Terms of service
of GEBR. KÜHN GmbH & Co. KG, Schwäbisch
§ 1 Scope of application
1.1 All deliveries and services are provided
exclusively on the basis of the following General Terms and Conditions
(hereinafter referred to as "GTC") in the version valid at the time
of the order. These apply to all contracts concluded between the customer and
us for the delivery of goods. Customers within the meaning of these GTC may be
both consumers and entrepreneurs. Consumers in the sense of the GTC are natural
persons who conclude contracts for a purpose that can be attributed neither to
their commercial nor to their professional activity. Entrepreneurs in the sense
of the GTC are natural or legal persons or partnerships with legal capacity who
act in the exercise of their commercial or independent professional activity
when concluding a contract with the seller.
1.2 They shall also apply to all future business
relations, even if they are not expressly agreed again. We hereby object to any
deviating terms and conditions of the customer which we do not expressly accept
in writing. They are also non-binding for us for future contracts for the
delivery of goods and services, even if we do not expressly object to them
1.3 All agreements made between the customer and
us for the execution of the contracts are set out in writing in these terms and
conditions and the order confirmation from us.
§ 2 Offer and conclusion of contract
2.1 All offers are subject to change and
non-binding. Changes and errors are reserved.
2.2 Dimensions, weights, illustrations, drawings
and other documents which form part of our non-binding offers are only
approximate unless they have been expressly designated as binding.
2.3 Declarations of acceptance, order
confirmations and all declarations must be confirmed in writing to be valid.
2.4 If the customer's order is to be qualified
as an offer in accordance with § 145 BGB (German Civil Code), we can accept
this offer within 2 weeks of receipt by us by means of a written order
confirmation or by sending the goods.
2.5 We are entitled to withdraw from the
contract if we do not receive the delivery item despite the prior conclusion of
a corresponding purchase contract on our part. We shall inform the customer
without delay of the non-timely availability of the delivery item and, if we
wish to withdraw, exercise the right of withdrawal without delay.
2.6 We reserve the property rights and
copyrights to all documents provided to the customer in connection with the
placing of the order, such as drawings, calculations and the like. These
documents may not be made accessible to third parties unless we give the
customer our express written consent to do so. If we do not accept the
customer's offer within the aforementioned period, these documents must be
returned to us without delay.
§ 3 Prices and Payment
3.1 Unless otherwise stated, all prices are
final prices including VAT in Euro.
3.2 Unless otherwise agreed in writing, our
prices are ex works without discounts or other deductions
3.3 Payment of the purchase price must be made
exclusively via the payment methods available in the shop. The deduction of
discounts is not permitted.
§ 4 Rights of retention
The customer is only entitled to exercise a
right of retention if his counterclaim is based on the same contractual
§ 5 Delivery time
5.1 The start of the delivery time stated by us
presupposes the timely and proper fulfilment of the customer's obligations. We
reserve the right to plead non-performance of the contract. If subsequent
amendments to the contract are agreed, a new delivery date or delivery period shall
be agreed at the same time if necessary.
5.2 If the customer is in default of acceptance
or culpably violates other obligations to cooperate, we shall be entitled to
demand compensation for the damage incurred by us in this respect, including
any additional expenses. We reserve the right to assert further claims. If the
above conditions are met, the risk of accidental loss or accidental
deterioration of the object of sale shall pass to the customer at the point in
time at which the customer is in default of acceptance or debtor's delay.
5.3 We are entitled to make partial deliveries
and render partial services at any time, insofar as this is reasonable for the
5.4 If we are culpably unable to meet an
expressly agreed deadline or are in default for other reasons, the customer
shall grant us a reasonable period of grace - commencing on the date of receipt
by us of the written notice of default or, in the case of a calendar deadline,
on its expiry. After fruitless expiry of this period of grace, the customer
shall be entitled to withdraw from the contract.
§ 6 Transfer of risk in case of shipment
6.1 The risk shall pass to the customer upon
delivery to the shipping agent, but no later than upon leaving our premises.
This applies regardless of whether the goods are shipped from the place of
performance or who bears the freight costs.
6.2 If the customer so desires, we shall insure
the delivery by means of transport insurance; the costs incurred in this
respect shall be borne by the customer.
§ 7 Retention of title
7.1 We retain title to the delivered item until
full payment of all claims arising from the underlying contract. This shall
also apply to all future deliveries, even if we do not always expressly refer
to this. We shall be entitled to take back the object of sale if the customer
acts in breach of contract.
7.2 As long as ownership has not yet passed to
the customer, the customer is obliged to treat the object of sale with care. In
particular, he is obliged to insure it at his own expense against theft, fire
and water damage at its replacement value. As long as ownership has not yet
been transferred, the customer must inform us immediately in writing if the
delivered item is seized or exposed to other interventions by third parties.
Insofar as the third party is not in a position to reimburse us for the court
and out-of-court costs of an action in accordance with § 771 ZPO, the customer
shall be liable for the loss incurred by us.
7.3 The customer is entitled to resell the reserved
goods in the normal course of business. The customer hereby assigns to us the
claims against the purchaser arising from the resale of the reserved goods in
the amount of the final invoice amount agreed with us (including value added
tax). This assignment shall apply irrespective of whether the purchased goods
have been resold without or after processing. The customer shall remain
entitled to collect the claim even after the assignment. Our authority to
collect the claim ourselves remains unaffected by this. However, we shall not
collect the claim as long as the customer meets his payment obligations from
the proceeds collected, is not in default of payment and, in particular, as
long as no application for the opening of insolvency proceedings has been filed
or payments have not been suspended.
7.4 The processing or transformation of the
object of sale by the customer shall always be carried out in our name and on
our behalf. In this case, the customer's expectant right to the object of sale
shall continue to apply to the transformed object. If the object of sale is
processed with other objects not belonging to us, we shall acquire co-ownership
of the new object in the ratio of the objective value of our object of sale to
the other processed objects at the time of processing. The same shall apply in
the event of mixing. If the mixing is carried out in such a way that the
customer's item is to be regarded as the main item, it shall be deemed agreed
that the customer shall transfer co-ownership to us on a pro rata basis and
shall hold the sole ownership or co-ownership thus created in safe custody for
us. In order to secure our claims against the customer, the customer shall also
assign to us such claims as accrue to him against a third party as a result of
the combination of the reserved goods; we hereby accept this assignment.
7.5 We undertake to release the securities to
which we are entitled at the request of the customer insofar as their value
exceeds the claims to be secured by more than 20%.
7.6 We are entitled to take back our goods
subject to retention of title after issuing a reminder and if the customer is
in arrears with a substantial part of his payment obligations. Just like a
seizure by us, this shall not be deemed a withdrawal from the contract. The
customer is obliged to surrender the goods. A right of retention is excluded.
7.7 Amounts collected by the customer from
assigned claims shall be kept separately until they are transferred to us in
order to exclude offsetting and/or netting with bank accounts with debit
§ 8 Warranty and notice of defects
8.1 Warranty rights of the customer presuppose
that the customer has duly fulfilled his obligations to inspect and give notice
of defects owed under § 377 HGB/§§ 437 BGB.
8.2 For orders from consumers, the warranty is
provided in accordance with the statutory provisions.
8.3 Claims for defects shall become
statute-barred 12 months after delivery of the goods supplied by us to our
customer. The statutory limitation period shall apply to claims for damages in
the event of intent and gross negligence and in the event of injury to life,
limb and health which are based on an intentional or negligent breach of duty
on the part of the user.
If the law prescribes longer periods, these
periods shall apply.
Our consent must be obtained before any goods
8.4 If, despite all due care and attention, the
delivered goods show a defect which was already present at the time of the
transfer of risk, we shall, at our discretion, either repair the goods or
supply replacement goods, subject to timely notification of defects. We shall
always be given the opportunity to remedy the defect within a reasonable period
of time. Claims under a right of recourse shall remain unaffected by the above provision
8.5 If the subsequent performance fails, the
customer may withdraw from the contract or reduce the remuneration, without
prejudice to any claims for damages.
8.6 Claims for defects shall 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 in the case of damage arising after the transfer of risk as a result
of incorrect or negligent handling, excessive strain, unsuitable operating
materials, defective construction work, unsuitable building ground or due to
special external influences which are not assumed under the contract. If the
customer or third parties carry out improper repair work or modifications,
there shall also be no claims for defects for these and the resulting
8.7 The customer shall have no claim with
respect to expenses incurred in the course of supplementary performance,
including costs of travel, transport, labor, and material, to the extent that
expenses are increased because the goods delivered by us were subsequently
brought to another location than the customer's branch office, unless such
relocation is in accordance with the intended use of the goods.
8.8 The customer's right of recourse against us
shall exist only to the extent that the customer has not entered into any
agreements with its customers exceeding the statutory provisions governing
claims based on defects. Furthermore, paragraph 6 shall apply accordingly to
the scope of the customer's right of recourse against the supplier.
§ 9 Right of revocation and revocation instructions for
9.1 As a consumer, you have the right to revoke
this contract within 14 days without stating any reasons. The revocation period
is 14 days from the day on which the consumer or a third party named by the
consumer, who is not the carrier, has or has taken possession of the goods. In
order to exercise the right of withdrawal, the consumer must inform us,
Gebr. Kühn GmbH & Co. KG
73529 Schwäbisch Gmünd, Germany
by means of a clear declaration (e.g. a letter
sent by post, fax or e-mail) of the decision to withdraw from this contract.
The consumer may use the following sample text for this purpose, which is,
however, not mandatory:
Gebr. Kühn GmbH & Co. KG
73529 Schwäbisch Gmünd, Germany
I/we (*) hereby revoke the contract concluded by
me/us (*) for the purchase of the following goods (*)/the provision of the
following service (*)
Ordered on (*)/received on (*)
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer(s) (only in the case
of communication on paper)
(*) Delete as applicable.
In order to comply with the withdrawal period,
it is sufficient for the consumer to send the notification of the exercise of
the right of withdrawal before the expiry of the withdrawal period.
9.2 If the consumer (hereinafter referred to as
"you") revokes the contract, we shall reimburse all payments we have
received from you, including delivery costs (with the exception of additional
costs resulting from the fact that you have chosen a type of delivery other
than the cheapest standard delivery offered by us), without undue delay and at
the latest within 14 days from the day on which we received the notification of
your revocation of this contract. For this repayment, we will use the same
means of payment that you used for the original transaction, unless expressly
agreed otherwise with you; in no case will you be charged for this repayment.
You must return the goods to us or hand them
over to us without delay and in any case no later than 14 days from the day on
which you notify us of the revocation of this contract. The deadline is met if
you send the goods before the end of the period of 14 days. We may refuse repayment
until we have received the goods back or until you have provided proof that you
have returned the goods, whichever is the earlier. You will only have to pay
for any loss in value of the goods if this loss in value is due to handling of
the goods that is not necessary for testing the condition, properties and
functioning of the goods. You shall bear the costs of the direct return of the
9.3 Unless otherwise agreed by the parties, the
right of withdrawal does not apply to contracts for the supply of goods that
are not prefabricated and for the manufacture of which an individual selection
or determination by the consumer is decisive or which are clearly tailored to
the personal needs of the consumer.
§ 10 Miscellaneous
10.1 The entire legal relationship between the
parties shall be governed by the laws of the Federal Republic of Germany to the
exclusion of the UN Convention on Contracts for the International Sale of Goods
(CISG). In the case of consumers, this choice of law shall not affect the mandatory
provisions of the law of the country in which the customer has his habitual
10.2 Unless otherwise stipulated in an order
confirmation or mandatory statutory provisions, the place of performance and
exclusive place of jurisdiction for all disputes arising from this contract
shall be our registered office. However, we are also entitled to sue the buyer
at his place of residence and/or business.
10.3 If one or more provisions of these GTC are
invalid, the remaining provisions shall remain valid. Insofar as the provisions
are invalid, the content of the contract shall be governed by the statutory