General Terms and Conditions of Business for deliveries and services of KEUCO GmbH & Co. KG to entrepreneurs (customers)
§ 1 Scope
Customer is responsible, we will be entitled to immediately procure the material required for the entire order and to immediately manufacture the entire deliverables and, in the case of customer delays, to offer these items and execute the order. As a result, any change requests by the Customer can no longer be considered after the order is placed unless this has been explicitly agreed upon in writing. (4) The Customer must inform us in writing in good time prior to the conclusion of the agreement as to any special requirements it has in relation to our services or products. (5) In the case of deliveries of products, we are entitled to make excess or short deliveries of units or weights if this is within 5% of the amount specified in the order or the amount indicated in the order confirmation. (6) If formal acceptance of the service, or the receipt of a service or a product or the dispatch is delayed for a reason attributable to the Customer, if the Customer does not issue a dispatch order by the end of the agreed delivery period or if the Customer is culpable failing to fulfil its call obligations within the agreed time period or, in the absence of an agreed time period, within 4 months, irrespective of alternative or farther-reaching rights and having granted a 10-day grace period which has subsequently expired, we will be entitled to choose to demand immediate payment or to rescind the agreement or to refuse performance and demand compensation in lieu of complete performance. This grace period must be granted in writing or text form. We are not obliged to again refer to the rights set out in this paragraph. In the event of a demand for damages, the payable damages are 20% of the net delivery price. The customer remains entitled to prove another amount of damages was incurred or that no damages were incurred. (7) If the dispatch or collection of the products is postponed at the request of the Customer or for reasons attributable to the Customer, commencing with the point in time at which the products should have been dispatched or collected by the Customer we will be entitled to store them at the sole risk of the Customer and charge the Customer for the costs incurred at a flat-rate of 2.5% of the net invoice amount for each month commenced in the delay. The customer remains entitled to prove that different storage costs or no storage costs were incurred. Furthermore, we are entitled to otherwise use the contractual products after expiry of this period and we may re-deliver to the Customer after a reasonable period of time. (8) In the event of a delayed delivery order or call for which the Customer is at fault, we will be entitled to postpone the delivery or service for a period of time equivalent to the Customer delay. § 5 Performance, performance period, delay (1) Binding delivery or performance dates and delivery or performance periods must be explicitly agreed with us in writing in order to be enforceable. In the absence of any such separate agreement, or if it is agreed that these delivery or performance dates and delivery or performance periods are approximate etc., these dates/periods are non-binding. In this case we will employ our best efforts to meet these. (2) The delivery or performance periods commence with the receipt of our order confirmation by the Customer, but not however before all details concerning the execution of the order have been clarified and all other prerequisites have been met by the Customer, especially not before all advance payments have been agreed. This applies likewise to delivery and performance dates. If the Customer has made change requests following the order placement, a new delivery period commences with our confirmation of the change. (3) Product deliveries prior to the expiry of the delivery period are permissible, as are part deliveries provided this is reasonable to expect of the Customer. (4) The delivery date confirmed in writing is deemed to be the date of delivery. If two or more individual contracts concerning identical products being processed in parallel, we will then be entitled to determine the sequence in which the individual contracts are fulfilled. If no contrary written agreement has been concluded, the interest in receiving our service is only extinguished if we fail to deliver material part or if we only deliver after a delay. (5) In the case of product deliveries and a duty to collect, the relevant date is the day on which notice is given regarding the readiness for shipment, otherwise it is the day on which the product is dispatched. (6) Deliveries shall be made - unless otherwise agreed - at our option in the case of long-term contracts at the time of the call, and in the case of single contracts, within the agreed delivery period. We may proffer the product or the goods by the 1st working day following the conclusion of contract and at any time during normal business hours within the delivery and performance period. (7) If the Customer wishes a delivery or performance time on a particular day or in a calendar week, this can be recorded in our order confirmation to the Customer. This does not establish a binding obligation on our part to ensure this delivery or performance time is actually fulfilled. However, we will use our best efforts to meet the delivery or performance time. We will notify the Customer in good time of any delays. (8) If we default in making the delivery, the Customer must first grant us a reasonable additional time period in which to effect performance. If this elapses without success, claims to damages for breaches of duty - irrespective of the reason - will only exist in accordance with the provisions of Section 11 (Disclaimer and liability of limitation). (9) In cases of delayed delivery the Customer is duty bound, upon our demand, to declare within a reasonable period if it intends to rescind the contract due to the delay to delivery or whether it will insist on delivery taking place. (10) We will not be in default as long as the Customer is in default in fulfilling its obligations to us, including obligations under other contracts. (11) If the Customer fails to accept products or services despite a legal obligation to do so, we will be entitled to ascertain the damages. In the case of product deliveries this takes the form of re-sale on default to other parties or the determination of a price by an appraiser. If an announced re-sale on default is not realised or cannot be realised
(1) The following "General Terms and Conditions" apply to our business relationships with our customers, especially for the supply of products and the contracts, services, information and consultancy connected with these products. If separate individual agreements are concluded that vary from our terms of sale, the remaining terms of sales will be otherwise unaffected. (2) Once our General Terms and Conditions are introduced into the business relationship with the Customer, these shall apply to all future business relationships between the Customer and us, insofar as nothing to the contrary has been agreed. The customer's terms and conditions will only apply if and insofar as we explicitly acknowledge them in writing. Our silence in relation to such alternative terms and conditions will, in particular, not be deemed to constitute acknowledge or agreement, including in relation to future contracts. (3) Our General Terms and Conditions will apply instead of any terms and conditions the Customer may have - such terms and conditions of purchase - even if the unreserved acknowledge of the terms and conditions is provided for following the acceptance of the order. By accepting our order confirmation the Customer explicitly acknowledges that it waives any legal objection derived from its terms and conditions. (4) These General Terms and Conditions apply only vis-à-vis "entrepreneurs" (commercial entities) within the definition of Section 14 of the German Civil Code (BGB), i.e. natural or legal persons purchasing goods or services for a commercial or occupational purpose. § 2 Information, advice, product characteristics (1) The information, advice and other services we supply are based solely on our past experience. The details we provide about our products are based on our development activities and our application technology experience. (2) The values stated in this context should be regarded as average values. All information concerning our products and services should be regard as approximate values; this applies especially to the images, drawings, content and performance details and other such information contained our quotations and print materials. We relay these results - in writing and orally - to the best of our knowledge. We do not assume any liability in respect of them, over and beyond the relevant individual contract. (3) Our product descriptions and information do not constitute a guarantee con- cerning quality or durability within the definition of Section 434 BGB, unless we have explicitly confirmed to the Customer in writing in advance, or a characteristic is defined in a written purchase agreement with the Customer. However, this does not release the Customer from its obligation, prior to purchase, to personally examine our products and processes for their suitability for the intended purpose. (4) Any reference to standards, similar technical regulations and technical data, descriptions and images of the product or service set out in our quotations and catalogues and our advertising will only constitute the specification of a characteristic if we have expressly declared this quality to be a "characteristic"; otherwise such information is a non-binding, general performance description. (5) We can only be deemed to have assumed a guarantee if we have described the characteristic or performance aspect in writing as "guaranteed". (6) Other than the strict liability prescribed by law, we do not assume any liability for the suitability and/or registrability and/or marketability of our products or services for the purpose intended by the Customer, unless we have made a contrary agreement in writing with the Customer. The provision contained in Section 11 is not hereby affected. (7) We reserve the rights of ownership and copyright to images, drawings, esti- mates of costs and other such documentation concerning our products and services. The customer undertakes not to provide the documents described in the preceding paragraph to any other party, unless we issue our express written permission. § 3 Samples/models (1) Prior to the manufacture of the entire product, we will only provide the Customer with a sample/model of the goods ordered if this has been separately agreed. The characteristics of samples or models will only be an element of the contract if this has been expressly agreed in writing. The customer is not entitled to commercially exploit or pass on samples or models. (2) Where orders are placed in accordance with the Customer's specifications (drawings/samples etc.), the Customer will release us from any third-party claims relating to industrial property right infringements in this connection. § 4 (1) Our communications labelled "quotation" are made without obligation. These are invitations to place purchase orders and to enter into contracts. A contract will only be concluded - including within a continuous business relationship - once we have confirmed the Customer's purchase order or contract in writing or text form. The content of the contract is defined by our order confirmation. In the case of immediate delivery of the product or service, our confirmation may be substituted by our invoice or delivery note. (2) We will only assume a procurement risk by way of an express agreement by using the phrase "we assume the procurement risk for ..." The assumption of a procurement risk is not established merely through our obligation to deliver an item defined only by its type. We are only obliged to make deliveries from our stocks, unless otherwise expressly agreed in writing. (3) In the case of make-and-hold orders or delays in acceptance for which the Conclusion of contract, service scope, performance risk, procurement risk
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