General Purchasing Conditions*
KH Boddin Group**

Scope of application:
KH Boddin GmbH**
KHB Feed GmbH**

Hartzloh 25
22307 Hamburg

Phone: +49-40-227129-0
Fax: +49-40-227129-30
e-mail: info@khboddin.com
www​.khboddin​.com

 

1. Scope of appli­cation, general provisions

(1) These General Purchasing Condi­tions shall govern all contracts for delivery / services deliverable to one or several companies that are part of KH Boddin Group**.

(2) Inquiries, orders and deliveries are based exclu­sively on these General Purchasing Condi­tions (www​.khboddin​.com/agb) and our Code of Conduct (see www​.khboddin​.com/​c​o​d​e​-​o​f​-​c​onduct), which are both available on the Internet (and the plea of unawa­reness or non-receipt is thus excluded). These General Purchasing Condi­tions apply exclu­sively. Terms and condi­tions of the Supplier or third parties that contradict or deviate from these General Purchasing Condi­tions shall not apply unless their appli­cation was expressly approved in writing. This shall also apply if a delivery is accepted without reser­vation in awareness of the Supplier’s conflicting or different terms and conditions.

(3) Unless provided for differ­ently in the following provi­sions, the inter­pre­tation of the various contract clauses shall follow the latest version of the INCOTERMS.

(4) Devia­tions from these General Purchasing Condi­tions shall only be legally binding with the express written confir­mation from the Customer.

(5) In the event individual provi­sions of these General Purchasing Terms or parts thereof are legally ineffective, the effec­ti­veness of the remaining provi­sions or parts thereof shall remain without prejudice.

(6) These General Purchasing Condi­tions shall also govern all future transac­tions with the Supplier. They are published on the KHB internet homepage (www​.khboddin​.com/agb), and the Supplier is thus excluded from the plea of not having received them. All previous agree­ments shall lapse upon publi­cation of these General Purchasing Conditions.

 

2. Order fulfilment, environ­mental protection, energy management, health and safety, quality

(1) The supplied products must conform with the agreed speci­fi­ca­tions and comply with the recognized rules of technology, the appli­cable legal and official regula­tions, and any further contrac­tually agreed requi­re­ments. The Supplier must in parti­cular observe the appli­cable accident prevention regula­tions as well as the generally recognized occup­a­tional health and safety rules.

(2) In as far as the Supplier is contrac­tually obliged to operate a management system for quality, environ­mental, energy management or for occup­a­tional health and safety or associated regula­tions, the Customer shall be autho­rised to inspect such system and its imple­men­tation during normal business hours after giving prior notice. The Supplier is in this context respon­sible for clari­fying questionable product designa­tions contained in our order with regard to the type and quality of goods, and in this respect bears the risk of wrong delivery.

(3) The Supplier is prohi­bited from using any carci­no­genic substances.

(4) The Supplier must conti­nuously adjust the quality and, if appli­cable, the energy efficiency of the deliverable products and services to reflect state-of-the-art technology and draw the Custo­mer’s attention to oppor­tu­nities for impro­vement and possible technical modifications.

(5) The invol­vement of subcon­tractors shall require the Custo­mer’s prior written consent. If the Supplier involves subcon­tractors in the perfor­mance of the contractual obliga­tions owed to the Customer, the Supplier must impose the same obliga­tions on the subcon­tractors as he has assumed vis-a-vis the Customer and assure compliance with them.

 

3. Order accep­tance, samples

(1) The Supplier must accept the order by issuing a written confir­mation without delay, and in any case by the next working day after receipt of the order. Our order is no longer binding once this period has lapsed.

(2) The Supplier is in this context respon­sible for clari­fying questionable product designa­tions contained in our order with regard to type and quality of the goods, and thus bears the risk of wrong delivery.

(3) If the Customer has provided the Supplier with a sample, the order shall be based on such sample and the sample’s properties shall be deemed assured properties of the product to be supplied. The same shall apply to samples that have been provided by the Supplier and recognized by the Customer as autho­ri­tative for the order.

(4) The Customer is autho­rised to rescind the contract at any time by issuing a written decla­ration stating the reasons if the ordered products or materials cannot be used, or if they can only be used with signi­ficant additional effort, due to circum­s­tances that arise after contract conclusion and are attri­bu­table to the Supplier (e.g. unsatis­factory or lacking compliance with statutory requi­re­ments), or if the Supplier’s financial situation deterio­rates in a way that renders a contrac­tually conforming delivery unlikely.

 

4. Transfer of risk and transport costs

(1) Unless agreed otherwise, the Supplier shall bear the risk until the delivery is handed over at the place of destination.

(2) Unless agreed differ­ently, the price includes packaging as well as delivery and transport to the shipping address specified in the Custo­mer’s order. Insofar as the agreed price does not include the packaging and the charge for packaging – that is not only provided on a loan basis – is not expressly specified, the amount to be charged shall be based on the actual costs incurred.

(3) The Supplier is obliged to accept return delivery of the packaging material free of charge at the Custo­mer’s request.

 

5. Delivery, delivery time, packaging

(1) The Supplier shall only be autho­rised to make partial deliveries with the express consent of the Customer.

(2) The Supplier must mark the delivery in the transport documents in accordance with the speci­fi­ca­tions specified in the order. In addition, the Custo­mer’s order number must always be specified in the transport documents.

(3) The dates of delivery or perfor­mance stated in the order are binding. The Customer may reject early deliveries that arrive before the agreed delivery date. The Supplier shall be required to inform the Customer immediately in writing if circum­s­tances occur or become apparent that indicate that the agreed delivery date cannot be met. A reminder notice shall not be required in this case.

(4) If the latest permis­sible date for delivery is specified in the contract, the Supplier shall come into default at the end of the respec­tively specified day without the Customer being required to issue a dunning letter. The Customer shall be entitled to the statutory claims for delayed delivery. The Customer is in parti­cular autho­rised to set a reasonable period for subse­quent perfor­mance and to demand compen­sation for non-perfor­mance after the fruitless expiry of said period.

(5) Unless required for legal reasons or otherwise specified in writing by the Customer, the Supplier shall ensure that no references to the manufac­turer and/or the Supplier and/or his and his buyers and/or upstream suppliers are present on or inside the goods, or outside or inside the packaging.

(6) If a perfor­mance is impeded by an event of force majeure, the Customer shall have the right to demand the perfor­mance to be rendered at a later date. The Customer is in this case obliged to notify the Supplier without delay.

 

6. Requi­re­ments for supplied products/materials/mixtures

(1) The Supplier shall assure and guarantee that the supplied products, materials and mixtures comply with the requi­re­ments under the European and German laws governing materials and chemicals, in parti­cular that they are properly regis­tered or pre-regis­tered in accordance with Regulation (EC) No. 1907/2006 (REACH), including in parti­cular for the type of use notified by the Customer, if appli­cable, and that they are properly classified, labelled and packaged in accordance with Regulation (EC) No. 1272/2008 (CLP). If the German and European regula­tions stipulate different requi­re­ments, the Supplier under­takes to observe the more stringent requirements.

(2) Suppliers with regis­tered office outside the European Union are obliged to appoint a qualified “Only Repre­sen­tative” in accordance with Art. 8 REACH (herein­after referred to as “OR”) with regis­tered office in the European Union, and to impose on such person the perfor­mance of all obliga­tions owed by an importer under REACH, insofar as a supplied product, supplied material, supplied mixture or an ingre­dient contained in a supplied mixture is subject to regis­tration under REACH. The name and address of the OR must be provided to the Customer prior to the first delivery. Changes to the person appointed OR and abandonment the OR’s function must be notified to the Customer in writing without delay.

(3) The Supplier is obliged to provide the Customer with the legally prescribed product infor­mation, including in parti­cular safety data sheets and infor­mation pursuant to Art. 32 REACH as well as similar product infor­mation (e.g. infor­mation on occup­a­tional health and safety, use, labelling and processing), which must be made available unsoli­cited, free of charge and in a suitable form in due time before the first delivery. This applies accord­ingly to any updates.

(4) The Supplier must notify the Customer in writing before the first delivery if and to the extent

the material or ingre­dient in a supplied mixture is subject to restric­tions under Art. XVII REACH
one of the supplied materials is listed in Annex XIV REACH or in the candidate list pursuant to Art. 59 REACH, or if
ingre­dients of supplied mixtures are listed in Annex XIV REACH or the candidate list pursuant to Art. 59 REACH, unless the concen­tration of the substance is below 0.1 % of the mass and below the lowest limits specified in Directive 1999/45/EC or in Part 3 of Annex VI to Regulation (EC) No 1272/2008, according to which the mixture is classified as dangerous.

The Supplier must notify the Customer in writing without delay of any innova­tions or changes with regard to the above aspects (e.g. new/changed restric­tions or inclusion in the candidate list) that arise after the first delivery. The Supplier’s notifi­cation must provide the Customer with suitable infor­mation regarding the respective reason for notification.

(5) If products, materials or mixtures do not comply with the appli­cable requi­re­ments under the law governing the respective materials or chemicals, or if they are subject to compulsory notifi­cation pursuant to the preceding paragraph 4, the Customer shall be entitled to cancel affected orders free of charge, refuse its accep­tance and return goods already received at its own expense or, if a return is infea­sible or unrea­sonable or is rejected by the Supplier, dispose the goods at the Supplier’s expense. Sentence 1 shall apply accord­ingly if the Supplier violates obliga­tions resulting from clause 6.2 above.

(6) The Supplier shall indemnify the Customer against all costs, expenses, damages and other disad­van­tages (including conse­quential damages) caused directly or indirectly as a result of the materials’ or mixtures’ non-compliance with the requi­re­ments laid down in the preceding indents, or if the Supplier has otherwise breached his obliga­tions laid down in the preceding indents.

 

7. Inspection on defects, warranty rights

(1) Our claims for defects shall be governed without limitation by the statutory provisions.

(2) It is the Custo­mer’s respon­si­bility to inspect the delivery within a reasonable period of time on quantity and quality discrepancies and to submit a corre­sponding notice of defects. Concealed defects are to be notified within a reasonable period of time after their detection.

(3) An express or implied accep­tance of samples or specimens does not constitute a waiver of the Customer’s warranty rights.

(4) The Supplier assumes a warranty period of 24 months commencing upon risk transfer. Upon receipt of the Custo­mer’s notice of defects (at least in written form) by the Supplier, the limitation period for warranty claims shall be suspended until the Supplier rejects the Custo­mer’s claims, declares the defect rectified, or otherwise refuses to continue negotia­tions on the Custo­mer’s claims. In the case of substitute delivery and subse­quent impro­vement, the warranty period for replaced and improved goods / parts / packaging shall commence anew, unless the Customer ought to assume, in light of the Supplier’s conduct, that the Supplier did not feel obliged to take the measure, but instead rendered substitute delivery or subse­quent impro­vement only for goodwill or similar reasons.

(5) The Customer shall be autho­rised to return defective goods to the Supplier at the Supplier’s expense from the place of desti­nation or any other place where the goods are located at the time the defect is disco­vered. This does not apply if the goods are deemed approved.

(6) In the case of incom­plete delivery, a failure to submit a notice of defects in good time shall only result in the Customer losing the right to substitute delivery or contract rescission. In no case will the Customer have to pay for estab­lished short deliveries.

 

8. Product liability

(1) The Supplier shall indemnify the Customer from all third-party claims to the extent the Supplier is respon­sible for product damage.

(2) The Supplier is in this context also obliged to reimbur­sement of expenses pursuant to Sections 683 and 670 BGB that arise from or in connection with a product recall measure imple­mented by the Customer. The Customer shall make its best effort to inform the Supplier of the details and scope of the recall measures to be carried out and give the Supplier an oppor­tunity to provide feedback.

(3) The Supplier under­takes to maintain product liability insurance with a cover amount of € 5 million per claim. This is without prejudice to any additional warranty claims. The Customer may at any time request the Supplier to provide written evidence of the valid insurance cover by means of a copy of the third-party liability insurance policy; lower cover amounts must be agreed with the Customer in the individual case.
This provision is without prejudice to claims for damages – irrespective of whether covered by the insurance policy or not.

 

9. Property rights

(1) The Supplier shall be liable, in accordance with subclause 2, for assuring that its delivery does not infringe any third party property rights in countries of the European Union or third countries where the goods are produced.

(2) The Supplier shall indemnify the Customer on first request against related third party claims and all necessary expenses incurred in connection with the claim. This does not apply if the Supplier demons­trates that it is not at fault for the property right infrin­gement, nor ought to have been aware of it when exercising the diligence of a prudent business person.

(3) If the supplied products are subject to statutory marketing restric­tions, the Supplier must notify the Customer in writing without delay, and in any case by no later entering into a contract with the Customer.

 

10. Dangerous goods

(3) Before entering into a contract, the Supplier must give express notice if the offered and deliverable goods are classified as dangerous goods and advise of the corre­sponding code numbers. The Supplier shall also be respon­sible for ensuring that all legal regula­tions and ordinances relating to the deliverable goods, including packaging regula­tions, are complied with and that the regula­tions under the laws governing dangerous goods and regula­tions are observed and complied with, in parti­cular also by the forwarding agents and logistics service providers.

 

11. Origin of goods, prefe­rence certificates

(1) Upon accep­tance of an order, the Supplier under­takes to notify the non-prefe­rential (commercial) origin of the goods, deter­mined in accordance with the legal provi­sions appli­cable at the time of delivery.

(2) By accepting an order, a Supplier with regis­tered office in the EU under­takes to, in cases where goods are consi­dered to be prefe­rential EU products in accordance with the rules of origin of one or more prefe­rential agree­ments, send the Customer a long-term Supplier decla­ration (“LTSD”) issued in accordance with the EU regulation appli­cation at the time of delivery. Our material number, commercial designation, country of origin, cumulation note and statis­tical commodity code (HTS code) must be stated in the LTSD.

(3) In the case of deliveries from non-EU countries, the Supplier is obliged to attach a (prefe­rential, if appli­cable) proof of origin to the delivery. This proof of origin must be issued in accordance with the regula­tions of the respective (prefe­rence, if appli­cable) agreement appli­cable in the goods’ desti­nation country at the time of their expected importation.

(4) If LTSD’s or (prefe­rential) proof of origin documents are issued wrongly, the Supplier shall be liable for any resulting damages, including any public foreign or domestic duties and penalties.

(5) The Supplier warrants that the Supplier’s company, its affiliates as well as the directors, execu­tives and agents are not listed in any EU-issued embargo or sanction regula­tions or, if appli­cable, any appli­cable U.S. sanctions regime. In the event of culpable non-compliance with these obliga­tions or provision of incorrect infor­mation, the Supplier shall be liable for all resulting damages resulting, including any public charges and penalties.

 

12. Retention of title

(1) Insofar as the Customer provides the Supplier with materials and inter­me­diary products, the Customer reserves ownership title in such materials and products.

(2) Any processing or modifi­cation of these materials and inter­me­diary products by the Supplier shall be carried out on behalf of the Customer. If such goods are processed together with other goods that are not the Customer’s property, the Customer shall acquire joint ownership of the new goods in the ratio of the value of KHB’s goods to the other processed goods at the time of processing.

(3) If the materials and inter­me­diary products provided by the Customer are combined, mixed or amalga­mated with other materials that are not the Custo­mer’s property, the Customer shall acquire joint ownership of the new object in the ratio of the value of the Customer’s property to the other materials at the time of the combi­nation, mixing or amalga­mation. If the Supplier’s property is to be regarded as the main component, it is hereby agreed that the Supplier shall transfer his joint ownership to the Customer. The Supplier shall safely store the exclu­sively or jointly owned property on behalf of the Customer. An inclusion of such property in colla­teral surety or any other disposal over such property by the Supplier is not permitted in this context.

(4) Goods that were already paid by the Customer but are returned to the Supplier due to a breach of contract or a defect shall remain the property of the Customer until the payments resulting from the disso­lution of the purchase contract have been refunded. The Supplier is not autho­rised to pledge the paid goods or to assign them as colla­teral surety.

(5) Any retention of title by the Supplier shall only apply if it relates to the Custo­mer’s obligation to pay for the respective goods in which the Supplier has reserved title. Extended or prolonged retention of title is not permitted.

 

13. Prices, invoicing, payment, prohi­bition of assignment

(1) The prices specified in the Customer’s order are binding.

(2) The invoice shall be issued by the fifth working day of the month following the delivery. The Customer can only process and pay invoices if the order number stated in the purchase order is indicated on the invoice. The Customer shall not be respon­sible for any delays resulting from non-compliance with the afore­men­tioned obliga­tions, and the time limits set out in the following subclause 3 shall be extended accordingly.

(3) Unless agreed differ­ently, the Customer shall make payment within 30 days from receipt of the invoice less 3% discount or within 45 days less 1.5% discount, or in the net amount within 60 days. Receipt of the Customer’s transfer instruc­tions by the bank shall suffice for the purpose of deter­mining timely payment by the Customer.

(4) The Customer shall be autho­rised to the offsetting and retention rights provided for under the statutory provisions.

(5) The assignment of claims against the Customer from and in connection with the purchase contract is only permitted with the Customer’s written consent. The Customer is deemed to have granted consent in the case of an assignment to the Supplier’s bank for standard-type general assignments.

 

14. Confi­den­tiality

(1) The Supplier is obliged to keep all illus­tra­tions, drawings, calcu­la­tions and other documents and infor­mation confi­dential for a period of 3 years after contract conclusion. They may only be disclosed to third parties with the express consent of the Customer. The obligation to maintain confi­den­tiality shall continue to apply for the prescribed period after the contractual relati­onship has ended. It shall lapse once the knowledge contained in the illus­tra­tions, drawings, calcu­la­tions and other documents provided has become general knowledge.

(2) An opinion on, disclosure of or reference to the existing business relations with the Customer in publi­ca­tions, on the Supplier’s website or for adver­tising purposes is only permitted with the Custo­mer’s express prior written consent.

(3) The Supplier shall impose the provi­sions of this “confi­den­tiality” clause on its upstream suppliers accordingly.

(4) Unless the Supplier is not at fault for the breach, the Supplier shall be liable for all damages suffered by the Customer as a result of a breach of this obligation.

 

15. Data Protection

The Customer processes personal data in accordance with the GDPR and the German Federal Data Protection Act. The legal basis for data processing is Article 6(1)(B) EU DSGCO (contract initiation and performance).

 

16. Place of juris­diction and appli­cable law

(1) If the Supplier is a business, the exclusive place of juris­diction for all disputes arising directly or indirectly from the contractual relati­onship, including claims for checks and bills of exchange, shall be at the Custo­mer’s place of regis­tered office.

(2) These General Purchasing Condi­tions and the legal relations between the Customer and the Supplier shall be governed by the law of the Federal Republic of Germany under exclusion of the conflict of laws provi­sions and the UN Convention on the Inter­na­tional Sale of Goods or similar inter­na­tional agreements.

(3) In the event individual provi­sions or parts thereof stipu­lated in these General Purchasing Condi­tions are legally ineffective, the remaining provi­sions or part thereof shall remain without prejudice.
Contractual loopholes contained in the contract or these General Purchasing Condi­tions 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.

Last modified: 07 June 2022

General Conditions of Sales and Delivery*
KH Boddin Group**

Scope of application:
KH Boddin GmbH**
KHB Feed GmbH**

Hartzloh 25
22307 Hamburg

Phone: +49-40-227129-0
Fax: +49-40-227129-30
e-mail: info@khboddin.com
www​.khboddin​.com

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.

 

2. Prices

(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.

 

7. Warranty

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.

 

10. REACH

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/​c​o​d​e​-​o​f​-​c​onduct ).

All previous agree­ments shall lapse upon publi­cation of these General Conditions.

Last modified: 07 June 2022