1. Scope of Application

1.1 The latest version of these General Terms and Conditions of Delivery and Payment (GTC) shall apply to all deliveries and other services provided by us.

1.2 Conflicting or deviating general terms and conditions of the Customer shall not apply unless Kitagawa GmbH has explicitly consented to their validity in writing. The GTC of Kitagawa GmbH shall also apply if Kitagawa GmbH performs the services for the Customer without reservation in the knowledge of conflicting or deviating terms and conditions of the Customer.

1.3 Individual contractual agreements between Kitagawa GmbH and the customer that deviate from the GTC require the written form.

1.4 These GTC of Kitagawa GmbH apply exclusively to entrepreneurs within the meaning of Section 310 (1) BGB (German Civil Code). The GTC shall apply accordingly to pre-contractual relationships.

2. Conclusion of the Contract

2.1 The offers of Kitagawa GmbH are subject to change. The ordering of goods by the customer shall be deemed a binding contractual offer, whereby the customer also acknowledges the applicability of these GTC.

2.2 A contract between Kitagawa GmbH and the customer is only concluded in accordance with the content of the order confirmation in written or text form by Kitagawa GmbH or by delivery of the goods or provision of the agreed service by Kitagawa GmbH. A mere confirmation of receipt does not constitute acceptance or the conclusion of a contract.

2.3 The customer is bound to his order for three weeks. Kitagawa GmbH reserves the right to deviate from the customer’s specifications in the order confirmation. This shall constitute a new offer which the customer must accept within a period of two weeks. After this deadline, it expires.

2.4 The product descriptions which are available on the website of Kitagawa GmbH or which are contained in the sales and advertising catalogs of Kitagawa GmbH (including, but not limited to, prices, technical information, etc.) are subject to change and non-binding. Kitagawa GmbH is entitled to change the design and manufacture of its products at any time without prior notice. This also applies to goods already ordered, provided that this does not result in the contractually agreed quality of the goods being undercut and the change is reasonable for the customer. The modification of contractual goods already delivered cannot be demanded retrospectively.

2.5 Insofar as Kitagawa GmbH provides the customer with drafts, illustrations, drawings, data, documents, calculations etc. (documentation) relating to the goods offered or presents the respective project at the customer’s request, Kitagawa GmbH expressly reserves the right of ownership and copyright to this documentation as well as to the entire stock of goods and the projects developed. Neither the documentation nor the details of the range of goods or the development may be passed on to third parties, made public, copied, reproduced or used in any other way without the written and express permission of Kitagawa GmbH.

2.6 The customer is obliged to return the documentation to Kitagawa GmbH upon written request. If a contract is concluded, Kitagawa GmbH will provide the customer with the documentation free of charge.

3. Delivery Periods and Delay

3.1 The delivery time of the goods shall be determined by the written order confirmation of Kitagawa GmbH.

3.2 Specified delivery periods shall commence upon dispatch of the written order confirmation. In the event that the customer is obliged to make advance payment, the delivery period shall start upon the customer’s contractual advance payment being received by Kitagawa GmbH.

3.3 If the customer requests changes to the contractually agreed services after the order has been confirmed in writing, Kitagawa GmbH shall be entitled to extend the delivery period appropriately if necessary.

3.4 If Kitagawa GmbH is unable to comply with binding delivery deadlines through no fault of its own, Kitagawa GmbH shall inform the customer of this without culpable delay and at the same time notify the customer of the expected new delivery deadline if delivery will still be possible.

Kitagawa GmbH shall not be liable for failures or delays in the fulfillment of its obligations which have become practically impossible due to circumstances beyond the control of Kitagawa GmbH. These circumstances include in particular
a) natural disasters
b) acts of terrorism
c) labor disputes or work stoppages
d) war
e) official measures or orders
f) epidemics, pandemics or the outbreak of communicable diseases
g) quarantines
h) national or regional emergencies
i) or other reasons beyond the reasonable control of Kitagawa GmbH in particular force majeure of any other kind, regardless of whether they are similar to the aforementioned or not.

Kitagawa GmbH shall give written notice of non-performance or delay in performance due to above reasons as soon as possible. All delivery dates affected by the above reasons shall be suspended for its duration. If possible and reasonable, Kitagawa GmbH will not cancel the corresponding obligations and deliveries, but will reschedule them as soon as this is possible after the force majeure has ceased.

Equivalent to this are cases in which Kitagawa GmbH does not receive its deliveries on time or in the correct form.

3.5 If a delivery date promised by Kitagawa GmbH is not met for reasons for which Kitagawa GmbH is responsible, the customer shall be entitled to set Kitagawa GmbH a grace period of two weeks after expiry of the agreed delivery period by means of a registered letter. After fruitless expiry of this period, the customer shall be entitled to withdraw from the contract.
Compensation for delay due to slight negligence on the part of Kitagawa GmbH is excluded.

3.6 Kitagawa GmbH is entitled to make partial deliveries if this appears necessary for speedy processing and the partial delivery is not exceptionally unreasonable for the customer. Partial delivery is deemed reasonable in particular if the customer can use the partial performance – even without the subsequent deliveries – as intended.

4. Dispatch and Passing of Risk

4.1 Delivery shall be ex works. This is also the contractual place of performance. At the customer’s request and expense, the goods shall be dispatched to another destination (sale to destination).

4.2 Kitagawa GmbH is entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging etc.) itself. The transport packaging and all other packaging in accordance with the German Packaging Ordinance will not be taken back unless explicitly agreed otherwise in writing. The customer is obliged to dispose of the disposable packaging at his own expense.

4.3 The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. If the customer is in default, this shall be deemed equivalent to handover.

4.4 In the case of sale to destination, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass to the customer upon handover of the goods to the transport company or the person otherwise selected and designated to carry out the dispatch.

4.5 The rights of the customer pursuant to Section 9 of these GTC and the statutory rights of Kitagawa GmbH, in particular in the event of an exclusion of the obligation to perform due to impossibility, unreasonableness of performance, etc., shall remain unaffected.

4.6 If the customer fails to cooperate as required, is in default of acceptance or Kitagawa GmbH’s performance is delayed for other reasons for which the customer is responsible, Kitagawa GmbH is entitled to demand compensation in line with the resulting damage, including additional expenses (e.g. storage costs).

5. Price

5.1 The prices in euros are based on the respective order confirmation from Kitagawa GmbH plus statutory VAT from the agreed place of delivery. Unless otherwise agreed, the prices notified to the customer shall apply ex warehouse plus statutory VAT.

5.2 In the case of sale to destination, the customer shall bear the transportation costs ex warehouse. Transport insurance shall only be taken out at the request and expense of the customer.

6. Payment Conditions

6.1 Unless explicitly agreed otherwise, the invoice amount shall be payable without any deductions 30 days after the due date and delivery of the invoice. Receipt of payment by Kitagawa GmbH shall be decisive for the timeliness of payment. Checks shall only be accepted on account of performance.

6.2 Upon expiry of the payment period, the customer shall be in default without the need for a separate reminder. Interest shall be charged on the purchase price during the period of default at the applicable statutory default interest rate (Section 288 (2) BGB). Kitagawa GmbH reserves the right to assert further claims for damages caused by default.

6.3 If the customer is in arrears with payment, Kitagawa GmbH reserves the right to demand advance payments or the provision of security before making further deliveries. The same shall apply if the financial circumstances of the customer give cause for concern as to whether the payment obligations will be properly fulfilled.

6.4 The customer may only offset Kitagawa GmbH’s claim against legally established or undisputed counterclaims. The customer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

7. Retention of Ownership

7.1 All goods shall remain the property of Kitagawa GmbH until full payment of all present and future claims arising from the purchase contract and from the business relationship with Kitagawa GmbH.

7.2 The customer shall be entitled to resell the goods subject to retention of title in the ordinary course of business. In this case, the customer hereby assigns to Kitagawa GmbH all claims resulting from the resale, irrespective of whether the goods have been further processed or not. Kitagawa GmbH hereby accepts this assignment. Without affecting Kitagawa GmbH’s right to demand payment, the customer is authorized to demand payment on the assigned claims. For this purpose, Kitagawa GmbH shall not demand payment on the assigned claims provided that the customer fulfills all his payment obligations and there is no threat of insolvency or similar proceedings or default of payment.

7.3 The goods subject to Kitagawa GmbH’s retention of ownership may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The customer shall inform Kitagawa GmbH immediately in writing if and insofar as third parties seize the goods belonging to Kitagawa GmbH.

7.4 By processing the goods subject to retention of title sold, the customer does not acquire ownership of the wholly or partially manufactured items; the processing is carried out free of charge exclusively for Kitagawa GmbH as processor within the meaning of § 950 BGB. Should this retention of ownership nevertheless expire due to any circumstances, the customer and Kitagawa GmbH hereby agree that ownership of the goods shall be transferred to Kitagawa GmbH upon processing, that Kitagawa GmbH accepts this transfer of ownership and that the customer shall remain the custodian of the goods free of charge. If Kitagawa GmbH’s retained goods are processed or inseparably mixed with
items still owned by third parties, Kitagawa GmbH shall acquire co-ownership of the new items or mixed stock. The extent of the co-ownership is determined by the ratio of the invoice value of the reserved goods delivered by Kitagawa GmbH to the invoice value of the other goods.

7.5 The customer is authorized to collect the assigned claim in his own name. However, Kitagawa GmbH shall be entitled to revoke this direct debit authorization at any time, in particular if the customer does not meet his contractual obligations to Kitagawa GmbH (in particular if he is in default of payment), insolvency proceedings or application to open such proceedings have been filed or any other deficiency in his ability to pay is apparent. In the event of revocation, the customer shall be obliged to provide or hand over to Kitagawa GmbH all information and documents necessary to assert the assigned claims and to disclose the assignments to his customers. In the event of default of payment by the customer, Kitagawa GmbH is entitled to notify the customer’s purchasers about the assignment.

7.6 The customer is obliged to provide Kitagawa GmbH at any time with information on the whereabouts of the goods subject to retention of title and on the claims arising from their resale. The customer is obliged to notify Kitagawa GmbH in writing of any access by third parties to the goods subject to retention of title or to the claims assigned to Kitagawa GmbH and to inform the third party of the rights of Kitagawa GmbH. Furthermore, the customer is obliged to support Kitagawa GmbH in asserting and enforcing its rights against third parties, in particular to take the necessary immediate legal action/remedies to protect the rights of Kitagawa GmbH at its own expense.

7.7 If the customer fails to meet his contractual obligations to Kitagawa GmbH (in particular in the event of non-payment of the purchase price due), Kitagawa GmbH shall be entitled to withdraw from 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 withdrawal.

7.8 The customer is obliged to treat the delivered goods subject to retention of title with care. In particular, he shall be obliged to insure the reserved goods adequately at his own expense against destruction, damage by fire, water, burglary or theft. The customer hereby assigns his insurance claims in this respect to Kitagawa GmbH. Kitagawa GmbH hereby accepts the assignment and declares the reassignment to the customer with the proviso that this becomes effective if and as soon as the retention of title has expired.

7.9 Insofar as the claims of Kitagawa GmbH as a whole are secured beyond doubt by more than 125% by the assignments or reservations declared above, the surplus of the outstanding amounts or the reserved goods within the meaning of Section 7.1 above shall be released by Kitagawa GmbH at the request of the customer at its discretion.

8. Warranty

8.1 Kitagawa GmbH warrants for a period of twelve months that the goods are free of defects upon passing of risk. This warranty shall commence upon delivery of the goods.

8.2 Drawings, illustrations, dimensions, weights and/or other performance data are non-binding and do not constitute a quality agreement or warranty. Unless explicitly agreed otherwise, they describe the general condition of the goods, but not their individual properties. Changes within the meaning of section 2.4 of the GTC do not constitute a defect in the goods.

8.3 No warranty shall be provided in the event of improper use, non-compliance with assembly or operating instructions, incorrect installation, incorrect operation, etc. Likewise, no warranty shall be provided for cases of damage caused by the operation of the goods together with devices whose compatibility has not been explicitly confirmed in writing by Kitagawa GmbH.

8.4 The customer’s claims for defects presuppose that he has complied with his statutory duties of inspection and notification of defects (Section 377 HGB (German Commercial Code)). If a defect is discovered during the inspection or later, Kitagawa GmbH must be notified of this in writing without delay. The notification shall be deemed immediate if it is made within two weeks of delivery or later discovery, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of these obligations to inspect and give notice of defects, the customer must notify Kitagawa GmbH in writing of obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby the timely dispatch of the notification is also sufficient to meet the deadline.

8.5 If the customer fails to properly inspect the goods or to report defects, Kitagawa GmbH’s liability for the unreported defect shall be excluded and Kitagawa GmbH’s performance shall be deemed to have been provided free of defects.

8.6 In the event of defects, the warranty is provided at the discretion of Kitagawa GmbH for subsequent performance through free rectification or replacement delivery. The customer is obliged to give Kitagawa GmbH the time and opportunity required for the subsequent performance owed, in particular to allow Kitagawa GmbH to inspect the defective goods. If the rectification of defects also fails at the second attempt or if the second replacement delivery is also defective or if Kitagawa GmbH does not fulfill its obligation to make a subsequent delivery or replacement delivery within a reasonable period of time, the customer is entitled to reduce the purchase price or withdraw from the contract. The right of withdrawal is excluded if the defect is insignificant.

8.7 If the customer’s request for rectification of defects proves to be unjustified, Kitagawa GmbH shall be entitled to demand reimbursement from the customer of the costs incurred for subsequent performance.

8.8 Claims of the customer for damages or compensation for useless expenses shall only exist in accordance with the following Section 9 of these GTC and are excluded beyond this.

9. Liability

9.1 Kitagawa GmbH is only liable in the event of willful intent or gross negligence.

9.2 In the event of ordinary negligence, the Kitagawa GmbH is only liable for damages caused by loss of life, physical injury or harm to health, and for damages from a breach of a material contractual obligation (cardinal obligations). In the case of the latter, however, Kitagawa GmbH’s liability is limited to compensation of foreseeable, typically damages.

9.3 In the absence of a warranted characteristic of the goods, liability shall be limited to the damage to be expected in the normal course of events. Further claims due to defective goods are excluded.

9.4 Otherwise, any liability of Kitagawa GmbH beyond this, in particular for indirect and consequential losses, lost profit, unrealized savings etc., is excluded. This excludes consequential damages due to a breach of cardinal obligations.

9.5 The customer may withdraw from or terminate the agreement due to a breach of obligations that does not consist of a defect of the product only insofar as the Kitagawa GmbH is responsible for this breach.

9.6 Claims from the customer according to the Produkthaftungsgesetz (German Product Liability Act) are unaffected.

10. Limitation Period

10.1 By way of deviation from Sec. 438 (1) No. 3 BGB, the general limitation period for claims to quality and title defects is one year from delivery.

10.2 The above limitation periods under commercial law also apply to contractual and non-contractual claims from the customer for damages based on a defect in the goods, unless applying the regular statutory limitation periods would in the specific case lead to a shorter limitation period.

10.3 The limitation periods of the Produkthaftungsgesetz are unaffected.

11. Miscellaneous

11.1 The Customer shall not be entitled to assign rights and obligations arising from the contract concluded with Kitagawa GmbH to third parties without the prior consent of Kitagawa GmbH, with the exception of the cases regulated within the GTC.

11.2 These GTCs and all contractual relationships between the Kitagawa GmbH and its customers are subject to German law under exclusion of the UN CISG.

11.3 The exclusive place of jurisdiction for all disputes and types of proceedings arising from or in connection with the contractual relationship between the parties is Offenbach am Main.

11.4 The invalidity of individual provisions of these GTC of Kitagawa GmbH shall not affect the validity of the remaining provisions. Ineffective provisions shall be deemed to be replaced by such effective provisions as are suitable to realize the economic purpose of the omitted provision as far as possible.

11.5 The German version of this General Terms of Conditions shall be binding. The English Version shall only serve for information purposes.

KITAGAWA GmbH
Birkenwaldstrasse 38
D-63179 Obertshausen
FR-Germany
Telefon +49-6104-60009-0
Telefax +49-6104-60009-40

GTC Kitagawa GmbH (As of: February 2024)