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Conditions of Supply and Payment of KMS Knobe Marketing Services GmbH (Inc.)
1. General
For all supplies from KMS to business enterprises within the meaning of Art. 14 of the German 'BGB - Buergerliches Gesetzbuch' (Civil Law Code), only the following terms and conditions are to apply. All alterations to these present General Conditions of Business are to require the written form. These present General Conditions of Business are also to apply, even when customers refer to their own terms and conditions of purchase when placing orders, unless such customer conditions of purchase are expressly and priorily approved by KMS.
2. Offerings and Orders
2.1 All offerings of KMS are subject to being unsold, and samples provided are always legally non-binding. A contract of purchase and sale is to be deemed concluded when KMS issues a written order confirmation or when a KMS confirmation of order is countersigned by the purchaser. All alterations in volumes, types and designs are to require the written form and a subsequent written order confirmation thereof. Offering prices are net prices and are to be deemed plus the statutory rate of value added tax prevailing for the time being.
2.2 Should the purchaser withdraw from the order, then KMS is to be entitled hereunder to charge the purchaser 100% of the amount of the order.
3. Settlement Payments
3.1 Settlement payments of the purchaser are to be made to KMS in advance immediately upon receipt of invoice. Electronically sent invoices can replace original hardcopy invoices, when in correct form with all necessary indications of rights and duties. There can be no claim asserted by the purchaser to await receipt of an original hardcopy invoice through the postal mail. Cheques and bills of exchange will only be accepted as settlement after negotiation and collection of payment. The acceptance of bills of exchange as settlement will require prior written agreement by KMS.
3.2 In cases of arrears of settlement, arrears' interest will be charged at 5% per annum above the bank rate of the European Central Bank prevailing for the time being. Interest charges are to be applied higher or lower, when the seller can show a charge with a higher rate of interest or when the purchaser can show a charge with a lower rate of interest. The right to assert indemnities for damages for arrears in settlement is hereby expressly reserved.
3.3 All claims against the purchaser are to be immediately due for settlement when the purchaser is in arrears with the settlement of a claim or a material worsening of the assets' position of the purchaser occurs after the despatch of an order confirmation.
3.4 Alterations in price are permissible hereunder when a time period of more than six weeks expires between the conclusion of a contract of purchase and sale and the agreed date of delivery. Should, six weeks after the conclusion of a contract of purchase and sale up to the finalisation of the consignment, an increase in wages, in cost of materials or in market purchasing prices occur, then KMS is to be entitled hereunder to increase the selling price to the purchaser appropriately corresponding to the rise in costs. The purchaser is entitled to withdraw from a contract of purchase and sale hereunder, only when the increase in the selling price exceeds the rise in the general cost of living index between the date of the order and the date of consignment by more than 12 percentage points. When the purchaser is a registered trader within the meaning of the German 'HGB - Handelsgesetzbuch' (Commercial Law Code), a public law legal person, or a public law legal person with a special separate assets' fund, then price alterations according to the foregoing conditions are permissible when a time period of more than six weeks expires between the conclusion of a contract of purchase and sale and the agreed date of delivery. When the purchaser is a registered trader within the meaning of the German 'HGB - Handelsgesetzbuch' (Commercial Law Code), a public law legal person, or a public law legal person with a special separate assets' fund, then the retention of settlement payments on account of any counter claims of the purchaser not recognised by KMS, are not permissible hereunder, as well as any offsetting of such.
3.5 Credit notes in favour of the purchaser will be issued without any recognition of a legal duty and justify no claim for the refund of any settlement payment already made. The offsetting of the amount credited with existing claims before the issuing of a credit notes is not permissible hereunder. Offsetting against future orders is however possible.
4. Reservation of Proprietorship Rights
4.1 Already delivery goods are to remain the property of KMS until full settlement payment of all financial claims including any interest charges.
4.2 KMS is entitled at all times hereunder to demand the relinquishment of goods in the proprietorship of KMS when the purchaser is in arrears.
4.3 The purchaser is to inform KMS with immediate effect of any attachment by third parties of the goods in the proprietorship of KMS.
4.4 Any ownership transfers as security, sales as security, mortgaging as well as any other form of disposal of the goods in the proprietorship of KMS, will require the approval of KMS.
4.5 The purchaser is under a contractual duty hereby to insure the goods in the proprietorship of KMS at the expense of the purchaser and for the benefit of KMS, sufficiently against the perils of theft, robbery, burglary, fire and water damage. The purchaser hereby and hereunder assigns to KMS any future insurance claims arising hereunder.
5. Consignment and Delivery
5.1 Consignments and deliveries are made at the peril and cost of the receiver of the goods. KMS hereby reserves the right to charge for packaging at self cost.
5.2 The delivery dates indicated in the offering and in the confirmation of order are only approximate and legally non-binding. KMS hereby repudiates all liability for delays in transportation and for deficiencies caused by damage to the packaging.
5.3 Any contractual duty hereunder to comply with any due deadline dates becomes null and void when the purchaser fails to communicate to the seller the information and documentation necessary for production within the requested period of time. This is also to apply when the purchaser fails to make complete advance settlement payment with immediate effect, or fails to issue an approval for production commencement within the requested period of time, or requires restrictions or limitations in the order, or colouring, form, overprint or packaging of the subject matter of the consignment are altered on the requirement of the purchaser ('alteration of the author'). Postponements in due date deadlines as a result of information communicated too late or incompletely, or specifications, samples, payment or approvals are as a rule non-linear.
5.4 Complaints concerning apparent defects are to be communicated to KMS in text form with immediate effect but at the latest within three days after the receipt of the goods. Complaints concerning hidden defects are to be communicated to KMS in text form with immediate effect but at last three days after the discovery of the defects. Consignments and deliveries to third parties upon demand of the purchaser do not exonerate the purchaser from the foregoing contractual duties and fail to postpone any due date deadlines. KMS has in any event the right to make improvement work to- or to make replacement deliveries of the goods. In case of an employment of the delivered goods in parts or as a whole for the intended or similar purpose, or in case of the passing on of the goods to third parties, in spite of a successful complaint, the seller hereby reserves the right of processing the complaint on the basis of an accommodation.
5.5 KMS hereby reserves the right hereunder to charge or refund for up to 10% of more- or less volumes at the agreed price, plus any additional costs for transportation. The foregoing percentage can be adjusted to a maximum of 2%, to be coordinated and agreed between the parties. Instructions to exclude more volumes will be agreed hereunder subject to the acceptance of any possible less volumes.
5.6 In cases of refusals or delays in the acceptance of deliveries of the goods by the purchaser, its vicarious agents or third parties, to whom the goods are to be delivered on the instructions of the purchaser, the cost of several attempts at delivery and/or any warehousing expenses will be charged to the purchaser.
6. Warranties
6.1 In cases of warranty claims, the rights of the purchaser are initially limited to improvement work or ex gratia replacement deliveries of the goods, against the relinquishment of the delivery complained of. Only upon the failure to make improvements or replacement deliveries, is the purchaser entitled hereunder to select to diminution of price or to withdrawal from the contract of purchase and sale.
6.2 No warranty claims can be asserted, when the purchaser has carried out- or had any alterations- or reinstatement claims conducted without the prior approval of KMS.
6.3 Warranty claims can only be asserted by the immediate purchaser and are not assignable hereunder.
6.4 KMS hereby reserves the right of the occurring of the usual commercial, negligible or technical divergences in size, weight, sample, colour shade, characteristic, function, etc. in comparison with specifications. In particular, material- and overprint colour shades can diverge from specifications or from priorily submitted samples, as a result of different manufacturing- and printing processes. Technical specifications are only based upon the indications of the manufacturers. The right to make alterations in construction, form or design, which are attributable to an improvement in technologies and/or to statutory requirements, remain reserved hereunder during the delivery time period.
7. Liabilities
KMS is only legally liable for tort in cases of gross negligence or premeditation, but not exceeding the value of the goods in connection with the loss or damage. Such limitations are not valid in cases of loss of life, bodily injury and encroachments upon health. In all other respect legal liabilities are hereby excluded. In particular, any legal liability of the seller is hereby excluded in cases of delays in delivery as a result of force majeure (Act of God) or on other grounds, for which the seller cannot be held responsible, even in cases of fixed due date deadlines. The foregoing stipulations also apply to the actions of the subcontractors and vicarious agents of KMS.
8. Contractual Rights of Withdrawal from Contract
KMS is entitled hereunder to withdraw from a contract when the financial and economic position of the purchaser materially worsens after the conclusion of a contract or when it transpires, after the conclusion of a contract, that the purchaser is insolvent.
9. Copyright, Statutory Requirements and Standards
KMS hereby reserves all rights in its printed or electronic publications and/or manufactured- advertising articles and -games as well as its ideas for advertising- events and functions. This also applies to the reservation of rights in regard to any reproduction- or electronic storage of printed or electronic advertising media catalogues, as well as for proposal- and suggestion lists. The purchaser hereby assures, upon the placing- and the receipt of a confirmation of an order, that the purchaser disposes of the corresponding rights to exploit the design elements used for the carrying out- and completion of an order , in particular logos and protected trademarks. The purchaser also hereby assures, that design of the advertising mediums under an order, do not infringe against any legislation governing competition or other statutory requirements and standards prevailing for the time being, nor against any rights of third parties. The purchaser is to keep the seller harmless hereunder from any liability for death or injury to persons or loss of damage to property as well as from claims of third parties to do with the infringement of rights, legislation and standards or as a result of infringements against the legislation governing competition. By reason of the sending of its design specifications, the purchaser hereby agrees to the use of the manufactured advertising medium or its illustration as a reference sample of the seller. Such use is not to be limited by time after the end of a production series. The seller is entitled hereunder to attach a reference to the manufacturer in a suitable position, in the form of an internet URL.
10. Sundries
10.1 The assignment of the contractual rights and duties of the purchaser under a contract concluded wit KMS, will require the approval of KMS for its effectiveness.
10.2 The possible ineffectiveness of any stipulations hereunder will not affect the effectiveness of the remaining stipulations.
10.3 The place of fulfilment for all services as well as the place of jurisdiction is Frankfurt on Main, Germany.
10.4 Orders and deliveries are exclusively subject to the German Law, to the exclusion of the legislation governing the international purchase of chattels (moveables), even when business is conducted abroad and/or the purchaser has its corporate domicile (registered office) abroad.
Status: 1 February 2003. KMS Knobe Marketing Services GmbH (Inc.), Berner Strasse 81, D-60437 Frankfurt on Main, Germany
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sales(at)kms-fra.com