PREAMBLE

The business of Kalbach Nieder Sales (KN Sales) is performed by a limited liability company, i.e. „Unternehmensgesellschaft“ („UG“), registered in Germany. Unless otherwise stipulated in the following General Terms and Conditions of Sale, legal transactions with KN Sales UG (KNS) are subject to commercial law and practice. The delivery of our products shall be effected solely on the basis of our General Terms and Conditions of Sale (GTCS), which hereby form an integral part of contracts and are also therefore binding upon our contracting parties.

 

  1. General

 

Any delivery of goods and services by KNS as the seller to the customer (“Customer”) shall be subject to the Terms and Conditions set forth herein to the extent no other agreements have been explicitly made. The Customer’s General Terms and Conditions that are inconsistent with the „KNS-GTCS“ set forth herein shall only be applicable to the extent KNS has explicitly approved in writing. References by contracting parties to their General Terms and Conditions of Sale or other documents which deviate from KNS´ GTCS, shall not be deemed to have been added.

 

  1. Information related to goods and services

 

Information and consultancy in relation to KNS’ goods and services is provided as deemed appropriate from existing experience. Any values quoted as part thereof, especially performance data, represent average values which have been determined through experiments under standard laboratory conditions. KNS cannot assume any commitment for its products to precisely meet the quoted values and areas of application. Section 10 of the GTCS governs the issues of liability.

 

  1. Confirmation of order; Customer´s General Terms and Conditions

 

3.1.     Our confirmation of order in writing shall be authoritative for the scope of obligation of KNS to deliver. All orders shall be deemed to have been accepted only if they were confirmed either by letter, facsimile or E-Mail from KNS. Ancillary agreements, exceptional conditions, and subsequent amendments to the contract shall likewise require the written confirmation. Terms and conditions that contradict our GTCS shall only be acknowledged by KNS if we have expressly confirmed this in writing.

3.2.     Delivery deadlines shall be legally binding if set down in the confirmation order, and confirmed by us in writing as „fixes“ or „binding“. In the absence of any other agreement, our delivery deadlines shall remain subject to review. The delivery deadline shall prevail, unless circumstances occur which are unforseeable or beyond the will of the contracting parties, such as all instances of force majeure which impede compliance. Such cicumstances shall also include armed conflicts, interventions and prohibitions on the part of official bodies and authorities, delays in respect of transport and customs clearance, loss in transit, energy and raw material shortages, or furthermore rejection of a substuntial or significant part of the work, labour disputes, or the loss of a major sub-contractor who is difficult to replace; the same shall apply even in the event of such circumstances arising in the case of sub-contractors. The onset of such impediments shall entitle us to postpone the deliveries by the period of the impediment, or to withdraw from the contract of sale due to impossibility of fulfilment. In the event of the agreed delivery deadline being exceeded by more than 4 weeks due to our demonstrable fault alone, the purchaser shall be entitled to rescint the contract. This right of rescission, however, shall be conditional upon the purchaser notifying us, by registered letter, of his intention to exercise the right of rescission.

 

  1. Prices

 

4.1      The prices quoted in the order confirmation of KNS shall solely apply. Additional services will be invoiced separately. The prices shall apply ex -works, in EURO (€), including packing, unless otherwise agreed. The Customer shall bear all additional freight costs, packing costs in excess of standard packing, public fees and duties; regarding VAT see Section 4.3.

4.2      In the event of the business transaction being concluded in a foreign currency, i.e. a currency other than EURO (€), the conversion shall be effected on the basis of the reference rate of exchange for the foreign currency as published by the European Central Bank on the date of the order confirmation, or on the date of delivery, at our discretion, whereby the Customer shall bear the exchange rate risk. If it is not possible to comply with the agreed method or channel of payment, the Customer is obliged to inform KNS immediately by registered letter, facsimile or E-mail, and to present KNS suggestions for a suitable payment procedure. Any payment in cryptocurrency or similar digital currencies such as crypto tokens is not possible without the prior written consent of KNS. Thereafter payment is to be effected at the discretion of KNS.

4.3      All prices are quoted as net prices and do not include value added tax (VAT), which is to be paid additionally by the Customer in the amount specified by the applicable law regulated by the German VAT Code (Umsatzsteuergesetz – UStG -). Exemption from VAT might be possible, especially in case of intra-Community supplies as well as deliveries to other countries than European Member States. To obtain the tax exemption, the customer is obliged to provide KNS with the information and certificates as required by law. KNS is not obliged to render any auxilliary services in this respect.

 

  1. Delivery

 

5.1      The delivery shall be effected only on the basis of these GTCS which the Customer acknowledges as binding if the customer submits a legally binding purchase order. Unless otherwise expressly agreed, KNS shall deliver ex works (EXW INCOTERMS 2010) of the KNS Group company using these Terms and Conditions.

5.2      Delivery periods shall only be binding if expressly agreed in writing. Delivery periods shall begin on the date of the order confirmation by KNS, however, in no case prior to settlement of all details relating to an order including the furnishing of any required official certificates. Delivery periods shall be deemed to be met on timely notification of readiness to ship if the goods cannot be dispatched in time through no fault of KNS.

5.3      With respect to delivery periods and dates, which are not expressly defined as fixed in the order confirmation, the Customer may – two weeks after expiry of such a delivery period or date – set an adequate grace period for delivery. KNS may only be deemed to be in default after expiry of such a grace period.

5.4      Without prejudicing KNS’ rights from Customer’s default, delivery periods and dates shall be deemed to be extended by the period of time during which the Customer fails to comply with his obligations towards KNS. In case Customer does not comply with its obligations, KNS shall only be liable for all types of damages in accordance with section 10 of these GTCS.

5.5      KNS reserves the right to carry out a delivery using its own delivery organisation or the delivery organisation of an associated partner firm.

5.6      KNS may perform partial deliveries and render partial services if such action would not unreasonably affect the Customer.

5.7      The Customer may rescind the contract after two unsuccessful grace periods unless the hindrance is merely temporary in nature and a delay would not unreasonably affect the Customer.

5.8      Any contractual or statutory right of a Customer to rescind the contract, which the Customer fails to exercise within a reasonable period of time set by KNS, shall be forfeited.

 

  1. Transport of merchandise

 

6.1.     Unless otherwise expressly agreed, the merchandise shall be transported on the account and at the risk of the Customer. Insurance for deliveries shall be effected only at the express wish of the Customer and on his account. The risk shall pass to the Customer as soon as the goods have been handed over to the person executing the transport.

6.2.     The Customer shall be obliged to accept the delivery on the agreed date. In the event of unjustified return of merchandise free of defects, the Customer shall bear all dispatch costs, appropriate storage costs, and additional packing costs. Return of the merchandise shall not exempt the Customer from the obligation to pay the invoice. In the event of the invoice not being paid, as a result of the merchandise being returned, KNS is entitled to pass on the bank charges which incur for outstanding accounts until the day of final payment.

6.3.     If transport is delayed for reasons to be attributed to the Customer, the risk of accidental deterioration, loss and destruction shall pass to the Customer on notification of KNS’ readiness to ship. Required storage costs after passing of risk shall be borne by the Customer. This shall not affect any other claims.

6.4      If the Customer defaults in accepting, KNS shall be entitled to claim refund of any expenditure associated therewith and the risk of accidental deterioration, loss and destruction shall pass to the Customer.

 

  1. Payment

 

7.1.     Unless KNS has confirmed otherwise to the customer in the order confirmation or on the invoice, payment shall be made in full within 14 days from the date of the invoice without any deductions. Payment shall be considered to have been made on the day the payable sum is received by KNS.

7.2.     Unless agreed otherwise in writing, payments shall be effected exclusively to the payment agencies designated on the invoices.

7.3.     Bills of exchange and cheques shall be accepted only with the prior consent of KNS, but in any event only subject to the possibility of negotiation, and only for the purpose of payment. Bills of exchange and cheques shall not be deemed payment until after they have been honoured and will be accepted without any obligation to make timely presentation and timely protest.

7.4      Immediately upon default of payment – or from the due date if Customer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch, HGB) – KNS shall be entitled to demand default interest of 9 percentage points – respectiveley 5 percentage points in case the Customer is a consumer – above the base lending rate p.a. which is regulated in § 247 of the German Civil Code (Bürgerliches Gestzbuch, BGB).  KNS reserves the right to claim a higher actual damage.

7.5      Customers may only withhold or offset due payments against their own counter-claims if these are uncontested or have been found to be legally binding.

7.6      Any of KNS’ receivables shall be immediately payable in the event of a default in payment, a notice given in protest against a bill of exchange or suspension of the Customer’s payments, independent of the term of the bills of exchange which may have already been accepted. In any of these aforementioned cases, KNS shall also be able to perform remaining deliveries only against advance payment or provision of security, and, if no such advance payment is made or security provided within a two-week time period, to cancel the contract without fixing another extension term. This shall not affect any further claims.

 

  1. Retention of Title

 

8.1      Delivered goods shall fully remain property of KNS (goods sold subject to retention of title) until all receivables, on whatever legal grounds, have been fully paid up.

8.2      In case of processing, combining or mixing of goods subject to retention of title with goods of the Customer, KNS shall be entitled to co-ownership of the new property inasmuch as the invoiced value of goods sold with retention of title relates to the value of the other involved goods. Where KNS co-ownership becomes null and void due to processing, combining or mixing with other goods, the Customer immediately assigns to KNS those of his rights of ownership in the new property or compound matter which correspond to the amount of the value of goods subject to retention of title by KNS. Customer shall also be responsible for holding such rights in safe custody on the behalf of KNS and at Customer’s own expense. Any rights to co-ownership created as a result of such processing, combining or mixing shall be subject to section 8.1 of these Terms and Conditions.

8.3      The Customer may resell, process, combine or mix with other property, or otherwise integrate goods under retention of title in normal business operations, as long as the Customer is not defaulting. The Customer shall be prohibited from taking any other disposition regarding goods for which KNS retains title. KNS shall be promptly notified about any seizure of goods under retention of title through a third party. All intervention costs will be charged to the Customer if and to the extent that they cannot be collected from such third party. If the Customer grants his buyer additional time for payment of the sales price, Customer shall reserve title in goods resold with retention of KNS’ title under the same terms which KNS has applied when delivering such goods with retention of title. The Customer shall be prohibited from any other kind of resale.

8.4      The Customer shall immediately assign to KNS any receivables resulting from a resale of goods initially sold with retention of KNS’ title. These will be used to substitute the goods under retention of title as collateral of the equivalent amount. The Customer shall only be entitled and authorised to resell such goods if his receivables therefrom accrue to KNS.

8.5      If the Customer resells goods under retention of our title together with goods from other suppliers at a certain total price, Customer shall assign to KNS his receivables from such resale in the same amount as stated in the invoice for goods initially sold with retention of title by KNS.

8.6      If an assigned receivable is included into a current account, the Customer immediately assigns to KNS that part of the balance which is equivalent to the amount of such receivable, including the final balance from current account operations.

8.7      Until KNS gives notice of revocation, the Customer shall be authorised to collect receivables assigned to KNS. KNS shall be entitled to such revocation if the Customer fails to meet his payment obligations under the business relationship with KNS in due course. If the preconditions for exercising a revocation right are fulfilled, the Customer shall promptly notify KNS of any assigned receivables with respective debtors, furnish all data required for collection of such receivables, hand over all related documentation and advise the debtors of such assignment. KNS reserves the right to personally advise the debtors of such assignment.

8.8      If the value of the collateral deposited for the benefit of KNS exceeds the amount of secured claims by a total of more than fifty (50) per cent, the Customer shall be entitled to demand that KNS insofar release securities of the choice of KNS.

8.9      If KNS claims retention of title, this shall only be understood as rescind of the contract if expressly stated so by KNS in writing. The Customer’s right to possess goods under retention of title shall be null and void if he fails to meet his contractual obligations.

 

  1. Warranty

 

9.1      The goods claimed to be defective shall be returned to KNS for examination in their original or equivalent packaging. KNS shall remedy defects if the warranty claim is valid and within the warranty period. It is at KNS’ discretion whether KNS remedies the defect by repair or replacement. KNS shall only bear the costs necessary to remedy the defect.

9.2      KNS shall be entitled to refuse to remedy defects in accordance with KNS’ statutory rights. KNS may refuse to remedy defects if the Customer has not complied with KNS’ request to return the goods claimed to be defective.

9.3      The Customer shall be entitled to rescind the contract or to reduce the contract price in accordance with his statutory rights, however, the Customer shall not be entitled to rescind the contract or to reduce the contract price, unless the Customer has previously given KNS twice a reasonable period to remedy the defect which KNS has failed to observe, unless setting of such a period to remedy defects is dispensable. In the event of rescission, Customer shall be liable for any intentional or negligent actions that cause destruction or loss of the goods as well as for failure to derive benefits from the goods.

9.4.     If KNS maliciously withholds disclosure of a defect or gives a quality warranty in accordance with section 444 of the German Civil Code („Bürgerliches Gersetzbuch“, BGB), the Customer’s rights shall be governed exclusively by the statutory provisions.

9.5      Any rights of the Customer to receive damages or compensation shall be governed by the provisions in section 10 of these Terms and Conditions.

9.6      Specifications of KNS’ goods, especially pictures, drawings, data about weight, measure and capacity contained in offers and brochures are to be considered as average data. Such specifications and data shall in no way constitute a quality warranty but merely a description or labelling of the goods.

9.7      Unless limits for variations have expressly been agreed in the order confirmation, such variations shall be admissible that are customary within the trade.

9.8      KNS shall not accept any liability for defects in the goods supplied if they are caused by normal wear and tear. The Customer shall have no rights against KNS in respect of defects in goods sold as lower-class or used goods.

9.9      Any warranty shall be void if operating or maintenance instructions are not observed, if changes are made to deliveries or services, if parts are replaced or materials used that are not in accordance with the original product specifications by KNS, unless the Customer can show that the defect in question resulted from another cause.

9.10    Provided that the Customer is a merchant, the Customer shall be obliged to notify defects to KNS in writing or via fax.

9.11    The limitation period for claims regarding defects shall be 12 months, respectively 24 months in case the Customer is a consumer. This shall not apply to Customer’s claims for damages based on damages of body or health caused by a defect for which KNS is responsible or claims for damages based on intentional or grossly negligent conduct by KNS.

9.12.   The technical information that we provide is to be regarded as approximate. We reserve the right to effect modifications or design improvements at any time. Complaints regarding the quality, type, or quantity of merchandise are to be notified to us in writing, either by registered letter, E-Mail or facsimile, immediately on receipt of the goods; hidden defects shall be subject to the provisions of the German Commercial Code (HGB) with regard to the requirement for the purchaser to give notice of defects. In the event of any modifications to the merchandise being carried out by the purchaser, then any obligation to effect replacement on our part shall expire. Date-code restrictions of customers whatsoever, will not be accepted by KNS.

 

  1. Limited Liability

 

10.1    In case of a breach of contractual obligations, defective deliveries or tortuous acts, KNS shall only be obliged to compensate damages or expenses – subject to any other contractual or statutory conditions for liability – if KNS has acted intentionally or with gross negligence or, in cases of minor negligence, if such negligence results in the breach of an essential contractual duty by means of German law. However, in case of minor negligence, KNS’ liability shall be limited to typical damages which are foreseeable at the time of the conclusion of the contract. The liability of KNS for losses caused by late delivery due to minor negligence shall be limited to 5% of the agreed purchase price.

 

10.2    KNS does not assume liability for the content of the information provided. Any liability claims against KNS, which refer to material or non-material damage, and which may be caused by the usage or non-usage of the information provided or, respectively, by the usage of any incorrect or incomplete information, is generally excluded, unless in cases of evidenced wilful or gross negligence (with cardinal obligations even slight negligence) on the KNS side. Likewise, KNS may not be held liable for any loss or damage ascribable to computer viruses when users download data from this website. This disclaimer is to be regarded as part of KNS’s internet offer.

 

10.3    The exclusions and limitations of liability in sections 10.1 – 10.2 shall not apply in cases of a quality warranty in accordance with section 444 of the German Civil Code (see section 9.4), in cases where KNS has maliciously failed to disclose a defect, in case of damages resulting from death, injury to health or physical injury or where the laws on product liability impose overriding liabilities which cannot be excluded.

10.4    The limitation period for claims against KNS – based on whatever legal ground – shall be 12 months, respectively 24 months in case Customer is a consumer, from the date of delivery to the Customer, and in case of tortious claims, 12 months (respectively 24 months in case Customer is a consumer) from the date the Customer becomes aware or could have become aware of the grounds giving rise to a claim and the liable person, had the Customer not been grossly negligent. The provisions in this clause shall neither apply in cases of intentional or gross negligent breaches of duty nor shall they apply in cases referred to in section 9.4 of these Terms and Conditions.

10.5    If the Customer is an intermediary seller of the goods obtained from KNS and the final purchaser of the goods is a consumer, the limitation period for any action of recourse against KNS by the Customer shall be the period specified by statute.

 

  1. Industrial Property Rights, Copyrights

 

11.1    In the event of claims against the Customer because of breach of an industrial property right or a copyright in using deliveries or services supplied by KNS in accordance with the contractually defined manner, KNS shall be responsible to obtain the right for the Customer to continue using such deliveries or services, provided that the Customer gives immediate written notice of such third-party claims and KNS’ rights to take all appropriate defensive and out-of-court actions are reserved. If, despite such actions, it proves impossible to continue using the deliveries or services supplied by KNS under reasonable economic conditions, it shall be understood as agreed that KNS may, at the discretion of KNS, modify or replace the particular delivery or service for removal of a legal deficiency, or take back such delivery or service with refunding of the sales price previously paid to KNS less a certain deduction to account for the age of the delivery or service in question.

11.2    The Customer shall have no further claims alleging infringement of industrial property or copyrights provided KNS has neither violated essential contractual duties nor intentionally or grossly negligently breached contractual duties. KNS shall have no obligations in accordance with section 11.1 in case breaches of rights are caused by exploiting the deliveries or services supplied by KNS in any other manner than contractually defined or by operating these together with any other than KNS deliveries or services.

 

  1. Disposal of goods

 

12.1    Customer is obliged to closely observe the documents accompanying the goods and to ensure the correct disposal of the goods in accordance with the applicable law.

12.2    In case Customer is a merchant, Customer shall be obliged to dispose the goods at its own costs. Customer shall be obliged to transfer this obligation to the purchaser of the goods or parts thereof in case of a resale of the goods.

12.3    In case the Customer is a consumer the statutory provisions regarding disposal of waste shall apply.

 

  1. Confidentiality

 

13.1    Unless otherwise expressly stipulated in writing, no information provided to KNS in connection with orders shall be regarded as confidential.

13.2    KNS points out that personal data in relation to the contractual relationship may be stored by KNS and may be transferred to companies associated with KNS in the KNS Group in accordance with the data protection regulations as described in section 15.

 

  1. General legal issues

 

14.1    The place of jurisdiction, provided that Customer is a merchant, a legal person under public law or a special fund under public law, shall be the place of business of the KNS Group company using these Terms and Conditions. However, KNS may also take legal action against Customer at Customer’s place of business.

14.2    Notice according to § 36 of the German Consumer Dispute Resolution Act „Verbraucherstreitbeilegungsgesetz“ or VSGB): KNS will not take part in a dispute resolution process in front of an alternative dispute resolution entity according to VSBG and is not obliged to do so.

14.3    Governing law shall be the law of Germany with the exclusion of the international conflict of laws provisions thereof and with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG), provided that Customer is a merchant, a legal person under public law or a special fund under public law.

14.4    Should any of the clauses of these Terms and Conditions be wholly or partially invalid or void, the validity of the remaining clauses or parts thereof shall not be affected.

14.5. All texts, images, graphics, audio and video files used on the KNS website are subject to copyright and other laws for the protection of intellectual property. They are intended for personal use only and may not be copied, either for trading purposes or for transfer to third parties, nor modified and used on other websites. The copyright of published data of any kind developed by KNS belongs solely to KNS. Graphics, text, logos, photos, etc., require the prior express permission by KNS management before being downloaded, reproduced, copied, amended, published, transferred, transmitted or used in any other form. There may also be images included on the KNS internet sites that are subject to the copyrights of their providers.

14.6. This website possibly contains references to third party websites, which may be of interest to users of KNS. Herewith KNS explicitly declares that at the time of setting the link, no unlawful content could be detected on the pages linked. KNS does not have any influence on the contents or design of these linked pages. KNS therefore explicitly disassociates itself herewith from all current content and any content changed at a later date and shall accept no liability for this. KNS is not responsible for the third party´s content or the content of linked sites beyond our own website. KNS shall therefore accept no liability for the current relevance, completeness and correctness of the information provided.

14.7. KNS reserves the right to amend the current GTCS at any time without prior notice. Should parts or individual formulations of this text, no longer or not completely conform to the applicable legal status, the remaining parts of the document shall remain unaffected by this in their content and validity.

14.8    Any claims held against KNS may not be assigned to third parties. Section 354a of the German Commercial Code (Handelsgesetzbuch – HGB -) shall remain unaffected.

14.9.   The sale, resale and the disposal of goods and services including any associated technology or documentation may be governed by German or EU export control regulations as well as by the export control regulations of other countries. Customer declares to have obtained all licenses required for export and import.

14.10. The protection of the personal information and privacy of our customers is paramount to KNS. Reference is to be made to the special explanation on this homepage.