General Terms and Conditions (GTC)
KB ELEMENTS GmbH
§ 1 Scope of Application
1. The sale of our products is exclusively subject to these General Terms and Conditions.
2. These GTC apply both to consumers within the meaning of Section 13 of the German Civil Code (BGB) and to entrepreneurs within the meaning of Section 14 BGB, unless an express distinction is made below between consumers and entrepreneurs.
3. Entrepreneurs within the meaning of these GTC include, in particular, commercial dealers, resellers, self-employed persons, legal entities under public law and special funds under public law acting in the course of their commercial or independent professional activities when entering into the contract.
4. The special B2B provisions set out below shall additionally apply to entrepreneurs and commercial resellers.
5. Any deviating, conflicting or supplementary terms and conditions of an entrepreneur shall only become part of the contract if KB ELEMENTS GmbH has expressly agreed to their application in text form.
§ 2 Conclusion of Contract
1. The presentation of our products on our website does not constitute a legally binding offer but an invitation to the customer to submit an offer to conclude a contract.
2. By submitting an order, the customer makes a binding offer to conclude a purchase contract.
3. After receipt of the order, the customer will receive a confirmation by email. This acknowledgement of receipt does not constitute acceptance of the offer unless acceptance is expressly declared therein.
4. The contract is concluded when we accept the customer's offer in writing or in text form within two working days after receipt of the order or dispatch the goods.
5. For the purposes of this provision, a working day is any calendar day that is neither a Sunday nor a nationwide public holiday in Germany.
§ 3 Delivery, Shipping Costs and Transfer of Risk
1. Delivery shall be made subject to the shipping costs stated in the respective offer or ordering process.
2. In relation to consumers, the statutory provisions concerning the transfer of risk shall apply.
3. If the buyer is an entrepreneur, the risk of accidental loss or accidental deterioration of the goods shall pass to the buyer upon delivery of the goods to the forwarding agent, carrier or other third party appointed to carry out the shipment, insofar as legally permissible and unless otherwise agreed.
4. In B2B transactions, delivery terms pursuant to Incoterms® 2020 may be agreed. The Incoterms® rule expressly specified in the respective offer, order confirmation or individual contract, including the named place, shall apply.
5. Partial deliveries to entrepreneurs are permissible insofar as they are reasonable for the entrepreneur.
§ 4 Retention of Title
1. In relation to consumers, the delivered goods shall remain the property of KB ELEMENTS GmbH until the purchase price has been paid in full.
2. In relation to entrepreneurs, the delivered goods shall remain the property of KB ELEMENTS GmbH until all claims arising from the ongoing business relationship have been settled in full.
3. The entrepreneur is entitled to resell goods subject to retention of title in the ordinary course of business.
4. The entrepreneur hereby assigns to KB ELEMENTS GmbH, by way of security, the claims against its customers arising from the resale of the goods in the amount of the outstanding claims of KB ELEMENTS GmbH. We hereby accept this assignment.
5. The entrepreneur shall remain entitled to collect the assigned claims until such authority is revoked.
6. In the case of cross-border deliveries, the retention of title shall apply only insofar as it can be validly agreed and enforced under the applicable law.
§ 5 Payment
1. For orders placed through our online shop, the payment methods displayed during the ordering process shall be accepted.
2. For individually agreed B2B transactions, the method and due date of payment shall be determined by the respective offer, order confirmation or invoice.
3. All net prices quoted to entrepreneurs are exclusive of the applicable statutory VAT, unless expressly stated otherwise.
4. In the event of late payment, the statutory provisions shall apply.
5. In the case of new customers, export transactions, increased risk of non-payment or a material deterioration in the entrepreneur's ability to pay that becomes apparent after conclusion of the contract, KB ELEMENTS GmbH may, to the extent permitted by law, require advance payment or appropriate security.
§ 6 Liability for Defects in Relation to Consumers
1. When new goods are sold to consumers, the statutory rights relating to defects pursuant to Sections 434 et seq. BGB shall apply.
2. The statutory limitation period for claims relating to defects in new goods is generally two years from delivery, unless otherwise provided by law.
3. Any additional guarantee granted by KB ELEMENTS exists independently of the consumer's statutory rights relating to defects and does not restrict those rights.
§ 7 Liability for Defects in Relation to Entrepreneurs and Dealers
1. The following B2B provisions shall apply to entrepreneurs and commercial resellers, unless mandatory statutory provisions provide otherwise.
2. A guarantee offered or advertised to consumers shall not automatically apply in favour of an entrepreneur or commercial reseller.
3. An independent guarantee in favour of an entrepreneur shall exist only if expressly granted by KB ELEMENTS GmbH in text form.
4. The limitation period for claims relating to defects by an entrepreneur in respect of newly manufactured goods shall generally be twelve months from delivery, insofar as such reduction is legally permissible.
5. A prerequisite for claims relating to defects is, in particular, that the relevant defect already existed at the time of transfer of risk.
6. In the event of a justified defect, KB ELEMENTS GmbH shall first be given the opportunity to inspect the goods and provide subsequent performance.
7. Subsequent performance shall be carried out in accordance with the statutory provisions by remedying the defect or supplying defect-free goods.
8. At our request, the entrepreneur shall make the goods complained of available for inspection, insofar as this is reasonable in the individual case.
9. Repairs, modifications, interventions or engagement of third parties carried out without the prior consent of KB ELEMENTS GmbH shall generally not give rise to any claim for reimbursement of costs, unless mandatory statutory provisions provide otherwise.
10. Claims relating to defects shall in particular not apply to damage arising only after the transfer of risk as a result of:
· improper assembly or installation;
· incorrect electrical connection;
· failure to comply with operating, assembly or installation instructions;
· unsuitable installation or operating conditions;
· improper use or use contrary to the intended purpose;
· normal wear and tear;
· external force or impact;
· damage occurring during transport for which the buyer is responsible;
· unauthorised repairs or modifications;
· other improper interventions by the buyer or third parties.
11. Claims for reimbursement of removal, installation, assembly, technician, travel, labour or other consequential costs shall exist only insofar as KB ELEMENTS GmbH is required to bear such costs under mandatory statutory provisions.
12. The above limitations shall not apply in cases of fraudulently concealed defects, expressly assumed guarantees, injury to life, body or health or other cases of mandatory statutory liability.
13. Mandatory statutory rights of recourse within a supply chain shall remain unaffected.
§ 8 Inspection and Notification Obligations for Entrepreneurs
1. If the purchase constitutes a commercial transaction for both contracting parties, the statutory inspection and notification obligations shall apply, in particular Section 377 of the German Commercial Code (HGB).
2. The buyer shall inspect the goods without undue delay after delivery insofar as this is feasible in the ordinary course of business.
3. Apparent defects, incorrect deliveries, quantity discrepancies and visible transport damage must be reported to KB ELEMENTS GmbH without undue delay after discovery.
4. If a defect that could not be detected during a proper inspection becomes apparent at a later date, it must be reported without undue delay after its discovery.
5. The notice of defect should contain at least:
· invoice or order number;
· model designation;
· serial number, if available;
· specific description of the defect;
· photographs or videos of the defect, where possible.
6. If the buyer fails to carry out an inspection or give notice within the time required by Section 377 HGB, the goods shall be deemed approved to the extent provided by law.
§ 9 Special Provisions for Resellers and Supplier Recourse
1. A commercial reseller generally sells products purchased from KB ELEMENTS to its customers in its own name and for its own account.
2. Without the express consent of KB ELEMENTS GmbH, the dealer is not entitled to grant additional guarantees, quality commitments or other obligations to its customers in the name of KB ELEMENTS GmbH.
3. If a dealer voluntarily grants its customer goodwill arrangements, extended guarantees, return rights or other benefits exceeding its statutory obligations and the obligations expressly assumed by KB ELEMENTS, this shall generally not establish a corresponding claim for reimbursement or recourse against KB ELEMENTS GmbH.
4. If a dealer asserts a statutory right of recourse against KB ELEMENTS GmbH, the dealer shall, upon request, provide the information and evidence necessary to assess the claim.
This includes in particular:
· the original invoice from KB ELEMENTS to the dealer;
· the dealer's proof of sale to its customer;
· the date on which the goods were handed over to the end customer;
· a precise description of the defect;
· information regarding when the end customer reported the defect;
· evidence of subsequent performance or other legally required remedy actually provided to the customer.
5. KB ELEMENTS GmbH shall be entitled to inspect or have the goods complained of inspected insofar as legally permissible and reasonable in the individual case.
6. Mandatory statutory rights of recourse, in particular within a supply chain where the final contract constitutes a consumer sale, shall remain unaffected.
§ 10 Guarantee
1. Where KB ELEMENTS offers consumers a voluntary manufacturer's guarantee, its scope, duration and conditions shall be governed by the applicable guarantee terms.
2. A manufacturer's guarantee granted to consumers does not automatically establish a guarantee in favour of dealers or other entrepreneurs.
3. A guarantee shall apply to entrepreneurs only if expressly granted in the respective B2B offer, contract or order confirmation.
§ 11 Liability in Relation to Entrepreneurs
1. KB ELEMENTS GmbH shall have unlimited liability in cases of intent and gross negligence.
2. In cases of ordinary negligence involving the breach of an essential contractual obligation, KB ELEMENTS GmbH shall, to the extent legally permissible, be liable only for damage typical of the contract and reasonably foreseeable.
3. The above limitations of liability shall not apply to injury to life, body or health or in cases of mandatory statutory liability, in particular under product liability law.
4. Any further liability shall be excluded to the extent permitted by law.
§ 12 International B2B Deliveries – EU and Third Countries
1. These provisions shall apply additionally to deliveries to entrepreneurs established outside Germany.
2. The buyer shall be responsible for compliance with all dealer, import, registration, information, tax and other distribution obligations applicable in its sales and destination country insofar as such obligations are imposed by law on the dealer, importer or another economic operator.
3. Customs duties, import taxes, import VAT, fees and other public charges shall be borne by the buyer unless otherwise provided by the expressly agreed delivery terms.
4. The buyer undertakes to comply with all applicable export control, sanctions, customs and foreign trade regulations.
5. KB ELEMENTS GmbH shall be entitled to refuse or suspend the performance of a transaction if its performance would violate mandatory export control, sanctions or other foreign trade regulations.
§ 13 Incoterms® for B2B Transactions
1. For national and international B2B deliveries, the parties may agree delivery terms pursuant to Incoterms® 2020.
2. The Incoterms® rule expressly agreed in the relevant offer, order confirmation or individual contract, including the named place, shall apply.
3. Within their scope, the agreed Incoterms® rule shall determine, in particular, the contractual allocation of transport obligations, transport costs and risk.
4. For the respective transaction, the expressly agreed Incoterms® rule shall take precedence over conflicting general delivery provisions contained in these GTC.
§ 14 Information for Consumers
We are not subject to any specific codes of conduct not mentioned above.
Any input errors made when placing an order can be identified and corrected during the final confirmation stage before the order is submitted.
The essential characteristics of our goods are set out in the respective product descriptions.
The language available for the conclusion of the contract is German.
Information concerning payment, delivery and performance can be found in the respective offer and ordering process.
§ 15 Dispute Resolution
We are neither willing nor obliged to participate in dispute resolution proceedings before a consumer arbitration board.
§ 16 Applicable Law and Exclusion of the UN Convention on Contracts for the International Sale of Goods
1. The contractual relationship between KB ELEMENTS GmbH and the customer shall be governed by the laws of the Federal Republic of Germany.
2. In relation to consumers, this choice of law shall apply only insofar as it does not deprive the consumer of the protection afforded by mandatory provisions of the law of the country in which the consumer has their habitual residence.
3. In relation to entrepreneurs, the laws of the Federal Republic of Germany shall apply exclusively insofar as such choice of law is legally permissible.
4. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
5. The exclusion of the CISG shall apply in particular to B2B deliveries within the European Union and to third countries.
§ 17 Place of Jurisdiction and Place of Performance for Entrepreneurs
1. If the buyer is a merchant, a legal entity under public law or a special fund under public law, the registered office of KB ELEMENTS GmbH shall, to the extent legally permissible, be the exclusive place of jurisdiction for all disputes arising out of or in connection with the contractual relationship.
2. In international B2B contracts, this jurisdiction agreement shall apply only insofar as it can be validly agreed under the applicable statutory provisions.
3. KB ELEMENTS GmbH shall remain entitled to bring proceedings against the buyer at the buyer's general place of jurisdiction.
4. In relation to entrepreneurs, the place of performance shall, insofar as legally permissible and unless otherwise agreed, be the registered office of KB ELEMENTS GmbH.
§ 18 Inspection of Shipments upon Delivery
1. We recommend that consumers inspect the shipment upon delivery for externally visible damage to the packaging.
2. In the event of visible damage, we recommend having the damage documented immediately by the carrier.
3. This recommendation does not restrict the consumer's statutory rights.
4. Entrepreneurs shall additionally be subject to the inspection and notification obligations pursuant to § 8 of these GTC.
§ 19 Concealed Transport Damage
1. Consumers are requested to report concealed transport damage as soon as reasonably possible after receipt of the goods and, where possible, to provide suitable photographs and a brief description of the damage.
2. This request does not restrict the consumer's statutory rights relating to defects.
3. Entrepreneurs shall be subject to the statutory commercial inspection and notification obligations and § 8 of these GTC.
§ 20 Right of Withdrawal and Returns
1. Consumers shall have a statutory right of withdrawal where the legal requirements are met.
2. Details are set out in our separate withdrawal policy.
3. Entrepreneurs and commercial resellers shall not be granted a statutory or contractual right of withdrawal or return unless expressly agreed otherwise in the individual case.
§ 21 Return Shipping Costs in the Event of Withdrawal
In the event of a valid withdrawal by a consumer, responsibility for return shipping costs shall be determined by our withdrawal policy and the applicable statutory provisions.
§ 22 Final Provisions
1. Individual agreements between KB ELEMENTS GmbH and the customer shall take precedence over these General Terms and Conditions.
2. If any individual provision of these GTC is or becomes wholly or partially invalid, the validity of the remaining provisions shall remain unaffected. The statutory provisions shall apply in place of the invalid provision.
3. The German-language version of these General Terms and Conditions is the authoritative version. The English version is provided for convenience and information purposes. In the event of any discrepancy, ambiguity or conflict between the German and English versions, the German version shall prevail, to the extent legally permissible.
KB ELEMENTS GmbH
Im Weidchen 21
52353 Düren
Germany
