General Terms and Conditions of Kremer GmbH
AGB Kremer GmbH
Contents
I. Validity
These General Terms and Conditions apply to all present and future contracts with entrepreneurs, legal entities under public law and special funds under public law for deliveries and other services. We shall not be bound by any deviating terms and conditions of the customer which we have not expressly recognised, even if we do not expressly object to them.
II. Terms of delivery
1. Conclusion and content of the contract
1.1 Our offers are non-binding. All agreements prior to or upon conclusion of the contract, in particular verbal collateral agreements, promises, guarantees and other assurances, shall only apply if they are recorded in text form, unless the customer proves that this has been waived in the specific case.
1.2 Documents belonging to the offer such as drawings or illustrations, the specification of technical data, references to standards and statements in advertising material shall only constitute guarantee declarations if they are expressly designated as such.
1.3 Deviations of the delivery item from offers, samples, test and pre-deliveries are permitted in accordance with the applicable DIN standards, other relevant technical standards and within the tolerances customary in the industry.
1.4 The INCOTERMS in their latest version shall be authoritative for the interpretation of trade terms.
2 Prices
2.1 The prices do not include the costs of packaging, freight, loading and unloading, transport, insurance, installation, assembly and commissioning. These are to be borne by the buyer plus statutory VAT.
2.2 Within the framework of the statutory regulations, we shall take back packaging supplied by us if it is returned to us carriage paid by the Buyer within a reasonable period of time.
3. delivery/performance times
3.1 Delivery dates or deadlines are only binding if they have been agreed in writing, unless the customer proves otherwise in a specific case. They shall be deemed to have been met if the delivery item has left our premises by the time they expire. Services are not due if the customer has not yet performed an act of co-operation required for fulfilment or has not yet provided an agreed advance service. In such cases, delivery dates and periods that are binding for us shall only commence upon fulfilment of the act of cooperation or upon receipt of the advance performance. Our delivery obligation is subject to correct and timely delivery to us, unless we are responsible for the incorrect or delayed delivery to us.
3.2 Events of force majeure shall authorise us to postpone deliveries for the duration of the hindrance and a reasonable start-up period. This shall also apply if such events occur during an existing delay. Force majeure shall include currency, trade policy and other sovereign measures, strikes, lockouts, operational disruptions for which we are not responsible, obstruction of transport routes, delays in import/customs clearance and all other circumstances which, through no fault of our own, make deliveries and services significantly more difficult or impossible. It is irrelevant whether the circumstances occur at our premises, the supplying plant or another upstream supplier. If performance becomes unreasonable for us as a result of the aforementioned events, we may withdraw from the contract by immediate declaration in text form.
3.3 Reminders and grace periods sent to us by the customer must be in text form.
4. delivery, dispatch, transfer of risk, partial delivery
4.1 The risk shall pass to the customer for all transactions, including carriage paid deliveries, when the subject matter of the contract is handed over to a carrier or the customer's own persons carrying out the transport, but at the latest when the goods leave the point of sale, the warehouse or - also in the case of drop shipments - the delivery works. If dispatch or acceptance is delayed for reasons for which we are not responsible, the risk shall pass to the customer upon receipt of the notification of readiness for delivery or similar.
4.2 We are authorised to make partial deliveries or render partial services to a reasonable extent. In the case of manufactured or standard packaged goods, we are authorised to make excess or short deliveries to the extent customary in the industry, but at least up to 10% of the agreed quantity.
4.3 In the case of call-off orders, we are authorised to manufacture the entire order quantity or have it manufactured. Change requests can only be taken into account after the order has been placed if this has been expressly agreed. Unless fixed agreements have been made, call-off dates and quantities can only be met within the scope of our delivery or production possibilities. Payments for outstanding quantities from call-off orders shall become due upon expiry of the agreed final date, irrespective of the delivery status of the call-off order. If no final date has been agreed, we shall be entitled to declare the remaining payments due no later than one year after conclusion of the contract. In the case of contracts with consecutive deliveries, we must be notified of call-offs and type allocations for approximately equal monthly quantities. If call-offs or classifications are not made on time, we shall be entitled, after setting a grace period to no avail, to classify and deliver the goods ourselves or to withdraw from the part of the contract still in arrears and to demand compensation in lieu of performance. At the end of the contract, our stock must be accepted.
4.4 The obligation and costs of unloading shall be borne by the customer. We shall only provide insurance at the instruction and expense of the customer.
5. Inspection of the goods/notification of defects
5.1. The provisions of the German Commercial Code (HGB) shall apply to the inspection of the goods and the notification of defects with the following provisos: The customer has the obligation to inspect the properties of the goods relevant for the respective use immediately after delivery and to notify us immediately in text form of any defects in the goods. In the case of an intended installation or attachment of the goods, the properties relevant for the installation or attachment shall also include the internal properties of the goods. The obligation to inspect also applies if a test certificate or other material certificate has been supplied. Defects that cannot be discovered immediately after delivery, even with the most careful inspection, must be reported in text form immediately after discovery. If, in the event of installation or attachment of the goods, the customer fails to examine the properties of the goods relevant to the intended use at least on a random basis before installation or attachment (e.g. by means of functional tests or a trial installation), this shall constitute a particularly serious disregard of the care required in trade (gross negligence) in relation to us. In this case, the customer's warranty rights with regard to these properties shall only be considered if the defect in question was fraudulently concealed or a guarantee for the quality of the item was assumed.
5.2. If the customer discovers defects when inspecting the goods or subsequently, he shall be obliged to make the rejected goods or samples thereof available to us for the purpose of examining the complaint and to allow us to inspect the rejected goods within a reasonable period of time. Otherwise, the customer cannot invoke defects in the goods. If you lose your documents, please contact us by e-mail / fax / telephone. We will be happy to send you a copy of the details of your order.
III. Terms of payment
1. Due date and default
1.1. In the case of partial deliveries, our invoices are due in the amount of the service rendered, at the latest 5 days after the invoice date - without discount deduction.
1.2. The buyer shall be in default at the latest 10 days after the due date of our claim, without the need for a reminder. If the term of payment is exceeded, at the latest from the time of default, we shall be entitled to charge interest at the respective bank rates for overdraft facilities, but at least the statutory default interest. In addition, we shall charge a lump-sum default fee of 40 euros. We reserve the right to assert further claims for damages caused by default.
2. Cash discount
Discount periods granted shall commence from the invoice date. Any agreed discount shall only apply to the invoice value excluding freight and shall be subject to the full settlement of all due liabilities of the Buyer at the time of the discount. Invoices for amounts under EUR 100 as well as invoices for assembly, repairs, services, molds, tool costs (shares) and expenses are due immediately and payable net.
3. Right to refuse performance, offsetting
3.1 Counterclaims not expressly recognized by us or not legally established shall not entitle the customer to withhold or offset payment. This shall not apply insofar as the customer's counterclaims result from the same contractual relationship and/or they would entitle the customer to refuse performance in accordance with § 320 BGB.
3.2 If it becomes apparent after conclusion of the contract that our claim for payment is jeopardized by the customer's inability to pay or if other circumstances arise that indicate a significant deterioration in the customer's ability to pay, we may refuse agreed advance performance and exercise the rights under Section 321 BGB (defense of uncertainty). This shall also apply if our obligation to perform is not yet due. We shall then also be entitled to declare due all claims from the current business relationship with the customer that are not time-barred and to revoke any collection authorizations given. In the event of default of payment, we shall also be entitled to demand the return of the goods after the expiry of a reasonable grace period and to prohibit the resale and further processing of delivered goods. Taking back the goods does not constitute withdrawal from the contract. The customer may avert all these legal consequences by making payment or providing security in the amount of our jeopardized payment claim. The provisions of the Insolvency Code shall remain unaffected by the above provisions. A lack of ability to pay on the part of the customer shall also be deemed to exist if the customer has been in arrears with a considerable amount (from 10% of the due claims) for at least 3 weeks, as well as a considerable downgrading of the limit existing for him with our commercial credit insurance.
4. Accounting, account reconciliation
Objections to our invoicing, account statements, account reconciliations etc. must be made in text form within a preclusive period of 3 weeks after receipt of the relevant document. Timely dispatch of the notification is sufficient. If no objection is made in due time, this shall be deemed approval of the statement of account. If an obvious inaccuracy subsequently becomes apparent, in particular in the case of calculation errors, both the customer and we may demand rectification on the basis of statutory provisions.
IV. Retention of title
1. all delivered goods shall remain our property (reserved goods) until all claims arising from the business relationship, regardless of the legal basis, including future or conditional claims (balance reservation), have been settled. However, the reservation of balance shall not apply to advance payment or cash transactions which are settled step by step. In this case, the delivered goods shall remain our property until the purchase price for these goods has been paid in full.
2. handling and processing of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 950 BGB without any obligation on our part. The processed goods shall be deemed to be reserved goods within the meaning of Section IV.1. If the customer processes, combines or mixes the reserved goods with other goods, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership expires as a result of combining or mixing, the customer hereby assigns to us the ownership rights to which he is entitled to the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall store them for us free of charge. The resulting co-ownership rights shall be deemed to be reserved goods within the meaning of Section IV.1.
3. the customer may only sell the reserved goods in the ordinary course of business at his normal terms and conditions and as long as he is not in default, provided that the claims from the resale are transferred to us in accordance with clauses IV.4. to IV.6. He is not entitled to dispose of the reserved goods in any other way.
4. the customer's claims arising from the resale of the reserved goods are hereby assigned to us. They shall serve as security to the same extent as the reserved goods. If the reserved goods are sold by the customer together with other goods not sold by us, the assignment of the claim from the resale shall only apply to the amount of the resale value of the reserved goods sold in each case. In the case of the sale of goods in which we have co-ownership shares in accordance with Section IV.2, the assignment of the claim shall apply in the amount of these co-ownership shares.
5. the customer is entitled to collect claims from the resale until our revocation, which is permissible at any time. If the customer is in default of payment, we shall also be entitled to demand the return of the goods after the expiry of a reasonable grace period and to prohibit the resale and further processing of delivered goods. Taking back the goods does not constitute withdrawal from the contract. At our request, the customer is obliged to inform his customers immediately of the assignment to us - unless we do so ourselves - and to provide us with the information and documents required for collection.
6. The customer must inform us immediately of any seizure or other impairment by third parties.
7. in the case of repair/renewal/processing orders or contracts for work and services, we shall be entitled to a contractual lien on the items that have come into our possession as a result of the order on account of our claims from these orders and from earlier orders, insofar as they are connected with the subject matter of the order. The contractual lien shall only apply to other claims arising from the business relationship insofar as these are undisputed or a legally binding title exists and the object of the order belongs to the customer.
8. if the value of existing securities exceeds the secured claims by more than 50% in total, we shall release securities of our choice to this extent at the customer's request.
V. Property rights/copyrights
1. insofar as our service consists of the provision of technical advice, in particular the development of technical solution proposals, the creation of drawings, formulations, development and improvement of products, etc., we reserve all rights thereto. This applies in particular to our intellectual property in the products, but also to the physical property in all drawings, samples, models, etc.
2. any transfer, even for inspection, any kind of forwarding, reproduction (in whole or in part) is prohibited and obliges - without prejudice to all our other claims - to surrender what has been produced or obtained in this way. Upon request, the customer is obliged to provide us immediately with all information necessary to assert our rights or to submit the relevant documents. Drawings, samples, molds, etc. produced by us must be returned to us upon request, and in any case without being asked if the order is not placed with us.
3. if we have delivered items according to drawings, models, samples or other documents or information provided by the customer, the customer shall guarantee that the industrial property rights of third parties are not infringed. If third parties prohibit us in particular from manufacturing and delivering such items with reference to industrial property rights, we shall be entitled - without being obliged to check the legal situation - to cease any further activity in this respect and to demand compensation if the customer is at fault. The customer also undertakes to indemnify us immediately against all related claims by third parties.
VI. Test parts, molds, tools
1. if the customer has to provide parts for the execution of the order, these shall be delivered free production site with the agreed quantity, otherwise with a reasonable excess quantity for any rejects, in good time, free of charge and free of defects. If this is not done, any costs and other consequences caused by this shall be borne by the customer. Our liability for tools, molds and other production equipment provided by the customer shall be limited to the same care as in our own affairs. The customer shall bear the costs of maintenance, care and insurance.
2. the production of test parts and tools as well as manufacturing and modification costs for molds shall be borne by the customer. Unless otherwise agreed, tools and other devices required for the manufacture of ordered parts shall remain our sole property.
3. the correctness of the manufactured molds and other technical devices must be confirmed in writing by the customer before the start of production. Samples of all calibers of the mold shall be made available. The customer's confirmation of correctness, even if it is made indirectly, e.g. in the form of order call-offs, shall be binding for us for the start of production without the need for additional verification on our part.
(4) Our obligation to store the goods shall expire - irrespective of the customer's ownership rights - no later than two years after the last production from the mold or tool.
5. unless otherwise agreed, the customer shall bear the costs for transportation (including taxes and customs duties), packaging and transport insurance with regard to the relocation of the tool.
VII. Liability for defects
1. The properties of the goods, in particular their quality, grade and dimensions, shall be determined in accordance with the agreed DIN and EN standards applicable at the time of conclusion of the contract in the absence of an agreement, and in the absence of such standards in accordance with practice and commercial usage. References to standards and similar regulations as well as information on qualities, grades, dimensions, weights and usability of the goods, information in drawings and illustrations as well as statements in advertising material are not assurances or guarantees unless they are expressly designated as such in text form. The same applies to declarations of conformity and corresponding marks such as CE and GS. The customer is responsible for suitability and usage risks.
2. if the goods are defective, the customer shall be entitled to warranty rights in accordance with the statutory provisions of the BGB. This is subject to the restrictions that we are entitled to choose between rectification and subsequent performance and that minor (insignificant) defects only entitle the customer to reduce the purchase price (reduction).
3. claims for material defects shall not be recognized if - after leaving our premises - the damage is due to the fact that the goods have been repaired by third parties or processed in any other way or used for a purpose other than intended or the operating instructions, the manufacturer's instructions or other generally known rules have not been observed.
4. if the customer has installed the defective goods in another item or attached them to another item in accordance with their nature and intended use, he may only demand compensation for the necessary expenses for the removal of the defective goods and the installation or attachment of the repaired or delivered defect-free goods ("removal and installation costs") in accordance with the following provisions. Only such removal and installation costs are required which directly relate to the removal or disassembly of the defective goods and the installation or attachment of identical goods, which have been incurred on the basis of standard market conditions and which are proven to us by the customer by submitting suitable receipts at least in text form. Any additional costs incurred by the customer for consequential damage caused by the defect, such as loss of profit, operating downtime costs or additional costs for replacement purchases, are not direct removal and installation costs and are therefore not reimbursable as reimbursement of expenses in accordance with Section 439 (3) BGB. The same applies to sorting costs and additional expenses resulting from the fact that the sold and delivered goods are located at a place other than the agreed place of performance. The customer is not entitled to demand advance payment for dismantling and installation costs and other costs of subsequent performance. Insofar as the expenses claimed by the customer for subsequent performance are disproportionate in individual cases, in particular in relation to the purchase price of the goods in a defect-free condition and taking into account the significance of the lack of conformity, we shall be entitled to refuse to reimburse these expenses. Disproportionality shall be deemed to exist in particular if the expenses claimed, in particular for removal and installation costs, exceed 150% of the invoiced value of the goods or 200% of the reduced value of the goods due to the defect. 5. further claims are excluded in accordance with clause VIII. This applies in particular to claims for reimbursement of costs for the self-remedy of a defect without the legal requirements being met and for reimbursement of dismantling and installation costs if the goods delivered by us were no longer available in their original condition at the time of installation or attachment or if a new product was manufactured from the delivered goods before installation.
6. an unjustified request to remedy defects shall entitle us to compensation if the customer could have recognized that there was no material defect upon careful inspection.
7. recourse claims shall be recognized within the scope of the statutory provisions. Public statements made by our customer which give rise to claims by the consumer shall release us from our obligations if the statements deviate from our statements and have not been approved by us.
VIII. General limitation of liability and statute of limitations
1. we shall only be liable for breach of contractual and non-contractual obligations, in particular for impossibility, delay, faulty advice, culpa in contrahendo and tort - including for our executives and other vicarious agents - in cases of intent and gross negligence.
(2) The limitations in Section VIII.1. shall not apply in the event of culpable breach of material contractual obligations (so-called "cardinal obligations"), whereby liability shall be limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract. Essential contractual obligations are the obligation to deliver on time and to ensure that the goods are free from defects that impair their functionality or usability to a more than insignificant extent, as well as duties of advice, protection and care that are intended to protect the customer or its personnel from significant damage. Furthermore, the limitations shall not apply in cases of mandatory liability under the Product Liability Act, in the event of injury to life, limb or health and also not if and insofar as we have fraudulently concealed defects in the item or guaranteed their absence. The rules on the burden of proof remain unaffected by this.
3. unless otherwise agreed, contractual claims which arise for the customer against us on the occasion of or in connection with the delivery of the goods shall lapse one year after delivery of the goods. this shall not apply if § 438 para. 1 no. 2 BGB, §§ 478, 479 BGB or § 634a para. 1 no. 2 BGB prescribe longer periods and in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty by us or in the event of fraudulent concealment of a defect. In cases of defective subsequent performance, the limitation period shall not begin again.
IX. General provisions
(1) The place of performance for our deliveries, for subsequent performance and for payments by the customer shall be our place of business.
2. the place of jurisdiction for all disputes shall be the registered office of our principal place of business or, at our discretion, the customer's place of jurisdiction.
3. all legal relationships between us and the customer shall be governed by German law to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG).
Status March 2018
Kremer GmbH 63607 Wächtersbach
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