Terms and Conditions - Commercial customers
General Terms and Conditions of Kuhne electronic GmbH (November 2011)
- Commercial customers
The following terms and conditions apply for all contracts, shipments and other services between Kuhne electronic GmbH and commercial (other than private entities). Commercial entities under these articles are natural persons, partnerships and corporations which do or intend to do business with Kuhne electronic GmbH practising a commercial or selfemployed professional occupation thereby. Kuhne electronic GmbH does not accept any conditions which are opposite to or deviating from these GTCs. Conflicting terms and conditions of the customer do not become valid unless the terms and conditions are explicitly and individually recognized in writing by Kuhne electronic GmbH.
2. Conclusion of the Contract and Written Form
The presentation of the products in the catalogue does not constitute a legally binding offer of Kuhne electronic GmbH but an invitation to order. By sending an order, customer enforce into a legally binding offer for a respective contract. The contract will be concluded with our confirmation of the order within two weeks after dispatch of the order or by delivery of the goods ordered. Legally relevant declarations and notifications (e.g. appointments of a date, notices of defect, declarations of rescission or curtailment) which the
customer submits to us or a third party must be made in writing.
2.1 Force Majeure
1. The Parties are not responsible for the failure to perform its contractual obligations if the failure is due to circumstances beyond their control for the cause of the hindrance and in particular but not limited to if it is one of the following causes: Fire, natural disasters, act of war, confiscation, export regulations (prohibition of export), embargo or other acts of government, general shortage of aterials, limitation of power consumption, industrial disputes or if there is a breach of contract by suppliers on any such circumstances. The impediment and its removal must be reported immediately to the other contractual Party.
2. Either Party may terminate the contract by written notice, if the fulfillment of the contract is prevented for more than six months according to clause No.1.
3. Dispatch and Delivery
The delivery of goods ordered will be effected within one to three workdays. The compliance with our delivery obligation furthermore requires the due and orderly performance of the customer‘s obligations in due time. The defence of non-performance of the contract is reserved. Delivery times for customized products and goods not in stock are not binding, unless seller has committed itself to a binding delivery date in written form. In case we are not able to keep binding delivery dates due to reasons we are not responsible for (impossibility of performance, e.g. because our suppliers failed to deliver), we shall inform the buyer without delay and determine a new delivery period which appears reasonable according to the circumstances. If performance continues to be impossible also within the newly determined delivery period, we shall be entitled to cancel the agreement completely or partly; we shall thereupon immediately reimburse any payment. Cases of impossibility of performance include cases of force majeure (e.g. strike, business interruptions/restraints, or transport difficulties). The delivery period is deemed observed if consignment is dispatched within said period or if notification of readiness for shipment has been given. If dispatch or delivery is delayed at the instigation of the purchaser, we can claim a warehousing fee amounting to 0.5% of the invoiced amount for each month begun; the fee is capped at 5% of total, unless higher charges can be provably justified by us e.g. for third party warehousing.
4. Prices and Payment
The stated prices are EURO-prices (including VAT). Shipping cost are not included. We offer delivery against payment in advance, against invoice, direct debit or credit card. For delivery to new customers or customers from outside Germany payment has to be effected in advance. In case of purchase on account (invoice), customer is obliged to settle invoice within 21 days after receipt of the goods in full unless otherwise agreed. For payments with credit card or direct debit, collection takes place before the goods are dispatched. If the customer is in arrears with due payment, we are entitled to bill legal interest of 8% p. a. above the base interest rate starting with the delay. Proof of a higher damage through Kuhne electronic GmbH is permissable. The buyer shall not be entitled to offset payment against counterclaims, unless such claims are undisputed or finally established by court. The further buyer is only authorized to exercise the right of retention to the extent as his counter claim is based on the same contractual relationship. Notwithstanding any contrary conditions of the customer, we are entitled to apply payments to any of the customer‘s older debts first. Should cost and interest already have been incurred, then payments are to be set-off against the cost first, then against interest and third against the main performance.
To make an estimate of the costs for repairs we charge a fee of max. 80,- EUR (on a time and material basis). If we do the repair this fee is charged against the repair costs.
5. Transfer of Risk
Risk of loss as damage passes to the buyer when the goods leave our warehouse and are handed over to a forwarder or freight carrier or upon dispatch notification to customer. Insurances for damage of any kind in transit will be taken out only by buyer‘s order and at buyer‘s expense.
The buyer shall examine the goods without any delay after receipt and shall immediately notify us in written form of any defect. Claims of defects must be asserted within one week after delivery of goods. Defects which can not be detected even with careful inspection within this period must be reported in writing immediately after discovery. In case of defective goods, we will at first, by our choice, perform warranty by repair or replacement. Replaced parts become the property of Kuhne electronic GmbH. As long as the ordering party has not completely fulfilled his conditions of contract we are not obligated to provide repair or another delivery. If operating or service instructions from Kuhne electronic GmbH are not observed, alterations in the product undertaken or parts exchanged or used materials applied which do not correspond with the original specifications, claims because of faults in the product are not valid when buyer does not prove wrong with appropriately substantiated statements that any one of these circumstances had first led to the faultiness. Already the opening or destroying of the seal on our modules leads to caveat emptor. The guarantee for semiconductors and the withdrawal of those is also disclaimed. Customized products and special developments may not be returned. We are not responsible for damage or injury arising from inappropriate or improper use or from alteration or repair, incorrect or negligent handling, insufficient service, normal wear and tear or willful damage. Damages and disturbances which arise through state of bad electrical installation or a different current ratio at the buyer‘s place, through accidents, fire, water, force majeure or through theft, are not covered by warranty. Accountability for regular use is excluded. The guarantee for new goods is one year from delivery of the goods if customer has notified a defect in due time. No guarantee or other liability is accepted for used products.
7. Other Liability
As far as there are no other results from these GTC including the following regulations we shall be liable for any damage due to infringement of contractual or non-contractual obligations according to the corresponding legal provisions. We are liable on the basis of compensation – irrespective of the legal ground they arouse from - in case of intent and gross negligence. In the case of simple negligence, we are only liable for:
(a) damages arising from injury of life, body or health
(b) damages arising from the breach of an essential obligation under an agreement; in this case, however, our liability shall be restricted to the compensation of the foreseeable, typically arising damage.
As we have fraudulently concealed a defect of the goods, or have accepted a warranty for the quality of the delivered item, we shall be liable for compensation according to the provisions of German law. To the extent our liability is excluded or limited, this shall also apply to our employees, legal representatives, and agents.
8. Retention of Title
Until complete and final fulfilment (i.e. also upon final clearance from a coliability for deferred drafts or checks) of all receivables from the business transaction, regardless of the legal basis, all goods shall remain the property of Kuhne electronic GmbH (reservation of property rights). This also applies to any future claim arising from repair services, spare part deliveries and accessory deliveries. The buyer is authorized to sell on and/or process the goods which are subject to retention of title during his ordinary course of business. In this case the following clauses shall apply in addition. Reservation of ownership shall also apply to such new products resulting from the processing, mixing or combining of the purchased items with other goods in their full amount. Should property rights of third parties exist in the case of processing, blending or combining their goods, we shall acquire joint ownership in the proportion of the invoice values of the processed, blended or combined goods. For the objects that arise through processing, the same applies, ceteris paribus, as for the objects delivered with reserved title. Claims deriving from the resale of the goods against third parties are herewith assigned to us by the customer here and now by way of security. We hereby accept the assignment. Besides us, the buyer shall remain entitled to collect the claims. However, we undertake not to collect as long as the customer complies with his payment obligations to us, and as long as no petition is lodged for insolvency. If this is the case, however, we can demand that the purchaser make their accrued claims and their debtors known to us, report all necessary information for collection, hand over the corresponding documentation and inform the debtors (third parties) of the surrender. If the realizable value of the securities at our disposal exceeds our secured claims by more than 10 %, we are prepared, upon request by the customer, to release securities, chosen by us, to this extent. As long as the retention of title exists, any alienation, pledging or transfer by way of security as well as handing over of the object of sale to third parties shall only be permitted with our consent in written form. In the event of the buyer‘s creditors intervening, in particular in the event of distraint being levied, the buyer has to notify us immediately by regular mail. All costs which may arise through such a case, especially the costs of actions of replevin have to be borne by the buyer if they cannot be collected from the opposing party. In order to secure our claims, the buyer grants us the right of access to his property and company buildings at his normal opening hours and the right of access to all documents which are relevant to secure our claims.
9. Final Provisions
Place of performance and place of jurisdiction for all disputes, for whatever cause they may arise, is only the venue of Kuhne electronic GmbH. All legal relationships between ourselves and the customer shall be exclusively governed by the law of the Federal Republic of Germany. German law applies with exclusion of all international and supranational (contractual) legal systems, especially of the Law on Sales of the United Nations (CISG). If any regulation in these terms and conditions or withing the scope of further agreements should be or become ineffective the effectiveness of all remaining regulations or agreements is not touched. The stipulation which is invalid in whole or in part shall be replaced by an arrangement which comes as closely as possible to the invalid stipulation in terms of its economic effect.
In case of any dispute of these GTC, the German version of the GTC will prevail over the English version.