General Terms and Conditions of Koschaum GmbH
1) Applicability of the Terms and Conditions
I. All offers, deliveries, and services of Koschaum GmbH shall take place exclusively on the basis of these Terms and Conditions. They shall therefore also apply to all future business relations, even if they are not again explicitly agreed. These Terms and Conditions shall be considered as being accepted at the latest upon acceptance of the goods or services. Counter-confirmations on the part of the customer referring to his terms and conditions and/or conditions of purchase shall be hereby opposed.
II. All agreements made between Koschaum GmbH and the customers for the execution of this contract are to be put down in writing in this contract.
2) Offer and conclusion of the contract
I. The offers of Koschaum GmbH shall be subject to change and non-binding. Declarations of acceptance and all orders shall require the confirmation of Koschaum GmbH in writing or by telex to be legally effective.
II. Drawings, illustrations, measurements, or other service data shall only be binding if this has been explicitly agreed in writing.
III. The sales personnel of Koschaum GmbH shall not be authorised to make additional oral agreements or give oral assurances going above and beyond the content of the written contract.
I. Unless otherwise stated, Koschaum GmbH shall be bound to the prices stated in their offer for 30 days. The prices stated in the order confirmation by Koschaum GmbH plus the respective statutory turnover tax shall be authoritative. Additional deliveries shall be charged separately.
II. Unless agreed otherwise, the prices shall accordingly be ex works Abenberg / Germany including regular packaging and shall not include the costs for freight and postage and the costs for any insurance concluded only by explicit request of the customer.
I. Unless agreed otherwise, the bills of Koschaum GmbH shall be payable 30 days after the billing date without deductions. For payments within 8 days, a 2% cash discount shall be given.
II. Notwithstanding any contrary provisions of the customer, Koschaum GmbH shall be entitled to credit payments against previous debts first and shall inform the buyer about the type of the offsets carried out. If expenses and interest have already accrued, Koschaum GmbH shall be entitled to credit the payment against the costs first, then against the interest, and finally against the principal claim.
III. A payment shall only be considered effected once Koschaum GmbH can dispose of the amount. In case of payment by check, the payment shall only be considered effected once the check has been cashed. Payment by letter of exchange shall require the explicit agreement of Koschaum GmbH. A letter of exchange shall only be accepted on account of payment; discount and bill charges shall be borne by the customer and shall be due immediately.
IV. Should the customer fall into arrears, Koschaum GmbH shall be entitled to charge interest in the amount of 2% above the respective discount rate of Deutsche Bundesbank as flat compensation for damages, starting at the respective time. The interest shall be lower if the customer offers evidence of proof of a lower charge; the evidence of proof of higher damages by Koschaum GmbH shall be admissible.
V. In case Koschaum GmbH is informed about circumstances putting the customer’s creditworthiness in question, particularly if a check or letter of exchange is not being honoured or if the customer discontinues his payments, Koschaum GmbH shall be entitled to make due the entire unpaid balance, even when he has accepted checks or letters of exchange. In this case, Koschaum GmbH shall furthermore be entitled to demand prepayments or guarantee deposits.
VI. The customer shall be entitled to an adjustment of the credit balance, retention or reductions, even if notices of defects or counterclaims are asserted, only if the counterclaim has been finally ascertained or are indisputable. However, the customer shall also be entitled to retention due to counterclaims from the same contractual relationship.
VII. For customers with head office outside of the Federal Republic of Germany, Koschaum GmbH shall be entitled to make the delivery of the goods dependent upon the submission of a letter of credit.
5) Times of delivery and service
I. Delivery times or periods, which may be agreed with or without obligation, shall require the written form.
II. Koschaum GmbH shall not be responsible for delivery and service delays due to force majeure and events that make delivery substantially more difficult or impossible for Koschaum GmbH – this shall include specifically strike, lockout, official orders, etc., even if they occur at the location of suppliers of Koschaum GmbH or their sub-suppliers –, even if deadlines and dates have been bindingly agreed. Koschaum GmbH shall be entitled to postpone the delivery and/or service by the duration of the impediment plus a reasonable preparatory period or to withdraw from the contract in whole or in part due to the part not yet fulfilled.
III. If the impediments last for more than 3 months, the customer shall be entitled to withdraw from the contract regarding the part not yet fulfilled, after setting a reasonable extension of time. In case the delivery time is extended or Koschaum GmbH is released from its commitment, the customer may not derive any compensation claims from this fact. Koschaum GmbH shall only be able to refer to the circumstances listed above if it notifies the customer without delay.
IV. Koschaum GmbH shall be entitled to carry out partial deliveries and partial services at any time.
V. Compliance with the delivery and service obligations of Koschaum GmbH shall require the timely and proper fulfilment of the customer’s obligations.
VI. If the customer is in default in acceptance, Koschaum GmbH shall be entitled to demand compensation for damages incurred; upon occurrence of the default in acceptance, the risk of fortuitous deterioration and fortuitous loss shall pass to the customer.
6) Passage of risk
The risk shall pass to the customer as soon as the shipment has been handed over to the person carrying out the transport and has left the Koschaum GmbH warehouse for the purpose of dispatch. Should the dispatch become impossible through no fault of Koschaum GmbH, the risk shall pass to the customer upon notification of the delivery being ready for dispatch.
I. Should the deliverables be defective or lacking promised features, or should they become defective within the warranty period due to production or material defects, Koschaum GmbH shall deliver a replacement of their choice to the exclusion of other warranty claims of the customer or make improvements.
II. Slight technically unavoidable deviations in quality and colour according to custom and usage shall not entitle to notices of defects.
III. The warranty period shall be 6 months and shall start with the date of delivery.
IV. Koschaum GmbH shall only be liable in cases of intent and gross negligence for further claims and rights. Apart from this, all liabilities shall be excluded.
V. In case the purchase is a commercial transaction for both parties, the regulations for commercial transactions according to sections 373 ff. HGB (German commercial code) shall apply in addition.
8) Nature of the goods
I. All information on our goods shall be considered a mere indication of their nature, unless special characteristics and/or qualifications of our goods for special purposes have been explicitly assured in writing in the context of a guaranty.
II. Data and information on qualifications, use, and workmanship of our goods shall not release the customer from the obligation to carry out independent checks.
9) Reservation of ownership
I. The goods shall remain the property of Koschaum GmbH until all debts, including secondary claims, claims for damages, and cashing-in of checks and letters of exchange, have been paid in full.
II. The reservation of ownership shall also remain in force if individual claims of Koschaum GmbH are included in a current account and the balance has been tallied and recognised.
III. The customer shall be entitled to further process the goods and sell them, taking into account the following provisions:
a) The powers of the customer to process reserved goods in the proper course of business shall end upon cessation of payment of the customer or upon application and/or opening of bankruptcy or conciliation proceedings.
b) By processing the reserved goods, the customer shall not acquire ownership of the new product according to section 950 BGB (German Civil Code). The processing shall take place for Koschaum GmbH without any liabilities resulting from it.
If the goods are processed or mixed together with other items, Koschaum GmbH shall acquire co-ownership of the new item proportional of the value of its reserved goods to the overall value.
c) The customer shall herewith transfer the claims with all ancillary rights from the resale of the reserved goods to Koschaum GmbH, in fact proportionally also in as far as the goods have been processed or mixed and Koschaum GmbH has acquired co-ownership in the amount of its billing value. In the latter case, Koschaum GmbH shall be entitled in this cession to a fractional amount of the respective purchase price corresponding in proportion of the billing value of its reserved goods to the billing value of the item. In case the customer has sold the claim in the context of real factoring, he shall cede the claim taking its place against the factor to Koschaum GmbH.
Koschaum GmbH shall accept this cession.
d) Koschaum GmbH shall not collect the ceded claim as long as the customer is meeting his obligation to pay. The collection authorisation shall expire upon delay of payment of the customer. In this case, Koschaum GmbH shall be authorised by the customer to inform the buyer of the cession and to collect the claims itself.
The customer shall be obligated to supply Koschaum GmbH by request with a detailed list of the claims due Koschaum GmbH with name and address of the buyer, the amount of the individual claims, billing date, etc., and to give Koschaum GmbH all the necessary information required for asserting the ceded claims, and to allow the verification of this information.
The customer shall be entitled to collect claims on his own until Koschaum GmbH gives him different instructions.
e) Koschaum GmbH shall undertake to release the securities it is due in as far as their value exceeds the claims to be secured by more than 20%.
f) Pawning or transfer by way of security of the reserved goods and/or the ceded claims shall not be permitted. Koschaum GmbH shall be informed immediately about pawnages including the data of the secured creditor.
g) In case Koschaum GmbH retrieves the delivered item due to the reservation of ownership, this shall not be considered a withdrawal from the contract. Koschaum GmbH shall be able to satisfy itself with private sale of the retrieved reserved goods.
h) The customer shall keep the reserved goods for Koschaum GmbH free of charge. He shall ensure them against customary risks such as fire, theft, and water to the customary extent. The customer shall hereby cede the compensation claims due him from damages of the type mentioned above against insurance companies or other liable parties to Koschaum GmbH in the amount of his claims.
Koschaum GmbH shall accept this cession.
i) All claims as well as rights from the reservation of ownership of all special forms specified in these Terms and Conditions shall remain applicable until the complete release from contingent liabilities and commitments Koschaum GmbH has entered into in the interest of the customer.
10) Limitation of liability
Claims for damages from positive violation of contractual duty, negligence at the time of the agreement and liability in tort shall be excluded both against Koschaum GmbH and against its vicarious agents, unless the damage was caused wilfully or by gross negligence. This shall also apply to claims for damages due to non-performance, however only in as far as substitution for indirect or consequential harm caused by a defect is being claimed, unless the liability is based on an assurance that is to protect the customer against the risk of such damages. All liability shall be limited to the damage predictable ta the time of conclusion of the contract. In this case, any liability of Koschaum GmbH according to the Product Liability Act and other claims from producer liability shall remain unaffected.
11) Applicable law, place of jurisdiction, severability clause
I. The law of the Federal Republic of Germany shall apply to these Terms and Conditions and the entire legal relations between Koschaum GmbH and the customer, as far as permitted by law.
II. If the customer is a general merchant as defined by the Commercial Code, a public law entity, or a special fund under public law, Nuremberg/Germany shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship.
III. In case a provision of these Term and Conditions or a provision in the context of other agreements is or becomes ineffective, the validity of the remaining provisions or agreements shall remain unaffected.