General Terms and Conditions of Business for deliveries and services of KEUCO GmbH & Co. KG to entrepreneurs (customers)
(3) If products are delivered by consignment, evident defects at the time of delivery must be reported to the shipping company, which should be requested to record said defects. Notifications of defects must be contain the best possible description of the defect. If defects in number and weight were already discernible at the time of delivery in accordance with the aforementioned examination duties, the Customer must issue a complaint about the defects to the shipping company upon receiving the products, and it should have this complaint certified. A notice of defects not made in this way will, to this extent, preclude any claim by the Customer for breach of duty due to defects. This does not apply in the case of deliberate or grossly negligent acts on our part, in the event of death or personal injury or the assumption of a guarantee of the absence of defects, or a procurement risk pursuant to Section 276 BGB or in the case of other such strict legal liability and in the event a right of recourse within the supply chain (§ 478 BGB). (4) The customer must give notice in writing immediately of any other breaches of duty, and, before asserting any further rights, it must grant a reasonable time limit for delivery of a remedy. (5) The delivered products are deemed to have been accepted as contractually compliant by the Customer upon the commencement of any processing, modification, mixing or combination with other articles. The same applies in the event that the goods are relocated away from the original destination. Prior to the commencement of any of the aforementioned activities, the Customer is required to perform checks suitable in scope and methodology in order to clarify if the delivered products are suitable for the processing, processes and other purposes intended by the Customer. (6) If the defect notice is issued without justification, we will be entitled to demand that the Customer compensate us for the costs we incur as a result. (7) If the Customer is a "merchant", we will rectify any defects for which the Customer itself is responsible, and eliminate any unjustified complaints on behalf of and at the expense of the Customer. (8) We are only obliged to render subsequent improvement and substitute delivery or replacement production in that country in which we sold our product to the Customer, or to which the goods were duly delivered or the service was rendered in accordance with the contract. (9) The customer's claims in relation to costs necessarily incurred for the purpose of subsequent performance, especially shipment, travel, labour and material costs are excluded to the extent that these costs increase because the object of delivery is subsequently relocated to a place other than the agreed place of delivery, if such a relocation does not accord with the designated use. This does not apply to recourse claims pursuant to Sections 478, 479 BGB, as well as in the event of fraud or deliberate damage or the assumption of a warranty. (10) Unless otherwise explicitly agreed in writing or other such text form, we assume a 12-montn warranty in respect of material defects, said period starting from the date of the transfer of risk (cf. Para. 06.4); in the event of the Customer's refusal to accept or receive, said period commences from the time the delivery notification concerning the hand-over of goods is issued. This does not apply to claims for damages based on a guarantee, the assumption of a procurement risk within the definition of Section 276 BGB, due to death or personal injury or a fraudulent, intentional or grossly negligent or fraudulent acts, or if, in the cases of Section 478 BGB (recourse within the supply chain), Section 438 (1) No. 2 (buildings and items intended for buildings), and Section 634 a (1) No. 2 BGB (building defects), a longer period is stipulated by law. Section 305b BGB (Priority of individual terms agreed orally, in writing or in text form) remains unaffected. The aforementioned provision does not entail a reversal of the burden of proof. (11) Further claims by the Customer for or in connection with defects or consequen- tial damage caused by a defect, for whatever reason, shall exist only subject to the provisions of Para. 11 (Disclaimer and limitation of liability). (12) Our warranty and ensuing liability will be excluded if defects and damages connected therewith cannot be conclusively attributed to our defective products or defective performance. The warranty and any liability under it is especially excluded for the consequences of the erroneous use or natural wearing of the products, as well as the consequences of physical, chemical or electrolytic influences that do not correspond to the anticipated average standard influences. It is likewise excluded in respect of unsuitable or improper use; defective assembly or start-up on the part of the Customer or by another party designated by it; natural wear and tear; incorrect or negligent handling; improper maintenance. 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 modifications 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.
in an appropriate manner or time period, the right to claim damages will endure. The ascertainment of damages will take the form of the price determined by an appraiser. In any case the key date for determining the price is the first working day following the expiry of the additional period of time. (12) We may at any time deliver a third-party product equivalent in function and value to our products, if we are unable to deliver our own product for technical reasons or a failure to receive supplies from our own suppliers despite having implemented reasonable stock coverage measures, and we credit the Customer with any difference in price, unless the delivery of our own products is explicitly agreed in writing. Section 305b BGB (Priority of individually agreed terms) remains unaffected. (13) We reserve the right to make changes within customary limits to our products, series and models. We are likewise entitled to deliver the product/series/model corre- sponding or similar to function, value and design set out in the purchase order, if we find it impossible to deliver the agreed product due to technical or legal reasons for which we are not responsible, or in the event of a failure to receive supplies from our own suppliers (cf. Section 6 below) and we credit the Customer with any price difference. (14) We may likewise at any time fulfil our contractual performance obligations using the services of sub-contractors, provided no strictly personal service is agreed. § 6 Delivery subject to receiving deliveries from our own sub-suppliers; force majeure and other impediments (1) If we do not receive a delivery or service from our sub-suppliers to allow us to make the delivery or render the service contractually required from us, despite due and adequate stocking in relation to quantity and quality under our delivery or service agreement with the Customer (matching coverage), for reasons for which we are not responsible, or it is incorrect or not within the due time, or if force majeure occurs for a significant period (i.e. more than 14 calendar days), we will notify our customer in writing or text form in good time. In this case we shall be to postpone the delivery for the duration of the impediment or to wholly or partially rescind the agreement in view of the unfulfilled part, provided we have fulfilled our aforementioned duty of notification and have not assumed the risk for procurement. Force majeure occurs in the event of a strike, lock-out, interventions by the authorities, energy or raw material shortages, transport constrictions or impediments and operational impediments for which we are not at fault, e.g. where these are caused by fire, water and machine damage, or any other impediments that, from an objective perspective, we are not culpable for causing. (2) The customer will be entitled to cancel that part of the agreement not yet fulfilled if a delivery or service date or delivery or service period has been bindingly agreed, or if the agreed delivery or service date or delivery or service period is exceeded by more than four weeks as a result of any events set out in Section 6 (1) above, or, in the case where the delivery date is not binding, it would be unreasonable to hold the Customer to the agreement. In such a case the Customer has no other rights, especially no rights to compensation. § 7 Shipment, packaging and transfer of risk (1) Unless otherwise agreed in writing, products will be shipped ex works by us, uninsured and at the risk and cost of the Customer. We reserve the right to choose the route and means of transport. We shall, however, endeavour to take the Customer's wishes into account with respect to the route and type of shipment. Any resulting addi- tional expenses - including where carriage paid shipment is agreed - shall be borne by the Customer. (2) If the consignment is delayed at the request or fault of the Customer, we will store the goods at the Customer's cost and risk. In this case the notification of readiness for shipment is deemed to be equivalent to the actual consignment. (3) The risk of accidental loss or accidental deterioration shall pass to the Customer when the products and goods to be delivered are handed over to the Customer or, if consignment has been agreed, to the forwarder, freight carrier or other firms charged with shipping the products but no later than the time the products leave our works, warehouse or branch site. (4) If delivery is delayed because we assert our right of retention due to the Custo- mer's complete or partial default in making payment, for another reason for which the Customer is responsible, the risk shall pass to the Customer no later than the date of the notice to the Customer announcing that the delivery is ready for shipment. (5) If the products are to be collected by the Customer or another determined by it, the collection dates or time periods must be coordinated with us no later than 3 days prior to the delivery date. (6) In the absence of any special agreement, the mode of shipment and packaging will be determined at our discretion in accordance with Section 315 BGB. § 8 Duty to report defects, breach of duty, material defects (1) The customer must give us notice of evident material defects immediately but no later than 12 days following collection in the case of delivery ex works, otherwise following the delivery. Notice of hidden material defects must be provided to us imme- diately following discovery but no later than before the end of the warranty period pursuant to Paragraph 8.10. A notice of defects made out of time will preclude any claim by the Customer for breach of duty due to material defects. This does not apply in the case of deliberate, grossly negligent or fraudulent acts on our part, in the event of death or personal injury or the assumption of a guarantee of the absence of defects, or a procurement risk pursuant to Section 276 BGB or in the case of other such strict legal liability and in the event a right of recourse within the supply chain (§§ 478, 479 BGB). (2) The defect notification must be communicated in writing. A formally inadequate notice of defects will preclude any claim by the Customer due to material defects. A defect notification will be ineffective if it does not contain the exact article number and the information particulars of the item concerned.
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