Terms of business
1. General Terms and Effectiveness
All our deliveries, services and offers to purchasers in trade and industry are exclusively based on these General Terms and Conditions of Sale. These terms shall apply even if they are not expressly declared a second time and shall be binding for all future business transactions. Any deviating terms and conditions shall become legally binding only upon our written confirmation. We herewith expressly and finally contradict any of our Purchasers‘ terms and conditions of sale that deviate from ours. They will not be recognized even if after receiving them, we do not revoke them once more.
2. Offers and Orders
Our offers are subject to prior sale and not binding. Orders, price agreements and all other additional agreements shall become legally binding for us only when confirmed in writing or after the presenting of an invoice, otherwise these are not binding for us. Any documentation accompanying our offers shall be valid only with the restriction that we reserve the right to make changes in the course of further technical developments and depending on the economic market situation. If after contract conclusion the Purchaser‘s financial circumstances show a marked deterioration which becomes evident only after the finalization of the contract jeopardizing our entitlement, and the agreed terms and conditions of sale, we shall be entitled to repudiate the purchase contract. Any special agreements entered into with our representatives shall be valid upon our written confirmation only. Any other agreement made verbally, by telephone or telegraph shall require written confirmation for these to be valid.
Our prices offered or agreed upon shall be net plus statutory German V.A.T (MWST) and ex-works Asperg, Germany, without packing, postage or freight costs. The packing materials shall be invoiced at cost price. Neither set-off nor the right of retention are premitted in relation to our accounts receivable. If no express price agreement has taken place, prices valid on the delivery date shall apply. If market or production conditions change on the delivery date of the ordered goods, due to circumstances beyond our control, the prices valid on the date of delivery – e.g. the market prices – shall apply. This shall concern business transactions with non-traders only if delivery is to take place later than 4 months after contract conclusion or within the scope of a continuous obligation. The documents provided with a quotation are applicable under the condition that we reserve all right to effect modifications in the course of further technical developments.
4. Time of Delivery and Performance
Delivery dates quoted by us from the day of the order confirmation are not binding unless definite fixed dates have been agreed upon in writing. The delivery time is assumed on the basis of an undisturbed production process. Partial deliveries and partial performances are permissible and are to be regarded as being a single delivery. If no other terms and conditions have been agreed, the entire quantities of call orders must be accepted within 6 months of contract conclusion. Thereupon and upon prior announcement we shall be entitled to supply any of our warehoused stored goods. In case of delays in delivery and performance due to force majeure events, or events beyond the scope of our responsibility, we shall be entitled to postpone any delivery or performance as long as the force majeure event lasts plus a reasonable start-up period. Damage claims due to delays are excluded. If the disruption continues for longer than one month, the Purchaser shall be entitled, after a suitable grace period, to withdraw from contract as far as any not yet delivered parts are concerned.
5. Delayed Delivery, Impossibility of Performance
Delays in agreed lead-times due to any force majeure events may not be reasons for damage claims or contract withdrawal.
- Shipment oft he goods is charged for the account oft he consignee.
Special designs will be delivered on request.
Europallets will be charged with € 4.50 per piece.
Disposable pallets will be charged with € 15.00 per piece.
Shipment is only possible by truck or sea freight, shipment by air
freight is not possible.
- Foreign:Delivery EXW (ex works).
- Countries:Packaging/pallets will be charged.
7. Delivery and acceptance obligation
In the case of non-standard products we reserve the right to effect an overshipment or short shipment amounting 10% oft he quantities ordered and to effect prior sale of any stock items. Non-standard products are excluded from the right of exchange and return!
8. In the event of price changes, call-off orders and quantity contracts
shall be invoiced in accordance with the latest price list and in accordance with the quantities purchased. Sales contracts for non-standard products shall also be adjusted to the cost-of-livingindex.
All shipments shall take place at the Purchaser‘s risk, as soon as they have left our factory premises, and irrespective as to who bears the freight costs or who carries out the transport. If we carry out the transport, we shall be liable for any damage or injuries caused by ourselves and for any damage or injuries caused by our skilled workers. If transport is carried out by any third parties we shall only be liable for damage or injuries caused during selection , and only for the value of the damaged goods, and only if the Purchaser submits its claims within 5 days in writing.
In order to be able to claim damages, any damage of goods incurred during transport must be certified by Railway, Post Office, or Carrier officials when the goods are taken over from any of them.
KaWe shall take out a transport insurance policy for all deliveries within Germany and abroad.
11. Defects and Complaints
Complaints due to defects must be submitted to us in writing. Any delivered goods must be checked immediately upon arrival at destination. Delivery shall be regarded as accepted if within 8 days after arrival of the goods at the destination, no written complaint of defects has been submitted. For any hidden defects, the statutory period of limitation shall apply. In case of justified complaints, non-defective goods shall be supplied once warranty rights have been excluded. Warranty shall be granted for 2 years, which does not exclude the right of damages for noncompliance with assured properties. We expressly reject additional claims such as reimbursement of labour costs, damages, penalities for delayed delivery etc. The return of goods generally requires our written consent. The return of ordered goods can only take place with our prior consent and will be credited with 15% handling charge of the purchase price. The credit will be granted under the condition that the invoice number and the date of the invoice of the returned goods are indicated within a period of 4 weeks after the delivery of the goods. In addition, any necessary processing costs will also be deducted.
12. Reservation of Proprietary Rights
For goods delivered by us, we reserve an ownership right as long as there are any outstanding liabilities due to unpaid invoices and unpaid incidental expenses. Incidental expenses shall also be those incurred due to any delay on the Purchaser‘s side. In case of several liabilities or open account, reservation of proprietary rights serve as collateral security for the settlement of our accounts without regard to whether some delivery of goods have already been paid or not. When receiving checks or bills of exchange we reserve the proprietary rights in the supplied goods until the checks or the bills of exchange have been discharged and honoured. The Purchaser may resell any goods supplied in the ordinary course of business. In so doing it will be its duty to secure our rights when reselling the secured goods to any third party. Any accounts receivable the Purchaser is entitled to out of the resale, the Purchaser shall assign to us even now to the full extent of the title we have in the sold goods, by way of a collateral security, or at least an amount equalling the price agreed upon between us and the Purchaser for the respectively used or sold reserved goods, without requiring any special agreement in each case.
We agree, upon the Purchaser‘s request, at our own discretion, to release any collateral securities which we are entitled to do, in as much as the amount exceeds the liabilities to be secured by more than 10%. The Purchaser shall be entitled to collect the assigned accounts receivable for us in a fiduciary capacity for as long as they duly discharge their assigned payment obligations towards us. The Purchaser shall be obliged to forward us any incoming amounts until all our amounts receivable have been paid. Upon our request, the Purchaser shall deliver to us – at any time – the addresses of its clients, as well as the figures and invoice amounts of any deliveries. At any time we shall be entitled to inform those third parties about the assignment. The Purchaser shall not be entitled to pawn the reserved „goods“, or pledge them as collateral security. The Purchaser shall be obliged without delay to inform us by telegram or fax of any third party‘s execution enforcement imposed on the reserved goods or on any collateral securities which we are entitled to. We shall be entitled and shall herewith be empowered to take possession of the reserved goods without having recourse to any courts if the Purchaser is in delay of payments due. This way of taking possession shall not be deemed as withdrawal from contract. The Purchaser shall be liable for the remaining monetary deficiency once the withdrawn goods have been turned to account.
13. Payment Terms
Our invoices shall be payable as follows:
3% discount in case of advance payment and collection by the Bank, 2% discount within 14 days after the invoice date. Net 30 days after the invoice date. Purchasers who are not our regular customers or who place an initial order with us shall receive our goods against advance payment. Special payment terms for special productions.
If payment by bill of exchange has been agreed, all charges for bills of exchange and expenses will have to be borne by the Purchaser.
If the payment term is not observed, statutory interest for delay shall be charged. Immediate payment of all accounts payable shall be imposed if due to delay in payment of (a partial) amount, summary proceedings for recovery of debt will be imposed by a court. All legal or other costs related to collection must be reimbursed. Payment shall be deemed to have taken place as soon as it is at our disposal. In case of checks, payment shall be deemed to have taken place when the check has been honoured. The acceptance of a bill of exchange takes place upon special payment agreements. Payments by bills of exchange do not count as cash payments and do not entitle the Purchasers to claim any discounts.
14. Very Small Orders
For orders within Germany below EUR 100.– net order value a processing fee of EUR 15.- will be charged.
For orders within the EU countries below EUR 500.– net order value a processing fee of EUR 20.– will be charged.
For orders from NON-EU countries below EUR 1,000.– net order value a processing fee of EUR 30.– will be charged.
15. Limitation of Liability
Excluded shall be any compensation for defects in our goods deliveries and performance including consequential harm, abortive retroactive performance or violation of any other contractual or preliminary contractual obligations (indebtedness when entering into the contract) of any kind irrespective of the legal reason and notwithstanding the above paragraphs 5 and 11. Also excluded shall be the liability for claims outside this contract, in particular for tortious acts. However, there shall be no exemption from liability:
if our employees are accused of causing damage intentionally or by gross negligence if due to any non-performance of major contract obligations the purpose of this contract (cardinal duties) is imperilled
if the liability is based on the warranty for grade and quality of the subject matter. In all cases indemnity /liability shall be restricted to the replacement of a typical contractual damage.
16. Applicable Law, Legal Venue, Place of Performance
Applicable law, legal venue, place of performance for delivery and payment is the registered office of the company KaWe Asperg, regardless of whether the contrary is stated in the terms and coditions oft he order or whether the sale has been effected franco destination. Legal Venue for any legal rights and obligations also concerning bills of exchange and checks shall be Ludwigsburg. Any disputes shall be taken before a court of arbitration of Ludwigsburg Chamber of Industry and Commerce provided Purchasers are fully qualified business men, or legal persons under public law, without any General Legal Venue and unless agreed otherwise upon conclusion oft he business transaction. However, should the buyer refuse to recognize the decisions of the court of arbitration we shall have the right to appeal to a court of general jurisdiction in accordane with the German legal system should the buyer refuse to recognise the decisions of the court of arbitration. These mutual terms and conditions and all agreements within the framework of our business relations shall be governed and construed in accordance with the laws of the Federal Republic of Germany.
17. Severability of Contract Provisions, Storing of Computer Data
If any provision of these business terms or any condition or provision of any other agreements should be or become void or unenforceable, the validity of the remaining provisions shall remain unaffected. We shall store the data within the scope of our mutual business relationship pursuant to the German Federal Data Protective Law. (BDSG)
18. Use of Graphical Material and KaWe Logos
19. Special conditions for KaWe product distribution in other EU member states
The customer located in another EU country in relation to the company KaWe undertakes to ensure its compliance with the country-specific manufacturer’s obligations at its own expense to comply with the laws of Directive 2006/66/EC on Batteries (e.g. notification and registration obligations), Directive 94/62/EC on Packaging (for example, a licensing obligation, a registration obligation or an obligation to affix certain labeling), as well as of Directive 2012/19/EU on Waste Electrical and Electronic Equipment (for example, a registration obligation or an obligation to affix certain labeling). With regard to compliance with the obligation, and for manufacturers to comply with the legislation established by the Waste Electrical and Electronic Equipment Directive, KaWe draws the customer's attention, in particular, to the fact that the customer, as an importer of the goods, is directly considered a manufacturer in accordance with clause 1 f) iii, Article 3 of the Waste Electrical and Electronic Equipment Directive, and already in accordance with the law is obliged to fulfill the relevant requirements. The customer undertakes to inform KaWe as soon as it becomes aware of whether the country-specific requirements of these laws on implementing the agreement are contradictory, and whether KaWe itself has to fulfill these obligations in the respective country of destination. In these cases, the customer is obliged to support KaWe in fulfilling the respective obligations.
If a client located in Germany intends to further distribute the product in other EU countries, it undertakes to the company KaWe to ensure compliance at its own expense as well as by the client itself in the country of destination, with the laws specific for the country of manufacture on the transfer of the Directive on Batteries, Directive 94/62/EC on Packaging and Directive 2012/19/ EU on Waste Electrical and Electronic Equipment (WEEE). The Customer shall inform KaWe of the goods, as well as of the packaging, which is ultimately delivered by it to other EU countries, and provide KaWe with the relevant evidence. If the customer becomes aware that the provisions of these laws on execution in force in a particular country conflict with the agreement entered into here, the provisions of the previous clause shall apply.
20. The manufacturer must take back any of its transport packing that has been returned by
the customer. However, we are not obligated to:
- retrieve transport packing at our costs
- accept transport packing delivered freight collect
- accept any packing from other manufacturers
The issuance of export documents
will be calculated according to the volume of order
Special designs: Prices on request.
Prices of special designs are pure net prices. Prices plus statutory VAT
* This article is no longer manufactured,
available only as long as stock lasts!
Contracts in accordance with § 19 paragraph 1, Order 4 ElektroG: The customer undertakes to ensure in relation to KaWe, through the appropriate agreements with the end customer, that the disposal of old electrical equipment is arranged by the end customer independently and at its own expense.
22. Subject to change
We are entitled to unilaterally amend these General Terms and Conditions to the extent that this is necessary to eliminate defects in the GTCs or to adapt them to changes in the legal or technical framework.
KIRCHNER & WILHELM GmbH + Co KG, Asperg | 12.2020