Condiciones generales de contratación
1. GTC Scope of Validity
Our deliveries, services and offers to commercial customers are made exclusively on the basis of these terms and conditions. These terms therefore also apply to all future business relationships, even if they are not expressly agreed again. Any deviating terms and conditions shall become legally binding only upon our written confirmation.
They will not be recognized even if after receiving them, we do not revoke them once again.
2. Offers and Orders
Our offers and prices are non-binding and subject to change. Orders, price agreements and all other additional agreements shall become legally binding for us only upon written confirmation or invoicing, otherwise they are not binding for us. Any documentation accompanying an offer 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 conclusion of the contract, we become aware of circumstances that raise serious doubts about the customer’s creditworthiness or solvency and that make it seem unreasonable for us to execute or continue the contract under the agreed conditions, we may withdraw from the contract if a security requested by us is not provided within a reasonable period of time. Special agreements entered into with our representatives shall be valid upon our written confirmation only. 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. Subsequent changes and other agreements made verbally, by telephone or telegraph require written confirmation to be valid.
The offered or agreed prices shall be net plus statutory VAT and ex works Asperg, without packaging, postage or freight costs. Prices for custom-made products shall be available on request and shall be net prices (plus statutory VAT). The packaging material shall be invoiced at cost price. If no express price agreement has taken place, prices valid on the order date shall apply. Set-off by the customer is only possible with claims recognized by us, legally established or synallagmatically linked to our accounts receivable. The customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship. We are only obliged to perform when the customer has rendered his consideration. If market or production conditions change before the delivery date of the ordered goods, due to circumstances beyond our control (e.g. supply chain interruptions, cases of force majeure, labor disputes, unrest, earthquakes, public health emergencies of international concern such as epidemics, pandemics or endemics, floods, hurricanes, fire and lightning strikes, wars, civil wars and revolutions, as well as other similar unforeseeable damaging events), the prices valid on the date of delivery – e.g. the market prices – shall apply. Any documentation accompanying an offer shall be valid with the restriction that we reserve the right to make changes in the course of further technical developments. Items marked with * in the price list are no longer manufactured, delivery only while stocks last.
4. Price Change Clause
In the event of a supply chain interruption, KaWe is entitled to adjust the prices agreed in the (blanket) order to changed market conditions at most once per quarter, namely in the event of significant changes in procurement costs or KaWe procurement prices for intermediate products or raw materials. The adjustment is made to the extent of the aforementioned significant changes that have occurred. This also applies to individual orders for which the period between the conclusion of the contract and the time of delivery is more than three months. If the price increases significantly exceed the regular increase in the cost of living (starting point: index of consumer prices for Germany at the time the blanket order is concluded), the customer has the right to terminate the contract. In such cases, KaWe will notify him thereof in written form.
5. Time of Delivery and Performance, Partial Deliveries
Delivery dates or periods that have not been expressly agreed as binding shall be non-binding information. The delivery time specified by us does not begin until the order has been completely clarified and all technical questions have been clarified. Likewise, the purchaser should fulfill all his obligations properly and in good time. If an “advance payment” has been agreed, we shall be only obliged to deliver if we can dispose of the invoice amount. In cases of force majeure, e.g. labor disputes, unrest, earthquakes, health emergencies of international concern such as epidemics, pandemics or endemics, floods, hurricanes, fire and lightning strikes, wars, civil wars and revolutions and other similar unforeseeable damaging events beyond our control, the delivery period shall be extended by the duration of the disruption, if it clearly affects the provision of our service. This also shall apply if these circumstances occur with our suppliers. In this case, we are not in default with regard to the affected delivery obligations, and therefore our obligation to timely fulfill these obligations is automatically suspended for the duration of the force majeure. If the disruption lasts longer than a month after the originally agreed date has expired, either party can withdraw from the contract. The withdrawal extends to the part of the contract that has not yet been fulfilled, unless the partially rendered services cannot be used by the purchaser. The purchaser does not claim damages, the limitations of liability stipulated in § 15 apply. If the underlying purchase contract is a firm bargain in the meaning of the German Civil Code or German Commercial Code, we shall be liable in accordance with the statutory provisions. The limitations of liability stipulated in § 15 apply. Any further liability for the delay in delivery for which we are responsible is excluded. We are entitled to make partial deliveries and render partial services at any time, provided this is reasonable for the customer. Unless otherwise agreed, in the case of call-off orders, the entire order quantity must be accepted no later than 6 months after the conclusion of the contract. We are then entitled to deliver the order backlog that we have in stock after prior notice and to charge storage costs.
6. Set-off and Retention
Set-off and right of retention against our claims are only possible with counterclaims recognized by us, legally established or synallagmatically linked to our accounts receivable, otherwise excluded. We are only obliged to perform when the customer has rendered his consideration.
Shipment of goods is charged for the account of the consignee. Custom-made goods will be delivered on request.
Europallets will be charged EUR 10.00 per piece, disposable pallets will be charged EUR 25.00 per piece. Dangerous goods are delivered by truck.
Net value of goods from EUR 1,300.00
Free domicile delivery, free packaging (with one delivery address)
Net value of goods under EUR 1,300.00
Delivery by DPD: shipping cost plus possible surcharge for oversized cargo
Delivery by forwarding agent: ex works, free packaging
Freight costs according to expenditure plus pallet fee
Delivery EXW (ex works/ex factory)
Packaging/pallets will be charged
Preparation of export papers will be invoiced separately and depending on the effort involved.
8. Delivery and Acceptance Obligations
In the case of custom-made products we reserve the right to effect an overshipment or short shipment amounting approx. 10% of the quantities ordered and to effect prior sale of any stock items due to production. Custom-made products are excluded from the right of exchange and return.
9. Delivery Dates Change Clause
In the event of a supply chain interruption, KaWe is entitled to adjust the delivery dates agreed in the (blanket) order to changed market conditions, namely in the event of - in each case - considerable difficulties in procurement of intermediate products or raw materials from KaWe suppliers, in particular if these difficulties are due to force majeure (unpredictable and uncontrollable external event that cannot be prevented or averted even with the utmost diligence on the part of KaWe. These include above all earthquakes, public health emergencies of international concern such as pandemic or epidemic, floods, hurricanes, fire and lightning strikes, wars, civil wars and revolutions). This also applies to individual orders for which the period between the conclusion of the contract and the time of delivery is more than three months.
10. Call-Off Orders and Quantity Contracts
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. Contracts for custom-made products shall also be adjusted to price increase rate.
All shipments that are sent to another location at the request of the purchaser shall take place at the purchaser’s risk, as soon as they have left our factory premises, and regardless of who bears the freight costs and who carries out the transportation. If we carry out the transportation, we shall be liable for our own fault and the fault of our assistants. If transportation is carried out by any third parties we shall only be liable for fault in the selection, and only for the value of the damaged goods, and only if the customer submits its claims within 5 days in writing.
In order to be able to claim damages, any damage of goods incurred during transportation must be certified by railway, post office, or carrier officials when the goods are taken over from any of them.
KaWe shall take out transport insurance policy for domestic and international shipments.
If, despite all due care, the delivered goods show a defect that was already present at the time of the transfer of risk, we will repair the goods at our discretion, subject to timely notification of defects, or deliver replacement goods. Our consent should be obtained before the goods are returned. We must always be given the opportunity to remedy the defect within a reasonable period of time. Claims for recourse remain unaffected by the above provision without restriction. If the supplementary performance fails, the customer can – without prejudice to any claims for damages – withdraw from the contract or reduce the payment. The customer's warranty rights presuppose that he has duly fulfilled his obligations to examine and give notice of defects according to § 377 of German Commercial Code (HGB). Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable equipment, defective construction work, unsuitable building ground or arise due to special external influences that are not required under the contract. If the customer or third parties carry out improper repair work or changes, there are also no claims for defects for these and the resulting consequences. Claims by the customer for the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded if the expenses increase because the goods delivered by us were subsequently sent to a different location than the branch of the customer to which they were originally supplied, unless the shipment corresponds to its intended use. The customer’s right of recourse against us only exists insofar as the customer has not made any agreements with his purchaser that go beyond the legally mandatory claims for defects. The above provision also applies accordingly to the extent of the customer’s right of recourse against the supplier. Claims for defects expire 12 months after the goods supplied by us have been delivered to our customer. The above provisions do not apply if by law in accordance with § 438, Part 1, Clause 2 of the German Civil Code (buildings and objects for buildings), § 479, Part 1 of the German Civil Code (right of recourse) and § 634a, Part 1 of the German Civil Code (construction defects) longer periods are prescribed. The limitation period does not start again if a replacement delivery is made as part of the liability for defects. The limitations of liability and shortened deadlines set out above do not apply to claims for damages and reimbursement of expenses by the purchaser or in the event that the seller has fraudulently concealed the defect.
Complaints can only be considered if they are made within 8 days after receipt of the goods. In the case of justified complaints, the statutory warranty rights apply. In order to ensure effective processing, we ask you to coordinate return deliveries due to complaints with us in writing in advance. In all cases, in which no warranty rights are based, returns of undamaged and originally packed goods will be credited with a deduction of a handling fee of 15% of the net value of the goods. Prerequisite for the creation of a credit note is the indication of the invoice number as well as the invoice date of the returned goods within 4 weeks after delivery. Necessary reconditioning costs will be deducted additionally.
15. 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 customer’s side. In case of several liabilities or an open account, reservation of proprietary rights serves as a collateral security for the settlement of our accounts without regard to whether some delivery of goods has 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 honored.
The purchaser may resell any goods supplied in the ordinary course of business. In so doing, it will be its duty to secure the rights when reselling the secured goods to any third party. Any accounts receivable the customer is entitled to out of the resale, the customer 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 equaling 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 customer’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%; we are responsible for the selection of the securities released. The customer shall be entitled to collect the assigned accounts receivable for us in a fiduciary capacity for as long as he duly discharges his assigned payment obligations towards us. The customer shall be obliged to forward us any incoming amounts until all our amounts receivable have been paid. Upon our request, the customer shall deliver to us – at any time – the addresses of its purchasers, 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 customer shall not be entitled to pawn the “goods reserved by the seller”, or pledge them as a collateral security. He must notify us immediately in writing of any seizure or any other threat to our rights. We shall be entitled and shall herewith be empowered to take possession of the reserved goods without having recourse to any courts if the customer is in delay of payments due. This way of taking possession shall not be deemed as withdrawal from contract; the customer shall be liable for the remaining monetary deficiency once the withdrawn goods have been turned to account. The customer is obliged to treat the purchased item with care as long as ownership has not yet passed to him. In the case of high-value goods, he is also obliged to insure them adequately at his own expense against theft, fire and water damage at replacement value.
16. Payment Terms
Our invoices shall be payable as follows:
3% discount in case of advance payment and collection by the bank, 2% discount if paid within 14 days after the invoice date, net price if paid 30 days after the invoice date. Customers who are not our regular customers or who place an initial order with us shall receive our goods against advance payment with a 3% discount. Special terms of payment shall apply to custom-made products. 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 the delay shall be charged. Immediate payment of all accounts payable shall be imposed if due to the delay in payment of (a partial) amount, summary proceedings for recovery of debt will be imposed by a court. Payment shall be deemed to have taken place as soon as it is at our disposal. 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 customer to claim any discounts.
17. Very Small Orders
For domestic orders below EUR 125.00 net order value, a processing fee of EUR 15.00 will be charged.
For orders within the EU countries below EUR 600.00 net order value, a processing fee of EUR 20.00 will be charged.
For orders from non-EU countries below EUR 1,200.00 net order value, a processing fee of EUR 30.00 will be charged.
18. Limitation of Liability
We and our bodies and proxies are only liable for damages
a) in the case of intent and gross negligence; or
b) in the event of culpable bodily injury, harm to life or health; or
c) if a defect was fraudulently concealed; or
d) within any guarantee commitment; or
e) in the case of liability under the Product Liability Act; or
f) in the event of a culpable breach of essential contractual obligations (i. e. fulfillment of which is essential for the proper execution of the contract and on observance of which the customer can regularly rely), also in the case of slight negligent breaches, but then limited to the contractually typical, reasonably foreseeable damage.
The limitation of liability also applies to claims for reimbursement of expenses according to § 284 of the German Civil Code.
Apart from that, claims for damages, for whatever legal reason, are excluded.
19. Applicable Law, Place of Jurisdiction, Place of Performance
This contract and the entire legal relationship between the parties are subject to the law of the Federal Republic of Germany to the exclusion of the UN Sales Convention (CISG). Place of performance and exclusive place of jurisdiction and for all disputes arising from this contract is our place of business, unless otherwise stated in the order confirmation.
20. Severability, Data Protection
Should a provision of these terms and conditions or a provision of other agreements be or become invalid, this shall not affect the validity of other provisions or agreements.
1. Scope of Personal Data Processing
In principle, we only process the personal data of our users to the extent that this is necessary to process customer inquiries, prepare offers, conclude contracts, execute contracts and provide a functioning website. The processing of personal data of our users takes place regularly only with the consent of the user. An exception applies in cases in which prior consent cannot be obtained for actual reasons and the processing of the data is permitted by statutory provisions.
2. Legal Basis for Personal Data Processing
General Data Protection Regulation (GDPR)
Insofar as we obtain the consent of the data subject for the processing of personal data, Article 6 (1) (a) of the EU General Data Protection Regulation (GDPR) serves as the legal basis.
Article 6 (1) (b) of the GDPR serves as the legal basis for the processing of personal data required to fulfill a contract to which the data subject is a party. This also applies to processing operations that are necessary to carry out pre-contractual measures.
Insofar as processing of personal data is necessary to fulfill a legal obligation to which our company is subject, Article 6 (1) (c) of the GDPR serves as the legal basis.
In the event that the vital interests of the data subject or another natural person require the processing of personal data, Article 6 (1) (d) of the GDPR serves as the legal basis. If the processing is necessary to protect a legitimate interest of our company or a third party and if the interests, fundamental rights and fundamental freedoms of the data subject do not override the first interest, Article 6 (1) (f) of the GDPR serves as the legal basis for the processing.
3. Data Erasure and Duration of Storage
The personal data of the data subject will be deleted or blocked as soon as the purpose of the storage no longer applies. Storage can also take place if this has been stipulated by the European or national legislator in EU regulations, laws or other regulations to which the person responsible is subject. The data will also be blocked or deleted if the storage period prescribed by the standards mentioned expires, unless there is a need for further storage of the data for the conclusion or fulfillment of a contract.
4. Further information on data protection is available at www.kawemed.com/en/privacy-policy
21. Use of KaWe Visual Materials and Logos
22. Special Conditions for KaWe Product Distribution in Other EU Member States
The customer located in another EU country in relation to 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 of 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 directives are contradictory to the agreements achieved there, 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 customer located in Germany intends to further distribute the product in other EU countries, it undertakes to company KaWe to ensure compliance at its own expense as well as by the customer itself in the country of destination, with the obligations of the manufacturer specific for the country on compliance with 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 application of the directives in a particular country conflict with the agreement entered into here, the provisions of the previous clause shall apply.
23. Transport Packing
The manufacturer must take back any of its transport packing that has been returned by the customer. However, we are not obliged to:
- retrieve transport packing at our costs
- accept transport packing delivered
- accept any packing from other manufacturers
Agreements in accordance with § 19, Article 1, Part 4 of the Electrical and Electronic Equipment Act: 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.