General Terms and Conditions of Trade
§ 1 Scope
(1) The following terms and conditions shall apply solely to business relations with businessmen, legal entities under public law or public law entities with special public funds. They form the basis for all our quotations and deliveries.
(2) These terms and conditions supersede and override any other terms and conditions set by the customer. They also apply to future orders even if not explicitly and separately stipulated. The general terms and conditions of the contractual partner shall apply only if they are explicitly acknowledged by KAHLA/Thüringen Porzellan GmbH.
§ 2 Quotation and Conclusion of Contract
All our quotations are subject to change, i.e. for the acceptance of an order, KAHLA reserves a time period of 4 weeks from receipt of the order unless a quotation has been expressly designated as binding. Acceptance may be declared either in writing or by shipment to the buyer.
§ 3 Term of Delivery/Scope of Delivery
(1) The scheduled delivery dates are binding once confirmed in the order confirmation.
(2) Delivery is subject to timely delivery of raw materials and supplies to us by our suppliers. In such cases of delays, the term for our delivery shall be extended by an appropriate period. This shall apply only if KAHLA is not responsible for the non-delivery and once a congruent hedging transaction was concluded with the supplier. The same applies in cases of force majeure and other circumstances for which KAHLA is not responsible, such as strike, interruption of operations, and problems with the procurement of raw materials. The buyer shall be informed immediately; any payment shall be refunded immediately upon request.
(3) We reserve the right to withdraw from the contract if the impediment to performance, for which we are not responsible, lasts longer than 14 days.
(4) The shipment of our products is priced ex works and includes industry-standard packaging. KAHLA will not take back any transport packaging and other packaging that is compliant with the German Packaging Regulation. Therefore, the buyer is obligated to arrange for the disposal of packaging at his own expense.
(5) Any ordered special packaging, adhesive labels, disposable pallets and film covers will be invoiced separately.
(6) In individually arranged cases, KAHLA may assume responsibility for the transportation costs. In these cases, the risk of conveyance shall still be borne by the buyer.
(7) We reserve the right to sell factory seconds and surplus production on our own account if the legitimate interests and property rights of the buyer are not impaired. In case of doubt, this is to be assumed if the sale happens outside of the EU.
(8) Orders to be shipped at a previously agreed upon date that are postponed by the buyer are subject to storage and warehousing charges beginning on day 3 after delivery notification (10.00 € per pallet per month) and to interest rates of 8 percentage points above the base interest rate but 12 % p.a. at the minimum. The buyer shall have the option to prove lower costs.
(9) We reserve the right to provide partial deliveries to the extent that they are acceptable to the buyer.
(10) For custom-made production orders, the buyer shall accept excess deliveries and short deliveries of up to 10 % of the volume ordered if it is considered reasonable to the buyer. In these cases, excess deliveries and short deliveries shall be invoiced or refunded, respectively.
§ 4 Transfer of Risk
The risk is transferred to the buyer as soon as the goods are transferred to the person responsible for transport.
§ 5 Payment Terms
(1) Payments are due within 14 days of the date of the invoice either in cash or by bank transfer to our account. Participation in the direct debiting procedure with direct collection of payments grants a 2% discount. Discounts shall not apply to newer invoices if the buyer has older, overdue open invoices.
(2) VAT is calculated in accordance with legal regulations.
(3) If the buyer defaults on a payment, any granted payment targets for all other outstanding payments become invalid. Upon occurrence of default, the buyer owes interest on arrears of 8 percentage points above the base rate, but at least 12% p.a. The buyer shall have the option to prove lower costs.
(4) We reserve the right to claim damages in the form of a payment of 10.00 € for each justified past due reminder notice. We reserve the right to prove greater damages. The buyer reserves the right to prove lesser damages.
(5) In the event of a default on a payment and the failure to meet a payment term by 30 days, we are entitled to call due all claims in total or to demand the provision of securities. In addition, we also have the right to make any further deliveries under this contract dependent on an advance payment or on the provision of securities.
(6) The buyer is only entitled to offset claims to the extent that his counterclaim has been legally established or is undisputed or ready for decision. This does not apply to claims under mutuality of obligation. The buyer is only allowed to exercise a right of retention if his counterclaim is based on the same contractual relationship and has been legally established or is undisputed or ready for decision.
§ 6 Retention of Title
(1) The delivered goods remain the property of KAHLA as goods sold with retention of title until all the claims arising from the existing business relations, including past and future deliveries, have been settled in full. Until full payment of the goods, the customer shall be obligated to handle the goods with care and to notify us immediately of any seizure of the goods by a third party, such as in the event of attachment, and of any damages to/destruction of the goods. In the event of a breach of contract, in particular in the event of default of payment we shall have the right to claim the immediate return of the goods sold.
(2) The buyer is entitled to resell the goods as part of regular business transactions under the provision of retention of title. The buyer hereby assigns to KAHLA all claims arising from any resale of the products with immediate effect. The assignment is hereby accepted. The cover limit of the assigned claims is 120 % of the value of the goods sold and delivered with retention of title. The buyer is authorised to collect the claim; the authorisation is revoked upon default of payment. In the event that the goods are returned, the buyer is liable for any deterioration. For the expenses associated with the return of the goods (transport costs, new packaging etc.), the buyer will be charged the actual costs or, at our discretion, 15 % of the value of the goods. The option to prove lower or higher expenses shall remain.
(3) The buyer shall grant us the authorisation to enter his facilities and business premises and to take possession of the goods that are subject to retention of title. The appropriation does not constitute a withdrawal from the contract. The marking of goods for us is considered appropriation. The appropriation may be carried out by authorised representatives who act on our behalf. These representatives must identify themselves by a written authorisation.
§ 7 Warranty for Defects and Liability
(1) The warranty for defects requires that the buyer fulfils his duty to give notice of defects immediately upon receipt of goods. Goods must be inspected immediately upon receipt. Any complaints about noticeable defects must be received in writing no later than eight days after receipt of the goods. Minor variations in shape, colour, décor and/or weight are not objectionable. The rejected goods shall be properly stored and handled.
(2) First, we shall provide a replacement or a repair for any defects, at our discretion.
(3) If this rectification is unsuccessful, the buyer may request a reduction of the purchase price (refund). If other goods or lower quantities were delivered instead of the agreed upon goods, the above-mentioned provisions for liability for defects shall apply accordingly.
(4) The limitation period for warranty claims is 1 year from the delivery of the goods; this does not apply to claims for damages, even if they are based on a breach of warranty.
(5) Claims for damages, irrespective of the legal basis, can only be asserted in the event of wilful intent or gross negligence on our part. Claims under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected. Liability for injury to life, body or health shall also remain unaffected. Furthermore, liability for breach of obligations essential to the contract shall remain unaffected; these are contractual obligations the fulfilment of which enables the proper execution of the contract and on the fulfilment of which the contractual partner can rely upon (cardinal obligations).
(6) Except in the event of damages arising from culpable injury to life, limb or health, and other cases of wilful or grossly negligent breach of duty, the liability shall be limited to restitution for contractually anticipated and calculable damages.
(7) The legal representatives and agents are also liable to the buyer with the above-mentioned reservations.
(8) A withdrawal from the contract is not possible. This shall not apply in the event of a culpable breach of duty for which we are responsible and which is not a result of a defect of the goods.
§ 8 Bans on Use
Labelled trademarked goods must not be altered and not be sold without our prior written consent.
§ 9 Place of Fulfilment and Place of Jurisdiction
(1) All legal relations between us and the buyer are governed by the laws of the Federal Republic of Germany. The United Nations’ Convention on Contracts for the International Sale of Goods shall not be applicable. The place of fulfilment and jurisdiction for both parties is Jena.
(2) Should any provision of these terms and conditions or any part thereof be or become invalid, the validity of the remaining provisions shall not be affected.
(3) KAHLA/Thüringen Porzellan GmbH voluntarily agrees to participate in an arbitration procedure. The mediation office recognised under the Consumer Dispute Resolution Act shall be:
Allgemeine Verbraucherschlichtungsstelle des Zentrums für Schlichtung e. V.
Straßburger Str. 8
Telephone: +49 7851 79579 40
Telefax: +49 7851 79579 41
§ 10 Data Protection, Scoring
(1) Order data is stored and processed in accordance with the German Federal Data Protection Act to the extent necessary for billing, customer care and fulfilment of contract.
(2) For the purpose of deciding about the establishment, execution or termination of the contractual relationship, we collect or use probability values (score values) and their calculation incorporates address data (scoring as defined as under the German Federal Data Protection Act).
Updated May 2016