General Terms and Conditions of Trade - Porzellanmanufaktur Kahla/Thüringen GmbH
1. Scope of Application
(1) The following General Terms and Conditions of Trade (hereinafter referred to as "GTC") in the version valid at the time of the order shall apply exclusively to orders for products from Porzellanmanufaktur Kahla/Thüringen GmbH, Christian-Eckardt-Straße 38, 07768 Kahla, Germany (hereinafter referred to as "Kahla").
(2) The GTC apply only in business transactions with entrepreneurs, legal entities under public law or public law entities with special public funds. They shall form the basis of all offers and deliveries by Kahla.
(3) The GTC shall take precedence over any other terms and conditions of the customer. The GTC also apply to future orders without the need to expressly include them again. General terms and conditions of the customer shall only apply if explicitly confirmed by Kahla.
2. Quotation and Conclusion of Contract
All offers made by Kahla are subject to change, i.e. Kahla reserves the right to accept the order within a period of four (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 customer.
3. Term of Delivery and Scope of Delivery
(1) Delivery dates are binding once confirmed in the order confirmation.
(2) Delivery is subject to the timely delivery by suppliers and service providers of Kahla. In such cases, Kahla's delivery will be delayed accordingly. This only applies if Kahla is not responsible for the non-delivery and if a congruent hedging transaction has been concluded with the supplier. The same applies in cases of force majeure, such as strikes or operational disruptions for which Kahla is not responsible or difficulties in the procurement of raw materials for which Kahla is not responsible. The customer will be informed as soon as possible; any payment will be refunded upon request.
(3) If the impediment to performance for which Kahla is not responsible lasts longer than fourteen (14) days, Kahla is entitled to withdraw from the contract.
(4) Kahla's deliveries are ex works and include industry-standard packaging. Transport packaging and all other packaging in accordance with the Packaging Act (German: Verpackungsgesetz) will not be taken back; therefore, the customer is obliged to arrange the disposal of the packaging at his own expense.
(5) Any ordered special, customized packaging, labels, stickers, disposable pallets and foil covers shall be invoiced separately.
(6) Any assumption of transport costs regulated in individual cases does not include the assumption of the transport risk.
(7) Kahla reserves the right to sell factory seconds and surplus production on its own account, provided that legitimate interests and property rights of the customer are not impaired. In case of doubt, this is to be assumed if the sale takes place outside of the European Union.
(8) Orders which are ordered on a fixed date but then not accepted by the customer shall be subject to a storage charge (EUR 10.00 per pallet per month) and interest at a rate of nine (9) percentage points above the base rate, but at least twelve (12) per cent per annum, from the third (3rd) day after notification of readiness. The customer shall be entitled to provide evidence of lower costs.
(9) Kahla is entitled to make partial deliveries to the extent that they are acceptable to the buyer.
(10) In the case of customer-specific production orders, excess and short deliveries of up to ten (10) per cent of the order placed are to be accepted by the customer to the extent that they are acceptable to the customer. In such cases, the excess and short deliveries are to be remunerated or reimbursed.
4. Transfer of Risk
The risk shall pass to the customer as soon as the goods are handed over to the person responsible for transport.
5. Terms of Payment
(1) Invoices are payable by bank transfer to the account of Kahla within thirty (30) days of the invoice date without discount or, if participating in the direct debit procedure (only available in Germany), with two (2) percent discount. Discounts shall not apply to newer invoices if the buyer has older, overdue open invoices.
(2) The calculation of value added tax shall be based on the legal regulations.
(3) If the customer defaults on a payment, any payment terms granted shall lapse for all other due claims. From the time of default, the customer shall owe interest on arrears at a rate of nine (9) percentage points above the base rate, but at least twelve (12) per cent per annum. The customer shall be entitled to provide evidence of lower costs.
(4) For each justified reminder, Kahla is entitled to claim damages in the amount of EUR 10,00. Kahla remains entitled to prove higher damages, the customer remains entitled to prove lower damages.
(5) In the event of default in payment and exceeding a payment deadline by thirty (30) days, Kahla is entitled to call due all claims in total or to demand the provision of securities. In addition, Kahla is also entitled to make outstanding deliveries only against advance payment or against provision of securities.
(6) The customer 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 customer 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 until full payment of all claims arising from the existing business relationship, including from previous and future deliveries. Until payment has been made for the goods, the customer is obliged to treat the goods with care and to notify Kahla immediately of any access to the goods by third parties, for example in the event of seizure, and of any damage to or destruction of the goods. In the event of conduct in breach of contract, in particular default of payment, Kahla is entitled to take back the goods.
(2) The customer is entitled to resell the goods in the regular course of business, but only subject to retention of title. The customer hereby assigns to Kahla by way of security all claims accruing to it from the resale. The assignment is hereby accepted. The cover limit for the assigned claims is one hundred and twenty (120) percent of the value of the reserved goods sold and delivered in each case. The customer is authorised to collect the claim; the authorisation shall lapse upon default of payment. If the goods are taken back, the customer shall be liable for any deterioration. The actual costs or, at our reasonable discretion, fifteen (15) percent of the value of the goods shall be charged for the costs of taking back the goods (transport costs, repackaging, etc.). Proof of lower or higher expenses remains possible.
(3) The customer herewith authorises Kahla to enter its premises and business premises, to drive on them and to take possession of the goods subject to retention of title. Taking possession does not constitute withdrawal from the contract. The marking of the goods for Kahla is deemed to be taking possession. The taking of possession may be carried out by agents acting on behalf of Kahla. These must identify themselves by means of a written power of attorney.
7. Warranty for Defects and Liability
(1) The warranty for material defects requires that the customer fulfils his obligation to give notice of defects. The goods must be inspected immediately upon receipt. Recognisable defects must be reported in writing within eight (8) days of receipt of the goods at the latest; otherwise warranty claims are excluded. Minor deviations in shape, colour, decor and/or weight cannot be objected to. The rejected goods must be stored and handled properly.
(2) In the event of defects, Kahla shall initially provide a warranty by means of replacement delivery or reordering, at its discretion.
(3) If the subsequent fulfilment fails, the customer can demand a reduction of the remuneration (abatement). The above provisions on liability for defects shall apply accordingly if other goods or reduced quantities are delivered instead of the agreed goods.
(4) The limitation period for warranty claims is one (1) year from delivery of the goods.
(5) Claims for damages, irrespective of the legal grounds, shall only exist in the event of intent or gross negligence on the part of Kahla. Claims under the Product Liability Act (Produkthaftungsgesetz) remain unaffected. Furthermore, liability for injury to life, limb and health remains unaffected. Furthermore, liability for the breach of essential contractual obligations, i.e. contractual obligations the fulfilment of which is a prerequisite for the proper performance of the contract and the observance of which the customer may regularly rely on (cardinal obligations), shall remain unaffected.
(6) Except in the case of damage resulting from culpable injury to life, body and health and other intentional or grossly negligent breach of duty, the amount of liability shall be limited to compensation for the foreseeable damage typical of the contract.
(7) The legal representatives and vicarious agents shall also be liable to the customer with the aforementioned limitations.
(8) Withdrawal from the contract is excluded; this does not apply if there is a breach of duty for which Kahla is responsible and which does not consist of a defect in the goods.
8. Prohibitions of Use
Branded goods may not be redesigned and sold without the prior written consent of Kahla.
9. Place of Fulfilment and Jurisdiction
(1) All legal relationships between Kahla and the customer shall be governed by the laws of the Federal Republic of Germany, to the exclusion of its conflict-of-law provisions. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply. The place of performance and jurisdiction for both parties is Jena, Germany.
(2) Should individual terms of the contract or these GTC be or become invalid in whole or in part, this shall not affect the validity of the remaining terms.
(3) Kahla is not willing nor required by law to participate in dispute resolution proceedings before a consumer arbitration board.
10. Data Protection and Scoring
(1) Order data shall be stored and processed in accordance with the German Data Protection Regulation and the German Federal Data Protection Act (Datenschutz-Grundverordnung and Bundesdatenschutzgesetz), insofar as this is necessary for billing, customer service and contract fulfilment.
(2) For the purpose of deciding on the establishment, implementation or termination of the contractual relationship, we collect or use probability values, the calculation of which includes address data (scoring within the meaning of the General Data Protection Regulation and the Federal Data Protection Act).
Status: August 2021