General Terms and Conditions

KEMMLIT terms of delivery, installation and payment

§ 1 General – Scope of application

1. it is assumed that the written contract correctly and completely reflects our agreements with the customer.

2 Insofar as our Terms and Conditions of Delivery, Assembly and Payment (LMZB) refer to entrepreneurs, this shall be understood to mean a) natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, are acting in the exercise of their commercial or independent professional activities, b) legal persons under public law and c) special funds under public law. Where reference is made to consumers, this shall be understood to mean natural persons who conclude the contract neither in the context of a commercial nor a self-employed activity.

3. our LMZB apply exclusively to entrepreneurs; we do not recognize conflicting or deviating LMZB of the customer, unless we have expressly agreed to their validity in writing. Our LMZB shall also apply if we carry out the delivery or work performance without reservation in the knowledge of conflicting or deviating LMZB of the customer.

4. if the customer is an entrepreneur, our LMZB shall apply to all current business relationships and also to future ones, even if our LMZB are no longer expressly agreed.

5 Our LMZB shall apply to contracts in which we undertake to sell or deliver movable goods (purchase contracts and contracts for work and materials). Our LMZB shall apply to construction and work contracts that are not subject to para. 6, with the exception of § 3 para. 1 and 3 sentence 1, § 5, § 6 para. 4.

6 In the case of a contract with a contractor in which we undertake to carry out construction work, the contractual basis shall be the “General Terms and Conditions of Contract for the Execution of Construction Work” (VOB/B) in the version applicable at the time of conclusion of the contract. The VOB/B shall apply in full. In addition, §§ 1, 2, 8 and 9 of our LMZB shall apply.

7. technical advice is not the subject of the contract.

§ 2 Offer / Offer documents

1. our offers are subject to change.

2. we reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This applies in particular to such written documents that are designated as “confidential”. The customer requires our express written consent before reproducing them or passing them on to third parties.

§ 3 Prices / Terms of payment

1. prices are quoted ex works or ex warehouse, excluding assembly, freight, unloading and packaging, unless otherwise agreed. Such ancillary costs shall be shown separately.

2 The statutory value added tax is not included in our prices; it will be shown separately. If the customer is an entrepreneur, the VAT applicable at the time of delivery shall be deemed agreed.

3. our invoices are due for payment immediately upon receipt of the goods. Discounts and other rebates may only be deducted if agreed accordingly.

4. if the customer is in default of payment, we are entitled to make further deliveries or services dependent on advance payments or the provision of security.

5. if the customer is an entrepreneur, all our claims shall become due immediately if the customer defaults on the fulfillment of an obligation. The same shall apply if he ceases to make payments, is over-indebted, insolvency proceedings are opened against his assets or the opening of such proceedings is refused for lack of assets or circumstances become known which justify reasonable doubt as to the creditworthiness of the consumer.

6. if the cost factors on which the price is based, in particular raw material and energy prices, increase between conclusion of the contract and delivery, we may adjust the price to a customer who is an entrepreneur accordingly.

7. the customer may only offset if his counterclaims have been legally established, are undisputed or have been recognized by us. In addition, he is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

§ 4 Delivery time

1. if the customer is an entrepreneur, the execution or delivery deadlines specified by us are non-binding, unless we have promised binding deadlines.

2. our obligation to perform shall be suspended as long as the customer has not provided us with the execution documents and approvals required for the execution or delivery or has not provided information.

3. shortages of raw materials or energy, strikes, lockouts, traffic disruptions and official decrees as well as delivery date overruns by upstream suppliers and operational disruptions, insofar as we are not responsible for the aforementioned circumstances, as well as cases of force majeure, shall release us from our obligation to perform for the duration of their existence, insofar as they impair our performance. In the aforementioned cases, we are also entitled to withdraw from the contract if performance has become impossible or unreasonable for us or if an end to the impediment to performance is not foreseeable.

4. if we are in default with our performance, our liability towards entrepreneurs shall be limited to 0.5% for each completed working week of delay and to a maximum total of 5% of the value of the (partial) performance concerned.

5. our obligation to perform shall be suspended as long as the customer is in arrears with an obligation due to us. If we become aware of facts or circumstances that cast doubt on the customer’s ability to pay (e.g. non-payment of due and dunned invoices) and the customer is not prepared to provide sufficient security despite being requested to do so, we shall be entitled to withdraw from the contract in whole or in part.

§ 5 Transfer of risk

1. if the customer is an entrepreneur, the place of performance is our factory or warehouse, unless otherwise agreed. Delivery shall be at the expense and risk of the entrepreneurial customer.

2. suitable delivery routes and the possibility of immediate unloading are assumed for delivery to the construction site as agreed. If the delivery vehicle leaves the passable access road on the customer’s instructions, the customer shall be liable for any damage caused as a result. If the customer is an entrepreneur, unloading must be carried out immediately and properly by him, unless otherwise agreed.

3. if unloading is not possible during contractual delivery for reasons for which we are not responsible, the customer must immediately determine what is to be done with the delivery.

4. if the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.

5. if the conditions of paragraph (4) are met, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the point in time at which the customer is in default.

§ 6 Warranty

1 Samples and brochures do not constitute either an agreement or a guarantee of a specific quality. We reserve the right to make technical improvements if this does not change the external appearance and function of the goods.

2. deviations that remain within the tolerances of the relevant DIN standards and do not impair the function of the goods shall not constitute a defect.

3. claims for defects shall not exist in the event of natural wear and tear or damage arising after the transfer of risk as a result of incorrect handling, excessive use, incorrect processing or unsuitable building ground.

4. if the customer is a merchant, he must notify us in writing of obvious defects in the goods immediately after delivery and of hidden defects immediately after discovery. Otherwise the delivery shall be deemed approved.

5. claims for material defects shall become statute-barred after two years for consumers and after one year for entrepreneurs. This does not apply if the law prescribes longer periods in accordance with § 438 Para. 1 No. 2 (buildings and items for buildings), § 479 Para. 1 (right of recourse) and § 634 a Para. 1 No. 2 (building defects) BGB.

6. if a defect becomes apparent, we must be given the opportunity for subsequent performance. In the case of a purchase contract or contract for work and materials and if the customer is an entrepreneur, we shall have the choice of either remedying the defect or delivering a defect-free item. In the case of a construction contract or contract for work and services, we always have the choice of how to provide subsequent performance.

7. if the customer is an entrepreneur and the expenses required for the purpose of subsequent performance increase due to the fact that he does not move the goods to another location as intended, he shall bear the increased expenses.

§ 7 Liability

1. claims for damages and reimbursement of expenses by the customer (hereinafter: claims for damages), irrespective of the legal grounds, in particular due to breach of duties arising from the contractual obligation and from tort, are excluded.

2. this does not apply,

a) if we have fraudulently concealed a legal or material defect or have assumed a guarantee for the quality of the goods,

b) in cases of intent, gross negligence, due to injury to life, limb or health, due to the breach of essential contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability for injury to life, limb or health. A change in the burden of proof to the detriment of the customer is not associated with the above provisions,

c) insofar as we are liable under the Product Liability Act.

3. to the extent that our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.

§ 8 Retention of title

1. we reserve title to the goods until full payment has been made.

2. we reserve the right of ownership vis-à-vis entrepreneurs until all claims to which we are entitled against the customer from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all of our claims have been included in a current account and the balance has been struck and recognized.

3. if the customer is an entrepreneur, he shall only be entitled to resell the reserved goods in the ordinary course of business if he hereby assigns to us all claims arising from the resale against purchasers or third parties. If goods subject to retention of title are sold unprocessed or after processing or combination with items that are the exclusive property of the customer, the customer hereby assigns to us in full the claims arising from the resale. If goods subject to retention of title are sold by the customer – after processing or combination – together with goods not belonging to us, the customer hereby assigns to us the claims arising from the resale in the amount of the value of the goods subject to retention of title with all ancillary rights and priority over the rest. If the goods subject to retention of title are combined with a property of a third party in such a way that they become an integral part of the property, the customer hereby assigns to us the claims for remuneration arising against the third party or the party concerned in the amount of the value of the goods subject to retention of title with all ancillary rights, including the granting of a security mortgage. If the goods subject to retention of title are connected to a property of the customer in such a way that they become an integral part of the property, the customer hereby assigns to us the claims arising from the commercial sale of the property or of property rights in the amount of the value of the goods subject to retention of title with all ancillary rights. We accept the assignment. The customer is authorized to collect these claims even after assignment. Our authority to collect the claims ourselves shall remain unaffected by this; however, we undertake not to collect the claim as long as the customer duly fulfills his payment and other obligations. We may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment.

4. if the customer is an entrepreneur, he shall undertake any processing or treatment of the reserved goods on our behalf without any obligations arising for us as a result. If the reserved goods are processed, combined, mixed or blended with other goods not belonging to us, we shall be entitled to the resulting co-ownership share in the new item in the ratio of the value of the reserved goods to the other processed goods at the time of processing, combining, mixing or blending. If the customer acquires sole ownership of the new item, the contracting parties agree that the customer shall grant us co-ownership of the new item in proportion to the value of the processed or combined, mixed or blended goods subject to retention of title and shall store it for us free of charge.

5. if, in connection with the payment of the purchase price or remuneration by the customer, a bill of exchange liability is established on our part, the retention of title and the underlying claim from the delivery of goods shall not expire before the bill of exchange has been honored by the customer as the drawee.

6. if the value of the existing securities exceeds the claims to be secured by more than 20 %, we shall be obliged to release such securities at the customer’s request.

7. on the basis of the retention of title, we may demand the return of the item from the consumer if we have withdrawn from the contract. The assertion of the retention of title and seizure of the delivery items by us shall not be deemed a withdrawal from the contract vis-à-vis entrepreneurs. In the event of repossession, we shall be entitled to utilize the items as best as possible at our discretion after prior warning and setting a reasonable deadline. The proceeds of the sale shall be set off against our claims after deduction of the necessary costs of sale.

8. in the event of seizure or confiscation of the reserved goods or other dispositions or interventions by third parties in our rights, the customer must notify us immediately and, in consultation with us, do everything necessary to avert the risk. Where appropriate to protect the reserved goods, the customer must assign claims to us at our request. The customer shall be obliged to compensate us for any damage culpably caused by him and for any necessary costs – including court and legal costs – which we incur as a result of intervention measures against access by third parties.

§ 9 Place of jurisdiction / choice of law

1. if the customer is a merchant, Tübingen shall be the exclusive place of jurisdiction.

2. the law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.

KEMMLIT-Bauelemente GmbH
Maltschachstraße 37
72144 Dusslingen

Status: 12.03.2010