General Terms and Conditions of Sale of K.E.R.N. GmbH
1 General RemarksThe following General Terms and Conditions of Sale apply to all deliveries and performances for companies and legal entities under public law. They also apply to all future business transactions.
The General Terms and Conditions of Business of the purchaser are contradicted, unless deviating conditions are agreed in writing.
2 Delivery item and inspection duties of the purchaserThe delivery item is specified in our written order confirmation.
The illustrations, drawings and technical data quoted in our catalogue are subject to continual changes by the manufacture and merely show the status at the time the catalogue is printed. The purchaser is obligated to inspect incoming merchandise with due care and thoroughness to establish if the data and values comply with his order. With the same care the purchaser must ascertain and ensure that the items delivered are suitable to be used as planned by the purchaser. Other stipulations and reservations on the part of the purchaser are hereby contradicted.
3 Delivery periodsIn cases of force majeure and if any unpredictable obstructions arise after conclusion of the contract for which we bear no responsibility, delivery periods shall be extended appropriately, even if there is already a delay. This also applies to delivery delays on the part of sub-suppliers.
Partial deliveries are permissible to a reasonable extent.
We accept liability in compliance with the statutory provisions, insofar as the sales contract on which the transaction is based constitutes a firm deal within the meaning of 286 Section 2 No. 4 BGB (German Civil Code) or of 376 HGB (German Commercial Code). We also accept liability in compliance with the statutory provisions if, as a consequence of a delivery delay, the purchaser is entitled to claim that his interest in further performance of the contract has ceased.
4 Dispatch of goodsDispatch takes place at our discretion and we do not give any guarantee that we shall select the cheapest form of dispatch. All consignments, including any return consignments shall be effected at the cost and risk of the purchaser. Consignments are insured at the request of the purchaser and charged to him.
If dispatch is delayed without intention or negligence, the merchandise shall be stored at the expense and risk of the purchaser. In this case, notification by us that the goods are ready for dispatch is equivalent to dispatch.
5 PackagingPackaging is charged separately and will not be taken back. For containers and cable drums lent and returned with a delay, the rental charges made by the manufacturer will be charged.
6 Prices and paymentThe list prices at the time of order confirmation shall apply. The VAT is not included in the prices and will be charged separately.
Payment in advance before delivery. The client must apply freight costs to the given gross prices.
The right to set-off applies only in the case of unappealable, indisputable or acknowledged counter demands.
Rights of retention exist only on the basis of claims arising from the same contract relationship.
7 Retention of titleWe retain the title to the object of sale until all payments under the supply contract have been made. If the purchaser acts in violation of contract, particularly if he is in default, we are entitled to take back the object of sale.
The purchaser is under obligation to treat the object of sale with care; in particular, he is obligated to take out a reinstatement insurance policy for damage by fire, water and theft.
In the case of levies of execution or other third-party interventions, the purchaser must inform us immediately in writing.
The purchaser is entitled to resell the object of sale in the normal course of business; however, herewith he shall assign all accounts receivable up to the amount of the gross invoice total of our claim, owed to him by his customer or other third parties from the resale transaction, irrespective of whether the object of sale is resold with or without further processing. The purchaser retains the right to collection even after assignment has taken place. This is without prejudice to our right to collect the debt ourselves. However, we undertake not to collect the debt if the purchaser meets his payment obligations from the sales returns, does not fall into arrears and, in particular, has not filed for settlement or bankruptcy proceedings nor ceased making payments. If, however, this is the case, we may demand that the purchaser informs us of the assigned accounts receivable and the debtors involved, giving us the information required in order to collect as well as handing over the relevant documents. He must also inform the debtors (third party) of the assignment.
Processing or reshaping of the object of purchase by the purchaser is always performed for us. If the object of purchase is processed using objects that do not belong to us, we obtain co-ownership of the new item proportionate to the ratio between the value of the object of sale (gross amount invoiced) and the value of other items already processed at the time the object of sale is processed. The same applies to the item created by processing as to the object of sale supplied subject to retention of title.
Wird die Kaufsache mit anderen, uns nicht gehörenden Gegenständen untrennbar vermischt, so erwerben wir das Miteigentum an der neuen Sache im Verhältnis des Wertes der Kaufsache (Bruttorechnungsbetrag) zu den anderen vermischten Gegenständen zum Zeitpunkt der Vermischung. Erfolgt die Vermischung in der Weise, dass die Sache des Käufers als Hauptsache anzusehen ist, so gilt als vereinbart, dass der Käufer uns anteilmäßig Miteigentum überträgt. Der Käufer verwahrt das so entstandene Alleineigentum oder Miteigentum für uns.
If the object of sale is bonded inseparably with objects that do not belong to us, we obtain co-ownership of the new item proportionate to ratio between the value of the object of sale (gross amount invoiced) and the value of other items already bonded at the time the object of sale is bonded with other objects. If bonding is such that the item belonging to the purchaser can be considered the main item, it is deemed agreed that the purchaser will assign proportionate co-ownership to us. The purchaser shall hold the sole property or co-owned property in safekeeping for us.
The purchaser shall also assign accounts receivable to secure our claims against him that arise against third parties from bonding the object of sale with a site.
We undertake the obligation to release the collateral to which we are entitled at the request of the purchaser insofar as the realizable value of our collateral exceeds the debts to be secured by more than 10%; the choice of the collateral to be released is our responsibility.
8 Material defectsClaims by the purchaser due to defects are subject to the fulfillment of his obligations to inspect and give notice of defects in the proper manner in compliance with 377 of the German Commercial Code.
Insofar as there is a defect to the object of sale, the purchaser is entitled to choose between post-performance by remedying the defect or delivery of a new item free of defects. In the case of remedy of defects, we are obligated to bear all expenses necessitated for the purpose of remedying defects, in particular transport and infrastructure costs and the costs for labor and materials as long as these are not increased because the object of sale has been relocated to a different place of performance.
If post-performance fails, the purchaser may at his discretion demand cancellation of the contract or a reduction in price.
The period of limitation for claims arising from defects is 12 months from the time of transfer of risk.
This is without prejudice to the corresponding statutory period of limitation in the case of a liability for recourse for a delivery in compliance with 478, 479 of the German Civil Code 479 BGB; it is calculated from the time the defective item is delivered.
9 Repair jobsAs a rule, we do not carry out repair jobs; they are forwarded to the respective manufacturer or to a repair firm, which contacts the purchaser directly. In this case, legal relations exist only with the manufacturer or the repair firm. Costs for dispatch and packaging pursuant to 4 and 5 of our General Terms and Conditions of Business are borne by the customer also in this case. Delivery of repaired items is effected only on immediate cash payment terms.
10 Legal venue, choice of law, place of performanceIf the purchaser is a businessman, our registered place of business (Frankfurt) is the legal venue; however, we have the right to bring action against the purchaser at his main place of business.
The law of the Federal Republic of Germany shall apply; the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Insofar as the order confirmation does not state otherwise, the place of business of the sales branch is the place of performance.
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