Terms & conditions
§ 1 Scope
(1) All deliveries, services, and offers of kcd Kunststoffe, Additive und Beratung GmbH (hereinafter: kcd GmbH) are made exclusively on the basis of these General Delivery Conditions. These are an integral part of all contracts concluded by kcd GmbH with its contractual partners (hereinafter also referred to as "client") for the deliveries or services offered by it. They also apply to all future deliveries, services, or offers to the client, even if they are not separately agreed upon again.
(2) Terms and conditions of the client or third parties do not apply, even if kcd GmbH does not expressly object to their validity in individual cases. Even if kcd GmbH refers to a document containing the terms and conditions of the client or a third party, or if such terms and conditions are included, this does not constitute agreement with the validity of those terms and conditions.
§ 2 Offer and Conclusion of Contract
(1) All offers made by kcd GmbH are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period. Orders or contracts can be accepted by kcd GmbH within fourteen days after receipt.
(2) The written purchase contract, including these General Delivery Conditions, is solely decisive for the legal relationships between kcd GmbH and the client.
(3) Supplements and amendments to the agreements reached, including these General Delivery Conditions, require written form to be effective. Except for managing directors or authorized officers, employees of kcd GmbH are not authorized to make oral agreements deviating from this. To maintain the written form, telecommunication transmission is sufficient, in particular by fax or email, provided that a copy of the signed declaration is transmitted.
(4) Information provided by kcd GmbH regarding the subject matter of the delivery or service (e.g., weights, dimensions, utility values, load capacity, tolerances, and technical data) are only approximate unless the usability for the contractually intended purpose requires exact conformity. They do not represent guaranteed characteristics but rather descriptions or identifications of the delivery or service. Commercially customary deviations and deviations made due to legal requirements, as well as the replacement by equivalent parts, are permissible as long as they do not impair the usability for the contractually intended purpose.
(5) kcd GmbH reserves ownership or copyright to all offers and cost estimates provided by it and drawings, illustrations, calculations, brochures, catalogs, models, tools, and other documents and aids made available to the client. The client may not make these items accessible to third parties either as such or in content without the express consent of kcd GmbH, disclose them, use them himself or through third parties, or reproduce them. Upon request by kcd GmbH, the client must return these items in full to kcd GmbH and destroy any copies made, if they are no longer needed by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
§ 3 Payment
(1) Invoice amounts are to be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of payment is decisive for the date of payment receipt by kcd GmbH. If the client does not make payment when due, the outstanding amounts shall accrue interest at a rate of 5% p.a. from the due date.
(2) A 2% discount is granted for cash prepayment or payment within ten days. However, a discount is only granted if all outstanding payment obligations from the respective contractual relationship (including from other individual orders covered by the same framework agreement) are fulfilled, and the invoice amount is paid in cash to kcd GmbH on time or credited to the account of kcd GmbH by the aforementioned due date.
(3) Offset against counterclaims of the client or retention of payments due to such claims is only permissible to the extent that the counterclaims are undisputed or have been finally determined.
(4) kcd GmbH is entitled to execute or provide outstanding deliveries or services only against advance payment or provision of security if circumstances become known to it after conclusion of the contract which are likely to significantly reduce the creditworthiness of the client and endanger the payment of the outstanding claims of kcd GmbH by the client from the respective contractual relationship (including from other individual orders covered by the same framework agreement).
§ 4 Delivery and Delivery Time
(1) Deliveries are made ex works or from another location.
(2) Time frames and dates for deliveries and services promised by kcd GmbH are always approximate unless a fixed period or date has been expressly promised or agreed upon. If dispatch has been agreed, delivery periods and delivery dates refer to the time of handover to the carrier, freight forwarder, or other third party commissioned with the transport.
(3) Without prejudice to its rights arising from the default of the client, kcd GmbH may request an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the client fails to fulfill its contractual obligations towards kcd GmbH.
(4) kcd GmbH is not liable for impossibility of delivery or delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g., operational disruptions of all kinds, difficulties in procurement of materials or energy, transport delays, strikes, lawful lockouts, lack of labor, energy or raw materials, difficulties in obtaining necessary regulatory approvals, official measures or non-correct or untimely delivery by suppliers) for which kcd GmbH is not responsible. If such events significantly impede or make delivery or performance impossible for kcd GmbH and the hindrance is not only of a temporary nature, kcd GmbH is entitled to withdraw from the contract. In the event of obstacles of a temporary nature, delivery or performance deadlines are extended or delivery or performance dates are postponed by the duration of the hindrance plus a reasonable lead time. If the client is not reasonable expected to accept the delivery or performance due to the delay, he can withdraw from the contract by immediate written notice to kcd GmbH.
(5) kcd GmbH is only entitled to partial deliveries if
• the partial delivery is usable for the client within the scope of the contractual purpose
• the delivery of the remaining ordered goods is ensured
• this does not result in significant additional effort or additional costs for the client (unless kcd GmbH agrees to bear these costs).
§ 5 Place of Performance, Shipment, Packaging, Transfer of Risk, Acceptance
(1) The place of performance for all obligations under the contractual relationship is Weimar, unless otherwise agreed.
(2) The type of shipment and packaging are at the reasonable discretion of kcd GmbH.
(3) The following conditions apply to packaging costs: Disposable packaging does not have to be reimbursed separately. All other packaging costs such as container rentals, special packaging, as well as crate and sea packaging, are invoiced to the client at cost price by kcd GmbH.
(4) The risk passes to the client at the latest upon handover of the delivery item (with the start of the loading process being decisive) to the carrier, freight forwarder, or other third party designated to carry out the shipment. This also applies if partial deliveries are made or if kcd GmbH has taken over other services (e.g., shipping or installation). If dispatch is delayed at the request or through the fault of the client, the risk passes to the client with the notification of readiness for dispatch.
(5) Storage costs after the transfer of risk are borne by the client. In the case of storage by kcd GmbH, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per calendar day. kcd GmbH is entitled to provide proof of higher or the client to provide proof of lower storage costs.
(6) Transport and all other packaging in accordance with the Packaging Ordinance will not be taken back; with the exception of pallets. The client is obliged to dispose of the packaging at his own expense.
(7) Partial deliveries are permitted, provided they are reasonable for the client.
§ 6 Warranty and Material Defects
(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance.
(2) The delivered goods must be carefully inspected immediately after delivery to the client or to the third party designated by him. They shall be deemed to have been approved by the client without objection if kcd GmbH does not receive a written notice of defects within seven working days after delivery or, in the case of hidden defects, after their discovery. At the request of kcd GmbH, the rejected goods shall be returned to kcd GmbH carriage paid. In the event of justified notice of defects, kcd GmbH shall reimburse the costs of the cheapest shipping route; this does not apply if the costs increase because the goods are located at a location other than the place of intended use.
(3) In the event of material defects in the delivered goods, kcd GmbH shall initially provide warranty to the client at its discretion by rectifying the defect (rectification) or by delivering a defect-free item (replacement delivery). The right of kcd GmbH to refuse supplementary performance under the statutory conditions remains unaffected.
(4) If supplementary performance fails, the client can withdraw from the contract or reduce the remuneration appropriately, notwithstanding any claims for damages under § 7.
(5) Claims of the client for expenses necessary for the purpose of supplementary performance, in particular transport, travel, labor, and material costs, are excluded to the extent that the expenses increase because the delivery item has subsequently been moved to a location other than the client's branch office, unless the transfer corresponds to its intended use.
(6) Claims of the client for defects are excluded in the case of merely insignificant deviations from the agreed quality, in the case of merely insignificant impairment of usability, in the case of natural wear and tear, as well as in the case of damage arising after the transfer of risk from faulty or negligent handling, excessive strain, unsuitable operating equipment, defective construction work, unsuitable building ground, or special external influences that are not assumed under the contract. If improper modifications or repair work is carried out by the client or third parties, no claims for defects shall exist for these and the resulting consequences.
(7) Claims of the client for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor, and material costs, are excluded to the extent that the expenses increase because the delivery item has subsequently been moved to a location other than the branch office of the client, unless the transfer corresponds to its intended use.
§ 7 Liability
(1) Claims of the client for damages are excluded. This does not apply to claims for damages by the client resulting from injury to life, limb, or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by kcd GmbH, its legal representatives, or vicarious agents. Essential contractual obligations are those whose fulfillment is necessary to achieve the objective of the contract.
(2) In the event of a breach of essential contractual obligations, kcd GmbH shall only be liable for the foreseeable damage typical of the contract if it was caused by simple negligence unless it concerns claims for damages by the client resulting from injury to life, limb, or health.
(3) The limitations of paragraphs 1 and 2 also apply to the benefit of the legal representatives and vicarious agents of kcd GmbH if claims are asserted directly against them.
(4) The provisions of the Product Liability Act remain unaffected.
§ 8 Final Provisions
(1) The place of jurisdiction for all disputes arising from the contractual relationship between the client and kcd GmbH is Weimar, provided that the client is a merchant, a legal entity under public law, or a special fund under public law.
(2) The law of the Federal Republic of Germany applies to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(3) Amendments and supplements to these General Delivery Conditions, including this clause, must be made in writing to be effective. With the exception of managing directors or authorized officers, employees of kcd GmbH are not authorized to make oral agreements deviating from this.
(4) Should individual provisions of the contract with the client, including these General Delivery Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.
Status: January 2015