General Terms and Conditions of Business of the König Film Centre

§ 1 Scope

  1. The following general terms and conditions of business (GTC) apply to the contracts entered into between König GmbH Kunststoffprodukte (König Film Centre) and their Customers to govern sales, the manufacturing and delivery of goods, and other services.

    For purchase contracts and contracts governing the manufacture or production of fungible goods, the special rules under item B of these GTC will apply in supplement to the regulations of the general part under A. “Fungible goods” means movable items that tend to be specified in commerce by quantity, dimensions, or weight (§ 91 German Civil Code (BGB)).

    For contracts for work and services, the special rules under item C of these GTC will apply in supplement to the regulations of the general part under A.

  2. These GTC apply only in regard to commercial consumers as defined by § 14 German Civil Code (BGB).
  1. These GTC apply to all business relationships between König and the Customer, including those that arise in the future. The respectively valid version at the time of conclusion of the contract shall be decisive.
  1. These general terms and conditions of business shall apply exclusively. We will not recognise any conditions of the contract partner that differ from or oppose these GTC. Our terms and conditions of business shall also apply if we perform delivery without reservation in the knowledge of conflicting or deviating terms and conditions of the contracting partner.

     

A. General Part

§ 1 Offer; Conclusion; Prices

  1. Offers shall always be subject to confirmation. Contracts may be entered into only by using the written form (“Schriftform” under § 126 BGB). König prices that were valid when the contract was entered into will apply.
  2. Since costs incurred by the manufacturing process might increase, König reserves the right to adjust the price by the amount of that increase in contracts with a contract period lasting more than four months.  This does not apply to cost increases for which König is responsible or that result from circumstances for which König is to blame.  König shall fully reimburse the Customer for cost decreases that arise after the contract has been entered into and during the manufacturing process if the contract with that Customer has a contract period lasting more than four months.
  3. If the offer in question does not show legal VAT, it is a net price to which the legal VAT must be added.
  4. Quotations shall always be non-binding.
  5. The offer calculations are based on the values or the inquiry or the information of the Customer.

§ 2 Services of König

  1. Unless otherwise agreed with the Customer, König’s prices apply without transport costs.  Transport insurance is concluded only upon the instructions and at the cost of the Customer.
  2. The packaging shall be carried out with the greatest possible care; the dispatch at our best discretion. The packaging shall be charged for at cost price, as well as any ancillary expenses which are incurred.
  3. If König agrees to take back the delivered goods as a gesture of goodwill, those goods must be in perfect condition.  For processing, the Customer will be invoiced for costs in the amount of 10% of the invoice value. In any case, until the goods arrive on König’s premises the Customer shall bear the risk that they might become lost or damaged. The Customer shall bear the freight costs. § 2 (3) does not apply if the goods delivered by König are defective.

§ 3 Delivery deadlines; Impossibility of delivery; Impartial delivery

  1. Unless otherwise expressly agreed, the deadlines and time limits specified by König are fixed.
  2. Force majeure entitles König to postpone delivery for the duration of the hindrance plus an appropriate start-up period. Force majeure also includes strikes, operational interruptions on the premises of König or their upstream 
  3. In case of individually manufactured goods with surplus or short deliveries, König GmbH shall have an entitlement of up to 10% of the agreed delivery quantity.
  4. König may make partial deliveries and render partial services if they are reasonable when considering the Customer’s interests.  This has no bearing on the contract contents, especially on the performance owed by König GmbH or any agreed period of performance. The Customer will not incur any additional costs because of partial delivery.

§ 4 Zayment conditions; Payment default

  1. Payments shall be due immediately, without any discount.
  1. König expressly reserves the right to refuse bills of exchange. The acceptance shall only take place on account of performance. Discount and exchange charges will be borne by our Customer and due for immediate payment. Bills of exchange will be accepted with no assumption of liability for proper presentation and protest.
  1. If the Customer fails to meet its payment obligations within 14 days after they become due, it will enter default with no further request to provide performance being made.  The payment will not be deemed to have been made until König has full disposal of the amount. If the payment deadline is exceeded, König may demand default interest in accordance with § 288 BGB as amended, without prejudice to other rights.   Greater damage can also be asserted if it can be verified.
  1. The Customer may offset only against counterclaims that have become res judicata or have not been contested by König. The Customer’s right to offset with contractual and other claims arising from the initiation or implementation of this contractual relationship remains unaffected thereby. The Customer can only exercise their right of retention if their counterclaim is based on the same contractual relationship.
  2. Payments from the Customer will be cleared in the order of §§ 366 (2), 367 German Civil Code (BGB).
  3. If after contract conclusion it becomes clear that our payment claim is jeopardised by the customer’s inability to pay, we are entitled to the rights under § 321 BGB (plea of uncertainty). That plea of uncertainty is extended to all additional outstanding deliveries and services from the business relationship with the Customer, provided König is obligated to provide performance. König may make due for payment any claims arising from the ongoing business relationship

§ 5 General limitations of liability

  1. Liability for a slightly negligent breach of duty will be restricted to the average damage that is foreseeable according to the type of goods and typical of this type of contract. This also applies to any slightly negligent breach of duty committed by König’s legal representatives or vicarious agents and assistants.   König will not be liable for the slightly negligent breach of nonessential contractual obligations. On the other hand, they are liable for the violation of legal positions of the Customer which are essential to the contract. Legal positions which are essential to the contract are those which the contract must guarantee the Customer according to its contents and purpose.  König GmbH shall also be liable for violations of duties whose fulfilment enables the proper implementation of the contract in the first place and on whose compliance the Customer may rely.
  2. The aforementioned limitations of liability do not affect the Customer’s claims arising from guarantees and/or product liability. Furthermore, the limitations of liability do not apply in cases of malice, violation of duties which are essential to the contract, as well as in cases of harm to body or health or the loss of the Customer’s life if these are attributable to König GmbH.

§ 6 Additional limitation of liability to the amount of insurance coverage (liability insurance)

  1. If ordinary negligence is committed, König’s liability in terms of reason and amount will be limited to the scope of damage that is covered in terms of reason and amount by the conclusion of appropriate liability insurance.
  2. Various liability insurances exist to the benefit of König, with insurance sums of 1,000.000 up to 7,500,000 per insured event. The insurance conditions in question will be given to the Customer on that party’s request, for perusal.

§ 7 Place of jurisdiction, applicable law

  1. If the Customer is a merchant, legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from this contract is Munich, unless an exclusive place of jurisdiction is specified. However, König may also sue the merchant at the court having competence at the merchant’s place of residence or registered office. Competence due to an exclusive place of jurisdiction remains unaffected thereby.
  2. The relationships between the contracting parties shall be regulated exclusively by the law which applies in the Federal Republic of Germany. The United Nations Convention on the International Sale of Goods shall not apply.

     

B. Special regulations for purchase contracts and contracts on manufacturing fungible goods 

§ 1 Reservation of self-delivery

  1. The conclusion of the contract shall take place subject to the provision that we shall not carry out deliveries either in part or in full, in the event that supplies fail to match specifications or rules through no fault of our own.  This applies only if König is to blame for the nondelivery and König has exercised due diligence by entering a hedging arrangement with the supplier. König shall make all reasonable efforts to procure the goods. Otherwise, the consideration will be reimbursed immediately. If the goods are not available in part or at all, the Customer will be informed immediately.

§ 2 Transfer of risk

  1. The risk of accidental loss or deterioration of the goods will be transferred to the Customer when the goods are handed over to the Customer or its delegate, or, in the case of a mail order, when the goods are delivered to the freight forwarder, the freight carrier, or other person or institution specified to execute the shipment.
  2. If circumstances for which the Customer is responsible prevent the goods from being sent or accepted by the intended deadline after they have been finished or made available, the risk will be transferred to the Customer as soon as that Customer receives the notice of readiness for shipment. If this occurs, however, König shall at the Customer’s request and expense take out the insurance policies the Customer specifies. Storage costs shall be borne by the Customer.

§ 3 Retention of title

  1. König will retain the title to the goods until all its demands arising from the ongoing business relationship have been completely satisfied.
  2. If the Customer behaves in a manner contrary to the contract – particularly by defaulting on the payment or providing false information about its creditworthiness – or if a petition is filed to initiate insolvency proceedings, König may withdraw from the contract and demand that the goods be returned (possibly after setting a grace period) if the Customer has not yet provided the consideration in full or at all.
  3. The Customer is entitled to resell the goods to a third party as part of routine business operations.  However, the Customer shall assign all claims with all ancillary rights which are accrued to it against the consumer or third parties as a result of the subsequent selling on.   König GmbH shall be obliged not to collect the claims as long as the Customer properly complies with its payment obligations. However, if this is the case, König may demand that the Customer disclose the assigned claims and their debtors to König, give König all information necessary to collect, and hand over the associated documents. In this case, König shall inform the debtor of the assignment.
  4. If the objects whose title is reserved are installed into the real property of a third party as an essential component of that property by the Customer or on its behalf, the Customer hereby assigns its claims against that third party, or the party concerned, to remuneration amounting to the invoice or billing value of the transaction between König and its Customer. The said assignment shall include all ancillary rights, including the granting of a debt-securing mortgage to the Customer.
  5. If the retention of title expires due to combination or processing, König will acquire co-ownership according to the ratio of the invoice value of the transaction between König and the Customer to the value of the finished goods. If the newly created item is resold, the Customer shall assign to König all claims against the buyer or against third parties that arise from the resale, up to the value of the performance. Otherwise, Number 3 shall apply.
  6. König accepts the preceding assignment.
  7. If the realisable value of the securities to which König is entitled exceeds the value of the claims to be secured by more than 10%, König shall release those securities at the Customer’s request and may choose which securities to release.

§ 4 Defect claims

  1. The Customer is entitled to a statutory warranty right, which is modified in accordance with §§ 5 and 6 of the General Part of these GTC under A, and §§ 4 and 5 of the special regulations of these GTC under B.
  2. If the delivered contractual objects are defective, König shall provide subsequent performance through subsequent improvement or replacement delivery, at its discretion.
  3. If subsequent performance fails, the Customer is entitled to withdraw from the contract or reduce the purchase price, without prejudice to any existing claim for damage compensation. As a rule, at least two attempts to rectify faults are deemed acceptable for the Customer. In consideration of mutual interests, the Customer is not entitled to withdraw for insignificant defects.  Instead of compensation in place of performance, the Customer can demand the replacement of futile expenditures, within the bounds of § 284 BGB, which he has made (and was able to make reasonably) in reliance upon the receipt of the goods. If the Customer chooses damage compensation in lieu of performance, the limitations of liability pursuant to §§ 5 and 6 of the General Part of these GTC under A will apply.
  4. The warranty period amounts to one year from the delivery or handover of the merchandise.  This does not apply if König can be accused of gross culpability; or if there is injury to limb or health, or the Customer’s life, that is attributable to König; or if there is a guarantee; or in the event of recovery against a supplier in accordance with §§ 478, 479 BGB. This will not affect König’s liability in accordance with the Product Liability Act. The regular statute of limitations shall also apply if König GmbH has fraudulently concealed a defect.
  5. If the Customer is a merchant as defined by the German Commercial Code (HGB), § 377 HGB shall apply. Otherwise obvious defects must be asserted in writing and at the latest within a deadline of two weeks following receipt of the goods; hidden defects must be asserted in writing within two weeks of their discovery. The timely sending or notification shall suffice for compliance with the deadline.
  6. The Customer shall return the delivered goods to König so König can provide subsequent performance through subsequent improvement or subsequent delivery. If the delivered goods are defective, König shall bear the costs necessary for subsequent performance (especially transport, road, labour and material costs). If the expenses increase because the object is subsequently moved to a location other than the Customer’s place of residence or branch, the Customer’s claims to those increased expenses are excluded unless relocating the goods to a different location is part of their intended use.
  7. The Customer’s statutory rights of recourse that are asserted after the new goods are resold by the Customer’s own buyer due to defects in the goods exist against König only insofar as the buyer asserts the statutory defect claims against the Customer.
  8. The defect warranty shall not extend to natural wear and tear and defects which are due to defective or negligent handling, excessive operational demands or similar influences which are not presupposed under the contract. The same shall apply if operational or maintenance rules are not complied with or improper alterations were carried out to the deliveries.
  9. Only König’s product description will be deemed agreed as a quality of the goods. Public statements, promotion or advertising of the manufacturer shall not represent any additional contractual declaration of the quality of the product. Manufacturers' guarantees shall not be affected thereby. The product description does not release the Customer from the obligation to check the products for suitability for the intended purpose.
  10. Unless otherwise agreed, König will not make a guarantee toward the Customer in a legal sense. Manufacturers' guarantees shall not be affected thereby.

§ 5 The Customer’s inspection obligations under item § 4 (5) of these GTC

  1. If the Customer is not a merchant, it shall perform the following inspections:
    1. After the delivered goods are received, the Customer shall inspect them, including any agreed finishings (such as blanks, millings and drillings), regarding the following points:
  • Quantity and type of the delivered goods and finishings
  • Damage to the delivered goods and finishings
  • Before using the delivered goods, the Customer shall also inspect them and the finishings for suitability for their intended purpose.
  • If the delivered goods are meant to be installed in another item, the Customer shall also inspect the delivered goods regarding the following points, provided these values are relevant for their installation and further use:
    • Measurements of the goods and finishings (regarding length, breadth, strength, and/or angularity, for example)
    • Execution of the goods and finishings (regarding colour, surface structure, evenness, and/or quality, for example)
    1. If the Customer is a merchant as defined by the German Commercial Code (HGB), § 377 HGB shall apply. As part of the obligations that are incumbent on the Customer to that extent, the Customer shall also fulfil the inspection obligations for non-merchants specified above under paragraph 1.

       

    C. Special regulations for contracts for work and services

    § 1 Rendering of services by König

    1. König may employ subcontractors when manufacturing the work.

    § 2 Acceptance

    1. Customer shall carry out the inspection and acceptance procedure for König’s performance in accordance with the agreements made in that regard; otherwise, in accordance with statutory provisions, § 640 BGB.
    2. As part of that procedure, the Customer shall inspect the goods, including any agreed finishings (such as blanks, millings, and drillings) for any defects. To that extent, the Customer shall perform the following inspections in particular:
      1. After the delivered goods are received, the Customer shall inspect them regarding the following points:
    • Quantity and type of the delivered goods and finishings
    • Damage to the delivered goods and finishings
  • Before using the delivered goods, the Customer shall also inspect them and any finishings for suitability for their intended purpose.
      1. Ist die gelieferte Ware für den Einbau in eine andere Sache bestimmt, ist der Kunde weiter verpflichtet die gelieferten Waren auf folgende Punkte hin zu überprüfen, sofern diese Werte für den Einbau und die weitere Verwendung relevant sind:
    • Measurements of the goods and finishings (regarding length, breadth, strength and/or angularity, for example)
    • Execution of the goods and finishings (regarding colour, surface structure, evenness and/or quality, for example)
    1. If Customer defaults on the inspection and acceptance procedure, the agreed remuneration will be due for payment immediately.
    1. The transfer of risk for the deliveries and services that König shall render is in accordance with the statutory provisions.

    § 3 Warranty

    1. The Customer is entitled to a statutory warranty right, which is modified in accordance with §§ 5 and 6 of the General Part of these GTC under A, and the following regulations of these GTC
    1. The warranty period amounts to 12 months, beginning with complete acceptance in accordance with § 2 of the special regulations under item C of these GTC. This does not apply if König can be accused of gross culpability; or if there is injury to limb or health, or the Customer’s life, that is attributable to König; or if there is a guarantee.  This will not affect König’s liability in accordance with the Product Liability Act.  The regular statute of limitations shall also apply if König GmbH has fraudulently concealed a defect.
    1. The Customer shall return the delivered goods to König so König can provide subsequent performance through subsequent improvement or subsequent delivery. If the delivered goods are defective, König shall bear the costs necessary for subsequent performance (especially transport, road, labour and material costs). If the expenses increase because the object is subsequently moved to a location other than the Customer’s place of residence or branch, the Customer’s claims to those increased expenses are excluded 
    1. The defect warranty shall not extend to natural wear and tear and defects which are due to defective or negligent handling, excessive operational demands or similar influences which are not presupposed under the contract. The same shall apply if operational or maintenance rules are not complied with or improper alterations were carried out to the deliveries.
    1. Only König’s product description will be deemed agreed as a quality of the goods. Public statements, promotion or advertising of the manufacturer shall not represent any additional contractual declaration of the quality of the product. This does not affect manufacturers’ guarantees. The product description does not release the Customer from the obligation to check the products for suitability for the intended purpose.
    1. Unless otherwise agreed, König will not make a guarantee toward the Customer in a legal sense. Manufacturers' guarantees shall not be affected thereby.


    As of June 2018