General terms and conditions of purchasing

1. Area of appli­cation, general

(1) These purchasing condi­tions apply exclu­sively. If the supplier has condi­tions which deviate or contradict these condi­tions, the former will not be recognized unless their validity has been agreed upon expressly in writing. This also applies even if the supply is accepted unreser­vedly with an awareness of the condi­tions which deviate or contradict the present condi­tions.

(2) The purchasing condi­tions also apply to all future business with the supplier. They are stored on our homepage on the internet. Thus the buyer cannot make objec­tions regarding lack of access or ignorance.

(3) If no special regula­tions are made in the following regula­tions, the inter­pre­tation of the different clauses of contract is deter­mined by the individual INCOTERMS in their most current version.

(4) Devia­tions from the present purchasing condi­tions need to be confirmed expressly by us in order to be effective.

(5) If individual regula­tions or parts of the regula­tions of these purchasing condi­tions should prove to be ineffective, then the effec­tiveness of the remaining regula­tions or partial regula­tions remains unaffected.

(6) These purchasing condi­tions also apply to all future business with the seller. They are located on the KHB homepage on the internet (www​.khboddin​.com), and thus the seller cannot make the objection that these were not acces­sible. With the publi­cation of these purchasing condi­tions, all previous agree­ments are void.

2. Order accep­tance, sample

(1) The contractor must accept the order immediately - no later than the next working day following receipt - with a written confir­mation. After that, we are no longer bound to our order.

(2) Here the supplier must provide explana­tions of kind, quality, and type when the product has a designation which raises questions; otherwise, the supplier bears the risk of false delivery.

(3) If we provide the supplier with samples and the order follows because of this sample, then the charac­te­ristics of the sample are consi­dered as assured charac­te­ristics for the commodity. The sample applies for samples which come from the supplier and which we recognized as deter­mining for the order.

3. Transfer of risk and transport costs

(1) So long as nothing else is agreed upon, the supplier bears the cost of the packing and the transport as well as the risk up until the delivery is trans­ferred at the place of desti­nation.

(2) The supplier is obligated to take the used packing material free of charge at our request.

4. Delivery, delivery time, packing

(1) The supplier is entitled to partial deliveries only with our express agreement.

(2) The supplier has to identify the supply in the shipping papers in accordance with the instruc­tions provided in the order. In addition, our order number is always to be given in the shipping papers.

(3) The supplier is obligated to immediately apprise us in writing if circum­s­tances are detected which could lead to a failure to observe the delivery time.

(4) In the event of a failure to deliver, we are entitled to make legal claims. In parti­cular, we are entitled to set an appro­priate extension period, and after it has expired without result, we are entitled to require compen­sation for non-perfor­mance.

(5) The supplier is to ensure that there is a reference to the manufac­turer and/or supplier and/or its sub-suppliers on or within the goods, though not outside nor inside the packing.

5. Defect inves­ti­gation and guarantee

(1) We are obligated to examine and contest the supply within an appro­priate period for varia­tions in quality to the extent that is possible and standard. Hidden defects are to be contested within an appro­priate period after they are disco­vered.

(2) If the delivered goods do not corre­spond to the agreed-upon speci­fi­ca­tions and/or the quality and packing condi­tions, the purchaser is entitled to make the choice of refusing to accept the commodity and to require or to change the subse­quent delivery of defect-free repla­cement goods or to accept the goods and to require the elimi­nation of defects or to decrease the purchase price. In addition, the purchaser is entitled to have the defect of the delivered goods removed at the cost and risk of the supplier if the supplier does not remove the defect within an appro­priate period despite having been requested to do so. If the goods’ defects cannot be repaired, the purchaser is entitled to have the goods destroyed at the supplier’s expense, whereby the purchaser’s right to subse­quent delivery of a defect-free commodity or to a change remains reserved. Furthermore, the purchaser can require compen­sation for the damages which have developed and which develop.

(3) The supplier’s guarantee period for us is 24 months; it begins at the time of the transfer of risk.

(4) We are entitled to send unsatis­factory goods back from the place of desti­nation, but also from another place where the commodity is located when the defect is disco­vered and this at the supplier’s expense. This does not apply when the commodity is consi­dered as approved.

(5) The failure to file timely complaint leads, in the event of short quantities, only to the loss of our claim to subse­quent delivery or change. We do not ever need to pay for smaller quantities.

6. Product liability

(1) If the supplier is respon­sible for product damage, it must exempt us from any third-party claims.

(2) In this context, the supplier is also obligated to refund expen­ditures as per § 683, 670 BGB [German Civil Code] which result from or whose result is connected to a recall measure which we made. We will inform the supplier as possible of the contents and scope of the recall to be carried out and give it the oppor­tunity to comment.
(3) The supplier commits itself to maintain product liability insurance with a sum insured of € 3 millions per instance of damage. Extensive claims for damages remain unaffected.

7. Protection rights, hazardous goods

(1) The supplier is liable for any infrin­gement its delivery may have on third-party rights.

(2) The supplier is obligated to release us from third-party claims affiliated in this regard and this at our first request. We are not entitled to make agree­ments with third parties about liability without the supplier’s agreement.

(3) Prior to conclusion of the contract, the supplier has to expressly indicate if the offered commodity to be delivered is a hazardous material and must provide the appro­priate code numbers. It must also vouch that all legal regula­tions and ordinances connected with the commodity to be delivered, including packing regula­tions, have been met and that the instruc­tions from the hazardous materials laws and ordinances, especially also the carriers, are observed.

8. Retention of title

(1) If we make materials and preli­minary materials available to the supplier, we retain the title.

(2) The supplier processes or alters these materials and preli­minary materials for us. If such commo­dities are processed with other things which do not belong to us, we acquire co-ownership of the new thing in proportion to the value of our item to the other processed item at the time of processing.

(3) If the materials and preli­minary materials made available to us are connected, mixed, or blended with other things which do not belong to us, then we acquire co-ownership of the new thing in proportion to the value of our item to the other item at the time of the connection, mixing, or blending. If the supplier’s item is to be consi­dered as the main item, it is already hereby agreed upon that the supplier transfers the propor­tionate co-ownership to us. The supplier preserves sole or joint ownership for us.

(4) We retain the title to a commodity that we have paid the supplier for but which was returned because of a breach of contract or a defect up until our pecuniary claims connected with the resto­ration of each party to its pre-sales contract position. The supplier is not entitled to pawn or transfer the title for the purposes of securities.

9. Rendering of invoice, payment, prohi­bition of assignment of claims

(1) The invoice is to be provided at the latest on the fifth working day on the month following that of the delivery. Invoices can only be worked on and paid if the order number is clearly indicated on the invoice. We are not respon­sible for delays which result from disre­garding the afore­men­tioned obliga­tions.

(2) If there are no agree­ments made to the contrary, we pay within 30 days after receipt of invoice with 3% discount payment or within 45 days with 1.5% discount payment or purely net within 60 days.

(3) We have rights of lien and set-off rights as prescribed by law.

(4) Assign­ments in connection with the sales contract are only permitted with our written agreement. Our agreement is consi­dered as given if the assignment is to the supplier’s principal bank.

10. Confi­den­tiality

The supplier is committed to keeping confi­dential all illus­tra­tions, designs, compu­ta­tions, and various documents and infor­mation it receives. They may only be disclosed to third parties with our express agreement. The confi­den­tiality obligation also continues to apply after the end of the contractual relation. It expires when the knowledge contained in the illus­tra­tions, designs, compu­ta­tions, and other documents becomes general knowledge.

11. Area of juris­diction and appli­cable law

(1) If the supplier is a merchant, our regis­tered place of business for the exclusive area of juris­diction for all disputes resulting directly or indirectly from the contractual relation, including check and actions on a bill.

(2) For these purchasing condi­tions and for the legal relations between us and the supplier, the law of the Federal Republic of Germany is appli­cable, under exclusion of the conflict of laws and the UN Convention on Contracts for the Inter­na­tional Sale of Goods or similar inter­na­tional agree­ments.

(3) Should individual condi­tions be legally invalid or be modified, the remaining condi­tions shall continue to be binding. A clause shall be deemed to have been agreed which fulfils the financial purpose of the invalid clause as closely as possible.
Business with entre­pre­neurs is to be treated the same as business with legal entities of the public right and public special estates.
These Purchasing condi­tions shall also apply to all future business with the seller. They are located on the KHB homepage on the internet (www​.khboddin​.com), and thus the seller cannot make the objection that these were not acces­sible. When these Purchasing condi­tions are published, all earlier agree­ments shall become void.

Version: 23. December 2019

General terms and conditions of sales and delivery

Offers, deliveries, and other services including consulting, infor­mation and similar activities rendered by KHBoddin GmbH (hereinafter referred to as KHB or KHB´s) are governed solely exclu­sively by these business terms.

Those of the customer’s condi­tions which deviate from KHB’s and which KHB has not expressly recognized in writing are non-binding for KHB, even when KHB has not expressly objected to them. These trading condi­tions shall also apply to all future business relations, even if KHB does not refer to them expressly in later contracts (this includes telephone orders in parti­cular).

Each accep­tance of merchandise is deemed to constitute acknow­led­gement of these condi­tions. All agree­ments are to be made in writing. This also applies to special agree­ments and warranties as well as to subse­quent changes to the contract. Any change to this clause must likewise be made in writing.

1. Offers, production descrip­tions, and scope of supply

(1) Offers are always non-binding; the conclusion of a contract and other agree­ments only become binding after KHB has confirmed it in writing.

(2) The object of the contract is solely the product with the charac­te­ristics, features, and intended use as per the product description (in addition if appli­cable: attached to the sales contract and/or the order confir­mation). Public state­ments, marketing and adver­ti­se­ments do not constitute contractual statement of the commodity’s properties.

(3) Additional or other charac­te­ristics and/or features or any other intended purpose shall only be deemed to have been agreed when KHB expressly confirms this in writing.

(4) KHB’s written confir­mation of the order shall determine the scope of the goods supplied. In the event of an offer being made by KHB which is valid for a limited period and accepted by the due date, the offer shall apply if the order was not confirmed in a timely fashion. Short shipments or excess deliveries up to plus/minus 10% are permis­sible, as these are customary in this industry.

(5) KHB reserves property rights and copyrights to the cost quota­tions, offers, designs and other documents; they may not be made acces­sible to third parties.

2. Prices

(1) The prices provided apply exclusive of VAT and only for orders which are dispatched as a single delivery. The prices apply per quantity unit in accordance with the written order confir­mation insofar as no special ex-facto­ry/­warehouse agree­ments including loading and packaging exist. The quantity speci­fi­ca­tions do not include packaging.

(2) If a law is passed after the conclusion of the contract which amends the import duties effective for the agreed delivery time or a portion of this time, thereby amending KHB’s verifiable expenses, these prices shall change accord­ingly. KHB shall immediately commu­nicate the new prices to the buyer. Pursuant to this regulation, import duties include import duty, levies and excise tax. If the price, freight remune­ration agree­ments or payment condi­tions as per this contract or the possi­bility of such increases or changes to the freight remune­ration agree­ments or payment condi­tions should change because of a law or official decree or be declared inadmis­sible for the seller, KHB can withdraw from the part of the contract not yet fulfilled without indemnity.

3. Delivery time

(1) The delivery period begins when written confir­mation of the order is sent, though not before the condi­tions for due completion of the contract (documents, permis­sions, as well as an agreed down payment) have been met.

(2) The delivery period is deemed to have been complied with when the consignment leaves the factory/warehouse or readiness for dispatch is commu­ni­cated prior to the expiration of this period. Early delivery (following notifi­cation) prior to the delivery date is permis­sible. Adherence to the delivery period presup­poses that the buyer fulfills his contractual obliga­tions. Delivery is subject to us receiving our supplies punctually and in good order.

(3) The delivery period agreed is binding for the customer. If the customer asks for delivery of the merchandise during a specific, fixed month or week, this delivery period regulation is also binding for the customer.

(4) The delivery period shall be extended corre­spon­dingly in the event of activities in the context of labor disputes, especially activities during legal strikes and lockouts as well as when unexpected obstacles outside KHB’s sphere of influence arise, such as opera­tional disrup­tions, force majeure, war and inter­fe­rences by autho­rities, in so far as it can be proven that such obstacles had a signi­ficant influence on the manufacture or delivery of the goods supplied and that KHB, despite reasonable precau­tions, could not have prevented such obstacles.
KHB shall not accept respon­si­bility for the afore­men­tioned circum­s­tances even if these arise during an existing delay. In signi­ficant cases, KHB will commu­nicate the beginning and end of such obstacles to the customer as soon as possible.

(5) If there is a delay in perfor­mance, the customer is entitled to withdraw from the contract associated with the late single delivery after a reasonable extension period (to be deter­mined by the customer) has expired. KHB is liable for the resulting damages only in so far as the damages were foreseeable by the management. Each compen­sation claim for damages is limited to the sum of the damages, to be documented by the customer, with a maximum liability being up to 500,000.00 EURO.

(6) KHB is entitled to make partial deliveries. For deals with conti­nuous delivery, KHB is to provide the orders and organi­zation for monthly quantities which are appro­xi­mately the same, and at the latest six weeks prior to the beginning of the corre­sponding delivery month. If the release order or allocation is not made on time, then the seller is entitled, after setting a reasonable extension period it has chosen, to divide the goods itself and to deliver them or, after setting a reasonable extension period, to conclu­sively refuse the fulfillment of the residual part of the deal and require compen­sation.
If KHB falls behind with a partial delivery, then the customer can only assert claims that are related to this delivery unless the partial delivery that has taken place is not of interest for the customer.

(7) When there is default of accep­tance, the legal regula­tions apply in other respects.

4. Payment/late payment/offset/withholding/transfer

(1) So long as KHB has not confirmed otherwise in writing, invoices are to be paid in full within 30 days after receipt of invoice. When there are delays in payment, the buyer is to pay interests amount to 8% of the basis interest rate, unless the buyer can prove less damage or KHB can prove higher damage.

(2) The customer is not entitled to offset KHB payment claims with contested or legally ineffective counter­c­laims or claim rights of lien. Discount payments and other deduc­tions are not permitted, unless otherwise agreed upon in writing.

(3) If KHB becomes aware that the customer is in an unfavorable financial position after the contract has been concluded, then KHB can require a quid pro quo security. An unfavorable financial position in parti­cular includes out-of-court offers of compromise, requests to open legal settlement or insol­vency procee­dings, or entering into a debtor listing or a “blacklist.”

(4) The client is aware that KHB is endea­vouring to obtain credit insurance from a credit insurance company for the deliveries. Should the credit volume exceed the amount covered by the insurance, KHB shall be entitled to withhold part of the consignment equivalent to the amount not covered by insurance until the corre­sponding invoice has been settled.
If no credit insurance cover is available, KHB shall be entitled to withhold the entire consignment or parts thereof at its discretion until the amount outstanding has been paid in full.

(5) If partial payments are agreed upon, the full debt balance – regardless of the due date for the draft issued - becomes immediately due for payment when the customer is behind by 14 days, enters an unfavorable financial position or stops making payments.

(6) Requi­re­ments from this contract may not be trans­ferred to third parties unless otherwise agreed upon in writing.

5. Dispatch and risk transfer

(1) Regardless of the cost, the risk is trans­ferred to the customer as soon as the commodity leaves the KHB factory or warehouse or is given over to the buyer, deliverer, freight carrier or any other person or institute for transport at the factory or warehouse. If it agreed upon that the customer or those assigned by the customer will pick up the commodity, then the transfer of risk takes place at the latest at the end of the second day after it has been reported that the goods are available for collection. If KHB parti­ci­pates in any form in the freightage, then it acts exclu­sively as a repre­sen­tative of the customer’s.

(2) The customer is to inform KHB of the desired mode of shipment immediately after the contract has been concluded. If this report is not made within 7 days at the latest after the conclusion of the contract, KHB is free to choose the transit period and method of transport. KHB assumes no liability for problems (damages, delay) resulting from transport. Reloading or forwarding expenses resulting from missing or incorrect data regarding the place of desti­nation are to be paid by the customer, even when, according to agreement, the costs of the shipment are to be borne excep­tio­nally by KHB. KHB selects packaging for the goods at its own discretion.

(3) Insurance is not covered by KHB without the corre­sponding written order from the customer.

(4) In all other respects, the “INCOTERMS” in their most current version are appli­cable.

6. Retention of title

(1) KHB retains the title to the commodity until all requi­re­ments from the customer from the business relation, including future requi­re­ments, even from concurrent contracts or contracts concluded at a later date, are settled. This also applies even if individual or all claims from KHB were incor­po­rated into an ongoing invoice and the balance has been indicated and recognized.

(2) For KHB, the development, processing, and instal­lation of the goods subject to retention of title take place with KHB as manufac­turer in the sense of § 950 BGB [German Civil Code] without obligating KHB. The developed and processed commodity or products connected with KHB products apply as commo­dities subject to retention of title in the sense of these condi­tions. If the goods subject to retention of title are processed, combined, or mixed insepa­rably with another manufacturer’s goods, then KHB acquires joint ownership of the new commodity in proportion to the invoice value for the goods subject to retention of title to the invoice value for the other commodity used at the time of the processing or mixing. If the buyer acquires the sole ownership of the new item, then the contract partners agree that the buyer will arrange for KHB’s joint ownership of the new item in proportion to the invoice value of the processed and/or connected, mixed, or combined goods subject to retention of title and safeguards this for KHB free of charge. The joint ownerships that then develop are consi­dered as commo­dities subject to retention of title in the sense of these regula­tions.

(3) If the customer behaves in a manner contrary to the terms of agreement, parti­cu­larly in the event of a delay in payment, then KHB is entitled to withdraw from the contract and reclaim the commo­dities. The customer is obligated to surrender the commo­dities in this instance. KHB reserves the right to require compen­sation for damages.

(4) If it is recognizable as a retailer, the customer is entitled to resell the goods in the standard course of business, though never after a judicial or out-of-court settlement procee­dings or insol­vency procee­dings has been requested or opened – under the condition that the request for resale is vested in KHB as follows: The customer assigns all previously existing demands with all ancillary rights developing for it from the resale towards customers or third parties to KHB, regardless of whether the goods subject to retention of title are resold without or subse­quent to processing. KHB already accepts this transfer as of now. If the customer incor­po­rates the claim from the resale of the goods into a current account relati­onship existing with its customers, then the current account claim is surren­dered in full. After a successful settlement has been made, in its place is the recognized balance which applies as surren­dered up to the value of the amount which consti­tuted the original current account request. KHB already accepts the assignment of these claims as of now. If the customer resells the goods subject to retention of title on credit, it must secure the rights of the retention seller (KHB) for resale.
The customer is autho­rized to collect the claim even after the transfer. KHB’s autho­ri­zation to collect the claim itself remains unaffected, though KHB commits itself to not collect the claim so long as the customer duly fulfills its liabi­lities.
KHB can require the customer to commu­nicate to it the trans­ferred claim and their debtors, all data necessary to make the collection, to provide the affiliated documen­tation and to commu­nicate the transfer to the debtors. If the goods are resold together with goods which do not belong to KHB, then the buyer’s claim against the customer applies as trans­ferred at the amount agreed upon between KHB and the customer as the delivery price.

(5) The customer is not entitled to make other orders made for the goods subject to retention of title, and in parti­cular the commodity may not be pawned or trans­ferred by way of security.
The goods are to be excluded from a transfer by way of security of total stock merchandise through an express decla­ration made to the secured party. KHB commits itself to release the securities to which it is entitled to the extent that their value exceeds more than 20% of the value of the claims to be secured, so long as these have not yet been settled.

(6) The buyer is obligated to suffi­ci­ently insure the goods which are subject to retention of title against the usual dangers, and this at its own expense.

(7) If the law of the country in which the delivered goods are located does not admit the retention of title, then the seller allows for the other laws for the delivery article so that KHB can exercise all rights of this sort. The customer is obligated to parti­cipate in the steps which KHB wants to take to protect its vested title or another right to the goods in its place.

7. Warranty

Product liability law claims shall remain unaffected by the following regula­tions.

(1) The buyer must immediately – though no later than within 5 working days after obtaining power of disposal over the article delivered – commu­nicate any damages in writing. Damages which cannot be disco­vered, even after a thorough exami­nation within this period, are to be immediately commu­ni­cated to KHB in writing as soon as they are disco­vered.

(2) When an effective notice of defect has been issued, the customer is obliged to have the condition of the goods surveyed by a neutral expert at KHB’s request. Claims based on the defec­tiveness of the goods shall become void if the buyer does not give KHB or its sub-suppliers the oppor­tunity to check the defect described on the premises or to have it checked, or if the buyer does not make samples immediately available as requested. All defect claims shall also become void if goods processing is not stopped immediately after the defects are identified or if the mixing of KHB goods with those of another manufac­turer is not discon­tinued; this shall apply until KHB or its sub-suppliers clears the goods. At the same time, the customer shall name the product customers to whom the goods were delivered.

(3) KHB assumes no liability for conse­quences resulting from the inappro­priate use of the goods or failure to use a guideline arranged for by KHB.

(4) If signi­ficant material defects exist, we shall eliminate the defect or deliver a defect-free commodity (supple­mentary perfor­mance). If, after a second attempt to provide supple­mentary perfor­mance, the defect removal or subse­quent delivery experi­ences unrea­sonable delays or becomes impos­sible or fails, the buyer can claim a discount, withdraw from the contract, or request compen­sation for damages instead of perfor­mance. If the buyer chooses to withdraw from the contract, he shall not be entitled to any compen­sation for damages due to the defect.

(5) The buyer’s claims shall become time-barred within one year, beginning with the delivery of the object purchased to the buyer. This also applies to claims for compen­sation for conse­quential harm caused by a defect.

(6) In the event of a breach of obligation, in parti­cular any due to consulting errors, breaches of contractual ancillary obliga­tions, or from faults arising during conclusion of the contract which are attri­buted to us or our executing aides and which are not preme­di­tated or due to gross negli­gence, our liability is limited to the foreseeable damages typical for this type of contract; this does not apply for damages which the buyer suffers due to injury to life, body, or health for which we or our executing aides are respon­sible.

(7) If claims for compen­sation are made against KHB from a claim from the customer lodged by own customers, KHB’s liability, where appro­priate, shall be the same as if it had sold directly to the end customer. If an end customer makes a claim against the customer for a reason which origi­nates in the defec­tiveness of the goods sold, the customer is obliged to immediately apprise KHB thereof. In addition, he is also obliged to indemnify his customer unless KHB recognizes its obligation to indemnify the customer or his customers, or makes an out-of-court settlement. If the customer is sued by his customer, the customer must give KHB the oppor­tunity to parti­cipate in the legal procee­dings.

(8) The buyer shall take over all possible claims directed against KHB from any injury to third-party patent rights through the import or use of the goods supplied by KHB insofar as this is not due to preme­di­tation or gross negli­gence on the part of KHB.

8. Place of fulfillment

The place of fulfillment is Hamburg. The place of fulfillment for all of the customer’s obliga­tions is the seller’s (KHB’s) regis­tered office.

9. Juris­diction and appli­cable law

German law is appli­cable. The appli­cation of UN conven­tions relating to uniform legis­lation on the inter­na­tional sale of goods is excluded.

The area of juris­diction for all disputes arising in connection with the contract with KHB is Hamburg. If KHB is the plaintiff, procee­dings may also be initiated at the customer’s regis­tered place of business.

10. Miscel­la­neous

Should individual condi­tions be legally invalid or be modified, the remaining condi­tions shall continue to be binding. A clause shall be deemed to have been agreed which fulfils the financial purpose of the invalid clause as closely as possible.

Business with entre­pre­neurs is to be treated the same as business with legal entities of the public right and public special estates.
These general terms of sale and delivery shall also apply to all future business with the buyer. They are located on the KHB homepage on the internet (www​.khboddin​.com), and thus the buyer cannot make the objection that these were not acces­sible. When these general terms of sale and delivery are published, all earlier agree­ments shall become void.

Version: 23. December 2019