General Terms and Conditions of Sale and Delivery of Kernlochbohrer GmbH
§ 1 General
All deliveries, sales and offers of Kernlochbohrer GmbH (hereinafter: "we, "us" or "Kernlochbohrer ") are made exclusively on the basis of these General Terms and Conditions of Sale and Delivery ("GTC"). Our GTC shall also apply to all future business relations with the customer, even if they are not expressly agreed again.
We hereby reject any general terms and conditions of the customer that contradict or supplement our GTC. Our GTC shall also apply if we carry out the delivery without reservation in the knowledge that the customer's terms and conditions contradict or deviate from our GTC.
The offers and services of Kernlochbohrer are directed exclusively at entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law and special funds under public law, but not at consumers. The GTC apply exclusively to the aforementioned target group. Our goods and products are not intended for direct or indirect resale to a consumer.
Agreements or supplements deviating from these GTC shall only apply in the event of an individual agreement, which must be proven by the contracting party invoking the deviating agreement. Agreements concluded before or at the time of conclusion of the contract must be in writing to be valid.
§ 2 Offer and conclusion of contract, cancellation fees, returns
Our offers are subject to change and non-binding; only the order placed by the customer shall be deemed to be a binding offer of contract, which we may accept within 10 working days. All orders require our written acceptance, which can also be made by fax or e-mail, or implied acceptance by delivery of the goods. If we wish to deviate from this principle of non-bindingness in an offer, we shall expressly designate our offer as binding.
Any information and advice given by telephone by employees of Kernlochbohrer shall only be binding if confirmed in writing or in text form.
In the event that the customer cancels the order or returns the goods after the contract has been concluded without the prerequisites of a statutory or contractually agreed right of withdrawal or other right of resolution being met, we shall be entitled to claim 20% of the total net order value (excluding shipping costs) of the goods concerned as liquidated damages.
The same shall apply if the customer, without the prerequisites of a statutory or contractually agreed right of withdrawal or other right of resolution being present, does not pay the advance payment within 14 days of receipt of a request for payment and we thereupon cancel the order.
The customer shall have the right to prove to us that we have not incurred any damage or only a significantly lower damage as a result of the cancellation or return. Any claims for damages on our part for compensation of a higher loss shall remain unaffected. The amount of the lump-sum compensation shall be offset against this.
In the event of a return shipment as a gesture of goodwill, the customer shall be obliged to pack the goods to be sent securely against any transport damage and to document any previous damage. The customer shall be responsible for returning the goods in perfect condition. The transfer of risk from the customer to us takes place upon receipt of the return in our warehouse. The customer shall bear the costs of the return shipment.
§ 3 Prices, payment, offsetting restrictions
All prices are net prices without value added tax, which the buyer must pay in addition at the respective statutory rate. The deduction of a discount requires an express written agreement.
Unless expressly agreed otherwise, our prices shall apply ex works (EXW/ Ex Works according to Incoterms 2020) from our warehouse named in the order confirmation.
If shipment of the goods within Germany is agreed, the prices shall apply in deviation from § 3 item 2 "CPT / Carriage Paid" in accordance with Incoterms 2020. Kernlochbohrer shall conclude the transport contract to the kerbside of the destination in Germany named by the customer. The costs associated with unloading at the named place of destination shall be borne by the customer. We charge an island surcharge for shipping to islands (without road access).
Separate flat-rate shipping charges apply for shipping outside Germany.
The purchase price and the charges for ancillary services are due for payment immediately upon conclusion of the contract, unless otherwise agreed.
Offsetting against claims of Kernlochbohrer is only permissible with active claims that are undisputed or have been legally established. The exercise of a right of retention by the customer is only permissible because of claims which are based on the same contractual relationship.
§ 4 Reservation of self-delivery
Our delivery and service obligation is subject to correct and timely self-delivery, unless the incorrect or delayed self-delivery is our fault. We must prove the lack of fault.
§ 5 Delivery time
In the case of deliveries at a fixed time, we only guarantee that the goods will leave our works (or be ready for collection) at the latest at the agreed time and that the carrier will be instructed to observe the delivery date requested by the buyer. The carrier commissioned by us usually delivers the goods to the customer within 72 hours within Germany.
A delivery date fixed in terms of day and time ("fixed date") requires a separate agreement for an additional charge.
Deadlines and dates shall be extended by the period in which the customer does not fulfil his obligations to Kernlochbohrer , without prejudice to further statutory rights of Kernlochbohrer . The defence of non-performance of the contract remains reserved.
If the customer is in default of acceptance or culpably violates other duties to cooperate, such as providing a complete and correct delivery address, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims or rights remain reserved.
§ 6 Delivery, transfer of risk, unloading
In case of delivery condition EXW/ ex works according to Incoterms 2020:
Delivery and transfer of risk to the customer shall take place when the goods are made available at the relevant distribution warehouse of Kernlochbohrer . The customer shall bear all risks of loss of or damage to the goods from the agreed delivery date.
In case of delivery condition "CPT / carriage paid" according to Incoterms 2020:
The delivery of the goods and the transfer of risk to the customer shall take place by handing over the goods to the carrier at the relevant distribution warehouse of Kernlochbohrer . The customer shall bear all risks of loss of or damage to the goods from this point onwards.
The customer must accept the delivered goods from the carrier at the named place of destination. Unless a separately remunerated agreement on a fixed date is made with the customer, delivery shall be made during normal business hours and usually by freight forwarder. Smaller items will be sent by parcel service. Notification by telephone will only be given if the customer indicates this during the ordering process and then usually at the latest on the day before delivery by the freight forwarder. The customer is obliged to have the appropriate unloading equipment and personnel ready. In case of doubt, the information required for this must be requested from us by the customer when executing the order.
If delays occur in the unloading of the means of transport and additional costs are charged to us by the carrier as a result, these additional costs shall be reimbursed by the customer.
If the customer is in default of acceptance or debtor's delay, the risk of loss of or damage to the goods shall pass to the customer at that time, irrespective of whether a transfer of risk has already occurred for other reasons.
§ 7 Claims for defects, transport damage
Claims for defects by the customer or other claims by the customer based on a material defect or defect of title require that the customer has complied with his obligations to examine the goods and to give notice of defects under § 377 of the German Commercial Code (HGB). Otherwise, the goods shall be deemed to have been approved. The following applies to the concretisation of § 377 of the German Commercial Code (HGB):
Visible transport damage -including damage to the packaging- must be reported to the transport person upon receipt of the goods; the shipping documents must not be acknowledged without reference to the existence of transport damage; Kernlochbohrer must be informed immediately, at the latest on the next working day;
Visible defects, i.e. those defects which (would) become apparent in the ordinary course of business, must be notified by the customer within 7 days of delivery.
Concealed defects, i.e. defects which are not (or cannot be) detected in the ordinary course of business, must be reported within 7 days of discovery, at the latest within the warranty period.
After assembly/commissioning of the goods by the customer, the customer shall only be entitled to assert claims which can only be discovered after assembly/commissioning. The complaint must be made at least in text form and must contain the product designation, the order number, the serial number, the date of purchase and an exact description and photos of the defect. Timely dispatch of the notice of defect shall be sufficient to meet the deadline. In the event of disputes, the customer must prove receipt of the notice of defect.
§ 8 Warranty
If the customer has duly complied with his obligations to give notice of defects in accordance with § 7 and if there is a material defect or defect in title ("defect") in the goods delivered, the statutory provisions of the German Civil Code ("BGB") shall apply, unless otherwise stipulated below.
The decisive point in time for the existence of a material defect is the time of the transfer of risk to the customer. Defects that only become apparent after the transfer of risk shall only justify warranty claims if the buyer can prove that the cause was already present at the time of the transfer of risk.
Usual wear and tear as well as improper use of the goods do not constitute a material defect.
All information about the goods delivered by Kernlochbohrer , in particular the illustrations, drawings, weight, dimension and performance data contained in offers, assembly instructions etc. are approximate average values based on our experience and the state of the art. They represent neither guarantees of quality nor assurances of specific properties or assurances of suitability for a specific purpose. Unless limits for deviations have been expressly agreed in writing or in text form prior to or upon conclusion of the contract, deviations customary in the industry are permissible in any case. This also applies to special dimensions and custom-made products.
The description of goods as B-goods is a quality agreement. Defects or limitations that are mentioned in the item description or are recognisable in the illustrations or typically result from the characteristic as B-goods do not constitute a material defect.
If the assembly, operating and maintenance instructions of Kernlochbohrer are not followed, changes are made to the goods, parts are replaced that do not correspond to the original specifications, there is no warranty unless the customer proves that the defect is not based on this.
Subsequent performance shall be effected, at the discretion of Kernlochbohrer , by remedying the defect or by delivery of goods free of defects. The customer must grant us the possibility of at least two attempts at subsequent fulfilment.
The goods complained about shall be returned to Kernlochbohrer on request in the original or equivalent packaging for inspection. The customer is obliged to pack the goods to be sent securely against any transport damage and to document any previous damage. The customer shall be responsible for the proper return of the goods. The transfer of risk from the customer to us takes place upon receipt of the goods in our warehouse.
Kernlochbohrer shall be entitled to refuse subsequent performance in accordance with the statutory provisions. Subsequent performance may also be refused as long as the customer has not sent the rejected goods to Kernlochbohrer for inspection in accordance with § 9 No. 8 at the latter's request.
The customer may demand withdrawal from the contract or reduction of the remuneration in accordance with the statutory provisions, but at the earliest after the unsuccessful expiry of a reasonable deadline set by the customer for subsequent performance, unless the setting of a deadline for subsequent performance is dispensable in accordance with the statutory provisions. In the event of withdrawal, the customer shall be liable in the case of intent and any negligence for any deterioration of the goods beyond normal use or for their destruction as well as for benefits derived and not derived.
Repairs and replacement deliveries by Kernlochbohrer on the basis of a notice of defect by the customer shall only lead to a new start of the limitation period if an acknowledgement is expressly declared.
The provisions of § 10 apply to any claims for damages and reimbursement of expenses by the customer.
The limitation period for claims for defects is 1 year from delivery. This does not apply in the case of intent and in the cases of § 438 para. 1 no. 2 BGB (German Civil Code), in which the statutory period remains in force.
The restrictions of the warranty rights from § 9 item 9 (with the exception of the restriction from § 9 item 6) do not apply in cases in which Kernlochbohrer has fraudulently concealed a defect or has assumed a guarantee for the quality of the item. A guarantee requires an express written or textual declaration by Kernlochbohrer .
§ 9 Liability
We are not liable in the cases of § 8 No. 5.
In all other respects, our liability for damages, irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract and tort, insofar as fault is involved in each case, is limited in accordance with this section:
Kernlochbohrer shall be liable for damages in accordance with the statutory provisions in the event of intent and gross negligence, the absence of warranted characteristics, the assumption of guarantees and fraudulent intent.
In cases of gross negligence by simple vicarious agents and non-managerial employees without breach of an essential contractual obligation (= obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer regularly relies and may rely) Kernlochbohrer is liable, in deviation from a), limited to the compensation of the foreseeable damage typical for the contract.
In the event of simple negligence, Kernlochbohrer shall only be liable for damages arising from the breach of a material contractual obligation; in this case, liability shall be limited to compensation for the foreseeable damage typical of the contract;
For the rest, any liability of Kernlochbohrer is excluded.
Insofar as the liability of Kernlochbohrer is excluded or limited in terms of reason or amount, this also applies to any personal liability of employees, legal representatives and vicarious agents.
The legal regulations on the burden of proof remain unaffected.
The above provisions or limitations of liability in this section do not apply to liability under the Product Liability Act and any applicable non-mandatory foreign product liability provisions, as well as for injury to life, limb or health.
The customer is obliged to immediately notify Kernlochbohrer in writing or in text form of any damage within the meaning of the above liability provisions or to have it recorded by Kernlochbohrer so that Kernlochbohrer is informed as early as possible and can possibly still mitigate the damage together with the customer.
§ 10 Force majeure
Even binding delivery periods shall be extended appropriately in cases of force majeure, in particular in the event of shortages of materials or transport facilities, industrial disputes, war, riots, epidemics or pandemics, official or legal measures (e.g. export restrictions) and other unforeseeable and serious events (irrespective of whether these events of force majeure affect us or our suppliers or subcontractors) for the duration and to the extent of the disruption plus a reasonable lead time. We are obliged to inform the customer of the event without delay within the bounds of what is reasonable.
If the hindrance lasts longer than 2 months, both contracting parties are entitled to withdraw from the contract with regard to the part not yet fulfilled. If the suspension of the delivery obligation is not reasonable for the customer, the customer shall also be entitled to withdraw from the affected contract beforehand after the expiry of a reasonable deadline to be set by the customer. Setting a deadline is not necessary in the cases provided for by law (in particular §§ 323 para. 2, para. 4 BGB, 326 para. 5 BGB, § 376 HGB). If partial performance has been effected, the customer may only withdraw from the entire contract if he has no interest in the partial performance.
§ 11 Retention of title
We reserve title to the object of sale until receipt of all payments arising from the business relationship with the customer. In the event that the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. Our taking back of the object of sale shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realise it; the proceeds of realisation shall be set off against the customer's liabilities - less reasonable realisation costs.
In the event of seizures or other interventions by third parties, the customer must inform us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
The customer is entitled to resell the object of sale in the ordinary course of business; however, he already now assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim, which accrue to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
The processing or transformation of the object of sale by the customer shall always be carried out for us. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered under reservation of title.
If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount including VAT) to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it shall be deemed to be agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
We undertake to release the securities to which we are entitled at the customer's request insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released shall be ours.
§ 12 Supplementary Special Provisions for Concluding Contracts via the Online Shop
Our offers in the online shop represent a non-binding invitation to the customer to place an order with us.
The ordering process consists of three input steps. In the third and last step, the customer has the opportunity to check and, if necessary, correct his details. By clicking the "Buy" button, the customer submits a binding purchase offer to us. We reserve the right to accept it.
After the order has been placed, the customer will receive an automatically generated e-mail from us confirming receipt of the order. This confirmation of receipt does not constitute the conclusion of a contract and therefore does not contain a request for payment.
A contract shall only be concluded by acceptance of the offer on our part, which may take the form of sending a pro forma invoice (advance payment), handing over the goods to the dispatch department together with information by e-mail to the customer or other contact by letter, fax or e-mail. We will only send a written order confirmation upon express request.
Unless otherwise agreed, we accept prepayment, PayPal, EC and credit card payment, payment on collection, iDeal, Klarna and Sofortüberweisung for orders in the online shop. We accept delivery on account after a successful check in individual cases with a payment term of maximum 10 days after receipt of goods.
In the case of a bank transfer, the goods will only be delivered to the customer after they have been credited to our account.
§ 13 Severability clause, place of jurisdiction, applicable law
The invalidity of individual provisions of the contract (including these GTC) shall not affect the validity of the remainder of the contract.
The customer may only assign claims against us to third parties with our prior consent.
The place of jurisdiction - also internationally - for all disputes arising from the contractual relationship is Stuttgart (Germany).
German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Status: January 2023