General terms and conditions of the company
KOBRA FORMEN GMBH
As on: 23.07.2021
§ 1 Scope
The following terms of sale (general terms and conditions - AGB) shall apply exclusively to commercial dealings related to companies, legal entities under public law and fund assets under public law. They are applicable for all the products offered by us as well as all contracts concluded with us. They are also applicable for any other business relations and contracts subsequently concluded, even if they are not expressly agreed. Conclusion of contract is carried out exclusively on the basis of our AGB; any AGB of the buyer shall only be valid if expressly agreed. Other agreements shall also not apply, even if our AGB do not contain the individual regulations.
§ 2 Formation of a contract
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Our offers shall be subject to confirmation and shall be non-binding, unless we have explicitly specified them to be binding in text form. The offers shall be prepared on the basis of the customer’s enquiry. Incorrect or inaccurate information from the customer shall not invoke the liability of the person preparing the offer.
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By placing an order on the basis of the offer prepared by KOBRA, the customer makes a binding offer to conclude a contract and shall be bound to the same for four weeks. Conclusion of contract shall be carried out by us by sending an order confirmation in text form. No response from our side shall mean that we do not accept the order. In such a case, the legal consequences of a constitutive business letter of confirmation shall be excluded.
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All agreements require confirmation in writing. The information in the offer documentation shall be provided after thorough investigation. References to dimensions, drawings, illustrations, weights, performances and prices can be subject to change and are mere approximations, unless explicitly specified to be binding. They cannot be considered as an agreement on quality. Details in brochures and/or operating instructions are non-binding, i.e. they shall not be deemed to be warranted properties or guarantees.
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We reserve the right to make changes to the design and form of the delivery item, insofar as the delivery item is not significantly changed and the changes are reasonable for the Buyer.
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The documents shall remain the property of KOBRA Formen GmbH, which shall reserve all copyrights to these documents. They must not be used and/or forwarded to a third party without our consent and must be considered to be confidential. The documents must be returned to us immediately if the contract is not signed.
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We shall assume no liability for the information and advice provided. However, the liability for deliberate intent or gross negligence is not excluded.
§ 3 Prices
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Unless otherwise mentioned in the confirmation of order, the ex works prices are inclusive of shipment and packaging.
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Our invoices must either be paid in cash without deduction, or payments must be transferred to an account specified by us within 30 days from the date of invoice. Deviating payment terms must be contractually agreed upon separately and in text form. Our representatives are not authorised to accept payments. In case of delay in payment from the customer's side, we shall be entitled to request a default interest of at least 9% above the respective base rate of the European Central Bank, however no less than 9%. If we are able to prove greater default loss, we shall be entitled to claim it.
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In case of contracts with an agreed delivery time of more than 4 months, we reserve the right to increase our prices in accordance with any cost increases that have occurred for raw materials, consumables and supplies. If the increase is more than 5% of the agreed price, the customer has the right to cancel the contract within two weeks of the price change announcement. At the end of this period, the higher shall be deemed to have been agreed.
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The customer shall be entitled to offset and/or withhold payments only if his counterclaims are legally established or are recognised by us.
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If the payment is to be made in instalments and the buyer falls into arrears for two successive instalments, the outstanding amount is due for immediate payment.
§ 4 Obligation to deliver/delivery deadline
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Fixed-date transactions shall not be undertaken, unless explicitly agreed upon. In case of a delay from our side, our obligation to compensate for damage in case of slight negligence shall be limited to 50% of the foreseeable damage. If the buyer asserts his claim for damages, we shall be entitled to prove that we are not responsible for the breach of duty. Further claims for damages shall be effective only if the delay is caused on account of deliberate intent or gross negligence.
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Adherence to our obligation to deliver shall require timely and proper fulfilment of the customer´s obligation.
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Delivery dates are non-binding and are subject to our timely, complete and correct self-delivery. In the event of non-delivery by our suppliers/manufacturers, both parties - we and the Buyer - shall be entitled to withdraw from the contract.
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If, for reasons for which we are not responsible, dispatch is not possible at all or temporarily in case of sale by dispatch, the risk shall be transferred to the buyer after an indication of the readiness of dispatch. The compensation shall become payable at the same time.
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The delivery period shall be extended appropriately in the context of labour disputes, in particular strikes and lockouts, in the event of unforeseen obstacles and events beyond our control or that of our vicarious agents, as well as in cases of force majeure. We shall notify the customer of the beginning and end of such circumstances as soon as possible.
§ 5 Warranty/Liability
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In case of a defect for which we are responsible, we shall be entitled to decide between repair of the defective piece (rectification) or its replacement. Warranty claims of the customer require the customer to have complied with his obligations as per § 377 of the German Commercial Code to examine and report defects. He must thus examine the delivery immediately and no later than before the first use for any defects and notify us in case any are identified. The defects must be reported in text form along with an accurate description of the nature and scope of the defect. Warranty claims, if any, can be made only if the defects are reported immediately. Warranty claims are only permissible only if the defect is not an insignificant one. As part of our supplementary performance, we shall be under obligation to reimburse the customer for the expenses that were necessary for rectifying the defect or installing of repaired or delivered defect-free product. If we repair the defect, we shall not be under obligation to pay the additional costs accrued as a result of the customer moving the purchase item from his place of business to a different location.
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If the defect has not been repaired successfully or if we are not ready or not in a position to repair the defect, or if the repairs cannot be carried out due to reasons for which we are responsible, the customer shall be entitled to withdraw from the contract or to demand a reduction in the purchase price.
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Further claims of the customer, especially claims for damages including loss of profit or due to other financial losses, are excluded. This shall not be applicable if the damage is caused on account of deliberate intent or gross negligence. Similarly, the liability limitation shall not be applicable if the customer asserts claims for damages due to the absence of the guaranteed features.
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If a contractual obligation is violated due to negligence and without gross fault, our liability shall be limited to the typical, contractual foreseeable damage. We shall not be liable if an obligation is violated due to slight negligence on our part and on the part of our agents, as long as the obligation is not a contractual obligation and if its violation does not jeopardise the execution of the contract.
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The warranty obligation shall be 12 months from the delivery of the or from its acceptance and shall be limited to the extent of normal use. The same time period shall be applicable for claims for reimbursement of consequential damage, provided that the claims resulting from impermissible actions have not been made. There is no separate warranty period for rectifications and replacements within the scope of the warranty; the warranty period for the original delivery item shall be applicable. However, the warranty period shall be extended by the duration of interruption as a result of rectification or replacement.
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The exclusions and limitations of liability mentioned in the AGB shall not be applicable, if a liability on our part is mandatory in case of delays in payment, gross negligence, loss of life, injury to body or health, or as a result of the warranty provided or in accordance with the regulations of the Product Liability Act.
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When delivering a new mold, the customer shall be under obligation to immediately check the product geometry and the technical connection dimensions.
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This section shall not affect the rights of recourse against the manufacturer.
§ 6 Reservation of title
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We shall retain our ownership of the purchase item till the receipt of all payments resulting from the business transaction. If the customer violates any of the contractual conditions, especially in case of delay in payments, we shall be entitled to take back the purchase item after sending a warning in text form. The withdrawal or seizure of purchase items shall not be considered withdrawal from the contract.
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The customer must immediately inform us in text form about seizures or any other interference by third parties. The customer may neither mortgage goods that are under reservation of title nor assign them as security. The costs incurred for ending such actions shall be borne by the customer.
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Processing or modification of the purchase item by the customer shall always be carried out for us. If the purchase item is processed with other items not belonging to us, we shall acquire co-ownership of the new item to the ratio of the value of the purchase item in relation to the other processed items at the time of processing.
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If the purchase item is mixed with other items not belonging to us, we shall acquire co-ownership of the new item at the time of mixing. If the customer's item must be regarded as the main item, he shall assign proportionate co-ownership to us.
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The customer is entitled to sell the delivered goods in the normal course of business. He shall assign to us, in advance, his receivables from the sale or transfer of use to his purchasers till the complete repayment of our claims from deliveries of goods. The buyer shall be entitled to collect his receivables even after the transfer. However, we shall reserve the right to collect the receivables if the customer does not adhere to his payment obligations towards us or if a request for opening an insolvency procedure has been made against him. We can demand that the customer’s debtors make the payments to us and that the customer provides us the names of the debtors of the transferred receivables for this purpose and discloses the transfer to these debtors.
We can demand that the customer’s debtors make the payments to us and that the customer provides us the names of the debtors of the transferred receivables for this purpose and discloses the transfer to these debtors.
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At the request of the customer, we shall be under obligation to release the securities to which we are entitled insofar as the value of our security exceeds secured accounts receivable by more than 20%.
§ 7 Property rights
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If the customer has provided us with specifications, he is obliged to ensure that the property rights of a third party are not violated in doing so. If we come across an instance of violation of the property rights, we shall be entitled to stop the execution of the order till the buyer proves his usage authorisation. If the customer does not provide proof within a month, we shall be entitled to withdraw from the contract. The customer shall be under obligation to release us from any claims by third parties as well as to reimburse the incurred expenses and lost profits. Lost profit shall be taken as 20% of the net order amount if the customer does not provide proof of reduced profits.
§ 8 Set-off and group set-off clause
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If we have a business relationship with a customer in which the customer acts as the supplier and we act as the buyer, we reserve the right to retain or offset the purchase price or a part thereof in accordance with statutory regulations. This applies in the case of late payment of the supplier, even if our claim becomes due at a later date.
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Furthermore, we are entitled to offset all of our own claims and the claims of associated companies against the claims of the supplier and claims of companies associated with the supplier. The supplier shall receive information on any holdings on request if necessary.
§ 9 Applicable law and place of jurisdiction
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The law of the Federal Republic of Germany shall be applicable under the exclusion of any conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
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Our place of business shall be the place of performance.
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Insofar as the customer is a businessmann, a legal person of public law or a special fund under public law, the exclusive jurisdiction for all disputes arising from the contractual relationship shall be our place of business. We are also entitled to file a complaint at the corporate headquarters of the customer.