KUENZEL AWT GmBH Sales Conditions
If there is any conflict or difference between the English version its Original version, the Original prevails. If any part of the English version is unclear, reference should be made to the English version. The Original version may not be translated into English for the purpose of comparing with or interpreting the Original version.
§1 General, Scope
(1) These General Terms and Conditions (GTC) apply to all our business relationships with our customers (hereinafter: "Buyer"). The terms and conditions apply only if the purchaser is an entrepreneur (§ 14 Civil Law Code), a legal entity under public law or a public special fund.
(2) The terms and conditions apply in particular to contracts for the sale and / or delivery of the goods (in hereinafter also "goods"), regardless of whether we manufacture the product itself or in its suppliers purchase (§§ 433, 651 Civil Law Code). These GTC in their current version as a framework agreement for future contracts for the sale and / or delivery of the goods with the same purchaser, without us having to refer to them again in each individual case; about changes to our Terms and Conditions, we will immediately inform the buyer in this case.
(3) Conditions apply exclusively. Differing, conflicting or additional terms and conditions of the purchaser shall only become part of the contract, we have expressly agreed to their validity. This requirement applies in any case, for example, even if we are aware of the Terms and Conditions of the buyer,
the delivery without reservation.
(4) In individual cases, Individual agreements with the buyer (including side agreements, supplements and amendments) have in each case precedence over these Conditions. A written contract or our written confirmation is decisive for the content of such agreements.
(5) Legally relevant declarations and notifications which are to be delivered to us by the buyer after the contract (for example setting deadlines, defects, notice of withdrawal or reduction), are not effective in writing.
(6) References to the application of statutory provisions only serve clarification purposes. Even without such clarification, the statutory provisions,
unless they are directly modified in these Conditions or expressly excluded.
§ 2 Conclusion
(1)Our offers are non-binding. This is true even if we placed catalogs, technical documentation (for example drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - have left, to which we reserve ownership and copyright reserved.
(2) the ordering of goods by the buyer is considered a binding contract offer. Unless the order provides otherwise, we are entitled to accept this contract offer within 8 weeks after its receipt.
(3) The acceptance can be declared in writing (for example by confirmation) or by delivering the goods to the buyer either.
§ 3 Delivery Time and Delays in Delivery
(1) the delivery time is agreed individually or by us when accepting the order stated. Your compliance by us presupposes that all commercial and technical questions between the parties have been clarified and the customer has met all his obligations as as has fulfilled the payment of a deposit.
If this is not the case, then the delivery time will be extended. This does not apply if we are responsible for the delay.
(2) Compliance with the delivery deadline is subject to correct and timely self-delivery.
(3) If we cannot meet binding delivery deadlines for reasons for which we are not responsible for (impossibility performance), we will announce on the buyer immediately and simultaneously stating the expected new delivery period. If the performance is not available within the new delivery period,
we are entitled to withdraw all or part of the contract; any consideration already paid by the buyer, we will refund immediately. As the case of unavailability of the service in this sense, especially the late deliveries by our suppliers if we have concluded a congruent, neither we nor our suppliers
is at fault or we are not required in a particular case for procurement.
(4) Admission our delay in delivery shall be governed by the statutory provisions. In any case, a reminder of the buyer is required.
(5) If the dispatch or the acceptance of the delivery is delayed for reasons for which the customer is responsible, so he shall, beginning one month after notification of the dispatch or decrease charged the costs incurred by the delay.
(6) If non-observance of the delivery period due to force majeure, labor disputes or other events which are beyond the control of us, due, then the delivery time will be extended. We will inform the customer of the start and end of such circumstances as soon as possible.
(7) The rights of the buyer in accordance with § 8 of these Terms and our legal rights, especially in an exclusion of liability (for example due to impossibility or unreasonableness of performance and / or subsequent) unaffected.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Deliveries are from our plant, where the place of performance. At the request and expense of the buyer, the goods are sent to another destination (sale). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping, packaging).
(2) The risk of accidental loss and accidental deterioration of the goods at the latest with the handover to the buyer, When dispatching purchase, however the risk of accidental loss and accidental deterioration of the goods as well as the delay risk is transferred upon delivery of the goods to the shipper, the carrier or otherwise given to execute the dispatch person or institution. If acceptance has been agreed, this is decisive for the transfer of risk. In addition, the statutory provisions of the work contract law apply accordingly to an agreed acceptance. The handover or acceptance have occurred even if the buyer is in default of acceptance.
(3) If the buyer defaults in acceptance, he omits an act of cooperation or our delivery is delayed for other, to be taken from the buyer reasons, we are entitled, compensation for the resulting damages including additional expenses (for example storage costs) to demand. We charge a lump sum compensation amounting to 1% of the net value per calendar day, starting with the delivery period or - in the absence of a delivery period - with regard to the dispatch of the goods. The proof of higher damages and our legal claims (especially compensation for additional expenses, reasonable compensation, termination) remain unaffected; the lump sum is but to be offset against further monetary claims. The buyer is entitled to prove that we ever no or significantly less damage than the above lump sum.
§ 5 Prices and Payment
(1) If in a particular case otherwise agreed, subject to our respective to the time the contract prices, and Although ex works, plus. of VAT. a. For deliveries within the European Union the purchaser has to certify its VAT exemption to communicate his VAT identification number before the delivery contract.
In the event of the failure of timely and complete notification, we reserve the calculation of the applicable sales tax before. B. For deliveries outside the European Union, we are entitled to charge the statutory turnover tax, if we the customer does not sends to an export certificate within one month of respective delivery.
(2) When sending purchase (§ 4 para. 1) by the buyer, transport costs from storage and the cost of a possibly desired by the buyer transport insurance. Any duties, fees, taxes and other public charges paid by the buyer. Transportation and all other packaging according to the packaging regulations we do not accept returns, they are owned by the purchaser; except for pallets.
(3) The purchase price is due immediately and payable from the invoice and delivery or acceptance of the goods. For contracts with a delivery value of more than 200.00 EUR, we are entitled to demand a down payment of at least 50% of the purchase price. The deposit is due and payable within 7 days of invoicing.
(4) Upon expiry of the above payment, the buyer is in default. The purchase price is payable during the delay to the respectively applicable statutory default interest rate. We reserve the right to claim further damages. For merchants remains our claim to the commercial maturity interest (§ 353 Civil Law Code) remain unaffected.
(5) The buyer offsetting or retention only insofar as his claim legally established or is undisputed. In case of defects of the delivery against rights of the buyer remain particular gem. § 7 para. 6 sentence 2 of these Conditions unaffected.
(6) If it becomes apparent after conclusion of the contract that our claim is jeopardized on the purchase price by inefficiency of the buyer (for example application for the opening of insolvency proceedings), we shall be in accordance with statutory provisions to withhold performance and - optionally after a deadline - to withdraw from the contract (§ 321 Civil Law Code). For contracts for the production of unacceptable items (custom-made), we can declare our withdrawal immediately; The statutory regulations concerning the dispensability of setting a deadline remain unaffected.
(7) Bills of exchange is not possible.
§ 6 Retention of Title
(1) Until full payment of all present and future claims from the purchase contract and an ongoing business relationship retained (secured claims)
we reserve the ownership of the goods sold before.
(2) the goods subject to retention of title may pledged before full payment of the secured claims to third parties, be transferred by way of security.
The buyer has to inform us immediately in writing if and when access by third parties carried out on the goods belonging to us.
(3) At behavior of the buyer, especially in the case of non-payment of the purchase price due, we are entitled, under the statutory provisions of the contract or / and the goods due to the retention of title to demand. The demand does not automatically mean declaration of withdrawal; we rather be entitled to reclaim the goods and reserve the right to withdraw. Not the buyer pays the purchase price due, we may assert these rights only if we have set the buyer previously unsuccessfully a reasonable period for payment or such a deadline according to legal regulations is unnecessary.
(4) The application for commencement of insolvency proceedings of buyer entitle us to rescind the contract and to demand the immediate return of
the delivery item.
(5) If the goods are seized before the transfer of ownership or other interventions to be exposed to third party, us, this is reported immediately. Should the parties not be able to reimburse the extrajudicial and / or judicial costs of a successful third party proceedings or other remedies, the contractor
is obliged to compensate the resulting damage.
(6) The purchaser is entitled to under retention of title to dispose of goods in the ordinary course of business and / or process. In this case, in addition the following provisions apply.
(a) The retention of title extends to the products created by processing, mixing or combining our goods to their full value, whereby we are considered the manufacturer. If in the processing, mixing or combination with goods of third parties rights should exist, we shall acquire co-ownership in proportion to the invoice value of the processed, mixed or combined goods. Otherwise the following applies for the resulting product is the same as for the goods delivered under retention of title.
(b) Costs incurred from the resale of the goods or products claims against third parties, the buyer already now or in the amount of our co-ownership share in accordance with the preceding paragraph to security to us. We accept the assignment. Referred to in para. 2 Obligations of the purchaser also apply with respect to the assigned claims.
(c) to collect the claim of the buyer remains authorized beside us. We undertake not to collect the claim as long as the buyer meets his payment obligations to us, does not fall into arrears, no application is made to open insolvency proceedings and no other defect is present its performance.
If this is the case, we can demand that the buyer gives us the assigned claims and their debtors, makes all information required for collection, hand over the relevant documents and informs the debtors (third parties) of the assignment.
(d) If the realizable value of our claims by more than 10%, we will release the buyer's request securities at our discretion.
§ 7 Warranty
(1) For the buyer's rights regarding material and legal defects (including wrong and short delivery as well as improper assembly or faulty assembly instructions), the statutory provisions applicable in the following context otherwise requires. Remain unaffected in all cases, the statutory Special provisions for final delivery of goods to a consumer (supplier recourse acc. §§ 478, 479 Civil Law Code).
(2) The basis of our liability for defects is mainly window the quality of the goods. As regards the quality of the product all product specifications, which are the subject matter of the individual contract are valid; it makes this no difference whether the product description provided by the buyer, by the manufacturer or by us comes.
(3) Common commercial or technically unavoidable deviations in quality, color, weight or design are excluded from the complaint.
(4) As far as the nature of which has not been agreed upon is to judge according to the legal regulation, whether a defect is present (§ 434 para. 1, sentence 2 and 3 Civil Law Code). For public statements by the manufacturer or a third party (for example, advertising messages) we assume no liability.
(5) The warranty claims of the buyer require that he has observed his statutory inspection and complaint (§§ 377, 381 German Commercial Code). If during the examination or later a defect, we must be made without delay in writing ads. As immediately applies the display, if it takes place within a few weeks. Regardless of this examination and notification the buyer has in writing obvious defects (including wrong and short delivery) within two weeks after delivery. If the buyer the proper investigation and / or defects, our liability for the defect displayed is excluded.
(6) If the delivered goods are defective, we can first choose whether to subsequently perform by removing the defect (rectification) or by delivering a faultless afford matter (replacement). Our right to refuse subsequent performance under the legal conditions remain unaffected.
(7) We are entitled to make the subsequent performance owed on condition that the buyer pays the purchase price due. However, the buyer is entitled to retain a reasonable relative to the defect part of the purchase price.
(8) The buyer has to give us the necessary time and opportunity for subsequent performance owed, especially the rejected goods to pass, for inspection purposes. In case of replacement, the purchaser must return the defective item in accordance with statutory provisions. Subsequent performance entails either the expansion of the defective goods even reinstalling if we were not originally bound for installation. Not
(9) The measures necessary for the purpose of examination and supplementary performance, in particular transport, travel, labor and material costs (not: removal and installation costs), we wear when actually there is a defect. But if, a defect the buyer's request to be unjustified out, we can demand compensation from the buyer, the related expenses.
(10) If the subsequent performance has failed or has expired unsuccessfully for the subsequent performance of the buyer has to fix reasonable time or dispensable according to legal regulations, the buyer can withdraw from the contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.
(11) Purchaser for damages or compensation of wasted expenses shall only exist in accordance with § 8 and are otherwise excluded.
(12) No guarantee is given in the following cases in particular: Unsuitable or improper use, faulty installation or commissioning by the purchaser or third parties, natural wear, incorrect or negligent handling, improper maintenance, unsuitable resources, chemical or electrochemical or electrical influences - unless they are in charge of us.
(13) If the purchaser or a third party makes, there is no liability by us for the resulting consequences. The same applies for modifications made without prior consent of the supplier changes the delivery item.
§ 8 Other Liability
(1) Unless otherwise provided in these Terms and Conditions including the following provisions otherwise, we shall be liable for any breach of contractual and non-contractual obligations under the relevant statutory provisions.
(2) for damages we are liable - for whatever legal reason – only if intent or gross negligence. Case of simple negligence, we are liable only a) for damages arising from injury to life, limb or health, b) for damages resulting from the breach of a contractual obligation (obligation whose fulfillment makes the proper execution of the contract and on whose compliance contractor regularly relies and may rely); in this case our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The results from para. 2 limitations of liability shall not apply if we maliciously concealed a defect or have given a guarantee for the quality of the goods. The same applies to claims of the buyer according to the Product Liability Act.
(4) Due to a breach of duty which does not consist of a defect, the buyer may only rescind or terminate the contract if we are responsible for the breach of duty. A right of termination of the buyer (especially section. §§ 651, 649 Civil Law Code) is excluded. The statutory requirements and legal consequences shall apply.
§ 9 Limitation
1) Notwithstanding § 438 para. 1 no. 3 Civil Law Code, the general limitation period for claims from material defects and defects one year after delivery. If acceptance has been agreed, the limitation period begins with the acceptance.
(2) If it is in the product but to a building or an object that has been used in accordance with their usual purpose for a building and has caused its defectiveness (building material) the period of limitation according to the statutory regulation 5 years from delivery (§ 438 para. 1 no. 2 Civil Law Code). Also remain unaffected special legal arrangements for collateral rights of third parties (§ 438 para. 1 no. 1 Civil Law Code), in bad faith of the seller (§ 438 para. 3 Civil Law Code) and claims the suppliers responsibility for final delivery to a consumer (§ 479 Civil Law Code).
(3) the above limitation of sales law also apply to contractual and non-contractual claims for damages of the purchaser, based on a defect in the goods, unless the application of the ordinary statutory limitation (§§ 195, 199 Civil Law Code) would result in an individual case in a shorter period, The limitation of the product liability law remain unaffected in any case. Otherwise apply according to claims for damages of the buyer. § 8 Only the statute of limitations.
§ 10 Governing Law and Jurisdiction
1) The law of the Federal Republic of Germany, excluding international uniform law, in particular the CISG applies to these Terms and Conditions and
all legal relationships between us and the buyer. The requirements and effects of retention of title gem. § 6 governed by the law of the respective location of the case inasmuch as, the choice of law in favor of German law is inadmissible or ineffective
(2) If the buyer is a merchant as defined Commercial Code, legal entity under public law or a public special fund, the exclusive - also international - place of jurisdiction for all from the contractual relationship directly or indirectly arising disputes Hof / Saale. However, we are also entitled to sue at the general jurisdiction of the purchaser