GENERAL CONDITIONS OF SALE OF KONRAD KNOBLAUCH GMBH (SALE CONDITIONS)
§ 1 – General / Scope
- All performances of Konrad Knoblauch GmbH (henceforth: we/us) for the buyer/customer (henceforth: customer) occur exclusively on the basis of these Sale Conditions.
- These Sale Conditions apply exclusively. Any contrary or deviating conditions of the customer shall not be recognised. This is also the case if the contract is concluded in the knowledge of contrary or deviating conditions of the customer.
- Unless otherwise agreed, these Sale Conditions also apply to all future transactions between the customer and us.
- Legal declarations and notifications of the customer (e.g. notifications of defects, setting of deadlines, etc.) in relation to the contract must be made in text form (fax, email or another form of telecommunication).
- In the case of purchase agreements / work performance contracts with customers as consumers (Section 13 of the Civil Code (Bürgerliches Gesetzbuch, BGB)), the provisions of Part I and the common provisions of Part IV apply. In the case of purchase agreements / work performance contracts with customers as enterprisers (Section 14 BGB), legal entities under public law or special funds under public law, the provisions of Part I and Part II apply. Where contradictions exist, the provisions of Part II shall take precedence over the provisions of Part I. Moreover, the common provisions of Part IV apply. In the case of service agreements, the provisions of Part III and the common provisions of Part IV apply.
PART I – PURCHASE AGREEMENTS / WORK PERFORMANCE CONTRACTS
§ 2 – Advance payment
- We are permitted at any time to carry out a delivery in whole or part only against advance payment.
- We shall declare such reservation to the customer no later than upon order confirmation.
§ 3 – Delivery / Place of fulfilment / Transfer of risk / Default in acceptance
- We are permitted to make partial deliveries and partial performances at any time, provided this is reasonable for the customer.
- The place of fulfilment for our performances shall be our business premises. This also applies in case of subsequent fulfilment.
- Unless otherwise agreed, the handover or delivery of the goods shall take place unpacked at our business premises.
- At the request and expense of the customer, the goods shall be shipped to another destination (consignment purchase). If no deviating provision is agreed, we shall be permitted to determine the type of consignment (in particular the forwarder or carrier, the dispatch route and the type of dispatch as well as the modes of transportation and protection) ourselves.
- If no deviating provision is agreed with respect to unloading for a consignment purchase, the following provisions apply: the goods shall be unloaded free to the kerbside by the transport person we engage. In the event that the goods cannot be unloaded on the announced delivery date for reasons not attributable to us or the transport person we engage, we shall be permitted to choose whether to store or return the goods at the customer’s expense. The customer shall ensure unobstructed access to the unloading point on the announced delivery date. The customer shall assume any additional costs that arise due to delivery in pedestrian zones or other impediments at the receiving point and which are not attributable to us or the transport person we engage.
- The risk of accidental loss or accidental deterioration of the goods shall be transferred upon handover to the customer at the latest.
- Where the customer enters into default in acceptance, neglects an act of cooperation or if the delivery is delayed for other reasons attributable to the customer, we shall be permitted to request compensation for the resulting damage including additional expenses (e.g. storage costs).
§ 4 – Delivery deadline and delivery period / Default in delivery
- The delivery deadlines or delivery periods specified in our contract offers or other documents (e.g. order confirmation) are non-binding, unless these are expressly agreed as binding.
- In the event of an agreed delivery deadline or delivery period, the beginning of the agreed delivery deadline or delivery period assumes that the customer has submitted to us all information/documents necessary for the proper processing of the order. In this connection, the agreed delivery deadline or delivery period shall be extended by the period between contract conclusion and the actual beginning of the delivery deadline or delivery period (= submission of the necessary information/documents).
- Where the goods are to be collected by the customer, agreed delivery deadlines or delivery periods are considered observed if the good is available for collection at our business premises within the delivery deadline or delivery period and this was communicated to the customer.
- In the event of a consignment purchase, agreed delivery deadlines or delivery periods are considered observed if we have handed over the goods to the forwarder, carrier or other person or establishment designated for executing the consignment within the delivery deadline or delivery period.
- If the ordered goods are not available within the agreed delivery deadline or delivery period for reasons not attributable to us or our suppliers, we shall not enter default in delivery. The same applies in the event of unforeseen and extraordinary circumstances, in particular strikes, the scrapping of important workpieces, operational disruptions and similar events which neither us nor our suppliers were required to anticipate at the time of contract conclusion. In this case, we shall promptly notify the customer and – where possible – inform them of when the goods are expected to be available again.
- The occurrence of default in delivery shall be determined by the statutory provisions. In any case, this shall require a warning on the part of the customer.
§ 5 – Reservation of ownership
- We reserve ownership of the goods handed over to the customer until complete payment of all our current and future claims from this contract.
- The goods subject to the reservation of ownership may neither be pledged to third parties nor assigned as security until complete payment of the secured claims. The customer must promptly inform us at least in text form if a request to open insolvency proceedings is filed or threatened or insofar as third-party interventions (e.g. seizures) on the goods in our ownership are enacted or threatened.
- In the event that the conduct of the customer is in violation of the contract, in particular for non-payment of the due purchase price, we shall be permitted to withdraw from the contract according to the statutory provisions and/or demand the return of goods subject to the reservation of ownership. Such demand for the return of goods subject to the reservation of ownership does not also constitute a declaration of withdrawal from the contract; instead, we shall be permitted to demand only the return of the goods and reserve the right to withdraw from the contract. If the customer does not pay the due purchase price, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or the setting of such a deadline is not required according to the statutory provisions.
- Insofar as the customer is entitled to claims against insurers or other third parties due to damage, reduction, loss or destruction of the goods subject to the reservation of ownership or for other reasons, the customer hereby assigns these claims and all ancillary rights to us in advance.
§ 6 – Withdrawal
- The contracting parties shall be entitled to the statutory rights of withdrawal in full.
- Moreover, we shall be permitted to withdraw from the contract if the ordered goods are not available for reasons not attributable to us or our suppliers for a period of more than six months from contract conclusion or, in the event of an agreed delivery deadline or delivery period, for a period of more than three months beyond the agreed date. We are obliged to promptly inform the customer of the non-availability of the ordered goods as soon as we acquire knowledge of the same. In the event of withdrawal, we shall promptly reimburse the payments made by the customer following the declaration of withdrawal.
§ 7 – Defect rights
- Unless otherwise agreed in the following, the statutory provisions shall apply to the rights of the customer in the event of material and legal defects (including false and short delivery).
- We expressly point out that the visual quality of the material surfaces may change over the course of time due to external factors (e.g. climatic or weather-related influences and exposure to light) even with proper use. Such changes do not constitute a material defect so long as this does not reduce the usability of the goods or we have not expressly or bindingly assured the preservation of the visual quality of the material surfaces as an agreed quality.
§ 8 – Liability
- The customer may only assert claims to compensation due to a defect once subsequent fulfilment has failed. The right of the customer to assert further claims to compensation according to the following paragraphs remains unaffected.
- We shall be liable according to the statutory provisions for injuries to life, limb and health, which are caused by a culpable breach of duty by us, our legal representatives or our vicarious agents.
- We shall be liable according to the statutory provisions for damages due to the breach of an essential contractual duty (an obligation whose fulfilment makes the proper execution of the contract possible in the first place and in whose compliance the customer may regularly trust). In this case, however, our liability is limited to the compensation of the damage that is typical and foreseeable upon contract conclusion. The same applies if the customer is entitled to claims to compensation instead of performance.
- Furthermore, we shall be liable according to the statutory provisions for other damages caused by wilful or grossly negligent breaches of contract and malice by us, our legal representatives or our vicarious agents.
- Insofar as the scope of the Product Liability Act is opened, we shall be liable without restriction according to its provisions.
- We shall also be liable in connection with a quality and/or durability guarantee in the event that we have assumed such a guarantee with respect to the delivered goods. Where damages occur that are caused by the lack of a quality or durability guaranteed by us and these damages do not, however, occur directly to the goods delivered by us, we shall only be liable if the risk of such damage was evidently covered by our quality and durability guarantee.
- No further liability claims against us exists, regardless of the legal nature of the claims you levy against us. Our liability according to the above provisions in § 8.1 remain unaffected.
PART II – PURCHASE AGREEMENTS / WORK PERFORMANCE CONTRACTS
(ENTERPRISERS; LEGAL ENTITIES UNDER PUBLIC LAW; SPECIAL FUNDS UNDER PUBLIC LAW)
§ 9 – Transfer of risk and place of fulfilment for consignment purchases
- In the case of consignment purchases, the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall already be transferred to the customer upon handover of the goods to the forwarder, the carrier or the other person or establishment designated to execute the consignment.
- The provision in § 9.1 shall also apply if it concerns a consignment purchase and we engage our own transport persons for dispatch.
- Insofar as acceptance is agreed, this shall be decisive for the time of the transfer of risk. The provisions of § 18 also apply accordingly in other respects in the case of an agreed acceptance.
- If the customer enters default in acceptance, the handover or acceptance shall still be deemed to have taken place.
- Even in the case of a consignment purchase, the place of fulfilment is our business premises. This also applies to the place of fulfilment for subsequent fulfilment.
§ 10 – Default in acceptance
- If the customer is in default in acceptance and the goods ready for handover or dispatch still need to be stored at our business premises due to the default in acceptance, we shall be permitted to charge the customer a flat-rate compensation in the amount of 2% of the total net price per started calendar week, limited to 30% of the total net price. The flat-rate compensation shall be in addition to further monetary claims.
- We reserve the right to provide evidence of higher damages and to exercise our statutory claims (in particular to the reimbursement of additional expenses, reasonable compensation and withdrawal). The customer shall be permitted to provide evidence that no damage at all or only significantly lower damages were incurred than the flat-rate compensation regulated in § 10.1.
§ 11 – Reservation of ownership
- In addition to the cases regulated in § 5.1, we reserve the ownership of the goods handed over to the customer until complete payment of all claims arising from an ongoing business relationship (secured claims).
- The customer is authorised until further notice (see § 11.2.3) to resell and/or process the goods subject to the reservation of ownership in the ordinary course of business. In this case, the following provisions additionally apply:
2.1 The reservation of ownership encompasses the products resulting from the processing, mixing or combination of our goods at their full value; we shall be considered the manufacturer in this connection. Where third parties retain their right of ownership in the event of processing, mixing or combination with third-party goods, we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. In other respects, the same applies to the resulting product as for the goods delivered under the reservation of ownership.
2.2 The customer hereby assigns to us as security the claims resulting from the resale of the goods or products against third parties in full or in the amount of our co-ownership share respectively in accordance with § 11.2.1. We accept the assignment. The duties of the customer specified in § 5.2 also apply with respect to the assigned claims.
2.3 The customer remains authorised – in addition to us – to collect the claim. We undertake not to collect the claim for as long as the customer meets their payment obligations towards us, there is no deficiency in their capacity and we do not assert the reservation of ownership by exercising a right under § 5.3. However, if this is the case, we may demand that the customer notifies us of the assigned claims and their debtors, discloses all information required for collection, provides us the associated documents and informs the debtors (third parties) of the assignment. Moreover, in this case we shall be permitted to revoke the authorisation of the customer to resell and process the goods subject to the reservation of ownership.
2.4 If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities at the request of the customer according to their choice.
§ 12 – Defect rights
- Unless otherwise agreed in the following, the statutory provisions shall apply to the rights of the customer in the event of material and legal defects (including false and short delivery). In all cases, the special statutory provisions for final delivery of the unprocessed goods to a consumer remain unaffected, even if they have further processed the goods (supplier regress under Sections 478 ff. BGB). Claims based on supplier regress are excluded if the defective goods have been further processed by the customer or another enterpriser, e.g. by incorporation into another product.
- In particular, the agreements made regarding the quality of the goods shall serve as the basis of defect liability. The information, drawings, figures, technical data, weights, dimensions and performance descriptions contained in our prospectuses, catalogues, circulars, advertisements, price lists or in other documents do not constitute an agreed quality, unless express reference is made to the particular specifications in the offer or in the order confirmation and they are expressly or bindingly indicated as an agreed quality. Insofar as specifications relating to goods are indicated as binding, these constitute quality specifications but not guarantees within the meaning of Section 443 BGB.
- If the quality has not been agreed, whether or not a defect exists shall be determined by the statutory provisions.
- The defect rights of the customer assume that they have complied with their statutory inspection and complaint obligations (Sections 377 and 381 of the Commercial Code (Handelsgesetzbuch, HGB)). With respect to the commercial inspection and complaint obligation, the statutory provisions apply with the following proviso:4.1 Obvious defects including obvious transport damages as well as false or short deliveries must be reported to us within three work days (Mondays to Saturdays) at the latest.4.2 If a defect manifests itself at a later time (a defect that did not have to be discovered upon inspection of the goods according to § 12.4.1), the defect must be reported to us without delay, but no later than within three work days of discovery.4.3 In the case of goods intended for incorporation or another form of further processing, an inspection must take place directly before processing. If a defect manifests itself during this inspection, the defect must be reported to us without delay, but no later than within three work days of discovery. This also applies in the event of a hidden defect.
4.4 The customer is deemed to know about a defect if the customer, their legal representative or their vicarious agent has knowledge of the same.
- Should the customer fail to carry out a proper inspection and/or report the defect (see § 12.4), our liability for the defect that was not reported in time, properly or at all shall be excluded according to the statutory provisions.
- If the goods are defective, we shall have the right to choose between subsequent fulfilment by way of eliminating the defect (subsequent improvement) or delivery of defect-free goods (replacement delivery). The right to deny subsequent fulfilment under the statutory requirements remains unaffected.
- We are permitted to make the owed subsequent fulfilment dependent on the customer paying the due purchase price. However, the customer is permitted to retain a portion of the purchase price commensurate with the defect.
- We shall bear or reimburse the expenses required for the purpose of our inspection and subsequent fulfilment, in particular transport, carriage, labour and material costs as well as any disassembly and assembly costs, in accordance with the statutory provisions, provided that a defect actually exists. Otherwise, we may demand reimbursement of the costs caused by the unjustified defect rectification request (in particular inspection and transport costs) from the customer, unless the lack of defectiveness was not recognisable for the customer.
- If subsequent fulfilment has failed or a reasonable deadline imposed on us for subsequent fulfilment has expired without success or is unnecessary according to the statutory provisions, the buyer may withdraw from the purchase agreement or reduce the purchase price. However, no right of withdrawal shall exist for an insignificant defect. This does not apply if the customer has breached its duties of cooperation in connection with subsequent fulfilment.
- Even in the case of defects, claims of the customer to compensation or the reimbursement of futile expenses shall exist only in accordance with the provisions in § 8
§ 13 – Limitation
- In deviation from Section 438 (1) No. 3 BGB, the general limitation period for claims arising from material and legal defects amounts to one year from delivery of the goods. Insofar as acceptance is agreed, limitation commences upon acceptance.
- However, if the goods are a structure or an object that has been used for a structure according to its normal use and has caused its defectiveness (construction material), the limitation period according to the statutory provisions amounts to five years from delivery (Section 438 (1) No. 2 BGB) or, where agreed, from acceptance. Further special statutory provisions on limitation also remain unaffected (in particular Section 438 (1) No. 1 and (3) as well as Sections 444 and 445b BGB).
- The above limitation periods of sales law also apply to contractual and extracontractual compensation claims on the part of the customer, which relate to a defect of the goods, unless the application of regular statutory limitation (Sections 195 and 199 BGB) would lead to a shorter limitation period in the individual case. Compensation claims on the part of the customer under § 8.3 and § 8.4 according to the Product Liability Act, however, lapse exclusively in accordance with the statutory limitation periods.
PART III – SERVICE AGREEMENTS
§ 14 – Scope
The following provisions in Part III apply with respect to our contractual obligation to provide work performances under Section 631 BGB (assembly of goods and additional work such as painting or drywall construction work).
§ 15 – Execution periods
Insofar as execution periods are indicated in the order, these do not constitute contractual deadlines unless expressly marked as such.
§ 16 – Impediment
- If we are impeded from the proper execution of our performances, we shall promptly notify the customer at least in text form. Should we fail to notify the customer, we shall only be entitled to the claim to consideration of the impeding circumstances if the customer was evidently aware of the fact and its impeding effect.
- Execution periods specified in the order shall be extended, provided that the impediment is caused:
2.1 by a circumstance within the sphere of risk of the customer or a third party engaged by same;
2.2 by strike or a lockout ordered by the employer’s professional representation at our company or a company of a subcontractor we have engaged, or;
2.3 by force majeure or other circumstances that were unavoidable for us or our vicarious agents.
- Weather conditions during the execution periods specified in the order, which should normally be anticipated upon contract conclusion, are not considered an impediment.
- We must make every reasonable effort to enable the continuation of work. As soon as the impeding circumstances subside, we must promptly and directly resume the work and notify the customer accordingly.
- The extension of the execution periods specified in the order shall be calculated according to the duration of the impediment plus an allowance for the resumption of work and possible postponement to a less favourable time of year.
- If execution is interrupted for what is expected to be a prolonged period, without the performance being rendered permanently impossible, the executed performances shall be billed according to the contractual prices and the costs reimbursed that we have already incurred and which are contained in the contractual prices of the non-executed part of the performance.
- In the event that the impeding circumstances are attributable to a contracting party, the other contracting party shall be entitled to compensation for the demonstrably incurred damage; a claim to compensation for loss of earnings, however, shall only exist in the event of intent or gross negligence. In other respects, our claim to reasonable compensation according to Section 642 BGB remains unaffected, provided that the notice of impediment is made pursuant to § 16.1 clause 1 or if the requirement of apparentness under § 16.1 clause 2 is met.
- Should an interruption last longer than three months, each contracting party may terminate the contract regarding the agreed work performances in writing following expiry of this period. Billing shall be determined by § 16.6 and § 16.7. If we are not responsible for the interruption, the costs of clearing the construction site shall also be compensated, provided that these are not contained in the remuneration for the executed performances.
§ 17 – Termination
- Both contracting parties may terminate the contract regarding the agreed work performances in accordance with the statutory provisions.
- Moreover, we may terminate the contract regarding the agreed work performances if:
2.1 the customer neglects an act to which they are obliged and thereby renders us unable to execute the performance (default in acceptance according to Sections 293 ff. BGB), or;
2.2 the customer fails to settle a due payment or otherwise defaults on debts.
- We may only declare a termination for the reasons stated in § 17.2 if we have set the customer a reasonable period for contractual fulfilment without success and have declared that we shall terminate the contract regarding the agreed work performances following unsuccessful expiry of the period.
- In the event of termination for the reasons stated in § 17.2 or on important grounds, we shall be permitted to bill the previous performances according to the contractual prices. Furthermore, we shall be entitled to reasonable compensation according to Section 642 BGB; any further claims remain unaffected.
- In any case, termination must be made in writing.
§ 18 – Acceptance
- The provisions of Section 640 BGB apply to the acceptance of our performances.
- In addition, implied acceptance of our performances shall occur within two weeks after the customer has used our work performances without reservation or has satisfied the remuneration claims for our work performances in full.
PART IV – COMMON PROVISIONS
§ 19 – Contract conclusion
- Our offers are non-binding and subject to change.
- The order submitted by the customer is considered a binding offer to enter into contract. Unless otherwise agreed, we may accept this offer to enter into contract within 14 calendar days of its receipt. Order acceptance may be declared either verbally, in writing, in text form or by implication by way of delivery of the goods.
§ 20 – Offer and planning documents
- We reserve all property rights and copyrights to figures, drawings, calculations, plans and other documents. They must be used exclusively for contractual processing and may only be made accessible to third parties with our advance, written consent.
- This does not apply insofar as the documents previously described in § 20.1 originate from the customer and these are merely edited by us to a marginal degree and without remuneration.
§ 21 – Prices / Payment / Customs
- The prices stated in the order are binding.
- Our payment claims are due within 14 days of receipt of the invoice and delivery or acceptance. An early payment discount shall not be granted, subject to the conclusion of deviating agreements on an individual basis.
- Any customs duties, fees, taxes and other official levies shall be assumed by the customer.
§ 22 – Changes in performance
- The customer may request changes to the commissioned performances as well as supplementary performances (henceforth referred to collectively as “changes in performance”).If the desired changes in performance are not necessary for achieving the agreed outcome, the following provisions in § 22.2 to § 22.4 shall only apply insofar as execution of the desired changes in performance is reasonable for us. Otherwise, we shall not be obliged to submit a subsequent offer for the desired changes in performance according to § 22.2 and the customer shall not be entitled to a right to order the execution of the desired changes in performance according to § 22.3.
- In the event of a change request, a subsequent offer shall be presented to the customer. Where the customer is responsible for planning, we shall only be obliged to prepare and present a subsequent offer once the customer has carried out the necessary planning for the desired change in performance and has presented same to us.
- The contracting parties shall endeavour to reach an agreement regarding additional or reduced remuneration incurred as a result of the desired changes in performance. Insofar as no agreement on the additional or reduced remuneration is reached within 30 days of receipt of the change request, the customer may order the changes in performance. Where the customer is responsible for planning, the previously mentioned period for reaching agreement shall commence upon receipt of the plans required for the desired changes in performance
- If no agreement can be reached between the contracting parties within the period specified in § 22.3, the customer may order the execution of the changes in performance. In this case, we shall be entitled to the required costs plus reasonable surcharges.
- Change requests, subsequent offers and change orders must be made at least in text form.
- In other respects, the statutory provisions apply.
§ 23 – Duties to public safety
- Insofar as we provide performances at the premises of the customer, the customer shall be responsible for ensuring the public safety of the areas we use.
- An assignment of the duty to public safety to third parties is only possible with our advance consent, which the customer must have at least in text form.
§ 24 – Rights of set-off and retention / Assignment prohibition
- The customer shall only be entitled to rights of set-off and retention to the extent that their claims are legally determined or undisputed. This does not include the statutory counterclaims of the customer in the event of defective delivery.
- The assignment of rights, receivables and claims requires our advance consent to be valid. In order to be valid, the customer must have our consent at least in text form.
§ 25 – Confidentiality
- The provision of information to third parties and the inspection of this contract or plans or tender documents by third parties are prohibited, insofar as such information or inspection is not required for the execution of the contract. The same applies in the case of any business secrets and other confidential information, which may become known in connection with the execution of this contract.
- Publications about our performances or parts of the project are only permissible following our advance consent, which the customer must have at least in text form. The consent shall already be issued upon contract conclusion in those cases in which planning documents originate from the customer and these are merely edited by us to a marginal extent and without remuneration.
§ 26 – Data protection
- Insofar as the customer or the other respective contracting party provides personal data (e.g. from customers, employees, other workers and subcontractors) in connection with contractual processing or acquires knowledge of such data in the course of fulfilling this contract, the contracting parties shall be subject to the German and EU data protection laws, in particular the EU General Data Protection Regulation (GDPR), in terms of the protection of this data. Personal data shall only be provided to the other respective contracting party if the requirements of the above-mentioned data protection regulations are observed.
- Insofar as the customer provides us with personal data or we acquire knowledge of such data in the course of fulfilling this contract, we shall act as controller under data protection law (Art. 4 No. 7 GDPR).
- Insofar as the customer provides us with the personal data of third parties for the purpose of processing this contract, the customer shall obtain the legal basis for the permissible transmission of the personal data of the third parties. We are expressly prohibited from processing the data beyond this purpose.
- Both contracting parties shall inform the persons entrusted with data processing at the respective company of the legal aspects of data protection and commit them to observe the data protection requirements of the pertinent data protection laws.
§ 27 – Choice of law / Jurisdiction / Severability clause
- The law of the Federal Republic of Germany, excluding international uniform law (in particular the UN sales law), applies to both these General Conditions of Sale and the contractual relationship between the customer and us.
- If the customer is a merchant according to the Commercial Code, an enterpriser according to Section 14 BGB, a legal entity under public law or a special fund under public law, the exclusive and international jurisdiction for all disputes arising from or in connection with this contract is D-88677 Markdorf.
- Should a provision of these General Conditions of Sale be or become wholly or partially invalid or unenforceable, the validity and enforceability of the remaining provisions shall remain unaffected. The contracting parties shall cooperate to replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the economic purpose pursued by the contracting parties with the invalid or unenforceable provision.