General Terms and Conditions of Sale (T&C) of Kito Europe GmbH (KITO)
I. Scope of application, written form:
These T&Cs apply to all present and future supplies and services of KITO towards a legal entity (the “Customer”) and shall replace all previous terms and conditions of Kito. The mandatory as well as the concessionary law, in particular the statutory provisions of the German Civil Code (Bürgerliches Gesetzbuch – BGB) and the German Commercial Code (Handelsgesetzbuch – HGB) shall apply, unless these T&Cs or any separate agreement with the Customer does not contain a respective provision. These T&Cs shall be deemed accepted, at the latest upon receipt of the delivery by the Customer. Terms and conditions of the Customer containing provisions deviating from these T&Cs shall not apply, irrespective of kind and date of their submission to KITO, unless KITO expressly agreed to them in writing.
The following provisions shall apply unless otherwise expressly and separately agreed between the parties in written form. The requirement of written form as provided in these T&Cs is sufficiently complied with if the respective document has been submitted via fax or email.
II. Offer and conclusion of the contract:
Any offer made by KITO shall be non-binding and subject to confirmation by Kito. Drawings, illustrations, measurements, data, or other specifications are binding if they have been expressly agreed in written form. Binding orders are valid upon receipt of an order confirmation of KITO in text form. The same applies to additional, amending, or subsidiary agreements with respect to the orders. Further, the order is implicitly accepted in case KITO performs the order.
III. Delivery, deadlines, time limits, and force majeure:
KITO will comply with deadlines and time limits, provided that all technical specifications have been clarified and, where appropriate, the Customer duly cooperated in a timely, complete, and proper manner. Deadlines and time limits are binding upon KITO’s confirmation in text form. KITO shall be entitled to partial deliveries unless this is unreasonable for the Customer weighing up the interests of the parties. The date on the delivery note corresponds with the date of delivery.
In case KITO does not timely perform the delivery for a reason within its responsibility, the Customer shall request KITO to perform the delivery within a reasonable period which shall generally be at least two weeks. Upon request of KITO, the Customer undertakes to declare within a reasonable deadline whether it rescinds the contract and/or requests damages in lieu of delivery due to the delay or whether it insists on the performance of the delivery.
In case an agreed deadline is delayed due to reasons for which KITO is not responsible because KITO has not been supplied in a timely or proper manner, despite proper congruent coverage, the deadlines will automatically extend for a reasonable time. In case KITO informed the Customer on the hindrance of performance and if the hindrance is not only of temporary nature, KITO is entitled to rescind the contract in its entirety or in part.
KITO shall not be responsible for any events of force majeure or operational disruption occurring in relation to KITO and/or its suppliers due to, e.g., riots, lockouts, administrative orders, and/or other events outside the sphere of influence of KITO temporarily preventing KITO from providing the delivery. The delivery and performance duties of KITO shall be suspended for the duration of the disruption and for a reasonable recovery time. In case KITO informed the Customer about the hindrance of performance and in case the hindrance is not only of temporary nature, KITO is entitled to entirely or partially rescind the part of the contract not yet performed.
After the unsuccessful expiry of a reasonable deadline, the Customer shall be entitled to rescind the contract. In such case the statutory provisions in accordance with paragraph 8 (liability) shall apply with respect to the Customer’s consideration as well as its claims.
Unless otherwise agreed, the goods shall be delivered ex warehouse of KITO in Dusseldorf, ex delivery factory, or ex dispatch point. The risk of accidental loss or damage to the goods passes to the Customer upon hand over of the goods to the carrier or, in case the goods cannot or should not be sent, once the goods have been made available for collection and upon submission of a notification by KITO to the Customer about the availability of the goods for collection. Further, the risk shall pass to the Customer once the latter is in default of acceptance. In case the delivery or dispatch cannot take place due to reasons for which KITO is not responsible, the risk shall pass to the Customer upon notification of readiness for delivery by Kito. Dispatches shall be made insured and through a carrier at KITO’s choice (e.g., Deutsche Post/DHL, parcel services, railway or carrier). An agreement on an exceptional basis on carriage paid delivery merely applies to ordinary freight.
V. Prices and payment:
Euro prices plus applicable value added tax as indicated in the order confirmation shall apply. Prices apply unless otherwise indicated ex warehouse Dusseldorf. Invoices shall be settled within 30 days from the date of invoice without deduction net in cash or via bank transfer. The invoice is enclosed in the delivery/collection or is separately sent via email or postal service. In case the Customer does not collect the goods at the agreed time despite a respective notice of readiness of collection, KITO will separately send the invoice to the Customer.
KITO reserves the right to request payments in advance or respective security. Upon expiry of the payment term the Customer shall be in default without further reminder. Irrespective of any provision of the Customer to the contrary, KITO may offset any payments against costs, interests, and debts of the Customer at its own discretion and KITO shall inform the Customer about the respective offset in that case.
The Customer shall merely be entitled to offset if its counterclaim is undisputed or an enforceable instrument exists. The same applies to any right of retention of the Customer.
VI. Retention of title:
KITO retains title to the delivered goods (the “reserved goods”) until receipt of all receivables including any balance demands which KITO may have at the date of the transfer of ownership.
The Customer is authorized to resell and to process the reserved goods in proper business transactions unless the Customer is in default of payment. The reserved goods may neither be pledged to third parties nor assigned as collateral security. The Customer entirely assigns to KITO its claims against third parties (including all claims from current accounts) established through the resale of the reserved goods or through another legal basis as collateral security. The Customer shall remain authorized to collect the claim in its own name and for the account of KITO. KITO may withdraw the authorization only in case the Customer does not properly comply with its payment obligations.
Upon request of the Customer, KITO undertakes to release collateral items at KITO’s choice if the realizable value of the collateral items exceeds KITO’s claims by more than 10%.
In the event third parties seizure the reserved goods, the Customer undertakes to inform those third parties about KITO’s property of the reserved goods and shall immediately notify KITO thereof. In case of any violation of the contract by the Customer, in particular in case of a default of payment, KITO shall be entitled to recall the reserved goods or, where appropriate, to claim that the Customer assigns to KITO its surrender claims against that third party. Neither the recall nor the pledging of the reserved goods through KITO shall be deemed to rescind the contract.
VII. Warranty claims:
KITO shall perform its deliveries and services properly and with the care of a prudent businessman under consideration of the applicable standards and statutory provisions. The Customer shall without undue delay inspect each delivery with respect to material defects (sections 377, 381 HGB). The Customer shall notify KITO without undue delay, however, within two weeks, of any material defect discovered through such inspection or discovered at a later stage in written form using the forms provided by KITO. If the Customer fails to comply with its inspection and notification duties, the goods shall be deemed to be accepted by the Customer and any liability of KITO shall be excluded with respect to the respective goods.
In addition, the statutory provisions shall apply, provided that the Customer gives KITO the opportunity to rectify any defective service including delivery at KITO’s choice, i.e., either to repair or to replace the defective good through supplementary performance. KITO reserves the right to request the Customer to pay an appropriate part of the purchase price. However, the Customer may retain an appropriate part of the purchase price until defect has been remedied.
Place of performance of the rectification shall be the original place of delivery unless the transfer of the good complies with its intended use. Additional rectification costs incurred through the transfer to another place with restricted access, shall be borne by the Customer. In case of a supplementary performance, the Customer shall return the defective good to KITO.
In case the rectification fails despite two attempts of rectification through KITO or in case KITO is in default with the rectification, the Customer may rescind the contract waiving its rights to further rectification or may reduce the purchase price considering the value of the defect correspondingly. The right to rescind the contract shall be excluded in case of insignificant defects.
The Customer shall be entitled to damages or compensation of fruitless expenditures as set forth in the following paragraph 8 (liability); any further claims shall be excluded.
The following limitations of liability do not apply in the event of intent and gross negligence, or in case of a violation of life, body or health as well as any claims under the German product liability act or in case of a guarantee.
KITO shall be liable in case of a violation of material contractual duties which make the proper performance of the contract possible or which may jeopardize the achievement of the purpose of the contract. The liability of KITO per damaging event is limited to the typical enforceable damage.
Apart from that the contractual, precontractual and noncontractual liability of KITO shall be excluded.
To the extent that a liability of KITO is excluded or limited, this also applies to KITO’s corporate bodies, employees, representatives and agents.
IX. Limitation period:
The mutual claims of the parties become statutebarred according to the statutory provisions unless otherwise agreed hereinafter.
Claims of the Customer deriving from material defects or from defects in title become statutebarred one year from the delivery of the good unless KITO fraudulently concealed a defect. This will not apply to damages caused by a violation of life, body or health and/or to damages caused by an intentional or grossly negligent violation of a duty by KITO.
The limitations to contractual claims for damages caused by a defect according to this paragraph IX correspondingly apply to competing non-contractual claims for damages unless the regular statutory limitations according to sections 195, 199 BGB lead to a shorter limitation period on a case-by-case basis. The limitation period according to the German product liability act remains unaffected
X. Applicable law, venue, severability:
These T&Cs and the parties’ legal relationship are governed by the laws of the Federal Republic of Germany under exclusion of the United Nations Convention on the International Sale of Goods (CISG). Place of performance for any delivery and payment shall be Dusseldorf. Further, Dusseldorf shall be the exclusive place of jurisdiction for all current and future disputes under or in connection with the contractual relationship. That shall not apply to any default action. The ineffectiveness and voidness of individual provisions of these T&Cs or of any provision of a separate agreement between KITO and the Customer will not affect the validity of the other provisions of these T&Cs and the separate agreement, respectively.
Status as of February 2017