General Terms and Conditions of Business for deliveries and services of KEUCO GmbH & Co. KG to entrepreneurs (customers)
(8) If the Customer is in breach of contract, especially if it is in default of its payment obligations, we will be entitled to take back possession of all goods subject to retention of title. In this case the Customer will be obliged, without further ado, to surrender the goods subject to retention of title. At any time during normal business hours, we are permitted to enter the Customer's business premises to take an inventory of the goods delivered by us. (9) In taking back possession of the goods subject to retention of title, we are not rescinding the contract unless we expressly state this in writing or it is stipulated by strict statutory provisions. (10) The customer must inform us immediately in writing of any third-party interference with the goods subject to retention of title or any claim assigned to us. (11) If the value of the existing collateral securities exceeds the secured claims by more than 10%, then, upon demand by the Customer, we shall be obliged to release collateral; the choice of what securities are to be released rests with us. (12) The transformation and processing of goods subject to retention of title is performed on our behalf as the manufacturer within the definition of Section 950 BGB; this does not create any obligation on our part however. If the delivered goods are reprocessed with other items not belonging to us, we will acquire co-ownership in the new object equal to the proportion of the invoice value of the delivered goods compared to that of the other reprocessed or combined articles. If our goods are combined with other movable items into a single article deemed the principal article, the Customer shall here and now assign to us co-ownership therein to an equivalent proportion. The customer shall keep protect our sole or co-ownership rights at no charge to us. The co-ownership rights created in this way are deemed to be goods subject to retention of title. Upon our demand, the Customer shall be obliged at any time to provide us with the information we require to assert our ownership or co-ownership rights. (13) If, in the case of deliveries exported abroad, certain measures must be performed by us or by the Customer in the importing country for the effectiveness of the aforementioned retention of title or the other rights described therein, the Customer must inform us of this fact in writing or in text form and it will promptly perform measures of this kind at its own cost. We will cooperate to the requisite extent in this. If the law of the importing country does not permit retention of title, but allows us to reserve other rights as to the goods supplied, we may exercise all such rights using our reasonable discretion (§ 315 BGB). Insofar as an equivalent guarantee for our claims on the Customer is not achieved in this way, the Customer is duty bound to provide us with other security in respect of the goods supplied or other collateral at its own cost, in which situation we may exercise our reasonable discretion (§ 315 BGB). § 11 Disclaimer and limitation of liability (1) Subject to the following exceptions, we shall not be liable especially not for the Customer's claims for damage of the reimbursement of costs - irrespective of the legal basis - in the event of breaches of duty established by the contractual arrangement. (2) The disclaimer set out in Paragraph 11.1 above does not apply in case of strict legal liability as well as: • for our own intentional or grossly negligent breach of duty and the intentional or grossly negligent breach of duty on the part of our statutory representatives or vicarious agents; • for the breach of material contractual obligations; "material contractual obligations" are those obligations which protect the legal position of the Customer, and which are to be specifically afforded to him in accordance with the content and purpose of the agreement. Furthermore, contractual duties are deemed fundamental where the fulfilment of these is imperative for the orderly performance of the contract and upon which the contractual partner would and may normally rely; • in the event of death or personal injury, including that caused by statutory repre- sentatives or vicarious agents; • in the case of default, where delivery and/or service by a fixed date was agreed; • where we have assumed a warranty regarding the quality of our goods or the outcome of the service, or a procurement risk within the definition of Section 276 BGB; • in the case of liability according to the Product Liability Act or other such strict statutory liability. (3) In the event that we or our vicarious agents are culpable of slight negli- gence and none of the scenarios described under Para. 11.2, indents 3, 4, 5 and 6, we will only be liable for foreseeable damage typical for this type of contract, including in the case of the breach of material contractual obligations. (4) The sum of our liability is limited to a maximum indemnity limit of EUR 250,000.00 for each individual damage event. This does not apply if we have acted fraudulently, intentionally or with gross negligence, for claims concerning death or personal injury as well as in the case of a claim in tort or one based on an expressly assumed guarantee or the assumption of a procurement risk in accordance with Section 276 BGB or in the event the strictly applicable legal provision prescribe a higher level of liability. Any other liability is excluded. (5) The exclusions and limitations on liability as set out in Para. 11.1 to 11.4 and Para. 11.6 apply to the same extent in favour of our executive bodies, our managerial and non-managerial employees, other vicarious agents and our sub-contractors. (6) The customer's claims to compensation established under this contrac- tual arrangement can only be asserted within an exclusion period of one year from the legal commencement of the limitation period. This does not apply if we have acted intentionally or with gross negligence, for claims concerning
death or personal injury as well as in the case of a claim in tort or one based on an expressly assumed guarantee or the assumption of a procurement risk in accordance with Section 276 BGB or in the event that strictly applicable legal provisions prescribe a longer limitation period. (7) The aforementioned provisions do not entail a reversal of the burden of proof. 12 Third-party property rights (1) Unless otherwise agreed, we are obliged only to deliver goods in the Federal Republic of Germany that are not encumbered by third-party industrial property rights or copyright. If a third party asserts legitimate claims for the infringement of property rights through products delivered by us to the Customer, we shall be liable to the Customer as follows: a. We shall firstly attempt to either procure a licence at our expense for the deliveries in question or modify the products in order that the property right is not infringed, or we will be substitute the product, the choice resting with us. If we are unable to do so at reasonable conditions, the Customer shall be entitled to its legal rights, which are defined, however, on the basis of these General Terms and Conditions. b. Our aforementioned duties are only then established if the customer promptly informs us of the third-party claim made against it, it refrains from acknowledging the claim and enables us to attend to all measures necessary for defending the claim and negotiating a settlement. If the Customer ceases use of the products for the purpose of limiting damages or for any other material reasons, it is duly bound to inform the third party that this cessation of use may not be implied as any acknowledgement of the alleged property right violation. If an action is filed by third parties against the Customer for infringement of property rights resulting from the use of products delivered by us, the Customer undertakes to notify us immediately in writing and afford us the opportunity to become party to any legal proceedings. The customer must support us in every relevant way in conducting such a legal dispute. The customer must desist from everything that could prejudice our legal position. (2) The customer has no claims in the event that it is responsible for the property rights infringement. Claims of the Customer are likewise excluded if property rights infringement is caused due to particular specifications demanded by the Customer, through a type of use not foreseen by us or which is caused by the fact that the products were modified by the Customer or used together with other products not delivered by us. § 13 Product liability (1) The customer will not modify any safety-relevant aspects of the goods. In particular it will not modify or remove any warnings of the risks if the goods are used improperly. If it breaches this duty, the Customer will indemnify us - for the purpose of the internal relationship - in respect of third-party product liability claims, insofar as the Customer is responsible for the triggering circumstance. (2) If a product defect in the goods requires us to undertake a product recall or issue a warning, the Customer will assist us and perform all measures ordered by us and reasonable to expect of him. The customer will be obliged to bear the costs of the product recall or the product warning, to the extent that, in accordance with product liability principles, he is responsible for the product defect and the resulting damage. All our other claims remain unaffected. (3) The customer will promptly notify us of the risks of which it become aware in relation to the use of the goods and the possible product defects. § 14 Place of performance, legal venue; applicable law (1) The place of performance for all contractual obligations is the registered address of our company. (2) The exclusive legal venue for hearing all disputes is that court with juris- diction over the place in which our company has its registered address, insofar as an alternative legal venue is not strictly prescribed by law. We are entitled, however, to pursue legal actions against the Customer at that court with general jurisdiction for its registered place of business. (3) All legal relations between us and the Customer are exclusively subject to the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The aforementioned provisions likewise apply if the Customer is a foreign national or has relocated his domicile abroad. § 15 (1) Insofar as commercial clauses are agreed in accordance with the Inter- national Commercial Terms (INCOTERMS), the INCOTERMS 2010 shall apply. (2) We hereby repudiate any prohibition or restriction on assignment as may be provided for in the Customer terms and conditions; this applies especially if the assignment is made dependent on the Customer's prior consent. (3) Amendments to these terms and conditions will be disclosed in writing to the Customer in the case of a continuous business relationship. Such amend- ments are deemed approved by the Customer if it does not raise any written objections. We must point out this legal consequence when issuing the change notification. The customer must send us objection within six weeks of having INCOTERMS, Prohibition on assignment Amendments and additions, written form, severability clause
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