AGB | KONTEX Bausysteme GmbH & Co. KG

General Terms and Conditions

General Terms and Conditions of Delivery and Payment

of KONTEX® Bausysteme GmbH & Co. KG

I. Scope

The following sales conditions apply to all contracts concluded between the buyer and us for the delivery of goods. They also apply to all future business relationships, even if not expressly agreed upon again. Deviating conditions of the buyer, which we do not expressly acknowledge, are not binding for us, even if we do not expressly object to them. The following sales conditions also apply if we execute the buyer's order unconditionally despite conflicting or deviating conditions of the buyer.
All agreements made between the buyer and us to execute the purchase contracts are laid down in writing in the contracts.

II. Offer and Conclusion of Contract

An order from the buyer, qualifying as an offer to conclude a purchase contract, can be accepted by us within two weeks by sending an order confirmation or by sending the ordered products within the same period.
Our offers are non-binding unless expressly designated as binding.
All illustrations, calculations, drawings, and other documents retain our property, copyright, and other protective rights. The buyer may only pass these on to third parties with our written consent, regardless of whether we have marked them as confidential.

III. Payment Conditions

Our prices apply ex works without packaging unless otherwise specified in the order confirmation. The statutory value-added tax is not included in our prices. We will separately indicate this in the invoice at the statutory rate on the day of invoicing.
A discount deduction is only permissible with a special written agreement between us and the buyer. The purchase price is net (without deduction) immediately due for payment upon receipt of the invoice by the buyer, unless otherwise stated in the order confirmation. A payment is only considered complete once we can dispose of the amount. In the case of payment by check, the payment is considered complete when the check is cashed.
If the buyer defaults on payment, the statutory provisions apply.
The buyer is only entitled to set-off, even if complaints about defects or counterclaims are made, if the counterclaims have been legally established, acknowledged by us, or are undisputed. The buyer is only authorized to exercise a right of retention if their counterclaim is based on the same contractual relationship.

IV. Delivery and Performance Time

Delivery dates or periods that have not been expressly agreed upon as binding are exclusively non-binding indications. The delivery time specified by us only starts when technical questions are clarified. Similarly, the buyer must properly and timely fulfill all obligations incumbent upon them.
If the underlying purchase contract is a fixed transaction within the meaning of § 286 (2) No. 4 BGB or § 376 HGB, we are liable according to the statutory provisions. The same applies if the buyer is entitled to claim the loss of interest in further contract fulfillment due to a delivery delay attributable to us. In this case, our liability is limited to the foreseeable, typically occurring damage if the delivery delay does not result from an intentional breach of contract attributable to us, where culpability of our representatives or agents is to be attributed. We also bear liability to the buyer according to statutory provisions for delivery delays if these are due to an intentional or grossly negligent breach of contract attributable to us, where culpability of our representatives or agents is to be attributed. Our liability is limited to the foreseeable, typically occurring damage if the delivery delay does not result from an intentional breach of contract attributable to us.
In other cases where a delivery delay attributable to us is based on the culpable breach of an essential contractual obligation, where culpability of our representatives or agents is to be attributed, we are liable according to statutory provisions, with the proviso that in this case, liability for damages is limited to the foreseeable, typically occurring damage.
Otherwise, in the event of a delivery delay attributable to us, the buyer can claim a lump-sum compensation of 3% of the delivery value for each completed week of delay, but not exceeding 15% of the delivery value.
Further liability for a delivery delay attributable to us is excluded. The buyer's other statutory claims and rights that exist in addition to the claim for damages due to a delivery delay attributable to us remain unaffected.
We are entitled to partial deliveries and partial performances at any time, provided these are reasonable for the customer.
If the buyer is in default of acceptance, we are entitled to claim compensation for the resulting damages and any additional expenses. The same applies if the buyer culpably violates cooperation obligations. With the occurrence of the acceptance or debtor default, the risk of accidental deterioration and accidental loss passes to the buyer.

V. Transfer of Risk - Shipping/Packaging

Loading and shipping take place uninsured at the buyer's risk. We will endeavor to consider the buyer's wishes and interests regarding the method and route of shipment; any resulting additional costs - even with agreed freight-free delivery - shall be borne by the buyer.
We do not take back transport or any other packaging in accordance with the Packaging Ordinance; pallets are exempted. The buyer is responsible for the disposal of the packaging at their own expense.
If the shipment is delayed at the buyer's request or fault, we will store the goods at the buyer's cost and risk. In this case, the notification of readiness for shipment is equivalent to the shipment.
At the buyer's request and expense, we will secure the delivery through transport insurance.

VI. Warranty/Liability

The buyer's warranty claims exist only if the buyer has duly fulfilled their inspection and complaint obligations according to § 377 of the German Commercial Code (HGB).
Insofar as there is a defect in the goods attributable to us, we are obliged to rectify the defect, excluding the buyer's rights to withdraw from the contract or reduce the purchase price (reduction), unless we are entitled to refuse rectification based on legal regulations. The buyer must grant us a reasonable period for rectification. The rectification may, at the buyer's choice, be carried out by eliminating the defect (remedial action) or delivering new goods. In case of defect rectification, we bear the necessary expenses, provided that these do not increase because the object of the contract is located at a place other than the place of performance. If rectification fails, the buyer can demand a reduction of the purchase price (reduction) or withdraw from the contract. Remedial action is considered unsuccessful after the second unsuccessful attempt, unless further remedial attempts are reasonable and acceptable to the buyer due to the nature of the contractual object. The buyer can claim damages according to the following conditions only after the rectification has failed. The buyer's right to assert further claims for damages according to the following conditions remains unaffected.
The buyer's warranty claims expire one year after the delivery of the goods to the buyer, unless we have fraudulently concealed the defect; in this case, the statutory provisions apply. Our obligations from Section VI Clauses 4 and Section VI Clause 5 remain unaffected.
In accordance with legal regulations, we are obligated to take back the new goods or reduce the purchase price even without the otherwise required deadline if the buyer's customer, as a consumer of the sold new movable item (consumer goods purchase), could demand the return of the goods or a reduction in the purchase price due to a defect in this item from the buyer, or if such a claim is asserted against the buyer. Furthermore, we are obliged to reimburse the buyer's expenses, especially transportation, travel, labor, and material costs incurred by the buyer in relation to the end consumer within the framework of rectification due to a defect in the goods that existed at the time of transfer of risk from us to the buyer. The claim is excluded if the buyer has duly fulfilled their inspection and complaint obligations according to § 377 HGB.
The obligation according to Section VI Clause 4 is excluded in cases of defects arising from advertising statements or other contractual agreements that do not originate from us, or if the buyer has given a specific guarantee to the end consumer. The obligation is also excluded if the buyer was not obliged to exercise warranty rights against the end consumer in accordance with legal regulations or did not make such a complaint against a claim presented to them. This also applies if the buyer has undertaken warranties to the end consumer that go beyond the legal requirements.
We are liable without limitation according to statutory provisions for damages to life, body, and health resulting from negligent or intentional breaches of duty by us, our legal representatives, or our agents, as well as for damages covered by liability under the Product Liability Act. For damages not covered by clause 1 and resulting from intentional or grossly negligent breaches of contract or fraudulent acts by us, our legal representatives, or our agents, we are liable according to statutory provisions. In this case, however, our liability is limited to foreseeable, typically occurring damages, provided that we, our legal representatives, or our agents have not acted intentionally. Insofar as we have given a guarantee regarding the quality and/or durability of the goods or parts thereof, we are also liable within the scope of this guarantee. However, we are only liable for damages resulting from the absence of guaranteed quality or durability that do not directly affect the goods if the risk of such damage is clearly covered by the quality and durability guarantee.
We are also liable for damages caused by simple negligence if the negligence concerns the violation of such contractual obligations, the fulfillment of which enables the proper execution of the contract and on the observance of which the buyer regularly relies (cardinal obligations). However, we are only liable to the extent that the damages are typically associated with the contract and are foreseeable.
Further liability, regardless of the nature of the asserted claim, is excluded; this also applies in particular to tort claims or claims for reimbursement of futile expenses instead of performance. Our liability according to Section IV Clause 2 to Section IV Clause 5 of this contract remains unaffected. To the extent that our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives, and agents.
The buyer's claims for damages due to a defect expire one year after delivery of the goods. This does not apply in cases of life, body, or health damages caused by us, our legal representatives acting intentionally or grossly negligently, or if our simple agents acted intentionally.

VII. Retention of Title

Until the fulfillment of all claims, including all balance claims from current accounts, presently or in the future, that we are entitled to against the buyer, the delivered goods (reserved goods) remain our property. In case of the buyer's contractual default, e.g., payment delay, we have the right, after setting a reasonable deadline, to reclaim the reserved goods. If we reclaim the reserved goods, this constitutes a withdrawal from the contract. If we seize the reserved goods, this also constitutes a withdrawal from the contract. We have the right to exploit the reserved goods after repossession. After deducting a reasonable amount for the exploitation costs, the proceeds from exploitation shall be offset against the amounts owed to us by the buyer.
The buyer must handle the reserved goods with care and adequately insure them at their own expense against fire, water, and theft damages up to the replacement value. Maintenance and inspection work required are to be carried out by the buyer at their own expense and in a timely manner.
The buyer is authorized to properly sell and/or use the reserved goods in the ordinary course of business as long as they are not in default of payment. Pledging or transfer of ownership by way of security is not permitted. The buyer hereby assigns to us, as collateral, all claims arising from the resale or any other legal basis (insurance, unlawful act) regarding the reserved goods (including all balance claims from current accounts); we hereby accept this assignment. We authorize the buyer, revocably, to collect the assigned claims on our behalf in their own name. The authorization for collection can be revoked at any time if the buyer does not duly fulfill their payment obligations. The buyer is not authorized to assign these claims for the purpose of collection through factoring unless, at the same time, the factor is obliged to effect the consideration directly to us as long as there are still claims from us against the buyer.
Processing or transformation of the reserved goods by the buyer shall always be carried out on our behalf. If the reserved goods are processed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the reserved goods (invoice amount including value-added tax) in relation to the other processed items at the time of processing. The same applies to the new item resulting from processing as for the reserved goods. In the event of inseparable mixing of the reserved goods with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the reserved goods (invoice amount including value-added tax) to the other mixed items at the time of mixing. If the buyer's item is to be considered the main item as a result of mixing, the buyer and we agree that the buyer transfers pro rata co-ownership of this item to us; we hereby accept this transfer. The buyer shall keep our resulting sole or co-ownership of an item safe for us.
In case of third-party access to the reserved goods, particularly seizures, the buyer shall indicate our ownership and promptly notify us, so that we can enforce our ownership rights. If the third party is unable to reimburse us for the judicial or extrajudicial costs incurred in this context, the buyer shall be liable.
We are obligated to release the securities due to us to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the choice of securities to be released lies with us.

VIII. Place of Performance, Jurisdiction, Applicable Law

The place of performance and jurisdiction for deliveries and payments (including check and bill of exchange disputes), as well as all disputes arising between us and the buyer from the purchase contracts concluded between us and them, is our company headquarters. However, we are also entitled to sue the buyer at their place of residence or business.
The relationship between the contracting parties is governed exclusively by the laws of the Federal Republic of Germany. The application of the uniform law on the international sale of movable goods and the law on the conclusion of international contracts for the sale of movable goods is excluded.

Date: January 1, 2006