General terms and conditions

General conditions of sale, delivery and payment of Kaufmann Automotive Folientechnik & Folienengineering GmbH

(As of September 2013)

§ 1: General

These general conditions of sale, delivery and payment of Kaufmann Automotive Folientechnik & Folienengineering GmbH (“T&Cs for Sale”) apply exclusively to all offers, orders, contracts, deliveries and services. The concept of delivery in these T&Cs for Sale includes all forms of sale, delivery and performance. We do not recognise variant or supplementary conditions of the customer unless we have expressly agreed to their validity in writing. The T&Cs for Sale also apply exclusively if we execute the delivery without reservation despite conflicting, variant or supplementary terms and conditions of business of the customer. The T&Cs for Sale also apply without express agreement to all future transactions with the customer.
These T&Cs for Sale apply only to companies, legal entities under public law and special funds under public law.

§ 2: Offer, documents and conclusion of contracts

Our offers are always subject to change unless otherwise explicitly stated in the offer.
The supply contract only comes into force upon our written confirmation of the order. Communication by remote data transmission is sufficient for the written form. If an order confirmation is not issued, the execution of the delivery or the delivery note shall apply as the order confirmation.
Verbal agreements require our written confirmation.
If an order may be regarded as an offer within the meaning of § 145 of the German Civil Code (BGB), we can accept it within 4 weeks.
Our written order confirmation shall be decisive for the nature and scope of the performance.
The dimensions, weights, illustrations, descriptions and other details mentioned in our cost estimates and other documents are for information only and only become a binding part of the contract if we have expressly agreed to it in writing.
Quality and durability specifications apply as guarantees only if they are explicitly designated as such. The same applies to the assumption of a procurement risk.
We reserve the property rights and copyrights for cost estimates, drawings, plans and other documents and information both tangible and intangible in nature, including in electronic form; they may be made accessible to third parties only with our prior written consent.
The customer assumes full responsibility for the information incumbent upon it and for documents that it is required to make available or has provided, such as drawings, models, templates, samples or the like.

§ 3: Deliveries, delivery time:

Delivery periods and dates are only binding upon express written agreement.
Unless otherwise agreed, the delivery period shall be determined by the information we provide in the order confirmation. The delivery period begins at the earliest with the dispatch of our order confirmation, but not before the clarification of all matters necessary for the execution of the order or the provision by the customer of all preliminary services required of the customer or the receipt of an advance payment to be provided by the customer. If we are supplying the customer against advance payment, the specified delivery period begins only upon receipt of full payment. 

Modifications subsequently requested by the customer shall result in the delivery time being suspended. The necessary agreement upon the requested changes and the revised cost shall result in a restarting of the period.
The delivery period for deliveries “ex works” is complied with if the delivery item has been separated out and is ready for dispatch, and the customer is notified of this within the agreed time limit. For a delivery purchase, the delivery period is complied with if the delivery item is handed over to the forwarder or was ready for handover to the forwarder within the agreed period and could not be handed over through no fault of ours.
If the customer delays in acceptance or violates other obligations to cooperate, we are entitled to give priority to other, third-party orders and to extend the delivery time appropriately. Without prejudice to further claims, we are entitled to demand compensation for damages incurred in this respect.
If there is a delay in the dispatch, delivery or collection of the delivery item at the request of the customer, or if the customer delays in the acceptance, fails in an act of cooperation, or if our delivery is delayed for other reasons attributable to the customer, then we shall be entitled to demand compensation for the resulting damages including additional expenses (e.g. storage costs). Further claims remain reserved.
Partial deliveries are permissible unless there are resulting disadvantages for use or they are unacceptable to the customer. We further reserve the right to deliveries up to 10% less or more than the deliverable amount.
If we cannot meet binding delivery deadlines for reasons for which we are not responsible (impossibility of performance), we will inform the customer of this immediately and at the same time give notice of the expected new delivery period. In any case, the information is deemed to have been provided if we have notified the customer within three working days of becoming aware of the situation. If performance is still impossible two months after the performance period originally agreed, we are entitled to withdraw from the contract wholly or in part. Under the same preconditions, the customer is also entitled to withdraw from the unfulfilled part of the contract. Claims for damages are excluded in this case. A case of impossibility of performance within this meaning shall be in particular the lack of a timely delivery to ourselves by our suppliers if we demonstrate that, despite careful selection of our suppliers and despite the effective conclusion of the necessary contracts, we did not receive a timely delivery from a supplier and neither we nor our suppliers are at fault.
The delivery period shall be extended proportionately in the case of actions as part of labour disputes (such as strikes and lockouts) or in the case of occurrence of unforeseen obstacles for which we are not at fault, such as acts of God, actions by the authorities or operational problems. Such circumstances are also not our responsibility if they occur during an existing delay. We will inform the customer quickly of the start and the end of such circumstances.
To the extent that unforeseen events within the meaning of § 3 (8) considerably affect the economic importance or the contents of the delivery or have a considerable effect on our operations, the contract shall be adjusted appropriately in good faith. If this is not economically viable for us, we have the right to withdraw from the contract. In this case, the customer shall be informed immediately upon recognising the implications of the event, even if an extension of the delivery period was initially agreed with the customer.

§ 4: Delivery default

Our delivery shall be determined to be in default in accordance with the statutory provisions; in any case, however, a reminder by the customer is required.
We are obligated to compensate the customer for default damages. This does not apply to lost profit and damages resulting from business interruptions
In case of minor negligence, compensation for damages shall be limited to additional freight costs, retrofitting costs and, in the case of an unsuccessful period of grace or loss of interest in the delivery, to additional expenses for covering purchases.

The amount of the damages shall take appropriate account in our favour, and in good faith, of our economic circumstances, the nature, scope and duration of the business relationship, and the value of the delayed deliveries and services.
The rights of the customer in accordance with § 11, and out statutory rights, in particular in the event of exclusion of a performance obligation (e.g. due to the impossibility or unreasonableness of performance and/or remedy) shall remain unaffected.

§ 5: Prices

Unless otherwise agreed in writing, all prices are in euros and deliveries are made at prices announced by ourselves. The prices are ex works or from the agreed place of dispatch, exclusive of packaging, customs duties, insurance, installation and instruction costs, shipping costs and value-added tax.
In case of a change in costs, in particular changes in material prices, wages, salaries or energy costs, that come into effect after conclusion of the contract, we reserve the right to include the costs incurred at the time of delivery in the pricing if the delivery occurs more than 4 months after the date of the order confirmation. The changes in costs will be demonstrated to the customer on request.

§ 6: Terms of payment

Unless otherwise stated, our invoices are payable without deduction within 30 days of the date of the invoice. The timely receipt of payment in our account shall always be decisive.
In the case of default, the statutory interest on arrears will be charged. The right to prove further damages due to default remains reserved.
If the customer is in arrears against the agreed payment terms, or if circumstances exist which cast doubt on the solvency of the customer on application of the usual banking standards, we shall be entitled, after the expiry of a reasonable grace period, to perform outstanding services only against advance payment or subject to the provision of a security. We are entitled to make all our accounts receivable due.
The customer is entitled to offset or exercise its right of retention only due to undisputed or legally established claims. The customer is only able to exercise its rights of retention if its counter-claim is based on the same legal relationship.
We may use any claims that we have against the customer to offset any claims that the customer has against us.
We may also offset such claims using any claims we have against companies associated with the customer in accordance with § 15 of the German Stock Corporation Act (Aktiengesetz).

§ 7: Packaging and shipping

Packaging shall be at our discretion and according to the normal commercial type and practice.
Unless a form of dispatch was agreed in the sale by dispatch, we shall determine the form of dispatch taking mutual interests into account.
Disposable packaging will be charged at a reasonable cost and will not be received in return. Reusable packaging (pallet cages, Europool pallets, etc.) remain our property and must be returned to us immediately free of freight charges.
Discrepancies arising from a shipment (e.g. with regard to quantity, place, packaging, freight carrier, shipping documents, etc.) must be pointed out to us immediately upon receipt of the delivery item.

§ 8: Scope of delivery, transport and transfer of risk

Unless otherwise agreed, each delivery is agreed to be “ex works”. The risk of deterioration or loss is transferred to the customer upon notification of the separation of the delivery items and their readiness for shipment. This also applies if we have undertaken to provide other services, such as loading, transport and unloading. If the service is delayed due to circumstances for which the customer is responsible, we are entitled to store the delivery items at our discretion and at the expense and risk of the customer and to charge them as delivered.
If an acceptance of the delivery items is required, this shall be decisive for the transfer of risk. It must take place on the acceptance date/time without delay, or alternatively after our notification of readiness for acceptance. The customer may not refuse acceptance in the case of an insignificant defect.
If a delivery purchase has been agreed, the risk of deterioration or loss is transferred to the customer at the latest on shipment of the delivery item or handover to the transport person at the place of dispatch. If dispatch is delayed due to conduct of the customer, the risk is transferred to the customer upon notification of readiness for shipment. § 8 (1) Clause 4 shall apply accordingly.
The risk of accidental loss or accidental deterioration of the delivery items is also transferred to the customer at the time when the latter enters into default for acceptance or payment.

§ 9: Retention of title

The delivered goods remain our property until the fulfilment of all our claims from the business relationship. This also applies to the issuance of an acknowledgement of debt.
The customer is entitled to resell the delivered goods in the normal course of business provided it is not in default with its payments to us. However, the customer herewith assigns to us all claims in the amount of the respective final invoice (including VAT) that arise for the customer from the resale to its customers or third parties, regardless of whether the delivery item has been resold with or without further processing. The customer is entitled to collect receivables until revoked. Our entitlement to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets its payment obligations to us in good time from the proceeds received and does not file an application for the opening of insolvency proceedings regarding the customer’s assets or there is a suspension of payments on the part of the customer. Otherwise we can demand that the customer discloses to us the assigned claims and their debtors, provides all information required for collection with the associated documents, and informs the debtors of the assignment immediately.
If we had joint ownership of the resold reserved goods under the above provisions, the customer shall assigns to us its claim against the purchaser in the amount of the co-ownership share. We hereby accept these assignments.
The customer is not entitled to otherwise dispose of the reserved goods or the claims in their stead. In the case of distraints or confiscation of the reserved goods or the claims in their stead, the customer must make our entitlement known and inform us immediately so that we can preserve our rights against third parties.
The customer shall keep the reserved property within the meaning of the above provision free of charge for us.
At the customer’s request, we will release the delivery item to the extent that our security interest no longer applies. The security no longer applies if the realisable value of the delivery item exceeds the coverage threshold of 110% of the secured claim on a non-temporary basis.
We are authorised to assign the payment claims against the customer.
If, after conclusion of the contract, it is recognised that our payment claim in relation to the delivery item is jeopardised by the customer’s inability to pay, we are entitled to withdraw from the contract and demand the immediate return of the reserved goods.

§ 10: Claims for defects

10.1. Material defects
Warranty claims of the customer require that it has properly fulfilled its statutory inspection and complaint obligations. This also applies if the customer has resold the delivery item. In case of apparent defectiveness or incompleteness of the goods, we must be notified in writing of the complaints without delay, at the latest within one week after the arrival of the goods, with precise indications of the defect or shortage and the invoice number. At our request, the goods are to be returned to us. Claims on the part of the customer due to deficiency or incompleteness are excluded if it does not fulfil these obligations properly. Latent defects must be reported immediately upon their discovery. After an agreed acceptance has been conducted, objections to defects that could have been detected during the acceptance are excluded.
We will only accept liability for a particular purpose or particular suitability if this has been expressly agreed in writing. Otherwise, the risks regarding suitability and usage are borne solely by the customer. The customer is obligated to ensure compliance with the technical constraints specified in the documentation and/or in the supplementary documents. Any other usage is prohibited. The customer must also impose these and any other specified restrictions of use on its own customers.
All those parts that are found to be defective due to a circumstance that existed before the transfer of risk shall, at our discretion, be repaired or replaced free of charge (repair or subsequent/additional delivery; hereinafter “remedy”).
The customer may only withhold payments if a notice of defect is issued, for which the justification is undisputed. If the complaint is unjustified, we are entitled to demand compensation from the customer for expenses incurred as a result. In cases of notices of defects, the customer may only withhold its payments to an extent in reasonable proportion to the defects that have occurred.
After reaching an understanding with us, the customer must give us the necessary time and opportunity to perform all work that seems necessary to us for a remedy; otherwise, we shall be released from liability for the consequences thereof. The customer has the right to eliminate the defect itself or by the agency of a third party, and to demand reimbursement of the necessary expenses from us, only in urgent cases of a risk to operational safety or to prevent disproportionately severe damage.
Of the costs arising directly from the remedy, we will bear the costs of the replacement delivery, including shipping, provided the complaint proves to be justified. Insofar as the customer requires compensation for costs incurred by the customer or for costs reimbursed by a customer to its customer under the law, the compensation from us shall be determined on the following terms:
The determination of the amount of such compensation shall take reasonable account in our favour of our economic circumstances, the nature, scope and duration of the business relationship as well as the degree of causation and any fault on our part and the installation situation of the delivered goods. In particular, the compensation from us should be commensurate with the value of the defective scope of services/delivery in the 12 (twelve) months prior to the notice of defect.
Liability for compensation shall be excluded if the customer has effectively limited its liability towards its customer. In this respect, the customer shall endeavour, within the legally admissible scope, to agree on limitations of liability that are also in our favour.
We can refuse to provide a remedy if it is disproportionate under statutory regulations. In such a case, the remaining warranty rights of the customer persist.
Within the scope of the statutory eligibility criteria, the customer is entitled to withdraw from the contract if, taking into account the statutory exceptions, we have allowed a reasonable deadline for the remedy of a material defect to lapse without success. If the defect is only minor, the customer is only entitled to a reduction in the contract price. The right to a reduction in the contract price is otherwise excluded. Any further claims shall be determined in accordance with § 11 (2).
No warranty shall be provided in the following cases in particular: Only minor deviations from the agreed quality, unsuitable or improper use, faulty installation or commissioning by the purchaser customer or third parties, natural wear and tear, incorrect or negligent handling, lack of proper maintenance, inappropriate operating resources and particular external influences not stipulated in the contract, provided they are not attributable to us.
Our warranty commitments, particularly with regard to quality and durability, are expressly excluded subject to the regulation in § 2 (7).
If the customer or a third party makes improper repairs, there is no liability on our part for the consequences arising therefrom. The same applies for modifications to the delivery item made without our consent.
The results when using recognised test equipment shall be decisive for the function and properties of the delivery item. We accept no liability for faults that occur due to the installation conditions or improper handling, operation, storage or maintenance. 

A remedy, regardless of its form, shall in no case constitute an acknowledgement of a claim of the customer.
10.2. Legal defects
If the use of the delivery item results in the infringement of the intellectual property rights or copyrights of third parties in the Federal Republic of Germany that existed at the time of the transfer of ownership, we shall on principle, at our expense, procure the right to further use or modify the delivery item in a manner acceptable to the customer such that the copyright infringement no longer exists. If this is not feasible on commercially reasonable terms or within a reasonable period, the customer is entitled to withdraw from the contract. Under the aforementioned preconditions, we shall also be entitled to withdraw from the contract.
The obligations on our part mentioned in § 10.2 (1) are conclusively subject to the regulations in § 11 (2) for the case of patent or copyright infringement. They exist only if a) the customer informs us immediately of allegations of patent or copyright infringement, b) the customer provides us with reasonable support in the defence against the claims made or allows us to implement the modifications in accordance with § 10.2 (1), c) all defensive measures, including extrajudicial arrangements, are reserved for us, d) the legal defect is not based on an instruction of the customer, and e) the infringement of rights was not caused by the customer having made unauthorised modifications to the delivery item or having used it in a non-contractual manner or having been in some other way responsible for the violation of property rights.

§ 11: Liability

Unless liability is otherwise regulated elsewhere in these T&Cs for Sale, we are liable only as follows for compensation of damages incurred to the customer directly or indirectly as a result of a defective delivery, due to violation of official safety regulations or for any other legal reasons attributable to us:
The liability for damage compensation in principle only exists if we are culpable for the damages caused by us.
For damages that have not occurred on the delivery item itself, we shall be liable, for whatever legal reasons, only in the event of
gross negligence on the part of our owner/executives or managerial staff
culpable injury to life, body or health

defects that we have fraudulently concealed or whose absence we have guaranteed
defects in the delivery item to the extent there is liability under product liability law for personal injury or material damage to privately used objects.
In the case of culpable infringement of essential contractual obligations, we shall also be liable in the event of gross negligence of non-executive employees and for minor negligence, in the latter case limited to contract-typical, reasonably foreseeable damage.
Otherwise, compensation and reimbursement claims by the customer, for whatever legal reason, and particularly due to the violation of obligations arising from the contractual relationship and tort, shall be excluded.
Customer claims arising from third-party patent or copyright violation of property rights or copyrights, to be fulfilled by us under these T&Cs for Sale, are limited for each scope of service/delivery to its respective price according to § 5.
Liability for compensation shall be excluded if the customer has effectively limited its liability towards its customer. In this respect, the customer shall endeavour, within the legally admissible scope, to agree on limitations of liability.
Customer claims are excluded insofar as the damage results from violations, attributable to the customer, of the operating, maintenance and installation instructions, unsuitable or improper use, faulty or negligent handling, natural wear and tear or faulty repairs.
We shall be liable for customer actions to avert damage (e.g. recall actions) to the extent that we are legally bound.
The principles set out in § 4 (3) and § 4 (4) are to be applied accordingly if we have no or insufficient insurance.

§ 12: Limitation

All customer claims – for whatever legal reasons – shall expire after 12 months, notwithstanding the provisions of § 479, Para. 1 of the German Civil Code (BGB) to the extent applicable. At variance from this, the statutory limitation periods shall apply for damage compensation claims in accordance with § 11.2 (2.1) to § 11.2 (2.5) and for defects in a building or for delivery items that were used in accordance with their usual purpose for a building and have caused such building to be defective.

§ 13: Suppliers or raw material recommended by the customer

In the case of a supplier of Kaufmann Automotive Folientechnik & Folienengineering GmbH or a certain raw material being specified, selected or recommended by the customer, the warranty responsibility (especially with regard to the surface quality of the raw material) and the liability of Kaufmann Automotive Folientechnik & Folienengineering GmbH, taking into account the limitations of liability under § 11, are limited to the correct, i.e. agreed, machining and processing of that raw material. Any further liability of Kaufmann Automotive Folientechnik & Folienengineering GmbH is excluded in this case, particularly with regard to the warranty, product liability, delivery delays and the freedom of the raw material from third-party protective rights. With regard to third-party claims, the customer is obligated to indemnify Kaufmann Automotive Folientechnik & Folienengineering GmbH to this extent.

§ 14: Place of performance, jurisdiction, applicable law

Unless expressly agreed otherwise, the place of performance is our registered office.
If the customer is a merchant, legal entity under public law or special fund under public law, the jurisdiction is the competent court for 29525 Uelzen. However, we are entitled to sue the customer in its own general jurisdiction. This also applies if the customer has no general jurisdiction in Germany or has relocated its domicile or habitual residence out of Germany after conclusion of the contact or its domicile or habitual residence is not known at the time of the legal action.
German law shall apply exclusively. The United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG) is excluded.

The ineffectiveness of individual provisions of these T&Cs for Sale shall not affect the effectiveness of the other regulations. Ineffective provisions shall be deemed to apply as if replaced by such effective provisions that are suitable to implement the economic purpose of the deleted provision to the extent possible.