1. General Provisions
(1) These Conditions of Sale shall apply to any and all purchase contracts and deliveries, provided or rendered by KUKUJE GmbH, Gutenbergring 71, 22848 Norderstedt, Germany (hereinafter, “KUKUJE”) vis-à-vis its clients (hereinafter, “Clients”). These Conditions of Sale shall as a general agreement also apply, as amended, to future contracts for the sale and/or delivery of movable items that are concluded with the same Client, without KUKUJE being obliged to make express reference to these Conditions of Sale in each individual case; in any such case, KUKUJE shall inform the Client promptly of any amendments of the Conditions of Sale.
(2) These Conditions of Sale do not apply to orders by consumers.
(3) Any deviating provisions of the Clients do not apply, unless KUKUJE has consented to these in writing. This requirement shall apply in any case, for instance also when KUKUJE, being aware of the General Business Conditions of the Client, carries out the delivery to the Client without reservations. Agreements concluded with the Client on a case-by-case basis (including subsidiary arrangements, supplements and amendments) in any case take precedence over these Conditions of Sale. For the contents of such agreements, a written contract or the written confirmation by KUKUJE shall be authoritative. Legally relevant declarations and notifications that have to be made by the Client vis-à-vis KUKUJE after the conclusion of the contract (e.g. setting of time limits, reminders, cancellation), must be made in writing be to legally valid.
(4) The contract language is German. Translations into other languages are for convenience only.
(5) Vicarious agents and representatives of KUKUJE are not entitled to make any oral subsidiary arrangements. If and to the extent that they nevertheless make oral
subsidiary arrangements or make representations and warranties, which go beyond the scope of the written purchase contract, these always require written confirmation by KUKUJE to be legally valid.
(6) The business relations between KUKUJE and the Client are subject to the laws of the Federal Republic of Germany. The application of international uniform law, in particular of the UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) is excluded. The prerequisites for and the effects of retention of title in accordance with section 6 are subject to the law in force at the relevant location of the goods if, in accordance with the provisions of that law, the choice of law in favour of German law is inadmissible or invalid.
(7) With regard to the place of performance and the place of jurisdiction for any and all deliveries and payments as well as for any disputes arising between the parties from the contracts concluded between them the seat of KUKUJE in Norderstedt (Germany) shall be relevant. KUKUJE shall also be entitled to sue the Client at the Client’s place of business.
2. Conclusion of Contracts
(1) The Client may enquire about specific items by e-mail, letter, fax or telephone. Upon receipt of such an inquiry, KUKUJE shall submit a separate offer to the Client by email or letter.
(2) Any offer of KUKUJE is always subject to change without notice and non-binding. The same applies, if KUKUJE has provided the Client with catalogues, documentation (e.g. drawings, plans, calculations, and cost estimations), other product descriptions or documents – including in electronic form – to which KUKUJE retains title and copyrights.
(3) The order of goods by the Client shall be deemed a binding contractual offer. KUKUJE shall be entitled to accept this contractual offer within 7 days of its receipt by sending an order confirmation.
(4) Acceptance may be declared either in writing (e.g. by confirmation of the order) or by delivery of the goods to the Client. The documents belonging to the offer, e.g. illustrations, drawings, indications of weight and measures are, unless otherwise expressly agreed upon, only approximately authoritative.
(5) After confirmation of the order by KUKUJE, the Client is bound to the order and can only withdraw from the respective purchase contract in accordance with the statutory provisions.
(6) The employees, sales representatives, agents or other sales intermediaries of KUKUJE are not entitled to waive the requirement of obtaining a written order confirmation or to make any commitments which deviate in terms of content, or to give any guarantees.
3. Prices, VAT and Conditions of Payment
(1) Unless prices are agreed upon on an individual contract basis, the prices of KUKUJEin force and effect at the time of conclusion of the contract apply. Prices are subject to VAT at the respective statutory rate, if VAT has to be charged.
(2) Forwarding costs, costs of transport and packaging as well as turnover tax on imports shall be borne by the Client. KUKUJE does not take back transport packaging and all other packaging; it becomes the property of the Client.
(3) Unless otherwise agreed, KUKUJE’s invoices are due and payable net without deductions of the date of the invoice. However, KUKUJE is entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. KUKUJE will declare a corresponding reservation at the latest with the order confirmation.
(4) Payments shall be made in the currency agreed upon at the time of the order. In the case of transfers from abroad, the Client shall always bear the bank charges incurred. If KUKUJE exceptionally accepts bills of exchange and checks as means of payment, these shall only be accepted on account of performance.
(5) Should the Client fail to pay on the due date/default in payment, KUKUJE is entitled to charge default interest in an amount of 9 percentage points over the base interest rate. Pursuant to sec. 288 para. 2 of the German Civil Code (BGB), the Client shall be obliged to reimburse KUKUJE for reminder charges in the amount of a lump sum of EUR 40.00; these shall be offset against any costs of legal action. KUKUJE reserves the right to claim further damage caused by default. With respect to merchants, KUKUJE’s claim to the commercial due date interest rate (sec. 353 HGB) shall remain unaffected.
(6) If, after conclusion of the contract, it becomes apparent that KUKUJE’s claim to the purchase price is jeopardized by the Client’s inability to perform, KUKUJE shall be entitled to refuse performance in accordance with the statutory provisions and, if necessary, to withdraw from the contract after setting a deadline.
(7) KUKUJE shall always issue an invoice to the Client, which shall be handed over to the Client upon delivery of the goods or otherwise received in text form.
4. Delivery, Passing of Risks, Call Orders
(1) Unless otherwise agreed, KUKUJE shall deliver and perform EXW Norderstedt (Germany) (Incoterms 2020).
(2) At the request of the Client, KUKUJE shall ship the goods to their destination notified by the Client, without prejudice to the transfer of the risk of loss or damage pursuant to para. 1. Unless otherwise agreed, KUKUJE shall select the mode of shipment, shipping route and carrier at its best discretion.
(3) By concluding call orders or blanket orders, the Client shall be obligated to purchase the total quantity underlying the call order or blanket order. If no specific call dates result from the call or blanket order, the entire quantity shall be called within 12 months. If call-off dates are not met by the Client, KUKUJE shall be entitled, after giving written notice and pointing out the consequences of the failure to call-off, at its discretion to invoice the full total quantity and to store the goods at the Client’s expense until payment is made or to withdraw from the contract and claim damages.
5. Excess or short deliveries
(1) Excess or short deliveries of up to 10% are production related and do not constitute a defect. In the event of excess or short deliveries, only the quantity actually delivered shall be invoiced.
6. Counterclaims, Retention of Title
(1) The Client shall be entitled to exercise rights of setoff or rights of retention only to the extent that its counterclaim has become res judicata or is undisputed. In the event of defective delivery, the counterclaims of the Client shall remain unaffected, in particular its right to withhold a share of the purchase price that is commensurate with such defect.
(2) KUKUJE retains title to the goods until payment in full of the purchase price. The rules and regulations specified below shall be applicable in commercial operations only: The Client must not pledge the delivery item or transfer title to the item as security. In the event of seizure and attachment or any other orders or dispositions by third parties, it shall promptly inform KUKUJE accordingly.
(3) In the event that the Client behaves in a way which is not in conformity with the contract, in particular in the case of non-payment of the purchase price that is due and payable, KUKUJE shall be entitled to revoke the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the revocation. If the Client does not pay the purchase price that is due and payable, KUKUJE may exercise these rights only, if KUKUJE has previously granted the Client an appropriate deadline for payment which has not been complied with, or if the setting of such deadline is unnecessary in accordance with the statutory provisions.
(4) The Client is entitled to sell on the goods that are subject to the reservation of title in the ordinary course of business, subject to the proviso that the claims resulting from such resale are transferred to KUKUJE as follows:
a) The Client with immediate effect assigns to KUKUJE any and all claims together with any and all ancillary rights up to the amount of the purchase price claim, which accrue to it vis-à-vis the purchaser or vis-à-vis third parties from such resale.
b) The Client shall be entitled to collect such receivable even after assignment. The right of KUKUJE to collect the receivables itself shall remain unaffected thereby;
KUKUJE however undertakes not to collect the receivables as long as the Client duly and properly performs its payment obligations.
c) KUKUJE may demand that the Client informs KUKUJE of the assigned receivables and of their debtor(s), provides any and all information required for the
collection of the receivables, hands over the relevant documentation and informs the debtor of the assignment.
d) In any case, the above-mentioned collateral shall automatically lapse as soon as their value exceeds the receivables to be secured by more than 10 %.
7. Liability for Defects
(1) As regards the rights of the Client in the event of any material defects and defects of title (including incorrect and short delivery) the statutory provisions apply, unless otherwise provided for in the following. The special statutory provisions applying in the case of final delivery of the goods to a consumer shall remain unaffected (recourse against supplier in accordance with sec. 445a, 478 BGB) in any of these cases.
(2) The claims of the Client for defects require that it has complied with its statutory obligations to examine the goods and to make a complaint in respect of a defect
immediately on receipt of the goods (sect. 377, 381 HGB). Should any defect be detected upon examination or at a later time, this fact has to be notified promptly in writing to KUKUJE. Such notification is deemed to have been made promptly, if it is made within 1 week, with the timely dispatch of the notification being sufficient to observe the time limit. Irrespective of this obligation to examine the goods and to make a complaint, the Client must notify obvious defects (including incorrect delivery and short deliveries) within 1 week after delivery in writing, with the timely dispatch of the notification also in this case being sufficient to observe the time limit. Should the Client fail to perform a due and proper examination and/or fail to make a complaint, KUKUJE’s liability for any defect that has not been notified is excluded.
(3) In the event of justified notification of defects given within the specified deadline, KUKUJE is not obliged to make subsequent performance, if any actions have been taken or changes made to the goods without the consent of KUKUJE, unless the Client proves that the defect has not been caused by such actions and changes. In the event that subsequent performance is refused, fails or is unreasonable for the Client, the Client shall be entitled to rescind the purchase contract or to reduce the purchase price. No right of rescission applies in the case of an insignificant defect. Claims of the Client for damages or reimbursement of expenses incurred to no avail exist only in accordance with the provisions of sec. 8 and are excluded in all other respects.
(4) In the event of fraudulent concealment of a defect or of assumption of a warranty for the characteristics of the object of purchase at the time the risk has passed in
accordance with sec. 444 BGB (declaration by KUKUJE to the effect that the object of the purchase has certain characteristics at the time at which the risk passes and that KUKUJE intends to assume liability, regardless of negligence or fault, for any and all consequences of the absence of warranted characteristics) the rights of the Client are exclusively determined by the statutory provisions.
8. Exclusion of Liability
(1) Over and above the liability for material defects and defects of title, KUKUJE shall be liable without limitation, if the damage has been caused intentionally or by gross negligence. KUKUJE shall also be liable for negligent violation of material contractual obligations (obligations whose violation jeopardizes the attainment of the purpose of the contract) as well as for the violation of essential obligations (“Kardinalpflichten“) (obligations, whose performance will enable the due and proper performance of the contract in the first place and on whose performance the Client as a rule relies), in each case however only for the foreseeable damage that is typical for this type of contract. KUKUJE shall not be liable for the negligent violation of obligations other than those mentioned above.
(2) The limitations of liability specified in the preceding paragraphs do not apply in the case of death, bodily injury or damage to health, any deficiency occurring after the assumption of warranty for the characteristics of the product and in the case of defects that have been fraudulently concealed. Liability in accordance with the German Product Liability Act (“Produkthaftungsgesetz”) shall remain unaffected.
(3) If the liability of KUKUJE is excluded or limited, this shall also apply to the personal liability of the employees, representatives and vicarious agents of KUKUJE.
(4) Any and all claims for damages asserted vis-à-vis KUKUJE, irrespective of their legal ground, shall be barred by the statute of limitations at the latest one year after delivery of the goods to the Client, in the event of liability in tort from the time of becoming aware of or grossly negligent ignorance of the circumstances giving rise to the claim and of the person liable for damages. The rules and regulations of this paragraph do not apply - and in that event, the statutory provisions shall apply - in the case of liability for intent and in the cases mentioned in para. 2. Any shorter statutory periods of limitation take precedence.
(5) If the ultimate buyer of the goods is a consumer, the statutory provisions apply to the period of limitation of any right of recourse of the Client vis-à-vis KUKUJE.
9. Intellectual Property Rights
(1) KUKUJE reserves the intellectual property rights and copyrights to any and all products, images and other documents provided by it. The Client may utilize any such documents only with KUKUJE’s prior express written consent, without any independent rights to any such advertising materials accruing to it.
(2) The Client undertakes and warrants that it will not violate any intellectual property rights of third parties (patents, licenses, trademarks, etc.) when selling on the goods purchased from KUKUJE.
10. Data Protection and Data Privacy
For the purpose of handling orders, enquiries and offers which are submitted by the Clients or third parties mandated by them on their behalf, KUKUJE shall be entitled to store the data electronically and process such data further. KUKUJE shall also be entitled to pass on data to third parties, in particular to credit institutions and contract parties, which are needed for the processing of orders. The provisions of the German Federal Data Protection Act (Bundesdatenschutzgesetz - BDSG) and the European Data Protection Regulation (Datenschutzgrundverordnung -DSGVO) are complied with.
Last amended: 17 February 2022