Terms and Conditions
General Terms and Conditions for International Deliveries of Peter Kölln GmbH & Co. KGaA (International Terms and Application)
1. General - Area of Application
1.1 These International Terms and Conditions shall be applicable to all our deliveries to countries outside Germany (export transactions) of products and services of Peter Kölln GmbH & Co. KGaA. Our terms and conditions only apply vis-à-vis entrepreneurs within the meaning of § 14 para. 1 German Civil Code (BGB) and legal public law entities or public special funds within the meaning of § 310 para. 1 German Civil Code. They shall apply exclusively; we reject any terms and conditions of the customer to the contrary or deviating from our terms and conditions, unless we have expressly consented to their validity in writing. Our terms and conditions shall apply even if we effect delivery to the customer without reservation with knowledge of terms and conditions of the customer to the contrary or deviating from our terms and conditions.
1.2 All agreements concluded between the customer and us for the purpose of executing this contract shall be laid down in writing in this contract. Any amendments of, or supplements to the contract shall be made in writing. Our external sales force staff is not authorised to conclude, cancel or amend contracts without the written consent of our sales management. However, contracts concluded by our external sales force staff will become effective if we effect delivery of the products or services.
1.3 These terms and conditions shall also apply to all future transactions with the customer within an ongoing business relationship.
2. Offers - Documents - Conclusion of Contract
2.1 Our offers, including our price lists, are not binding us, unless otherwise stated in our order confirmation or otherwise expressly declared by us in writing. Our offers apply to the country of destination to which the products shall be delivered.
2.2 We reserve title and all property right to and/or the copyright in illustrations, drawings, calculations or other documents including the outfit of our products. With the exception of the make-up of ready to sale products, these documents must not be made available to third parties by the customer. This particularly applies to written documents marked as “confidential“. The passing on such documents to third parties requires our express prior consent in writing.
2.3 Contracts shall become only binding through our written order confirmation, through written acceptance of our binding offers by the customer or through delivery of our products or services. Any deviations from our offers must be confirmed by us in writing.
3. Prices - Terms of Payment
3.1 Our price lists apply within the period stated therein, but are subject to change at any time. We are entitled to adjust our prices provided that the period between the conclusion of a contract and the delivery date exceeds four weeks as contractually agreed upon.
3.2 Unless otherwise stated in our confirmation of the order, our prices apply “ex works“ (Incoterms 2010) including customary packaging.
3.3 Unless otherwise stated in our order confirmation, all prices are in Euros. All our prices are without statutory turnover tax (value-added-tax), which must be added to all prices. Turnover tax which may accrue will be charged additionally. Any rebates and cash discounts on our prices require our express written consent.
3.4 Customs duties, consular fees or any other taxes, duties or fees levied according to provisions applicable outside Germany as well as any other costs in connection with exportation (hereinafter collectively referred to as “Export Charges”) shall be borne by the customer. If Export Charges are included in our offer, the price stated in the individual case is based on the rate of Export Charges applicable at the time of the offer, but we are entitled to charge the actual Export Charges.
3.5 Unless otherwise agreed upon in the contract, we are not liable for the compliance with national regulations and laws abroad. In case of our liability, the customer shall inform us of the country of destination of the goods delivered and of any regulations and laws of this country which deviate from German law in due time prior to the conclusion of a contract, so that we are able to observe such provisions. Any additional costs thereby incurred shall be borne by the customer.
3.6 Our invoices are due within 14 days of the invoice date. Payment shall be effected in Euros free of charge to the point of payment stated by us, unless other payment terms have been specified in our offers or order confirmations . We may demand from the customer advance payment of the delivery price or for provision of sufficient security prior to delivery. The currency risk shall be borne by the customer.
3.7 The customer shall have a right of set-off only if his counter-claims have been recognised by declaratory judgement, have not been contested or have been acknowledged by us. The customer shall be entitled to exercise a right of retention or a right to refuse performance only if the same conditions have been fulfilled and, in addition, his counter-claim against us is based on the same contract.
3.8 If we accept payment by Cheques or Draws - if at all – payments shall be conditional payment. All additional costs for payments by cheques and draws shall be born by the customer.
3.9 If we are obliged to make advance deliveries and circumstances come to our knowledge after the conclusion of the contract, which indicate a substantial deterioration of the customer’s financial situation, we may demand, at our reasonable discretion, either sufficient security within a reasonable period of time, or payment on delivery. If the customer does not meet this request, we shall be entitled, subject to further statutory rights, to rescind the contract.
4. Delivery - Time of Delivery
4.1 The commencement of the time of delivery presupposes that all relevant questions have been clarified and that the customer had fulfilled all his obligations. Unless otherwise contractually agreed upon or provided for in the contract, the time of delivery stated by us is not binding.
4.2 We shall not be liable for delays in delivery due to force majeure or unforeseeable circumstances beyond our control such as interruptions of operations, strikes, lock-outs, lack of means of transportation, difficulties in procuring raw materials and energy, terrorist acts, orders imposed by the authorities or supplies not delivered to us on time by our supplier. Any delivery period agreed upon shall be extended by the period of obstruction plus an appropriate start-up time. If the obstruction lasts longer than one month, the customer and we shall be entitled, at the end of an additional period of time of reasonable length to be set, to rescind the contract with regard to the part not yet performed. In this case, damage claims are excluded.
4.3 In the event of our default in delivery, the customer shall be entitled to rescind the contract after an additional period of time of reasonable length granted in writing to us has expired without results. In addition, the customer shall be entitled to claim damages for non-performance, if any, only if we caused the default intentionally or by gross negligence or by a breach of our material obligations (obligations of which fulfilment the customer may rely upon). In the event of default by our slight negligence, our liability shall be limited to an amount not exceeding 5% of the net invoice amount of the products which have not been delivered on time. In each case, our liability shall be limited to the foreseeable damage in the event of damage caused by our negligence.
4.4 The limitations on liability pursuant to § 4.3 hereof shall not apply if a transaction for delivery by a fixed date where the date is of essence was agreed upon or if the customer may legitimately assert that he is no longer interested in performing the contract because of our default. In these cases, our liability shall be limited to the typical, foreseeable damage unless we intentionally caused the delay in delivery.
4.5 Our obligation to deliver in time is contingent on the proper and timely performance of the customer’s obligations.
4.6 The customer’s obligation to accept the products ordered constitutes a material contractual obligation. Therefore, in the event of the customer’s delay in acceptance we shall particularly be entitled to set a final acceptance period and, after this final period has expired without results, to claim damages for non-performance and rescind the contract. If the customer breaches his obligations to co-operate for reasons for which he is responsible we shall be entitled to claim compensation for the damage suffered by us, including any additional expenses. In the event of the customer’s delay in acceptance the risk of accidental loss or accidental deterioration of the products will pass to the customer at the time when he defaults in taking delivery.
4.7 We are entitled to effect part deliveries if these are not opposed to any noticeable and legitimate interests of the customer.
4.8 Any loading devices, e.g. interchangeable European pallets, containers, etc., have to be returned in exchange. Any damage caused to, or the loss of, any such devices shall be borne by the customer, unless he is not responsible for any such damage or loss. If the customer defaults in returning loading devices for more than three months we will assume total loss unless evidence to the contrary is furnished by the customer.
4.9 Delivery may be subject to a permit granted by the German export authorities or the authorities of the country of destination. If such a permit is required the customer shall obtain the same at his own expense and shall be responsible for all of his statements in respect to the permit. The customer shall be liable for any consequences of incorrect or incomplete statements. Furthermore, the customer shall observe the export control provisions of the European Union and, if applicable, of the United States.
5. Passing of Risk
5.1 Unless otherwise agreed in writing, all products shall be delivered “ex works“ (Incoterms 2010). The risk will pass to the customer as soon as we have dispatched the products; in case of oils and greases collected by the customer, as soon as the products leave the warehouse (presently located in Dissen (Germany)); in all other cases, as soon as the products leave the warehouse located in Elmshorn (Germany).
5.2. Only at the customer’s express request, we will cover deliveries by transport insurance, all costs insofar incurred to be borne by the customer.
6.1. The warranty rights (warranty claims) of a merchant (“Kaufmann”) presuppose that he inspects the items delivered, or services performed, immediately upon receipt and gives written notice of any visible defects without undue delay after carrying out the inspection, or of hidden defects without undue delay after their discovery, specifying the defect at the same time (§ 377 German Commercial Code (HGB)). This shall also apply to contracts for work and services. Insofar as deficiencies in the number of items or weight are already noticeable upon delivery according to the aforesaid duties of inspection, the customer shall make a complaint to the freight forwarder about these deficiencies upon the acceptance of the products and shall have the complaint attested. A customer who is not a merchant shall be obliged to give written notice of any visible defects within three weeks following delivery. If we treat such a notice factually as a notice of defect this does not constitute a waiver of the observance of the duty to inspect by customer.
6.2 All warranty claims including but not limited to damage claims of the customer shall be excluded if the customer does not observe our or commonly known rules of application or technical standards when using the delivered items, and the defect is caused thereby. The same shall apply to damages or consequential damages caused by improper usage of the delivered items through the customer’s own fault.
6.3 Warranty rights are excluded in cases of mere slight deviations from the customary quality or the quality agreed upon, or in case of an insignificant impairment of usability of the delivered items.
6.4 All our specifications constitute service descriptions and approximations only. They do not constitute guarantees, unless otherwise expressly agreed.
6.5 If we are responsible for a defect of our products or services, we shall be entitled, at our option, to either repair or substitute the delivered items or services.
6.6 In case a customer, for reasons that are not attributable to us, wrongfully notifies defects for which we are not responsible, we shall be entitled to charge to the customer’s account reasonable expenses incurred by us for remedying the delivered items and/or determining the defects.
6.7 We may charge to the customer’s account the additional costs of the expenses necessarily incurred for the purpose of subsequent performance, particularly transport charges, travelling expenses, cost of labour and materials insofar as expenses have increased as a result of taking the delivered item to a place other than the delivery address by the customer.
6.8 Warranty rights (remedies on breach of warranties) will become statutebarred 12 months after the commencement of the statutory limitation period, unless we caused the defect intentionally or by gross negligence or fraudulently concealed the absence of a defect. The same shall apply to any guarantees given that are binding on us, unless these provide anything to the contrary. As regards the limitation periods for remedies exceeding two years by virtue of the German statutory law, the statutory limitation periods shall be applicable. These limitation periods shall also apply to consequential and indirect damages caused by a defect. If, as a result of our defective delivery, subsequent performance is required, the limitation period between the notification of defects and subsequent performance will only be suspended but will not restart.
6.9 Before the customer may enforce further claims or rights (rescission of contract, reduction in purchase price, damages or reimbursement of expenses), we shall first be given the opportunity to effect subsequent performance within a reasonable period of time, unless we have given any guarantee to the contrary. Should subsequent performance fail despite at least two attempts, should it be impossible or unacceptable for the customer, or should we refuse subsequent performance, the customer may rescind the contract or reduce payment. § 7 of our terms and conditions shall apply to the enforcement of damage claims or claims for reimbursement of expenses.
6.10 Furthermore, the following provisions shall apply to claims from defects of title:
a) Unless otherwise expressly agreed, we shall only be obliged to effect deliveries free of any rights of third parties in the country of the delivery address.
b) In the event of a violation of intellectual property rights of third parties for which we are responsible, we may, at our option, either obtain an adequate right of use for the agreed or expected use at our expense and assign this right to the customer, or transform the delivered items or redeliver the same so that the intellectual property right is not infringed, or replace the delivered items provided that the agreed or expected use of the delivered items is not thereby impaired. If this is impossible for us, or if we refuse subsequent performance, the customer shall be entitled to assert his statutory rights and claims. § 7 of our terms and conditions shall apply to damage claims and claims for reimbursement of expenses.
7.1 Damage claims and claims for reimbursement of expenses based on defects of the delivered products and services shall be excluded insofar as we cannot effect subsequent performance for reasons beyond our control. Damage claims for defects and for consequential damage under warranty claims (remedies) shall be excluded, unless the defect was caused by our own fault.
7.2 Damage claims for violation of a durability guarantee given by us or third parties (§ 443 para. 2 German Civil Code) for which we are liable shall be excluded, unless the violation was caused by our own fault.
7.3 In all other respects, damage claims and claims for reimbursement of expenses (hereinafter referred to as “Damage Claims”) of the customer – irrespective of the legal grounds -, particularly for violation of duties under and in connection with the obligation, from violation of mutual confidence upon or prior to the conclusion of a contract, or tort shall be excluded. The above exclusion of liability shall not apply to claims of intent or gross negligence, in case of a guarantee for the existence of a certain quality (quality guarantee) or in the event of a negligent breach of a material contractual obligation (the fulfilment of which the customer may rely on). In the event of our negligence our liability shall be limited to the typical, foreseeable damage. The statutory provisions of the German law shall apply with regard to any violation of life or in the event of personal injury or injury to health, and to claims based on §§ 1, 4 German Product Liability Act (Produkthaftungsgesetz), in case In no event shall our liability exceed the statutory claims. These provisions (§§ 7.1 – 7.3) shall not constitute any changes to the statutory burden of proof.
8. Reservation of Title
8a. The following provisions shall apply for all items which have not yet crossed the German border:??8.1 We shall retain title to the delivered items until receipt of all payments owed by the customer under the contract. In the event that the customer acts in breach of contract, particularly defaults in payment, we shall be entitled to take back the item delivered, in particular after the expiry of an additional period of time of reasonable length. After taking back the delivered item, we shall be entitled to realise the same; the realisation proceeds shall be set off against the customer’s liabilities, less reasonable costs of the realisation. The provisions of the German Insolvency Code (Insolvenzordnung) relating to realisation shall not thereby be affected.
8.2 The customer is obliged to handle the delivery items carefully. In particular, he is obliged to insure the same sufficiently at his expense at the reinstatement value against damage caused by fire, water and theft.
8.3 The customer shall immediately inform us in writing of attachments and any other interference by third parties. The customer shall be liable to us for any court and out of court costs of any action which may be necessary pursuant to § 771 German Code of Civil Procedure (Zivilprozeßordnung) (action in opposition to execution of a judgement, brought by a third party who claims title to the attached property).
8.4 The customer is entitled to resell the delivery item in the ordinary course of business; however, he herewith already assigns to us all claims to the amount of the invoice sum total (including value-added tax) accruing to him from the resale against his customers or third parties, irrespective of whether the delivery item has been resold without or after having been processed.
The customer shall be authorised to collect this claim even after assignment. However, we shall be authorised to collect the claim ourselves if the customer does not perform his obligations to pay from the collected proceeds, defaults in payment or has filed a petition for the institution of insolvency proceedings or such a petition has been filed or payments have ceased. In such cases, we may demand that the customer states which claims have been assigned and their debtors, furnishes all the information necessary for the collection, hands over the appurtenant documents and notifies the debtors (third parties) of the assignment. However, it will not be possible for us to collect the claim if the German Insolvency Code precludes this.
8.5 Any processing or transformation of the delivered item by the customer shall always be carried out on our behalf. If the delivered item is processed with other items not belonging to us, we shall acquire joint title to the new object proportionally to the value of the delivered thing to the other processed items at the time of the processing. In all other respects, the provisions applicable to the items delivered with a reservation shall also apply to the thing resulting from the processing.
8.6 We undertake, at the customer’s request, to release the securities to which we are entitled also to the extent that the value of our securities exceeds the claims to be secured by more than 20%. Selection of the securities to be released shall be incumbent on us.
8.b In the event of cross-border deliveries, the following shall apply after the delivery items having crossed the German border: If the items were delivered prior to payment of all amounts owed by the customer under the contract, we will retain title to the delivered items until payment has been effected in full insofar as this is admissible according to the law by which the delivered items are governed. If the aforesaid law does not permit a reservation of title, but allows us to reserve other rights to the items delivered, we may exercise any rights of this kind. The customer is obliged to assist us with any measures which we may take for the purpose of protecting our title to the items delivered or any other right to the items delivered replacing such title.
9. Place of Jurisdiction - Place of Performance
9.1. Elmshorn (Germany) shall be the sole place of jurisdiction for all disputes arising from or are in connection with the agreement provided that the customer is a merchant (“Kaufmann”). However, we are entitled to sue the customer also at the court having jurisdiction over his place of residence.
9.2. Unless the confirmation of the order otherwise requires, the place of performance shall be Groß Rohrheim (Germany) in case of oils and greases, in all other cases Elmshorn (Germany).
10. Applicable Law, Severability
10.1 The legal relations between the parties shall be exclusively governed by German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Products (UNCITRAL/CISG).
10.2 Should individual provisions of this contract or of these general terms and conditions be invalid, the validity of the other provisions shall not thereby be affected.
Status of 20 July 2009
PETER KÖLLN GMBH & CO. KGaA?
Westerstrasse 22-24 ?
25336 Elmshorn ?Germany
Phone +49 (0) 41 21 648 0
Fax (+49 41 21) 66 39