General Terms and Conditions
General delivery and sales conditions of kikadu GmbH
All sales are made exclusively under the following delivery and sales conditions These delivery and sales conditions also apply to all future purchase contracts to be concluded with the buyer, even if they are not expressly agreed on again. Divergent general terms and conditions of the buyer will only be accepted if and to the extent that they are confirmed in writing by the seller.
§ 1 CONCLUSION OF CONTRACT/RESALE
a. The acceptance of orders takes place in the scope of shipment of the goods, whereby the seller is entitled to make partial deliveries. The copies of the order sent by the seller in written or electronic form do not constitute an order confirmation in the legal sense. Unless otherwise stated, the prices are in euros plus applicable statutory value-added tax.
b. The transfer of the seller’s products to other resellers who are not authorized kikadu dealers is prohibited. In case of infringement, the seller is entitled to refrain from further deliveries. Claims against the seller do not exist in this case. The Internet presentation or transfer of the delivered goods via the Internet (portals, platforms, online shops, etc.) by the buyer requires the express written consent of the seller and is otherwise prohibited in principle for purposes of trademark protection.
c. The transfer of contractual products to sellers of the same economic status which are not part of the distribution system of kikadu GmbH for the purpose of commercial marketing is not permitted.
d. kikadu or a brand name of kikadu GmbH may not be registered at the domain or subdomain level without the express written consent of the seller (for example, neither www.xybuykikadu.com nor www.kikadu.xyz.com may be used, but www.xyabc.com/kikadu would be permissible).
e. If the buyer is provided with print motifs, lettering, logos or the like for the purpose of processing with respect to an order placed by the buyer, then the buyer alone is responsible for ensuring that the use of such signs or the manner of use within the scope of the order does not infringe the rights third parties. The buyer must obtain the necessary approval or license from third parties and prove this to the seller upon request. In such cases, the buyer is obliged to indemnify the seller against all claims of third parties or indemnify them on first request
§ 2 SHIPMENT/DELIVERY
1. The shipment of the goods is at the expense and risk of the buyer. The risk passes to the buyer as soon as the consignment has been handed over to the person carrying out the transport. If the shipment is delayed at the buyer’s request, the risk passes to the buyer with the notification of readiness for shipment. Transport insurance is only taken out by the seller at the express request and at the expense of the buyer.
2. The seller is entitled to make partial deliveries to a reasonable extent in accordance with the production progress and to invoice these separately.
3. The prices valid on the day of delivery are always applied, errors excepted.
Repeat orders are always treated as new orders.
4. Minimum order value for the first order. 1,000 €
5. Delivery and shipping to Germany: Minimum order 150 €. Under 300 € value of goods: 6.90 € shipping; over 300 € value of goods: free domicile
Delivery options reserved. The postage will be charged on first delivery. Subsequent deliveries are made free domicile.
6. Deliveries to other European countries are billed at cost. Minimum order 500 €
§ 3 DELIVERY DATE
Unless otherwise expressly agreed, the stated delivery dates are approximate and do not constitute a claim to a calender due date for delivery. Fixed transactions are not made.
§4 LIMITATION OF LIABILITY OF THE SELLER
1. In the case of default of the seller or an impossibility of delivery for which the seller is responsible, all claims for damages by the buyer are limited to a maximum of 20% of the foreseeable damage. Further claims for damages only exist if the delay or impossibility is based on intent or gross negligence.
2. In the case of other pre-contractual, contractual or extra-contractual breach of duty, even in the event of defective delivery, tort or producer liability, the seller is liable for damages and reimbursement of expenses - subject to further contractual or statutory liability - only in the case of intent, gross negligence and in case of slightly negligent breach of an essential contractual obligation (a contractual obligation whose breach jeopardizes the achievement of the purpose of the contract). However, the liability of the seller - except in the case of intent - is limited to the contract-typical damage foreseeable at the conclusion of the contract. The assertion of wasted expenses by the buyer is not permitted.
3. Outside the breach of essential duties, liability of the seller for slight negligence is excluded, but in any case limited to the amount of the purchase price. Para. 1 remains unaffected.
4. The exclusions and limitations of liability contained in no. 1-3 do not apply in the case of the assumption of a guarantee for the condition of the object within the meaning of § 444 BGB (declaration by the seller that the object of purchase has a certain property at the time of the transfer of risk and that the seller wishes to guarantee all consequences of its absence irrespective of fault), in the case of malicious concealment of a defect, in the case of damages due to injury to life, body or health as well as in the case of mandatory liability under the Product Liability Act.
5. All claims for damages against the seller, irrespective of the legal grounds, become statute-barred no later than one year after delivery of the item to the buyer; in the case of tortious liability they become statute-barred from knowledge or grossly negligent ignorance of circumstances justifying the claim by the person liable for compensation. The provisions of this paragraph do not apply in the case of liability for intent and in the cases mentioned in paragraph 4; the statutory provisions apply instead. Any shorter statutory limitation periods have priority.
6. A reversal of the burden of proof is not connected with the provisions of § 4.
§ 5 DELAY OF THE BUYER
If the buyer is in default, the seller is entitled to demand interest of 1.4% per month as flat-rate compensation from the relevant date. The compensation shall be set lower if the buyer proves a lower burden; the assertion of higher damages caused by default of the seller remains expressly reserved. If the buyer defaults on a due payment or if there is a significant deterioration in the buyer’s financial circumstances (in particular, in the event of non-payment of a check or in the case of the buyer's cessation of payments), the seller is entitled to call the entire remaining debt due from the business relationship even if the seller accepted checks. In this case, the seller is also entitled to make the delivery of further ordered goods dependent on advance payment or the provision of a security for this claim. In this case, the seller is entitled to set a deadline by which the buyer must declare whether the buyer will make the payments or provide the security. If the buyer agrees to this, the seller will deliver the goods to the buyer by cash on delivery. If the buyer does not agree to pay or provide security within the time limit or if the buyer does not accept the goods sent by cash on delivery, the seller is entitled to withdraw from the contract and claim damages for non-performance. The seller must indicate these consequences in the seller's letter of formal notice. If the buyer defaults on a payment due, the seller is entitled to immediately make due all claims of the seller against the buyer arising from the business relationship. This does not apply if the buyer is not responsible for the payment arrears.
§ 6 DAMAGES
If the seller is entitled to claim damages for non-performance against the buyer, the seller is entitled to demand a flat-rate compensation of 40% of the net order value of the goods plus transport costs. The buyer is entitled to prove lesser damages.
§ 7 COMPLAINT/GUARANTEE
7. The buyer is obliged to inspect the goods immediately, but at the latest within one week after delivery. Complaints must be made no later than 10 days after receipt of the goods in writing to the seller. Hidden defects must be reported to the seller in writing no later than 8 days after discovery. Compliance with the deadlines is determined by the date of the postmark. After expiry of these periods, defects can no longer be claimed. Any existing claims of the buyer from liability for material defect are void if the goods purchased from the seller have been resold without sufficient or timely inspection or with knowledge of a defect.
8. Customary or minor deviations in quality, color, size, equipment, design, etc. do not constitute defects, as far as the delivered goods are not subject to any changes that are unreasonable for the buyer.
9. In the case of legitimate complaints, the buyer is entitled to demand rectification or replacement of defective goods. If rectification or replacement is not possible or not reasonable for the buyer, the buyer is entitled to change or reduction according to the legal regulations.
§ 8 PAYMENT
1. The claim of the seller is always due for payment immediately.
2. A buyer with headquarters in Germany shall pay the invoice amount via direct debit (SEPA direct debit) within 7 days with 2% discount, or with advance payment with 2% discount, or by credit card/Paypal before delivery at net price. A buyer with headquarters outside Germany, shall pay 20% in advance when placing the order and 80% before delivery either by bank transfer or credit card/Paypal. The buyer guarantees that the buyer's account has sufficient coverage. Costs incurred due to non-payment or reversal of the direct debit are at the buyer’s expense. Delivery to new customers is only possible upon presentation of a SEPA B2B direct debit mandate or with payment in advance.
3. If payment is delayed, the seller is entitled to charge default interest.
4. The withholding of payments of any claims not legally established or any disputed claims on the part of the buyer is not permitted, nor is offsetting with these claims permitted.
5. The seller is entitled to offset payments, despite contrary provisions of the buyer, against older debts arising from the business relationship. If costs and interest have already arisen, the seller is entitled to offset the payment first against the costs, then against the interest and finally against the main service. If the offsetting made by the buyer deviates from the buyer's provisions, the seller shall inform the buyer of the type of settlement made.
6. The seller reserves the right to refuse to accept checks and bills of exchange. Checks and bills of exchange are always accepted for payment only. Discount and bill of exchange costs and charges are charged to the buyer and are due for payment immediately.
7. In the case of payments made by third parties, in particular in the context of del credere agreements, the goods are considered paid only when the payment has been received by the seller itself.
§ 9 RESERVATION OF TITLE
1. All delivered goods remain the property of the seller until full payment of all claims arising from the business relationship with the buyer. However, the buyer is entitled to sell the goods in the ordinary course of business, as long as the buyer is not in default. Pledges or chattel mortgages for the benefit of third parties are not permitted.
2. In the case of access by third parties to the reserved goods, the buyer shall point out the property of the seller and inform the seller immediately. Costs and damages shall be paid by the buyer.
3. The buyer hereby assigns all claims from the resale of the reserved goods in full to the seller. The seller hereby accepts the assignment.
a. Within the scope of a proper business transaction, the buyer is revocably entitled to collect the claims of the seller in its own name as long as none of the claims of the seller are overdue, in particular due to late payment, suspension of payments, application for or opening of bankruptcy proceedings or other loss of assets of the buyer. Upon revocation of the direct debit authorization, the buyer must, at the request of the seller, provide the information required for collection of the assigned claims and notify the debtors of the assignment. After the revocation of the direct debit authorization on the part of the buyer, incoming payments shall be transferred by the buyer immediately to a special account and to be held there for the seller. The buyer shall inform the seller immediately about such a receipt of payment.
b. If the realizable value of the securities to which the seller is entitled in accordance with the above provisions exceeds the claims to be secured by more than 20%, the seller is obliged to release securities of the buyer in a corresponding amount at the discretion of the seller.
c. If the check/bill of exchange procedure is used, the retention of title shall continue even after the check has been paid until the seller is released from the bill of exchange liability.
4. If the buyer defaults on payment, the seller is entitled to demand or collect the delivered goods from the buyer or to demand assignment of the buyer's claims for return against third parties. Withdrawal of the reserved goods by the seller always occurs only as a precaution. Withdrawal of the reserved goods or the other assertion of the retention of title by the seller does not constitute withdrawal from the contract as far as the Installment Purchase Law (AbzG) is not applicable.
§ 10 OFFSETTING AND RETENTION
The buyer is only entitled to offsetting if the counterclaim is undisputed or legally binding. However, the buyer is also entitled to retention for counterclaims from the same contractual relationship.
§ 11 FOREIGN DELIVERIES
1. All payments must be made in euros. If any taxes or other duties are withheld at the source from the purchase price to be paid by the buyer, the buyer shall pay those additional amounts to the seller which are necessary for the seller to receive the full amounts agreed in the contract.
2. All taxes, fees, customs duties and other duties accruing abroad shall be borne by the buyer.
§ 13 MISCELLANEOUS
1. The seller is entitled to collect, store, process or use information and data about the buyer and to transfer for the purpose of debt collection or outsourced debtor management to third parties such information for storage, processing or use.
2. The law of the Federal Republic of Germany applies for these delivery and sales conditions and the entire legal relationship between seller and buyer. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 is expressly excluded.
3. If the buyer is a merchant within the meaning of the German Commercial Code, the place of jurisdiction for all disputes arising from the contractual relationship is Stuttgart. The place of performance is the seat of the seller.
4. Should a provision in these delivery and sales conditions be or become invalid, this shall not affect the validity of the remaining provisions.
Version: January 2017
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