Legal Notice | Legal Notice |
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 Copyright KOSCHE Profilummantelung GmbH As at: October 2004 § 1 - General (1) All business relations between us – KOSCHE Profilummantelung GmbH – and our customers are subject exclusively to these terms in their respective version, applicable at the time of concluding the contract. Varying purchase conditions of the customer are not recognised and also not contractually included through implicit confirmation and execution of the order. (2) The entirety of the agreements between us and the customer is stipulated in writing in the contract concluded (§ 2) as well as in these terms. (3) These conditions are only applicable to companies as defined by §§ 310 Para. 1, 14 BGB [German Civil Code]. § 2 – Formation and Subject of the Contract (1) Our offers are subject to change. Only a customer’s order becomes applicable as a binding offer as defined by § 145 BGB, which we can accept within 4 weeks. The contract is reached with our written confirmation of the order (order confirmation). This order confirmation is exclusively definitive for the contract subject. If it is missing and the contract is reached only through the execution of the order, then of the contents of the order are definitive for the contract subject; this does not apply to contract terms of the customer, for which § 1 Para. 1 Sentence 2 applies. (2) Collateral agreements, provisos, changes or amendments to an order require our written confirmation to become effective. (3) The information about size, weight and output contained in our offer documents or our order confirmation as well as illustrations and diagrams are best-estimated approximate values and are only binding for execution if we expressly confirm this in writing. (4) In samples, cost estimates, illustrations and similar material and immaterial information – also in electronic format – we retain all property, copyright and user rights; they must not be made accessible to third parties and upon request are to be returned promptly. We are bound to provide third parties with information and documents labelled confidential by the customer only with the customer’s express approval. § 3 - Price and Payment (1) Our prices apply as “ex factory” in default of a special agreement including loading in the factory, however exclusively of insurance, packaging, dispatch and unloading. The prices are plus turnover tax on the legal amount valid on the day of invoicing. (2) Provided excess quantities or services turn out to be necessary after concluding the contract based on circumstances, which we do not have to represent, e.g. based on additional customer requirements or changes in regulations, we reserve the right to adjust our prices accordingly. We will inform the customers promptly of the necessity of such a price adjustment after emergence of such circumstances and then inform them of the scope of the price adjustment. (3) We further reserve the right to reasonably change our prices if cost reductions or increases occur, especially because of tariff agreements or material price changes, within six weeks after concluding the contract. We will prove this to the customers upon request. (4) Unless agreed otherwise in writing, the maturity of our invoices as well as the consequences of default in payment comply with the legal provisions. We are authorised to request further provable damages caused through default in payment; the customer reserves the proof of minor damage. Independent of this, for each reminder we charge a processing fee of €3 after maturity. (5) If it is enforced in vain against the customer, payments are suspended, a bill or cheque for redemption is protested against or an application to open insolvency proceedings against the customer’s assets is filed, then all our invoice requests become payable immediately. (6) The customer is only authorised to discount deductions if this is expressly stated in the order confirmation. (7) The customer is only entitled to the right to charge with counter claims provided such claims are undisputed, recognised by us or are legally established. The customer is not entitled to any kind of retention rights unless we had already received for an insufficient service the part of the service in return of the customer, which corresponds to the value of our service. (8) The acceptance of bills and cheques only occurs in lieu; the customer bears the costs of discounting and withdrawal. § 4 – Delivery and Acceptance Deadlines (1) § 2 Para. 1 applies accordingly with regard to our delivery deadlines. Their adherence by us requires the early access to the information and documents to be produced by the customer as well as the adherence of all remaining obligations incumbent on the customer, especially also advance payments. Otherwise the delivery times will be extended reasonably. (2) The adherence to delivery times is subject to correct and early self-delivery. We inform the customer as soon as possible of any delays that occur. (3) An agreed delivery time is ensured with the provision of the goods for the customer. If dispatch is agreed then the deadline is adhered to if the complete shipment is sent for dispatch. Provided an acceptance has to occur, the acceptance date, alternatively the futile expiry of a period set to the customer for acceptance, is relevant. (4) If the delivery, dispatch or acceptance of the purchased item is delayed for reasons, which the customer is responsible for, then the customer must replace the damages and additional expenditures to us, which develop through delay. (5) If dispatch or delivery of the goods is deferred at the instigation of the customer, then after a month following the display of the readiness to deliver, we can claim a flat-rate storage compensation of 0.5%, but in total not more than 5%, of the invoice value concerned for each started month. (6) With orders subject to recall, the delivery or service must be accepted within six months. If the acceptance then does not occur within a reasonable extension set to the customer, we are authorised to recede from the contract and to request compensation instead of the service to the amount of a flat-rate of 25% of the net order total. (7) If the customer releases himself from the contract or refuses the fulfilment without authorisation, we have the right to request compensation to the amount of a flat-rate of 30% of the net order total instead of the contract fulfilment. (8) In the cases of Paragraphs 5, 6 and 7, we reserve the proof and assertion of a higher damage, the customer reserves the proof of minor damage. § 5 – Passing the Risk (1) The risk of the accidential decline or deterioration of the purchased item is transferred to the customer after the purchased item has left our factory, and indeed also then, if partial deliveries are made or we have accepted other services, e.g. the shipping costs or delivery and installation. If an acceptance must occur, the acceptance date, alternatively the futile expiry of a period set to the customer for acceptance, is relevant for the transfer of risk (2) If the dispatch or the delivery or the acceptance are delayed or omitted because of circumstances, which we are not responsible for, the risk is transferred to the customer from the day of dispatch or acceptance readiness. (3) Packaging and dispatch take place – at the customer’s cost – with normal shipping care; we insure shipment in the extent requested at the cost of the customer. § 6 – Defects, Warranty, Liability (1) The rights of the customer due to a defect of the purchased item are applicable under the statute of limitations for a year from delivery of the purchased item. Compensation claims in accordance with subsequent Paragraph 3, due to defects of a building or defects in delivered items, which were used corresponding to their usual usage for a building and have caused its faultiness, come under the statute of limitations within the legal period. (2) For claims due to defects of the purchased item, the following provisions apply in all other respects: (a) The defect rights of the customer require that as per § 377 HGB [German Commercial Code] he has properly fulfilled his owing inspection and censure incumbencies. Obvious defects are to be reported immediately, at the latest however within two weeks after delivery of the purchased item. With omission of this period, defect claims due to an obvious defect are excluded. The customer must report defects, which cannot be noticed within this period even after careful inspection, immediately upon discovery. (b) The fulfilment of claims due to defects of the purchased item by us furthermore requires that the customer has at least fulfilled his obligations to the extent of the defect value. (c) If a defect of the purchased item is present, then we will perform subsequent fulfilment, as we wish, in the form of correcting the defect or delivering a new fault-free item. We bear the expenses necessary for the purposes of subsequent fulfilment, especially transport, route, work and material costs, however limited to the amount of the sales price. If the purchased item has been brought to a site other than the fulfilment site, then the customer bears the additional costs caused by this. (d) For subsequent fulfilment, the customer must provide us with the necessary time and opportunity, otherwise we are freed from liability for the resulting consequences. Only in urgent cases of endangerment of the operational safety or for the resistance of unreasonably large damages, about which we are to be informed immediately, the customer has the right to repair the defect himself or by a third party and to request reimbursement from us of the necessary expenses. With improper defect repairs through the customer or a third party, our liability for the resulting consequences becomes invalid. We are similarly not liable, if the customer carries out changes to the delivered item without our express prior permission. (e) After unsuccessful expiry of a period set by the customer for the subsequent fulfilment (correction of defects or replacement), the customer is authorised to withdraw from the contract or to request a reduction of the purchase price. (f) If the subsequent fulfilment remains unsuccessful, the customer can also demand compensation instead of the service or reimbursement of futile expenses. Even in this case we are only liable for intent and gross negligence, including intent and gross negligence of our representatives or vicarious agents as well as with culpable breach of an essential contract obligation. If no deliberate breach of contract is present, our liability for compensation is here limited to the foreseeable, typically occurring damages. (3) Incidentally we are liable according to the legal provisions with culpable injury to life, body or health, if we are charged with intent, gross negligence or malicious intent. The forced liability for personal and property damages according to the product liability law remains unaffected. With culpable breach of essential contract obligations we are liable in accordance with the legal provisions; however limited to the typical contractual, reasonably foreseeable damages. Other claims are excluded. (4) Moreover liability claims are excluded without consideration of the legal nature of the pleaded claim, unless we, our legal representatives or leading vicarious agents are charged with deliberate or grossly negligent behaviour. This particularly applies to claims of compensation for faults when concluding the contract, due to other breaches of obligations or due to tortious claims on replacement of damaged items in accordance with § 823 BGB as well as in terms of personal liability of compensation of our staff, employees, colleagues, representatives and vicarious agents. § 7 – Security Laws (1) We retain the ownership of the delivered goods until complete repayment of all outstanding payments existing and still growing from the business relations between us and the customer. With breach of obligation by the customer, especially with default in payment, we are authorised according to settlement of a reasonable period to withdraw from the contract by taking back the purchased item. Upon withdrawal, we are authorised to use the purchased item; the proceeds, minus reasonable usage costs, is credited to the obligations of the customer. Our additional statutory claims remain unaffected. (2) If the purchased item is processed by the customer then the processing occurs for us. With this, we are considered the manufacturer as defined by § 950 BGB and acquire the co-ownership in the interim or end product in the ratio of the value of the purchased item (including turnover tax) to the other processed items at the time of processing. With mixing of the purchased item with other goods not belonging to us, we acquire co-ownership in the ratio of the value of the purchased item (including turnover tax) to the value of the other processed items at the time of mixing. If the mixing occurs in the manner that the customer’s items are to be viewed as the main issue, the customer transfers to us today the proportional co-ownership to the new item emerging through the mixing. If the purchased item is linked by the customer as an essential component with the property of a third party, then the customer now transfers the existing claim for compensation against the third party in amount of existing debt to us. (3) The customer may have the goods only in the proper business process; other availabilities, especially pledges or security transfers, are not permitted. The customer now transfers to us all existing claims against his purchaser from the further sale or further processing as well as in the case of damage or the loss of the goods delivered by us all claims against insurance companies or other third parties in the amount of the existing debt. If the goods are in co-ownership with us and other third parties, then the customer transfers to us the claims from the further sale to that fraction, which corresponds to our co-ownership share. (4) The customer is authorised to call up the claims transferred to us. We undertake not to call up the claim provided the customer fulfils his payment obligations, does not get delayed in payment and no application to open insolvency or comparison proceedings is made or suspension of payment is present. If however this is the case, then the customer is bound to inform us of the transferred claims, the debtors and all instructions necessary for collection, to transfer the related documents and to show the transfer to the debtor. (5) If the value of the claims transferred to us and/or the goods to which we have ownership before or after an editing or processing, exceeds our own claims towards the customers by more than 20%, then we will release claims or goods of our choice upon request of the customer, until the exceeding amounts to no more than 20%. (6) The customer undertakes to notify us immediately about if third parties access purchased items, delivered under ownership retention, and rights, that were transferred to us. If the third party is unable to reimburse us the legal and out-of-court costs of a third party discrepancy case (§ 771 ZPO [Civil of Civil Procedure]), then the customer is liable for this. (7) The customer must carefully protect the goods and sufficiently insure these against theft and fire at his own cost. (8) With the complete payment of our claims resulting from the business relation, the ownership for the goods delivered under ownership retention is transferred to the customer and he is again entitled to transferred claims. § 8 – Final Clauses (1) Provided legally allowed and with absence of other explicit agreements, the place of delivery and payments as well as the general jurisdiction is our headquarters. We are authorised, at our discretion, to also complain at the general jurisdiction of the customer. (2) The contract relationship and all disputes arising from this are subject to the law of the Federal Republic of Germany, even with foreign businesses. Disclaimer |
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| Last Updated ( Montag, 07 Juni 2010 ) |
