General Terms and Conditions of Business for deliveries and services of KEUCO GmbH & Co. KG to entrepreneurs (customers)
nance. The foregoing provision does not apply to fraudulent, gross negligent or intentional acts on our part, or death or personal injury, the assumption of a guarantee, a procurement risk pursuant to Section 276 BGB or in the case of strict legal liability given the prevailing circumstances. (13) If the Customer or a third party improperly rectifies a defect, we will not be liable for the resulting consequences. This shall also apply to any modifica- tions of the product undertaken without our prior consent or changes of use not approved by the manufacturer compared to the use specified by it. Any rights of recourse in favour of the Customer against us in the event of a resale of the goods exist only to the extent that the Customer has not made any agreements with its end customer over and beyond the provisions contained in the statutory claims for defects. (14) Acknowledgement of breaches of duty - in particular in connection with the delivery of defective products - will only be valid if issued in writing. §9 Prices, conditions of payment, default, grounds for uncertainty, taking back, right of retention (1) As a rule all prices are quoted in £, and are subject to the additional costs of packaging, shipment ex works or warehouse, plus value-added-tax charged at the applicable legal rate and payable by the Customer. (2) In the absence of an alternative agreement, services not contained in the quotation will be performed on the basis of our applicable general price lists, as may be amended from time to time.(3) We are entitled to unilaterally and appropria- tely increase the due payment in the event of an increase in material production and/or procurement costs and/or product procurement costs, wage and non- wage costs, social security contributions as well as energy costs and costs incurred due to environmental regulations, exchange rate fluctuations and/ or currency regulations and/or changes to import/export duties and/or freight rates and/or public levies, if these directly or indirectly affect the merchandise production costs or the costs of our contractually agreed services and if there are more than 4 months between the conclusion of contract and the delivery. An increase as described above will be precluded if the increase in costs in relation to any aforementioned factors can be balanced by a reduction in the costs of other aforementioned factors with reference to the total cost charge for the delivery. If any of the aforementioned cost factors are reduced, and this reduction is not offset by an increasing in any of the other aforementioned factors, the reduction in costs will be passed onto the Customer in the form of a reduced price. (4) If, in an exceptional case, we are to contractually bear the freight charges, the Customer will bear any additional costs connected with increases in freight rates arising after the conclusion of contract. (5) Our invoices are payable without deduction within 30 days following delivery/performance. We are also entitled to demand payments be made concurrently with product deliveries, in the event there are objective grounds indicating that the Customer is unable or unwilling to service its debts, particu- larly if the customers is in default of the settlement of our payment demands. If an early payment discount has been agreed, this will be calculated on the basis of the net amount and is only permissible if all other liabilities pertaining to the business relationship with the Customer and older than 30 days have been settled. The purchaser's credit note will only be deemed to be an invoice if this has been expressly agreed. Unless otherwise agreed, in these cases the invoiced sums are payable without deduction within 30 days - the funds to be received by us in this time - following hand-over of the goods. (6) Irrespective of the Customer's contrary terms, we will be entitled to offset payments against older debts first; we will notify the Customer of the nature of the offset performed. If costs and interest have already been accrued, we shall be entitled to use the payment to firstly satisfy costs, then the accrued interest and finally the principle debt. The absence of a reminder notwithstanding, the Customer will be in default if it fails to make payment within 31 days of the delivery/service or within 31 days of the delivery notification in the case of delivery ex works. If a binding payment date was agreed, the Customer will be in default if it fails to observe the payment date. (7) Once the Customer is in default, default interest will be charged at the rate of 8% of the applicable base interest rate from the time that the default occurred. This rate will be reduced if the Customer demonstrates a low rate of loss; we reserve the3 right to demonstrate that the actual damages are higher. (8) Furthermore, in the event of default of payment on the part of the Cus- tomer, we are entitled to withhold deliveries or services under all agreements with the Customer until the complete satisfaction of claims. The Customer can circumvent this right of retention by arranging a directly enforceable and unlimited surety from a major German bank or a municipal bank which is affiliated with the asset collateral fund; the surety will cover the amount of all payments due. (9) Any default in the fulfilment of a receivable will also result in all our recei- vables under the business arrangement being due and payable immediately. The date of payment is deemed to be the day that we received the money or our account is credited. If conditions of payment go unfulfilled or circumstances become known or discernible that, according to our prudent commercial judge- ment, give rise to justified doubt about the Customer's creditworthiness, also including such facts that existed when the contract was concluded but which were unknown to us or did not have to be known to us, we shall be entitled, additional statutory rights in such cases notwithstanding, to cease any further work on current orders or delivery, and, using our reasonable discretion (§ 315 BGB), to request advance payments or the provision of appropriate customary securities for deliveries still outstanding, and, after expiry of a reasonable exten- sion of time to provide such securities is unsuccessful, to rescind the contract, irrespective of other statutory rights. The customer shall be obliged to reimburse
us for all damages sustained due to non-performance of the contract.
(10) If payments are deferred and they are made later than originally agreed, interest shall be charged for the deferral period at the rate of 8% over the basic interest rate from the time the deferment petition is made, without the issue of a notice of default being necessary. (11) The Customer has a right of retention or right of offset only in terms of those counter claims which are not disputed or which have been declared res judicata, unless the counter-claim is based on the breach of material contractual obligations A right of retention can only be exercised by the Customer to the extent that its counter-claim is derived from the same contractual relationship. "Material contractual obligations" are those duties which protect the material contractual rights of the supplier and are specifically granted to it according to the content and purpose of the agreement, and those contractual obligations the fulfilment of which is a pre-requisite to the proper performance of the agree- ment and the fulfilment of which is a fact on which the supplier would normally and rightfully rely. (12) Our price lists and other such price information are subject to change, unless we have explicitly indicated in writing that these are binding. (13) In the event of an application to open insolvency proceedings by the Customer or its suspension of payments not connected with rights of retention or other such rights, we will be entitled to rescind the agreement at any time or to make delivery of the purchased goods conditional on advance settlement of the payment obligation, insofar as the Customer is in breach of its obligations at this time. If the delivery of the purchased goods has already taken place, the purchase price is immediately due in such cases described above. We are likewise entitled to demand return of the purchased goods in the aforementioned cases and to withhold these until complete payment of the purchase price is made. (14) If the Customer suspends its payments or it files an insolvency application, the Customer will no longer be entitled to the sell, process, combine or blend of the goods subject to retention of title (cf. Section 10 Paragraph (1)). In this case, it must instead immediately ensure the separate storage and labelling of goods subject to retention of title and it shall keep in trust for us the sums received by the Customer and to which we are entitled under claims assigned in connection with our deliveries of goods. § 10 Retention of title (1) We retain title to all equipment and goods we deliver (hereinafter referred to as a whole as "goods subject to retention of title") until all our claims under the business relationship with the Customer, including claims arising in the future from contracts concluded at a later date, are paid. This shall also apply to any balance in our favour when any or all claims by us are incorporated in a current account and the balance has been established. (2) The customer must insure the goods subject to retention of title adequa- tely, particularly against fire and theft. Claims against the insurance company arising from a damage event relating to goods subject to retention of title are herewith assigned to us in the value of the goods subject to retention of title. (3) The customer is authorised to resell the delivered products in the normal course of its business. The customer is not permitted to make other disposals, especially pledging or granting of lien entitlements. If goods subject to retention of title are not paid for immediately by third-party buyers when resold, the Customer may only resell under retention of title. Authorisation to resell the goods subject to retention of title will cease automatically if the Customer suspends payment or defaults in payment to us. The same applies if the Customer is affiliated with a consolidated group and/or one of the aforementioned circumstances arises in relation to the parent or supraordinate company of the Customer. (4) The customer here and now assigns to us all claims including securities and ancillary rights that accrue to it against the end user or third parties by reason of or in connection with the resale of goods subject to retention of title. The customer may not reach an agreement with its purchasers that in any way excludes or impairs our rights or nullifies the assignment of the claim from the outset. When the goods subject to retention of title are sold with other items, the claim against third-party buyers amounting to the delivery price agreed bet- ween ourselves and the Customer shall be deemed assigned unless the amounts applicable to the individual goods can be determined from the invoice. (5) The customer shall be entitled to collect claims assigned to us until revo- ked by us, which we may do at any time. Upon our request, the Customer will be obliged to give us the information and documents in full required to collect assigned claims, and unless we do so ourselves, it must notify its buyers imme- diately of the assignment made to us. (6) If the Customer incorporates claims from the resale of goods subject to retention of title in a current account arrangement with buyers, the Customer shall herewith assign to us any recognised closing balance in its favour in the amount which corresponds to the total amount of the claim from the resale of our goods subject to retention of title, such claim being transferred to the current account relationship. (7) The customer must notify us immediately if the Customer has already assigned claims to third parties from the resale of products delivered or to be delivered by us, particularly by way of a non-recourse and recourse factoring, or made other agreements which can impair our current or future security interests under to this Paragraph 10. In the case of a recourse factoring, we shall be authorised to rescind the contract and request the products already delivered to be handed over. This shall also apply to a non-recourse factoring arrange- ment if, according to the contract with the factor, the Customer cannot freely dispose of the purchase price of the claim.
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