All business transactions with KÖHL GmbH are subject to the following business terms and conditions.
- The following general standard conditions of sale apply to contracts between KÖHL and its customers. No general standard contract conditions of the cus- tomer are applied to these contracts, neither now nor in future, unless they are expressly acknowledged in written form by KÖHL. Contractually binding are exclusively the general standard conditions of sale in German language; text versions in different languages only serve better legibility for the customer.
- All agreements made verbally require written confirmation by KÖHL for their legal validity; this may be given by fax or by mail.
- Brochures, descriptions and illustrations of the services of KÖHL are non-committal subject to express inclusion in the contractual relationship between the parties. Their modification remains reserved, especially within the scope of the advance of technology or improvement of products.
- The service offered by KÖHL is not directed for consumers referred to § 13 BGB. Consequently KÖHL will not sign contracts with consumers.
- Contracts between KÖHL and its customers require form of writing for validity. In case of order remitted verbally, by telephone, in written form or otherwise, the customer is bound by them after receipt at KOEHL for four weeks. A contract to be closed on this basis is in effect upon written order confirmation from KÖHL, but at the latest upon fulfilment or receipt of the offer of fulfilment by the customer. Orders may only be processed and scheduled after KÖHL has completely received all relevant order data and possibly provided materials.
- All offers prepared by KÖHL are non-committal and nonbinding. Services or goods compiled in an offer are only regarded as connected if this has been expressly agreed.
- Deviations in structure and colour in comparison with exhibition pieces, brochures or other documentation remain reserved to the extent as these are in the nature of the materials used and are customary in trade.
- The order confirmation is decisive for the scope of services of a contract. Objections must be notified to KÖHL immediately after receipt.
- Modifications by the customer of orders already confirmed may only be made if this is still possible under production conditions and has been confirmed in writing by KÖHL. Additional cost incurred due to modifications must be reimbursed by the customer. Modifications of orders require a review and possibly new fixing of the delivery date. In case of customized products or products procured from third parties by KÖHL, modifications are excluded.
- Cancellation of contracts closed requires written confirmation by KÖHL. It cannot be performed tacitly. If a contract is cancelled under mutual consent upon request of the customer, then the customer must reimburse KÖHL for all expenses incurred until the date of cancellation, even if this has not been separately agreed. In case of customized products or goods purchased from third parties by KÖHL, cancellation is excluded.
- KÖHL supplier goods and documentation ordered exclusively at risk of the customer. This even applies if KÖHL has expressly declared assuming of transportation cost. Risk passes to the customer upon delivery of the contract item to the customer or forwarding agent. This also applies in case of accidental destruction, accidental damage or other loss of the contract item.
- The customer is free in his decision whether he wants to close transport insurance at his own cost. The risk for a shipment returned by the customer to KÖHL remains with the customer until receipt of the shipment by KÖHL.
- Delivery obligations of KÖHL are subject to the reservation of correct and timely self-delivery.
- The presumed delivery date stated in the order confirmation applies to deliveries and services, whereby the start of the delivery period stated presupposes settlement of all engineering issues.
- KÖHL confirms the delivery week for dispatch ex works.
- KÖHL will strive to observe the delivery periods stated. To the extent as a binding delivery period has been exceeded by KÖHL by more than four weeks, the customer may set a grace period for KÖHL of four weeks, beginning upon receipt by KÖHL of setting of the deadline. To the extent as KÖHL does not comply with this grace period or no other agreement is reached between the contract parties about a new delivery date, the customer may, upon expiry of the grace period, cancel the agreement by registered letter. In this case, the customer is due claims for damages against KÖHL only if KÖHL has caused the damage of the customer by intent or gross negligence. In this case, the customer has no further claims against KÖHL.
- If the customer does not claim his rights as mentioned in paragraph 4(4) within 2 weeks, he loses his rights deriving from non-compliance of delivery terms and dates. The same applies to, if the customer has profoundly broken his obligation to cooperate with regards to delivery. If the customer does not immediately exercise his rights from paragraph (4), then he forfeits his rights from noncompliance with delivery periods and dates. The same holds true if the customer himself has substantially violated duties to cooperate in connection with the delivery.
- KÖHL is entitled to perform partial deliveries of the contractual items. KÖHL may issue a corresponding partial invoice for each partial delivery.
- If the customer is in default in taking delivery, then KÖHL is entitled, after setting a grace period of two weeks, to sue for acceptance, claim damages due to non-performance or repudiate the contract. In such a case, KÖHL may claim 20% of the sale price in damages without furnishing proof (damages liquidated in a lump sum), unless the customer proves that KÖHL has incurred no damage or less damage. Assertion of higher proven actual damage remains reserved for KÖHL.
- In cases of an act of God, strike and lockout, the delivery period is interrupted during its term.
- The customer must ensure that delivery is possible during the usual business hours, if deviating conditions have not expressly been agreed. Deliveries are generally performed behind the first lockable door and do not include further carrying of the goods.
- Subject to express deviating differing agreements, the respective current price lists as well as delivery conditions apply to the services of KÖHL. The prices stated by KÖHL apply ex works in EURO, plus the statutory value added tax applicable on the day of delivery. Cost for special packaging and transportation are added and must, if nothing to the contrary has been agreed, be borne by the customer.
- If the order confirmation does not state different conditions, then invoices are due immediately and must be paid without deduction at the latest 30 days after invoice date. Time allowed for payment does not postpone the due date, but the latest date for payment determinable by calendar. If the payment is received within 10 days after the invoice date, then KÖHL grants a discount of 2%. Services (for instance customer service) are payable immediately and always without a discount.
- If payment in instalments has been agreed, then the complete unsettled residual amount becomes due immediately and in one sum, if the customer is in default for more than two weeks with payment of an instalment.
- In case of default in payment of the customer, KÖHL is, for the duration of default, released from performance of further deliveries and services from the contractual relationship concerned by the default.
- Bills of exchange and checks are accepted only after corresponding agreement and only as conditional payment. If a check or a bill of exchange is lost, then KÖHL is not obliged to seek further payment from this instrument. Cost for discount and of bills of exchange as well as other cost is borne by the customer and must be reimbursed in advance. Checks are not accepted as cash payment.
- KÖHL reserves the right to increase prices according to cost increases occurred, especially due to collective bargaining agreements or increases in materials prices, for contract with an agreed delivery time of more than four months. If the increase amounts to more than 5% of the agreed net price, then the customer is due a right to terminate.
- Rights of setoff are due to the customer only if his counterclaims have been established as final and conclusive, are undisputed or have been accepted by KÖHL. The customer also does not have a right of retention based on disputed counterclaims.
- Until fulfilment of all claims (including all balance claims from current account), which are due KÖHL on any legal grounds against the customer, now and in the future, KÖHL is granted collateral regulated in the following paragraphs, which KÖHL will release by its choice, if their value lastingly exceeds the claims by more than 20%.
- All goods or documentation supplied to the customer by KÖHL remain property of KÖHL until complete payment of all claims from the overall business relationship. If payment by check or bill of exchange is agreed, then the reservation extends also to cashing of a check or bill of exchange accepted by KÖHL.
- The customer may neither pawn nor otherwise transfer ownership by way of security for the objects being under reservation of paragraph (2). The customer is obliged to immediately notify KÖHL in writing about any levies of execution or other seizure of the objects supplied under reservation of title by third parties. He is furthermore obliged to point out title of KÖHL to the third party. The customer indemnifies KÖHL from any and all cost of a suite as per § 771 ZPO, to the extent as the third party does not actually reimburse this cost.
- The customer must safe keep the objects supplied to him under reservation of title and insure them at his own cost against the risks robbery, theft, fire damage, water damage and vandalism. The customer hereby assigns his future claims from the insurance contracts with respect to the objects delivered already now to KÖHL. KÖHL accepts this assignment even now.
- The customer must bear the cost for all measures serving to preserve or secure the title of KÖHL. This also applies if such a measure fails, but objectively seems sensible.
- The customer is entitled to finish and/or process and sell the goods under reservation of title in the course of proper business for as long as he is not in default. The claims created from resale or on any other legal grounds (insurance reimbursement, tort, etc.) with respect to the goods under reservation of title (including all balance claims from current accounts) are assigned by the customer now already by way of security to their full extent to KÖHL. KÖHL now already accepts this assignment. KÖHL revocable authorizes the customer to collect the claims assigned for account of KÖHL in his own name. Revocation of this authority to collect may only be made by KÖHL if the customer is in default with his payment obligations DFE SSAIRLOE
- In case of behaviour of the customer in violation of the contract, especially in case of his default in payment, KÖHL is entitled, without setting a grace period or notice of repudiation of contract, to demand return of the goods delivered under reservation of title. The customer must immediately surrender the items concerned. Repudiation of the underlying contract by KÖHL only exists in these cases, if KÖHL has expressly declared repudiation in writing.After taking back the goods, KÖHL is authorized to its realization; the realization proceeds must be setoff against the liabilities of the customer under deduction of realization cost.
- KÖHL takes responsibility for the fact that goods ordered by the customer have the quality and condition customary for goods of the ordered type and price level. Please be advised on Section §2 paragraph (3)
- The customer is obliged to check the goods immediately after receipt and immediately notify KÖHL in writing of complaints because of defectiveness or false delivery. This also applies to transport damage, if it has been agreed individually that KÖHL bears the risk of transportation.
- If there is a defect in the purchased goods for which KÖHL is responsible, then KÖHL by its own choice is entitled to remedy the defect or make a replacement delivery. In case of remedy of the defect, KÖHL is obliged to bear all expenses required for the purpose of remedying of the defect, insofar as these do not increase because the purchased goods had been transported to a different location from the original delivery location.
- If KÖHL is not willing or able to remedy the defect/ make a replacement delivery, or if this is delayed in excess of a reasonable period, for reasons, for which KÖHL is responsible, or remedy of the defect/replacement delivery fails otherwise, then the customer is entitled by his choice to repudiate the contract or request corresponding reduction of the purchasing price. This is not valid, if the customer has caused the failure of the defect remediation/replacement delivery through his comportment.
- The customer is obliged to make the goods complained about accessible to KÖHL for review.
- The warranty period generally amounts to 2 years, calculated from the passage of risk for the goods and includes all deviations of the goods from the agreed condition, the cause of which lies in materials, workmanship or in engineering. The regulations of § 8 remain untouched. This period is a period for limitation in time and also applies to claims for reimbursement of consequential harm caused by a defect, if no claims from tort are claimed.
- KÖHL uses exclusively high-quality for the covering material leather, for which the following characteristics are naturally caused and are not accepted as a cause for complaint: wrinkling, fattening creases, horn butts, hedge tears, insect bites and grazing. In case of leather covers, due to expansibility, natural wrinkling occurs. Slight deviations in colour for subsequent deliveries are no cause for complaint.
- The selection of cover materials with respect to colour and material is made by the customer using KÖHL material sample cards or the KÖHL brochure cover materials. Slight deviations in colour for subsequent deliveries are not a defect in the sense of the above regulations. The use of third party cover materials is only possible after prior agreement with and release by KÖHL. KÖHL does not assume any warranty whatsoever for processing, materials consumption and quality of materials for cover materials provided.
- KÖHL is only liable for damage incurred by the customer to the extent as the damage has been caused intentionally or gross negligently by KÖHL, its employees, statutory representatives or other servants. Otherwise, KÖHL is liable only for foreseeable damage caused by violation of substantial contractual duties by KÖHL. Liability is excluded for profits lost by the customer, for savings not incurred by the customer, consequential damage, consequential harm caused by a defect as well as for damage caused by the application environment provided by the third party. KÖHL is furthermore not liable for damage due to act of God. These are especially operating troubles caused by natural events, effects of war, wage disputes and similar events.
- The above limitation of liability does not apply in cases of compulsory product liability as well as in case of injury to life, body or health.
- The extended KÖHL warranty period for seating furniture amounts 5 years.
- The warranty periods begins on the day of dispatch ex works and applies to a common duration of use of 8 hours/day for 220 working days/year. In case of longer using times, the warranty period is reduced accordingly.
- The warranty period is not extended if a warranty performance has been made. Furthermore, upon assumption of warranty performance, further claims are excluded.
- During the extended KÖHL warranty period of 5 years, all spare parts are supplied without charge after checking and return of the parts complained about. Exceptions from this are regulated in paragraph (8).
- Upon expiry of 24 months, for implementation of warranty work, working hours, possible travel expense allowance as well as transportation cost incurred will be billed.
- KÖHL reserves the right to perform repairs by utilizing KÖHL customer service on location or at the works. In case of return of complete products, the mode of dispatch must be agreed with KÖHL.Excluded from the warranty are:
- Parts and materials subject to natural wear, for instance rollers, cover materials, etc.
- Changes and damage caused by use not corresponding to proper use of the KÖHL products.
- Damage caused by incorrect storage as well as extreme climatic conditions or environmental effects like heat, moisture or excessive soiling.
- Damage caused by improper intervention or maintenance not performed by KÖHL or its specialist dealer partner.
- Third party cover materials processed upon request of the customer.
- Special models and versions manufactured upon customer request, deviating from mass production products; this also refers to colouring.
- Damage which can be traced back to improper operation by the customer.
- KÖHL reserves the title and copyright in drawings, drafts, descriptions, plans, concepts and similar documentation created by it. These may not be made accessible to third parties without written approval from KÖHL. Duplication and processing is prohibited without express approval from KÖHL. In case of violation by the customer, KÖHL is especially entitled to claim damages.
- KÖHL is not liable for violation of any patent rights, copyrights or other industrial property rights of contractual deliveries or services by the customer, insofar as this one is responsible for the breach of contract in particular in cases improper use of the contractual object. If KÖHL is insofar taken by third parties claim, the customer liberated in this cases KÖHL from any claims of this type. In the case of claims by third parties, KÖHL will immediately inform the customer.
- The contract parties oblige to treat information about the respective other contract party as confidential, to the extent as this does not concern information already known to the public or the contract party concerned has expressly approved announcement in advance. This applies in sense also to bids, documentation provided to the customer within the course of preparation of a contract. This obligation also applies in excess of the term of this contractual relationship.
- The customer is pointed out that KÖHL stores and processes personal data to the scope required by the contractual relationship. Passing on of personal data to third parties only occurs to the extent as there is a statutory obligation to do so.
Form of Writing Modifications, amendments and cancellation of contracts/ orders must be in writing
- For all legal disputes concerning contracts, Darmstadt is agreed as the place of jurisdiction, if both parties are merchants, legal entities under public law or special funds under public law.
- Place of fulfilment for all liabilities from contracts is Rödermark.
Exclusively the laws of the Federal Republic of Germany apply to contractual relationships between KÖHL and its customers. The application of the United Nations Convention on contracts for the international sale of goods is excluded.
Should individual regulations of these general standard conditions of sale be or become invalid or impracticable, then this leaves the validity of the remaining regulations of the respective contract untouched.
September 01st, 2015