According to § 5 TMG
Klumpp Coatings GmbH
Dornbirner Straße 23
Represented by Chief Executive Officer
Dr. Arne Deußen, Guido Schweizer, Michael Seidler
Commercial Registry: Amtsgericht Stuttgart
Registry No.: HRB-16387
Tax ID No.
Responsible for the content according to
§ 55 Abs. 2 RStV
Dr. Arne Deußen, Guido Schweizer, Michael Seidler
Dornbirner Str. 23
1. These general terms and conditions of sales and delivery (GTC) apply to companies, legal entities under public law or special funds under public law (hereinafter referred to as “customer”).
2. Our deliveries, services and offers are made exclusively on the basis of these general terms and conditions of sales and delivery. They are part of all contracts that the seller concludes with its contractual partners regarding the deliveries or services offered by it. They also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed again.
3. The terms and conditions of sales or business of the customer do not apply, even if the seller does not separately object to their validity in individual cases or, for example, the seller carries out the delivery unconditionally with knowledge of the terms and conditions of sales or business of the customer. Even if the seller refers to a letter containing or referring to the terms and conditions of the customer, this does not constitute acceptance of the validity of these terms and conditions of the customer.
II. Offer and contract conclusion
1. Our offers are subject to confirmation and are non-binding unless we have expressly designated them as binding or they contain a specific acceptance period. This also applies if we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form.
2. An order of the customer, which constitutes an offer to conclude a contract, can be accepted within 14 days after receipt by sending a written confirmation or by executing the contractual service within the same period.
3. The only decisive factor for the legal relationship between seller and customer is the written purchase contract, including these general terms and conditions of sales and delivery. It completely reproduces all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises of the seller before the conclusion of this contract are legally non-binding, and verbal agreements of the contracting parties are replaced by the written contract, unless it is expressly clear from that they continue to be binding.
4. Additions and amendments to the agreements made, including these general terms and conditions of sales and delivery, must be made in writing in order to be valid. With the exception of management or authorised representatives, the employees of the seller are not entitled to make deviating verbal agreements. For the preservation of the written form, telecommunication transmission suffices, in particular by fax or by e-mail, if the copy of the signed explanation is sent.
5. The seller’s information on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations (e.g. drawings and illustrations) are only approximate unless the usability for the contractually intended purpose presupposes an exact match. They are not guaranteed features, but descriptions or labels for the delivery or service. Customary deviations that occur due to legal regulations or technical improvements, as well as the change in the composition of recipes, is permissible, as long as they do not affect usability for the contractually intended purpose.
6. The seller reserves title or copyright to all offers and estimates submitted by it as well as any samples, drawings, illustrations, calculations, brochures, catalogues, models and other documents and aids provided to the customer. The customer may not make these items available to third parties without the express consent of the seller, either as such or in terms of content, disclose these items, use these items itself or through third parties, or duplicate them. At the seller’s request, the customer must return these items in full and destroy any copies made if they are no longer required by the customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of conventional data backup.
1. The prices apply to the scope of service and delivery stated in the order confirmations. Extra or special services will be charged separately. Our prices – unless otherwise agreed – are free domicile and include packaging, security and transport insurance. The applicable VAT is added separately. In the case of agreed export deliveries, the customer shall bear any customs duties as well as fees and other public charges. Discount, rebates or bonuses are only granted by separate written agreement.
2. We are entitled unilaterally to increase prices accordingly, in the event of increases in material production and/or material and/or product procurement costs, labour and non-wage labour costs, social security contributions, energy and environmental costs, and/or currency fluctuations and/or customs charges, and/or freight rates and/or public charges, if these directly or indirectly affect the goods production or procurement costs or costs of our contractually agreed services and if there are more than 4 months between the conclusion of the contract and the delivery. If the new price is 20% or more above the original price due to our aforementioned entitlement to price adjustment, the customer is entitled to withdraw from not yet fully completed contracts. However, the customer can only assert this right immediately after notification of the increased price.
3. If we carry the freight charges in accordance with the contract, the customer bears the additional costs resulting from increases in freight rates after the conclusion of the contract.
IV. Non-binding instructions on application
1. Product descriptions and instructions for use as well as technical advice in writing, by word of mouth or through tests are only general non-binding instructions. The customer must check each delivery for suitability for the intended processes and purposes, due to the variety of uses of the products and the particular circumstances. This also applies if the goods are generally recommended for a specific purpose. Application, use and processing of the products are beyond our control and are therefore the sole responsibility of the customer.
2. We assume no warranty or guarantee for the surface produced with the delivered goods, as we have no influence on the proper processing. If dilutions, hardeners, additional paints or other components not recommended by us are mixed in, the products no longer correspond to our product description.
1. Deliveries are made ex works.
2. Excess or short deliveries are permissible, provided that the deviation of quantity and weight does not exceed the usual commercial scope of +/- 5%.
3. Deadlines and dates for deliveries and services provided by the seller are only approximate, unless a fixed deadline or a fixed date has been expressly agreed or confirmed. If shipment has been agreed, delivery deadlines and delivery dates refer to the time of transfer to the carrier, shipper or other third party commissioned with the transport.
4. The seller may – without prejudice to its rights due to default by the customer – require the customer to extend delivery and performance deadlines or postpone delivery and performance deadlines for the period in which the customer fails to meet its contractual obligations to the seller.
5. The seller is not liable for impossibility of delivery or delays in delivery, as far as these are due to force majeure or other unforeseeable events at the time of the contract conclusion, for which the seller is not responsible (e.g. disruption of all types, difficulties in the procurement of materials or energy, delays in transport, strikes, legal lockouts, lack of manpower, energy or raw materials, difficulties in obtaining necessary regulatory approvals, regulatory action, or the lack of, incorrect, or untimely delivery from suppliers). If such events make the delivery or performance considerably more difficult or impossible for the seller, and the hindrance is not merely of temporary nature, the seller is entitled to withdraw from the contract. In the event of hindrances of a temporary duration, the delivery or performance deadlines shall be extended or the delivery or periods dates shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the customer cannot reasonably be expected to accept the delivery or performance as a result of the delay, the customer can withdraw from the contract by means of an immediate written declaration to the seller.
6. The seller is entitled to partial deliveries only if
7. If the seller defaults on a delivery or performance or if a delivery or performance becomes impossible for it for whatever reason, the seller’s liability for damages is limited in accordance with para. XI of these general terms and conditions.
VI. Place of performance, shipping, packaging, transfer of risk, acceptance
1. The place of performance for all obligations arising from the contractual relationship is the registered office of Stuttgart unless specified otherwise.
2. The shipping method and the packaging are subject to the dutiful discretion of the seller.
3. Loaned containers are our unsaleable property. They must be emptied and delivered flawlessly no later than 60 days after delivery. If this is not done, we may charge you for the current price of new containers of the same type or charge rental fees. Loaned packaging may not be used for any purpose other than the transport of the delivered goods, e.g. for receiving other products. Labels must not be added or removed.
4. Disposable packaging will not be taken back; we will inform the customer of a third party who recycles the packaging in accordance with the Packaging Ordinance.
5. The risk of accidental loss and accidental deterioration of the delivery item shall pass to the customer at the latest upon handover. However, in the case of consignment purchase, the risk of accidental loss and accidental deterioration of the delivery item as well as the risk of delay shall pass to the customer upon delivery of the goods to the freight forwarder, the carrier or the person or institution otherwise responsible for carrying out the consignment. If the shipment or transfer is delayed as a result of a circumstance whose cause lies with the customer, the risk passes to the customer from the day on which the delivery item is ready for dispatch and the seller has notified the customer. Insofar as acceptance has been agreed, this is decisive for the transfer of risk. In addition, the statutory provisions of work contract law apply accordingly to an agreed acceptance. If the customer is in default of acceptance, this is equivalent to handover or acceptance.
6. If the customer is in default of acceptance, fails to cooperate, or if the delivery is delayed for other reasons for which the customer is responsible, we are entitled to demand compensation for the resulting damages including additional expenses (e.g. storage costs).
Returns will only be accepted after written notice and our previous acceptance confirmation. They are at the expense and risk of the customer, unless the returned goods are defective.
1. The purchase price is due for payment, in the event of agreed debt, with receipt of the notification of the provision of the goods; in the event of shipping debt, with delivery to the carrier; and in the event of agreed cash-on-delivery, with delivery of the goods. The aforementioned applies unless otherwise agreed in writing.
2. The invoice amount is payable on the due date without any deduction to a bank or account designated by us. Other payment methods than bank transfer require separate agreement between us and the customer; this applies in particular to the issue of checks and bills of exchange. If the customer is entitled to a discount on the basis of a separate written agreement, the payment must be made within the relevant period after the due date of the payment – receipt of the funds in our account is decisive. The entitlement to discount applies only if the customer is not in default with payment of other invoices.
3. In the event of an agreed bank transfer, the date of receipt of the payment by us or the credit note on our account or on the account of the paying agency specified by us is deemed to be the date of payment.
4. Incoming payments are used first to pay off the costs, then the interest and, finally, the principal claims according to their maturity.
5. Upon default, default interest of 9 percentage points above the base rate of the European Central Bank at the due date of the payment claim will be charged. The assertion of any further damage remains reserved.
6. Offered bills of exchange are only accepted by way of exception by express agreement and only on account of performance. We calculate discount charges from the due date of the invoice to the expiration date of the bill of exchange, as well as bill of exchange costs. Interest and costs for the discounting or collection of bills of exchange shall be borne by the customer. For bills of exchange and checks, the day of their redemption is considered the date of payment. In the event of a refusal of discounting of a bill of exchange by our principal bank, or in the event of reasonable doubts as to the fact that a discounting of a bill of exchange will take place during the life of the bill of exchange, we are entitled to demand immediate cash payment under withdrawal of the bill of exchange.
7. The customer may offset against our claims only with undisputed claims, claims recognised by us and legally established claims that stand in a relationship of mutuality with our claim. The customer is authorised to exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship.
8. If it becomes apparent after conclusion of the contract (e.g. by application for opening of insolvency proceedings) that our claim to the purchase price is endangered by lack of funds on the part of the customer, we are entitled, according to the legal regulations, to refusal of performance and – if necessary after setting of a deadline – to withdrawal from the contract (§ 321 BGB). In contracts for the production of unacceptable items (custom-made production), we may declare the withdrawal immediately; the statutory provisions on the dispensability of the setting of a deadline remain unaffected.
VIII. Retention of title
1. Until the final payment of all claims arising on the basis of the business relationship, the delivered goods remain our property (reserved goods). In the case of multiple claims or ongoing invoices, the retention of title is deemed security for the balance claim, even if individual deliveries of goods have already been paid.
2. In the event of breach of contract by the customer, e.g. default of payment, we have the right, after setting a reasonable deadline, to take back the reserved goods. If we take back the reserved goods, this represents a withdrawal from the contract. We are entitled to use the reserved goods after taking them back. After deduction of an appropriate amount for the exploitation costs, the proceeds from the exploitation shall be offset against the amounts owed by the customer to us.
3. In the event of access by third parties to the reserved goods, in particular seizures, the customer shall point out our ownership and inform us immediately so that we can enforce our property rights. If the third party is not in a position to reimburse the seller for the legal or extrajudicial costs incurred in this connection, the customer is liable to the seller for this.
4. The customer is entitled to process the reserved goods in the ordinary course of business and to sell them, as long as the customer is not in default. Pledges or collateral assignments are not permitted. The customer hereby assigns the claims resulting from resale or any other legal reason (insurance, tort) with respect to the reserved goods to us in full. We authorise the customer revocably to collect the claims assigned to us on the customer’s own account and in its own name. The direct debit authorisation lapses if the customer does not meet its payment obligations properly, gets into financial difficulties, foreclosure measures are taken against it, judicial insolvency proceedings are opened over its assets, or the opening of the same is refused for lack of assets.
5. If the customer accepts claims from the resale of reserved goods in a current account relationship with its customers, the customer shall hereby assign a recognised final balance in its favour to us, which corresponds to the total amount of the claim in the current account relationship from the resale of our reserved goods.
6. Processing or transformation of the goods is always done for us as a manufacturer, but without obligation for us. If the delivery items are processed with other items not belonging to us, we acquire the co-ownership of the new item in proportion of the value of the delivery items to the other processed items at the time of processing. If the delivery items are combined or inseparably mixed with other items not belonging to us, we acquire co-ownership of the new item in proportion of the value of the delivery items to the other connected or mixed items. If the matter of the customer is to be regarded as the main item in the connection or mixing, then it is agreed that the customer proportionally transfers the co-ownership of the new object. The customer maintains the resulting co-ownership for us.
7. The buyer is obliged to keep the reserved goods carefully and to insure them against loss and damage at its own expense. It hereby assigns its claims under the insurance contracts to us in advance. We accept this assignment.
8. We are obliged to release the securities to which we are entitled to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; selection of the securities to be released is at our discretion.
9. Insofar as the retention of title is not effective according to the law of the country in which the delivered goods are located, the buyer shall, at our request, provide equivalent security. If it does not comply with this request, we can demand immediate payment of all outstanding invoices, irrespective of agreed payment terms.
IX. Warranty, material defects
In the event of a breach of a contractual duty, the customer shall be entitled against us to the statutory rights in accordance with the following provisions:
1. The delivered goods must be inspected carefully immediately after delivery to the customer or to the third party appointed by it. They apply to obvious defects or other defects that would have been apparent in an immediate, careful examination, as approved by the buyer, if the seller does not receive a written notice of defects within seven working days after delivery. With regard to other defects, the delivery items are deemed to have been approved by the buyer if the complaint is not made to the seller in writing within seven working days from the date on which the defect was revealed; If the defect was already apparent to the customer under normal conditions of use at an earlier date, that earlier date is decisive for the commencement of the period for complaint. At the request of the seller, a rejected delivery item shall be returned carriage paid to the seller. In the event of a legitimate complaint, the seller shall pay the costs of the least expensive shipping route; this does not apply if the costs increase because the delivery item is located in a place other than the place of intended use.
2. In the event of material defects of the delivered goods, the seller is obliged and entitled to rectify or replace the goods, according to its choice, within an appropriate time. In the event of failure, i.e. the impossibility, unacceptability, refusal or inappropriate delay of the rectification or replacement, the customer can withdraw from the contract or reduce the purchase price appropriately.
3. If action is taken against the customer by one of its clients or a consumer because of a defect in the delivered goods, which was already present at the time of the transfer of risk or was claimed by a consumer as the end user, the statutory entitlement to claims on the part of the customer against us in accordance with §§ 478, 479 BGB remain unaffected.
4. If a defect is based on the fault of the seller, the customer may require compensation under the conditions specified in para. XI.
5. Claims against us because of defects are only applicable to the customer and are not assignable.
6. The warranty does not apply if the customer changes the delivery item or has it altered by third parties without the consent of the seller and the elimination of the defect thereby becomes impossible or unreasonably difficult. If our instructions for use are not followed, changes are made to the products, other consumables are used which do not conform to the original specifications, or if our products are mixed with third-party products, then any warranty is void. The same applies if our products are not used exclusively for the overall structure of a surface. We are also not liable for improper storage or for advertising claims of third parties. In any case, the customer must bear the additional costs incurred by the change in order to remedy the defect.
7. Any delivery of used items agreed with the customer in individual cases is subject to the exclusion of any warranty for material defects.
8. The limitation period for warranty claims is one year from the transfer of risk. This does not apply insofar as the law requires longer periods in accordance with §§ 438 para. 1 no. 2 BGB (buildings and property for buildings), 478, 479 (supplier recourse) and 634a para. 1 no. 2 BGB (construction defects) and in the event of injury to life, body or health, intentional or grossly negligent breach of duty by us, or fraudulent concealment of a defect.
X. Property rights
1. The seller warrants in accordance with this para. X that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against the contracting party for violations of such rights.
2. In the event that the delivery item infringes a commercial property right or copyright of a third party, the seller shall modify or replace the delivery item at its own discretion and expense in such a way that no third-party rights are violated, but the item of delivery continues to fulfil the contractually agreed functions , or the seller shall grant the customer the right of use by concluding a license agreement. If the seller fails to do so within a reasonable period of time, the customer is entitled to withdraw from the contract or to reasonably reduce the purchase price. Any claims for damages on the part of the customer are subject to the restrictions of para. XI of these terms and conditions.
3. In the event of violations by products of other manufacturers supplied by the seller, the seller shall assert its claims against the manufacturers and upstream suppliers on behalf of the customer or assign them to the customer. Claims against the seller exist in these cases in accordance with this para. X only if the judicial enforcement of the above-mentioned claims against the manufacturers and upstream suppliers was unsuccessful or is hopeless, for example due to insolvency.
4. The customer guarantees that it does not violate the rights of third parties when processing the products. Should such property rights be violated, the customer shall indemnify the seller from claims for damages by third parties.
XI. Liability for damages due to fault
1. The liability of the seller for damages, for whatever legal reason, in particular from impossibility, delay, inadequate or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort, as far as it is in each case at fault, is restricted in accordance with this para. XI.
2. The seller is not liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, as far as it is not a violation of essential contractual obligations. Essential contractual obligations include the obligation to timely delivery of the delivery item, the freedom from defects in title and material defects of which more than insignificantly affects its functionality or serviceability, protective and custodial obligations, which enable the client to use the contractual object, or obligations that serve the protection of life or limb of staff of the customer or the protection of its property against significant damage.
3. As far as the seller according to para. XI (2) is in principle liable for damages, this liability is limited to damages which the seller foresaw when concluding the contract as a possible consequence of a breach of contract or should have foreseen when exercising usual due diligence. Indirect damages and consequential damages, which are the result of defects of the delivery item, are also only compensateable, as far as such damages are typically to be expected when the delivery item is used as intended.
4. In the case of liability for simple negligence, the seller’s obligation to pay compensation for property damage and resulting further pecuniary loss is EUR 10 million per claim (total up to EUR 20 million per insurance year; sublimit for individual claims; corresponding to the current coverage of its product liability insurance or liability insurance), even if it is a breach of essential contractual obligations.
5. The above exclusions and limitations of liability apply to the same extent in favour of the bodies, legal representatives, employees and other vicarious agents of the seller.
6. Insofar as the seller provides technical information or acts in an advisory capacity and this information or advice does not belong to the contractually agreed scope of services owed by it, this is done free of charge and to the exclusion of any liability.
7. The limitations of this para. XI do not apply to the seller’s liability for wilful misconduct, for guaranteed characteristics, injury to life, limb or health or liability under the Product Liability Act.
XII. Final provisions
1. The seller is entitled to change or amend its general terms and conditions if changed legal, regulatory or technical conditions have led to a more than insignificant disruption of the relationship between performance and consideration or to a contract gap, and the change, taking into account the interests of the customer, is reasonable for the customer. The seller shall inform the customer of any changes to the general terms and conditions no later than four weeks before the scheduled entry into force, notifying the contents of the changed regulations by e-mail to the e-mail address provided. The customer’s consent to the announced change is deemed to have been granted if the latter does not object to the change in text form within four weeks after receipt of the change notification. The seller shall point this out again in the change notification. If the customer objects to the change in the general terms and conditions in due time and form, the contractual relationship will continue under the conditions previously agreed. In this event, the seller reserves the right to terminate the contract at the earliest possible date. Changes and/or additions to the general terms and conditions also become part of the contract if the customer continues to use the seller’s offer after the change has been announced and has entered into force, e.g. the customer orders from us again, or if the customer otherwise agrees to the change.
2. The customer acknowledges that the seller stores data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transfer the data to third parties (e.g. insurance companies) for the fulfilment of the contract.
3. If the customer is a merchant within the meaning of the Commercial Code, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from the business relationship between the seller and the customer is our commercial seat in Stuttgart. However, we are entitled to take legal action against the customer at its commercial seat. Mandatory statutory provisions on exclusive jurisdictions remain unaffected by this provision.
4. The relations between the seller and the customer are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.
5. To the extent that the contract or these general terms and conditions contain loopholes, those legal provisions are deemed to have been agreed which the contracting parties would have agreed according to the economic objectives of the contract and the purpose of these general terms and conditions if they had known of the loopholes.