General Terms of Sale, Delivery and Payment
General Terms of Sale, Delivery and Payment of:
KADECO Sonnenschutzsysteme GmbH
erwilo Markisen GmbH
§ 1 Scope
Our goods and services are exclusively subject to the General Terms and Conditions detailed below. These shall also
apply to all future business relations without the need for them to be expressly agreed again. We hereby expressly reject any terms and conditions of the buyer that do not match our own. Our General Terms and Conditions shall therefore also apply in cases where we do not specifically object to those of the buyer in individual cases. Our General Terms and Conditions shall also apply in cases where we make unconditional delivery to the buyer despite knowing that the buyer has terms and conditions that contradict or deviate from our own General Terms and Conditions. Likewise, we shall not be bound by terms and conditions of the buyer that are independent of the content of these General Terms and Conditions, where their terms and conditions deviate from statutory provisions. Our General Terms and Conditions shall only apply in respect of companies that fall within the meaning of Section 310 Paragraph 1 of the German Civil Code.
§ 2 Quotations and conclusion of contracts
1. Our quotations are provided without obligation. They merely constitute a response to the buyer's request for a quotation.
2. If the order may be classed as an offer pursuant to Section 145 of the German Civil Code, we have 2 weeks to accept it. If a delivery is made within two weeks, the invoice shall simultaneously serve as an order confirmation.
3. We shall retain title, copyright and rights conferred by patent and utility model legislation to illustrations, drawings, calculations, the results of data processing operations and other documentation that we make available to the buyer, including via the Internet, in the course of processing the contract. These shall be entrusted to the buyer for the exclusive purpose of the quotation concerned and may not be reproduced, whether in full or in part, or made available to third parties without our written permission. This shall apply in particular to written documentation that is termed "confidential".
4. Our employees, sales representatives and other intermediaries are not authorised to waive the requirement for a
written order confirmation, to commit to deviations in terms of content or to make guarantees. Subsidiary agreements or modifications, as well as commitments made by employees, sales representatives or other intermediaries, must be confirmed by us in writing in order to be valid.
§ 3 Prices and payments
1. Unless otherwise specified in the order confirmation, our prices within the Federal Republic of Germany shall be “free domicile” and shall be “free border” in the case of other locations. Any supplementary charges, public charges or similar shall be borne by the buyer unless there are any mandatory legal regulations to prevent this. We shall be entitled to demand immediate reimbursement of any freight charges and other expenses that we have paid in advance. Our prices are exclusive of statutory VAT; this shall be shown separately on the invoice in accordance with the statutory rate that applies on the date of invoicing.
2. Unless otherwise specified in the order confirmation, the buyer must pay the purchasing price within 8 days to
benefit from a prompt payment discount of 3% or else must pay within 30 days of the invoice date. The statutory rules regarding the consequences of payment default shall apply. Any foreign bank charges shall be borne by the contracting partner. Deduction of the early payment discount shall only be accepted if all payment obligations pertaining to previous deliveries have been met. A payment shall only be deemed to have been made once the amount is actually at our disposal. In the case of payments by cheque, the payment shall only be deemed to have been made once the cheque has cleared.
3. If the buyer defaults on a payment, all other debt claims shall become due immediately unless the contracting party demonstrates that it is not responsible for the default.
4. The buyer shall only have rights of setoff if its counter-claims have been established as final and absolute, are
undisputed or have been recognised by us, and shall by no means involve claims that have been assigned to it.
5. The buyer shall have no right to withhold payment or offer a defence unless we commit a serious breach of our
obligations under the same contractual relationship despite having received a written warning and we fail to offer
6. We shall be entitled, even if there are buyer provisions to the contrary, to set payments off against its older debts first. If costs and interest have already been incurred, we shall be entitled to set the payment off against the costs first, then the interest and finally the main service performed, even if the buyer specifies otherwise. If financing aids are involved, the payment shall be set off against the main service performed first, then against the interest and costs.
7. If we become aware of circumstances that cast doubt on the solvency and creditworthiness of the buyer, in particular if it fails to honour a cheque or bill of exchange, suspends payments, or if it becomes apparent that a petition in bankruptcy has been filed, we shall be entitled to call in the remaining debt in its entirety, even if we have accepted cheques or bills of exchange. Moreover, in such cases, we shall be entitled to demand advance payments and the provision of a security. If this condition is not met or there are potential doubts concerning this, we shall not be obligated to continue providing the service. The same shall apply if payment for a previous delivery was not received on time. Agreed discounts shall not be granted if there is an outstanding balance due to us at the time of the payment. As soon as we become aware of the circumstances referred to above or the filing of the petition in bankruptcy, we shall be entitled to withdraw from all contracts once an appropriate deadline has been set and expired without the other party, simultaneously with performance and at its own discretion, either effecting counter-performance or providing security. In the event of withdrawal, the buyer must reimburse us for the demonstrable expenses we have incurred. This shall not affect our right to assert more extensive claims for damages.
§ 4 Properties and condition of the purchase item
1. The properties and condition of the purchase item are based on the product data sheets and our collections, which are available from us for inspection at any time. The details specified are neither assured nor guaranteed.
2. Carrying out maintenance incorrectly or failing to carry it out has a detrimental effect on the properties and condition of our products. Therefore, the maintenance instructions provided in the specified information brochures or communicated to the buyer by some other means must always be observed.
3. Allowance must be made for deviations that are customary in the trade as regards differences between the products themselves and any drawings, illustrations, dimensions, weights and other performance data.
4. Prior to conclusion of the contract, the buyer must expressly notify us if the ordered goods are not destined
exclusively for standard usage or if they are to be used under non-standard conditions or conditions that pose a
particular risk to health and safety or the environment, or conditions that are associated with increased operational demands.
§ 5 Delivery time and time of performance
1. Unless delivery dates or periods have been expressly agreed as binding, they shall merely constitute non-binding
information. Delivery periods shall not begin until technical issues have been definitively clarified or until any
documentation to be supplied by the buyer that is necessary for processing the order has been submitted, or until agreed down payments have been received. Compliance with a delivery period shall be assumed if the consignment is ready for dispatch within this period and the buyer is notified accordingly or if it leaves our premises within this period.
2. In the event of force majeure or other unforeseeable, exceptional circumstances that are beyond our control, such as a delivery failure on the part of our upstream suppliers, business disruptions due to fire, water and other circumstances, the failure of production systems and machinery, strikes and lockouts, material shortages, energy shortages, transport shortages, intervention by the authorities (even if at our suppliers' premises), we shall – where the circumstances referred to prevent us, through no fault of our own, from meeting our obligation to perform on time – be entitled to delay the goods and/or services for the duration of the encumbrance plus an appropriate lead time. However, the customer shall certainly be entitled to set an appropriate final deadline of at least 14 days if we exceed the agreed delivery date by more than 1 week. If the final deadline expires without producing the desired effect, the customer shall be entitled to withdraw from the contract.
3. We shall be entitled to make partial deliveries of a reasonable size up to the end of the delivery period. Partial
deliveries and invoices relating to functional units shall be permitted.
4. If the dispatch of the goods is delayed due to circumstances beyond our control, we shall be entitled to levy a storage fee to the value of 0.5% of the invoice amount for each full or partial month, unless the buyer demonstrates that the level of loss or damage is in fact lower. This shall be without prejudice to more extensive claims, e.g. all claims arising from default.
5. We shall be liable pursuant to statutory provisions insofar as the underlying purchase contract constitutes a contract where time is of the essence within the meaning of Section 286 Paragraph 2 No. 4 in conjunction with Section 271 of the German Civil Code or Section 376 of the German Commercial Code. We shall also be liable pursuant to statutory provisions where the buyer is, as a result of a delay in delivery for which we are responsible, entitled to assert that it is no longer in its interest to have the contract fulfilled. We shall also be liable pursuant to statutory provisions where the delay in delivery relates to a breach of contract for which we are responsible and that we have wilfully and knowingly committed or have committed through gross negligence; where our representatives or vicarious agents are to blame, the fault shall be attributed to us. Unless the delay in delivery relates to a wilful and knowing breach of contract for which we are responsible, the extent of our liability for damages shall be limited to the extent of foreseeable loss or damage that would typically occur. We shall also be liable pursuant to statutory provisions where the delay in delivery for which we are responsible relates to the culpable breach of a fundamental contractual obligation; in this case, however, liability for damages shall be limited to the extent of foreseeable loss or damage that would typically occur. For the rest, in the event of a delay in delivery we shall be liable in accordance with the extent of loss or damage that has actually occurred
and that can be demonstrated by the buyer, but only up to a maximum of 0.5% per week and up to a maximum of 5%
of the value of the goods not delivered as per the contract. Other legal claims and rights of the buyer are reserved.
6. In the case of call orders where no period, production lot sizes and acceptance dates have been agreed, we shall be entitled to demand binding specification thereof within a maximum of 3 months following order confirmation. If the buyer fails to respond to this demand within 3 weeks, we shall be entitled to set a 2-week final deadline and, if this expires, to withdraw from the contract and/or claim damages.
7. If the buyer fails to fulfil its acceptance obligations, we shall, without prejudice to our other rights, not be bound by the regulations regarding resale on the buyer’s default to take delivery, but can instead sell the delivery items by private contract once the buyer has been notified in advance.
§ 6 Passing of risk – Dispatch/Packaging
1. The goods shall be delivered and dispatched uninsured at the purchaser’s risk on a “free domicile”, “free place of receipt” or “free border” basis. Any cartage or carriage charges shall be borne by the buyer. We shall endeavour to accommodate the purchaser's wishes and interests as regards the mode of dispatch and dispatch route; any resulting additional costs – including for agreed freight paid delivery – shall be borne by the purchaser. Unless an obligation to be performed at the creditor's address has been agreed, the risk shall pass to the buyer as soon as the goods have been handed over to the person responsible for transportation or have left our place of business for the purpose of dispatch. This shall apply regardless of whether we transport the goods ourselves using company vehicles or whether we use external carriers and regardless of whether we bear the dispatch costs. Clauses such as "delivery free…" or those of a similar nature merely affect the way transport costs are regulated, but do not modify the above provision concerning bearing of the risk.
2. If dispatch is delayed for reasons for which the buyer is responsible, we shall store the goods at the purchaser's
expense and risk. In this case, notification of readiness for dispatch shall be deemed equivalent to actual dispatch.
3. Any transport damage must be declared via the freight carrier within 24 hours.
4. In the case of transport damage involving delivery via our own vehicles, a written notice of defects must be submitted to us within 3 days of the goods being received. We can assume no liability for transport damage where we are notified later than this.
5. We shall only take back transport and all other packaging insofar as this is a mandatory requirement of the
packaging ordinance that is applicable in each case; regardless of this, we shall take back Euro pallets.
§ 7 Liability for defects
1. The buyer’s warranty rights are dependent on its having properly fulfilled its obligations to inspect the goods and
provide notice of defects pursuant to Section 377 of the German Commercial Code. As regards apparent and typical
defects that can be identified during a proper inspection, insofar as such an inspection is feasible in the proper course of business, the customer must provide written notice of defects within 8 days of delivery. The contractual partner must provide us with a detailed written description of the defects of which notice is being provided. In the case of hidden defects and those that cannot be identified during a proper inspection, the customer must provide written notice within 8 days of their discovery. If the customer misses the deadline for providing notice of defects, the defects concerned shall not be covered by a warranty. We do not, by virtue of processing complaints received and inspecting goods, waive our right to assert as a defence the fact that the notice of defects was received late or is incomplete.
2. We can assume no liability for loss or damage and faults which, in particular, are attributable to normal wear and
tear, incorrect installation or commissioning by the buyer, improper use and operating errors, incorrect or unsuitable power supplies, operation with the wrong type of current or voltage, fire, lightning, explosion, moisture and a failure to carry out essential or recommended operating steps and/or maintenance work. 93 Likewise, no liability can be assumed if parts are replaced or consumables are used that do not match the original specification
3. We warrant that our products will remain free from defects for a period of one (1) year from delivery. In the event of a defect, we shall in the first instance be entitled to decide between rectification of the defect or delivery of an item that is free from defects. The buyer shall have the right, if supplementary performance should fail, either to demand a reduction or to withdraw from the contract. At the vendor’s option, supplementary performance may take the form of rectification of the defect (subsequent improvement) or the delivery of new goods. Supplementary performance shall be deemed to have failed when two attempts at supplementary performance have failed, unless further attempts at supplementary performance are appropriate and can reasonably be accepted by the purchaser based on the subject matter of the contract.
4. Where, for the purpose of asserting rights, the buyer has to impose an appropriate deadline on us regarding the
performance of our services, the deadline shall only be deemed appropriate if it is 20 days or more. We shall be entitled to refuse supplementary performance in cases where it can only be achieved at a disproportionate cost. Costs shall be deemed disproportionately high, in particular, if the total expenditure required for supplementary performance is more than 30% of the market value of the goods being sold. This shall be without prejudice to the buyer's other rights.
5. We shall only reimburse miscellaneous expenditure required for the purpose of subsequent improvement within the scope of the provisions under Section 8. Replaced parts shall become our property.
6. If the defect cannot be identified, the buyer shall bear the costs of inspection.
7. Warranty claims against us are only assertable by the immediate buyer and cannot be assigned.
8. In the case of minor defects, the buyer has no right of withdrawal and must also accept the delivery.
9. Rights of recourse pursuant to Sections 478 and 479 of the German Civil Code shall only apply if the consumer’s
claim to these was legitimate and only to the extent allowed by the law, and shall not, by contrast, apply to goodwill arrangements not agreed with us. Said rights of recourse are dependent on the person with the right of recourse fulfilling their own obligations, in particular the fulfilment of the obligations to provide notice of defects. This commitment does not apply when the defect concerned is the result of advertising messages or other contractual agreements that do not originate from us or if the purchaser has provided the end consumer with a special guarantee. This shall also apply if the purchaser has given the end consumer a warranty that goes beyond the scope of what is legally required. We shall not be liable pursuant to Sections 478 and 479 of the German Civil Code if our customer has made delivery abroad to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
10. If the deadline for supplementary performance has expired without producing the desired result, we shall be entitled to demand that the buyer assert its other warranty rights against us by setting a deadline of one month. Should it fail to submit such a declaration by this deadline, no warranty rights shall be admitted; this shall only apply if we have expressly referred to this legal consequence in the demand containing details of the deadline.
11. More extensive claims, in particular those relating to the reimbursement of expenses or damages due to direct or consequential harm caused by a defect, shall only apply within the scope of the provisions under Section 8.
§ 8 Joint and several liability
1. No liability for damages beyond the scope of that provided for in Section 7 can be accepted, regardless of the legal nature of the claim being asserted. This shall apply in particular:
- to the disassembly of a faulty unit, if the ordering party could have detected the fault before assembling the unit
- due to expenditure for the assembly of supplied products (including replacement parts supplied), even if faults are only discovered when the unit is assembled or put into operation, and for associated miscellaneous expenditure, e.g. transport costs, assembly materials or shipment costs
- to claims for damages based on culpa in contrahendo
- due to other breaches of obligations
- due to tort claims for property damage compensation pursuant to Section 823 of the German Civil Code.
Nor shall we be liable for damage to the delivery item itself, for lost profits or for other pecuniary losses suffered
by the buyer.
2. Where liability for damages cannot be asserted against us or is restricted, this shall also apply with regard to the
personal liability for damages of our salaried employees, general employees, staff, representatives and vicarious agents.
§ 9 Reservation of title
1. All our goods and services are subject to reservation of title. Title shall only pass to the buyer once we are satisfied that all our debt claims arising from the business relationship and all those associated with the purchase object have been discharged. This shall encompass all debt claims against the buyer, regardless of legal basis, including future or conditional debt claims, as well as any from contracts that are concluded at the same time or at a later date within the context of business relations. This shall also apply where payments are made in relation to specially designated debt claims. In the case of an open account, the goods that are subject to reservation of title shall serve as security for our balance claim.
2. The buyer must handle the purchase item with care; in particular, the buyer must take out adequate cover at its own expense to insure it at reinstatement value against fire, water and theft. If maintenance and inspection work is required, the buyer must carry this out at its own expense on time and in a professional manner.
3. The buyer must not pledge the delivery item to which we reserve title or transfer ownership thereof by way of
security. In the event of a levy of distress as well as seizure and other forms of disposition by a third party, the buyer must notify us immediately. In such cases, the buyer must provide us with the necessary assistance for the purpose of exercising our rights. The costs of any interventions that prove necessary shall be borne by the buyer. In the event of a stoppage of payments, the buyer must also provide us with a notification concerning the available goods.
4. If the buyer defaults on payment, we shall – without affecting the perpetuation of the contract – be entitled to
reclaim the goods immediately, i.e. without withdrawing from the contract. The buyer must hand over the goods. If we assert reservation of title, this shall only constitute withdrawal from the contract if we expressly declare this in writing. We shall be entitled to realise the goods that are subject to reservation of title after they have been taken back. Once an appropriate amount has been deducted to cover the realisation costs, the realisation proceeds shall be set off against the amounts owed to us by the purchaser.
5. Whenever the goods that are subject to reservation of title are processed or remodelled, this shall always be for our benefit. If the goods that are subject to reservation of title are treated and processed or undergo mixing, reservation of title shall continue to apply in respect of the treated or mixed goods. If the goods that are subject to reservation of title are processed with or permanently mingled with other objects that do not belong to us, we shall acquire title to a new item based on the ratio of the invoice value (including statutory VAT) of the goods that are subject to reservation of title to the invoice value (including statutory VAT) of the other goods used at the time of processing or commingling. The rights of co-ownership thus created shall constitute goods that are subject to reservation of title within the meaning of these terms and conditions. If our goods are coupled or permanently mingled with other moving objects to create a single item and the other item is to be regarded as the main item, the buyer shall confer on us proportional co-ownership insofar as it is the owner of the main item. As regards the cases referred to above, the buyer hereby assigns to us its rights of ownership over the processed, coupled or mingled goods. Instead of handing it over, the buyer shall be entrusted with the safekeeping of the processed, coupled or mingled object on our behalf. The item that results from processing, use or commingling shall, for the rest, be subject to the same provisions as goods that are subject to retention of title.
6. The buyer shall be entitled to process and sell the goods that are subject to reservation of title in the course of normal business, unless it is in default towards us, has stopped payment or a petition in bankruptcy has been filed in respect of its assets. The buyer hereby assigns to us in full the debt claims, along with all rights, arising from the resale that it is entitled to assert against its own customers or third parties. We accept this assignment. If the goods that are subject to reservation of title are sold by the buyer – following processing/combination – together with goods that do not belong to the buyer, it hereby assigns to us the debt claims arising from the resale to the value of the goods that are subject to reservation of title, along with all subsidiary rights and priority over the rest. We hereby accept this assignment. The buyer is authorised to collect this debt claim even after it has been assigned. This shall be without prejudice to our option of collecting the debt claims ourselves – however, we undertake not to collect the debt claims provided the buyer is properly meeting its payment and other commitments, is not in payment default, and in particular if no petition in bankruptcy has been filed, there is no stoppage of payments and there are no well-founded doubts concerning the buyer's solvency and creditworthiness. The customer is on no account entitled to assign the debt claim to somebody else, which includes for the purpose of collecting the debt claim by means of factoring unless, at the same time, the factoring company is forced to effect counter-performance to us directly until such time as our debt claims against the purchaser have been discharged.
7. We shall be entitled to demand that the buyer disclose to us the details of the assigned debt claims and the associated debtors, provide all the information required to collect the debt claims, hand over the associated documentation and notify the debtors of the assignment. Any bills of exchange issued by third-party purchasers must be transferred to us.
8. If the value of the securities to which we are entitled exceeds the total debt claim against the customer by more than 10%, at the buyer’s request we shall be obliged to release the securities of our choice to this extent. Should we take back the goods by mutual consent, the associated credit note shall only be made out to the relevant current value.
§ 10 Applicable law, place of jurisdiction, place of performance, suspension of the limitation period
1. The contractual relationship is subject to the law of the Federal Republic of Germany. The Uniform Law on the
International Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods shall not apply.
2. The place of performance for all commitments arising from the contractual relationship in terms of deliveries –
including freight paid deliveries – and in terms of payments, etc. shall be our official place of business.
3. The place of jurisdiction, including for summary action based on a bill of exchange or cheque, shall be our official place of business if the buyer is classed as an entrepreneur or a legal person under public law. The same place of jurisdiction shall apply if the buyer has no general place of jurisdiction within Germany or if it moves its domicile or usual place of residence abroad following conclusion of the contract. In any case, we shall be entitled to take legal action against the buyer at its own domicile.
4. Notwithstanding more extensive statutory regulations, suspension of the limitation period shall also end when the
negotiations at the root of the suspension are discontinued in respect of the matter for more than four weeks. Our
express written confirmation is always required before the limitation period for customer claims is allowed to restart.
5. We shall be entitled to process and store the data concerning the purchaser that has been received in connection with the business relationship within the scope of the German Data Protection Act.
§ 11 Industrial property rights
1. Where we are required to deliver products in accordance with drawings, models, samples or by using parts provided by the buyer, the buyer provides an assurance that no industrial property rights of third parties are thereby infringed in the country of destination for the goods. We shall draw the buyer's attention to all the rights of which we are aware. The buyer shall hold us harmless against claims from third parties and indemnify us against any loss or damage incurred. If a third party should prohibit us from manufacturing or delivering the goods by citing an industrial property right registered in its name, we shall - without investigating the legal position - be entitled to cease the work until the legal position has been clarified by the buyer and the third party. If it is no longer reasonable for us to continue processing the order because of the delay, we shall be entitled to withdraw from the contract.
2. Drawings and samples that have been submitted to us, but have not resulted in an order, shall be returned at the
buyer’s request; otherwise, we shall be entitled to destroy them 3 months after the quotation was issued. This
commitment shall also apply mutatis mutandis to the buyer. The party that is entitled to destroy the drawings and
samples must inform the other contractual party of its intention to destroy them in advance and in good time.
3. We own the copyright and any industrial property rights, including in particular all rights of use and exploitation to the models, moulds and fixtures, designs and drawings created by us or by a third party on our instructions as well as to the delivery item.
4. The buyer must comply with the advertising standards laid down by KADECO Sonnenschutzsysteme GmbH.
§ 12 Severability clause, data protection
If a term in these Terms and Conditions should be or become invalid, this shall not affect the validity of all the remaining terms or agreements. The ineffective term shall be replaced by a valid agreement that reflects as closely as possible the commercial intention of the ineffective term. Our methods of storing data collected in the context of day-to-day business dealings conform to the German Data Protection Act.