Terms of Sale

§ 1 Scope, form

(1) These General Terms and Conditions of Sale apply to all our business relations with our customers ("Purchasers"). The conditions only apply if the Purchaser is an entrepreneur (§ 14 German Civil Code), a legal entity under public law or a special fund under public law.

(2) The conditions apply, in particular, to contracts for the sale and/or delivery of movable goods ("goods"), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 German Civil Code). Unless otherwise agreed, the terms and conditions in the version valid at the time of the Purchaser's order or, at any rate, in the version last communicated to him in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.

(3) Our terms and conditions apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Purchaser shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent shall apply in any case, for instance even if we carry out the delivery to the Purchaser without reservation in full knowledge of the Purchaser's general terms and conditions.

(4) In individual cases (including collateral agreements, supplements and amendments), individual agreements made with the Purchaser shall take precedence over these terms and conditions in each case. Subject to provision of proof to the contrary, the content of such agreements shall be governed by a written contract or our written confirmation. Verbal agreements and agreements with our sales team, representatives, storekeepers or other authorised representatives are only binding when explicitly agreed upon in writing and confirmed.

(5) Legally relevant declarations and notifications of the Purchaser with regard to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be submitted in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legally applicable formal requirements and further evidence, in particular in the event of doubt as to the legitimacy of the declarant, shall remain unaffected.

§ 2 Conclusion

(1) Unless otherwise agreed in writing, our offers, and those of our representatives, remain non-binding until the issuing of our order confirmation and the subsequent regulated acceptance of orders.

(2) When the Purchaser places an order for the goods, this is considered a binding contract offer. Unless otherwise stated in the order, we shall be entitled to have this contractual offer accepted by the administration within 4 days of receipt .

(3) The acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Purchaser.

(4) The acceptance of offers from Purchasers unknown to us is subject to credit information, and the refusal period may be increased in this case, albeit by a maximum of one week.

(5) In the case of contracts with Purchasers unknown to us, we also have the right to withdraw from the contract once the order has been confirmed or the delivery has already commenced, when the required credit information is unsatisfactory or when it is uncertain whether the Purchaser can fulfil its side of the contract. No claims for damages can be derived from this cancellation of the contract.

(6) Costs arising from the erroneous or inaccurate order placement by the customer are to be borne by the customer; this also applies without exception to all cases of import duties and taxes that were not levied when the contract was concluded. Fluctuations in the price of raw materials, resulting from official measures such as changes to import tax and the EC sugar price, are passed on by us, insofar as the respective price increases occur at least four weeks prior to the delivery date.

§ 3 Delivery period and delay in delivery

(1) Upon acceptance of the order, the delivery period shall be agreed individually or specified by us. Unless expressly stated otherwise, delivery periods are non-binding.

(2) If we are unable to meet delivery deadlines for reasons for which we are not responsible (non-availability of performance), we shall inform the Purchaser thereof without delay. At the same time, we will inform the Purchaser of the anticipated new delivery deadline if the performance is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already rendered by the Purchaser. In particular, the case of non-availability of the service within this meaning shall include the failure of our suppliers to deliver to us on time if we have concluded a congruent hedging transaction, if neither we, nor our suppliers are at fault or when we are not obliged to procure in individual cases.

(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder is required by the Purchaser.

(4)  Under these terms and conditions, the Purchaser's rights and our statutory rights shall remain unaffected, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonability of performance and/or subsequent performance).

§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

(1) Delivery shall be ex warehouse, where the place of performance for the delivery and any subsequent performance shall also be. At the request and expense of the Purchaser, the goods will be shipped to another destination (mail order purchase). Unless otherwise agreed, we shall be entitled to determine the mode of dispatch (in particular transport company, dispatch route, packaging) ourselves. We are entitled to make partial deliveries.

(2) At the latest upon handover, the risk of accidental loss and accidental deterioration of the goods shall pass to the Purchaser. However, in the case of sale by delivery to destination, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, already passes to the freight forwarder, carrier or other person or institution designated to carry out the shipment. To the extent that acceptance has been agreed, this shall be decisive for the transfer of risk. For the rest, the statutory provisions of the law governing contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. Delivery or acceptance shall be deemed to have taken place if the Purchaser is in default of acceptance.

(3) The Purchaser is obliged to accept final order quantities within the agreed delivery time. If this does not happen, we are authorised to impose an appropriate period of grace. Once this has expired, we are free to decide to what extent, in what time period and in line with which conditions we supply the unclaimed or not accepted goods in line with the warning sent with the period of grace. Claims for damages due to non-fulfilment in the case of withdrawal from the contract remain unaffected.

(4) Should the ordered goods be temporarily unavailable in whole or in part, we shall be entitled to deliver missing quantities for future orders. The same applies to the temporary blocking of individual goods.

(5) If the Purchaser is in default of acceptance, if he fails to cooperate or if our delivery is delayed for other reasons for which the Purchaser is responsible, we shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs).

§ 5 Postage and packaging

(1) Postage is freight-paid for net order values of € 100, unless expressly agreed otherwise.

(2) All additional costs resulting from shipping methods or routes that were not accounted for during the conclusion of the purchase agreement, such as express delivery, or those resulting from late requests for part deliveries, are to be borne by the Purchaser.

(3) Unless otherwise stated, delivery includes packaging.

(4) No refunds are available for possibly returned packaging.

§ 6 Guarantee

(1) The statutory provisions shall apply to the Purchaser's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the statutory special provisions shall remain unaffected upon final delivery of the unprocessed goods to a consumer, even if the consumer has further processed them (supplier recourse pursuant to §§ 478 German Civil Code). Claims arising from supplier recourse are excluded if the defective goods have been further processed by the Purchaser or another entrepreneur, e.g. by installation in another product.

(2) First and foremost, the basis of our liability for defects is the agreement reached on the quality of the goods. All product descriptions that are the subject of the individual contract or that have been made public by us (in particular in catalogues or on our Internet homepage) shall be deemed to be an agreement on the quality of the goods.

(3)  If the quality has not been agreed, it shall be assessed whether a defect exists or not (§ 434 Para. 1 S. 2 and 3 German Civil Code) in accordance with the statutory provisions). We do not, however, accept any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).

(4) The Purchaser's claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 German Commercial Code). If a defect becomes apparent upon delivery, inspection or at any later point in time, we must be notified thereof in writing without delay. In any case, obvious defects must be pointed out in writing within 3 working days of delivery, and defects that are not recognisable during the inspection must be pointed out within the same period of discovery. If the Purchaser fails to properly inspect the goods and/or notify us of any defects, our liability for the defect not reported, not reported in a timely manner, or not properly reported, shall be excluded in accordance with the statutory provisions.

(5) If the delivered item is defective, we can start by selecting between providing subsequent performance by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.

(6) We are entitled to make the supplementary performance owed, dependent on the Purchaser paying the due purchase price. However, the Purchaser shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.

(7) The Purchaser shall give us the time and opportunity necessary for the owed subsequent performance, in particular to hand over the goods the complaint refers to for inspection purposes. All claims must include a precise justification, including provision of the customer number, invoice number, invoice date and the production number, as displayed on each packaging. A sample of the goods in question must also be provided. In accordance with the statutory provisions, the Purchaser must return the defective item to us in the event of a replacement delivery. If we were not originally obliged to install it, then subsequent performance does not include removal of the defective item or its reinstallation.

(8) In accordance with the statutory provisions, for the purpose of inspection and subsequent performance, we shall bear or reimburse the expenses necessary, in particular transport, travel, labour and material costs, as well as any dismantling and installation costs, provided a defect actually exists. Otherwise, we may demand compensation from the Purchaser for the costs incurred as a result of the unjustified request to remedy the defect (in particular testing and transport costs), unless the lack of defectiveness was not recognisable to the Purchaser.

(9) In urgent cases, e.g. if operational safety is endangered or so as to prevent disproportionate damage, the Purchaser has the right to remedy the defect himself and to demand compensation from us for the objectively necessary expenses. We must be informed immediately and, if possible, in advance of any such self-delivery. The right of self-remedy does not exist if we would be entitled to refuse a corresponding supplementary performance in accordance with the statutory provisions.

(10) If the supplementary performance has failed or a reasonable period to be set by the Purchaser for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Purchaser may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in case of an insignificant defect.

(11) The Purchaser's claims for damages or reimbursement of futile expenses only exist in accordance with § 7, even in the case of defects, and are otherwise excluded.

§ 7 Other liability

(1) To the extent that nothing to the contrary arises from these terms and conditions, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2) We shall be liable for damages - for whatever legal reason - within the scope of liability for culpa in contrahendo in cases of intent and gross negligence. In the case of simple negligence, in accordance with statutory provisions (e.g. for care in our own affairs) and subject to a milder liability standard, we shall only be liable in the following cases

  • a. for damages arising from injury to life, limb or health,
  • b. for damages arising from the not inconsiderable breach of an essential contractual obligation (obligation the fulfilment of which is essential for the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from paragraph 2 shall also apply in the event of breaches of duty by or for the benefit of persons whose fault we are responsible for in accordance with statutory provisions. They shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims of the Purchaser under the Product Liability Act.

(4) Due to a breach of duty that does not consist in a defect, the Purchaser may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination of the Purchaser (especially according to §§ 651, 649 German Civil Code) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.

§ 8 Statute of limitations

(1) Notwithstanding § 438 Par. 1 No. 3 German Civil Code, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the statute of limitations shall commence upon acceptance.

(2) The above limitation period shall also apply to contractual and non-contractual claims for damages by the Purchaser that are based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 German Civil Code) would lead to a shorter limitation period in individual cases. However, claims for damages of the Purchaser according to § 7 Par. 2 sentence 1 and Sentence 2 (a), as well as according to the Product Liability Act, shall become statute-barred exclusively according to the statutory limitation periods.

§ 9 Retention of title

(1) Until complete payment of all our present and future claims from the purchase contract and an ongoing business relationship (secured claims), we reserve title to the sold goods.

(2) The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The Purchaser must inform us in writing immediately if an application to open insolvency proceedings is made or if the goods belonging to us are seized by third parties (e.g. seizures).

(3) On the basis of retention of title, in the event of breach of contract by the Purchaser, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or demand the return of the goods. The demand for surrender does not at the same time include the declaration of withdrawal from the contract; rather, we are entitled to merely demand surrender of the goods and to reserve the right to withdraw from the contract. If the Purchaser does not pay the due purchase price, we may only assert these rights if we have previously unsuccessfully set the Purchaser a reasonable deadline for payment, or if such setting of a deadline is dispensable under the statutory provisions.

(4) On the basis of retention of title, in the event of breach of contract by the Purchaser, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or demand the return of the goods. The demand for surrender does not at the same time include the declaration of withdrawal from the contract; rather, we are entitled to merely demand surrender of the goods and to reserve the right to withdraw from the contract. If the Purchaser does not pay the due purchase price, we may only assert these rights if we have previously unsuccessfully set the Purchaser a reasonable deadline for payment, or if such setting of a deadline is dispensable under the statutory provisions.

  • a. The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed the manufacturer. If the ownership rights of third parties remain in force in the event of processing, mixing or combination with goods of third parties, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. For the rest, the same shall apply to the resulting product as to the goods delivered under retention of title.
  • b. Hereby, pursuant to the preceding paragraph and by way of security, the Purchaser assigns to us any claims against third parties arising from the resale of the goods or the product in their entirety or in the amount of our possible co-ownership share. We accept the assignment. The obligations of the Purchaser stated in Par. 2 shall also apply with regard to the assigned claims.
  • c. The Purchaser remains authorised to collect the claim alongside us. We undertake not to collect the claim as long as the Purchaser meets his payment obligations towards us, there is no defect in his ability to pay and we do not assert the retention of title by exercising a right in accordance with Par. 3. However, if this is the case, we may demand that the Purchaser informs us of the assigned claims and their debtors, provides us with all information necessary for collection, and that we inform the Purchaser of the assigned claims and their debtors.  In this case, we shall also be entitled to revoke the Purchaser's authority to further sell 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 of our choice at the Purchaser's request.

§ 10 Prices and terms of payment

(1) Unless expressly agreed otherwise, our prices are in € per net kilo or litre, net unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply ex warehouse, plus statutory value-added tax. The customer accepts electronic invoicing.

(2) Our invoices must be paid in cash without deduction within thirty days of the invoice date. For payments made within 8 days of the invoice date, we apply a 2% discount, insofar as net prices were not expressly agreed upon.

(3) In the event of exceeding of the payment period, we are entitled to charge interest of 9% over the base interest rate as well as a dunning charge of up to 40 €..

(4) For payment by cheque, the invoice is not paid until the equivalent value is received.

(5) For payment by direct debit, the invoice total is withdrawn from the Purchaser’s account using the SEPA direct debit process. A granted direct debit authorisation will be used for future SEPA direct debit mandates. There is a three-day deadline for the advance notice of the direct debit.

(6) The assertion of rights of retention and the offsetting with claims, insofar as these are not indisputable or legally declared, is excluded. In the event of defects in the delivery, in particular in accordance with § 7 of these terms and conditions, the rights of the Purchaser shall remain unaffected.

(7) If, after conclusion of the contract (e.g. by filing for insolvency proceedings), it becomes apparent that our claim to the purchase price is endangered by the Purchaser's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary and after setting a deadline - to withdraw from the contract (§ 321 German Civil Code). In the case of contracts for the manufacture of unjustifiable items (custom-made items), we may declare rescission immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

(8) If there is legitimate reason to do so, we can demand payment in advance without having to supply the Purchaser with information about the reason for this demand. If the Purchaser refuses to meet this demand, we can withdraw from the contract.

(9) Payments to our sales team, representatives, storekeepers, drivers and other authorised representatives are only recognised as the amount owed to us in cases where these persons have our written authorisation or a receipt. Our customers are required to submit this written authorisation when making the payment.

§ 11 Choice of law and place of jurisdiction

(1) These terms and conditions and the contractual relationship between us and the Purchaser shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the Purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our place of business in Bonn. The same applies if the Purchaser is an entrepreneur in the sense of § 14 German Civil Code ist. In all cases, however, we shall also be entitled to institute legal proceedings at the place of performance of the delivery obligation in accordance with these terms and conditions or a prior individual agreement or at the Purchaser's general place of jurisdiction. Prior statutory provisions, in particular regarding exclusive responsibilities, shall remain unaffected..

§ 12 Final provision

The inefficacy of an individual clause in these Conditions does not affect the efficacy of the remainder of the provisions, nor the efficacy of the supply agreement.

As at: 07/01/2019

Kessler & Comp. GmbH & Co. KG · 53187 Bonn

Not yet a customer?

Get in touch!
Telephone: +49 (0) 228 40000 - 440
E-Mail: export@kessko.de
We look forward to hearing from you.