General Terms and Conditions of Kohlstädt GmbH, Vlotho Print

1. Scope of the General Terms and Conditions
  1. Our deliveries, services and offers are based exclusively on these General Terms and Conditions. They are a component of all contracts that we conclude with our contracting partners (hereafter also "customer") for all deliveries and services that we offer. They shall also apply to all future deliveries, services or offers to the customer, even if they are not agreed separately again.

  2. Terms and conditions of the customer or third parties do not apply, even if we do not object to their validity separately in an individual case. Even if we refer to a document containing the terms and conditions of the customer or a third party, or refer to such, this shall not constitute any agreement with the validity of those terms and conditions.

  3. Our General terms and conditions shall apply only to merchants within the meaning of Section 310 Par. 1 BGB [German Civil Code].


2. Offer and contract conclusion
  1. Our offers are subject to confirmation and non-binding, as long as they are not expressly identified as being binding or contain a specific term of acceptance. We can accept orders from the customer within two weeks after receipt. The order only becomes binding for us once we explicitly issue an order confirmation.

  2. We shall retain the ownership or copyright of all offers and cost estimates issued by us, as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids provided to the customer. The customer shall not be not permitted to make these items as such or their content accessible to third parties without our explicit consent, nor disclose, use or duplicate these himself or through third parties. At our request, the customer must return these items to us in full and destroy any copies that have been produced, if they are no longer required for his ordinary course of business or if negotiations do not result in a contract being concluded.

  3. Cost estimates shall be charged separately. At customer’s request, customer shall be notified in advance of the costs incurred for this.


3. Delivery period
  1. Delivery dates specified by us shall be considered to be approximate dates only. If shipping has been arranged, delivery periods and delivery dates shall relate to the time of handover to the shipper, freight forwarder or other third party authorised with transport.

  2. We shall be required to adhere to our delivery obligation only if the customer has fulfilled all of its own obligations within the context of the contract in a timely and proper manner. We shall reserve the right to object to a contract that has not been fulfilled.
    In the event that customer is in default of acceptance or intentionally violated its duties to cooperate, we may demand compensation for the loss incurred or demand a postponement of the delivery and service dates by that time period during which the customer does not fulfil its contractual obligations to us. Further claims shall remain reserved.

  3. If the preconditions of 3.b should apply, the risk of accidental loss or accidental deterioration of the delivery object shall be transferred to the customer at the time when it enters into acceptance default or debtor default.

  4. In the event of non-compliance with a delivery period that has been explicitly confirmed by us in writing, customer shall be entitled to set an adequate extension for us in writing. After unsuccessful expiry of this extension, customer shall be entitled to withdraw from the contract. Compensation claims of any type shall be excluded.

  5. Partial deliveries are admissible.


4. Prices and payment conditions
  1. The prices shall apply to the scope of service and delivery listed in the order confirmation. Additional services or special services shall be charged separately. To the extent that nothing different has been agreed upon, the prices shall be understood to be ex works, exclusive of packaging. Statutory VAT, with export deliveries, customs duties and fees and other public duties shall not be included in the prices and shall be charged separately.

  2. To the extent that the agreed prices are based on our list prices and the delivery will only take place more than four months after conclusion of the contract, our valid list prices at the time of delivery shall apply (in each case, less an agreed percentage or fixed discount).

  3. Invoice amounts shall be payable within 21 days after the invoice date, without any deductions, provided nothing different has been agreed in writing. For payment within eight days after the invoice date we shall grant a two percent cash discount. Receipt by us shall be relevant as the date of payment. Cheques shall be considered to be valid as payment only after redemption. If customer does not pay when payment is due, the outstanding amounts shall be subject to interest of eight percentage points above the base interest rate, pursuant to Section 247 BGB [German Civil Code] from the day of payment became due; the assertion of higher interest and further claims in case of default shall remain unaffected.

  4. We shall be entitled to deliver excess deliveries or shortfall deliveries for up to 10% of the order quantity and will be charged proportionally to the agreed invoice price.

  5. Offsetting with counterclaims of the customer or the retention of payments due to such claims shall only be permissible if the counterclaims are uncontested or legally established.

  6. We shall be entitled only to carry out still outstanding deliveries or services against advance payment or provision of collateral, if, after conclusion of the contract, we become aware of circumstances that might significantly reduce the creditworthiness of the customer, and through which payment by the customer for our outstanding claims from the respective contractual relationship (including from other individual orders, for which the same framework agreement applies) is at risk.

  7. We reserve the right to demand immediately payment and/or demand provision of collateral if justified doubts exist regarding the solvency of the customer and customer is in payment default.


5. Shipment, packaging, transfer of risk and insurance
  1. Delivery shall take place ex works for the account and at the risk of the customer, provided nothing different has been explicitly agreed.

  2. We shall determine the type of shipping and packaging... Customer shall be invoiced separately for the packaging costs.

  3. The risk shall transfer to the customer with handover of the goods at the latest - the start of the loading process shall be relevant - to the shipper, freight forwarder or other party appointed to carry out the shipping. If the shipment or handover should be delayed as the result of a circumstance, for which the cause lies with the customer, the risk shall transfer to the customer from the day on which we are ready to ship and have notified the customer of this.

  4. Storage costs after transfer of risk shall be borne by the customer. For storage by us, the storage costs shall amount to 0.25% of the invoice amount for the delivery items per expired week. The assertion and proof of further or lower storage costs shall remain reserved.

  5. At the express request of the customer and at his expense, we shall insure the shipment only against theft, breakage, transport, fire and water damage or other insurable risks.


6. Reservation of proprietary rights
  1. The goods delivered by us to the customer shall remain our property until full payment of all insured claims. The agreed reservation of proprietary rights is for the purpose of securing all of our existing current and future claims against the customer from the existing delivery relationship (including balance claims from an overdraft account relationship limited to this delivery relationship) between the contracting partners.

  2. The customer shall store the goods for us free of charge, subject to reservation of proprietary rights. Customer shall be entitled to process and sell the goods in the ordinary course of business until the occurrence of the recovery case (g below). Pledges and security transfers are prohibited.

  3. If the goods under reservation of proprietary rights are processed by the customer, it shall be agreed that the processing takes place on our behalf and for our account as manufacturer and that we shall acquire the ownership or – if the processing takes place from materials with several owners or the value of the processed item is higher than the value of the goods subject to reservation of proprietary rights – the co-ownership (fractional ownership) of the newly created item, in the proportion of the value of the goods under reservation of ownership to the newly created item. In the event that we gain no such ownership, customer shall transfer his future ownership or – in the above proportion – co-ownership of the newly created item to us already now, as collateral. If the goods are combined with other items into a unified item or are inseparably mixed and one of the other items is regarded as a main item, the customer shall transfer its proportional co-ownership in the unified item in the proportion specified in sentence 1 to us to the extent that the main item belongs to customer.

  4. In case of a resale of the goods, customer shall assign the claim against the buyer arising from this to us as collateral, in the event of co-ownership by the customer in the goods, proportionally according to the co-ownership share already now. The same shall apply to other claims that take the place of the goods under reservation of proprietary rights or that otherwise arise regarding the goods, e.g. insurance claims or claims from tort in case of loss or destruction. We irrevocably authorise the customer to collect the claims assigned to us on our behalf, for our account. We shall only be permitted to revoke the direct debit mandate in case of recovery.

  5. If third parties should access the goods under reservation of proprietary rights, particularly through an attachment, the customer shall immediately notify them about our ownership and notify us about this, in order to enable us to assert our ownership rights. To the extent that the third party is not able to compensate us for court costs or out-of-court costs in this context, customer shall be held liable for this.

  6. We shall release the goods under reservation of proprietary rights and the items or claims replacing them at our discretion, upon request, to the extent that their value exceeds the amount of the secured claims by more than 50%.

  7. If we should withdraw from the contract due to conduct contrary to the contract by the customer – particularly due to payment default – (recovery case), we shall be entitled to demand that the goods subject to reservation of proprietary rights be surrendered.


7. Warranty
  1. Warranty claims by the customer require that he has properly fulfilled his inspection and complaint obligations pursuant to Section 377 HGB [German Commercial Code].

  2. The warranty period shall be one year from handover of the delivery object to the shipper, freight forwarder or other third party entitled to receipt (transfer of risk).

  3. In the event of physical defects to the delivery object, we shall be obligated and entitled to supplemental rectification or replacement delivery, at our option. In case of failure, i.e. infeasibility, unreasonableness, refusal or inadequate delay of the supplemental rectification or replacement delivery, customer may withdraw from the contract or appropriately reduce the purchase price. Compensation claims by the customer shall be excluded in all cases.

  4. The warranty shall lapse, if the customer modifies the delivery object without our consent or has it modified by third parties and therefore makes it impossible or unreasonably difficult to rectify the defect... In all cases, customer shall bear the additional costs of defect rectification or the resulting losses that arise due to the modification.


8. Liability and liability limitation
  1. We shall be held liable for compensation, regardless of the legal grounds, particularly from infeasibility, default, defective or incorrect delivery, contract infringement, violation of duties during contract negotiations and tort, to the extent that it is based on culpability, only according to the following provisions.

  2. We shall not be held liable in case (1) of simple negligence by our corporate bodies, legal representatives, employees or other vicarious agents and (2) in case of gross negligence by our non-management employees or other vicarious agents, to the extent that this does not involve infringement of material contractual obligations. Material contractual obligations shall be the duty to provide timely, non-defective delivery and advisory, protection and custody duties, enabling the customer to use the delivery objects in accordance with the contract or have the purpose of protecting life or limb of the customer’s personnel or third parties, or the customer’s property from significant damage.

  3. To the extent that we are liable for compensation according to b) on its merits, this liability shall be limited to losses, which we have foreseen at the conclusion of the contract as a possible consequence of contract violation or under consideration of the circumstances, which were known to us or which we should have known, when applying due care and diligence. Secondary damages and consequential damages, which are the result of deficiencies of the delivery object, shall also be reimbursable only to the extent that such losses are typically expected from proper use of the delivery object.

  4. In case of liability for simple negligence, our obligation to pay compensation for damages to property or persons is limited to an amount of € 1 million per claim, even if it involves the infringement of a material contractual obligation.

  5. The above-mentioned liability exclusions and limitations shall apply equally in favour of our corporate bodies, legal representatives, employees and other vicarious agents.

  6. To the extent that we provide technical information or carry out advisory activities and this information or advice is not part of our scope of service that we owe and have contractually agreed to, this is a service that is free of charge and subject to exclusion of any liability. The liability limitations of this sub-section 8 shall not apply to our liability for premeditated acts, for guaranteed characteristics of state, injury to life, limb or health or under the product liability law.


9. Special conditions for development contracts and project planning contracts.
  1. The customer shall disclose the content and scope of a development order/project planning order when placing the order and provide all necessary documentation for executing the order (e.g. sketches, plans, technical details), so that we are able to prepare a correct order confirmation. The customer shall provide all necessary information, documents and knowledge for the development contract/project planning contract to be carried out.

  2. We shall not vouch for the success of a development order/project planning order if we are not responsible for the circumstances responsible for non-occurrence of success.

  3. If it emerges within the context of executing a development order/project planning order that the order cannot be carried out completely or on time, both contracting parties agree to bring about a decision on the continuation of the order. If this is not successful, we shall be entitled to cancel the contract. We shall then be entitled to the agreed remuneration for the part of the services provided by then.


10. Place of performance and jurisdiction
  1. The jurisdiction shall be the registered domicile of our company; however, we are also entitled to file legal action against the customer at the court responsible for customer’s registered domicile.

  2. The law of the Federal Republic of Germany shall apply; the validity of the UN Convention on the International Sale of Goods shall be excluded.

  3. Unless otherwise indicated on the order confirmation our registered office shall be the place of performance.


Note

The customer acknowledges that we store data from the contractual relationship pursuant to Section 28 Data Protection Act for the purpose of data processing and we reserve the right to disclose the data to third parties (e.g. insurance companies) to the extent that this is necessary for fulfilment of the contract.

(As of: 14 July 2009)