Terms of Service Company Herbert Kaut GmbH & Co KG

1. Preamble

In the following Terms of Service the company Herbert Kaut GmbH & Co KG will be referred to as “entrepreneur”, the customer of the Herbert Kaut GmbH & Co KG as “orderer”. 

2. Scope

The deliveries, services and offers take place exclusively according to these terms. Contrary acknowledgements of the orderer with respect to his/her own Terms of Service are hereby rejected.

3. Offers and contract conclusion

3.1. Offers displayed in brochures, advertisements etc. - including price specifications - are non-binding and subject to change. Individually agreed-upon offers are binding for the entrepreneur for 30 days beginning with the date of issuance of the offer.

3.2. Additional agreements, supplementations and/or other terms differing from the present terms are only valid if agreed to by the entrepreneur. Such agreements are to take place in writing.

3.3. Specifications in offers and/or order confirmations of the entrepreneur containing obvious errors, such as writing or calculation errors, are no longer binding for the entrepreneur. The obviously intended offer is to be considered as binding.

3.4. Offer documentations, drawings, descriptions, samples and cost estimates of the entrepreneur must not be published, copied, passed on or in any way be made accessible to third parties without prior permission of the entrepreneur. On demand, the documentations are to be returned without keeping copies. 

4. Prices, price changes 

4.1. All prices are in EUR including separately stated statutory VAT.

4.2. Prices are excluding packaging, insurance and shipping costs. In case of export deliveries, customs and public charges will be invoiced separately.

4.3. In cases of agreed and/or actual delivery dates more than six month after the conclusion of the contract, prices of the entrepreneur are as displayed at the time of delivery/provision. In the event of price increase of the entrepreneur’s suppliers, increase of wages and shipping costs or other unexpected price increases, the entrepreneur is entitled to demand a re-calculation of the price.

5. Delivery terms

5.1. Delivery terms are subject to correct and punctual self-supply, unless a binding delivery term has been granted in writing.

5.2. If the delivery or service is delayed due to circumstances caused by the entrepreneur, his/her legal representatives or vicarious agents, the entrepreneur is liable according to legal regulations. In cases of slight negligence the liability is limited to the typical, foreseeable, contractual damage. This regulation especially applies to cases of force majeure, industrial action, lock-out, official decree etc. even if those obstacles occur at the entrepreneur's suppliers or sub-suppliers of such. In case of delays, the orderer is to grant a grace period of 2 weeks for supplementary performance according to legal regulations, beginning with the receipt of notification about the grace period.

6. Dispatch, transfer of risk, small deliveries

6.1. The risk latest transfers at the moment of handing over the delivery item to the forwarding agent or other parties commissioned with the delivery beginning at the moment of loading. If the handing over or the dispatch is delayed due to circumstances caused by the orderer, the risk transfers in the moment the readiness for dispatch was announced.

6.2. On request of the orderer, the delivery items will be insured on behalf and at the expense of the orderer.

6.3. Deliveries with a total value lower than 500,00 € take place by cash on delivery plus shipping and packaging costs. 

7. Defect claims

7.1. If the performed service or the delivery item is defective, the entrepreneur is entitled to re-perform either by replacement delivery or defect rectification. Multiple rectifications – usually 2 – are admissible within a reasonable period.

7.2. The right of the orderer to claims resulting from defects expire in all cases after 12 month beginning with the moment of transfer of risk, unless a longer period is statutory according to legal regulations. If the orderer is entrepreneur according to Sec. 14 German Civil Code(BGB), paragraphs 7.3. and 7.4. of this section apply.

7.3. Claims due to obvious defects in work performance may not be asserted after acceptance of the delivery. To keep the entitlement to assert defect claims, the orderer is to report obvious defects in writing immediately, latest within 2 weeks after delivery. Defective items are to be kept in the condition in which the defect was detected for the purpose of inspection by the entrepreneur.

7.4. Insignificant, reasonable differences in physical dimension – especially in case of re-orders – do not entitle to objections, unless the absolute adherence to physical dimensions has been explicitly agreed upon. Technical improvements as well as necessary technical adjustments are also to be considered as contractually agreed upon as far as such do not represent an impairment of usability.

7.5. If operation and maintenance instructions of the entrepreneur are not complied with, alterations of the product are carried out, components are replaced or consumption materials are used contrary to the original product specification, warranty is excluded if the orderer does not disprove a respective, substantial claim that the above mentioned circumstances have caused the defect in the first place.

7.6. Liability due to ordinary wear and tear is excluded.

7.7. If the supplementary performance fails to take place within a reasonable period, the orderer is entitled to chose between the reduction of the price or the withdrawal from the contract.

7.8. The above mentioned regulations do not apply in case of sales of second-hand products. For consumers the expiry period for the assertion of defect claims is one year. Entrepreneurs according to Sec. 14 German Civil Code will be supplied with second-hand products under exclusion of any defect claims.

 

7.9. If the entrepreneur is available for enquiries concerning the use of the his/her product beyond his/her legal obligation, he/she is only liable according to Sec. 7 of this agreement if a special remuneration has been agreed upon for this purpose.

8. Limitation of liability

8.1. The liability of the entrepreneur, regardless of legal ground and especially due to impracticability, delay, defective or incorrect delivery, violation of contractual agreements and duties during contractual negotiations or tortious act, is limited according to Sec. 8 of this agreement with respect to actual fault.

8.2. The entrepreneur is not liable for slight negligence of his/her institutions, legal representatives, employees or vicarious agents.

8.3. As far as the entrepreneur is liable according to Sec. 8.2., the liability is limited to damages foreseeable as a possible result of a violation of contract at the time of concluding the contract or which he/she could have foreseen with due diligence. Indirect or subsequent damages resulting from defective delivery items are only eligible for replacement if such damages can be typically foreseen using the delivery item according to its specifications.

8.4. In case of liability due to ordinary negligence, the obligation to replacement of the entrepreneur for material damages and financial damages resulting from that is limited to maximum 3,0 million EUR, even if caused by violation of essential contractual duties.

8.5. The above mentioned limitations and exclusions of liability also apply to the same extend to institutions, legal representatives, employees and other vicarious agents of the entrepreneur.

8.6. The limitations of section 8 do not apply to the liability of the entrepreneur in cases of wilful act, guaranteed product characteristics, harm to life, body and health or according to the German Product Liability Act.

9. Reservation of title

9.1. Until complete settlement of all accounts to which the entrepreneur is entitled towards the orderer, regardless of legal ground, the delivered items(reserved items) remain property of the entrepreneur.

9.2. The orderer is obligated to inform the entrepreneur in writing about the seizure of reserved items. The orderer is to inform the bailees about the reservation of title. The orderer is not entitled to resell, to give away, to pawn or to assign reserved items for security purposes, except according to the following paragraphs.

9.3. If the delivery takes place to a company operated by the orderer, the items may be resold in the ordinary course of business. In this case claims of the orderer towards his/her customers resulting from resale are already by now transferred to the entrepreneur. In case of resale of the items on credit, the orderer is to reserve the title towards his/her customers. Rights and claims resulting from the reservation of title towards his/her customer the orderer hereby transfer to the entrepreneur.

9.4. Possible processing and modification works of reserved items by the orderer are carried for the entrepreneur free of charge. In case of modification, jointing, mixing or blending of reserved items with products not owned by the entrepreneur, the entrepreneur is gains co-ownership of the new item in proportion of the value of the reserved item to the remaining processed products at the moment of modification, jointing, mixing or blending. If the orderer gains sole ownership of the new product, the contractual partners agree that the orderer gratuitously grants and keeps co-ownership of the entrepreneur towards the new product proportionally to the value of the processed, joint, mixed or blended reserved items. If the reserved items are sold together with other items, regardless of modification, jointing, mixing or blending, the advanced assignment of ownership agreed upon above in paragraph 3 applies only to the value of the reserved items which are sold together with other items.

9.5. If reserved items are embedded into the real estate of third parties as essential components by the orderer or commissioned by the orderer, the orderer already now assigns possible financial claims of third parties or claims of those it may concern, including all ancillary rights and an equitable mortgage, to the entrepreneur.

9.6.  If reserved items are embedded into the real estate of the orderer as essential components, the orderer already now assigns all claims resulting from sale of the real estate or the respective real estate property rights, including all ancillary rights, to the entrepreneur.

9.7. On demand of the orderer the entrepreneur is to release securities of his/her choice if the value of the securities to which the entrepreneur is entitled according to the above mentioned regulations not only temporarily exceeds the value of claims of the entrepreneur by more than 20 %.

9.8. On violation of contractual duties by the orderer, especially on default of payment, the seller is entitled to reclaim the delivered items after issuing a reminder and a withdrawal declaration; the orderer is obligated to hand over the items, respectively. If the orderer has fulfilled his/her contractual duties, the entrepreneur is to re-deliver the items.

10. Terms of payment 

10.1. If not otherwise agreed upon, payment is due immediately after issuance of the invoice without deductions.

10.2. The entrepreneur explicitly reserves the right to reject cheques and exchange bills. The acceptance always takes place on account of performance only. The orderer bears discount and exchange bill charges, which are due immediately.

10.3. If the entrepreneur obtains knowledge that question the credit rating of the orderer, in particular if the orderer does not encash cheques or ceases payment, the entrepreneur is entitled to immediately claim the remaining debt, even if he/she accepted cheques. In addition, the entrepreneur is entitled to claim advanced or security payments in such cases.

10.4. If the orderer finally ceases payment and/or if his/her assets are subject to insolvency proceedings, the entrepreneur is entitled to withdraw from the part of the contract not yet fulfilled.

10.5. Despite differing payment terms of the orderer, the entrepreneur is entitled to settle oldest open accounts with the payment first. The entrepreneur is to inform the orderer about this settlement procedure. If costs or interests have already occurred, the entrepreneur is entitled to firstly settle costs, then interest and lastly the main claim with the payment.

10.6. If the orderer defaults in payment, the entrepreneur is entitled to claim statutory default interests. The entrepreneur reserves the right to claim further default damages. In such cases orderer is entitled to prove that lower default damages have occurred.

10.7. The orderer is not entitled to off-set, unless in cases of counter claims established as final, absolute and undisputed by the entrepreneur.

11. Applicable law, jurisdiction, severability clause

11.1. The law of the Federal Republic of Germany is applied to these Terms of Service as well as to all legal relationships between the entrepreneur and the orderer under exclusion of CISG law.

10.2. If the orderer is a salesperson according to the German Commercial Code, a legal person or legal asset under public law, the exclusive place of jurisdiction for all legal disputes directly or indirectly resulting from this contractual relation is the company residence of the entrepreneur.

10.3. If a single regulation of these Terms of Service is or becomes invalid, the validity of all other regulations and agreements between the entrepreneur and the orderer remains unchallenged. 

Note according to Sec. 28 German Data Protection Act:

The orderer is aware that the entrepreneur stores the data emerging from the contractual relation according to Sec. 28 German Data Protection Act and reserves the right to pass them on to third parties, e.g. insurance companies, if necessary for the fulfilment of the contract.

Last updated: 12/2014