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GENERAL TERMS AND CONDITIONS OF BUSINESS


I. Scope


These conditions of business apply to all current and future transactions between us and our customers.
We will not be bound by any of the customer's deviating conditions that we have not expressly recognised,
even if we do not expressly object to them.


II. Conditions of Delivery


1. Conclusion and Content of Contracts

1.1 Our quotes are non-binding. All agreements apply only if they have been recorded in writing unless the customer can prove that he has distanced himself from them in the case concerned.

1.2 Documents which are part of the quote such as drawings or diagrams, technical data, references to standards and statements in advertising media will only constitute guarantee statements if they have been expressly designated as such.

1.3 Deviations in the goods delivered from quotes, samples, test and preliminary deliveries will only be permitted if made in according to the respective applicable DIN standards, other relevant technical standards or within tolerances customary for the industry.

2. Prices

2.1 Our prices exclude the cost of packaging, freight, loading and unloading, transport, insurance, installation and commissioning. These charges are to be borne by the customer. As required by law, we will take back packaging delivered by us if returned to us by the customer within a reasonable period at no charge to us.

2.2 For businessmen the authoritative price is that applying when the contract is concluded plus VAT.

3. Delivery Periods

3.1 Delivery dates or deadlines are only binding if they have been agreed to in writing, unless the customer can provide evidence of another method in the case concerned. Delivery dates or deadlines will be deemed to have been adhered to if the goods have left our premises by the end of the delivery date or deadline. Deliveries will not be due if the customer has not provided any necessary assistance or has not made any agreed necessary advance payment. In such cases our binding delivery dates and deadlines will not commence until the above-mentioned assistance has been performed or advance payment received.

3.2 In the case of delivery delays for which we are not responsible or in the case of unforeseeable hindrances or delays to operations having a major effect on the production or delivery of the object of the contract when the contract is concluded, the delivery time will be extended for the period necessary to remedy such hindrance or delay.
This will also apply if such circumstances occur at upstream suppliers' and we are not responsible for any failure to take precautions or to accept goods or services. If fulfilment of the contract becomes wholly or partially unreasonable for one party, that party may withdraw from the contract.

3.3 Reminders and the setting of final deadlines must be in given to us in writing.

4. Delivery, Dispatch, Transfer of Risk, Partial Deliveries

4.1 Risk will transfer to the customer when the object of the contract is transferred to a carrier or to our own employees performing carrying duties, but at the latest on departure from the warehouse.
If the shipment or acceptance is delayed for reasons for which we are not responsible, risk will transfer to the customer on notification to him or similar intimation that the goods are ready for delivery.

4.2 We are entitled to make partial deliveries in reasonable quantities.  We may make over-deliveries or short deliveries of manufactured or standard-packed goods in quantities customary for the trade, but of at least up to 10%.

4.3 In the case of on-call orders we are entitled to produce the entire quantity ordered in a single batch. Requests for alterations after orders have been placed will only be possible if this has been expressly agreed to.
Payment for undelivered quantities of on-call orders will be due on the expiry of the agreed final date regardless of the delivery status of the on-call orders.  If no final date for payment has been agreed, we will be entitled to demand the remaining payments one year at the latest after the contract was concluded.

4.4 For exchanges of goods for reasons for which we are not responsible, we will charge a pro rata processing fee of 10% of the value of the goods; the minimum fee will be €10.00.

5. Reporting Faults

5.1 Merchants are required to report in writing obvious and concealed faults within five days after the goods have been received or after the fault has been discovered respectively.

5.2 If we are not given the opportunity to verify the existence of a fault, and, in particular, if the goods or samples complained of are not made available at our request, we cannot be held liable for faults.
The related costs are to be borne by the customer.


III. Conditions of Payment


1. Settlement Date and Arrears

1.1 Our invoices will be due for payment five days at the latest following the invoice date; in the case of partial deliveries, the full value of the goods delivered will be due for payment.

1.2 If the customer fails to pay the invoice after the due date or if he falls into arrears, we will be entitled to charge interest after due date or interest on arrears in the amount of 5% (end-customers) and 8% (merchants) over the base lending rate of the Deutsche Bundesbank (German Reserve Bank). Further claims on our part remain unaffected.

2. We grant commercial bulk customers with whom we currently maintain business relationships a net payment period of 30 days.  We will grant a two per cent discount for payment within 10 days following the invoice date. Rebates or discounts for cash payment granted by way of exception will not apply if our claims are not paid in full.
Neither will such rebates or discounts apply if other outstanding accounts have not been settled when payment is made.  Payments for workshop and other services, tool charges and other expenses are due immediately.

2. Right to Refuse Performance

2.1 Counterclaims not expressly acknowledged by us or not confirmed by a court entitle the customer to neither withhold payment nor to offset such payments against other claims.

2.2 If, after the contract has been concluded, it becomes apparent that our claim for payment is threatened by the purchaser's inability to pay, we will be entitled to make use of our rights in Paragraph 321 of the German Civil Code (Defence of Inability to Pay). We will then also be entitled to call in all open debts from our current business relationship with the purchaser and to cancel any automatic direct debiting authorisations.
In cases of arrears we will also be entitled to require the return of the goods after the expiry of an appropriate deadline and to forbid the resale and further processing of any goods delivered. Such cancellation will not constitute withdrawal from the contract. The purchaser may avert all these legal consequences by making payment or depositing a security bond in the amount of our threatened claim for payment.
The provisions of the German Insolvency Regulations will remain unaffected by the abovementioned provisions.

4. Invoicing & Monthly Reconciliations Objections to our invoices, monthly reconciliations and the like must be submitted in writing not later than three weeks after receipt of the relevant document.
The timely dispatch of notification will suffice.
If no such objection is received by the deadline, this will be interpreted as approval of the invoice.
If any obvious errors – in particular computational errors - are found retrospectively, both we and the customer will be entitled to require correction as provided for in law.


IV. Reservation of Title


1. All goods remain our property until our claims have been settled and the appropriate payment documents, including bills of acceptance and financial credit bills, have been redeemed in full.
In our dealings with merchants, reservation of ownership also covers conditional and future claims from current business relationships, regardless of the legal basis of the claims.

2. The purchaser is entitled to have the use of the purchased goods in the normal course of business.

3. Reservation of title also covers the full value of products made through processing, mixing or combining with our goods; in such cases we will be deemed to be the manufacturer.
If, in the case of mixing, combining or processing of goods of third parties, their ownership remains in force, we will acquire pro rata joint ownership up to the invoiced value of the processed goods.

4. By signing this contract, the purchaser immediately transfers to us all claims against third parties arising from the resale, processing or treatment in total or to the value of the share of any joint ownership respectively as security. He is authorised to collect this sum until it is cancelled or until his payments of our invoice have ceased. Neither is the purchaser is entitled to transfer these claims for the purpose of collecting claims for factoring purposes unless the factoring obligation is simultan-eously justified in order to directly bring about reciprocal service to the amount of our share of the goods as long as our claims on the purchaser  exist.

5. Access by third parties to goods and claims belonging to us are to be notified to us by the purchaser in writing immediately.

6. If the customer falls into payment arrears or fails to fulfil his obligations in respect of reservation of title, we may demand the return of the goods after an appropriate period and offset the purchase price at the best possible price, offsetting the goods against the purchase price or sell them at market price or for the purchase price less any appropriate processing charges. This return of the goods will only be deemed to be a withdrawal from the contract in the case of a hire-purchase transaction by an end-user.

7. The goods and the claims arising in their place may be neither pledged to third parties nor assigned nor their ownership transferred as security before our claims have been paid in full.

8. In the case of repair / renovation / processing jobs or contracts for labour and services, we will, on the basis of our claims arising from this and earlier orders, be entitled to a contractual right of lien to those items which have come into our possession as a result of  the order.

9. If the value of the security exceeds the value of our claims by more than 20%, we will release securities at our discretion if requested to do so by the purchaser.


V. Industrial Property Rights for Development; Copyright


1. If our services consist of providing technical advice, particularly in developing possible technical solutions, producing drawings, formulae, developing and improving productions etc., we reserve all rights to these.
This will apply in particular to our intellectual property rights to the products as well as to physical ownership of all drawings, samples, models etc.

2. All dissemination, including for inspection, all forms of re-dispatch, reproduction (wholly or in part) is forbidden and obliges the holder to hand over to us all items produced or obtained in this manner,
regardless of all other claims. The customer is required on request to give us immediately all information or to submit all documentation we require to assert our rights. Drawings, samples, moulds etc. prepared by us are to be returned on demand; they are also to be returned unasked for if the order is not awarded to us.

3. If we supply items according to information or documentation supplied by the customer, the customer will guarantee that industrial property rights of third parties have not been breached and will release us from claims by third parties.


VI. Liability for Defects


1. In the following conditions we guarantee our products and services for two years from date of delivery to end-users and for one year to merchants. If longer guarantee periods apply in special cases under law,
these will apply.

2. If we are notified immediately of justified defect claims, we may, at our option, correct the defect or supply an item free of defects (supplementary performance). As provided by law, the customer may not withdraw from the contract or demand a reduction in payment until four weeks at the earliest after reporting the defect.
If merchants order goods from us directly using catalogues, lists of our upstream suppliers or similar
(external accessories), we will only guarantee these goods under the terms of the conditions of these upstream suppliers, provided the customer is, or should be, aware of them.

3. After the goods have left our premises, guarantee claims will not be recognised if the damage is due to the fact that repairs were carried out, if the goods were handled differently or used for a purpose other than that intended or if the operating instructions or manufacturer's instructions or other generally known requirements were not observed by third parties.

4. We will only pay expenses incurred in connection with supplementary performance if we are responsible for them in individual cases, i.e., if we are at fault or under the terms of the conditions of the guarantee.
In particular, such expenses must be in an appropriate relationship to the purchase price. Costs arising from the remedying of any defects due to the customer, in his capacity as a merchant, having transported the goods to another location, will be borne by the customer.

5. Rights of recourse will be recognised as provided in law. Public statements by our customers supporting claims by end-users will release us from our obligations if the statements deviate from information supplied by us and have not been approved by us.


VII. Scope of Liability


We will assume unlimited liability for losses in cases of criminal intent, in the case of guarantee statements and, in cases of damage claims arising from personal injury, death, injury to human health or to liberty.
Damage claims from merchants will be restricted to cases of foreseeable losses due to negligence typical of contracts of this nature. We will not be liable for minor negligence in cases of minor dereliction of duty or for minor breaches of contractual duties.


VIII. General Provisions


1. In our business dealings with merchants the place of fulfilment for deliveries and payment is our company's registered offices.

2. The place of jurisdiction for all disputes with merchants is our company's registered offices or the supplier's place of jurisdiction.

3. This contract is governed by the laws of the Federal Republic of Germany including with overseas partners to the exclusion of  international law.

4. Should individual provisions of these General Terms and Conditions of Business be or become ineffective, the legal validity of the other provisions of this contract will not be affected. In such cases the parties to the contract will be obliged to replace the ineffective provision with a provision which is as close as possible in its commercial result as the ineffective provision.


KCT GmbH & Co. KG Last Altered: April 2009
Robert-Bosch-Str. 30
72348 Rosenfeld
Germany



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