General Terms & Conditions

General Terms and Conditions of KulturGut AG for Deliveries and Services

Version: July 2004

I. Scope

a)    These Terms and Conditions shall apply as amended from time to time as basis for all orders, contracts, deliveries and other services (e.g. consulting services). Internet trade is, however, not included; to these transactions the “General Terms and Conditions of KulturGut AG for Internet Trade” are applicable. Diverging conditions of the customer (the term “customer” is hereinafter used for all sorts of business transactions concerned) are expressly rejected by us, unless otherwise agreed in writing or mandatory by law.
b)    The Terms and Conditions may be amended at any time. We therefore ask our customers to read the Terms and Conditions in case of any order or any other business transaction.
c)    The transmission of an order by the customer or the acceptance of an offer is regarded as consent to these Terms and Conditions.
d)    In case of any inconsistencies the following contractual agreements shall apply in the following order:

  • individual contract or order and acceptance
  • these Terms and Conditions

II. Conclusion of Contract

a)    Until conclusion of a written contract our offer may be withdrawn at any time.
b)    If the customer accepts an offer including an extension or other amendments, this is considered a new offer. We are only bound by such a new offer in case we accept it in writing. Irrespective of whether the customer’s order was preceded by an offer from our side, the contract shall only be binding if the customer has received a written acceptance of the order.
c)    An order cannot be revoked or modified after transmission of the order acceptance, unless with our prior written consent and on condition that the customer will bear all related and possibly already accrued costs.
d)    Drawings, images, measures, weights or other data are only binding if expressly agreed upon.
e)    To observe the respective written form requirement, a transmission via e-mail or telefax is sufficient.

III. Delivery

a)    The time schedule for deliveries can only be kept if all required information and data have beforehand been provided by the customer.
b)    All deliveries of the products are carried out at the customer’s expense and risk. In case of delivery to a consumer, the risk shall be borne by us.

IV. Consulting Services

a)    In case of consulting services we are entitled to carry out the order through an expert staff member. We reserve the right to select the staff member. Further, we are entitled to employ expert colleagues or free lance experts.
b)    We shall decide on the location of the consulting services and the working hours shall be arranged at our reasonable discretion. In case a certain amount of working hours was laid down for the consulting services, we shall inform the customer when it can be foreseen that this time frame will be exceeded. The customer shall then immediately decide on the expansion of the scope of time and the related financial compensation.
c)    Modifications and expansions of the scope of time and the financial compensation are subject to the written form requirement. We shall be entitled to preliminarily suspend the consulting services until disputed issues have been clarified if the originally agreed time frame has already been reached.
d)    We shall regularly report to the customer on the status of the current work. Unless otherwise stipulated in the consulting contract, reporting may be orally.
e)    In the consulting contract the customer shall appoint a contact person who is authorized to make binding statements and perform binding actions vis-à-vis us. The customer shall provide us free of charge and in due time with all data and information required for the consulting services. The customer shall grant us or the person(s) entrusted with the consulting access to the premises which have to be used for rendering the consulting services during regular working hours and, if necessary and if it can be reasonably expected, out of regular working hours.
    We shall, however, retain the sole authority to exercise the right of direction and supervision vis-à-vis our employees.
f)    If a consulting contract has been concluded for an indefinite period, both parties may terminate the contract with a notice period of one month to the end of the month. The right of termination for important reason (in particular in cases as specified in VI.d) shall remain unaffected.

V. Prices

a)    Unless otherwise stipulated in the contract, prices for products and services are fixed and are valid for the entire execution of the contract in accordance with these Terms and Conditions. The agreed fees are not including the statutory value-added tax.
b)    Unless otherwise individually agreed, we are bound by the prices quoted in our offers for 30 days from the date of offer.
c)    Prices are ex works or other industrial premises including standard packaging, unless otherwise agreed.
d)    Prices are quoted in Euros. This is both the currency of invoice and payment.
e)    Prices quoted are not including any taxes, customs fees, duties and other fees which exclusively have to be borne by the customer.
f)    The fees for consulting services shall also become due in case the subject of consultation ceases to exist during the consultation due to unforeseeable events or if the customer terminates the contract or if insolvency proceedings are opened or instituted against the customer. The services rendered until notice of these circumstances have to be paid in full. For consulting services not yet rendered but contractually agreed, we are entitled to 20 % of the agreed fees as flat-rate compensation plus any expenses which have to be evidenced.
g)    Billing of travel costs and expenses shall be separately agreed. In case of such an agreement, they will be settled immediately after invoicing.

VI. Payment

a)    Unless otherwise agreed, our invoices are payable within 8 days from the date of invoice without any deductions.
b)    Payment shall be deemed effected when we can fully dispose of the amount. In case cheques or bills of exchange are submitted, payment shall only be deemed effected when the cheque or the bill of exchange is honored.
c)    If the customer is in default, we shall be entitled to charge interest in the amount of the statutory interest rate for debts from the respective point of time.
d)    We shall be authorized to withdraw from the contract if due to circumstances arisen after conclusion of the contract there are justified doubts as regards the financial standing of the customer which give reason for fear that our claim for performance is at risk. This is particularly the case if comprehensive enforcement measures are being carried out against the customer or if the customer ceases his payments or if bankruptcy or composition proceedings are opened over the customer’s property. In such cases we shall also be entitled to effect performance on an advance payment basis.
    Furthermore, we shall be entitled to resign from the contract if the client severely violates the contract and/or fails to effect payment of the agreed fee even after an appropriate time extension.
e)    The customer shall only be entitled to offset counterclaims or to withhold the purchase price if the counterclaims or the right to reduce the purchase price have been legally established as final and absolute or are undisputed.

VII. Retention of Title

a)    Title to the delivered goods shall remain with us until full settlement of all existing or future claims to which we are entitled against the customer.
b)    Processing or transformation is in each case performed for us, but without any obligations for us. In case our (joint) ownership expires due to connection with other goods, it is already now agreed that the (joint) ownership of the customer will be shifted to us pro rata (invoice value). The customer shall keep our (joint) property in safe custody free of charge. The customer is granted the right to demand the release of the afore-mentioned securities if the realizable value of the securities exceeds the value of the accounts receivable to be secured by more than 10 %.
    The customer shall be allowed to sell the goods subject to the retention of title in regular trade. Pawning or transfer of ownership by way of security is inadmissible. The customer already now assigns any claims which result from the resale to his buyers or third parties up to our final invoice amount (including VAT) to us, irrespective of whether the delivered item was resold with or without being processed. Even after assignment the customer remains authorized to collect the receivables himself. However, we continue to be entitled to collect the receivables ourselves. This will, however, not be done as long as the customer meets his payment obligations, is not in default and no request for opening of insolvency proceedings has been filed or payments have not ceased. Should this happen, we may demand that the customer discloses the assigned claims and the respective debtor, provides all details required for collection, hands over all relevant documents and informs the debtor (third party) of the assignment.
c)    In case the customer is in default of payment, a request for opening of insolvency proceedings or assignment of the expectant right to a third party, we shall be entitled to resign from the contract, to take back the delivered goods and to access the customer’s premises for this purpose. The enforcement of the retention of title, the taking back of goods as well as the pawning of goods by us shall represent no withdrawal from the contract unless expressly declared by us. After taking back the goods subject to the retention, we shall be entitled to sell these on the open market. The proceeds have to be offset with the customer’s accounts payable after deduction of appropriate sales costs.

VIII. Warranty

a)    We warrant that at the time of delivery the products are free from defects which remove or diminish their value or fitness for normal and proper use.
b)    Immediately upon receipt of the delivery the customer has to check the goods for completeness or any defects, at the latest within two weeks from receipt, and in case of any deviations the customer shall forward a notice of defects. In case of any hidden defects, the corresponding notice has to be forwarded immediately after discovery of the hidden defect within the warranty period. The statutory provision shall apply to transactions with consumers.
c)    The warranty period shall be one year from delivery, in case of contracts with consumers it shall be two years.
d)    Warranty is restricted, at our discretion, to rectification of defects or replacement of the defective products. If the customer is a consumer, the latter is entitled to exercise the right of choice. In case the defects cannot be rectified within an appropriate time limit or if the replaced goods or services are again defective, the customer may either reduce the purchase price or withdraw from the contract.
e)    Warranty does in particular not comprehend:

aa)    Defects caused by circumstances which have to be attributed to the customer or which are due to improper storage or storage not in compliance with our instructions.
bb)    Defects caused by the exposure of the products to unusual influences of a mechanical, electrical, chemical or thermal nature.
cc)    Defects caused by an overuse of the products or an application by the customer which is not in conformity with the guidelines and our instructions.

IX. Liability

We, i.e. the management, the employees as well as any auxiliary persons employed in performing an obligation are only liable in case any contractual or non-contractual obligations, irrespective of the legal ground, are violated due to intent or gross negligence, injury of life, body or health, a given guarantee or procurement risk, the violation of essential contractual obligations and a statutory legal liability. In all other cases we do not assume any liability.

Damages for violation of essential contractual obligations are, however, limited to the foreseeable damage typical of the contract, unless it is due to intent or gross negligence or a compulsory legal liability for the injury of life, body or health or a given guarantee or procurement risk exists. This provision does not result in a change of the burden of proof to the detriment of the customer.

X. Force Majeure

If events of force majeure (e.g. thunderstorm, strike, labor dispute) significantly impede or prevent the performance, we are entitled to postpone fulfilling our obligations by the duration of the hindrance and, if necessary, a reasonable start-up time.
The parties will inform each other immediately in case of force majeure.

XI. Data Protection

a)    We shall be entitled to process or have processed personal data entrusted to us within the scope of the customer’s purpose. The legal regulations on data protection are observed.
b)    Data that are logged in connection with the access to our website and/or personal data which are transmitted are exclusively stored by us for administrative purposes. Data shall only be provided to other third parties with the consent of the customer. The given consent can be revoked at any time. The provision of data for any other non-commercial or commercial purposes shall not be made.
    This does not apply if we are obliged by law or by court decision to provide data or if the data provision is required for reasons of legal and criminal prosecution in connection with an attack on the internet infrastructure.

XII. Miscellaneous

a)    Should any provision of these Terms and Conditions or any provision within the scope of any other agreements be ineffective or void or become ineffective or void, the validity of the remaining provisions or agreements shall remain unaffected.
b)    Amendments and supplements to a contract, e.g. a supply contract or a consulting contract, including the underlying General Terms and Conditions, are only valid if agreed upon in writing and signed by both parties.
c)    The legal relationship between us and the customer shall be governed by the laws of the Federal Republic of Germany excluding the UN Sales Law (CSIG).
d)    In case of any disputes arising from or in connection with a contract or a business relationship, the courts of Munich shall have exclusive jurisdiction. This provision shall, however, only apply if the customer is a merchant as defined by the German Commercial Code (HGB), a legal entity under public law or a special fund under public law or if the customer has no general place of jurisdiction in Germany or if the customer’s place of residence or his habitual abode is not known at the time of filing the legal action.