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General Terms and Conditions of Business

 
1 - General - Validity
2 - Offers - Documents of Offer
3 - Prices - Terms of Payment
4 - Time of Delivery
5 - Transferral of Risk - Packing Costs
6 - Liability of Defects
7 - Total Liability
8 - Reservation of Title
9 - Jurisdiction of Court - Place of Performance

 

 
 
General Terms and Conditions of Business
 
   
 
   
1. - General - Validity
 
  (1)
Our conditions of sale are valid exclusively; we recognize no differing or divergent conditions on the part of the purchaser, unless we have expressly given such recognition in writing. Our conditions of sale are also valid if we deliver to the purchaser without reservation, although we are aware of differing or divergent conditions on the part of the purchaser.
 
  (2)
All agreements which have been made between us and the purchaser for the purpose of carrying out this contract are in writing in this contract.
 
  (3)
Our conditions of sale are valid only with regard to entrepreneurs in the sense of Section 310, Paragraph1 BGB (German Civil Code).
 
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2 - Offers - Documents of Offer
 
  (1)
If an order is qualified as an offer according to Section 145 BGB (German Civil Code), we can accept it as an order by sending a confirmation of order within 2 weeks of receipt.
 
  (2)
The packaging sizes and minimum order sizes described in our price lists or catalogues are binding.
 
  (3)
We retain the rights of ownership and copyright pertaining to illustrations, drawings and other documents. Before the purchaser may pass such documents on to third parties, our express consent to this is required in writing.
 
  (4)
We are not obliged to check information or requirements given by the purchaser with regard to their correctness or legal conformity; the purchaser alone assumes the responsibility for these. This is applicable in particular for liability in connection with any possible infringement of industrial property rights.
 
  (5)
The purchaser guarantees that no infringement of property rights through products provided or through drawings or samples provided by the purchaser or third parties will be caused. Any defensive or protective legal process necessary must be carried out by the purchaser at his own cost. The purchaser undertakes to remunerate any and all costs to us in connection with such legal matters.
 
  (6)
Drawings, drafts, and contributions to discussion which may be devised within the framework of advisory activity in the course of contract negotiations are not binding. The purchaser cannot enforce any claims on these grounds against us or our employees, unless we had acted wilfully or been culpable of gross negligence.
 
  (7)
Any samples required will be charged for by us in accordance with the outlay needed.
 
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3. - Prices - Terms of Payment
 
  (1)
If not otherwise stated in the confirmation of order, our prices are valid ex works.
 
  (2)
The legal value-added tax (sales tax) is not included in our prices, but will be shown in the legal amount separately on the invoice for the date of invoice.
 
  (3)
If not otherwise stated in the confirmation of order, the terms of payment are 30 days net from the date of invoice.
 
  (4)
In the case of individually modified or marked products according to purchaser`s instructions, we reserve the right to claim advance payment from the purchaser.
 
  (5)
The consequences of default of payment or arrears in payment are according to valid law.
 
  (6)
Rights of set-off accrue to the purchaser only if his counterclaims have been established by legal procedure, or are undisputed or recognized by us. The purchaser may exercise his right of withholding as far as his counterclaim is based on the same contractual relationship.
 
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4. - Time of Delivery
 
  (1)
The commencement of a time of delivery as given by us requires that any and all technical and commercial matters have previously been cleared up.
 
  (2)
The adherence to our obligation to deliver requires the purchaser to have fulfilled his obligations in time and according to contract. The right to plead non-fulfilment of contract is reserved.
 
  (3)
If the purchaser is in default in accepting delivery or if he knowingly infringes other obligations, we reserve the right to require adequate compensation for any and all damages resulting, including any additional expenditure. We reserve the right to press any further claims also.
 
  (4)
As far as the requirements of Paragraph (3) above are met, the risk of accidental loss or damage to the purchase is carried by the purchaser from the time he is in default of delivery or payment.
 
  (5)
We are liable according to the provisions of law as far as the transaction involved is a deadline order in the sense of Section 286 Paragraph 2 N° 4 BGB (German Civil Code) or of Section 376 HGB (Trade Law). We are also liable according to the provisions of law as far as the consequence of any delay in delivery for which we are responsible results in the purchaser having the right to claim a discontinuation of interest in the further fulfilment of contract.
 
  (6)
We are liable according to the provisions of law as far as a delay in delivery results from an infringement of contract caused by us wilfully or through gross negligence; any liability of our representatives or agents is transferred to us. As far as the contract of delivery does not result from a wilful infringement of contract for which we are responsible, our liability is limited to predictable and typically occurring damage in such cases.
 
  (7)
We are liable according to the provisions of law as far as a delay in delivery for which we are responsible is the result of our being culpably in default of essential contractual obligations; in such cases, however, our liability is limited to predictable and typically occurring damage.
 
  (8)
Otherwise we are liable to the extent of 3% of the value of goods per completed week of delay in delivery, but to not more than 15% of the value of goods ordered.
 
  (9)
Other lawful claims and rights of the purchaser remain reserved.
 
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5. - Transferral of Risk - Packing Costs
 
  (1)
If not otherwise stated in the confirmation of order, delivery ex works is agreed upon.
 
  (2)
Shipping and all other packing will not be taken back, in accordance with the Packaging Ordinance. The purchaser is obligated to dispose of the packaging at his own cost.
 
  (3)
If the purchaser so wishes, we will provide transport insurance coverage; the costs incurred shall be paid by the purchaser.
 
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6. - Liability for Defects
 
  (1)
Claims for defects on the part of the purchaser require that the purchaser has properly fulfilled his obligation of examination and complaint in accordance with Section 377 HGB (Trade Code).
 
  (2)
If a defect in the product purchased does exist, the purchaser has the right to require substitution of a new product free of defects. In this case we are liable for all expenditure in connection with this substitution, as far as this is not increased by the product purchased having been brought to another place than the place of performance.
 
  (3)
If substitution fails, the purchaser has the right of rescission or the right of abatement of the purchase price, whichever he chooses.
 
  (4)
We are liable according to the provisions of law as far as the purchaser asserts a claim or claims for damages resulting from intent or gross negligence on our part, including such on the part of our representatives or agents. If no wilful infringement of contract on our part is established, our liability is limited to predictable and typically occurring damage.
 
  (5)
We are liable according to the provisions of law as far as we culpably contravene an essential contractual stipulation; however, in such cases our liability is limited to predictable and typically occurring damage.
 
  (6)
As far as the purchaser has the right to claim compensation for damages rather than for performance, our liability is limited to compensation for predictable and typically occurring damage, also under the stipulations of Paragraph (3) above.
 
  (7)
Liability for culpable injury to life, bodily harm or health remains unaffected; this is also valid for the compulsory liability according to the Produkthaftungsgesetz (Product Liability Law).
 
  (8)
Liability is generally excluded, as far as no differing stipulations have been stated above.
 
  (9)
The period of limitation for claims resulting from defect is 12 months, as from the date of transfer of risk.
 
  (10)
The period of limitation in the case of recourse in connection with delivery according to Sections 478 and 479 BGB (German Civil Code) remains unaffected; this period is five years from the date of delivery of the defective product.
 
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7. - Total Liability
 
  (1)
Any liability for damages in excess of that set forth in Section 6 above is expressly excluded, without regard to the legal nature of the claims asserted. In particular, this is valid for claims for damages resulting from culpability at the conclusion of contract, or from other gross breach of duty or due to claims for damages resulting from criminal acts according to Section 823 BGB (German Civil Code).
 
  (2)
As far as our liability for damages is excluded or limited, this is also valid for our employees, servants, collaborators, representatives and agents.
 
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8. - Reservation of Title
 
  (1)
We reserve title to goods purchased until all contractually stipulated payments have been made. In the case of behaviour on the part of the purchaser in contravention of the contract, in particular when the purchaser is in default of payment, we have the right to take back the goods involved. The exercise of this right is not equivalent to our withdrawal from the contract, unless such withdrawal had been confirmed in writing by us. If we place a lien on the goods involved, this is always equivalent to our withdrawal from the contract. We may dispose of the goods involved after taking them back as we hold fit, the monies from such disposal will be reckoned against the debts of the purchaser, following the subtraction of reasonable costs.
 
  (2)
The purchaser is obligated to handle the goods with all due care until contractually stipulated payment has been made in full. In particular he is obligated to provide adequate insurance coverage against possible damage or theft.
 
  (3)
In the case of a lien or other action by third parties, the purchaser must immediately inform us in writing, so that we may bring an action according to Section 771 ZPO (German Code of Civil Procedure). If the third party is unable to recompense the judicial and extra-judicial costs for an action brought by us according to Section 771 ZPO (German Code of Civil Procedure), the purchaser is liable to us for these costs.
 
  (4)
The purchaser has the right to sell the goods purchased to third parties in the course of orderly business; however, he transfers all claims to us to the amount of the sum total of the final invoice (including VAT/Sales Tax) for our claims, which he may have against his purchaser or third parties through said sale. The purchaser retains the right of collection of these claims even after transferral thereof. Our right of collection remains unaffected. We undertake not to collect as long as the purchaser has fulfilled his obligations of payment from the monies collected or other existing obligations of payment, and in particular has not petitioned for the opening of bankruptcy, settlement or insolvency proceedings, and as long as no suspension of payments occurs. Should this be the case, we may require of the purchaser to make known to us all transferred claims and their debtors, all information needed for collection, to give us all relevant documents and to make this transferral of claims known to the third parties owing.
 
  (5)
The processing or conversion by the purchaser of the goods purchased will only be done on our behalf. If the goods purchased are processed with other items not belonging to us, we acquire the co-ownership of the new goods at the ratio of the value of the goods purchased (final sum total of invoice, including VAT/Sales Tax) to that of the other items thus processed at the time of processing. The same stipulations are valid for such processed items as are valid for the goods delivered under reservation.
 
  (6)
We undertake to release the securities to which we are entitled if required to do so by the purchaser, to the extent that the realisable value of our securities exceeds that of the claims to be secured by more than 10%; we choose the securities to be released.
 
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9. - Jurisdiction of Court - Place of Performance
 
  (1)
If the purchaser is a businessman, the jurisdiction of court is at the place in which our business is carried on. We also retain the right to bring action against the purchaser at the court having jurisdiction at his place of residence.
 
  (2)
The law of the Federal Republic of Germany has validity for all purposes of this contract; the validity of the UN merchant law is excluded.
 
  (3)
As far as nothing different is stated in the confirmation of order, our place of business is the place of performance.
 
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Contact

KUMETA Kunststoff- und Metallaufbereitungs-GmbH

 

Werner-von-Siemens-Str. 1-5

D-64625 Bensheim

 

Telefon: (49) 06251-1003-0

Telefax: (49) 06251-1003-15

 

E-Mail: info@kumeta.de

 
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