General Terms and Conditionsof Knipp GmbH
valid from 01.02.2023
§ 1 Scope of Application, Form
- The following General Terms and Conditions (hereinafter “GTC”) apply to all legal transactions entered into by and with Knipp GmbH, Paul-Ehrlich-Str. 10, 63128 Dietzenbach (hereinafter “us” or “we”), with our customers. The GTC shall only apply if the buyer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
- Our General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if the buyer refers to his general terms and conditions in the context of the order and we do not expressly object to them.
The GTC apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, these GTC shall apply in the version valid at the time of the Buyer’s order or in any case in the version last communicated to the Buyer in text form. Individual agreements (e.g. framework supply agreements, quality assurance agreements) and details in our order confirmation shall take precedence over the GTC.
- Legally relevant declarations and notifications by the Buyer in relation to the contract (e.g. setting of deadlines, notification of defects, cancellation or reduction) must be made in writing. Written form within the meaning of these GTC includes written and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimisation of the declaring party, remain unaffected.
- References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
§ 2 Order Confirmation
Our written order confirmation is decisive for the content of the orders. If an order is to be qualified as an offer, we can accept this within two weeks. Subsidiary agreements and amendments require our written confirmation.
§ 3 Delivery / Delivery Period
- The start of the delivery period stated by us presupposes that all technical questions have been clarified. The delivery period shall be agreed individually or specified by us upon acceptance of the order. Compliance with our delivery obligation also presupposes the timely and proper fulfilment of the customer’s obligation. The defence of non-performance of the contract remains reserved. The delivery deadline shall be deemed to have been met if the delivery item has left the factory or readiness for dispatch has been notified by the time it expires.
- We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining necessary official authorisations, pandemics or epidemics, official measures or the non-delivery, incorrect or untimely delivery by suppliers despite a congruent hedging transaction concluded by us) for which we are not responsible. If such events make delivery or performance significantly more difficult or impossible for the Seller and the hindrance is not only of a temporary nature, we shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to us.
- The occurrence of our delay in delivery shall otherwise be determined in accordance with the statutory provisions. In any case, however, a reminder from the customer is required. If we are in default of delivery, the buyer may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but shall not exceed a total of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the buyer has not suffered any damage at all or only a significantly lower damage than the above lump sum. We are entitled to make partial deliveries and render partial services, insofar as this is reasonable. Blanket orders placed for several call-off schedules generally have a maximum term of twelve months, unless otherwise agreed in writing.
§ 4 Obligation to accept / Compensation
If the customer does not accept a firmly ordered quantity or does not accept it in full, if he fails to co-operate or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to claim the damage incurred by us, including additional expenses (e.g. storage costs). The loss of profit shall be calculated at a flat rate of 20% of the sales price or partial sales price as damages. The buyer reserves the right to prove that we have suffered no loss or a significantly lower loss due to loss of profit.
Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, cancellation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims.
§ 5 Terms of Payment
The following conditions apply:
10 days after receipt of invoice 2 % discount.
30 days net after receipt of invoice.
We charge the full amount for tools that are manufactured to fulfil a customer’s orders. The following terms of payment apply to the tools:
50 % when the order is placed,
50 % upon receipt of the initial samples.
Payment shall be made net without deductions.
For each reminder after the occurrence of default, we shall charge a processing fee of €15 in addition to the costs otherwise incurred. If the customer is in arrears with an obligation to us, our delivery obligation shall be suspended. If there are reasonable doubts about the customer’s ability to pay, we shall be entitled to make further fulfilment dependent on securities or advance payments and, after setting a deadline to no avail, to declare our withdrawal from the contract.
§ 6 Prices / Shipping
Prices are ex warehouse, excluding packaging and transport. The statutory value added tax is not included in the prices; it will be shown separately on the invoice at the statutory rate on the date of invoicing. Dispatch is always at the expense and risk of the customer. If a significant increase in the general prices for energy or another significant increase in wages, raw materials or auxiliary materials occurs after conclusion of the contract or dispatch of our order confirmation, a new determination of the agreed sales price shall be made, taking into account the increased production costs and the applicable prices.
§ 7 Tools
We carefully store and maintain the tools for repeat orders. The obligation to store the tools expires if no further order is received from the customer within two years of the last delivery. The customer must then collect the tools at his own expense and risk. We are not liable for damage or destruction during storage. The customer must take out appropriate insurance.
§ 8 Warranty and Liability
1. claims for defects on the part of the purchaser presuppose that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code). Complaints about recognisable defects must be made in text form within eight days of receipt of the goods, otherwise they are excluded. Obvious defects that are not notified in due time or form shall exclude warranty claims.
Deviations in quality, thickness, dimensions and colour as well as excess or short deliveries are customary in the trade;
for plastic parts + / – 10 %.
30 % for cardboard products up to 500 pieces.
up to 3,000 units 20 %.
over 3,000 units 10 %.
They do not entitle the customer to subsequent claims, nor to reductions in the purchase price or other warranty claims.
2. if the purchased item is defective, we shall initially be obliged and entitled to rectify the defect or make a replacement delivery at our discretion within a reasonable period of time. In the event of failure, i.e. the impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the customer may withdraw from the contract or reduce the purchase price appropriately.
In the event of rectification of defects or replacement delivery, we shall not be obliged to bear all expenses necessary for the purpose of subsequent fulfilment if the purchased item has been transported to a location other than the place of fulfilment. If the subsequent fulfilment fails, the customer is entitled, at his discretion, to demand withdrawal or a reduction in price.
3. claims of the buyer for reimbursement of expenses pursuant to § 445a para. 1 BGB are excluded, unless the last contract in the supply chain is a purchase of consumer goods (§§ 478, 474 BGB). Claims of the Buyer for damages or reimbursement of futile expenses (§ 284 BGB) shall only exist in accordance with this § 8, even if the goods are defective.
4. we shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of wilful breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage. We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation. An essential contractual obligation exists if the breach of duty relates to an obligation on the fulfilment of which the customer has relied and was entitled to rely. In this case, liability for damages shall be limited to the foreseeable, typically occurring damage.
5. the rights arising from para. 4 shall also apply to third parties and in the event of breaches of duty by persons (including in their favour) whose fault we are responsible for in accordance with statutory provisions. They do not apply if a defect has been fraudulently concealed or a guarantee has been given for the quality of the goods and for claims of the buyer under the Product Liability Act.
6. the buyer may only withdraw from or cancel the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of cancellation of the buyer (in particular in accordance with §§ Sections 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.
7 Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
Unless otherwise stipulated above, liability is excluded.
8. the limitation period for claims for defects is twelve months, calculated from the transfer of risk. The limitation period in the event of a delivery recourse remains unaffected. Claims for damages of the customer according to para. 4 as well as under the Product Liability Act shall lapse exclusively in accordance with the statutory limitation periods.
9. any further liability for damages than described above is excluded, regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from breaches of duty upon conclusion of the contract, due to other breaches of duty, or due to tortious claims for compensation for property damage in accordance with § 823 BGB. This shall also apply if the customer demands compensation for useless expenses instead of a claim for damages in lieu of performance. If our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
§ 9 Copyrights
If we manufacture items according to drawings, models or samples that we have received from the customer/purchaser, the customer warrants to us that the manufacture and delivery of these items does not infringe the industrial property rights of third parties.
§ 10 Retention of Title
1. we reserve title to the goods sold until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
2. the goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties seize the goods belonging to us (e.g. attachments).
3. in the event of breach of contract by the buyer, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for the return of goods does not at the same time include a declaration of cancellation; rather, we are entitled to merely demand the return of the goods and reserve the right to cancel the contract. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
4. the buyer is until cancellation acc. (c) below shall be authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
5. the retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered subject to retention of title.
6. the purchaser hereby assigns to us the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with § 6. to us as security in accordance with the above paragraph. We accept the assignment. The information in para. 2 shall also apply with regard to the assigned claims.
7 The buyer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the buyer fulfils his payment obligations to us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right in accordance with the provisions of the German Civil Code. Para. 3 can be asserted. If this is the case, however, we can demand that the buyer 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. In this case, we are also entitled to revoke the buyer’s authorisation to resell and process the goods subject to retention of title.
§ 11 Exclusion of Set-off
Offsetting against our payment claims is excluded unless the counterclaims are undisputed, recognised or legally established.
§ 12 Place of Fulfilment, Choice of Law and Place of Jurisdiction
The place of fulfilment for all rights and obligations arising from this contract is Dietzenbach. The exclusive place of jurisdiction for all disputes arising from the contractual relationship is our registered office. However, in all cases we are also entitled to bring an action at the customer’s general place of jurisdiction.
The law of the Federal Republic of Germany shall apply to the entire legal relationship between us and the customer.