General Terms and Conditions of Business for deliveries and services of KEUCO GmbH & Co. KG to entrepreneurs (customers)
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 adequately, 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 between 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 revoked 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 immediately 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 arrangement if, according to the contract with the factor, the Customer cannot freely dispose of the purchase price of the claim. (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 afore - mentioned 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).
(3) We are entitled to unilaterally and appropriately 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, particularly 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 pay - ments 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 Customer, 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 receivables under the business arrangement being due and payable immediately. The date of pay- ment 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 judgement, 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 extension 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 agreement 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
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