§ 1 Scope of application
1.1 All deliveries and services are made exclusively based on the following General Terms and Conditions (hereinafter: "GTC") in the version valid at the time of the order. These GTC shall apply to all contracts for the delivery of goods concluded by the Customer and us. Customers for the purposes of these GTC can be consumers as well as traders. Consumers for the purposes of these GTC are natural persons who conclude contracts for a purpose that is outside their trade, business, or profession. Traders for the purposes of these GTC are natural or legal persons or partnerships with legal personality who or which, when concluding a contract with the seller, are acting for their trade, business, or profession.
1.2 They also apply to all future business relationships, even if not expressly agreed again. We herewith object to any deviating terms and conditions of the Customer not expressly acknowledged by us. They remain non-binding for us for future contracts for the delivery of goods and services as well, even if we do not expressly object to them again.
1.3 All agreements concluded by the Customer and us for the execution of the contracts are recorded by us in writing in these terms and conditions and in the order confirmation.
§ 2 Quote and conclusion of contract
2.1 All quotes are non-binding, and subject to change or error.
2.2 Any indication of measurements, weight, illustrations, drawings, and other records that form part of our non-binding quotes shall apply only by way of approximation, unless expressly described as binding.
2.3 Declarations of acceptance, order confirmations, and generally all declarations must be in writing.
2.4 If an order by the Customer qualifies as an offer pursuant to section 145 of the German Civil Code [BGB], we may accept this offer within two weeks after receipt by us through a written order confirmation or the shipment of the goods.
2.5 We will be entitled to cancel the contract if we are not able to procure the item to be delivered, despite the prior conclusion of a corresponding purchasing agreement. We will inform the Customer without undue delay about the non-availability of the item to be delivered at the agreed time and will exercise our right of cancellation without undue delay if we intend to withdraw from the Contract.
2.6 We reserve title to and copyright in all records and documents provided to the purchaser in connection with the order, such as drawings, calculations, etc. These documents may not be made available to third parties, except with our express written consent. If we do not accept the Customer's offer within the above deadline, these documents must be returned to us without undue delay.
§ 3 Prices and payment
3.1 Unless otherwise indicated, all prices are non-binding recommended sales prices are in euros.
3.2 Unless otherwise agreed in writing, our prices apply ex works without early payment discounts or other price reductions, excluding loading, packaging, shipping and any insurance to be concluded based on a separate agreement and excluding VAT at the respective applicable rate. Packaging costs will be charged separately.
3.3 Payment of the purchase price shall be made exclusively to our accounts stated in the order confirmation or on the invoice. Early payment discounts may be deducted only if so confirmed in writing or if separately agreed in writing.
3.4 Unless otherwise agreed, the purchase price is payable within ten days after delivery. Interest on arrears will be charged at 5% above the respective base interest rate p.a. We reserve the right to charge higher damage due to arrears.
3.5 Unless a fixed price has been agreed, we reserve the right to apply reasonable price increases following changes in wage, material and/or sales costs for deliveries made three months or longer after the conclusion of the contract.
§ 4 Rights of retention
Customers shall be entitled to exercise a right of retention only if their counterclaim is based on the same contractual relationship.
§ 5 Delivery period
5.1 The start of the delivery period indicated by us is dependent on the timely and proper performance of the obligations of the Customer. The plea of non-performance of the contract remains reserved. If subsequent contractual amendments are agreed, a new delivery date or delivery period may have to be agreed at the same time.
5.2 If the Customer is in default of acceptance or culpably breaches any other duty of cooperation, we shall be entitled to recover any resulting damage, including any additional expenses, from the Customer. Further claims remain reserved. In the above instances, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the purchaser as of the time when the purchaser is in default of acceptance or fails to promptly perform in accordance with his obligations.
5.3 We shall be entitled to make partial delivery or provide partial services to the extent that the Customer can be reasonably expected to accept them.
5.4 If we culpably fail to observe an expressly agreed deadline or are in default for any other reason, the Buyer shall grant us a reasonable grace period, starting on the date of the receipt of the written caution, or - if a deadline is defined by reference to a calendar - upon expiry of the said deadline. The Customer shall be entitled to cancel the contract if this grace period expires without the due result.
5.5 We shall be liable vis-à-vis the Customer for a delivery delay in accordance with the statutory provisions, provided the delivery delay is based on an intentional or grossly negligent breach of contract committed by us; any fault on the part of our representatives or vicarious agents shall be attributed to us. If the delivery delay is not based on an intentional breach of contract attributable to us, our liability is limited to the foreseeable, typically occurring damage. We shall be liable in accordance with the statutory provisions, provided the delivery delay attributable to us is based on a culpable breach of an essential contractual obligation; in this case, the liability for damages is limited to the foreseeable, typically occurring damage. If the delivery delay is merely based on a culpable breach of a non-essential contractual obligation, the Customer shall be entitled to demand a fixed amount in damages amounting to 0.5% of the delivery value for each complete week of delay, but limited to a total of 5% of the delivery value.
5.6 Other statutory rights and claims of the Customer for a delivery delay remain unaffected.
§ 6 Transfer of risk upon shipping
6.1 The risk passes to the Customer upon delivery of the goods to the shipping agent, at the latest, however, when the goods leave our premises. The same applies irrespective of whether the goods are shipped from the place of performance, or of the party that is required to pay the shipping costs. The risk passes to the Customer upon delivery of the goods to the shipping agent, at the latest, however, when the goods leave our premises.
6.2 If the Customer so wishes, we will secure the delivery by means of shipping insurance; the resulting costs will be charged to the Customer.
§ 7 Retention of title
7.1 We retain title to the goods delivered until full payment of all receivables in terms of the underlying contract. This also applies to all future deliveries, even if we do not expressly refer to it. We are entitled to take back the purchased item if the Customer acts in breach of the contract.
7.2 The Customer shall treat the item with care until such time as the title to the purchased item passes to him. The Customer is obliged, in particular, to insure those goods at his own expense against damage through theft, fire and water at replacement value. The purchaser shall inform us without undue delay in writing if the delivered item is impounded or otherwise exposed to interventions by third parties prior to the title transferring to him. If we are not able to recover the judicial and extra-judicial legal costs of proceedings pursuant to section 771 of the German Code of Civil Procedure [ZPO], the purchaser shall be liable for the loss incurred by us.
7.3 The Customer shall be entitled to resell the goods subject to retention of title in the normal course of business. The purchaser at this point assigns the claims against the buyer of the resold goods subject to retention of title to us up to the amount of the invoiced amount (including VAT) agreed with us. This assignment shall be effective irrespective of whether the purchased item is resold without any subsequent processing by us. The Customer remains entitled to collect the claims even after the assignment. Our right to collect the claim ourselves remains unaffected. However, we shall refrain from collecting the claim as long as the purchaser complies with his payment obligations from the received proceeds, is not in arrears with payments and, moreover, as long as no motion to open insolvency proceedings has been filed or payment has been suspended.
7.4 The treatment, processing or conversion of the purchased item by the Customer shall always be made in our name and on our behalf. In this event, the vested right of the Customer in the purchased item continues in the converted item. If the purchased item is processed with other items that do not belong to us, we shall acquire co-ownership in the new item at the ratio of the objective value of our purchased item to the other processed items at the time of processing. The same applies in the event of intermixture. If the intermixture is such that the item of the Customer must be considered to be the principal item, the parties shall be deemed to have agreed that the Customer shall transfer a prorated ownership share to us and hold the sole ownership or co-ownership thus created on our behalf. To secure our claims against the Customer, the Customer shall also assign those claims against us that have accrued to him by reason of the combination of the goods subject to retention of title against a third party; we accept this assignment now.
7.5 We undertake to release the securities to which we are entitled at the request of the purchaser to the extent that their value exceeds the claims to be secured by more than 20%.
7.6 We shall be entitled to take back our goods subject to retention of title after a caution, or if the Customer is in arrears with a major part of his payment obligations. Like a garnishment initiated by us, this is not deemed to be a cancellation of the contract. The Customer is obliged to surrender the goods. Any right of retention is excluded.
7.7 Amounts collected by the Customer from assigned claims shall be kept separately until transferred to us to prevent any settlements and/or offsets against negative bank account balances.
§ 8 Warranty and notice of defect
8.1 The warranty rights of the Customer are dependent on these inspection and notification duties incumbent on the Customer pursuant to section 377 of the German Commercial Code [HGB]/section 437 of the German Civil Code [BGB] having been duly discharged.
8.2 For orders placed by consumers, the warranty is provided in accordance with the statutory provisions.
8.3 Warranty claims are prescribed after a period of 12 months after delivery of the goods supplied by us to the Customer. For claims for damages in case of intent and gross negligence, as well as for injury to life, limb, or health based on an intentional or negligent breach of obligation of the User of these GTC, the statutory prescription period shall apply.
If the law mandates longer periods, those longer periods shall apply.
Our consent must be obtained prior to any return of the goods.
8.4 If despite all due care, the goods delivered show a defect which was already present at the time of the transfer of risk, we will - at our choice - repair the goods or replace them, provided the Customer has notified us of the defect promptly. We must always be given the opportunity to provide a cure for the defect within a reasonable period. Claims for recourse are not affected in any way by the above provision.
8.5 If the cure fails, the Customer may cancel the contract or reduce the purchase price without prejudice to any claims for compensation.
8.6 Claims for defect may not be based on merely insignificant deviations from the agreed quality, merely insignificant impairment of the usefulness of the goods, natural wear and tear, or on damage suffered after the transfer of risk due to faulty or negligent handling, excessive use, unsuitable consumables, defective construction works, or due to special external impacts that have not been presumed to exist for the purposes of the contract. If the Customer or third parties perform improper repair works or modifications on the goods, no claims for defect shall be entertained for those works or any resulting consequences.
8.7 Claims of the Customer for the necessary expenses incurred in connection with the cure, especially transport costs, route costs, or costs of labour and materials, are excluded to the extent that the expenses increase due to the goods delivered by us having been transported to a location other than the establishment of the Customer, unless the relocation is in line with the intended purpose of the goods.
8.8 The Customer shall have a right of recourse against us only to the extent that the Customer has not concluded any agreements going beyond the mandatory statutory claims for defects. In regard to the scope of the Customer's recourse against the supplier, para. 6 shall apply with the necessary modifications.
§ 9 Right of revocation and legal instruction regarding the revocation for consumers
9.1 As a consumer, you are entitled to revoke this contract without stating reasons within a period of 14 days. The deadline for the exercise of the right of revocation expires 14 days from the date on which the consumer, or a third party nominated by the consumer (without being the carrier of the goods), has or have taken the goods in possession. To exercise this right of revocation, the consumer must inform us,
Gebr. Kühn GmbH & Co. KG
73529 Schwäbisch Gmünd, Germany
by means of an unambiguous statement (e.g. a letter dispatched by post, telefax or email) about the decision to revoke the contract. The consumer may make use of the model text provided below, without, however, being obliged to do so:
Gebr. Kühn GmbH & Co. KG Forststraße 14
73529 Schwäbisch Gmünd, Germany
Herewith, I/we (*) revoke the contract concluded by me/us (*) for the sale of the following goods (*)/the provision of the following service (*)
Ordered on (*)/received on (*)
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer(s) (only if transmitted on paper)
(*) Delete as applicable.
To comply with the revocation deadline, the consumer must send the notification about the exercise of the right of revocation prior to the expiry of the revocation deadline.
9.2 If the consumer (hereinafter: you) revokes the contract, we shall repay all payments we received from you, including delivery costs (excluding the costs resulting from the fact that you chose a different type of delivery than the cheapest standard delivery offered by us) without undue delay and not later than within 14 days after the day on which we received your notification of your revocation. For this repayment, we will use the same means of payment that you used for the initial transaction, unless another payment method has been expressly agreed with you; under no circumstances will you be charged expenses for this repayment.
You are required to deliver or return the goods to us without undue delay, however, not later than 14 days after the date on which you informed us about the revocation. To meet this deadline, the goods must be dispatched prior to the expiry of the deadline of 14 days. We may withhold payment until we have received the returned goods or until you have provided proof that the goods have been dispatched to us, whichever is earlier. You will be required to bear any loss in value of the goods if this loss of value is caused by the handling of the goods in a manner not required for the inspection for the quality, properties, and functions of the goods. You will bear the costs of the direct return of the goods.
9.3 Unless otherwise agreed by the Parties, the right of revocation does not apply to contracts for the delivery of goods not prefabricated and for the manufacture of which an individual selection or determination by the consumer is required, or that are clearly tailored to the personal needs of the consumer.
§ 10 Miscellaneous
10.1 All legal relations between the Parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). In the case of consumers, this choice of law does not affect the mandatory provisions of the country in which the Customer has his habitual abode.
10.2 Unless otherwise determined by reason of an order confirmation or mandatory statutory provisions, the place of performance and exclusive place of jurisdiction for all disputes arising from this agreement shall be the place of our registered office. However, we shall also be entitled to file a lawsuit against the buyer at his place of residence and/or registered office.
10.3 The invalidity of one or more provisions of these GTC shall not affect the validity of the other provisions. In the case of an invalid provision, the content of the contract shall be determined by the statutory provisions.