Terms & Conditions
Kemitron GmbH, Updated: May 2018
The customer accepts our conditions of sale and delivery on placement of the order. Any other conditions than those contained in our conditions of sale and delivery, and any ancillary contracts made by word of mouth are only accepted as valid if confirmed by us in writing.
Offer and Offer Documents
Offers are made without obligation. We reserve the right to make technical changes and changes as regards form and colour to a reasonable extent.
We retain title and copyright to any illustrations, drawings, calculations and other documents. Such items may not be made accessible to third parties.
Scope of Delivery
Our written order confirmation is decisive for the scope of delivery. Any ancillary agreements or changes require our written approval.
The delivery time stated by us is only deemed to begin when all technical questions have been clarified and all the duties of the customer have been fulfilled in a timely and proper manner.
The delivery time is deemed to have been adhered to if the item to be supplied has left our factory by the end of the calendar week stated by us on the order confirmation, or the customer has been informed of the readiness of the goods for collection by the end of the calendar week stated on the order confirmation.
The delivery time shall be extended appropriately if events occur which are not our responsibility such as Act of God, strike and lockout or any other unforeseen events which are not due to us, in so far as such events demonstrably affect the completion or delivery of the object of the contract. This provision shall also apply to corresponding events affecting our own suppliers.
If the aforementioned events occur during a period of delay in delivery which has already occurred on our side, the delay in delivery shall not be deemed to be prolonged.
Non-fulfilment of Obligations on the Part of the Customer
If the customer delays acceptance of the goods, or if the customer otherwise does not fulfil his duties of co-operation, we are entitled to require compensation for the damages which have accrued to us as a result, including any extra costs. In this case the risk of accidental destruction or accidental deterioration of or damage to the item purchased is transferred to the customer at the time when the delay of acceptance begins.
If delivery of the object of the contract is delayed at the request of the customer, as from the beginning of the month which follows the notice of readiness for despatch, the customer shall be charged for the costs which accrue as a result of storage, however at the least 0.5% of the invoiced amount for each month which is commenced. In addition we are entitled, following elapse of an appropriate period of grace of which the customer has been informed, to withdraw from the contract or, following an appropriate period of grace of which the customer has been informed, to dispose of the goods in another fashion, and to supply the customer in accordance with the contract after an appropriate extended period.
If the customer cancels an order which has been placed without justification, we are entitled, if the customer has been granted an appropriate period of grace for subsequent fulfilment, to charge 10% of the selling prices to cover handling costs which have arising in connection with the order and for loss of profit. Regardless of the above we still retain the right to claim compensation for higher actual damages. The customer retains the right to demonstrate lesser damages.
Prices and Conditions of Payment
Offer prices are net prices plus the valid legal rate of VAT and plus packaging and despatch costs.
If unforeseen changes in market prices or manufacturing costs or other changes as regards the contractual products should occur, the parties shall re-negotiate the prices, if either the customer can demonstrate a considerable downwards movement in the market prices, or we can demonstrate a considerable rise in our own costs for the contractual products. Changes of ±10% shall be deemed considerable.
Conditions of Payment
The invoiced amount is payable without any deduction, and free of charge to us, within 30 days of the date of invoice. Any other special arrangements always require our written confirmation. For larger orders and supply of special designs and constructions we retain the right to demand a deposit. If the purchaser defaults on payment, KEMITRON has the right to demand interest on the arrears in the amount of 9 percentage points above the base rate of the European Central Bank p.a.
If the agreed payment target is exceeded, we retain the right to charge interest for arrears of payment at the bank rate for current credit, along with any fees and expenses. If the customer continues to be in arrears of payment as regards invoices which are due, we retain the right make supply dependent on prepayment.
The customer only has the right to offset or withhold payment if his counterclaims are finally estab lished before the courts, if they are undisputed, or if they are recognized by ourselves. The customer is only entitled to withhold payment if his counterclaim originates from the same contract which forms the basis for the claim to payment.
Transfer of Risk, Despatch, Insurance
Our representatives are not entitled to accept cash payments If the contractual documents do not state to the contrary, delivery is agreed to be „ex works“.
Risk is transferred to the customer at the latest at the moment when the items to be supplied are placed on or in the means of transport (e.g. truck). This also applies if we have taken over the despatch costs or the delivery and assembly or installation of the objects of the contract.
If despatch of the goods is delayed for reasons which are the responsibility of the customer, the risk shall be transferred to the customer as from the day on which the goods are ready for despatch. We have the obligation to take out relevant insurances at the request and cost of the customer.
Any items which exhibit defects must be accepted if the defects are slight.
Partial deliveries are permissible.
Packaging is generally charged to the customer at our cost price. In the absence of agreement to the contrary, empty packaging is generally not taken back.
The guarantee period is 12 months and begins when the risk is transferred to the customer.
Otherwise our guarantee and liability are limited to the obligation of subsequent fulfilment, which we are entitled to implement either in the form of repair or replacement of the unsatisfactory goods. If such subsequent fulfilment fails, the customer has the right to withdraw from the contract. If the contract has only been slightly infringed, for example in the case of slight defects, the customer shall not be entitled to withdraw from the contract. The customer shall not be entitled to a reduction in price.
If the customer decides to withdraw from the contract because of a legal defect or defect in the goods themselves following failed subsequent fulfilment, he shall not be additionally entitled to compensation for damages as a result of the defect.
If the customer decides in favour of compensation for damages following failed subsequent fulfil ment, the goods shall remain with the customer in so far as this is reasonable. Compensation for damages shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if we have caused the contractual infringement in a malicious or fraudulent fashion. Our product descriptions are only descriptions for the purpose of sale and purchase. Public statements, promotion or advertising do not constitute a description of quality in the contractual sense. Product descriptions from other manufacturers which we make use of also only apply in the descriptive sense. If the customer receives instructions for use for assembly which are inaccurate or faulty, our only responsibility is to supply a fault-free set of instructions. This shall only apply if the fault in the assembly instructions has a negative effect on proper assembly.
The customer can only demand compensation on grounds of non-fulfilment or can only withdraw from the contract if we have not repaired the goods nor provided a replacement despite having been set a period of grace, or if supply of replacement goods or repair is not reasonable for the customer.
Claims under guarantee in accordance with Para. 1-7 require that the customer reports obvious defects to us within a period of 2 weeks, calculated from receipt of the goods, and reports hidden defects to us in writing within 2 weeks of establishing the defect.
The customer shall not receive guarantees from us in the legal sense. Manufacturers‘ guarantees of third parties shall remain unaffected.
Limitations of Liability
In the case of negligence on our part, our liability is limited to the average damages which can be foreseen for the type of goods and which are typical for the type of contract. This shall also apply to negligence on the part of our employees, staff, representatives and vicarious agents.
Liability is excluded in the case of negligent infringement of contractual duties of slight significance.
In so far as not described to the contrary below, further claims of the customer – no matter for what legal reason – are excluded. We therefore shall not be liable for damages which do not occur in the goods supplied themselves. In particular we shall not be liable for loss of profit or damage to other assets of the customer.
The limitation of liability according to Item 3 shall not apply in the case of damages arising from injury to life, limb or health or if the cause of the damage is based on deliberate intent or gross negligence or if we have infringed a so-called essential obligation (cardinal duty) of the contract. Neither shall it apply if the customer is entitled to require compensation for damages based on nonfulfilment based on a written guarantee supplied by ourselves. If we infringe a cardinal duty without having acted with intent, the duty to provide compensation in the case of damage to property or assets shall be limited to the cover of our product liability insurance. The customer shall be entitled to view the policy on request.
The above limitations on liability shall not apply to claims of the customer in accordance with §§ 1 and 4 of product liability law.
Retention of Title
The goods shall remain our property until all our claims for payment thus secured have been paid in full. We undertake to release such goods in our ownership (goods subject to retention of title) in so far as its value exceeds our claims for payment permanently by more than 20%.
The customer is entitled to dispose of the goods in the course of normal business, and in particular to join the goods together with stationary or mobile objects, as long as he is not in arrears of payment. It is not permissible to pledge the goods or assign them by way of security. The claims for payment arising from onward sale of the goods or arising form any other legal reason in connection with the goods subject to retention of title, including all claims from the current account, are already now assigned to us in their entirety by way of security. We authorise the customer, to collect these payments assigned to us in his own name on our account. This authorisation can be revoked, but only in the case that the customer does not fulfil his obligations of payment towards us or does not fulfil them in an orderly and correct fashion.
If third parties should attempt to seize or claim the goods, the customer shall state our ownership and inform us without delay.
If the customer acts in contravention of the contract – in particular if the customer is in arrears of payment – we are entitled to withdraw from the contract and to demand return of the goods subject to retention of title.
We are only obliged to assemble the goods in the presence of an independent assembly contract. The provisions of such a contract shall apply.
Guarantee, liability and limitation of liability shall be based, in the absence of agreement to the contrary, on the provisions of the aforementioned general terms and conditions of business.
Place of Fulfilment and Legal Venue
The place of fulfilment for both parties is Nürtingen. Nürtringen is agreed as the legal venue for all disputes arising from the contractual relationship.