocably be allowed to process or resale the delivered goods within proper course of business. Should the Customer act contrary to the contract, we are entitled – especially in case of delayed payment – to assert our claims arising from the retention of title, particularly the redemption of goods delivered subject to retention of title, without prior cancellation of the respective sales contract.
(2) If the goods subject to retention of title are further processed to form a new movable object, such processing is generally carried out for us without any commitments resulting from it for us. We shall become owner of the new object. If the goods subject to retention of title are processed together with other object in our property we shall become co-owners of the new object proportional of the value of our goods subject to retention of title to the processed other subjects at the moment of processing. For the new movable object produced by processing, the same shall apply as for the purchase goods subject to retention to title.
(3) If the goods subject to retention of title are combined, mixed or mingled with goods we are not the owner of, we shall automatically become co-owner according to the legal regulations. If such mixing is carried out in a way that the Customer’s object is to be considered as main object it shall be agreed that the Customer transfers a proportional co-ownership to us. The Customer shall keep or store any subjects free of charge we are owners or co-owners of.
(4) In case of resale of the goods subject to retention of title the Customer shall already now assign any claims from buyers or third parties he is entitled to from the resale, independent of the fact if the delivered goods have been resold without or after further processing. We herewith accept the assignment. If we are co-owners of the resold good subject to retention of title the assignment of claim extends to the amount corresponding to our share of co-ownership. Should the Customer not be able to assign goods according to the afore mentioned provisions, especially as a consequence of a preceding assignment to any third party, resale shall not be effected within proper course of business in terms of this provision. The Customer shall be entitled to collect claims assigned to us until cancelled. Our right to collect the claim ourselves shall remain unaffected by that. We commit ourselves, though to not collect the claim as long as the Customer fulfils its obligation to pay arising from the collected revenues, does not get in default and especially no action for insolvency proceedings has been filed or if payment shave been stopped. Should this be the case, though, we can request the Customer discloses the assigned claims as well as the respective debtors, gives full particulars on the collection, hands over the corresponding documents and notifies the debtors (third parties) about the assignment. We are authorized to inform the debtor about the assignment ourselves.
(5) The Customer shall immediately inform us about any distraints or other interventions of any third party in the goods subject to retention to title or in the assigned claims and he shall forward us all necessary documents for possible proceedings. As far as any third party is unable to reimburse the judicial and extra-judicial costs, the Customer shall be liable for any losses arising from that.
(6) Should the Customer stop payments, apply and open judicial insolvency proceedings or extra-judicial settlement proceedings, his right to resale, use or integrate the goods subject to retention of title and the authorization to collect any assigned claims shall expire immediately. The collection authorisation shall also expire in case of cheque or bill protest.
(7) We are obliged to release securities we are entitled to at our choice as far as their estimated value exceeds 150 percent of the amount of the amounts receivable.
§ 16 Place of Fulfilment
Unless otherwise specified in this Terms and Conditions and in the order confirmation our place of business shall be place of fulfilment for all mutual obligations.
§ 17 Applicable Law
The law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods shall prevail for all legal relations between us and the Customer or in connection with this contract.
§ 18 Jurisdiction
Place of jurisdiction for any conflicts between our company and national customers arising from or in connection with this agreement shall be our place of business or, at our choice, the general or a special place of jurisdiction of the customer, if the customer is a tradesman, a legal entity of public law or public legal separate asset and if the dispute is neither related to a not-proprietary claim that is assigned to the local courts regardless of the value of the matter in dispute nor if an exclusive place of jurisdiction is justified. The same shall apply for disputes with persons who have moved their place of residence or usual residence outside the territory of the code of civil procedure after signing of the contract or whose place of residence or usual residence is unknown at the commencement of an action.
§ 19 Data Protection
According to Sec. 33 of the Federal Data Protection Act we point out that data in files in connection with the business relationship will be stored.
General conditions of purchase
1.1. These conditions of purchase apply only to companies within the meaning of § 310 Para. 1 of the BGB (German Civil Code).
1.2. These conditions of purchase apply for all deliveries and services to us, unless otherwise agreed.
1.3. Any supplier general terms and conditions of trade deviating from our conditions of purchase are hereby rejected. This also applies if the supplier refers to his terms and conditions in the course of the correspondence.
2. Contractual declarations
2.1. The supplier is obliged to accept our order within a period of 2 weeks after receipt.
2.2. We retain the rights of ownership and copyright for all documents provided to the supplier in connection with the order, such as calculations, drawings, etc. The supplier undertakes not to disclose or make these documents available to third parties unless we give the supplier our express written consent. These documents are to be used exclusively for production based on our order. They are to be returned to us immediately if the supplier has not accepted our order within the period specified in No. 2.1. If our order is accepted, the documents must be returned to us unsolicited at the latest when the order is processed.
2.3. Orders, statements and delivery schedules as well as changes/additions to these must be in writing.
3. Fees and terms of payment
3.1. A price stated in our order is binding. Unless otherwise agreed, prices are quoted delivered at place (DAP in accordance with Incoterms 2010) including packaging. This does not include sales tax.
3.2. For each delivery or service, an invoice must be submitted to the respective house address separately from the consignment. Invoices must meet the requirements of § 14 Para. 4 of the UStG (German Sales Tax Law), correspond with the wording in our order designations, and include our order number. The exact name of the ordering department and the date of the order are to be stated in the invoice text. The supplier is liable for all consequences arising from non-compliance with these obligations unless he can prove that he is not responsible for these.
3.3. The payment of the invoice will be made by transfer insofar as the delivered goods/services are no cause for complaint. The period for payment of the invoice begins as soon as the delivery or service has been completely accepted and the duly issued invoice has been received. If the start of the period falls between the 1st and the 15th of a month, payment will be made on the 1st of the following month; if the start of the period falls between the 16th and the last day of the month, the payment is made on the 16th of the following month, less 5% discount or 120 days after the start date of the period. If the payment date (16th or 1st) falls on a Friday or not on a bank working day, payment will generally made on the next banking day.
Invoices that do not meet the requirements of §14 Para. 4 UStG or are incorrect, do not form the basis for a due date and can be returned by us at any time. In the latter case, the due date will be based only upon receipt of the corrected invoice. In the event of faulty delivery or service, we shall be entitled to withhold the payment until due performance, without loss of rebates, discounts and similar payment concessions. All other claims remain unaffected. In the event of premature acceptance of deliveries, the period of payment will only commence on the date of the order or on receipt of the invoice - whichever is the later.
3.4. We are entitled to set-off and retention rights to the extent permitted by law.
4. Delivery time
4.1. The delivery date specified in the order is binding. A delivery before the specified delivery date is only permitted after we have issued prior written consent. Partial deliveries will not be accepted unless we have previously expressly approved them. The name of the person who granted this approval must be indicated on the delivery document.
4.2. The supplier is obligated to inform us immediately in writing if circumstances occur or become known which indicate that the agreed delivery time cannot be met. For the observance of the delivery time, the day of the receipt of the goods delivered at place applies.
4.3. If the supplier delays delivery, we shall be entitled to demand a lump-sum damage to the amount of 0.3% of the contractually agreed price per day from the onset of the delivery delay, but no more than 15% of the agreed price. The supplier remains at liberty to prove a lower level of damages. We are entitled, after fruitless expiry of a reasonable period of time, to demand damages instead of performance or to withdraw from the contract. If we require damages, the supplier has the right to prove to us that he is not responsible for a breach of duty.
5.1. We will inspect the goods within a reasonable period for any quality or quantity deviations. A complaint is deemed to be in good time provided if it is received by the supplier within a period of 7 working days, calculated from receipt of goods or - in the case of hidden defects - from discovery.
5.2. The Supplier warrants that the delivered goods, in addition to the requirements otherwise to be complied with, also comply with the legal and regulatory provisions applicable to their distribution and use. Our statutory warranty claims remain unconditional. We are entitled in any case to demand either rectification or delivery of a new item from the supplier - the choice being at our discretion. We expressly reserve the right to compensation, in particular the right to compensation instead of performance. We are entitled to remedy the defect ourselves at the supplier's expense if there is a risk of delay or special urgency.
5.3. Claims for defects - for whatever legal reason - become statute-barred 24 months after delivery. Longer statutory limitation periods remain unaffected.
6. Third-party rights
6.1. No third party property rights may be violated as a result the delivery and its utilization by us. We will inform the supplier of any claims made by third parties in this respect. We will not recognize such claims. In this respect, we authorize the supplier to take over the dispute with the third parties in and out of court.
6.2. In the event of infringement of third-party property rights, the supplier will at its own expense defend claims by third parties which third parties action against us for infringement of property rights based on the supplier's deliveries and services. The supplier exempts us from all claims arising from the use of such property rights.
6.3. If utilization of the delivery by us is impaired by existing third-party property rights, the supplier shall either acquire the appropriate license at its own expense or change or replace the affected parts of the delivery in such a way that the utilization of the delivery does not conflict with any third party property rights while at the same time complying with the contractual agreements.
7. Retention of title
7.1. If we provide parts to the supplier, we reserve the right of ownership. Processing or transformations are made by the supplier for us. If our reserved goods are processed with other objects not belonging to us, we acquire co-ownership of the new object in proportion to the value of our goods (purchase price plus sales tax) to the other processed objects at the time of processing.
7.2. If our reserved goods are mixed inseparably with other objects not belonging to us, we acquire co-ownership of the new object in proportion to the value of the reserved goods (purchase price plus sales tax) to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the supplier's item is to be regarded as the main item, it shall be deemed to have been agreed that the supplier assigns co-ownership pro rata to us; the supplier retains the sole ownership or co-ownership on our behalf.
7.3. We reserve ownership of all tools; the supplier is obliged to use the tools exclusively for the production of the goods ordered by us. The supplier is obliged to insure the tools belonging to us at replacement value against fire, water and theft at their own expense. The supplier is obliged to carry out any required maintenance and inspection work on our tools as well as all maintenance and repair work at his own expense in good time. He must notify us of any incidents immediately; If he fails to do so culpably, claims for damages remain unaffected.
7.4. Insofar as the security interests to which we are entitled in accordance with No. 7.1 and No. 7.2 exceed the purchase price of all our unpaid reserved goods by more than 10%, we are obliged to release the security interests at our discretion upon request by the suppliers.
8. Product liability
8.1. As far as the supplier is responsible for product damage, he is obligated to indemnify us in this respect from claims for damages by third parties on first request, if the cause originates in his domain or organization area and he is liable for the external relationship himself.
8.2. In this context, the supplier is also obliged to reimburse any expenses arising out of or in connection with a recall action carried out by us. We will inform the supplier as far as possible and reasonable regarding the content and extent of the recall measures to be carried out and give him the opportunity to comment. This does not affect any other statutory claims.
8.3. The supplier undertakes to maintain a product liability insurance with a coverage of € 10 million as a lump sum per personal injury / material damage. If we are entitled to further claims for damages, these remain unaffected. Upon request, the supplier must provide us with a copy of the valid insurance contract.
9. Assignment prohibition
The supplier is not entitled to assign his claims against us to third parties without our written consent; consent can only be denied for a good reason.
10. Replacement parts for discontinued series production items
The supplier undertakes to deliver spare parts for a period of 5 years at reasonable prices, even after discontinuation of the series delivery. With our approval, individual parts can also be supplied from ongoing production. The approval is only given if we do not incur additional expenses and if there is no deterioration in quality. We agree to a premature termination of the readiness to deliver after the expiration of 5 years, if a final stock is economically justifiable and the demand is foreseeable.
11. Tools, models, samples, etc.
Tools, forms, samples, models, profiles, drawings, test specifications, standard sheets, printed matter and gauges provided by us may not be passed on to third parties or used for any purpose other than the contractual purposes without our written consent. They must be secured against unauthorized inspection and use. Subject to further rights, we may demand their surrender if the supplier violates these obligations or if the business relationship regarding the respective contractual product has ended.
12. Confidentiality / data protection
12.1. The supplier is obliged to keep all illustrations, drawings, calculations and other documents and information strictly confidential. They may only be disclosed to third parties with our express consent. The secrecy obligation also applies after completion of this contract; it expires if and insofar as the manufacturing knowledge contained in the provided illustrations, drawings, calculations and other documents has become generally known.
12.2 In accordance with § 33 of the Federal Data Protection Act, we point out that data relating to the business relationship is stored in files.
13. Code of conduct
We only conduct business relationships with companies that are willing to adhere to the same ethical principles as apply to the Nolte Group. The supplier undertakes to comply with the "Nolte Group code of conduct" and to fulfil all obligations arising from this code of conduct. If he does not do so and we therefore lose a customer, the supplier will compensate us for the resulting damage.
14. Place of performance, jurisdiction and applicable law
14.1. The place of performance for our payments is our registered office.
14.2. The place of performance for deliveries by the supplier is our registered office or the place to which the supplier has to deliver in accordance with the content of our order. The supplier bears the risk of delivery until acceptance of the goods by us or our agent at the place of destination (DAP in accordance with Incoterms 2010).
14.3. The exclusive place of jurisdiction for all disputes between the supplier and us arising out of or in connection with this contract, depending on the amount in dispute, is our registered office or, at our discretion, the registered office of the supplier.
14.4. For all legal relationships between the supplier and us out of or in connection with our business relationship, the law of the Federal Republic of Germany excluding the UN sales law is decisive.