General Terms and Conditions
1. SCOPE OF APPLICATION
(1) The offers and contracts of Kito Europe GmbH, Heerdter Lohweg 93, 40549 Düsseldorf (hereinafter referred to as “KITO”) are exclusively made on these General Terms and Condi-tions ("GTC"). They shall apply to all future deliveries or offers to customers, even if the GTC are not explicitly referred to each and every time.
(2) These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the purchaser shall only become part of the contract if and to the extent that KITO has expressly agreed with them. That shall apply in any case, for example even if KITO carries out the delivery to the purchaser in full knowledge of the purchaser's general terms and conditions and without any reservation in this regard.
2. CONCLUSION OF THE CONTRACT
(1) The contract with the respective purchaser is established only upon written confirmation of the order by KITO or upon delivery of the goods at the request of the purchaser. Any prior declarations on the part of the purchaser, in particular letters of confirmation, shall only be deemed as an offer to enter into a contract. Verbal commitments on the part of KITO prior to the conclusion of the contract are non-binding and any verbal agreements between the par-ties shall be replaced by the written contract, unless it is expressly stated in each case that they shall remain legally binding.
(2) Unless otherwise agreed in writing, all offers which form part of the offers such as price lists, drawings, illustrations, measurements, weights or other performance data and other docu-ments of KITO are not binding.
3. DELIVERY AND DELAY IN DELIVERY
(1) Unless otherwise agreed, delivery shall be EXW (Incoterms 2010) Dusseldorf, where the place of performance for the delivery and any subsequent performance shall also be. At the purchaser's request and expense, the goods shall be dispatched to another destination (Versendungskauf). Unless otherwise agreed, KITO shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) at its own discretion.
(2) KITO shall insure deliveries against theft, breakage, transport, fire and water damage or other insurable risks only upon the purchaser's explicit written request and at the purchas-er's expense.
(3) If the goods cannot or shall not be shipped ("collection by the customer"), KITO will first in-form the purchaser by e-mail that the ordered goods are ready for collection. The collection of the goods by the purchaser shall then generally be effected within 5 days from the date the goods are made available and information has been provided to the purchaser. The purchaser will be informed separately about the requirements and details of the collection by the KITO shipping department.
(4) KITO is entitled to make partial deliveries, if
• the partial delivery is usable for the purchaser within the scope of the contractual pur-pose,
• the delivery of the outstanding goods is confirmed, and
• the purchaser does not incur any significant additional costs or expenses through the partial delivery (unless KITO agrees to assume such costs).
(5) All dates and deadlines stated by KITO shall be binding only if they are expressly identified as being binding. The expiry of binding deadlines shall entitle the purchaser to assert any statutory rights it may have - subject to the any restrictions in these GTC - but only after the fruitless expiry of a reasonable remedy period set by the purchaser. If no binding delivery period has been agreed, the delivery period shall be approximately two weeks from the con-clusion of the contract.
(6) If KITO is unable to comply with binding delivery periods for reasons for which KITO is not responsible (non-availability of performance), the purchaser shall be informed thereof with-out delay and simultaneously be informed of the anticipated new delivery period. The case of non-availability of performance within this meaning shall particularly include delayed self-delivery where KITO has entered into a congruent hedging transaction, where neither KITO nor the supplier is at fault, or where KITO is not obliged to procure goods in an individual case.
(7) The time of default in delivery shall be determined in accordance with the statutory provi-sions. In any case a reminder by the buyer is necessary. In the event of a delay in delivery, the purchaser may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but shall not exceed a total of 5% of the delivery value of the delayed goods. KITO reserves the right to prove that the buyer has suffered no dam-age at all or only a significantly lower damage than the aforementioned lump sum.
(8) The purchaser's rights according to clause 8 of these GTC remain unaffected.
4. TRANSFER OF RISK
(1) The risk of accidental loss and accidental deterioration of the goods shall pass to the pur-chaser upon handover of the goods at the latest.
(2) In case the goods shall be dispatched to another destination (Versendungskauf; cf. section 3 (1)), the risk shall pass to the purchaser upon handover of the goods to the transport company, carrier or other third party entrusted with the dispatch.
(3) If the delivery is delayed due to a circumstances caused by the purchaser or at the pur-chaser's request, the risk shall pass to the purchaser on the date of notification of readiness for dispatch (default of acceptance).
(4) Additional expenses, in particular storage costs, after transfer of risk shall be borne by the purchaser. The storage costs amount to 0.25% of the invoice amount of the stored goods per expired week. We reserve the right to assert and prove further or lower storage costs.
5. PRICES AND TERMS OF PAYMENT
(1) Unless otherwise agreed in individual cases, the prices specified in the order confirmation exclusive of statutory value added tax shall apply.
(2) In case the goods shall be dispatched to another destination (Versendungskauf; cf. section 3 (1)), the purchaser shall bear the shipping costs.
(3) The purchase price is due and payable in cash or by bank transfer within the agreed pay-ment period or in the absence of an agreed payment period, within 30 days of receipt of the invoice and delivery of the goods without deduction. The deduction of discount requires pri-or written agreement. The invoice shall be attached to the delivery of the goods or shall be separately sent by e-mail or postal service. KITO is entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment or provision of security. A respective reservation is declared at the latest with the order confirmation.
(4) If the purchaser misses to pay the invoice within the payment period according to clause 5 (3), the purchaser shall be in default. During the default period, interest shall accrue on the purchase price at the statutory default interest rate applicable from time to time. In addition, KITO shall be entitled to payment of a lump sum for default in the amount of 40 Euro for each case of default. The lump sum will be credited against any damages that may result, insofar as such damages result from legal prosecution. Further claims for damages caused by delay remain unaffected. The claim to the commercial due interest (Section 353 German Commercial Code) remains unaffected.
(5) Payments made by the purchaser may, at the discretion of KITO, be set off against all due payment claims against the purchaser. In this case, KITO will inform the purchaser of the settlement method.
(6) A set-off or retention on the part of the purchaser is only permissible due to uncontested or legally enforceable counterclaims of the purchaser.
6. RETENTION OF TITLE, ASSIGNATION
(1) KITO retains title to the delivered goods until full settlement of the contractually agreed payments arising from the underlying contract and from contracts for similar goods in an on-going business relationship, including statutory claims. The purchaser is obliged to label goods subject to retention of title.
(2) The purchaser may use the goods subject to retention of title and resell them in the ordinary course of business as long as the purchaser is not in default of payment. However, the pur-chaser may not pledge or assign by way of security the goods subject to retention of title. The purchaser's claims for payment against its customers arising from the resale of the goods subject to retention of title as well as the purchaser's claims in respect of the goods against its customers or third parties arising from any other legal reason (in particular claims arising from
unauthorised action and claims to insurance benefits), including all balance claims from cur-rent accounts, are hereby assigned to KITO in their entirety by way of security.
(3) The purchaser may collect these claims assigned to KITO on its own account in its own name for KITO unless KITO withdraws this authorization. KITO's right to collect such claims itself shall not be affected; however, KITO shall not assert the claims itself and shall not withdraw the direct debit authorization as long as the purchaser duly meets its payment ob-ligations.
(4) In the event that the purchaser is in breach of contract - in particular if the purchaser is in default of payment - KITO is entitled to demand that the purchaser provides KITO with de-tails of the assigned claims and the respective debtors, communicates the assignment to the respective debtors and provides KITO with all documents and information required by KITO to assert the claims.
(5) The retention of title shall extend to the full value of the products resulting from the pro-cessing, mixing or combining of the goods, whereby KITO shall be deemed the manufactur-er within the legal meaning. If the proprietary rights of third parties remain in force during processing, mixing or combination with goods of third parties, KITO shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the new product as to the goods delivered un-der retention of title.
(6) If KITO terminates the contract in case of breach of contract by the purchaser, in particular in case of default of payment, KITO shall be entitled to take back the goods not yet owned by the purchaser at the purchaser's expense and/or to claim damages from the purchaser. Further claims of KITO remain unaffected.
(7) In case of seizure, confiscation or implementation of execution measures by third parties, the purchaser has to inform KITO in writing without delay. The purchaser shall bear the costs of asserting and enforcing KITO's claims with regard of the goods subject to retention of title.
(8) To the extent that the value of the existing securities exceeds KITO's claims against the purchaser arising from the underlying contract and any preceding business relations be-tween KITO and the purchaser regarding similar goods by more than 20 %, KITO shall be obliged to release corresponding securities at KITO's discretion upon the purchaser's re-quest.
(1) Warranty is based on the individually agreed quality. If the quality has not been agreed, the statutory provisions shall apply when assessing whether a defect exists or not (Section 434 (1) (2) and (3) German Civil Code). KITO accepts no liability for public statements made by third parties (e.g. advertising statements). Unless otherwise contractually agreed between KITO and the purchaser, enclosed product descriptions as well as the individual contractual-ly agreed quality do not constitute the assumption of a guarantee of quality or durability within the meaning of § 443 of the German Civil Code).
(2) The statutory provisions shall apply to the purchaser's rights in the event of material defects and defects of title, unless otherwise specified below.
(3) The purchaser is obliged to carefully examine the delivered goods immediately after delivery to him or to the third party appointed by the purchaser. The goods shall be deemed ap-proved by the purchaser with regard to obvious defects or other defects that would have been recognizable in an immediate, careful inspection if KITO does not receive a notice of defects within five working days of delivery. With respect to other defects, the goods shall be deemed approved by the purchaser if the notice of defects is not received by KITO within five working days after the time at which the defect became apparent; if the defect was al-ready recognizable to the purchaser at an earlier time under usual circumstances, this earlier date shall, however, be decisive for the beginning of the period for notification of defects.
(4) Notification of defects and assertion of claims for defects must be made in writing, using the KITO Claim Application applicable at the time of assertion and using the claim process spec-ified by KITO. KITO will provide the purchaser with access to the claim system and other necessary information.
(5) In the event of material defects, KITO shall be obliged and entitled, at its discretion within a reasonable period of time, to remedy the defect or replace the defective goods. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay in repair or re-placement, the purchaser may rescind the contract or reasonably reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
(6) At KITO's request, the defective goods shall be returned to KITO free of freight charges. In the event of a justified complaint, KITO shall reimburse the costs of the most economical shipping method.
(7) KITO shall be entitled to make subsequent performance conditional upon the purchaser paying a reasonable portion of the purchase price, whereby the purchaser may retain a rea-sonable portion of the purchase price until the defect has been remedied. KITO may refuse subsequent performance altogether if it only involves disproportionate costs or is impossible for other reasons. Further rights of the purchaser remain unaffected.
(8) The warranty period is one year and commences upon delivery to the purchaser or another recipient designated by the purchaser. The statutory special provisions on the statute of limi-tations (in particular section 438 (3), sections 444, 445b German Civil Code) shall remain unaffected. The shortened limitation period shall not apply to claims for damages by the purchaser arising from injury to life, body or health or from wilful or grossly negligent breach-es of duty by KITO or its vicarious agents as well as under the Product Liability Act, which in each case shall become statute-barred in accordance with the statutory provisions.
(1) KITO is liable for intent and gross negligence without limitation.
(2) In case of simple negligence KITO is only liable
a) for damages resulting from injury of life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (i.e. an obligation whose fulfilment is essential for the proper execution of the contract and on whose
observance the contractual partner regularly relies and may rely); in this case, howev-er, liability is limited to compensation for the foreseeable, typically occurring damage.
The limitations of liability above do not apply if KITO has fraudulently concealed a defect or has given a guarantee for the quality of the goods. The same shall apply to the purchaser's claims under the Product Liability Act. Any further liability of KITO is excluded.
(3) To the extent that KITO's liability is excluded or limited, this shall also apply to the personal liability of KITO's employees, representatives and vicarious agents.
(4) When using KITO products, the special instructions for handling and use must always be observed. KITO accepts no liability for misuse.
9. FORCE MAJEURE
KITO shall not be liable for the inability to deliver or for delays in delivery if they were caused by force majeure or other events not foreseeable at the time of the conclusion of the con-tract (e.g. disruptions of operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, diffi-culties in procuring necessary official permits, official measures) for which KITO is not re-sponsible. Insofar as such events substantially impede or render the delivery impossible for KITO and the impediment is not only of a temporary nature, KITO shall be entitled to with-draw from the contract. In the event of hindrances of a temporary nature, the delivery or per-formance periods shall be extended or the delivery dates postponed by the period of the hindrance plus a reasonable lead time. As far as the purchaser cannot reasonably be ex-pected to accept the delivery due to the delay, the purchaser may withdraw from the con-tract by immediate written declaration to KITO.
10. FINAL PROVISONS
(1) The provisions of these GTC shall remain binding in their entirety even if individual provi-sions are legally invalid. The parties undertake to replace ineffective provisions with provi-sions that come as close as possible to the desired economic success. The same shall ap-ply to any loopholes in the contract.
(2) Amendments or supplements to these GTC as well as confirmed orders require written form. This also applies to any changes to this requirement of the written form.
(3) The contract concluded between the parties shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(4) The place of jurisdiction for all disputes in connection with the contract concluded between the parties shall be Dusseldorf. This shall not affect the statutory place of jurisdiction for de-faults proceedings. Notwithstanding that, KITO remains entitled to bring an action at the purchaser's general place of jurisdiction.
End of GTC
Status December 2018