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Heinrich Kipp Werk KG general conditions of sale, delivery and payment
Status 13.02.2013

General - Scope 

  1. Our conditions of sale apply exclusively; we do not acknowledge purchaser's conditions that are in conflict with or differ from our conditions of sale, lest we were to expressly agree to their application in writing. Our conditions of sale apply even if we make delivery to the purchaser with knowledge of purchaser's conditions that are in conflict with or differ from our conditions of sale.
  2. All agreements that are entered into between us and the purchaser for the purpose of executing this contract must be set down in writing.


Tender – Tender documents – Catalogues 

  1. Should the customer's order qualify as a tender in conformity with § 145 BGB [Civil Code], then we may accept it within 4 weeks. Our offers are subject to change.
  2. We retain the title to and copyright on representations, drawings, calculations and other documentation; they must not be made accessible to third parties. The purchaser needs our express consent in writing prior to passing them on to third parties.
  3. Descriptions of our products are only indications of appearance and workmanship and in no way represent a guarantee of the quality of the goods.
  4. Technical changes in our products, which increase or maintain their value, are permissible at any time and without prior notification.

 

Prices - Conditions of payment - Default 

  1. Unless the order confirmation states otherwise, our prices apply "ex works".
  2. Packaging is invoiced. We are liable for take-back only if mandatory legal provisions provide for this and the purchaser demands the return. In this case, he must bear the costs of the return outright.
  3. In respect of special versions, deviations in the order quantity may occur due to technical reasons relating to production. Therefore, overages or shortages up to 10% represent a contractual fulfilment of the end of delivery obligation, provided the contrary is not expressly agreed in the contract. The actual quantity delivered is invoiced in this case.
  4. The lawful VAT is not included in our prices; it will be shown separately on the invoice in the statutory amount as of the billing date.
  5. With a receipt of payment at our location within 10 days following the billing date, the purchaser is entitled to deduct 2% from the price.
  6. The purchaser is in default if he does not pay the amounts due not later than thirty days after receipt of an invoice or equivalent payment request. In the case that payment is overdue we retain the right to issue a demand for payment that has an earlier due date. Notwithstanding clauses 1 and 2, the buyer is then in default if it is agreed that the purchase price should be paid by a certain calendar day or date specified and the purchaser has not paid up to this time.
  7. If the purchaser is in default of payment, then we are entitled to demand default interest in the amount of 9% above the applicable base rate per annum. If we are able to prove a higher loss, we are entitled to claim the same.
  8. The purchaser is only entitled to set-off rights if his counterclaims are determined to be valid, uncontested or acknowledged by us in writing. He shall, furthermore, be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
  9. In the case of small orders we charge a minimum order surcharge (€ 15.00 for commodity value below € 25.00 and € 8.00 for commodity value below € 50.00).

 

Delivery period 

  1. The start of the delivery period set by us presupposes the clarification of all technical issues. If not otherwise agreed, a delivery period designated by is tentative.
  2. If for reasons for which we are responsible we incur a default in delivery, then the liability for damages for delay of delivery for losses that are directly due to the delayed delivery is limited to the amount of the foreseeable loss.
  3. If the purchaser sets a reasonable grace period once we have already defaulted, then he is entitled to withdraw from the contract following the lapse of this period without redress. If a reasonable grace period expires without redress, then the purchaser is obligated to declare within two weeks' time following the lapse of the grace period whether he is withdrawing from the contract or continues to insist on its implementation.
  4. To the extent we are also liable for damages, then claims in the case of simple negligence are limited to the amount of the foreseeable loss.
  5. In the case of simple negligence, we are never liable for consequential damages due to delayed performance or non-performance, in particular if the purchaser suffers a loss of profit or incurs other costs.
  6. Adherence to our end of delivery obligation presupposes the timely and orderly fulfilment of the purchaser's obligations.
  7. If we indicate that in spite of the careful selection of our suppliers and in spite of the conclusion of contracts on reasonable terms by our suppliers we are not supplied in a timely manner, then the delivery deadline is extended by the period of time of the delay which is caused by the untimely delivery on the part of the supplier. In the case that delivery by the supplier is impossible we are entitled to withdraw from the contract.
  8. If the purchaser is in default of acceptance or he breaches other obligations to cooperate, then we are entitled to demand damages accruing to us, including any additional expenditures. In this case the risk of an accidental destruction or an accidental deterioration of the purchased goods devolves upon the purchaser at the point in time when he falls into default of acceptance.

 

Transfer of risk 

  1. Unless the order confirmation states otherwise, delivery is agreed "ex works". The risk devolves upon the purchaser when the deliverable has left the works, and even if partial deliveries occur or we have assumed other obligations, e.g. shipping and handling or delivery and installation. If an acceptance test has to be conducted, it is determinative of the risk of transfer. It must be carried out promptly on the acceptance schedule date, alternatively after our notification of readiness for acceptance. The purchaser cannot decline acceptance upon cause of a defect considered as unsubstantial.
  2. If the shipment or the acceptance is delayed or does not happen in consequence of circumstances that are not attributable to us, the risk devolves upon the purchaser from the date of the notification of readiness for shipment or acceptance.
  3. Partial deliveries are permissible, provided this is acceptable to the purchaser.

 

Claim for defects - Limitation 

  1. The purchaser's rights presuppose that he has duly performed his duty to inspection and objection in conformity with § 377 HGB [Commercial Code].
  2. If there is a defect in the purchased goods for which we are responsible, we are entitled at our discretion to correct the defect or to deliver an item free of defects.
  3. If we are not prepared to correct the defect or to deliver a replacement or not in the position, in particular if said delivery is delayed beyond reasonable grade periods for reasons that we are responsible for, or if correcting the defect or delivering the replacement fails in another way, then the purchaser is entitled at his discretion to withdraw from the contract or to demand a corresponding reduction in the purchase price. If a reasonable grace period expires without redress, then the purchaser is obligated to declare within two weeks' time following the lapse of the grace period whether he is withdrawing from the contract or continues to insist on its implementation.
  4. Unless stated otherwise hereinafter, purchaser's further claims - regardless of their legal basis - are precluded. Therefore, we are not liable for damage that did not occur to the deliverable itself; we are not liable in particular for loss of profit or purchaser's other financial losses. However, if liability for such losses is conceded, then claims are limited to the amount of the foreseeable loss.
  5. The preceding liability disclaimer does not apply if compelling lawful regulations substantiate a liability, in particular if damages arise as a result of intent or gross negligence or claims resulting from injury to life and limb or to physical health on the basis of negligence are invoked. It is furthermore ineffective if we have undertaken a guarantee for a particular quality of the item and this quality is lacking.
  6. On condition that we breach a fundamental contractual duty due to negligence, our liability is limited to the foreseeable loss.
  7. The defects liability period is 1 year from the date of delivery of goods. This period is a period of limitation and also applies for claims to compensate for consequential damage caused by defect, provided no claims arising from unlawful acts are invoked.

 

Title retention protection 

  1. We retain the title to the purchased item until receipt of all payments arising from the business relationship with the purchaser. In the case of any by the purchaser in breach of contract, in the case of default of payment in particular, we are entitled to exercise our legal rights and to take the purchase item back. After return of the purchase item we are entitled to exploit it; the proceeds shall be credited against the purchaser's liability - less reasonable liquidation costs.
  2. In the case of distraints or other interventions by third parties, the purchaser must notify us immediately in writing so that we may take legal action in conformity with § 771 ZPO [Code of Civil Procedure]. If the third party is not in the position to compensate us for the extra-judicial and court costs of such an action, the purchaser shall be liable for the loss.
  3. The purchaser is entitled to resell the purchase item in the regular course of business; however, he assigns to us as of now all receivables in the amount of the final invoice (including VAT), which accrue to him from the resale to his customers or a third party, viz. regardless of whether the purchase item shall have been resold absent or after processing. The purchaser remains entitled to collect this claim even after assignment. Our power to collect the claim ourselves remains unaffected relevant to this. However, we commit to refrain from collecting the claim as long as the purchaser meets his payment obligations from the proceeds collected, is not in delay of payment and in particular has not filed an application to open insolvency proceedings or payments have not been suspended. If this is the case, however, then we can demand that the purchaser notify us of the claims assigned and their obligors, furnish all particulars required for collection and deliver up the appurtenant documentation.
  4. The processing or reworking of the purchase item by the purchaser shall always be undertaken on our behalf. If the purchase item is processed along with other items that do not belong to us, then we acquire co-ownership in the new item in proportion of the value of the purchase item to the other items processed at the time of such processing. As for the rest, the same applies to the item resulting from said processing as to the purchased item delivered with reservation.
  5. We commit to release on purchaser's request the securities to which we are entitled if and when the value of our securities exceeds the receivables being secured by more than 20 %; the selection of the securities to be released is incumbent upon us.

 

Returning goods 

  1. Basically, goods that have been purchased according to contract and correctly delivered cannot be returned. Exceptions will only be made for special cases and against previous arrangement 

 

 

Legal venue - Place of fulfilment 

  1. If the purchaser is a business organisation, the legal venue is Rottweil. However, we are also entitled to institute proceedings against the purchaser in the court of his domicile.
  2. Unless the order confirmation states otherwise, the place of fulfilment is Sulz-Holzhausen.
  3. This contract is governed exclusively by the laws of the Federal Republic of Germany.
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