General Terms and Conditions of
Klio-Eterna Schreibgeräte GmbH & Co KG
1. General – Scope of application
1.1 These terms and conditions apply to business transactions with companies.
1.2 The following terms and conditions apply exclusively to all deliveries and services of the contractor (klio). General terms and conditions of the customer which contradict or deviate from klio’s terms and conditions are not recognised by klio unless klio has expressly agreed to their validity in writing. klio’s terms and conditions also apply if klio carries out the production for or delivery to the customer without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.
2. Quote – quote documents
2.1 All quotes by klio are subject to change unless otherwise stated in the agreements made.
2.2 If the order qualifies as a quote, klio may accept it within two weeks.
2.3 Orders are only concluded by written order confirmation from klio. Only klio’s order confirmation is authoritative for the scope of the contractually owed service. Verbal agreements are only valid if they are confirmed in writing by klio.
2.4 klio maintains the ownership rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to written documents that are designated as “confidential”. The customer must obtain klio’s express written consent before passing them on to third parties.
3. Prices – terms of payment
3.1 All prices are “ex works” plus postage and packaging and value added tax at the applicable statutory rate, unless otherwise stated in the order confirmation.
3.2 Unless a fixed price agreement has been made, klio reserves the right to change prices due to changes in wage, material, freight or distribution costs or statutory social costs for deliveries which take place 4 months or later after conclusion of the contract. klio will provide evidence of these costs to the customer on request.
3.3 The deduction of a discount requires a special written agreement.
3.4 Unless otherwise stated in the order confirmation, the net invoice amount is due for payment without deduction immediately after receipt of the invoice. If the customer is in default of payment, klio shall be entitled to charge interest on arrears at a rate of 9% points per annum above the respective base rate of the European Central Bank, plus a flat-rate default fee of € 40.
3.5 The customer may only offset counterclaims if these counterclaims have been legally established or are undisputed or are in a close synallagmatic relationship to the customer’s claim. The customer may also offset counterclaims that are disputed but but that are ripe for adjudication. The right to offset shall only exist insofar as no statutory prohibition of offset is opposed.
3.6 Furthermore, the customer is entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship and this is an undisputed or legally established claim, or the claim is due to a gross breach of contract by klio. In the event of the existence of defects, the customer is not entitled to a right of retention insofar as this is not in reasonable proportion to the defects and the anticipated costs of subsequent performance (in particular the rectification of defects). The customer shall not be entitled to assert claims and rights on account of defects in the work if the customer has not made due payments and the amount due (including any payments made) is in reasonable proportion to the value of the – defective – services.
4. Retention of title
4.1 klio retains title to the delivered goods until receipt of all claims against the customer arising from the current business relationship, including interest and costs. In case of breach of contract by the customer, in particular in case of default of payment, klio is entitled to take back the delivered goods after setting a deadline for the performance of the contractual act. In cases where the law does not provide for setting a deadline, klio is entitled to take back the delivered goods without prior setting of a deadline. The taking back of the delivered goods by klio does not constitute a withdrawal from the contract, unless klio has expressly declared this in writing.
A court-ordered seizure of the delivered goods by klio always constitutes a withdrawal from the contract. After taking back the delivered goods, klio is entitled to sell them. The proceeds of the sale will be credited against the customer’s liabilities – less reasonable realisation costs.
4.2 The customer is obligated to treat the delivered goods with care; in particular, he is obligated to insure them adequately at his own expense against fire, water and theft damage at replacement value. The customer shall provide evidence of the insurance upon request.
4.3 In the event of seizure or other interventions by third parties, the customer shall immediately notify klio in writing so that klio can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure). If the third party is not in a position to reimburse klio for the costs of an action pursuant to § 771 ZPO, the customer is liable for the loss incurred by klio.
4.4 The customer is entitled to resell the delivered goods in the ordinary course of business; however, he already now assigns to klio all claims in the amount of the final invoice amount agreed with klio (including VAT) which accrue to the customer from the resale against his customers or third parties, irrespective of whether the delivered goods have been resold without or after processing. The customer remains authorised to collect this claim even after the assignment. The authority of klio to collect the claim itself remains unaffected. However, klio undertakes not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency or composition proceedings has been filed or payments have not been suspended. However, if this is the case, klio may demand that the customer informs klio of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtor (third party) of the assignment.
4.5 The treatment, processing, mixing and combination of the delivered goods by the customer shall always be carried out for klio as manufacturer, but without any obligation for klio. The customer’s expectant right to the delivered goods continues in the transformed item. If the delivered goods are processed with other items not belonging to klio, klio acquires co-ownership of the new item in the ratio of the objective value of the delivered goods (invoice value) to the other processed items at the time of processing.
In all other respects, the same applies to the item created by processing as to the purchased item delivered under reservation of title.
5. Time of performance
5.1 The commencement of the performance time stated by klio requires the timely and proper fulfilment of the customer’s duty to cooperate, in particular the receipt of all necessary documents, approvals, information etc. to be provided by the customer. This applies in particular in such cases where the manufacture of parts to be produced on the basis of plans and other documents of the customer has been agreed. In these cases, klio is not responsible for delayed performance or non-compliance with the performance obligation based on errors in these documents. The defence of non-performance of the contract remains reserved.
5.2 If non-compliance with deadlines is due to force majeure, e.g. mobilisation, war, riot, pandemic or similar events for which klio is not responsible, e.g. strike or lockout, the performance deadline shall be extended by the periods during which the aforementioned event or its effects last.
5.3 In the event of a delay in performance, klio is liable in cases of wilful intent or gross negligence by klio or its representatives or vicarious agents as well as in the event of culpably caused injury to life, limb or health according to the statutory provisions. However, klio’s liability in cases of gross negligence is limited to the foreseeable damage typical for the contract. Outside the cases of sentence 1 and sentence 2, klio’s liability due to delay for damages in addition to performance is limited to a total of 5% and for damages in lieu of performance including reimbursement of futile expenses to a total of 15% of the value of the delivery/service. Further claims of the customer are excluded – even after expiry of a deadline set by klio for performance. The limitation does not apply in the case of culpable breach of essential contractual obligations. However, the claim for damages for the culpable breach of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, unless another case according to sentence. 1 is given at the same time. The customer’s right to withdraw from the contract shall remain unaffected. A change in the burden of proof to the disadvantage of the customer is not associated with the above provisions.
5.4 If the customer is in default of acceptance or culpably breaches other duties to cooperate, klio is entitled to demand compensation for the damage incurred, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the goods shall also pass to the customer at the point in time at which the customer is in default of acceptance. We reserve the right to assert further claims.
6. Transfer of risk
6.1 Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
6.2 If the goods are shipped to the customer at the latter’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon shipment to the customer, at the latest upon leaving the factory/warehouse. This applies irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs.
If the customer wishes so, klio will cover the delivery with transport insurance. The costs incurred in this respect shall be borne by the customer.
7. Obligation to examine and give notice of defects
The customer must inspect the goods immediately after delivery by klio, insofar as this is feasible in the ordinary course of business, and, if a defect is found, notify klio immediately. If the customer fails to notify klio, the goods are deemed to have been approved, unless the defect was not recognisable during the inspection. If such a defect is discovered later, the notification must be made immediately after discovery, otherwise the goods shall be deemed to have been approved also in view of the defect. The timely dispatch of the notification shall be sufficient for the preservation of the rights of the customer.
8. Warranty for defects
8.1 Deliveries in excess or short by 5% are possible due to the production methods. They do not represent a defect for which klio is responsible. The delivery of exact quantities is possible against a handling surcharge of 3% of the value of the goods.
8.2 Insofar as there is a defect in the performance, klio is entitled to subsequent performance in the form of rectification of the defect or production of a new work at its discretion. In the case of rectification of defects, klio is obligated to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the work was transported to a place other than the place of performance, unless the transport corresponds to its intended use.
8.3 Only if the subsequent performance fails shall the customer be entitled, at his discretion, to declare withdrawal from the contract or to demand a corresponding reduction of the remuneration for the work (reduction), without prejudice to any claims for damages.
8.4 Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling (e.g. incorrect storage), excessive stress, unsuitable operating resources or due to special external influences which are not assumed under the contract. If improper modifications are made by the customer or by third parties, there shall also be no claims for defects for these and the resulting consequences.
8.5 The customer’s right of recourse against klio according to § 445 a BGB (German Civil Code – recourse of the contractor) only exists insofar as the customer has not made any agreements with his customer exceeding the statutory claims. Furthermore, clause 8.2 applies accordingly to the scope of the customer’s right of recourse against klio according to § 445 a BGB.
8.6 Claims for damages by the customer due to a material defect are excluded. This does not apply in case of fraudulent concealment of a defect, in case of non-compliance with a quality guarantee, in case of injury to life, limb or health and in case of intentional or grossly negligent breach of duty by klio. However, klio’s liability in cases of gross negligence is limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in sentence2 of this paragraph applies at the same time. Otherwise, klio shall only be liable under the German Product Liability Act. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in sentence 2 or sentence 3 of this paragraph applies at the same time. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
9. Other claims for damages
9.1 In cases of wilful intent or gross negligence by klio or a representative or vicarious agent as well as in cases of culpably caused injury to life, limb or health, klio is liable according to the statutory provisions. However, in cases of gross negligence klio’s liability is limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in sentence 1 or 3 of this paragraph applies at the same time. Apart from that, klio is only liable according to the product liability law, due to culpable violation of essential contractual obligations or insofar as we have fraudulently concealed the defect or have assumed a guarantee for the quality of the delivery item. The claim for damages for the breach of essential contractual obligations is, however, limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in p. 1 or p. 3 of this paragraph applies at the same time.
9.2 The provisions of the above paragraph 1 shall apply to all claims for damages (in particular for damages in addition to performance and damages in lieu of performance), irrespective of the legal grounds, in particular due to defects, the breach of duties arising from the contractual obligation or from tort. They also apply to the claim for compensation for futile expenses. However, liability for default shall be determined in accordance with section 5 of these terms and conditions. Liability for impossibility of performance according to section 10 of these terms and conditions.
9.3 The above provisions do not imply a change in the burden of proof to the disadvantage of the customer.
klio is liable for impossibility of delivery/service in cases of wilful intent or gross negligence by it or a representative or vicarious agent as well as in cases of culpably caused injury to life, limb or health in accordance with the statutory provisions. However, klio’s liability in cases of gross negligence is limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in p. 1 applies at the same time. Outside the cases of S. 1 and S. 2, klio’s liability for damages due to impossibility and for reimbursement of futile expenses is limited to a total of 10% of the value of the delivery/service. Further claims of the customer due to impossibility of delivery are excluded – even after expiry of a deadline set for us to perform. The customer’s right to withdraw from the contract remains unaffected. A change in the burden of proof to the disadvantage of the customer is not associated with the above provisions.
11. Limitation period
11.1 The limitation period for claims and rights due to defects in the services/delivery – irrespective of the legal grounds – is 6 months. However, this shall not apply in cases of § 438 para. 1 no. 1 BGB (defects of title in immovable property) or § 445 b BGB (right of recourse of the entrepreneur). The cases excluded in the preceding sentence 2 are subject to a limitation period of three years.
11.2 The limitation period according to para. 1 also applies to all claims for damages against klio which are related to the defect – irrespective of the legal basis of the claim.
11.3 However, the limitation periods according to clause 11.1 and 11.2 apply with the following proviso:
The limitation periods generally do not apply in the case of wilful intent or fraudulent concealment of a defect or insofar as klio has assumed a guarantee for the quality of the subject matter of the contract.
Furthermore, the limitation periods do not apply to claims for damages in the event of a grossly negligent breach of duty, in the event – not consisting of the delivery of a defective item or the provision of a defective work performance – of a culpable breach of material contractual obligations, in the event of culpably caused injury to life, limb or health or in the event of claims under the Product Liability Act. The limitation periods for claims for damages shall also apply to the reimbursement of futile expenses.
11.4 The limitation period for all claims begins with the delivery, in the case of work performance with the acceptance.
12. Place of jurisdiction – Place of performance – Applicable law
12.1 If the customer is a businessman, the place of jurisdiction is klio’s place of business. klio is, however, entitled to sue the customer at his place of business.
12.2 Unless otherwise stated in the order confirmation, klio’s place of business is the place of performance.
12.3 Orders and deliveries are exclusively subject to the laws of the Federal Republic of Germany, even if the business is conducted abroad. The UN Convention on Contracts for the International Sale of Goods according to the Vienna Convention of 11.4.1980 is excluded.
13. Severability clause
Should individual provisions of this contract be or become invalid, this shall not affect the validity of the remaining provisions of this contract.