§ 1 Scope
- The following sales conditions apply to the contracts concluded between König GmbH Kunststoffprodukte (“König GmbH”) and their Customers governing the sales and delivery of goods and other services. These GTC apply only in regard to commercial consumers as defined by § 14 German Civil Code (BGB).
- These general terms and conditions of business shall also apply to all future business relationships between König GmbH and the Customer. The respectively valid version at the time of conclusion of the contract shall be decisive.
- These general terms and conditions of business shall apply exclusively. We do not recognise terms and conditions of the contracting partner which deviate from or conflict with these terms and conditions of sale and delivery. Our terms and conditions of business shall also apply if we perform delivery without reservation in the knowledge of conflicting or deviating terms and conditions of the contracting partner.
§ 2 Offer, conclusion, prices
- Offers shall always be subject to confirmation. The conclusion of contracts shall require written form. The respective prices of König GmbH at the time of conclusion of the contract shall apply.
- In case of contracts with a term of more than 4 months, König GmbH shall reserve the right to adjust the price as a result of cost increases in the manufacturing process which occur following conclusion of the agreement and to the amount of the said cost increases. Cost increases for which König GmbH is responsible or which result from circumstances which König GmbH has caused itself shall be excluded from the above provision. Cost reductions which occur following conclusion of the contract and during the manufacturing process shall be passed on fully to the Customer by König GmbH in case of contracts with a term of more than 4 months.
- If the offer in question does not show legal VAT, it is a net price to which the legal VAT must be added.
- Quotations shall always be non-binding.
- The offer calculations are based on the values or the inquiry or the information of the Customer.
- The conclusion of the contract shall take place subject to the provision that we shall not carry out deliveries either in part or in full, in the event that supplies fail to match specifications or rules through no fault of our own. This applies only if the non-delivery is not the fault of König GmbH and they have exercised due diligence by concluding a specific cover transaction with the supplier by . König GmbH will make every possible effort to procure the goods. Otherwise, the consideration will be reimbursed immediately. If the goods are not available in part or at all, the Customer will be informed immediately.
§ 3 Services of König GmbH / Transfer of risk
- The prices of König GmbH do not include transport costs, unless an agreement to the contrary has been concluded with the Customer.Transport insurance is concluded only upon the instructions and at the cost of the Customer.
- The risk of accidental destruction and damage of the goods is transferred to the Customer as soon as they or their delegates are handed the goods, or, in the event of sales shipment, when goods are delivered to the carrier, the freight forwarder or another person appointed to ship.
- If the goods cannot be sent or accepted on the envisaged deadline after they have been provided or made available due to circumstances for which the Customer is responsible, the risk is transferred to the Customer at the point in time at which the Customer received the notification of readiness for shipping. In such a case, König GmbH shall be obliged to effect the insurance requested by the Customer at the expense of the latter. Storage costs shall be borne by the Customer.
- Should König GmbH agree to retake possession of the goods delivered by it as a gesture of goodwill, the goods must be in a flawless condition. For processing, the Customer will be invoiced for costs in the amount of 10% of the invoice value. In any case, the Customer shall bear the risk for loss of or damage to the goods until the goods reach the seller. Freight costs shall be borne by the Customer. § 3 Item 5 does not apply if the goods delivered by König GmbH are defective.
§ 4 Delivery deadlines, impossibility of delivery, partial delivery
- The dates and deadlines named by König GmbH shall not be binding unless expressly agreed otherwise.
- Regarding the reservation of proper self-delivery, reference is made to § 2 (6) of these GTC.
- In case of force majeure, König GmbH shall be entitled to postpone the delivery for the duration of the hindrance and a subsequent start up period. Force majeure includes strikes, operational interruptions of König GmbH or their upstream supplier, and unforeseeable events, provided König GmbH is not responsible for them.
- In case of individually manufactured goods with surplus or short deliveries, König GmbH shall have an entitlement of up to 10% of the agreed delivery quantity.
- König GmbH is entitled to make partial deliveries and partial performances if these are acceptable to the Customer under consideration of their interests. This has no bearing on the contract contents, especially on the performance owed by König GmbH or any agreed period of performance. The Customer will not incur any additional costs because of partial delivery.
§ 5 Payment conditions / Default in payment
- Payments shall be due immediately, without any discount.
- König GmbH shall expressly reserve the right to reject bills of exchange. The acceptance shall only take place on account of performance. Discount and exchange fees are to be borne by the Customer and are due immediately. Bills of exchange will be accepted with no assumption of liability for proper presentation and protest.
- If the Customer does not comply with their payment obligations within 14 days after they become due, they enter into arrears even if they do not receive an additional request to provide performance. A payment shall not be deemed to have been made until the amount is at the disposal of König GmbH. In case of exceeding the payment deadline, König GmbH shall, regardless of other rights, be entitled to charge default interest in accordance with § 288 BGB in the respectively valid version. In case of the provision of proof, higher damages can also be asserted.
- The Customer has the right to offset only if their counterclaims have been upheld or recognised by a court of law, or are not disputed by König GmbH. The Customer’s right to offset with contractual and other claims arising from the initiation or implementation of this contractual relationship remains unaffacted thereby. The Customer can only exercise their right of retention if their counterclaim is based on the same contractual relationship.
- Payments from the Customer will be cleared in the order of §§ 366 (2), 367 German Civil Code (BGB).
- Should König GmbH become aware following conclusion of the contract that its payment entitlement is endangered due to inability to pay on the part of the Customer, it shall be entitled to the rights set out in § 321 BGB if it is obliged to provide pre-performance (defence of uncertainty). The defence of uncertainty extends to all further outstanding deliveries and performances arising from the business relationship with the Customer if König GmbH is obliged to provide pre-performance. Claims under the ongoing business relationship can be made due by König GmbH.
§ 6 Claims for defects
- The Customer is entitled to a statutory warranty right which is modified in accordance with §§ 6 and 7 of these GTC.
- In respect of defects to the delivered contractual objects, König GmbH shall provide either subsequent performance through improvement or replacement delivery, depending on its choice.
- If subsequent performance fails, the Customer is entitled to withdraw from the contract or reduce the purchase price, without prejudice to any existing claim for damage compensation. As a rule, at least two attempts to rectify faults are deemed acceptable for the Customer. In consideration of mutual interests, the Customer is not entitled to withdraw for insignificant defects. Instead of compensation in place of performance, the Customer can demand the replacement of futile expenditures, within the bounds of § 284 BGB, which he has made (and was able to make reasonably) in reliance upon the receipt of the goods. If the Customer chooses damage compensation instead of performance, the limitations of liability in accordance with § 7 of these GTC shall apply.
- The warranty period amounts to one year from the delivery or handover of the merchandise. This does not apply if König GmbH can be accused of gross negligence, or in the event of harm to body or health or loss of the Customer’s life if these are attributable to König GmbH, or in the event of a guarantee or in the event of delivery recourse in accordance with §§ 478 and 479 BGB. The liability of König GmbH under the German Product Liability Act (Produkthaftungsgesetz) shall not be affected thereby. The regular statute of limitations shall also apply if König GmbH has fraudulently concealed a defect.
- If the Customer is a merchant as defined by the German Commercial Code (HGB), § 377 HGB shall apply. Otherwise obvious defects must be asserted in writing and at the latest within a deadline of two weeks following receipt of the goods; hidden defects must be asserted in writing within two weeks of their discovery. The timely sending or notification shall suffice for compliance with the deadline.
- For the purpose of supplementary performance, improvement or delivery, the Customer must return the delivered goods to König GmbH. Should the delivered goods be defective, König GmbH shall pay the expenses which are necessary for subsequent performance, in particular transportation, travel, labour and material costs. If the expenses are increased because the object is moved to a location other than the Customer’s residence or branch, these increased claims by the Customer to expenses are excluded unless bringing them to another location was appropriate to the proper use of the goods.
- If a claim is made against the Customer by their own customers due to defective goods after they have been resold, the Customer has statutory rights of recourse against König GmbH only if the Customer’s customers have asserted the same.
- The defect guarantee shall not extend to natural wear and tear and defects which are due to defective or negligent handling, excessive operational demands or similar influences which are not presupposed under the contract. The same shall apply if operational or maintenance rules are not complied with or improper alterations were carried out to the deliveries.
- As a rule, only the product description of König GmbH shall be deemed to have been agreed as the quality of the goods. Public statements, promotion or advertising of the manufacturer shall not represent any additional contractual declaration of the quality of the product. Manufacturers' guarantees shall not be affected thereby. The product description does not release the Customer from the obligation to check the products for suitability for the intended purpose.
- König GmbH provides no guarantees to the Customer in a legal sense, unless it was expressly agreed otherwise. Manufacturers' guarantees shall not be affected thereby.
§ 7 Limitations of liability
- In case of simple breaches of obligations, the liability shall be limited to the average direct loss which is typical of the contract and foreseeable in accordance with the nature of the goods. This shall also apply in case of simply negligent breaches of obligations of the legal representatives or agents in performance/vicarious agents of König GmbH. König GmbH shall not incur liability due to a simply negligent breach of minor contractual obligations. On the other hand, they are liable for the violation of legal positions of the Customer which are essential to the contract. Legal positions which are essential to the contract are those which the contract must guarantee the Customer according to its contents and purpose. König GmbH shall also be liable for violations of duties whose fulfilment enables the proper implementation of the contract in the first place and on whose compliance the Customer may rely.
- The aforementioned limitations of liability do not affect the Customer’s claims arising from guarantees and/or product liability. Furthermore, the limitations of liability do not apply in cases of malice, violation of duties which are essential to the contract, as well as in cases of harm to body or health or the loss of the Customer’s life if these are attributable to König GmbH.
§ 8 Offer, conclusion, prices
- König GmbH shall retain ownership of the goods until full payment of all of its claims under the ongoing business relationship.
- In the event of behaviour from the Customer which is contrary to the terms of the contract, especially default in payment, false information they have provided about their creditworthiness, or if an application to initiate insolvency proceedings has been filed, König GmbH – after setting a deadline if necessary – is entitled to withdraw from the contract and demand the goods back, if the Customer has not provided consideration or not provided it completely.
- The Customer is entitled to resell the goods to a third party as part of routine business operations. However, the Customer shall assign all claims with all ancillary rights which are accrued to it against the consumer or third parties as a result of the subsequent selling on. König GmbH shall be obliged not to collect the claims as long as the Customer properly complies with its payment obligations. In case of payment default, König GmbH shall be entitled to demand that the Customer notifies it of the assigned claims and their debtors, provides all necessary information for the collection and hands over the associated documents. In such a case, König GmbH shall be obliged to inform the debtor of the assignment.
- If the goods subject to retention of title are installed into the property of a third party as an essential component thereof by the Customer or on their behalf, the Customer thereby assigns the claims against the third party or whomever it concerns to payment in the amount of the invoiced value of the transaction between König GmbH and their Customer. The said assignment shall include all ancillary rights, including the granting of a debt-securing mortgage to the Customer.
- Should the reservation of ownership lapse due to connection or processing, König GmbH shall acquire joint ownership in accordance with the relationship of the invoice value of the transaction between König GmbH and the Customer to the value of the finished goods. If the new item is sold again, the Customer assigns to König GmbH all claims against the buyer which arise for them from the resale, up to the amount of the value of the performance. Otherwise, Number 3 shall apply.
- König GmbH hereby accepts the above-mentioned assignments.
- At the request of the customer, we undertake to release the securities to which we are entitled insofar as the realisable [...] value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting which securities to release.
§ 9 Completeness, place of jurisdiction, applicable law
- If the Customer is a merchant, legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from this contract is Munich, unless an exclusive place of jurisdiction is specified. However, König GmbH is also entitled to bring legal action against the merchant at the court having jurisdiction at the merchant’s residence or place of business. Competence due to an exclusive place of jurisdiction remains unaffected thereby.
- The relationships between the contracting parties shall be regulated exclusively by the law which applies in the Federal Republic of Germany. The United Nations Convention on the International Sale of Goods shall not apply.
As of: July 2016