General Terms and Conditions of Business of Kubru GmbH & Co. KG
Last updated: 11/20/2019
§1 Area of applicability
- These General Terms and Conditions (“GTCs”) apply to all business relations conducted by Kubru GmbH & Co. KG (hereinafter referred to as “Kubru“) with its customers (hereinafter referred to as “Contractual Partner(s)“; together with Kubru hereinafter referred to as “Parties“).
- These GTCs apply exclusively in accordance with paragraph (3) in addition to the individual agreements of the parties. Deviating, conflicting or supplementary general terms and conditions of the contracting party shall only become part of the contract if and to the extent that Kubru expressly agrees to their validity. This requirement of consent shall apply in any case, for example even if Kubru unconditionally carries out the delivery to the contractual partner and is aware of the GTCs of the contractual partner.
- In any case, individual agreements made with the contractual partner in specific cases (including collateral agreements, supplements and amendments) shall take precedence over these GTCs. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or written confirmation by Kubru.
- Legally binding declarations and notifications made by the contractual partner with regard to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and other evidence, in particular in the event of doubt as to the legitimacy of the declarant, shall remain unaffected.
§2 Conclusion of contract
- Quotes made by Kubru are subject to confirmation and are non-binding. This also applies if Kubru has provided the contractual partner with catalogues, other product descriptions or documents – including in electronic form – to which Kubru retains title and copyright.
- Orders of goods placed by the contractual partner are deemed to be a binding contractual offer. Unless otherwise stated in the order, Kubru is entitled to accept this contractual offer within 7 days of its receipt by Kubru.
- Notice of acceptance may be given either in writing (e.g. by order confirmation) or by delivery of the goods to the contractual partner.
§3 Prices and payment, shipping costs
- Unless otherwise stated, the prices quoted by Kubru are inclusive of statutory VAT plus any shipping costs incurred.
- The purchase price is due and payable within 14 (fourteen) days of invoicing. The receipt of payment is the determining factor for if payment has been made on time. Kubru is entitled to make a delivery in whole or in part only against advance payment at any time, even within the framework of an ongoing business relationship. Kubru declares a corresponding reservation at the latest with the order confirmation.
- The contractual partner shall be deemed to be in default upon expiry of the aforementioned payment period. The purchase price shall be subject to interest at the statutory default interest rate applicable from time to time during the period of default. Kubru reserves the right to assert further claims for damages caused by default. Kubru’s claim against traders for commercial interest on the due date (§ 353 HGB) remains unaffected by this.
- The contractual partner is only entitled to a right to offset or retain payment if the counterclaims have been legally established in court or are undisputed or have been acknowledged in writing by Kubru.
- The goods will be delivered from Kubru’s warehouse, where the place of performance for the delivery and any subsequent performance shall also be. The goods may be dispatched to another destination (sales shipment) at the request and expense of the contracting party.
- The delivery period shall be agreed individually and specified by Kubru upon acceptance of the order. Delivery will then take place within 14 working days at the latest. This period begins with the conclusion of the contract according to § 2 para. 3.
- If Kubru is unable to meet binding delivery deadlines for reasons for which Kubru is not responsible (non-availability of the service), Kubru will inform the contractual partner immediately and at the same time inform the contractual partner of the expected new delivery deadline. If the service is also not available within the new delivery period, Kubru is entitled to withdraw from the contract in whole or in part; Kubru will immediately reimburse any consideration already rendered by the contractual partner.
- If the contractual partner discovers obvious defects of any kind in the packaging or the goods upon delivery, it must notify Kubru of this in writing within 14 days of receipt of the goods and – if possible – by forwarding pictures of the corresponding damage. The statutory rights of the contractual partner will not be limited by this.
- Kubru reserves the right to deliver the goods only after receipt of the purchase price plus shipping costs for orders placed by contractual partners with their place of residence or business abroad. In this case, the delivery period will commence upon receipt of payment, which is a deviation from paragraph 2.
§5 Retention of title
- The delivered goods remain the property of Kubru until the purchase price has been paid in full.
- The contractual partner may only use the goods and resell them in the regular course of business provided that it is not in default of payment. However, it may not pledge the goods or assign them by way of security. The contractual partner assigns by way of security to the full extent the contractual partner’s claims for payment against its customers arising from the resale of the goods as well as the contractual partner’s claims against its customers or third parties in respect of the goods arising from any other legal grounds (in particular claims arising from tortious acts and claims to insurance benefits). Kubru accepts this assignment.
§6 Warranty and Liability
- The statutory provisions apply to the rights of the contractual partner in the event of material defects and defects of title (including incorrect and short delivery), unless otherwise specified below.
- Kubru is liable for damages – for whatever legal reason – within the scope of fault-based liability in cases of intent and gross carelessness.
- Notwithstanding paragraph (2), Kubru shall also be liable in the event of ordinary negligence (subject to a milder liability standard in accordance with statutory provisions) for damages resulting from injury to life, limb or health.
- As a further deviation from paragraph (2), Kubru will also be liable in the case of simple negligence for damages arising from a not inconsiderable breach of a material contractual obligation, whereby liability shall be limited to the foreseeable damage typical of the contract.
- The restrictions in paragraphs (3) and (4) shall also apply in favor of Kubru’s legal representatives and vicarious agents if claims are asserted directly against them.
- The limitations of liability in these GTCs do not apply if Kubru fraudulently concealed the defect or assumed a guarantee for the quality of the item. The same will apply if the parties have reached an agreement on the quality of the item.
- In the case of orders placed by commercial traders, the obligation to examine and give notice of defects in accordance with § 377 HGB (German Commercial Code) and a limitation period of 12 months shall apply, beginning with the delivery of the item.
- The provisions of the Law on Product Liability remain unaffected by these provisions.
- Kubru accepts no liability for delays in delivery as a result of force majeure and similar events for which Kubru is not responsible and which cannot be foreseen, such as refusal to obtain official permits, industrial disputes, etc. Kubru cannot be held liable for such events. Delivery periods will be extended by the period of the hindrance.
Kubru has the copyright to all images, films and texts published on the website, in catalogs or promotional materials published by Kubru. No use of the images, films and texts is permitted without Kubrus’ express consent.
§8 Applicable law and jurisdiction
- All contracts are 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.
- If individual clauses of these GTCs are invalid or void in whole or in part, this does not affect the validity of the remaining clauses or the remaining parts of such clauses.
- In the event that the contractual partner is a trader with a registered office in Germany at the time the order is placed, the place of jurisdiction will be the Stuttgart Regional Court, the Munich Regional Court or the Cologne Regional Court at Kubru’s discretion.