Scope of application:
KH Boddin GmbH**
KHB Feed GmbH**
Offers, deliveries and other performances, including consulting services and the provision of information (and similar) from KH Boddin GmbH or KHB Feed GmbH (hereinafter referred to as KHB) are governed exclusively by these General Conditions of Sales and Delivery.
Deviating conditions of the Customer that have not been expressly acknowledged in writing by KHB shall not be binding for KHB, even if KHB does not expressly object to them. A reference by KHB to correspondence that contains or refers to the terms and conditions of the Customer or a third party does not constitute consent to the application of such terms and conditions. These General Conditions of Sales and Delivery shall also govern all future business relations, including those where KHB does not expressly refer to them in subsequent contracts (i.e. in particular in the case of orders placed over the phone).
The acceptance of the ordered goods shall be deemed acceptance of these General Conditions of Sales and Delivery. All agreements must be made in writing. This shall also apply to collateral agreements and assurances as well as to subsequent contract amendments. An amendment to this clause shall also require the written form.
1. Offers, product description, scope of delivery
(1) Offers are always subject to change. Contracts and other agreements become binding only upon written confirmation by KHB.
(2) The exclusive contractual object is the product that is sold with the properties, characteristics and intended use as specified in the sales contract or, if applicable, the product description attached to the order confirmation. Public statements or advertisements do not constitute a contractual specification of the quality of the goods.
(3) Other or more extensive properties and/or characteristics or other types of intended use are only deemed agreed if they have been expressly confirmed by KHB in writing.
(4) The scope of delivery shall be determined by the written order confirmation issued by KHB or, in the case of an offer by KHB with limited validity and timely acceptance, by the offer, insofar as an order confirmation has not been issued in due time. Industry-standard excess or short deliveries up to plus/minus 10% are permissible.
(5) KHB reserves title and copyright to cost estimates, offers, drawings and other documents or aids; they may not be made accessible or disclosed to third parties and must not be used or reproduced by the Customer or third parties. At KHB’s request, the Customer must return all of these items to KHB and destroy any copies made thereof, provided they are no longer required by KHB for ordinary business purposes or if negotiations do not lead to the conclusion of a contract. This does not apply to the storage of electronic data for the purpose of ordinary data backups.
(1) The quoted prices are exclusive of VAT and only apply to orders that are fulfilled with a single delivery journey. The prices apply per quantity unit in accordance with the written order confirmation, ex works/warehouse and include loading and packaging unless agreed differently. Quantities are specified without packaging.
(2) The prices may be adjusted accordingly if a legal requirement that changes the import levies and affects the agreed delivery time or part thereof and, as a result, the established expenses incurred by KHB increase. KHB shall inform the Customer of the new prices without delay.
Import levies for the purposes of this provision shall include customs duties, levies and consumption taxes. KHB may rescind the unperformed portion of the contract without incurring a liability to compensation if the contractually agreed price, freight reimbursement agreements or payment terms, or the possibility of applying such increases or adjustments to freight reimbursement agreements or payment terms, change, are modified, or are declared unlawful by virtue of law or official decree.
3. Delivery time
(1) Deadlines and due dates for deliveries and performances provided by KHB are only approximate timeframes, unless a fixed deadline or a fixed date has been expressly promised or agreed. The delivery period commences upon dispatch of the written order confirmation, but in any case not before the Customer has made all necessary prior arrangements that are required for the proper performance of the contract (documents, permits and deposit payment, if agreed).
(2) The delivery time is deemed observed if the delivery item has left the factory before the delivery time expires, or if the Customer has been notified of readiness for shipment. Early delivery ahead of the delivery date is permitted subject to prior notice. The delivery period can only be observed if the Customer has properly performed its contractual obligations. Appropriate and timely supply of KHB is reserved.
(3) The agreed delivery dates are binding for the Customer. If the contract provides for the Customer to order goods on-demand for certain specified months or weeks, the delivery time specified in this way shall also binding for the Customer.
(4) The delivery period shall be extended as required in the event of measures within the context of industrial disputes, including in particular measures in the context of a legitimate strike or lockout as well as in the case of other unforeseen impediments for which KHB is not responsible, e.g. operational disruptions, pandemic events, force majeure, war, official interventions, to the extent that such impediments evidently have a significant impact on completion or delivery of the delivery item and were unavoidable despite KHB acting with reasonably diligence. If the Customer cannot be expected to accept the delivery or service due to the delay, taking into account the mutual interests, the Customer may rescind the contract by promptly issuing a written declaration to KHB.
KHB shall not be held responsible for the aforementioned circumstances, even if they arise during an already ongoing delay. In important cases, KHB will inform the Customer as soon as possible at the beginning and end of such impediments. KHB shall be authorised to rescind the contract insofar as such circumstances significantly impede the delivery or service or render them impossible for KHB, provided the impediment is not only of a temporary nature.
(5) In the event of a default of performance, the Customer shall be authorised to rescind the contract that relates to the delayed individual delivery after fruitless expiry of a grace period to be set by the Customer. KHB is only liable for the resulting damages to the extent such damages were foreseeable for the company’s management. The claim for damages shall in any case be limited to the total amount of the damage evidenced by the Customer, with a maximum liability cap of EURO 500,000.00.
(6) KHB is entitled to make partial deliveries.
(7) In the case of contracts with continuous delivery, KHB must be informed of the on-demand details and allocations in roughly equal monthly quantities by no later than six weeks before the beginning of the respective month of delivery. If on-demand orders are not placed or allocated in due time, KHB shall - after having set a reasonable grace period - be at liberty to allocate the goods and deliver them, or - again after setting a reasonable grace period - to refuse fulfilment of the undelivered portion of the contract and claim damages. If KHB is in default with a partial performance, the Customer may only assert claims with regard to said partial performance, unless the partial performance is of no interest to him.
(8) The statutory provisions shall apply in the event of a default of acceptance.
4. Payment, payment default, offsetting, retention of title, assignment
(1) Unless confirmed otherwise by KHB in writing, invoices are payable in their net amount within 30 days from receipt of the invoice. The date a payment is received by KHB shall be authoritative. If the Customer fails to make a due payment, interest shall be charged on the outstanding amounts at 9% p.a. above the base interest rate from the payment due date. KHB will also invoice dunning expenses at a lump sum amount of EURO 100.00 for each dunning level.
(2) KHB is authorised to assign claims arising from all business relations with the Customer. The Customer is not authorised to assign claims against KHB without KHB’s prior written consent.
(3) If the Customer is in arrears with any payment obligations owed KHB, all existing claims shall fall due for immediate payment.
(4) Offsetting against the Customer’s counter-claims or the withholding of payments on the basis of such claims is only permissible if the counter-claims are undisputed or have been legally established, or if the counter-claims represent the consideration payable for the same order under which the respective delivery was made or would have been made. Unless agreed differently, discounts and other deductions are not permitted.
(5) If KHB becomes aware that the Customer is in financial difficulties after conclusion of the contract, KHB may demand security to be deposited or only perform outstanding deliveries against advance payment. Financial difficulties include, in particular, out-of-court composition offers and/or applications for the opening of judicial composition and/or insolvency proceedings and/or the listing in a debtor list and/or a “blacklist” and/or credit ratings that are unfavourable from KHB’s perspective.
(6) The Customer is aware that KHB intends to take out credit insurance through a credit insurer with regard to sales contracts and deliveries. If KHB’s credit insurer withdraws from insuring a credit volume related the respective Customer in whole or in part prior to delivery, KHB shall be authorised to withhold, at KHB’s discretion, all or part of the delivery until the invoice has been settled in full.
(7) If partial payments have been agreed, the entire remaining debt shall - irrespective of the due date of any bills of exchange - fall due for immediate payment if the Customer is in arrears with an instalment for 14 days, experiences financial difficulties, or ceases to make payments.
(8) Unless otherwise agreed in writing, the Customer is prohibited from assigning any claims arising from this contract to third parties.
(9) Incoming payments from the Customer must always be applied in accordance with Section 366 (2) German Civil Code.
(10) The Customer shall bear all fees, costs and expenses incurred by KHB, or a third party to which KHB has assigned a claim, as a result of or in connection with a successful debt collection measure against the Customer outside the Federal Republic of Germany.
5. Shipment and transfer of risk
(1) Unless otherwise agreed, delivery is EXW (INCOTERMS in the latest version, seller’s warehouse). The risk shall pass to the Customer, irrespective of the cost burden, as soon as the goods have left the KHB factory or warehouse, or have been handed over for carriage to the Customer, the forwarder, the carrier or any other person or institution within the factory or warehouse. This also applies if partial deliveries are made, or if KHB has assumed other performances (e.g. shipment). If shipment or handover is delayed due to circumstances attributable to the Customer, the risk shall pass to the Customer on the day the goods are ready for dispatch and KHB notifies the Customer accordingly. If collection of the goods by the Customer or its agent has been agreed, the risk shall pass by no later than the end of the second day after dispatch of the notice advising that the goods are available for collection. If KHB is involved in the freight charter in any way, KHB shall act exclusively in the capacity of the Customer’s agent. Storage costs incurred after the risk has passed shall be borne by the Customer. If goods are put into storage at KHB, the storage costs amount to 0.25% per full week of the invoice amount for the goods to be stored. The right to claim and establish higher or lower storage costs remains reserved.
(2) The Customer must notify KHB of the desired mode of shipment promptly after contract conclusion. If KHB is not notified within 7 days from contract conclusion, KHB shall be at liberty to determine the shipping route and means of transport.
KHB shall not be liable for any difficulties (damage, delay) arising during transport. The Customer shall bear the costs of reloading and/or forwarding arising from missing or incorrect destination information, including in cases where the parties have agreed on the costs of the shipment to be borne by KHB on an exceptional basis. KHB will package the goods at its own discretion.
(3) Insurance will not be covered by KHB unless requested by the Customer in writing.
(4) The “INCOTERMS” apply in their latest version.
6. Retention of title
(1) KHB reserves ownership title in the goods until all its claims against the Customer from the business relationship, including future claims arising from contracts concluded simultaneously or at a later date, have been settled.
This shall also apply if individual or all claims of KHB have been included in a current account balance that has already been finalised and accepted.
The Customer shall store all goods subject to retention of title free of charge for KHB.
(2) The processing, modification and installation of the goods subject to retention of title shall be carried out on behalf of KHB as the manufacturer within the meaning of Section 950 German Civil Code, without obligation for KHB and free of charge. The processed and modified goods or goods combined with KHB products are considered to be goods subject to retention of title within the meaning of these provisions.
If the goods subject to retention of title are processed, combined or inseparably mixed with goods from other manufacturers, KHB shall acquire joint ownership of the new object in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used at the time of processing or mixing. In the event that no such joint ownership is acquired by KHB, the Customer hereby authorises the transfer its future ownership or – in the aforementioned ratio – joint ownership of the newly created object to KHB for security purposes and shall keep it in safe custody for KHB. If the goods subject to retention of title are combined or inseparably mixed together with other materials to form a uniform product and one of the other materials is to be regarded as the main component, KHB shall, insofar as it owns the main component, transfer joint ownership of the uniform product to the Customer on a pro rata basis as specified in subclause 1. The resulting joint ownership rights shall be deemed goods subject to retention of title within the meaning of these provisions.
(3) If KHB rescinds the contract due to a breach of contract by the Customer – including, in particular, payment default – KHB shall be authorised to release the goods subject to retention of title. KHB reserves the right to claim damages.
(4) If the Customer apparently acts as a reseller, the Customer shall be authorised to resell the goods subject to retention of title in the ordinary course of business - in no case, however, after the application and/or opening of judicial or extrajudicial composition proceedings and/or insolvency, reorganisation or restructuring proceedings, and/or entry in a debtor list and/or a “blacklist” – and under the condition that the claim arising from the resale is assigned to KHB as follows: The Customer hereby assigns to KHB all claims together with all ancillary rights as will accrue to it from the resale to buyers or third parties, irrespective of whether the goods subject to retention of title are resold without or after processing. If KHB holds joint ownership in the goods subject to retention of title, the assignment shall be made on a pro rata basis that reflects KHB’s joint ownership. Other claims that take the place of the goods subject to retention of title or otherwise arise with respect to the goods subject to retention of title, such as insurance claims or claims arising from tortious acts in the event of loss or destruction, are also assigned. KHB hereby accepts the assignment.
If the Customer adds the claim from the resale of the goods to an existing current account with his buyers, the current account claim shall be assigned in full. The balance shall be replaced by the recognized balance that is deemed assigned up to the amount of the original current account claim. KHB hereby accepts the assignment of these claims.
If the Customer resells the goods subject to retention of title on credit, the Customer shall be obliged to secure the rights of the party who has retained title (KHB) in the resale transaction.
The Customer remains authorized to collect the claim after the assignment. KHB may only revoke the associated direct debit authorization if the surety is liquidated. KHB remains authorised to collect the claim, but undertakes not to collect the claim for as long as the Customer duly observes its payment obligations.
KHB may require the Customer to notify KHB of the claim assignment and debtor as well as all necessary and useful data for the determination and claim enforcement (in particular, complete name and address of the debtor, reason for the claim, invoice number, invoice date, claim amount, due date, expected debtor rights or objections / defences), provide all information required for collection, hand over the relevant documents and notify the debtors of the assignment. If the goods are resold together with other goods not owned by KHB, the Customer’s claim against the buyer shall be deemed assigned in the amount of the delivery price agreed between KHB and the Customer.
(5) The Customer is not authorised to dispose over the goods subject to retention of title in any other way, the goods may in particular not be pledged or transferred for security.
The goods shall be excluded from the bulk assignment of an entire warehouse for collateral surety by means of an express declaration to the collateral-taker.
If third parties access the goods subject to retention of title, in particular by means of attachment, the Customer shall immediately inform them of KHB’s ownership and notify KHB accordingly to enable KHB to enforce its proprietary rights. The Customer shall be liable to KHB if the third party is found not to be in a position to reimburse KHB for the reasonable judicial or extra-judicial costs incurred in this context.
(6) The Customer is obliged to adequately insure the goods subject to retention of title at its own expense against the usual risks.
(7) If the law of the country where the delivered goods are located does not permit a right to retain title, but instead permits the seller to reserve other rights to the delivered goods, KHB shall be at liberty to exercise any and all of these rights. The Customer is obliged to cooperate in these measures, which KHB intends to take in order to protect its right of ownership or rights in lieu of ownership title.
(8) KHB shall release the goods subject to retention of title, as well as the goods or claims taking their place, to the extent their value exceeds the amount of the secured claims by more than 50%. KHB may select the collateral to be released in its reasonable discretion.
The following provisions are without prejudice to claims under the Product Liability Act.
(1) The Customer must promptly and diligently inspect the goods and notify any defects in writing without delay, but in any case within 2 working days after gaining the authority to dispose over the delivery item. Defects that a diligent inspection cannot detect within this period must be notified to KHB in writing without delay, but in any case within 1 working day after their discovery.
(2) If an effective notice of defects was submitted, the Customer shall at KHB’s request be obliged to have the quality of the goods ascertained by an impartial expert. Claims based on defective goods shall lapse if the Customer does not give KHB or its upstream suppliers the opportunity to inspect the claimed defects on-site or refuses to promptly provide samples as requested. All claims for defects shall be rendered null and void if the processing of the goods is not halted immediately after a defect is discovered, or if a mixing or combination of KHB’s goods with goods from other manufacturers is not ceased, and in these cases until the goods have been expressly released by KHB or its suppliers. The Customer shall concurrently inform KHB of the details of those buyers who received the goods in question.
The defective goods must be returned to KHB with freight prepaid upon KHB’s request. If a claim for defects is justified, KHB shall reimburse the costs of the most cost-effective shipping option; this shall not apply if such costs increase due to the goods not being located at their place of intended use.
(3) KHB accepts no liability for consequences caused by improper use of the goods or by non-compliance with instructions of use provided by KHB.
(4) In the delivered goods are defective, KHB shall, at its own discretion and within a reasonable period of time, remedy the defect or deliver a defect-free item (subsequent performance). The Customer may reduce the price or rescind the contract if it becomes clear, after two attempts at subsequent performance, the subsequent improvement or substitute delivery is unreasonably delayed, has become impossible or has failed, . If KHB is at fault for the defect, the Customer may claim damages in accordance with clause 8.
(5) In the case of defects that affect goods from other manufacturers or suppliers and that KHB cannot eliminate for legal or substantive reasons, KHB shall be at liberty to assert its warranty claims against the manufacturers or suppliers on the account of the Customer or assign them to the Customer. Warranty claims against the seller shall only arise in the case of such defects subject to the other conditions and in accordance with these General Conditions of Sales and Delivery if the judicial enforcement of the aforementioned claims against the manufacturer or supplier has been unsuccessful or, for example, is infeasible due to insolvency. The limitation period of the respective warranty claims of the Customer against KHB is suspended for the duration of the legal dispute.
(6) The Customer’s claims become statute-barred within one year, starting from delivery of the object of purchase to the buyer. This shall also apply to claims for compensation of consequential damages caused by a defect.
(7) If claims for recourse against KHB arise from a claim against the Customer brought by the Customer’s buyer, KHB shall bear liability as if it had sold directly to the end Customer. If an end Customer makes a claim against the Customer for a reason that may have its cause in the defect of the sold goods, the Customer shall be obliged to inform KHB accordingly without delay. The Customer shall also be obliged to bring a legal claim against its buyer, unless KHB accepts its obligation to indemnify the Customer or its buyers, or waives the execution of the judicial proceedings. The Customer must give KHB the opportunity to join the litigation if the Customer faces legal action brought by the Customer’s buyer.
(8) The Customer assumes all potential claims against KHB arising from a possible infringement of third-party property rights as a result of the importation or use of the goods delivered by KHB, provided such infringement is not the result of wilful intent or gross negligence on the part of KHB.
8. Liability for damages
(1) The liability of KHB for damages, irrespective of the legal reason, including in particular for impossibility, delay, defective or incorrect delivery, breach of contract, violation of duties in contractual negotiations and tort is, insofar as liability hinges on culpability, limited in accordance with the provisions of this clause 8.
(2) KHB shall not be liable for simple negligence on the part of its corporate bodies, legal representatives, employees or other vicarious agents, unless it concerns a breach of material contractual obligations. Material obligations include the obligation to make timely delivery of the delivery item, its freedom from defects of title, as well as defects of quality that impair its functioning or suitability for use to a greater than insignificant extent, as well as advisory, protective, and custodial duties of care that are intended to enable the Customer to use the delivery item in accordance with the contract, to protect the life and limb of the Customer’s personnel, or to protect of the Customer’s property from significant damage.
(3) Insofar as KHB is liable for damages on the basis of the preceding subclause (2), KHB’s liability is limited to damages that were foreseeable for KHB at the time of contracting as a possible consequence of a breach of contract, or ought to have been foreseeable when applying customary diligence. Indirect damages and consequential damages resulting from defects of the object of delivery will only be compensated if such damages are to be expected as typical for the intended use of the delivery item.
(4) In the case of liability for simple negligence, KHB’s obligation to compensate for property damage and resulting further pecuniary losses shall be limited to an amount of EUR 500,000.00 per claim, including in cases that involve a breach of material contractual obligations.
(5) The above exclusions and limitations of liability shall equally apply for the benefit of the corporate bodies, legal representatives, employees and other vicarious agents of KHB.
(6) Insofar as KHB provides technical information or acts as a consultant and the information or advice provided in this context does not form part of the contractually agreed scope of services owed by KHB, it shall be provided free of charge and to the exclusion of any liability.
(7) The limitations of this clause 8 shall not apply to the liability of KHB for wilful intent, to guaranteed characteristics of properties, to injury to life, limb or health, or to claims under the Product Liability Act.
9. Biocidal products
KHB expressly notes that all goods offered and/or sold by KHB are excluded from use as biocidal product(s) in the EU and Switzerland in accordance with Regulation (EU) No. 528/2012. This must also be observed when goods are resold / onsold.
To the extent KHB supplies products that have been registered as transported isolated intermediates within the meaning of Regulation (EC) 1907/2006 (REACH), such products must handled and used by the Customer only in accordance with the strictly controlled conditions defined in Article 18, paragraph 4 of the REACH Regulation. The Customer assumes the warranty and liability in this respect.
The Customer is responsible for fully satisfying the necessary documentation requirements in accordance with the strictly controlled conditions and for forwarding said documentation to KHB at KHB’s request without delay.
11. Place of performance
Place of performance is Hamburg, Germany. The place of performance for all obligations owed by the Customer is the registered office of the seller (KHB).
12. Place of jurisdiction and applicable law
The law of the Federal Republic of Germany shall apply to the exclusion of the conflict of laws provisions under international private law. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
The place of jurisdiction for all disputes arising from contracts concluded with KHB is Hamburg, Germany. If KHB is a plaintiff, legal proceedings may also be commenced at the Customer’s principal place of business.
13. Miscellaneous provisions
The legal ineffectiveness of individual provisions stipulated in these General Terms of Sales and Delivery shall be without prejudice to the remaining provisions.
In the event the contract or these General Conditions contain contractual loopholes, these loopholes shall be provided for by such legally effective provisions as the parties would have agreed in light of the contract’s commercial objectives and provisions’ purpose, had they been aware of the contractual loophole.
Transactions with businesses are treated equally to transactions with legal entities governed by public law and special funds governed by public law.
These General Conditions of Sales and Delivery shall also govern all future transactions with the Customer. They are published on the KHB internet homepage (https://www.khboddin.com/agb), with the effect that the contractor is excluded from the plea of not having received them. The same applies with respect to the applicable KHB Code of Conduct (see www.khboddin.com/code-of-conduct ).
All previous agreements shall lapse upon publication of these General Conditions.
Last modified: 07 June 2022