Knappe + Lehbrink Promotion GmbH – GTC
DELIVERY AND PAYMENT TERMS
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I. Scope of the General Terms and Conditions
- These General Terms and Conditions apply to all current and future contracts with customers of the company Knappe + Lehbrink GmbH - referred to in the following as Knappe + Lehbrink - focused primarily on the delivery of goods to customers. Any other obligations accepted by Knappe + Lehbrink shall not fall under the scope of these General Terms and Conditions.
- Any contradictory or deviating Terms and Conditions of the customer shall not apply to Knappe + Lehbrink, even if Knappe + Lehbrink does not expressly object to these, or if Knappe + Lehbrink performs services or accepts payment from the customer unconditionally. Likewise, they shall not apply to Knappe + Lehbrink if the customer's General Terms and Conditions deviate from the law, regardless of the content of these General Terms and Conditions.
- These General Terms and Conditions are designed for contracts that do not fall under the special provisions of consumer goods purchases (Sections 474 et seqq. BGB (German Civil Code)). If this assumption does not apply, then the customer shall inform Knappe + Lehbrink of this in every case promptly and in writing; furthermore, in such cases the “General Conditions of Sale for Consumer Goods” of Knappe + Lehbrink (available upon request) shall apply instead of these General Terms and Conditions.
- These General Terms and Conditions shall not apply if the customer is a consumer in the sense of Sec. 13 BGB.
II. Conclusion of the contract
- Before concluding the contract, the customer is obligated to inform Knappe + Lehbrink in writing if the goods to be delivered should be suitable for more than just customary usage, or if the customer expects them to be suitable for some specific use, or if the customer expects the goods to have specific characteristics based on public, statements, advertising claims or other circumstances beyond what is stated in the concrete concluded contract, or if the goods will be subject to any unusual conditions, or conditions that represent a particular health, safety or environmental risk or subject to any increased loads, or if atypical possible damage or unusual amounts of damage could be associated with the contract, of which the customer is aware or should be aware.
- Customer orders must be made in writing. If the customer’s order
- deviates from the suggestions or services/products offered by Knappe + Lehbrink, then the customer shall specifically highlight the deviations as such. Images and drawings, as well as dimensional and weight information on the suggestions or offers/services of Knappe + Lehbrink are to be considered approximate. The regulations for concluding contracts in electronic business transactions according to Sec. 312 e paragraph 1 clause 1 no. 1 to 3 BGB shall not apply.
- All orders, in particular those taken by employees of Knappe + Lehbrink, shall only become valid following a written order confirmation from Knappe + Lehbrink. The actual delivery of ordered goods, any other actions on the part of Knappe + Lehbrink, or any failure to respond shall not indicate any guarantee to the customer to conclude a contract. Knappe + Lehbrink may provide its written order confirmation up to fourteen (14) calendar days after it has received the customer's order.
- The written confirmation from Knappe + Lehbrink shall be deemed promptly received if it is received by the customer within seven (7) calendar days after the date it was issued. The customer shall inform Knappe + Lehbrink promptly if the written order confirmation is received late.
- The written order confirmation from Knappe + Lehbrink shall be decisive for the scope of the contractual content, and shall be considered a conclusion of contract even if it deviates from the customer’s declarations in any manner other than the type of goods, price and delivered quantities, in particular even if it deviates from the exclusive applicability of these General Terms and Conditions. Special requests by the customer, specifically particular expectations of the customer regarding certain uses or expected characteristics, warranties or other assurances related to the goods or to carrying out the contract, shall therefore require express written confirmation by Knappe + Lehbrink. The contract shall only not come about if the customer submits a written complaint that Knappe + Lehbrink's order confirmation does not conform to the customer's declarations in every respect, specifying the deviations in writing. Knappe + Lehbrink must receive the complaint promptly, at the latest within seven (7) calendar days after the customer received the written order confirmation.
- Confirmations made by the customer shall not be valid, without requiring any objection to them by Knappe + Lehbrink. Specifically, neither the actual delivery of ordered goods nor any other actions on the part of Knappe + Lehbrink, or any failure to respond shall indicate that the customer can expect their confirmation to be valid.
- The employees, sales representatives and other distribution intermediaries of Knappe + Lehbrink are not entitled to waive the requirement for a written order confirmation from Knappe + Lehbrink, nor to provide any commitments with deviating content or to issue any guarantees. Amendments to the concluded contract shall always require written confirmation from Knappe + Lehbrink.
III. Obligations of Knappe + Lehbrink
- Knappe + Lehbrink shall deliver the goods indicated in the written order confirmation, and transfer ownership of said goods. If the delivered goods require further specification, then Knappe + Lehbrink shall provide these specifications in consideration of its own concerns, and the legitimate concerns of the customer which are known to Knappe + Lehbrink. Knappe + Lehbrink is not obligated to provide any services not stated in Knappe + Lehbrink's written order confirmation or in these General Terms and Conditions; specifically, Knappe + Lehbrink is not obligated to provide any documents or information, or to deliver any accessories, install additional protective devices, deliver assembly manuals, complete assembly or advise the customer unless expressly agreed in writing. Furthermore, Knappe + Lehbrink is in particular not obligated to review samples, print templates, print data, proofs or similar provided by the customer or by any third party commissioned by the customer or to store or save samples, print templates, print data, proofs or similar, even if these are provided by the customer.
- Knappe + Lehbrink is obligated solely to the customer under the contract concluded with the customer. Third parties not involved with the conclusion of the contract, in particular the customer’s purchasers, are not entitled to request deliveries to themselves or to assert any contractual claims against Knappe + Lehbrink. The customer shall remain obligated to receive delivery even if they assign claims to third parties. The customer shall indemnify Knappe + Lehbrink against all claims asserted by third parties against Knappe + Lehbrink in conjunction with the contract concluded with the customer.
- Knappe + Lehbrink is obligated to deliver goods of average type and quality in consideration of the regulations of clauses II.1 and II.5 and in consideration of customary tolerances in terms of type, quantity and quality. The company reserves the right to deliver goods that deviate in terms of dimensions, texture and colour, insofar as these deviations are in the nature of the materials themselves and are customary, or are due to requirements related to casting or to production. EAN bar codes shall be printed using state of the art technology; without uniform measurement and reading technology, it is not possible to ensure specific reading results at the cash register. If the goods to be delivered cannot be delivered in the condition offered when the contract was concluded because series products have undergone technical improvements, then Knappe + Lehbrink is entitled to deliver the improved version. Knappe + Lehbrink is entitled to make partial deliveries and invoice these separately.
- Knappe + Lehbrink shall provide the goods at the agreed delivery time EXW (Incoterms 2010) to the delivery address indicated in the written order confirmation or – if no delivery address is specified – for pick-up by the customer at the branch office in Bünde in Knappe + Lehbrink's customary packaging. The goods do not have to be separated or labelled first, nor does the customer have to be informed that they are available. Knappe + Lehbrink shall not be obligated in any case, not even if other Incoterms apply, to inform the customer of the delivery, to inspect the delivery to ensure it conforms to the contract, to organise transportation of the goods or to insure the goods. An agreement to other Incoterms or to any clauses on free delivery or similar clauses shall only result in a deviating regulation for transport and transportation costs; the other regulations concluded in these General Terms and Conditions shall otherwise apply.
- In order for agreed delivery terms and deadlines to be met, the customer must provide any required documents, permits or approvals promptly, all technical questions must have been clarified with the customer, the customer must have reviewed any samples or proofs and provided them ready for processing, all advance payments must have been made, and the customer must have fulfilled all other obligations of any kind. Furthermore, agreed delivery terms shall begin on the date of the written order confirmation from Knappe + Lehbrink. Knappe + Lehbrink is entitled to deliver goods before the agreed date or determine the time of delivery within the set delivery term.
- Knappe + Lehbrink is entitled to fulfil contractual obligations after the planned deadline if it informs the customer of the delay and indicates a period for supplementary fulfilment. Under these requirements, Knappe + Lehbrink is also entitled to make multiple attempts at supplementary fulfilment. The customer can object to the supplementary fulfilment within an appropriate time period if it is unreasonable. Knappe + Lehbrink shall reimburse any verified and required additional expenses of the customer due to the delay, if Knappe + Lehbrink is liable for damages in accordance with the regulations of clause VII.
- Regardless of whether goods are transported by Knappe + Lehbrink, the customer or a third party, the risk shall be transferred to the customer (even if goods are not clearly labelled) once loading begins, or once the customer fails to fulfil their obligation to accept the goods. The customer is obligated to load the goods. An agreement to other Incoterms or to any clauses on free delivery or similar clauses shall only result in a deviating regulation for transport and transportation costs; the other regulations concluded in these General Terms and Conditions shall otherwise apply.
- Knappe + Lehbrink is not obligated to provide any certificates or credentials or to obtain any other documents unless expressly agreed, and in no case is it responsible for fulfilling obligations associated with selling the goods outside of Germany.
- Without waiving any further statutory rights, Knappe + Lehbrink is entitled to a defence of uncertainty in accordance with Sec. 321 BGB, as long as Knappe + Lehbrink is concerned that the customer may not fulfil their obligations in whole or in part according to the contract. Knappe + Lehbrink is in particular entitled to the defence of uncertainty if the customer only fulfils its obligations towards Knappe + Lehbrink or third parties to an insufficient extent or pays slowly, or if their limit set by a credit insurer has been exceeded, or if said limit would be exceeded with the outstanding delivery. In place of the defence, Knappe + Lehbrink may make future deliveries, including those that have already been confirmed, dependent on the customer paying in advance. Knappe + Lehbrink is not obligated to continue providing services if and insofar as the payments made by the customer to avoid the defence do not represent an appropriate security, or could be challenged.
IV. Obligations of the customer
- The customer is obligated to review samples, print templates, print data, proofs or similar itself and to provide these to Knappe + Lehbrink ready for processing.
- Regardless of further obligations of the customer to secure or prepare payment, the purchase price is due and payable by the customer by the deadline indicated in the written order confirmation and – if no deadline is indicated – when the invoice is issued. Any payment terms granted shall cease to apply, and any outstanding claims shall be due immediately for payment if customers of Knappe + Lehbrink's customers pay for goods that are subject to a retention of ownership (clause VIII 5), if a motion is made to open insolvency proceedings against the customer's assets, if the customer does not fulfil significant obligations towards Knappe + Lehbrink or third parties without providing legitimate grounds for doing so, if the customer has not provided correct information on its credit-worthiness, or if the coverage granted by a credit insurer is reduced for reasons that are not the responsibility of Knappe + Lehbrink.
- The agreed purchase price covers all services Knappe + Lehbrink is obligated to provide, excluding packaging. Statutory VAT shall be charged separately and must be paid by the customer in addition to this price.
- Promised discounts must always be listed on Knappe + Lehbrink's written order confirmation, and shall only apply if the customer pays all of Knappe + Lehbrink's claims on time and in full.
- Payments shall be transferred to the banking institution designated by Knappe + Lehbrink in euros, without discounts, free of charge and fees. An unconditional credit to the bank account shall be decisive for determining payments which are made in a timely fashion. Employees, sales representatives and other distribution intermediaries of Knappe + Lehbrink are not entitled to receive payments.
- Knappe + Lehbrink can offset incoming claims at its own discretion on claims that existed against the customer at the time of the payment under its own or assigned rights, regardless of jurisdiction.
- The customer's statutory rights to offset against claims of Knappe + Lehbrink are excluded, unless the counter-claim is based on the customer's own right and has either been established in a court of law or is due for payment and undisputed. Sec. 215 BGB shall not apply.
- Statutory rights of the customer to reserve payment or accept goods, to suspend any of its other obligations or to assert complaints or defences shall be excluded, unless Knappe + Lehbrink violates significant obligations it must fulfil under the same contractual relationship, despite a written warning from the customer, and has not offered an appropriate compensation. Sec. 215 BGB shall not apply.
- The customer is obligated to accept the goods by the delivery deadline without issuing further terms, at the delivery address indicated in clause III.4, and to fulfil all of its obligations under the contract, these General Terms and Conditions, the regulations for the ICC for interpreting Incoterms® 2010, and under the law. For make and hold orders, goods shall be accepted at the latest within 6 months after the first partial delivery or within 6 months after a declaration has been given that goods are ready for delivery, whichever is earlier. The customer is only entitled to deny acceptance of goods if it withdraws from the contract in accordance with the regulations of clause VI.1.
- The customer is obligated to return borrowed packaging and the pallets used for delivery promptly after receiving goods free of charge, in full and undamaged within a reasonable time period to the headquarters of Knappe + Lehbrink. Pool pallets will be invoiced if they are not exchanged within four weeks. Collico packaging must be returned to the headquarters of Knappe + Lehbrink immediately, free of charge and in full; otherwise, Knappe + Lehbrink shall be entitled to charge rent for this packaging separately. Furthermore, Knappe + Lehbrink is not obligated to take back goods or packaging materials delivered to the customer from the customer or from any third parties under waste disposal regulations. The above regulations shall apply regardless of whether the customer was invoiced separately for the packaging or not.
V. Defective goods
- Without waiving statutory exclusions or restrictions governing the responsibilities of the seller, goods are considered to have a material defect if the customer can prove that the goods deviate notably in consideration of the regulations in clauses II.1, II.5 or III. at the time of transfer of risk from the type, quantity, characteristics or suitability for use agreed in the written order confirmation or, if there is no agreement, notably from the characteristics customary in Germany, or if they are obviously not suitable for the customary use in Germany. Deliveries with obvious or hidden deficiencies are considered to have a material defect.
- Without waiving statutory exclusions or restrictions governing the responsibilities of the seller, goods are considered to have a defect of title if the customer can prove that goods were not free from rights or claims of third parties enforceable in Germany at the time of transfer of risk. Without waiving further statutory requirements, rights or claims of third parties based on commercial or other intellectual property shall only represent a defect of title if the rights are registered, published and effective in Germany, and if they would exclude contractual use of the goods in Germany.
- Unless otherwise expressly stated in the written order confirmation from Knappe + Lehbrink, Knappe + Lehbrink is in particular not responsible for ensuring that the goods are suitable for some other use besides the customary use, or that they deviate from customary characteristics or fulfil any further expectations of the customer, or that they are free from third party rights or claims outside of Germany. Knappe + Lehbrink shall not be liable for defects that occur after the transfer of risk. If the customer attempts to correct defects itself or engages third parties to do so without the approval of Knappe + Lehbrink, then Knappe + Lehbrink shall be freed from its warranty obligations, unless the corrections are undertaken professionally.
- Any guarantees or assurances desired by the customer must always be listed as such in the written order confirmation, even in the case of follow-up orders/transactions. In particular, bullet points or brief designations referring to generally valid standards, the use of trademarks or quality marks or the submission of samples or templates shall not in and of themselves indicate the granting of any guarantee or assurance. Employees, sales representatives and other distribution intermediaries of Knappe + Lehbrink are not entitled to declare guarantees or assurances, or provide any information on specific uses or on the economic characteristics of the goods.
- The customer is obligated to inspect each individual delivery promptly and in every respect for obvious and typical deviations in terms of quality, quantity and other characteristics, to inspect goods to ensure they comply with product regulations applicable to them, and to otherwise inspect them to ensure they comply with the law.
- Without waiving the customer's statutory obligations to submit prompt notification, the customer is obligated to notify Knappe + Lehbrink of any material defect or defect of title at the latest within one (1) year after the goods are actually handed over to it, and to send additional samples or images of the challenged goods to Knappe + Lehbrink. Notification must be delivered to Knappe + Lehbrink in writing and directly, and must be precise enough so that Knappe + Lehbrink can take corrective measures and secure its recourse claims against preliminary suppliers without requiring further inquiries from the customer; notifications must furthermore conform to statutory requirements. Employees, sales representatives and other distribution intermediaries of Knappe + Lehbrink are not entitled to receive notifications of defects or provide warranty declarations outside of Knappe + Lehbrink company facilities.
- After a proper notification in accordance with clause V.6, the customer may assert the legal remedies provided in these General Terms and Conditions. Conditional on other written and confirmed assurances from Knappe + Lehbrink, the customer shall have no further claims due to violations of the obligation to deliver goods free from defects, nor any other non-contractual claims. If notification is not submitted properly, the customer can only assert legal remedies if Knappe + Lehbrink intentionally concealed the defect. Statements by Knappe + Lehbrink on the defects serve only as clarification, and do not in particular indicate any waiver of the requirement for a proper notification.
- The customer shall not be entitled to any legal remedies related to the delivery of defective goods if the customer is responsible for the characteristics of the goods or their suitability for use that were not covered in agreements concluded with Knappe + Lehbrink, or if the customer modifies the applicability of statutory regulations in its business relationships with its own customers, to the detriment of Knappe + Lehbrink.
- If the customer is entitled to legal remedies under the provisions of these General Terms and Conditions due to a delivery of defective goods, then the customer shall be entitled to request supplementary fulfilment from Knappe + Lehbrink within a reasonable time period after submitting notification of the defect and in accordance with the law. Knappe + Lehbrink shall bear any expenses incurred for the supplementary fulfilment insofar as these increase due to a change of location or change in other avoidable circumstances after the customer becomes aware, or should have become aware, of the defect and if Knappe + Lehbrink is responsible for the damages under the regulations of clause VII. If supplementary fulfilment is ultimately unsuccessful, impossible or not carried out within a reasonable time period, then regardless of other legal remedies provided in these General Terms and Conditions, the customer shall be entitled by law to reduce the price or to withdraw from the contract after setting a notice period and threatening to reject performance, within a limitation period of four weeks after the end of the notice period. Regardless of the customer's legal remedies, Knappe + Lehbrink shall always be entitled to improve defective goods in accordance with the regulations of clause III.6 or deliver new goods.
- Any claims by the customer due to the delivery of defective goods shall expire one year after the start of the statutory limitation period. Claims due to intentional and malicious contractual violations shall remain unaffected. Replacement deliveries or improvements shall not restart limitation periods.
- In accordance with the regulations of clause V.9, the customer is entitled to withdraw from the agreement pursuant to applicable law if it is impossible for Knappe + Lehbrink and perform the services it owes, if Knappe + Lehbrink falls into default with fulfilling its primary contractual duties, or if it has otherwise significantly violated its obligations under this contract, and if Knappe + Lehbrink is responsible for the default or breach of duty in accordance with clause VII.1-c). For the company to be in default, there must always be a separate written request directed specifically to Knappe + Lehbrink after the due date to complete the service within an appropriate time period, regardless of further statutory requirements, even if there is a specific stipulated performance period. The customer must declare its withdrawal from the contract directly to Knappe + Lehbrink in writing within a reasonable period after the facts which entitle it to withdraw have occurred.
- Without waiving any further statutory rights, Knappe + Lehbrink is entitled to withdraw from the agreement without compensation insofar as the services cannot be completed for production technology reasons, if the customer objects to the applicability of these General Terms and Conditions, if the special provisions of consumer goods purchases apply (Sections 474 et seqq. BGB), if the written order confirmation from Knappe + Lehbrink is received by the customer more than fourteen (14) calendar days after the date it was sent for reasons for which Knappe + Lehbrink is not responsible, if there is a motion to open insolvency proceedings against the customer's assets, if the customer does not fulfil significant obligations it has towards Knappe + Lehbrink or towards third parties without presenting legitimate grounds for doing so, if the customer provides incorrect information on its credit-worthiness, if the coverage obtained from a credit insurer is reduced for reasons for which Knappe + Lehbrink is not responsible, if Knappe + Lehbrink does not receive a correct or prompt delivery from its own preliminary suppliers for reasons for which it is not culpable, or if Knappe + Lehbrink cannot fulfil its performance obligations for other reasons in consideration of its own requirements and the legitimate requirements of the customer that were known at the time the contract was concluded, and in particular in consideration of the agreed payment, with reasonable means.
VII. Compensation for damages
- Apart from liability under the Product Liability Act, liability due to intentionally concealed defects, due to providing a guarantee for a certain characteristic, or for damages resulting from culpable injury to life, body or health, Knappe + Lehbrink shall only be liable to pay compensation for damages only in accordance with the following provisions in relation to breaches of duty resulting from the contract concluded with the customer and/or contractual negotiations carried out with the customer, without waiving statutory requirements. The following provisions also apply to breaches of warranty obligations and to default:
a) Compensation for damages due to a delivery of defective goods is excluded if the defect is insignificant.
b) The customer is primarily obligated in accordance with the regulations of clause III.6 to accept offered supplementary performance and in accordance with the regulations of clause V. and VI. to accept the legal remedies regulated there, and may only request compensation for damages related to remaining disadvantages, never in place of other legal remedies.
c) Without waiving statutory exclusions or restrictions of responsibility, Knappe + Lehbrink shall only be liable for culpable breaches of significant contractual obligations, and for intentional or grossly negligent breaches of other contractual obligations it has towards the customer.
d) If it is liable, Knappe + Lehbrink shall reimburse the verified damages suffered by the customer in consideration of the limits in letter e), to the extent that these were foreseeable in terms of when they occurred and their amount for Knappe + Lehbrink when the contract was concluded as a consequence of the breach of duty, and insofar as they were unavoidable for the customer.
e) Knappe + Lehbrink shall not be liable for lost profits and impacts on intellectual property. Furthermore, the amount of compensation for damages due to default shall be limited to 0.5% for each full week of default, and a maximum of 5%, and limited due to other breaches of duty to 200% of the value of the non-contractual service. This paragraph shall not apply to gross culpability by Knappe + Lehbrink or its agents.
f) Regardless of compliance with the provisions of the law and these General Terms and Conditions, the customer can only request compensation for damages in place of the services after it has notified Knappe + Lehbrink that it will reject services within a reasonable period after the due date, and has issued a final rejection to Knappe + Lehbrink within a reasonable period after the threat to reject, if the services are still not performed.
g) Knappe + Lehbrink shall be obligated to pay compensation for damages due to breaches of its contractual and/or pre-contractual obligations towards the customer only in accordance with the provisions of these General Terms and Conditions. Any reference to competing bases for the claim, in particular non-contractual bases, shall be excluded. Likewise, claims may not be made personally against the bodies, executives, employees, representatives and/or agents of Knappe + Lehbrink due to breaches of Knappe + Lehbrink's contractual duties.
h) Unless Knappe + Lehbrink is liable due to intentional action, or the customer's claim does not expire first, a limitation period of 6 months applies to claims for damages, starting from the time Knappe + Lehbrink rejects compensation for damages.
i) The above provisions on Knappe + Lehbrink's liability also apply to the customer's claims for reimbursed expenses.
- Regardless of further statutory or contractual claims by Knappe + Lehbrink, the customer is obligated to provide the following compensation for damages to Knappe + Lehbrink:
a) If payment is not received promptly, the customer shall reimburse reasonable costs of prosecution either in or out of court, as well as interest of 8 a.p.r. set by the German Bundesbank.
b) Unless the customer proves that no damages were incurred, or that damages were significantly lower, in cases of default of acceptance or if the customer agrees to place an order for goods but does not do so, then Knappe + Lehbrink shall be entitled to demand a flat rate of 15% of the value of the respective delivery in damages, after providing an appropriate notice period, without the need to provide verification.
- Without waiving any further claims of Knappe + Lehbrink, the customer shall indemnify Knappe + Lehbrink against all third party claims asserted against it without restriction, although these claims are based on manufacturing conforming to the order and the customer's instructions. The above indemnification shall in particular include cases when third party rights are violated due to the use of samples, print templates, etc. provided by the customer or manufactured according to the customer's specifications.
- The customer is obligated to restrict it liability for damages - both amount of and reasons for liability - to the extent that it can do so by law and in consideration of customary restrictions within the industry, in its business relationships with its purchasers. 5. Sec. 348 HGB (German Commercial Code) (contractual penalty) shall not apply.
VIII. Retention of ownership
- Delivered goods shall remain the property of Knappe + Lehbrink until full payment is received for all primary and ancillary claims of Knappe + Lehbrink against the customer which come about for any legal reason, including those due in the future. The retention of ownership shall apply to the balance of open invoices.
- While the retention of ownership still applies, the customer shall provide access to the retained goods to Knappe + Lehbrink's employees at any time during normal business hours. The customer is obligated to insure the goods subject to retention of ownership against theft, damage and destruction, and to store the goods separately at its own cost, or rope them off separately upon request by Knappe + Lehbrink, adding a clearly visible label indicating that they are the property of Knappe + Lehbrink, and obligated to take all measures necessary to fully ensure the retention of ownership is respected. The customer hereby assigns any claims it may have against insurers to Knappe + Lehbrink as a precaution, in full and irrevocably. Knappe + Lehbrink accepts the assignment.
- During the retention of ownership, the customer shall inform Knappe + Lehbrink immediately and in writing if a third party asserts claims or rights to the goods subject to said retention of ownership, or against claims assigned to Knappe + Lehbrink in accordance with the regulations on the retention of ownership, and to support Knappe + Lehbrink in pursuing its interests without charge. If a third party obtains rights to goods subject to the retention of ownership while it still exists, then the customer’s claims against the third party and all associated rights shall hereby be irrevocably assigned to Knappe + Lehbrink as a precaution. Knappe + Lehbrink accepts this assignment.
- The customer may only sell goods subject to the retention of ownership as part of its normal business activities, and only if the customer is not in default of payment and the purchaser's payments to the customer are not due before the deadline when the customer must pay the price to Knappe + Lehbrink. The customer is not entitled to otherwise dispose over the products (such as transferring them as a security, mortgaging them, etc.). The customer hereby assigns all claims against its purchasers to which it is entitled from the sale of goods subject to a retention of ownership, with all ancillary rights, in full and irrevocably to Knappe + Lehbrink, as a precaution. If the customer receives the amounts from a sale in a current account relationship with its purchasers, then after settling any current account receivables, the customer hereby assigns any current account claims after the settlement in full and irrevocably to Knappe + Lehbrink, as a precaution. Knappe + Lehbrink accepts the assignments.
- The customer remains entitled to collect claims assigned to Knappe + Lehbrink as a trustee and on Knappe + Lehbrink's behalf, as long as the customer is not in default of payment. The customer is not entitled to assign the claims to third parties. The customer must list incoming payments separately, and regardless of other payment terms granted to Knappe + Lehbrink, the customer must deliver incoming payments promptly to Knappe + Lehbrink until Knappe + Lehbrink's secured claims have been paid in full. If payment is made by transfer to the customer's credit institution, then the customer hereby irrevocably assigns its claims against its credit institution in this respect to Knappe + Lehbrink. If the customer receives bills of exchange to pay claims against third parties, then it hereby irrevocably assigns the receivables to which it would be entitled due to discounting of the bills of exchange against the credit institute to Knappe + Lehbrink. Knappe + Lehbrink accepts the assignments.
- Goods are finished and processed on behalf of Knappe + Lehbrink as a manufacturer in the sense of Sec. 950 BGB, without this resulting in any liabilities for Knappe + Lehbrink. If goods delivered by Knappe + Lehbrink are mixed, combined or compounded with other objects in such a manner that Knappe + Lehbrink's ownership no longer applies by law, then the customer hereby already assigns its ownership or co-ownership rights to the new object to Knappe + Lehbrink, and shall safeguard them free of charge for Knappe + Lehbrink, acting as a trustee.
- If necessary, the customer shall request to what extent the goods are still subject to a retention of ownership. Knappe + Lehbrink is not obligated to quantify the scope of the retention of ownership without a request to do so in terms of payment. If goods that are subject to a retention of ownership and that have not been paid for in full are in the possession of the customer, then upon request by the customer Knappe + Lehbrink shall release the goods if their invoiced value exceeds the total of open claims by more than 20%, and if there are no rights to separate satisfaction in favour of Knappe + Lehbrink. The same applies if claims against third parties are assigned and if Knappe + Lehbrink asserts these in its own name in place of the goods subject to the retention of ownership. Furthermore, upon request by the customer, Knappe + Lehbrink shall release securities insofar as the market price of the securities exceeds the total for the secured claims by more than 50%, plus the VAT for the sale.
- If the customer is in possession of goods that are subject to a retention of ownership and have not been fully paid, and there is a motion to open insolvency proceedings against the assets of the customer, or the customer does not fulfil its obligations towards Knappe + Lehbrink or toward third parties, without presenting legitimate grounds, then Knappe + Lehbrink can withdraw the customer's right to own said goods and can request return of the goods without a formal withdrawal. Knappe + Lehbrink is not entitled to request delivery if the insolvency administrator decides that the contract will be fulfilled and the price paid.
- If the customer withdraws from the contract, in particular due to a default of payment, then Knappe + Lehbrink shall be entitled to sell the goods freely and satisfy its own claims from the proceeds. Regardless of other rights to which Knappe + Lehbrink is entitled, the customer is obligated to reimburse expenses related to concluding the contract, past contract processing and contract dissolution and costs for returning the goods, and shall pay a usage fee of 2% of the value of the goods for each month or partial month since the transfer of risk.
IX. Other regulations
- Neither a personal nor an electronic signature is required to fulfil the written form requirement. Notifications sent via fax or e-mail fulfil the written form requirement, as do other text forms without the concluded declaration having to state this specifically.
- Knappe + Lehbrink shall store and process personal data of the customer received in the course of the business relationship in strict compliance with relevant laws (such as the EU General Data Protection Regulation, the Federal Data Protection Act).
- The customer shall inform Knappe + Lehbrink promptly and in writing if official agencies become involved or if they carry out work associated with the goods in the further process. The customer shall also observe the delivered goods as they remain on the market, and shall inform Knappe + Lehbrink promptly and in writing if it is concerned that the goods could pose a hazard for third parties.
- Without Knappe + Lehbrink waiving further claims, the customer shall indemnify Knappe + Lehbrink against all third party claims that are asserted against Knappe + Lehbrink under product liability law or similar provisions without restriction, insofar as the liability is the result of circumstances such as the customer’s or other third party's offering of the product without the express, written approval of Knappe + Lehbrink. This indemnification shall, in particular, include reimbursing Knappe + Lehbrink for any expenses incurred, and shall be provided by the customer waiving any further requirements or other defences, in particular, waiving the need to comply with monitoring and recall obligations, and waiving the defence of the statute of limitations.
- Knappe + Lehbrink shall retain all ownership, copyright and other intellectual property rights and rights to expertise to images, drawings, calculations and other documents provided by Knappe + Lehbrink in either physical or electronic form, as well as to software. They must be kept confidential from third parties, and may only be used to carry out the contract in question.
- Insofar as they are not provided by the customer to manufacture necessary materials, such as, in particular, punching tools, printing and embossing forms and printing inks, they shall remain the property of Knappe + Lehbrink even if the customer has paid all or part of the costs for them. The customer shall store these materials for a maximum of two years after the last delivery of goods manufactured with them.
- Regardless of further statutory regulations, the limitation of liability shall end even if the limiting negotiations on the issue are not continued over four weeks. Any restarting to limitation of the customer's claims shall require express, written confirmation from Knappe + Lehbrink.
X. General contractual bases
- The place of delivery is stated in the regulations in III.4 of these General Terms and Conditions. The place of payment and place of fulfilment for all other obligations resulting from Knappe + Lehbrink's legal relationship with the customer is Bünde. These regulations apply even if Knappe + Lehbrink performs services for the customer at another location, or if services performed are to be reversed. An agreement to other Incoterms clauses or other delivery clauses shall only result in a deviating regulation on transportation and transportation costs; the above regulations shall apply otherwise.
- Only German law and customs common within Germany shall apply to the contractual and extra-contractual legal relationship with the customer. In case of doubt, Incoterms® 2010 from the International Chamber of Commerce shall apply to commercial clauses, in consideration of the regulations in these General Terms and Conditions. Deviations from these contractual bases shall be based exclusively on individual agreements concluded between Knappe + Lehbrink and the customer and these General Terms and Conditions.
- All contractual and extra-contractual disputes resulting from or in conjunction with contracts to which these General Terms and Conditions should apply, including bankruptcy disputes, shall be decided according to the rules of arbitration of the Deutschen Institution für Schiedsgerichtsbarkeit e.V. (DIS), excluding ordinary legal recourse. The arbitration court consists of three arbitrators or of one arbitrator if the value in dispute is below 50,000 EUR. The arbitration proceedings shall be held in Cologne, in the German language. The arbitration court's responsibilities shall exclude any legal responsibility for personal or material matters. If this arbitration agreement is or becomes invalid, then the local and international courts responsible for Bünde shall instead have exclusive jurisdiction to decide all disputes. Knappe + Lehbrink is entitled, however, to instead file suit before the court responsible for Bünde, before the courts at the customer's company headquarters, or before other responsible state courts instead of filing with the arbitration court.
- If provisions of these General Terms and Conditions are or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The Parties are required to replace the invalid regulation with a regulation coming as close as possible to the economic meaning and purpose of the invalid provision. Knappe General Terms and Conditions
Knappe + Lehbrink Promotion GmbH · www.kl-promotion.de · Last updated: July 2015