General Terms and Conditions of Business for deliveries and services of KEUCO GmbH & Co. KG to entrepreneurs (customers)
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 negligence 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 contractual 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 jurisdiction 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 International 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 assign- ment 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 amendments 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 received the change notification. (4) All agreements, additional agreements, covenants and contractual amendments must be made in writing. This applies equally to the setting aside of this requirement of the written form. Additional oral agreements or amendments/additions are null and void. (5) INCOTERMS, Prohibition on assignment Amendments and additions, written form, severability clause If not based on its right of retention or other such rights, any cessation of pay- ments on the part of the Customer will entitle us, having granted a reasonable additional period of time, at any time to rescind the contract or make the delivery of the products of service dependent on the prior fulfilment of payment obligations. If the delivery of the products has already taken place, the counter-performance is due immediately in such cases described above. We are likewise entitled to demand return of the products in the aforementioned cases and to withhold these until complete payment of the purchase price is made, unless advance performance is agreed. If the Customer ceases making payments or if it files an insolvency application, the Customer will no longer be entitled to the sell, process, combine or mix goods subject to retention of title. 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. (6) The customer may not assign its contractual rights without our written consent. Section 354a German Commercial Code (HGB) remains unaffected. (7) If, in accordance with the law concerning standard business terms set out in Sections 305 to 310 German Civil Code (BGB), any of the provisions of this contract are or become wholly or partially ineffective/void or unenforceable, the statutory regulations shall apply. If, for reasons other than the law concerning standard business terms set out in Sections 305 to 310 German Civil Code (BGB), any of the current or future provisions of this contract are or become wholly or partially ineffective/void or unenforceable, this will not affect the validity of the remaining provisions of this contract, provided the performance of the contract - including given the following regulations - would not present an unreasonable hardship to one of the parties. The same applies in the event that an augmentable gap is discovered following the conclusion of the contract. The parties shall replace any invalid/void/unenforceable provision or gap that requires filling, for reasons other than the provisions relating to the Law of General Terms and Conditions according to Sections 305 to 310 BGB, with a valid provision the legal and commercial content of which corresponds to the invalid/void/unenforceable original provision and to the purpose of the contract as a whole. Section 139 BGB (Partial invalidity) is expressly excluded – including in relation to any provisions concerning the burden of proof. If the invalidity of any provision, as described above, is due to its specification of a measurement of performance or time (time limit or date), the parties will agree to insert that provision containing the legally admissible measurement that most closely matches the original. Note: In accordance with the provisions of the Federal Data Protection Act, we clearly state that our undertaking is managed using an IT system, and that, in this connection, we will store the data received from the Customer by way of the business relationship. February 2015
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