Terms & Conditions
§ 1 General statements
For all sales and deliveries only the following conditions are valid. In caseof different possibilities of interpretation due to translations the original German version is valid. Differing agreements, especially conditions of purchasing, are only effective, if we confirm them in writing. Silence does not mean acceptance. In case the customer is an entrepreneur, the following conditions are also valid for future business transactions between him and us, even when they are not agreed on again explicitly.
§ 2 Prices
The prices of our quotes and acceptances of order are subject to confirmation. We charge the prices valuable at the time of delivery. Freight and packing see page 6.6, valid only within Germany. Unless agreed upon differently all export prices are ex works. If the delivery is within Germany all prices are subject to German VAT. Within the European Union we need the VATT .identification number. The custom laws have to be considered.
§ 3 Orders
We will confirm the acceptance of orders in writing. Orders are only valid by our written confirmation - in exceptional cases also by immediate delivery and issuing an invoice. Changes, supplementary agreements and amendments of the contract have to be agreed on in written form in order to be valid. In case that no definite delivery date is agreed on with release orders, a maximum delivery time of twelve months is in effect. If the merchandise is not received within that time, we are entitled - after an adequate time - to arrange the delivery scheduling (delivery will take place after payment), or to cancel the rest of the purchase and to demand damages for non-performance.
§ 4 Transportation risk and delivery
All deliveries are at the risk of the customer. The risk passes over to the customer from the (outgoing) place of delivery. This is valid even if free delivery is agreed on. If the delivery is delayed by fault of the customer the risk passes over to the customer on the day the merchandise is ready for delivery. Insurance against transport damage will only be arranged for if the customer explicitly demands it and at his expense. Shipping instructions have to be given with the placement of the order, otherwise the merchandise will be shipped at our own discretion for the cheapest freight, without obligation.
§ 5 Tools, appliances
Tools and appliances always remain in our possession and property, even if they where produced for special articles. By payment of portions of costs for tools and appliances the customer does not acquire a title. We commit ourselves to keep tools and appliances for the customer twelve months after the last delivery. If the customer states before the expiration of this time limit that further orders will be placed, the time limit will be extended for another twelve months. After the expiration of this time limit we can freely dispose of the tools and appliances.
§ 6 Catalogues, drawings and samples
We reserve the right of property and the copy rights of all provided catalogues, drawings and samples. These documents may not be used for copying, imitation, or circulation. For your own use we are glad to send you more copies at cost.
§ 7 Delivery and acts of nature
Quoted times of delivery are always without obligation. We always try to complete an order promptly and in time. The time of delivery starts with the day of the sending of the confirmation of order and is deemed to be kept, if the merchandise has left our factory by the end of the delivery period.
Acts of nature which happen after conclusion of a contract and complicate our services or make them impossible, entitle us to defer the fulfilment of our obligations for the time of the interference and an adequate start-up time. Acts of nature include especially strikes, lockouts, breakdown of transportation, lack of production material or energy or similar occurrences which we are not accountable for. If acts of nature lead to a final, lasting, irreparable hindrance of performance we are entitled to withdraw from the contract.
§ 8 Warranty
Any warranty presumes that any customer who is an entrepreneur has met his legal obligations of reprehension without hesitation. Any customer who is not an entrepreneur, forfeits his rights of warranty regarding to apparent damages if he does not claim them in written form within fourteen days after receiving the merchandise. Defects of one part can not lead to reclamation of the whole delivery.
For delivered goods which are insufficient we either deliver a replacement with return of the reclaimed parts or remove the deficiency at our choice. If the replacement or the remedy fails, the customer can demand a reduction of the purchasing price or a cancellation of the contract at his choice.
We can demand a compensation if we acted upon a notice of defectsand the customer has not proved the existence of a defect or the claimed defect proves to be a malfunction or failure because of a repair or an act of the customer or a third person.
In case we fulfill the warranty obligation at another place than the place of delivery the charges for freight, packing and travelling have to be covered by the customer, if he is an entrepreneur.
§ 9 Liability
We are liable with initial incapacity, accountable impossibility, warranties, default and for claims of product liability.
For claims out of positive violation of demands we are not liable in case of breach of non significant contract duties, if we or one of our auxiliary persons acted only slightly negligent. Essential duties of the contract are duties of which the observance is indispensable for the realization of the contract.
Damage payments are limited to the replacement of the typical foreseeable damage. Collateral damage is not refundable, unless the replacement for collateral damages was explicitly assured. Any liability for damages exceeding the ones provided for in these conditions of contract is excluded without consideration of the legal basis of the asserted claim. This is not effective for claims according to § 1,4 of the German product liability law and out of fault liability during the closing of the contract. With claims out of producer liability according to § 823 BGB (German law) our liability - unless it is excluded is limited to the replacement of the insurance. In case the insurance does not stand up for the liability or only does so in part, we are liable up to the limit of the indemnity.
§ 10 Default of the customer
If the customer is in delay with the takeover of the goods, he owes damages amounting to 0,5 % of the bill for every commenced month from the beginning of the notification of the readiness for shipment, unless he proves that no damage occurred to us or the damage is lower. Our demands which exceed the quoted rate remain unaffected.
§ 11 Returns
The return of delivered goods can only be accepted meeting the following criteria:
• Return only with prior consultation and our written consent
• Merchandise which is to be returned always has to be send free of charge
• Only undamaged Merchandise in original packing (no previous mounted fittings)
• No custom made products and finishes.
• No Glass panels
• No merchandise, which are older than 4 weeks after delivery
• For returned Merchandise a re-stocking fee will be charged
• charges for re-stocking are 10% of the goods value, minimum 35,00 Euro net for each shipment.
§ 12 Terms of payment
Only the terms of payment which are agreed upon at the time of the contract of sale and are stated in our confirmation of order. If not agreed upon otherwise we only accept prepayment or letters of credit. If the payment period is exceeded we are entitled to charge an interest rate 5 % higher than the basic interest rate according to the §1 of the Discount rate transition law of 06-09-1998 (German law). All claims are due right away after default of payment, cheque or bill protests and also if circumstances are disclosed that can lead to the conclusion that the financial situation of the customer is deteriorating or that the creditworthiness does not seem to be given anymore. We accept cheques and drafts only as auxiliary means, drafts only after prior agreement. Draft collection charges and eventual further costs have to be covered by the customer.
In case a draft is used for payment we can not accept cash discounts.
With the payment of our bill we do not accept external costs and bank charges.
§ 13 Retention of title
The delivery of all items of purchase remains under retention of title in our favor until the complete and final payment of all claims existing from the time of the conclusion of the contract; if the customer is an entrepreneur also the future claims which will result out of the business relationship. This is also valid if single claims are added to outstanding accounts and the balance is striked and recognized. If the conduct of the customer is substantially contrary to the contract, especially by delay of payment, we are entitled to take back the merchandise.
Taking back the merchandise does not mean cancellation of the contract, unless we explicitly declared that in written form.
Garnishment of the merchandise through us always means a cancellation of the contract. After taking back the merchandise we are entitled to the disposal. The proceeds of a sale is to be credited to the account of the customer, in the sequence cost,interest, main claim.
The claim of the customer out of the resale of the items of retention is assigned to us already now in the height of the value of the items of retention to secure the claims named in the previous passage. If the customer has agreed on an open account with his customer, the causal and recognized account balance out of this open account relationship is assigned to us even now.
The customer is entitled and authorized to further processing, to resale and secondary purchase of the items of retention within proper business dealings provided that the claim out of the resale is vested to us in the quoted sense. The customer is not entitled to other dispositions of the items of retention, especially pledging or chattel mortgage.
The customer is entitled to the collection of claims out of the resale in spite of the assignment. Our collection authority will remain unaffected by the collection authority of the customer. We will not collect the debts ourselves, however, as long as the customer is not in delay with his payment. On request the customer has to name us the debtor of the assigned debts and inform the debtor about the assignment.
We commit ourselves to release the above stated securities due to us in so far at our choice, as their nominal value exceeds the claims that have to secured by 15 % , provided, however, that with the exception of a delivery on a real open item basis a release can only take place for such deliveries or their replacement value which are themselves paid completely.
The customer has to inform us immediately in writing about any intervention of a third party concerning our property rights, including the address of the third party. All judicial and extra judicial costs resulting by successful interventions have to be covered by the customer, as soon as the collection of the debts from the respective debtor was unsuccessful.
If the matter of purchase is acquired by a third party, we are entitled to demand the release by ourselves, without the involvement of the customer.
The customer bears the duties, risks, liabilities, taxes, duties and other burdens which are connected with ownership, possession, the purchase and the operation of the item of purchase. He is liable for deliberately and negligently caused damages as well as for culpable or coincidental loss or damage of the item of purchase. Every damage of the item of purchase or its eventual loss has to be reported to us immediately.
If our merchandise is machined or processed, or connected or mixed with other parts by the customer we become co-owner of the new item in proportion of the item of retention to the other parts. The customer will keep the new item for us. In case the customer sells himself under retention of title, this is considered as agreed on in trust for the goods/ items of our ownership or joint ownership.
In case of insolvency proceedings we have the right of the exemption of our goods according to the insolvency regulation.
§ 14 Prohibition of assignment
Claims of the customer against us can not be transferred to a third party without our consent.
§ 15 Rights of retention and summation
The claim of rights of refusal of performance and retention is excluded if the customer is an entrepreneur, unless the contrary right is legally established or beyond controversy. In all cases summation is only acceptable in uncontested or legally established claims.
§ 16 Trade mark rights
In case items have to be produced according to drawings, models or samples of the customer, the customer assumes the warranty, that by the production and delivery no trade mark rights of a third party are violated.
He exempts us from all claims of such a third party. For eventual costs of litigation in case of such a claim we have a claim against the customer of a reasonable payment in advance.
§ 17 CE marking and legal provisions for the use of our products
1. Various standard regulations, for example within the framework of the European CE marking guidelines, apply to complete modules, for example glass shower doors, of which our components are only a part
2. We insure the suitability of our products if and only if they are installed in accordance with standards and our specifications for the manufacture of the entire element. Exclusively our parts or accessories approved by us may be used.
3. The customer assures that he will have our products installed by authorized specialists taking our technical information into account.
Failure to comply will void any warranty and liability on our side.
§ 18 Technical guidelines, QA standards and warranty standards
The information in our technology catalog also applies to assessments of surfaces, materials, installation, etc. This is part of the delivery contract
§ 19 Inseverability clause
If any one or more section, subsection, sentence, clause, phrase, word, provision or application of this Ordinance shall for any person or circumstance be held to be illegal, invalid, unenforceable, and/or unconstitutional, such decision shall not affect the validity of any other section, subsection, sentence, clause, phrase, word, provision or application of this Ordinance which is operable without the offending section, subsection, sentence, clause, phrase, word, provision or application shall remain effective notwithstanding such illegal, invalid, unenforceable, and/or unconstitutional section, subsection, sentence, clause, phrase, word, provision or application, and every section, subsection, sentence, clause, phrase, word, provision or application of this Ordinance are declared severable. The legislature hereby declares that it would have passed each part, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more section, subsection, sentence, clause, phrase, word, provision or application be declared illegal, invalid, unenforceable, and/or unconstitutional.
§ 20 Place of execution, court of jurisdiction, applicable law
For all deliveries and contractual activities of both contractual partners the place of execution is Bonn, Germany.
The United Nations Convention on Contracts for the International Sale of Goods, CISG is not appicable.
For all litigations only the local court in Bonn, Germany or the district court in Cologne, Germany has jurisdiction, if the customer is an entrepreneur, unless no other court of jurisdiction is prescribed by German law. We can, however, also appeal to the court having jurisdiction at the location where the customer is located or registered.
In any case only German law is applicable under exclusion of the agreement of the United Nations about contracts concerning the international purchase of goods.
KL megla Germany GmbH, Waldbröl, Germany