Terms & Conditions
Last amended 08/2022
Section 1: Contractual object, scope
All contracts, deliveries and services provided by KALA, including ones concluded in the future, shall be exclusively governed by the following terms and conditions, which are hereby agreed. Any terms of sale asserted by the customer shall not apply. We shall likewise not be bound to terms of sale from the customer even if we have not expressly once again objected thereto upon conclusion of a contract.
Section 2: Quotes, conclusion of contracts and scope of the delivery/service
- Our quotes are non-binding.
- Orders shall only be deemed accepted once we have confirmed them in writing.
- The scope of delivery is determined by the information provided in our written order confirmation. Any ancillary agreements or changes require our written confirmation.
- Subject to deviating agreements met with the customer, we reserve the right to make changes to the workmanship, design, construction, materials, specification and manufacturing method, even after we have sent the order confirmation.
- Documentation such as illustrations, sketches, information on the quantity, dimensions and weight, etc., on which the quote or order confirmation is based only provide approximate values, unless they have been explicitly marked as binding.
Section 3: Prices
- Our prices are listed net ex works or stock in euros, excluding packaging and other shipping and transport costs, unless otherwise agreed. Packaging is billed at cost price and can only be returned if we are required to accept the return thereof in accordance to mandatory statutory regulations. The listed prices also include travel and transport costs for building services that we perform at the customer’s premises. Prices do not include statutory VAT; this shall be listed separately in the invoice in the statutory amount.
- If over 4 months have passed between the conclusion of the contract and delivery due to delivery delays for which we cannot be held accountable, we reserve the right to increase our prices on the basis of the material, payroll and other ancillary costs we have incurred. If the purchase price increases by over 15%, the customer reserves the right to withdraw from the contract.
- In the event that we facilitate change requests from the customer, we shall invoice the customer for the extra costs incurred.
Section 4: Payment terms
- Subject to deviating agreements, all invoices shall be due for payment immediately upon receipt without delay.
- We do not accept cash payments. Cheques shall only be accepted on account of performance and subject to the proviso that they are honoured by the bank. The customer shall be liable to pay all costs related to cheque payment.
- The customer shall only be entitled to an agreed discount if he has not defaulted on any other payments.
- The customer shall only be entitled to offset or withhold payment if their counterclaim(s) are not subject to debate or have been settled by court verdict. However, this shall not affect the right to withhold payment arising from the same contractual relationship.
- All receivables shall be due for payment immediately in the event of non-compliance with the payment terms or if we become aware of circumstances that may impact the customer’s creditworthiness after the completion of an individual contract. Furthermore, in this case, at our discretion, we shall be entitled to demand advance payment or surety for any outstanding deliveries, withdraw from the contract after a reasonable grace period or seek compensation for the non-fulfilment. We also reserve the right to forbid the resell and return of delivered goods subject to retention of title, or request the transfer of direct ownership at the customer’s cost and to revoke the direct debit mandate as per Section 10.6.
Section 5: Delivery period, partial deliveries
- Specified delivery periods and dates shall be considered approximate. The delivery period shall not commence until we have sent the order confirmation and the delivery date specified therein, and until we have received all documents, materials and equipment to be provided by the customer.
- The delivery period shall be deemed adhered to if the delivery item has left our factory or warehouse, or a notification of readiness for shipment has been sent prior to the end of the delivery period.
- In the event that changes or additions are subsequently made to the delivery agreement, a new delivery period must also be agreed. The new delivery period shall not enter into force until we have received a copy of the new order confirmation signed by the customer.
- In cases of force majeure, we shall be entitled to postpone performance of the service by a reasonable period or withdraw from the part of the contract yet to be fulfilled. Force majeure shall be deemed to include strikes, lock-outs, mobilisation, war, blockades, import and export embargoes, shortages of raw materials and fuel, fire, traffic stoppages, operational or transport interruptions; the same applies to sub-suppliers. The customer shall not be permitted to assert any claims for compensation as a result of a force majeure event, subject to proof of intent or gross negligence on our part.
- Furthermore, we cannot be held liable for the aforementioned circumstances should they arise during an existing delay. We shall endeavour to inform the customer of the dates on which we expect the hindrance to timely performance to start and end as soon as possible.
- Delivery obligations and deadlines are only agreed subject to the correct and punctual availability of supplies and raw materials. In the event that this is not the case, we reserve the right to withdraw from the contract without any requirement to pay compensation. We do not assume any responsibility for the procurement risk.
- If we fail to meet the delivery deadline, the customer must grant a reasonable grace period of a minimum of three weeks. If we subsequently fail to adhere to the delivery period, including the reasonable grace period, we shall solely be liable for the invoice amount of the quantity of goods that were not delivered by the delivery date, up to a maximum of the amount of the negative interest.
- Deliveries may be made in instalments.
Section 6: The customer’s duty to cooperate, use of products, moulds, devices and models
- The customer must provide all information required for the provision of services without undue delay. Furthermore, the customer must bear any extra costs incurred due to extra work required to remedy incorrect or later correct information provided by the customer.
- The customer shall be liable for compliance with statutory provisions when using the products.
- The customer shall be invoiced separately for moulds, devices and models. The same applies to the production of replacement parts following the wear and tear or destruction of the originals for reasons for which we are not culpable. The goods shall remain our property at all times. They shall be kept for up to a year after delivery of the last order. After this time, we reserve the right to dispose of them. New moulds, devices and models must be produced and correspondingly invoiced for new orders.
Section 7: Initial samples
- The approval of submitted initial samples and the express waiver of the submission of initial samples by the customer shall release us from any liability for the parts manufactured according to these documents.
- We do not assume any responsibility for errors found in the order, the submitted documents or errors due to unclear or incomplete information.
Section 8: Transfer of risk, shipment
- The risk of accidental loss or deterioration of our goods sold for dispatch passes to the customer upon delivery of the goods to the customer or the person specified for receipt of the delivery at the latest when the goods leave our factory or warehouse, even if we were responsible for the delivery, delivered the goods in intervals or rendered other services.
- If shipment of the goods is delayed for reasons for which we are not responsible or due to the customer’s conduct, the risk shall pass to the customer upon notification that the goods are ready for shipment.
- We are not required to insure the shipment against transport damages or take out a corresponding insurance policy, subject to deviating written agreements concluded with the customer.
Section 9: Warranty
- The customer is required to check the goods for visible damage immediately upon handover or delivery thereof and to inform us of any damage in writing within 8 weeks after delivery. We shall not accept liability for any visible damage that is not reported within the above period and it shall be excluded from the warranty.
- The customer must inform us of any non-apparent defects that only become apparent over the course of time without undue delay.
- Goods may only be returned to us on the basis of a defect with our prior consent. Returns sent without our prior consent may be rejected. In this case, the customer shall be required to bear the costs of the return.
- If a justified complaint leads to subsequent performance in the form of a new delivery, the corresponding terms for the delivery period shall apply accordingly. A grace period of at least three weeks must be granted for corrective measures through repairs.
- The warranty period shall end one year after the delivery of the goods. If the customer is a consumer, this period shall extend to two years.
Section 10: Retention of title
- We shall retain ownership of the delivered goods until full payment of all claims from the business relationship, including those asserted in the future, even if payments are made for specifically designated claims. In the case of open accounts, the goods subject to retention of title shall constitute security for the outstanding amount.
- Goods subject to retention of title may only be sold in the ordinary course of business. This shall not apply if the customer defaults on payment. The customer shall not be entitled to pledge or transfer ownership of the goods by way of security. We must be notified without delay if the goods are seized by a third party.
- Any adaptation, processing or the combination of our goods performed by the customer must solely be carried out on our instruction without giving rise to any obligations of liability on our part. If the goods are processed, transformed or combined with items not owned by us, we shall be entitled to the right of co-ownership for the new item in the proportion of the invoiced amount of the processed, transformed or combined item subject to retention of title to the value of the new item.
- If the goods subject to retention of title are installed as an essential component on third-party property by the customer or on behalf of the customer, the customer hereby assigns to us any claims for payment asserted against the third party or the party concerned in the amount of the invoiced value of the goods subject to retention of title along with all ancillary rights, including the granting of a debt-securing mortgage. We hereby accept the assignment.
- If the goods subject to retention of title are installed as an essential component on the customer’s property, the customer hereby assigns the claims arising from the sale of the property or from property rights in the amount of the invoiced value of the goods subject to retention of title along with all ancillary rights. We hereby accept the assignment.
- The customer hereby assigns all claims – including all balance debts on current accounts – against third parties to which they are entitled in relation to the use of the goods subject to retention of title, particularly due to reselling, adaptation and processing, in the amount listed on the invoice. This assignment serves to secure all claims, particularly claims for damages we assert against the customer. The customer reserves the right to collect the assigned claims until this right is accordingly revoked by us. The right to recover claims shall lapse without express revocation in the event that the customer defaults in payment or other circumstances indicate that the customer is experiencing payment difficulties.
- If the realisable value of the existing collateral exceeds our claims by more than 20%, we shall be obliged to release collateral at our discretion at the customer’s request.
- In the event that the customer defaults in payment, the customer shall be required to disclose all information required to enforce our retention of title rights, in particular to provide an itemized list of the goods subject to retention to title and the location thereof, without undue delay at our request.
- The customer’s right to own the goods subject to retention of title shall lapse if he fails to meet his obligations from the mutual business relationships. In these cases, we shall be entitled to enter the customer’s premises or other land owned by the customer and repossess the goods subject to retention of title.
Section 11: Limitations of liability
- In the event of ordinary negligence of duty, our liability shall be limited to the foreseeable, direct average damages typical for the contract in consideration of the nature of the goods. The same applies to ordinary negligence of duty by our legal representatives or vicarious agents. However, we do not assume any liability for ordinary negligence of inconsequential contractual obligations.
- The above limitations of liability do not affect the customer’s claims concerning product liability. Furthermore, the limitations of liability do not apply to damage to the life, limb and health of the customer for which we are responsible.
Section 12: Building services
- The Contracting Rules for Award of Public Works (part B) as applicable at the time the contract was concluded shall apply to all building services, in particular woodwork, plumbing work and roofing work, including installation. The provisions found in these Terms and Conditions shall also apply.
- The pertinent standards, provisions and recognised rules of engineering must be observed for the installation of our products. The above clause particularly applies if the customer or a third party perform work related to installation.
Section 13: Place of performance and jurisdiction
- The place of performance for all obligations that directly or indirectly arise from this contractual relationship, including the duty of payment, is our registered office.
- To the extent that customer is a merchant, legal entity under public law or special fund under public law in accordance with the German Civil Code, the place of jurisdiction shall be our registered office. We also reserve the right to take legal action against the customer at a court with jurisdiction over the customer’s registered office or one of the customer’s branches.
Section 14: Governing law
- These Terms and Conditions and the entire legal relationship between us and the customer are solely governed by the laws of the Federal Republic of Germany.
- The United Nations law governing the international sale of goods (CISG) shall not apply.
Section 15: Final provisions
- All amendments, supplements or ancillary agreements require the written form.
- If a provision in these Terms and Conditions is found to be void or unenforceable, this shall not affect the validity of the remaining provisions. An agreement must be met between the contractual partners to replace the void or unenforceable provision with a legally effective provision that conveys the intent and purpose of the original void or unenforceable provision.