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    General Terms and Conditions

    General Terms and Conditions
    of KLB Kötztal
    Lacke + Beschichtungen GmbH
    89335 Ichenhausen, Germany

     

    § 1 Scope of Application

    1. These General Terms and Conditions (GTC) apply to all business relationships between us and our Customers (herein after called “Customers”). The GTC apply exclusively to Customers who are entrepreneurs (§ 14 German Civil Code – BGB), legal entities under public law, or special funds under public law.
    2. These GTC apply in particular to contracts for the sale and/or delivery of movable Goods (hereinafter called “Goods/Products”), regardless of whether we manufacture the Goods ourselves or procure them from suppliers. Unless otherwise agreed, the version of the GTC valid at the time of the Customer’s order – or, in any case, the most recently communicated version in text form – shall also apply as a framework agreement for similar future contracts, without the need for us to refer to them again in each individual case.
    3. Our GTC apply exclusively. Any general terms and conditions of the Customer that deviate from, conflict with, or supplement these GTC shall only become part of the contract if and to the extent that we have expressly agreed to their applicability. This requirement of express consent applies in all cases, including, for example, where the Customer refers to its own terms and conditions in the context of placing an order and we do not expressly object.
    4. Individual agreements (e.g., framework agreements) and the provisions in our formal order confirmations shall take precedence over these GTC. In case of doubt, trade terms shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce (ICC) in Paris, in the version valid at the time the contract is concluded.

     

    § 2 Offer and conclusion of a contract

    1. All our offers are non-binding and subject to change without notice. This also applies if we have provided the Customer with catalogues, documentation (e.g., drawings, calculations, cost estimates, references to DIN standards, etc.), other product descriptions, or documents – including in electronic form. Product or application-related information provided by our field staff, as well as samples made available by us (e.g., wet samples, hand samples, sample surfaces) for a specific Product or project, shall only become part of the contract if they are expressly listed in our formal order confirmation.
    2. The Customer’s order of the Goods shall be deemed a binding offer to enter into a contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 7 days of its receipt.
    3. Our acceptance may be declared either in writing (e.g., by means of a formal order confirmation) or by delivering the Goods to the Customer.

     

    § 3 Prices and terms of payment

    1. Unless otherwise agreed in individual cases, our prices valid at the time of contract conclusion shall apply. Prices are quoted ex works (Incoterms® EXW) and are subject to the applicable statutory value-added tax.
    2. Unless otherwise stated in our order confirmation, the purchase price is due in advance and payable within 14 days from the date of invoice. Even within the scope of an ongoing business relationship, we are entitled at any time to carry out a delivery in whole or in part only against advance payment. We shall declare such a reservation at the latest with the order confirmation.
    3. Upon expiry of the above-mentioned payment period or the period stated in the order confirmation, the Customer shall be in default. During the period of default, the purchase price shall bear interest at the applicable statutory default interest rate. We reserve the right to claim further damages caused by the delay. For commercial transactions, our right to claim the commercial default interest pursuant to § 353 of the German Commercial Code (HGB) shall remain unaffected.
    4. The Customer shall only be entitled to set-off or retention rights if their counterclaims are legally established, undisputed, or acknowledged by us. In the event of defects in the delivery, the Customer’s counter-rights – particularly pursuant to § 7 para. 6 of these GTC – shall remain unaffected.
    5. If, after conclusion of the contract, it becomes apparent – for example, due to an application for the opening of insolvency proceedings – that our claim to payment of the purchase price is at risk due to the Customer’s lack of financial capacity, we shall be entitled to refuse performance in accordance with the statutory provisions and, if applicable, to withdraw from the contract after setting a deadline. In the case of contracts concerning the manufacture of non-fungible Goods (custom-made Products), we shall be entitled to withdraw from the contract immediately; the statutory provisions regarding the dispensability of setting a deadline shall remain unaffected.

     

    § 4 Delivery period and delay in delivery

    1. Delivery periods shall only be binding if expressly agreed upon individually. Unless otherwise stated, delivery periods indicated in our order confirmation are non-binding. Our usual delivery time is approximately 8 to 10 business days from the date of contract conclusion.
    2. If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of performance), we shall inform the Customer immediately and simultaneously communicate the expected new delivery date. If the performance is still not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; any counter-performance already rendered by the Customer shall be refunded without delay. Non-availability of performance includes, for example, delayed delivery by our suppliers despite concluding congruent cover transactions, disruptions in the supply chain due to force majeure, or cases where we are not obliged to procure the Goods in individual instances.
    3. The commencement of our default in delivery shall be determined in accordance with statutory provisions. However, a reminder (notice of default) from the Customer is required in any case.
    4. The Customer’s rights pursuant to § 8 of these GTC, as well as our statutory rights – particularly in cases excluding our obligation to perform (e.g., due to impossibility or unreasonableness of performance and/or subsequent performance) – shall remain unaffected.

     

    § 5 Delivery, transfer of risk, acceptance, and default in acceptance

    1. Delivery shall be made ex works (Incoterms® EXW), which shall also be the place of performance for delivery and any subsequent performance.
    2. The risk of accidental loss and accidental deterioration of the Goods shall pass to the Customer no later than upon handover. In the case of a contract involving shipment, however, the risk of accidental loss, accidental deterioration, and delay shall pass to the Customer upon delivery of the Goods to the carrier, freight forwarder, or other person or entity designated to execute the shipment. The same shall apply if the Customer is in default of acceptance.
    3. If the Customer is in default of acceptance, fails to cooperate, or if delivery is delayed for other reasons attributable to the Customer, we shall be entitled to claim compensation for damages incurred as a result, including additional expenses (e.g., storage costs). For this, we shall charge a flat-rate compensation of EUR 30.00 per calendar day, starting from the agreed delivery date or – if no delivery date has been agreed – from the notification of readiness to ship the Goods.

    The proof of higher damages and our statutory claims (in particular, claims for additional expenses, appropriate compensation, or contract termination) shall remain unaffected; however, the flat-rate compensation shall be credited against any further monetary claims. The Customer shall be entitled to prove that we have incurred no damage or only significantly less damage than the flat-rate compensation.

     

    § 6 Retention of title

    1. We retain ownership of the Goods sold until full payment of all our current and future claims arising from the delivery contract and any ongoing business relationship with the Customer (secured claims).
    2. Goods subject to retention of title may neither be pledged to third parties nor transferred as security before full payment of the secured claims. The Customer shall notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third-party access (e.g., seizures) to Goods belonging to us occurs.
    3. In the event of a breach of contract by the Customer, in particular non-payment of the due purchase price, we shall be entitled to withdraw from the contract and/or demand the return of the Goods based on the retention of title in accordance with statutory provisions. The demand for return does not simultaneously constitute a declaration of withdrawal; rather, we shall be entitled to demand only the return of the Goods while reserving the right to withdraw from the contract. We may only assert these rights if we have previously set the Customer a reasonable deadline for payment without success or if such a deadline is dispensable under statutory provisions.
    4. The Customer is entitled, until revoked in accordance with sentence (c) below, to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following supplementary provisions shall apply:

     

    (a) The retention of title shall extend to Products resulting from processing, mixing, or combining our Goods, to their full value, whereby we shall be deemed the manufacturer. If the Goods are processed, mixed, or combined with Goods of third parties and their ownership rights remain, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined Goods. Otherwise, the same shall apply to the resulting Product as to the Goods delivered subject to retention of title.

    (b) The Customer hereby assigns to us, as security, all claims against third parties arising from the resale of the Goods or the Product, either in full or in the amount of our possible co-ownership share pursuant to the preceding subsection. We hereby accept this assignment. The obligations of the Customer as set forth in subsection 2 shall also apply with respect to the assigned claims.

    (c) The Customer shall remain authorised to collect the claims alongside us. We undertake not to collect the claims as long as the Customer meets their payment obligations toward us, no deterioration in the Customer’s financial capacity exists, and we have not asserted the retention of title by exercising a right pursuant to subsection 3. Should this no longer be the case, we may require the Customer to disclose to us the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment. Additionally, in such cases, we are entitled to revoke the Customer’s authorisation to resell and process the Goods subject to retention of title.

    (d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities at the Customer’s request, at our discretion.

     

    § 7 Customer claims for defects

    1. The Customer’s rights in case of material and legal defects (including incorrect and short delivery as well as defective instructions) shall be governed by statutory provisions unless otherwise specified below. The statutory provisions on consumer goods purchases (§§ 474 et seq. of the German Civil Code, BGB) and the Buyer’s rights arising from separately issued guarantees shall remain unaffected in all cases.
    2. The basis of our liability for defects is primarily the agreement regarding the condition and intended use of the Goods (including accessories and instructions). An agreement on the condition within this meaning includes all product descriptions and manufacturer specifications that are part of the individual contract or were publicly announced by us (in particular in catalogs or on our website) at the time of contract conclusion. If the condition has not been agreed upon, the statutory provisions shall determine whether a defect exists (§ 434 (3) BGB). Public statements made by the manufacturer or on their behalf, particularly in advertising or on the product label, shall take precedence over statements by third parties.
    3. We shall generally not be liable for defects that the Customer knew of or grossly negligently did not know of at the time the contract was concluded. Furthermore, the Customer’s claims for defects require that they have complied with their statutory duties of inspection and notification (§§ 377, 381 of the German Commercial Code, HGB). For construction materials and other Goods intended for installation or further processing, an inspection must in any case be carried out immediately prior to processing. If a defect becomes apparent upon delivery, inspection, or at any later time, the Customer must notify us immediately in writing. Obvious defects must be reported in writing within 3 working days of delivery, and defects not detectable during inspection within the same period from discovery. Failure by the Customer to properly inspect and/or notify defects shall exclude our liability for the defect not or not timely or properly reported in accordance with statutory provisions. This shall also apply to Goods intended for installation, attachment, or fitting, if the defect only becomes apparent as a result of violation of these duties after corresponding processing; in such cases, the Customer shall in particular have no claims for reimbursement of related costs (e.g., removal and installation costs).
    4. In the event of defective Goods, we may choose to fulfill our obligation to remedy the defect either by repair (subsequent improvement) or by delivery of a defect-free item (replacement delivery). If the chosen type of subsequent performance is unreasonable for the Customer in the individual case, the Customer may refuse it. Our right to refuse subsequent performance under statutory conditions remains unaffected.
    5. We are entitled to make the owed subsequent performance dependent on the Customer’s payment of the due purchase price. However, the Customer is entitled to withhold a portion of the purchase price that is reasonable in relation to the defect.
    6. The Customer must give us the time and opportunity required for the owed subsequent performance, in particular by handing over the complained Goods for inspection purposes. In the case of replacement delivery, the Customer shall return the defective Goods to us upon request in accordance with statutory provisions; however, the Customer has no claim for return. Subsequent performance does not include dismantling, removal, or uninstallation of the defective Goods, nor installation or fitting of defect-free Goods, unless we were originally obliged to perform such services; claims by the Customer for reimbursement of corresponding costs (e.g., removal and installation costs) remain unaffected.
    7. Expenses necessary for inspection and subsequent performance, in particular transport, travel, labour, and material costs as well as, if applicable, removal and installation costs, shall be borne or reimbursed by us in accordance with statutory provisions and these Terms and Conditions, provided that a defect actually exists. Otherwise, we may demand reimbursement from the Customer for costs incurred due to unjustified requests for defect remediation if the Customer knew or should have known that no defect actually existed.
    8. If a reasonable deadline set by the Customer for subsequent performance expires without success or is dispensable under statutory provisions, the Customer may withdraw from the purchase contract or reduce the purchase price in accordance with statutory regulations. However, there is no right of withdrawal in case of an insignificant defect.
    9. The Customer’s claims for reimbursement of expenses pursuant to Section 445a (1) of the German Civil Code (BGB) are excluded, unless the last contract in the supply chain is a consumer goods purchase (Sections 478, 474 BGB). Claims by the Customer for damages or reimbursement of futile expenses (§ 284 BGB) exist only subject to the provisions of paragraphs 8 and 9 below, even in the case of defects in the Goods.

     

    § 8 Other liability

    1. Unless otherwise stipulated in these Terms and Conditions, including the following provisions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with statutory provisions.
    2. We shall be liable for damages – regardless of the legal basis – within the scope of fault-based liability for intent and gross negligence. In cases of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g., due care in our own affairs; insignificant breach of duty),

     

    (a) for damages resulting from injury to life, body, or health,

    (b) for damages resulting from the breach of a material contractual obligation (an obligation whose fulfillment enables the proper execution of the contract in the first place and on which the contractual partner regularly relies and is entitled to rely); however, in this case, our liability shall be limited to compensation for foreseeable damage that typically occurs.

     

    1. The liability limitations set forth in subsection 2 also apply with respect to third parties as well as in cases of breaches of duty committed by persons whose fault we are legally responsible for (including those acting on our behalf). They shall not apply where a defect has been fraudulently concealed, a warranty for the quality of the Goods has been given, or for claims of the Customer under the Product Liability Act.
    2. In case of a breach of duty that does not constitute a defect, the Customer may only withdraw from or terminate the contract if we are responsible for the breach.

     

    § 9 Limitation period

    1. Deviating from § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material and legal defects shall be one year from delivery. If an acceptance is agreed, the limitation period shall commence upon acceptance. Statutory special regulations on limitation periods (in particular §§ 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) remain unaffected.
    2. The above limitation periods under purchase law shall also apply to contractual and non-contractual claims for damages by the Customer based on a defect in the Goods, unless the application of the regular statutory limitation periods (§§ 195, 199 BGB) would result in a shorter limitation period in the individual case. Claims for damages by the Customer pursuant to § 8 subsection 2 sentences 1 and 2 (a) as well as under the Product Liability Act are subject exclusively to the statutory limitation periods.

     

    § 10 Data transmission to Creditreform Ulm/Neu-Ulm Müller & Schott GmbH & Co. KG

    Our company regularly reviews the creditworthiness of our Customers during contract conclusions and in specific cases where a legitimate interest exists. To this end, we cooperate with Creditreform Ulm/Neu-Ulm Müller & Schott GmbH & Co. KG, Neue Str. 3, 89077 Ulm, Germany (hereinafter also referred to as “Creditreform”), from which we receive the necessary data. For this purpose, we transmit the name and contact details of the respective Customer to Creditreform, which also supports us through its membership in the DRD payment experience exchange system operated by Creditreform. This payment experience pool enables participants from various industries to share payment experiences and benefit reciprocally from the information submitted by other participants. In this context, we provide information about the payment behavior exhibited by the Customer towards us to Creditreform. Furthermore, within the scope of this contractual relationship, we transmit personal data collected regarding the application, execution, and termination of the business relationship, as well as data concerning non-contractual or fraudulent behavior, to Creditreform.

    The data transmissions are carried out based on Article 6(1)(b) and Article 6(1)(f) of the General Data Protection Regulation (GDPR). Transfers pursuant to Article 6(1)(f) GDPR are only permitted insofar as they are necessary to safeguard the legitimate interests of our company or third parties and do not override the interests, fundamental rights, and freedoms of the data subject that require the protection of personal data.

    Further information about the scope of Creditreform’s activities can be found at https://www.creditreform.de/ulm/loesungen/bonitaet-risikobewertung, Privacy information from Creditreform in accordance with GDPR is available at https://www.creditreform.de/ulm/datenschutz

     

    § 11 Choice of law, jurisdiction, severability clause

    1. These GTCsand the entire legal relationship between us and the Customer shall be governed by the substantive law of the Federal Republic of Germany, excluding international uniform laws, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
    2. If the Customer is a merchant, a legal entity under public law, or a special fund under public law, our place of business in Ichenhausen shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the Customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, in all cases, we are also entitled to file suit at the place of performance of the delivery obligation according to these Terms and Conditions or a prevailing individual agreement, or at the general place of jurisdiction of the Customer. Mandatory statutory provisions, especially regarding exclusive jurisdiction, remain unaffected.
    3. Should any provision of these GTCs be or become invalid, the validity of all other provisions or agreements shall remain unaffected.

     

    Edition: February 2025

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