General terms and conditions

General

  1. All deliveries, services and offers of KIKO Aufbausysteme – hereinafter referred to as KIKO – are made exclusively on the basis of these conditions. These also apply to all future business relationships, even if they are not expressly agreed again. The conditions are accepted at the latest upon acceptance of the goods or service. Any confirmations from the buyer with reference to his terms and conditions of business or purchase are hereby rejected.
  2. Deviations from these terms and conditions are only effective if they are confirmed in writing

Offer and conclusion of contract

  1. KIKO’s offers are subject to change and non-binding. They are ex works. Declarations of acceptance and orders require written or remote written confirmation to be legally effective. The same applies to additions, amendments or collateral agreements.
  2. Dimensions and weights are subject to standard commercial deviations. The following standards apply to aluminum profiles: a) EN 755-1 -Technical delivery conditions b) EN 755-8 -Tubes extruded with chamber tools, limit dimensions and shape tolerances c) EN 755-9 -Profiles, limit dimensions and shape tolerances.
  3. DIN ISO 2768-1 version c applies to kits manufactured according to customer specifications.

Prices

  1. The agreed price is a net price for the manufacture and transfer of the goods to be delivered. It does not include value added tax at the statutory rate, as well as shipping and packaging costs and other ancillary costs. The prices stated in the order confirmation are decisive.

Delivery and service time

  1. Delivery dates or delivery periods that can be agreed as binding or non-binding must be in writing. Those that are only agreed as approximate or not in writing as fixed or binding are only approximate. Delivery periods begin on the day of final order confirmation, but not before clarification of all details of the execution and receipt of all documents required for the fulfillment of the contract.
  2. The delivery period is deemed to have been met with the notification of readiness for dispatch.
  3. Delivery and service delays due to force majeure and due to events that make delivery significantly more difficult or impossible – these include in particular strike, lockout, official orders, etc. even if they occur at suppliers or their sub-suppliers, are not the responsibility of KIKO even with bindingly agreed deadlines and dates. In addition, they entitle KIKO to postpone the delivery or service by the duration of the hindrance plus a reasonable start-up time. If the hindrance lasts longer than three months, KIKO can withdraw from the contract in whole or in part with regard to the part not yet fulfilled.
  4. 4. If a date for delivery has not been bindingly agreed in writing, a right of withdrawal due to non-performance or non-contractual performance is excluded for a period of 3 months after the non-binding delivery date. Withdrawal is only permitted after setting a reasonable grace period, which must be at least three weeks. If the delivery period is extended or KIKO is released from its obligation, the buyer cannot derive any claims for damages. KIKO shall inform the buyer immediately of any delaying circumstances.

Transfer of risk

  1. The risk passes to the buyer as soon as the shipment has been handed over to the transport company or has left the KIKO factory or subcontractors for the purpose of dispatch. This also applies to any freight-free deliveries. If the dispatch becomes impossible through no fault of KIKO, the risk passes to the buyer as soon as notification of readiness for dispatch is given.
  2. Insurance cover against transport damage and loss is only provided at the express request of the buyer at his expense. Goods reported ready for dispatch on the agreed date must be called off immediately. Otherwise, KIKO is entitled to store them at the expense and risk of the buyer at its own discretion and to charge them as delivered ex works or warehouse. In the event of default of acceptance by the buyer, KIKO can withdraw from the contract after a fruitless grace period or demand damages for non-performance. In the event of express refusal of acceptance, KIKO does not need to set a grace period.

Warranty and liability

  1. Technical data, analysis data, illustrations, drawings, dimensions, weights or other performance data in brochures, advertising material or comparable documents are for general product description purposes only. They are not specifications or guarantees, unless they are expressly designated as such. They are only to be regarded as binding if this is expressly agreed in writing.
  2. Quality characteristics or properties are only agreed if they are expressly designated as agreed quality characteristics on the order form or the order confirmation. The sales staff are not authorized to make verbal collateral agreements or give verbal guarantees that go beyond the content of the written contract.
  3. KIKO warrants that the goods to be delivered are free from defects in accordance with the respective state of the art. The warranty period is one year, beginning with the delivery of the item. The regulation of § 479 para. 2 BGB remains unaffected. The shortening of the limitation period does not apply in cases in which KIKO is liable without limitation under these terms and conditions.
  4. If operating or maintenance instructions are not followed by the buyer, changes are made to the products, parts are replaced or consumables are used that do not correspond to the original specifications, any warranty is void if the buyer does not refute a corresponding substantiated assertion that one of these circumstances caused the defect.
  5. The buyer must notify obvious defects in writing within 24 hours, other defects immediately, but no later than one week after receipt of the delivery item. Defects that cannot be discovered even with careful inspection within this period must be reported to KIKO in writing immediately after they become known. If defects only become apparent during processing, complaints can only be considered if the processing of the defective items is stopped immediately and KIKO is given the opportunity to inspect them.
  6. If defective goods are delivered, KIKO is free to fulfill its warranty obligation by means of rectification, exchange of proper goods for defective goods, compensation for the reduction in value or by rescission. The exercise of the warranty obligations at locations other than the contractually specified places of performance entitles KIKO to demand compensation from the buyer for the additional working time spent and for the additional travel costs incurred.
  7. Any warranty claims to which the buyer is entitled are not assignable.
  8. The limitations in accordance with the limitation of liability listed below apply to claims for damages by the buyer due to material defects.

Limitation of liability

  1. Claims for damages by the buyer, regardless of the legal reason, are excluded. This exclusion of liability does not apply if the damage is based on intent or gross negligence on the part of KIKO or its vicarious agents. In the event of negligent breach of essential contractual obligations, KIKO shall only be liable for the typically foreseeable damage. The exclusion of liability and limitation of liability also do not apply to damage resulting from injury to life, body or health that is based on a negligent breach of duty by KIKO or an intentional or negligent breach of duty by a legal representative or vicarious agent of KIKO. Furthermore, the exclusion of liability does not apply if the damage is based on the absence of guaranteed quality characteristics or KIKO has fraudulently concealed the defect. Claims under the Product Liability Act remain unaffected.

Retention of title

  1. 1KIKO retains ownership of the goods until all claims of KIKO against the buyer arising from the business relationship, including future claims, also from contracts concluded at the same time or later, have been settled. This also applies if individual or all claims of KIKO have been included in a current account and the balance has been drawn and acknowledged.
  2. The buyer is only entitled to resell the reserved goods in the ordinary course of business if he hereby assigns to KIKO all claims that accrue to him from the resale against customers or against third parties. If reserved goods are sold unprocessed or after processing or in connection with items that are exclusively the property of the buyer, the buyer hereby assigns to KIKO the claims arising from the resale in full. If reserved goods are sold by the buyer after processing/connection together with goods not belonging to the buyer, the buyer hereby assigns to KIKO the claims arising from the resale in the amount of the value of the reserved goods with all ancillary rights and priority over the rest. KIKO accepts the assignment. The buyer is authorized to collect these claims even after assignment. KIKO’s authority to collect the claims itself remains unaffected; however, KIKO undertakes not to collect the claims as long as the buyer duly fulfills his payment and other obligations. KIKO can demand that the buyer inform him of the assigned claims and their debtors, provide all information required for collection, hand over the associated documents and notify the debtors of the assignment.
  3. If, in connection with the payment of the purchase price by the buyer, a liability of KIKO is established by means of a bill of exchange, the retention of title and the underlying claim from the delivery of goods shall not expire before the bill of exchange has been redeemed by the buyer as the drawee. 2 In the event of access by third parties to the reserved goods, the buyer shall point out KIKO’s ownership and notify the third parties of this immediately. The buyer bears all costs that must be incurred to remove the access and to recover the object of the contract. 5 In the event of breach of contract by the buyer, in particular default in payment, KIKO is entitled to take back the reserved goods or, if applicable, to demand assignment of the buyer’s claims for surrender against third parties. The taking back and the seizure of the reserved goods by KIKO do not constitute a withdrawal from the contract, unless the provisions on financing assistance between an entrepreneur and a consumer (§§ 499 ff. BGB) apply. In the event of repossession, KIKO is entitled, after corresponding threat with a reasonable deadline, to realize the goods in the best possible way by means of a private sale, crediting the proceeds against the purchase price.
  4. 4. If the value of the existing collateral exceeds the claims to be secured by more than 20%, KIKO is obliged to release it to that extent at the request of the buyer.

Payment

  1. Unless otherwise agreed, invoice amounts from KIKO are due and payable without deduction after completion or before collection of the goods. If payment after receipt of invoice has been agreed, default in payment occurs 14 days after receipt of the invoice. A reminder is not required for the occurrence of default. KIKO is entitled, despite conflicting provisions of the buyer, to first credit payments to the buyer’s older debts: She will inform the buyer about the type of settlement made. If costs and interest have already been incurred, KIKO is entitled to first credit the payment to the costs, then to the interest and finally to the main services.
  2. If the buyer is in default, KIKO is entitled to charge interest at the statutory rate or a higher, demonstrable interest rate charged to it from the time of default. 3 If KIKO becomes aware of circumstances that call into question the buyer’s creditworthiness, in particular if the buyer does not redeem a check or suspends his payments or if other circumstances are learned that call into question the buyer’s creditworthiness, KIKO is entitled to make the entire remaining debt due. In this case, advance payments or the provision of a security deposit can also be demanded.
  3. The buyer is only entitled to offset, retain or reduce, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed.

Confidentiality

Unless expressly agreed otherwise in writing, the information submitted to KIKO in connection with orders is not considered confidential.

Final provisions

  1. The law of the Federal Republic of Germany applies. The application of the uniform international law of sale is excluded. 2 If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Baden-Baden is the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, insofar as this can be permissibly agreed.
  2. Should one of the above provisions subsequently prove to be ineffective, this shall not affect the effectiveness of all other regulations or agreements. In this case, the contracting parties will endeavor to replace it with a regulation that comes as close as possible to the purpose of the contract.

Status: August 2010

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