U. Kolb Vertriebs GmbH | Waldenbuch

§ 1 Scope

(1) All deliveries, services and offers of U. Kolb Vertriebs GmbH (hereinafter referred to as “Kolb”) shall be carried out exclusively in accordance with these General Terms and Conditions of Sale. These are considered a part of all agreements Kolb concludes with its contractual partners (hereinafter referred to as “clients”) regarding the services and deliveries it offers. They shall also apply to all future deliveries, services, or offers for the client, even if they are not separately agreed to.

(2) Any terms and conditions of the client or third parties shall not apply, even if Kolb does not object to their validity in an individual case. Even if Kolb refers to a document containing the terms and conditions of the client or a third party, this shall not be considered agreement with the validity of such terms and conditions.

§ 2 Offer and conclusion of contract

(1) All offers by Kolb are non-binding, unless they are expressly designated as binding or include a specific acceptance term. Kolb can accept orders or contracts within (14) days of receipt.

(2) Only the purchasing agreement concluded in written or text form shall be considered valid for the legal relationships between Kolb and the client, including these General Terms and Conditions of Sale. This includes all agreements that have been made between the contractual parties regarding the purpose of the contract in full. Any oral commitments made by Kolb before this agreement was concluded are not considered legally binding, and oral agreements between the contractual parties shall be replaced by the agreement concluded in written and text form, unless otherwise expressly agreed between the contractual parties.

(3) Supplements and amendments to the agreements, including these General Terms and Conditions of Sale, shall require the written form to be valid. Transmission via telecommunications equipment is sufficient to fulfill the written form requirement, in particular via e-mail, including in text form.

(4) Information provided by Kolb regarding the delivery or service (such as regarding weights, dimensions, consumption, load capacity, tolerances and technical data) and illustrations of the same (such as drawings and images) are only considered approximate, unless exact conformity is required for them to be used for the purpose intended under the contract. They are not considered guaranteed assured characteristics; instead, they are only descriptions or designations of the delivery or service. Customary deviations, and deviations due to statutory regulations or that represent technical improvements, as well as replacing components with equivalent parts are permitted, as long as they do not interfere with use of the delivery or service for the contractual intended purpose.

(5) The client is obligated to provide Kolb with complete, correct specification data in order to prepare its offer.

(6) Kolb shall reserve ownership and copyrights to all offers and cost estimates it provides, as well as any drawings, images, calculations, brochures, catalogs, models, tools and other documents and auxiliary materials provided to the client. The client may not make these objects nor their contents accessible to third parties without the express approval of Kolb, nor may it publish them, duplicate them, use them itself, or provide them for third parties to use. Upon request by Kolb, the client shall return these objects to Kolb in full, and shall destroy any copies if they are no longer needed in the normal course of the client’s business, or if negotiations between the parties do not result in the conclusion of a contract. Storing data provided electronically for the purpose of regular data backups is excepted from this provision.

§ 3 Prices and payment

(1) Prices apply to the scope of deliveries and services indicated in the order confirmations. Additional or special services shall be billed separately. Prices are provided in euros ex works, and do not include packaging, statutory VAT, customs duties for export deliveries, as well as fees and other public charges.

(2) Invoiced amounts shall be paid within thirty days without deductions, unless otherwise agreed in writing. The date of payment shall be the date payment is received by Kolb. Payment by check is not permitted, unless separately agreed in an individual case. If the client does not make a payment by the due date, the outstanding amounts shall be subject to interest of 5 % p.a. from the due date; the right to assert higher interest and further damages due to default shall remain unaffected.

(3) Claims may only be offset against the counter-claims of the client and payments may only be reserved due to such claims if the counter-claims are undisputed or have been established in a court of law, or if they result from the same order as the delivery in question.

(4) Kolb is entitled to carry out any outstanding deliveries or services only in return for advance payment or a security payment, if it becomes aware of any circumstances after the agreement is concluded that could significantly reduce the credit-worthiness of the client and that could interfere with payment of Kolb’s outstanding receivables by the client resulting from the contractual relationship (including from other individual orders subject to the same framework agreement).

§ 4 Delivery and delivery term

(1) Deliveries are completed ex works.

(2) Kolb’s projected deadlines and terms for deliveries and services are only approximate, unless a fixed term or deadline has been expressly agreed to or promised. If a shipment has been agreed upon, the delivery terms and deadlines are determined based on the time of handover to the freight forwarder, shipping company, or other third party commissioned to carry out the transport.

(3) Regardless of its rights resulting from the client’s default, Kolb can request that the client extend its delivery and service terms or delay its delivery and service terms by the time period during which the client does not fulfill its contractual obligations towards Kolb.

(4) Kolb shall not be liable if a delivery is delayed or impossible to complete, if such issues are the result of force majeure or other events not foreseeable at the time the contract was concluded (such as operational disruptions of any kind, difficulties with material and energy supplies, transportation delays, strikes, legal lock-outs, a lack of trained professionals, energy or raw materials, difficulties in acquiring necessary official permits, pandemics or epidemics, official measures or if deliveries are not made, not made correctly or not made in a timely fashion despite a hedging transaction concluded concurrently by Kolb) for which Kolb is not responsible. If such events make it much more difficult or impossible for Kolb to complete the delivery or service, and this issue is not only temporary, then Kolb is entitled to withdraw from the agreement. In case of ongoing difficulties, the delivery or service terms shall be extended or delayed by the duration of the difficulties, plus a reasonable lead time. If it would be unreasonable to expect the client to accept the delivery or service due to the delay, then it may withdraw from the agreement through a prompt written declaration to Kolb.

(5) Kolb is only entitled to make partial deliveries if

  • the partial delivery can be used by the client according to the intended contractual purpose,
  • delivery of the remaining ordered goods is ensured, and
  • the client will not incur any significant additional work or expense due to the partial delivery (unless Kolb declares its willingness to pay such costs).

(6) If Kolb falls into default with a delivery or service, or if it cannot complete a delivery or service for any reason, then Kolb’s liability shall be limited to compensation for damages according to Sec. 8 of these General Terms and Conditions of Sale.

§ 5 Place of jurisdiction, shipping, packaging, transfer of risk, acceptance

(1) The place of jurisdiction for all obligations resulting from the contractual relationship is Waldenbuch, unless otherwise stipulated. If Kolb is responsible for installation as well, then the place of jurisdiction shall be the location where the installation is to be completed.

(2) Kolb shall determine the shipping method and packaging at its own discretion.

(3) If shipping of the goods is agreed and Kolb has not agreed to be responsible for transportation or installation, risk shall be transferred to the client at the latest upon handover of the delivered objects (determined by the start of the loading process) to the freight forwarder, shipper, or other third party stipulated to carry out the shipment. If the shipment or handover are delayed due to a circumstance for which the client is responsible, then risk shall be transferred to the client from the date on which the delivered object is ready for shipping and Kolb has notified the client of this.

(4) Storage costs following the transfer of risk shall be borne by the client. If goods are stored by Kolb, the storage costs shall be 0.25 % of the invoiced amount for the delivered goods to be stored, per week. The parties reserve the right to assert and verify that storage costs were higher or lower.

(5) Kolb shall only insure the shipment against theft, breakage, transportation, fire and water damage or other insurable risks at the express request of the client.

(6) If acceptance is to be carried out, the purchased item shall be considered accepted once

  • the delivery and, if Kolb is responsible for installation, the installation are completed,
  • Kolb has informed the client of this, with a reference to assumed acceptance in accordance with this Sec. 5 (6) and requested acceptance from the client,
  • twelve business days have passed since the delivery or installation, or the client has begun use of the purchased item (e.g., has begun operation of the delivered system) and twelve business days have passed since the delivery or installation in this case, and
  • the client has not completed acceptance during this period for some other reason besides a defect of which Kolb has been notified that makes use of the purchased item impossible or significantly more difficult.

§ 6 Warranty, material defects

(1) The warranty term is one year from delivery or, if acceptance is required, from acceptance. This term shall not apply to claims for damages by the client due to injuries to life, body or health, or due to intentional or grossly negligent breaches of duty by Kolb or its agents, which shall expire in each case in accordance with statutory regulations.

(2) The delivered objects must be carefully inspected promptly after delivery to the client or the third party stipulated by the client, and Kolb must be notified promptly of any defects. Upon request by Kolb, delivered objects about which a complaint is made must be returned to Kolb free of charge. If the defect complaint is legitimate and submitted promptly, Kolb shall reimburse the costs of the least expensive shipping option. This shall not apply if the costs are increased because the delivered object is located somewhere besides the location of its intended use.

(3) In case of material defects in the delivered objects, Kolb is obligated and entitled to initially choose to correct the issue or make a replacement delivery within a reasonable time period. If this is not successful, for instance because it is impossible or unreasonable to do so, or if Kolb denies to correct the issue or make a replacement delivery, or if such corrections or replacements are delayed, the client may withdraw from the agreement or reduce the purchase price accordingly.

(4) If a defect was the fault of Kolb, the client may request damages pursuant to the requirements of Sec. 8.

(5) If there are defects in components from other manufacturers which Kolb is not able to correct for practical reasons or reasons resulting from licensing law, then Kolb shall, at its discretion, either assert its warranty claims against the manufacturers and suppliers on behalf of the client, or assign such claims to the client. Warranty claims against Kolb shall exist in case of such defects under the other requirements and in accordance with these General Terms and Conditions of Sale only if enforcement of the aforementioned claims against the manufacturers and suppliers in court was not successful, or if this would likely be unsuccessful, for instance due to bankruptcy. Expiration of the client’s warranty claims in question against Kolb shall be suspended during the legal dispute.

(6) The warranty shall not apply if the client modifies the delivered object or has it modified by third parties without Kolb’s approval, and if this makes it impossible or unreasonable to correct the defect. In all cases, the client shall bear additional costs to correct the defect resulting from the modification.

(7) Deliveries of used goods agreed with the client in an individual case shall be carried out excluding any warranty for material defects.

§ 7 Industrial property rights

(1) Kolb shall ensure in accordance with this Sec. 7 that the delivered object is free from any industrial property rights or copyrights of third parties. Each contractual partner shall notify the other contractual partner promptly in writing if any claims are asserted against it due to the violation of such rights.

(2) If the delivered object violates an industrial property right or copyright of a third party, Kolb shall, at its own discretion and cost, either modify or exchange the delivered object such that it no longer violates any third-party rights, but continues to fulfill the contractually agreed-upon functions, or shall obtain rights of use for the client by concluding a licensing agreement with the third party. If Kolb is not able to do so within a reasonable time period, the client is entitled to withdraw from the agreement or reduce the purchase price appropriately. Any claims for damages by the client shall be subject to the restrictions of Sec. 8 of these General Terms and Conditions of Sale.

(3) If products from other manufacturers delivered by Kolb result in violations of rights, Kolb shall, at its discretion, either assert its claims against the manufacturer and preliminary suppliers on behalf of the client or assign them to the client. In such cases, claims against Kolb shall exist in accordance with this Sec. 7 only if the aforementioned claims could not be asserted against the manufacturer and preliminary suppliers in court, or would likely be unsuccessful, for instance due to bankruptcy.

§ 8 Liability for damages due to culpable action

(1) Kolb’s liability for damages, regardless of legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, contractual violations, breaches of duty during contractual negotiations and unlawful actions, shall be restricted in accordance with this Sec. 8 insofar as these matters are governed by culpability.

(2) Kolb shall not be liable in case of simple negligence on the part of its bodies, statutory representatives, executives or other agents, insofar as such matters do not concern violations of significant contractual obligations. Obligations to promptly deliver and install the delivered object, ensure it is free from defects of title and other material defects that significantly affect its functionality or usability, as well as consulting, protective, and custody obligations intended to facilitate the client’s contractual use of the delivered object or to protect the life and limb of the client’s personnel or to protect its property from significant damage are considered significant contractual obligations.

(3) If Kolb is liable in principle for damages in accordance with Sec. 8 (2), this liability shall be limited to damages that Kolb could foresee as possible consequences of a contractual violation when the agreement was concluded, or that it should have foreseen with proper due diligence. Indirect damages and subsequent damages resulting from defects in the delivered object shall also only be reimbursed if such damages are typically expected during the intended use of the delivered object. The above regulations of this para. 3 shall not apply to intentional or grossly negligent conduct by members of bodies or the chief executives of Kolb.

(4) In case of liability for simple negligence, Kolb’s obligation to reimburse material defects and resulting further pecuniary losses shall be limited to 25,000,000.00 EUR per loss claim, even in case of a violation of significant contractual obligations.

(5) The above limitations and restrictions of liability shall apply equally to bodies, statutory representatives, employees and other agents of Kolb.

(6) If Kolb provides technical information or consulting, and if this information or consulting is not considered part of its contractually agreed scope of services, then such information and consulting shall be provided free of charge, excluding any liability.

(7) The restrictions of this Sec. 8 shall not apply to Kolb’s liability due to intentional actions, for guaranteed characteristics, due to injuries to life, body or health, or in accordance with the Product Liability Act.

§ 9 Retention of title

(1) The retention of title agreed in the following serves to secure all existing current and future claims of Kolb against the client resulting from the existing delivery relationship between the contractual partners (including outstanding balances resulting from a current account relationship restricted to this delivery relationship).

(2) Goods delivered to the client by Kolb shall remain the property of Kolb until all secured claims have been paid in full. The goods and the goods taking their place covered by the retention of title in accordance with the following provisions shall be referred to in the following as the “reserved goods”.

(3) The client shall safeguard the reserved goods for Kolb free of charge.

(4) The client is entitled to process and sell the reserved goods in the normal course of business up to the time of enforcement (para. 9). Pledging the goods or transferring them as a security are not permitted.

(5) If the client processes the reserved goods, the parties hereby agree that the processing shall be carried out in the name of and on behalf of Kolb as the manufacturer and that Kolb shall directly obtain ownership or – if the processing was completed using materials owned by multiple parties, or if the value of the processed object is higher than that of the reserved goods – co-ownership (partial ownership) to the newly produced object, based on the ratio of the value of the reserved goods to the value of the newly created object. If Kolb does not obtain ownership in such a manner, the client hereby already transfers its future ownership or – as in the case above – co-ownership to the newly produced object to Kolb, by way of security. If the reserved goods are combined or irrevocably mixed with other objects into one single object, and if one of the objects is to be considered the primary object, so that Kolb or the client obtains sole ownership, then the party to whom the primary object belongs shall transfer proportionate co-ownership of the single object to the other party based on the ratio indicated in clause 1.

(6) If the reserved goods are sold to another party, the client hereby already assigns its resulting claim against the purchaser to Kolb by way of security – or, in the case of Kolb’s co-ownership to the reserved goods on a proportionate basis depending on the percentage of ownership. The same applies to other claims that take the place of the reserved goods or that otherwise come about with respect to the reserved goods, for instance such as insurance claims or claims resulting from unlawful action in case of loss or destruction. Kolb hereby entitles the client to collect claims assigned to Kolb in its own name, whereby this entitlement may be revoked. Kolb may only revoke this entitlement to collect claims in case of enforcement.

(7) If third parties interfere with the reserved goods, for instance by seizing them, the client shall notify them promptly of Kolb’s ownership rights, and shall inform Kolb of the matter so that Kolb may enforce its ownership rights. If the third party is not able to reimburse Kolb for court or extra-judicial costs incurred in this context, the client shall be liable for such costs towards Kolb.

(8) Kolb shall release the reserved goods, as well as the goods or receivables taking their place, if their value exceeds the amount of the secured claims by more than 50%. Kolb may then select the objects to be released.

(9) If Kolb withdraws from the agreement due to a breach by the client – in particular due to default of payment – (enforcement), Kolb shall be entitled to request the return of reserved goods.

§ 10 Export and import controlling

(1) Kolb and the client are aware that Kolb products may be subject to export and import restrictions. In particular, they may be subject to approval obligations, or use of the software in the product or associated technologies may be restricted abroad.

(2) Kolb is only able to fulfill the contract if there are no obstacles to fulfilling it under national and international regulations of export and import law, nor under any other statutory regulations.

§ 11 Final provisions

(1) If the client is a merchant, legal entity under public law or a public law special fund, or if it does not have its general place of jurisdiction in the Federal Republic of Germany, then the place of jurisdiction for any disputes arising from the business relationship between Kolb and the client shall be either Waldenbuch or the client’s headquarters, at Kolb’s discretion. The exclusive place of jurisdiction for suits against Kolb shall, however, be Waldenbuch. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.

(2) The relationships between Kolb and the client are governed only by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 4/11/1980 (CISG) shall not apply.

(3) If the agreement or these General Terms and Conditions of Sale contain any loopholes, the legally valid regulations that the contractual partners would have agreed on based on the economic objectives of this agreement and the purpose of these General Terms and Conditions of Sale, had they been aware of the loophole, shall apply.