General Terms and Conditions of KUMM TECHNIK Vertrieb GmbH
Offer, conclusion of contract and content of contract
- All offers, purchase and delivery contracts, including repair contracts, are based on the following conditions. They are recognized by the customer when the order is placed, but no later than when the first delivery is accepted, and they apply for the entire duration of the business relationship. Deviating terms and conditions of purchase of the customer shall only apply with our written consent. Amendments to individual conditions shall not affect the others. Counter-confirmations of the buyer with reference to the validity of his own general terms and conditions are expressly contradicted.
- Our offers are always non-binding. The contract is only concluded with our written confirmation and according to its content or by delivery.
- We reserve the right to change the design and shape of the subject matter of the contract due to technical progress without prior notice.
- Assurances, ancillary agreements and changes to the contract must be in writing to be effective. This requirement can only be waived in writing.
- The customer is not entitled to transfer rights from this contract to third parties without our consent.
Prices and terms of payment
- Our prices are in Euro ex point of sale excluding packaging. The prices valid on the day of delivery apply. Value added tax at the respective statutory rate is added to the prices.
- Invoices are payable net within 30 days of the invoice date, except for repair and wage invoices, which are payable net within 14 days of the invoice date. The deduction of discount is only permitted after written agreement.
- Offsetting against counterclaims of the customer disputed by us or not legally established by us is not permitted. The same applies to the assertion of a right of retention on the part of the customer.
III. Default of payment, deterioration of assets, deferral, reversal
- In the event of late payment or deferral, we are entitled - subject to the assertion of a proven higher actual damage caused by default - to demand late payment interest in the amount of 8 percentage points above the applicable base interest rate.
- If the customer is in default with a payment or if there are concrete indications of an imminent insolvency of the customer, we are entitled to carry out outstanding deliveries and work only against advance payment of all claims, including those not yet due, including bills of exchange and deferred amounts or against another appropriate security. If the customer does not comply with our request for advance payment or security within a reasonable period of time, we are entitled to withdraw from the contract and to invoice the customer for the costs incurred up to that point.
- If the customer must return the delivered goods for any reason, he must reimburse us for those uses that he made or culpably did not make between the time of delivery ex works until the time the goods were received back at the factory. Likewise, in the event of a reversal for which he is responsible, the customer must reimburse the expenses incurred as a result of the contract and provide compensation for any damage to the goods that is caused by his fault or by another circumstance for which he is responsible. In determining the value to be paid for the permitted use or use, consideration is to be given to the depreciation of the item that has occurred in the meantime. The provision of § 287 I of the Code of Civil Procedure applies accordingly to the determination of the amount of the remuneration.
Delivery time and delay in delivery
- Specific delivery periods/delivery dates are only agreed if we expressly declare that the customer can withdraw from the contract in the event of non-compliance with the deadline/date.
- The delivery period to be specially agreed begins with the conclusion of the contract, but not before the complete provision of the documents, approvals, releases to be provided by the customer and not before receipt of any down payment that may have been agreed. In any case, compliance with the delivery period by us presupposes the fulfillment of the contractual obligations by the customer.
- The delivery period is met if the delivery item has left our works by the end of the period or readiness for dispatch has been communicated. Subsequent requests for changes or additions by the customer extend the delivery time appropriately. The same applies to the occurrence of unforeseeable obstacles that are beyond our control, such as B. force majeure, labor disputes, strikes, lockouts, delays on the supplier side. The beginning and end of such obstacles must be communicated by us to the customer as soon as possible. If delivery is impossible due to these circumstances, we can withdraw from the contract without the customer being entitled to any claims.
- If shipping or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the customer will be charged for the costs incurred as a result of the delay, in particular storage fees, starting one month after notification of readiness for shipment or acceptance.
Delivery, insurance, transfer of risk
- We deliver uninsured ex works. Partial deliveries are permitted. In the absence of special instructions, the choice of transport route and means of transport is made to the best of our discretion without any liability for the cheapest and fastest shipping. Unless otherwise agreed, packaging shall be at our discretion. Depending on the type of packaging, the costs will be charged. At the request of the customer, the delivery will be insured for transport at his expense.
- If the goods are sent to the customer at his request, the risk of accidental loss and accidental deterioration of the delivery item is transferred to the customer when the goods are sent to the customer, at the latest when they leave the factory. This applies regardless of whether the delivery item is dispatched from the place of performance, who bears the freight costs or whether we have assumed other services, e.g. shipping costs or delivery and assembly.
- If dispatch is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the day of readiness for dispatch.
Default of acceptance
If the customer is in default of acceptance or culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims remain reserved. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the customer at the point in time at which he defaults in acceptance or as a debtor.
VII. Ownership, extended retention of title, current account
- The delivered goods remain our unrestricted property until the purchase price has been paid in full, including all ancillary claims, or in the case of repeated or ongoing business relationships until the debt balance has been repaid. The goods delivered by us remain our property until all our claims have been settled in full, regardless of the legal reason.
- If the goods delivered under retention of title are combined or mixed with other items, the seller acquires co-ownership of the new item or the mixed stock.
- If the goods delivered under retention of title or the items made from them - regardless of their condition - are resold, processed, installed, or otherwise used by the customer, the customer hereby assigns to us the claims arising from the sale, processing, or installation towards third parties with all ancillary rights until all our claims from the delivery of goods have been settled in full. If a new item or component thus produced by connection or mixing is resold, processed, or installed, the assignment extends to the amount that corresponds to our share of the co-ownership. The customer remains authorized to collect the claim even after the assignment. Our authority to collect the claim itself remains unaffected. However, we undertake not to collect the claim if the customer meets his payment obligations from the proceeds received, does not default in payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended. If this is the case, we can demand that the customer informs us of the assigned claims and their debtors, provides all the information required for collection, hands over the relevant documents and informs the debtors of the assignment.
- We are obliged to release securities to which we are entitled upon request, at our discretion, insofar as they exceed the outstanding claims to be secured by more than 20%.
- In the event of default of payment, imminent cessation of payment or if enforcement or bill of exchange protests against the customer occur, we are authorized, after setting a reasonable deadline, to take our reserved goods. The purchaser is bound to the release of the goods. Our taking back the purchased item does not constitute a withdrawal from the contract.
- The customer must inform us immediately of any seizure or other impairment of our reserved goods by third parties. All costs incurred by us through such access by third parties shall be borne by the customer. The obligation to reimburse does not apply if our legal prosecution was unsuccessful or the third party liable for reimbursement fulfils its obligation towards us.
- The customer is obliged to treat the reserved goods with care; in particular, he is obliged to insure them adequately at his own expense against fire, water, and theft damage at replacement value.
If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
Notice of defects and liability for defects
The buyer must examine the received goods immediately or upon delivery for quantity, quality, and guaranteed properties. Obvious defects must be noted immediately upon delivery with a clear description of the alleged defects on the deliverer's bill of lading. He must then inform us of this in writing without delay.
Externally unrecognizable defects must be reported to us within one week of delivery.
The buyer's right to assert claims for defects expires in all cases one year from the time of the transfer of risk.
If parts that are subject to increased wear, for example when used up to 60 hours a week or in two-shift operation, become unusable within 6 months or 3 months in two-shift operation or their usability is significantly impaired, it is assumed that the impairment is due to wear and tear, unless this assumption is incompatible with the nature of the item or the nature of the impairment.
If there are defects, the buyer is not entitled to demand reimbursement from us for costs for repairs or similar (replacements) that he has carried out himself or through third parties. We can only assume costs if we have previously agreed to this in writing.
The warranty claim expires as soon as the customer or third parties commissioned by him carry out unauthorized changes or repair work - also for commissioning - without our written consent.
All those parts are to be repaired or replaced free of charge at our discretion, which are found to be unusable or significantly impaired in their usability as a result of a circumstance occurring before the transfer of risk - in particular due to defective design, poor building materials or defective execution.
Replaced parts become our property. If the entire purchased item is replaced by way of supplementary performance, we are entitled to compensation for use from the buyer for the item taken back.
No liability is assumed for damage caused by the following reasons: Unsuitable or improper use; faulty assembly or commissioning by the buyer or third parties; modification through the installation of parts from other sources; omitted maintenance work when recommended by us or by the manufacturer; normal wear and tear, especially of wearing parts; incorrect or negligent treatment; unsuitable building ground; chemical, electronic, or electrical influences. This does not apply if the damage is due to our fault.
If the defect is to be remedied, the buyer must set us a reasonable deadline for the necessary work. If he refuses this, we are released from liability for defects. In urgent cases of endangering operational safety and to prevent disproportionately large damage, we must be informed immediately. If we are then unable to rectify the defect immediately or if we are otherwise behind schedule with rectifying the defect, the buyer has the right to rectify the defect himself or have it rectified by a third party. He can then demand reimbursement of the necessary costs from us.
8.9 Insofar as the complaint is justified, we shall bear the transport, travel, labor, and material costs of the costs incurred as a result of the rectification repair or replacement delivery. Repairs with a total cost of more than €200 must be reported to us and agreed with us before the work is carried out. Otherwise, we reserve the right to refuse to accept the costs. Of the direct costs arising from the rectification or replacement delivery, we shall bear the costs of the replacement part ex works - insofar as the complaint is justified. All other costs, including travel and assembly costs, are borne by the customer. The vehicle owner must make the vehicle available for the time of repair. The costs of transporting the vehicle to be repaired to the authorized dealer or specialist workshop of our choice will not be reimbursed.
In principle, we are not liable for downtimes caused by the defect of a vehicle. We do not grant a claim to the provision of a rental or rental vehicle during the downtime.
We assume no liability for used goods unless this has been agreed in writing.
The exclusion of warranty does not apply to cases of gross negligence or intent as well as to injury to life, body, or freedom.
- We reserve the right of ownership and copyright to drawings, sketches, and other documents - except for advertising materials. They may not be made accessible to unauthorized third parties and must be returned to us at our request.
- The contracting parties undertake to treat all obvious details that become known to the other through business relationships as business secrets.
Place of performance, applicable law, place of jurisdiction
- The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- The place of performance for delivery and payments is our headquarters. If the customer is an entrepreneur, legal entities under public law or a special fund under public law, the place of jurisdiction is our company headquarters. We may also complain at your registered office.
- Should any provision of these terms and conditions and the other agreements made be or become invalid, this shall not affect the validity of the remainder of the contract. The contracting parties shall replace the invalid provision with a provision that is as close as possible to its equivalent regulation as was meant.
Krunkel, September 2017