TERMS FOR ALL PRODUCTS KULLIK & RULLMANN IS BUYING:
GENERAL PURCHASE CONDITIONS OF THE KULLIK & RULLMANN AG (Inc. company)
The following purchase conditions apply to all contracts of Kullik & Rullmann AG – later in here referred to as “client” – as far as they are not changed or excluded by explicit written consent of the client. Terms of the sellers/suppliers/producers – later in here referred to as contractors – contrary or differing from the later in here referred-to terms will not be accepted by the client, unless the client has explicitly agree to their validity in writing. The general terms and conditions of the contractor are also not obligatory even if they are not explicitly objected to by the client. The unconditioned acceptance of order confirmations and deliveries of the client do not represent an acknowledgement of the general terms and conditions of the contractor.
By accepting the initial delivery according to the present conditions, the contractor agrees to the exclusive validity of the purchase conditions also for further deliveries.
The following purchase conditions are used for business transactions with enterprises.
OFFER AND CONTRACT CONFIRMATION
Offers by contractors to the client are always binding. Contract confirmation and other agreements only become binding on written confirmation by the client. As far as employees of the client make oral side agreements going beyond the written order, those always require the written confirmation of the client.
Enquiries of the contractor are non-binding until the order is either placed in form of an offer by the client or in form of acceptance of the offer of the contractor.
If the contractor makes an offer following an enquiry of the client, the contractor is obligated to comply with quantity, quality of the product and other specifications according to the clients enquiry and is to explicitly and visibly highlight deviations if existent.
If the client places an order by making an offer it will become effective within 14 days (“acceptance term”) if other binding periods are not specified. After expiry of the aforementioned period the client is no longer bound to their order.
Oral and electronic offers only become effective if confirmed in writing (“Order”) by the client. To comply with the written-form-obligation, a telefax is sufficient. Changes or amendments to an order also require written confirmation of the client to become effective.
The acceptance of the order of the client by the contractor must take place within the acceptance term by written declaration (“order confirmation”). Until receipt of the written order confirmation, the client may withdraw their order/offer.
If the order confirmation differs from the offer/order of the client, the contract is only confirmed as far as the client confirms the order explicitly in writing. Without such confirmation payments made or deliveries and services accepted by the client do not represent a consent. Obvious errors (typing or calculation errors) and incompleteness of the order/offer, including order documentation, are to be reported by the contractor for the purpose of correction and/or completion before the acceptance of the order, otherwise the contract will be considered as not confirmed.
The client may retrospectively demand a change of the agreed services under respective adaptation of the return service as far as important operational reasons require to do so. This especially applies if the client could not foresee such reasons at the time of the contract confirmation and if the changes are customary and a reasonable burden for the contractor in individual cases.
In the event of an afore mentioned change, effects on delivery terms and possible extra or reduced expenses are to be handled reasonably and by mutual agreement. Price increases and delivery delays will only be accepted if extra costs and delivery delays are indeed related to the carried-out changes and if the contractor has informed the client in writing immediately after the change of order.
The qualities specified in the service description represent special demands on the delivery item, yet do not finally define its features. Public utterances of the contractor, their vicarious agents or third parties, such as public display of product features, represent a complementary or altering performance description of the delivery item. Documentations such as images, drawings, weight and size specifications are also valid even if not directly enclosed to the offer.
The contractor indemnifies the client from all claims by customers of the client – later in here referred to as “customer” – which are asserted against the client due to advertising messages by the contractor, a supplier of the contractor or a vicarious agent of the client, which would not be existent at all or in another form without the advertising message. This regulation applies regardless of the advertising messages being made prior or after the contract conclusion.
The scope of the performance duty of the contractor results from the documentations submitted, such as material specifications, drawings and performance descriptions or, if such are missing, the specifications in offers and brochures of the contractor.
If not otherwise explicitly agreed upon or agreed upon in writing, all deliveries have to comply with the individual valid DIN norms, other norms customary to this field of business, EU norms as well as norms of the delivery market (e.g. Japan, USA etc.)
The contractor is unlimitedly responsible – also without own fault -for the supplies necessary for the performance and the delivery (full assumption of the exercise risk).
DELIVERY TERMS, DELIVERY DELAY
The agreed delivery terms are binding. Relevant for the compliance with the delivery date or the delivery term is the date of receipt of the delivery item at the delivery place specified by the client or the moment of successful acceptance.
In case of pre-term delivery the client may store the product at risk of the contractor until the agreed date of delivery – until the ordered item can be stored at the location specified by the client on contract conclusion.
The contractor is to report foreseeable delivery delays immediately providing reasons and the possible duration of the delay.
In case of delivery delays the client is entitled to claim compensation, reduction of the purchase price or to withdraw from the contract due to failure of performance after effectless expiry of a given grace delivery period.
In case of delay the client is entitled to claim a lump-sum compensation rate of 0,15 %, max. 5 % of the gross contract value for each working day of the delay. The right to claim further delay damages remains unchallenged. The contractor may prove to the client that the amount of damage is possibly less than claimed.
The failure to provide necessary documentations by the contractor only exonerate the contractor if they punctually remind the supplier in writing under granting of a reasonable grace period and has not received such within this grace period.
Circumstances of force majeure only exonerate the contractor if they inform the client in writing without culpable hesitation immediately after obtaining knowledge specifying reasons and the possible duration of the delay.
For quantities, weights and dimensions the parameters identified on delivery to the client or to the individual recipient are relevant, unless quantities, weights and dimensions are differently confirmed elsewhere.
The contractor is not entitled to have his/her performance carried out by third parties without prior written consent of the client. If the contractor culpably violates this regulation, the client is entitled to withdraw from the contract. The right of the client to claim further damages is reserved.
PACKAGING, DISPATCH AND TRANSFER OF RISK
The dispatch of every delivery is to be immediately announced separately from the dispatch of the delivery note by a respective dispatch notification having the same content like the delivery note, if necessary the online tracking system of the contractor is to be updated.
The deliveries are to comply with the latest dispatch and packaging regulations known to the contractor. Products are to be packed in best possible way in order to avoid transport damages.
Orders are to be carried out in exact quantity and on the desired delivery date. Deliveries below or above the ordered quantity require special agreements.
The contractor may only carry out partial deliveries by prior agreement with the client.
Over-deliveries without agreement will be returned to the contractor’s company residence at the contractors risk and expenses.
The delivery takes place “free of charge” to the location specified in the order. The individual delivery location or place is also place of fulfilment according to valid Incoterms as specified in the order confirmation.
The delivery is to contain a delivery note including date (date of issuance and dispatch), content of the delivery(quantity, reference and number of packing piece) as well as the order ID of the client (date and order number, if stated). If the delivery note is missing or incomplete, resulting processing delays are not to be considered to be the client’s responsibility.
The risk of accidental loss or impairment transfers to the client at the moment of handing over of the delivery item at the place of fulfilment. As far as acceptance is agreed upon or necessary, it is to be considered relevant for the transfer of risk. The legal regulations of the works- and service contract law apply accordingly. Even if the client is in default of acceptance the agreed risk transfer applies.
In the event of acceptance default of the client, legal regulations fully apply. The contractor is nevertheless to explicitly offer his/her services if a specific or determinable calendar date is agreed upon for the action or collaboration of the client. If the client defaults in acceptance, the contractor is entitled to claim compensation for additional expenses according to legal regulations. If the subject of the contract concerns an unwarranted object to be produced by the contractor, the contractor is only entitled to claim further-going rights if the client is legally obligated to collaborate and is responsible for the non-collaboration.
PRICES, INVOICE AND TERMS OF PAYMENT
The price stated in the order is binding. If the price is not stated in the order and has also not been agreed upon, the prices of the contractor valid at the moment of order are to be considered as fixed prices. All prices are including statutory VAT if not otherwise stated or if the product is designated for export.
Unless otherwise individually agreed upon, the price includes all services and ancillary performances of the supplier as well as all ancillary costs, such as orderly packaging.
The contractor is informed that the client is using the ordered deliveries/products exclusively for resale. Therefore the client is to pay the purchase price until they have received the payment of the purchase price from their customer. Accordingly, the invoice of the contractor does not becomes due until transfer of the payment by the customer into the account of the client. Then the payment takes place with equal validation, margin and advanced costs deducted.
All payments exclusively take place to the contractor. The assignment of accounts receivable of the contractor by the client to third parties is excluded. If the client pays before transfer of risk, the transfer of title on the delivery item is considered as agreed, unless the client has ordered and received a security from the contractor equal to the amount of the paid price. Possible advance, partial or interim payments do not represent an acknowledgement of the contractual conformity of the delivery/service.
Off-set rights or rights of lien as well as the defence of lack of contractual performance lie with the client within legal scope. In particular, the client is entitled to retain due payments as long as the client is entitled to claims against the contractor resulting from prior defective deliveries.
The transport from the contractor to the client is organised by the client, unless otherwise agreed upon. In this case the client bears the costs for transport, custom clearance as well as costs for transport- and liability insurance.
LIABILITY FOR DEFECTS
The contractor is liable for material and legal defects of their delivery (including incorrect and incomplete delivery) and in cases of other violations of duties according to legal regulations, unless otherwise agreed upon.
The contractor guarantees that the delivery is of the agreed quality (see also No. 6) at the moment of transfer of risk. Besides the right to claim supplementary performance, the client is entitled to withdraw from the contract and to claim compensation for damages instead of full service even in case of insignificant divergence from the agreed quality or insignificant impairment of the usability.
Further, the contractor guarantees that all deliveries/services are according to the latest standards of technology, the legal regulations and provisions as well as the guide lines of authorities, professional and trade associations. As far as a certain quality has not been individually agreed upon, a material defect is existent if the delivery item is not usable as specified in the contract. Further, a material defect according to legal regulations is also existent if the delivery is not of the quality to be expected by the client with respect to the product description provided by the contractor. Here it is sufficient if the product description is provided after conclusion of the contract, e.g. together with the product delivery.
For the commercial duty to inspection and objection, the legal regulations apply as follows:
The duty to inspection of the client, the recipient of the delivery respectively, is limited to defects detected on incoming product inspection under external examination including check of delivery documentation as well as random quality checks by the client or recipient of the delivery, e.g. transport damages, incorrect and incomplete delivery. As far as acceptance has been agreed upon or is required by law, there is no duty to inspection. Further it is relevant to what extent an inspection is possible with respect to the individual case following the orderly course of business.
Obvious defects detected within the orderly course of business are to be immediately reported to the client by the contractor in writing at the moment of detection, latest within 30 days after delivery to the client or the recipient of the delivery. The duty to objection for later discovered legal defects remains unchallenged. In all cases the objection by the client is considered as immediate and due if received by the contractor within 30 days.
If the contractor does not comply with their duty to supplementary performance – as per choice of the client – by rectification of the defect or re-delivery of a defect-free item within a grace period set by the client, the client is entitled to rectify the defect themselves and to claim compensation for occurred expenses or demand an advanced payment, respectively. This does not apply if the contractor is entitled to reject the supplementary performance. If the supplementary performance by the contractor failed or is unreasonable for the client, e.g. because of urgency, jeopardising the operational safety or imminent occurrence of a high damage), a grace period does not need to be set; the contractor is to be informed immediately, preferably in advance, to give them or a trusted person the opportunity to make sure that a defect is existent.
The supplementary performance is regarded as failed after the first unsuccessful attempt.
Subject to own fault, the contractor is further liable for violation of commercial protection rights as well as copy rights and other third-party rights. If the client is addressed by third parties due to an alleged violation, the contractor is obligated to indemnify the client from all such claims. For the scope of indemnification No. 12 of this purchase agreement applies.
If an entire specification needs to be replaced due to a serious defect or if the replacement becomes necessary due to products manufactured by the client being integrated into contractual items, for example because a defect analysis would be uneconomic, impossible or unreasonable, the contractor refunds the costs also with respect to that part of the affected specification that does not contain defects.
PRODUCT LIABILITY, PRODUCER LIABILITY
As far as the contractor is responsible for a defective product, they are obligated to indemnify the client from third-party claims including costs for the necessary legal defence since the cause is in their sphere of influence and organisation and is also liable in external representation.
Within the scope of their indemnifying duties, the contractor is to reimburse all costs resulting from or in relation to third-party claims.
Besides defect claims, the client is unlimitedly entitled to legal recourse within the delivery chain (supplier recourse according to Sec. 478, 479 German Civil Code). In particular, the client is entitled to exactly claim that kind of supplementary performance (rectification or replacement delivery) from the contractor that the client is owing their customers. The legal right of the client to choose the kind supplementary performance (Sec. 439 para. 1 German Civil Code) will not be limited by that.
Before the client acknowledges or fulfils a defect claim asserted by the customer against the client (including reimbursement of expenses), the client will inform the contractor and ask the contractor to comment on the matter under description of the circumstances. If the contractor does not comment within a reasonable period of time and if no amicable solution is reached, the defect claim actually warranted by the client is considered as owed to the customer. The contractor is obligated to prove the contrary.
If the contractor rejects the asserted claim of the customer, the client will defend themselves against the defect claim of the customer, subject to prospects of success. In this case the contractor is obligated to support the client in the defence and, in particular, is to provide all information and documentation necessary for the defence. Furthermore, the contractor is obligated to refund all expenses resulting from or in connection to the assertion of the claim. In particular, the contractor is to refund the costs for the defence and/or to internally indemnify the client.
LIABILTY OF THE CLIENT
The client as well as their vicarious agents are only liable in case of intention or gross negligence.
Mutual claims of the contractual parties expire according to legal regulations unless otherwise agreed upon below.
Differing from Sec. 438, para. 1 No. 3 German Civil Code the general limitation period for defect claims is 3 years beginning with the date of delivery. As long as acceptance is agreed upon, the limitation period begins at the moment of acceptance.
The limitation periods of the commercial law, including the afore mentioned extensions – within legal scope – apply to all contractual defect claims. As far as the client is entitled to claims outside of the contractual relation, the legal limitation periods (Sec. 195, 199 German Civil Code) apply: the special limitation periods of the commercial law apply if their individual application leads to a longer limitation period.
The aforementioned regulation applies to all contractual and non-contractual claims resulting from lack of title. Further, such claims do not expire as long as third parties are entitled to assert such claims against the client – especially due to lack of limitation. The legal limitation period for action in claims according to Sec. 438, para. 1 No. 1 German Civil Code remains unchallenged.
DRAWINGS, MODELS, TOOLS, ETC., CONFIDENTIALITY
Drawings, models, forms, samples, profiles, norm sheets, art works, gauges, other documentations or tools provided by the client remain property of the client. They may neither be handed over to third parties nor used for other purposes than those necessary to fulfil the contract. They are to be protected against unauthorised inspection or use. Further rights reserved, the client is entitled to demand the handing-over in the moment the contractor has violated their legal or contractual duties towards the client.
The contractor is to store the aforementioned items with care and is to protect them against fire, theft or other forms of loss. The contractor is to hand over the items unrequested to the client after fulfilment of the order without keeping copies, duplicates etc.
The contractor is obligated to treat all non-manifested commercial or technical details, which are revealed to them in the course of the business relationship, as business secrets and is not to make them available to third parties. Sub-contractors are to be briefed accordingly.
RETENTION OF TITLE
The ownership of the delivered items unlimitedly and unmortgaged transfers to the client in the moment of handing over the item to the client or to a recipient appointed by the client. A simple retention of title according to the General Terms and Conditions of the contractor will be accepted, though.
PLACE OF PERFORMANCE AND JURISDICTION, APPLICABLE LAW, OTHER REGULATIONS
The business relationship with the client and their customer may only be referred to in advertisements if agreed to in writing by the client.
Exclusive place of performance for deliveries and services is the delivery address specified by the client. If such delivery address is missing, the place of performance is Berlin and/or Munich.
Exclusive place of performance for financial duties is the company residence of the client.
Place of jurisdiction for all legal disputes with registered merchants, persons under public law and person not having a general place of jurisdiction in Germany is Berlin.
To all legal relationships between the contractor and the client the law of the Federal Republic of Germany exclusively applies under exclusion of CISG from 11th April 1980.
If single regulations of these aforementioned conditions are or become invalid, other regulations remain unchallenged. Invalid regulations are to be replaced by regulations as close as possible to the originally desired economic purpose under protection of mutual interests.
Legal information for email
M&G Asset Management Corporation and Rdj Consulting Inc. are working as independent Agents for Kullik & Rullmann AG German Timber Export Co. (K&R), Unter den Eichen 55, 12203 Berlin, Germany.
AG Berlin-Charlottenburg, HRB 79128, Vorsitzender des Aufsichtsrats: Frank Heinemann, Vorsitzender des Vorstandes: Carsten Kullik.
All contracts are only valid when they are issued and confirmed from K&R in Berlin, Germany.