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Kenter Feinwerktechnik oHG
Liebigstr. 9a
85551 Kirchheim near Munich

Tel +49 (0) 89 991523 - 0
Fax +49 (0) 89 991523 - 30
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Managing Director: Philipp Kenter / Sylvia Kenter
Commercial register: München HRA 91534
Local district court: München
VAT.ID.No.: DE 257 776 048
   
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KENTER Feinwerktechnik oHG (hereinafter referred to as "KFWT") assumes no liability for the timeliness, accuracy, completeness of quality of the provided information.
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KENTER Feinwerktechnik oHG

 

 

Kenter OHG - General Terms and Conditions of Purchase (AEB)

§ 1 Scope of Application, Form

(1) These general terms and conditions of purchase apply to all business relationships with our business partners and suppliers ("sellers"). The GTC shall only apply if the seller is an entrepreneur (§ 14 German Civil Code), a legal entity under public law or a special fund under public law.

(2) The GTC apply in particular to contracts for the sale and/or delivery of movable goods ("goods"), irrespective of whether the seller manufactures the goods himself or purchases them from suppliers (§§ 433, 651 German Civil Code). Unless otherwise agreed, the GTC in the version valid at the time of the buyer's order or at any rate in the version last notified to him in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.

(3) These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the seller shall only become part of the contract if and insofar as we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example even if we accept the seller's deliveries without reservation in full knowledge of the seller's general terms and conditions.

(4) Individual agreements made in individual cases with the seller (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or our written confirmation.

(5) Legally relevant declarations and notifications of the seller with regard to the contract (e.g. setting of a deadline, reminder, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and additional evidence, in particular in cases of doubt as to the legitimacy of the declarant, shall remain unaffected.

(6) References to the validity of legal regulations have only clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

 

§ 2 Conclusion of Contract

(1) Our order shall be deemed binding at the earliest upon written submission or confirmation. The seller shall notify us of obvious errors (e.g. spelling and calculation errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion prior to acceptance. Otherwise the contract shall be deemed not to have been concluded.

(2) The seller is obliged to confirm our order in writing within a period of 3 days or, in particular, to execute it unconditionally by dispatching the goods (acceptance).

(3) A delayed acceptance is considered a new offer and requires our acceptance.

 

§ 3 Delivery Time and Delay in Delivery

(1) The delivery time we stated in the order is binding. The seller is obliged to inform us immediately in writing if it is likely that he will not be able to meet the agreed delivery times, for whatever reason.

(2) If the seller does not provide his service or does not provide it within the agreed delivery period or if he is in default, our rights - in particular to withdrawal and damages - shall be determined in accordance with the statutory provisions. The provisions in para. 3 shall remain unaffected.

(3) If the seller is in default, we may - in addition to additional legal claims - demand lump-sum compensation for our damage caused by default amounting to 0.5% of the net price per completed calendar week, but not more than a total of 2.5% of the net price of the goods delivered late. We reserve the right to prove that greater damage has occurred. The seller reserves the right to prove that no damage at all or only considerably less damage has been incurred.

 

§ 4 Performance, Delivery, Passing of Risk, Default of Acceptance

(1) Without our prior written consent, the seller shall not be entitled to have the performance he owes performed by third parties (e.g. subcontractors). The seller bears the procurement risk for his services, unless otherwise agreed in individual cases (e.g. limitation to stock).

(2) Delivery takes place within Germany "free domicile" to the place indicated in the order. If the place of destination is not specified and nothing to the contrary has been agreed, delivery shall be made to our place of business in Kirchheim near Munich. The respective destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver).

(3) The delivery must be accompanied by a delivery note stating the date (issue and dispatch), the contents of the delivery (item number and quantity) and our order identification (date and number). If the delivery note is missing or incomplete, we are not responsible for any resulting delays in processing and payment. A corresponding dispatch note with the same content shall be sent to us separately from the delivery note.

(4) The risk of accidental loss and accidental deterioration of the goods shall pass to us upon delivery at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis in the event of acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.

(5) The statutory provisions shall apply to the occurrence of our default of acceptance. However, the seller must also expressly offer his services to us if a specific or determinable calendar period has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the seller may demand reimbursement of his additional expenses in accordance with the statutory provisions (§ 304 German Civil Code). If the contract relates to an unrepresentable item to be manufactured by the seller (one-off production), the seller shall only be entitled to additional rights if we have undertaken to cooperate and are responsible for the failure to cooperate.

 

§ 5 Prices and Terms of Payment

(1) The price stated in the order is binding. All prices include statutory value-added tax, unless this is shown separately. (2) Unless otherwise agreed in individual cases, the price shall include all services and ancillary services of the seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs, including any transport and liability insurance).

(3) The agreed price is due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the seller shall grant us a discount of 3% on the net amount of the invoice. In the case of bank transfers, payment is deemed to have been made on time if our transfer order is received by our bank before the payment deadline expires. We are not responsible for delays caused by the banks involved in the payment process.

(4) We do not owe any interest due. The statutory provisions shall apply to default in payment.

 

(5) We shall be entitled to offset and retention rights as well as the plea of non-performance of the contract to the extent permitted by law. In particular, we are entitled to withhold due payments as long as we are still entitled to claims from incomplete or defective services against the seller.

(6) The seller has a right of offsetting or retention only on account of legally established or undisputed counterclaims.

 

§ 6 Confidentiality and Retention of Title

(1) We reserve ownership rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents shall be used exclusively for contractual performance and shall be returned to us after completion of the contract. The documents must be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall not expire until and to the extent that the knowledge contained in the documents provided has become generally known with our consent.

(2) The above provision shall apply accordingly to materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which we provide to the seller for manufacture. Such objects shall - as long as they are not processed - be stored separately and free of charge at the seller's expense and insured to an appropriate extent against destruction and loss. The seller is responsible for any negligence.

(3) If our reserved goods are combined or inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new objects in the ratio of the value of our object (purchase price plus VAT) to the other processed objects at the time of processing.

(4) If, after the combination or mixing, the seller's item is to be regarded as the main item, it is hereby agreed that the supplier shall transfer proportionate co-ownership to us in accordance with the ratio set out in sentence 1. The same shall apply if the seller originally acquires ownership by processing the goods within the meaning of § 950 German Civil Code in the ratio of the value of our goods to the value of the processing at the time the processing is carried out. The supplier shall hold the co-ownership in safe custody for us free of charge until the agreed or expressly requested return. The seller is responsible for any negligence here. (5) The transfer of ownership of the goods to us must take place unconditionally and regardless of the payment of the price. However, if we accept an offer by the seller to transfer ownership conditional on the payment of the purchase price in an individual case, the seller's retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. In the ordinary course of business, we shall also remain authorized to resell the goods prior to payment of the purchase price with advance assignment of the claim arising from them (alternatively validity of the simple reservation of title extended to the resale). This excludes all other forms of retention of title, in particular the extended retention of title, the forwarded retention of title and the retention of title extended to additional processing.

 

§ 7 Defective Delivery

(1) The statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including incorrect and short delivery as well as improper assembly, defective assembly, operating or use instructions) and in the event of other breaches of duty by the seller, unless otherwise specified below.

(2) According to the statutory provisions, the seller shall be liable in particular for ensuring that the goods are of the agreed quality upon transfer of risk to us. Any product descriptions which - in particular by designation or reference in our order - are the subject matter of the respective contract or which were included in the contract in the same way as these GTC shall in any case be deemed to be agreements on quality. It makes no difference whether the product description comes from us, the seller or the manufacturer.

 

(3) Contrary to § 442 para. 1 S. 2 German Civil Code, we shall also be entitled to assert claims for defects without restriction if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.

(4) The statutory provisions (§§ 377, 381 German Commercial Code) shall apply to the commercial obligation to inspect and give notice of defects with the following stipulation: Our obligation to inspect shall be limited to defects which become apparent during our incoming goods inspection under external inspection, including the delivery documents (e.g. transport damage, incorrect and short delivery) or which are identifiable during our quality inspection by random sampling. If acceptance has been agreed, there shall be no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later shall remain unaffected. Irrespective of our duty to inspect, our complaint (notice of defects) shall in any case be deemed immediate and timely if it is sent within 5 working days from discovery or, in the case of obvious defects, from delivery.

(5) Subsequent performance shall also include the removal of the defective goods and reinstallation if the goods have been installed in another item or attached to another item in accordance with their type and intended use. Our statutory claim to reimbursement of corresponding expenses shall remain unaffected. The seller shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that no defect actually existed. Our liability for damages in the event of an unjustified demand to remedy defects shall remain unaffected. In this respect, however, we shall only be liable if we have recognized or grossly negligently failed to recognize that no defect existed.

(6) Irrespective of our statutory rights and the provisions in paragraph 5, the following shall apply: If the seller does not fulfill his obligation to subsequent performance - at our discretion by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery) - within a reasonable period that we set, we shall be entitled to remedy the defect ourselves and demand reimbursement from the seller of the expenses incurred or an appropriate advance payment. § 439 para. 4 German Civil Code remains unaffected. If subsequent performance by the seller has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline needs to be set. We shall inform the seller of such circumstances without delay, if possible in advance.

(7) Otherwise, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or withdraw from the contract in accordance with the statutory provisions. In addition, we are entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.

 

§ 8 Supplier Recourse

(1) We are entitled to our legally determined recourse claims within a supply chain (supplier recourse in accordance with §§ 445 a, 445 b, 478 German Civil Code) without restriction in addition to the defect claims. In particular, we shall be entitled to demand from the seller exactly the type of subsequent performance (rectification of defects or replacement delivery) which we owe to our customer in the individual case. Our legal right to choose (§ 439 para. 1 German Civil Code) is not restricted by this.

(2) Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to §§ 445 a para. 1, 439 para. 2 and 3 German Civil Code), we shall notify the seller and request a written statement, briefly explaining the facts of the case. If a substantiated statement is not made within a reasonable period and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the seller shall be responsible for providing proof to the contrary.

(3) Our claims arising from supplier recourse shall also apply if we or another entrepreneur have processed the defective goods further, e.g. by installation in another product.

 

§ 9 Producer Liability

(1) If the seller is responsible for product damage, he shall indemnify us from third party claims of to the extent that the cause lies within his sphere of control and organization and he himself is liable in the external relationship.

(2) Within the scope of his obligation to indemnify, the seller shall reimburse expenses pursuant to §§ 683, 670 German Civil Code which arise from or in connection with claims asserted against third parties, including recall actions carried out by us. As far as possible and reasonable, we shall inform the seller of the content and scope of recall measures and give him the opportunity to comment. Additional legal claims remain unaffected.

(3) The seller shall take out and maintain product liability insurance with a lump sum cover of at least EUR 10 million per personal injury/property damage.

 

§ 10 Statute of Limitations

(1) The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, insofar as nothing to the contrary is stipulated below.

(2) Contrary to § 438 para. 1 No. 3 German Civil Code, the general limitation period for warranty claims is 3 years from the passing on of risk. If acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall also apply mutatis mutandis to claims arising from defects in title, whereby the statutory limitation period for claims in rem for surrender by third parties (§ 438 para. 1 no. 1 BGB) shall remain unaffected. Furthermore, claims arising from defects in title shall not become statute-barred under any circumstances as long as the third party can still assert the right against us, in particular in the absence of a limitation period.

(3) The limitation periods of the sales law, including the above extension, shall apply - to the extent permitted by law - to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 German Civil Code) shall apply here, unless the application of the limitation periods of sales law in individual cases leads to a longer limitation period.

§ 11 Choice of Law and Place of Jurisdiction

(1) The law of the Federal Republic of Germany shall apply to these general terms and conditions of purchase and the contractual relationship between us and the seller to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in Kirchheim near Munich. The same applies if the seller is an entrepreneur within the meaning of § 14 German Civil Code. In all cases, however, we shall also be entitled to take legal action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the seller's general place of jurisdiction. Prior statutory provisions, in particular regarding exclusive responsibilities, shall remain unaffected.

 

 

 

Kenter OHG - General Conditions of Sale (GCS)

§ 1 Scope of Application, Form

(1) These general conditions of sale (GCS) apply to all our business relations with our customers ("buyers"). The GCS only apply if the buyer is an entrepreneur (§ 14 German Civil Code), a legal entity under public law or a special fund under public law within the meaning of § 310 paragraph 1 S. 1 German Civil Code. No right of revocation based on a distance contract according to §§ 312c, 355 German Civil Code exists, in the absence of participation of consumers in the sense of § 13 German Civil Code.

(2) These terms of sale shall also apply to all future transactions with the buyer, insofar as these are legal transactions of a related nature. Our current terms of sale are available for download at www.kenter-fwt.de.

(3) Our general conditions of sale apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing.

(4) Legally relevant declarations and notifications of the buyer with regard to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and additional evidence, in particular in cases of doubt as to the legitimacy of the declarant, shall remain unaffected.

 

§ 2 Conclusion of Contract

(1) If an order is to be regarded as an offer in accordance with § 145 German Civil Code, we can accept it within two weeks.

(2) Our offers are always subject to change without notice even if this is not

mentioned separately in the offer.

(3) The acceptance can be declared either in writing (e.g. by order confirmation) or

by delivery of the goods to the buyer.

 

§ 3 Documents Provided

We reserve ownership rights and copyrights to all documents handed over to the buyer in connection with the placing of the order, such as calculations, drawings, etc. These documents may not be made accessible to third parties unless we give the buyer our express written consent to do so. If we do not accept the buyer's offer within the period of § 2, these documents must be returned to us immediately.

§ 4 Delivery Period and Delay in Delivery

(1) The beginning of the delivery period we stated presupposes the timely and proper fulfillment of the obligations of the buyer and begins at the earliest once all technical details of the order have been clarified. The plea of non-performance of the contract remains reserved.

(2) If we are unable to comply with binding delivery periods for reasons for which we are not responsible (non-availability of performance), we shall inform the buyer of this without delay and at the same time inform the buyer of the expected new delivery period. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part. Any service in return already rendered by the buyer will be refunded by us without delay. The case of non-availability of the service in this sense shall include, in particular, the non-timely self-delivery by our supplier, if we have concluded a congruent hedging transaction, neither we nor our suppliers are at fault or we are not obliged to procure in individual cases.

(3) In case of delay in delivery, we will inform the buyer immediately regarding when he can expect the goods to be delivered and shall make them available to him without delay. Compensation for delay shall only be granted by separate agreement. In the event of a separate agreement, we shall limit the total damage caused by default to 5% of the order value.

(4) The buyer's rights pursuant to § 8 of these GCS and our statutory rights, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

 

§ 5 Delivery, Passing of Risk, Acceptance, Default of Acceptance

(1) Delivery shall be ex warehouse, where the place of performance for the delivery and any subsequent performance shall also be. The goods will be shipped to another destination (mail order purchase) at the request and expense of the buyer. Unless otherwise agreed, we shall be entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) ourselves.

(2) If the goods are dispatched to the buyer at the buyer's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the buyer upon

dispatch to the buyer, at the latest upon leaving the factory/warehouse. This applies irrespective of whether the goods are dispatched from the place of performance or who

bears the freight costs.

(3) If the buyer is in default of acceptance or culpably violates other duties 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 additional claims. Insofar as the aforementioned conditions exist, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the buyer at the point in time at which he is in default of acceptance or debtor's delay. The proof of greater damage and our legal claims (in particular reimbursement of additional expenses, appropriate compensation, termination) shall remain unaffected.

 

§ 6 Prices and Terms of Payment

(1) Unless otherwise agreed in individual cases, our prices valid at the time the contract is concluded shall apply, ex works, plus statutory value added tax. Packaging costs will be invoiced separately. The buyer shall bear any customs duties, fees, taxes and other public charges.

(2) The purchase price is due and payable within 10 days of invoicing and delivery or acceptance of the goods. However, even within the framework of an ongoing business relationship, we are entitled at any time to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation. Payment of the purchase price shall be made exclusively to the account named overleaf. The deduction of a cash discount is only permissible if a special written agreement has been made.

(3) The buyer shall be in default at the latest upon expiry of the aforementioned payment period. The purchase price shall bear interest at nine percentage points above the respective base interest rate in accordance with § 288 para. 2, 247 German Civil Code during the default period. In addition, a flat-rate fee of EUR 40 must be paid. We reserve the right to assert additional claims for damages caused by default. Our claim against merchants to commercial interest on maturity (§ 353 German Commercial Code) shall remain unaffected.

(4) The buyer shall only be entitled to offset or retention rights to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the buyer's counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these general conditions of sale.

(5) Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries made 3 months or later after conclusion of the contract.

(6) If it becomes apparent after conclusion of the contract (e.g. by filing for the opening of insolvency proceedings) that our claim to the purchase price is at risk due to the buyer's lack of ability to pay, we shall be entitled to refuse performance in

accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 German Civil Code). In the case of contracts for the manufacture of unjustifiable items (custom-made items), we can declare our

withdrawal immediately. The statutory provisions on the dispensability of setting a deadline shall remain unaffected.

 

§ 7 Retention of Title

(1) We reserve title to the sold goods until complete payment of all our present and future claims from the purchase contract and an ongoing business relationship (secured claims). We are entitled to take back the object of purchase if the buyer behaves contrary to the contract.

(2) The goods subject to retention of title may not be pledged to third parties nor transferred by way of security until the secured claims have been paid in full. The buyer must notify us immediately in writing if an application is made to open insolvency proceedings or if the goods belonging to us are seized by third parties (e.g. seizures).

(3) In the event of breach of contract by the buyer, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or demand the return of the goods on the basis of retention of title. The demand for surrender does not at the same time include the declaration of withdrawal. Rather, we are entitled to demand only the return of the goods and to reserve the right to withdraw from the contract. If the purchaser does not pay the due purchase price, we may only assert these rights if we have previously unsuccessfully set the purchaser a reasonable deadline for payment or if such setting of a deadline is dispensable under the statutory provisions.

(4) Until revoked in accordance with (c) below, the buyer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.

(a) The connection, mixing or processing of the object of sale by the buyer is always carried out in our name and on our behalf. If the object of sale is combined or mixed

with other objects not belonging to us, we shall acquire co-ownership of the new objects in the ratio of the objective value of our object of sale to the other processed objects at the time of the combination or mixing. If the combination or mixing takes place in such a way that the object is to be regarded as the main object of the buyer, it shall already be deemed to have been agreed that the buyer already now transfers co-ownership to us on a pro rata basis and keeps the resulting sole ownership or co-ownership for us free of charge. The customer shall be responsible for any negligence in this respect. If the value of the processing or transformation is considerably lower than the value of the object of sale, the expectant right of the buyer to the object of sale transformed in this way shall persist. If the buyer acquires ownership of the object of sale through the processing of legal rights, it is hereby agreed that the buyer shall transfer co-ownership to us on a pro rata basis. The buyer must keep in safe custody any sole or co-ownership created in this way, free of charge. He shall be responsible for any negligence. The customer shall be responsible for any negligence in this respect. In order to secure our claims against the buyer, the buyer also assigns to us such claims that accrue to him against a third party through the combination of the reserved goods with a piece of property. We accept this assignment now.

(b) The buyer hereby assigns to us as security all claims against third parties arising from the resale of the goods or the product in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the buyer stated in paragraph 2 shall also apply with regard to the assigned claims.

(c) The buyer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the buyer meets his payment obligations towards us, there is no defect in his ability to pay and we do not assert the retention of title by exercising a right in accordance with paragraph 3. If this is the case, however, we may demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case we shall also be entitled to revoke the buyer's authority to further sell and process the goods subject to retention of title. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 German Code of Civil Procedure, the buyer shall be liable for the loss incurred by us.

(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer's request.

(5) The buyer is obligated, as long as the property has not yet passed to him or has passed to him according to paragraph 4. (a), to treat the object of sale with care. In particular, he is obliged to adequately insure them at his own expense at replacement value against theft, fire and water damage. If maintenance and inspection work has to be carried out, the buyer must carry this out in good time at his own expense

 

§ 8 Warranty Claims of the Buyer

(1) The statutory provisions shall apply for the rights of the buyer in the case of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the statutory special regulations for final delivery of the unprocessed goods to a consumer remain unaffected, even if the consumer has processed them further (supplier recourse in accordance with §§ 478 German Civil Code).

Claims arising from supplier recourse are excluded if the defective goods have been processed further by the buyer or another entrepreneur, e.g. by installation in another product.

Liebigstr. 9a D - 85551 Kirchheim bei München Geschäftsführer: Philipp F. Kenter Tel.:+49 (0) 89 / 99 1523 - 0 Fax: +49 (0) 89 / 99 1523 - 30 Postfach 1102 D - 85541 Kirchheim bei München Handelsregister München HRA 91534 USt.-ID.Nr.: DE 257 776 048 info@kenter-fwt.de www.kenter-fwt.de

(2) If the quality has not been agreed, it is to be assessed according to the statutory regulation whether a defect exists or not (§ 434 paragraph 1 S. 2 and 3 German Civil Code). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).

(3) The buyer's claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 German Commercial Code). If a defect becomes apparent upon delivery, inspection or at any later point in time, we must be notified of this in writing without delay. In any case, obvious defects are to be reported in writing within 3 working days of delivery and defects not recognizable during the inspection are to be reported within the same period of time from discovery. If the buyer fails to properly inspect the goods and/or give notice of defects, our liability for the defect not reported, not reported in a timely manner or not reported properly shall be excluded in accordance with the statutory provisions. If the buyer or third parties improperly

carries out repair work or modifications, there shall also be no claims based on defects for these and the resulting consequences. Any own rework by the customer of the parts delivered by us shall release us with immediate effect from any obligation to perform and/or refund.

(4) If the delivered item is defective, we can first choose whether we provide subsequent performance by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.

(5) We shall be entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.

(6) The buyer must give us the time and opportunity necessary for the owed subsequent performance, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or its reinstallation if we were not originally obliged to install it.

(7) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs as well as any dismantling and installation costs, in accordance with the statutory provisions, if a defect actually exists. Otherwise, we shall be entitled to demand reimbursement from the buyer for the costs incurred as a result of the unjustified demand to remedy the defect (in particular testing and transport costs), unless the buyer could not recognize the lack of defectiveness.

(8) In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the buyer has the right to remedy the defect himself and to demand compensation from us for the objectively necessary expenses. We must be informed immediately, if possible in advance, of any such independent rectification. The right of independent rectification does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.

(9) If the supplementary performance has failed or a reasonable period to be set by the buyer for the supplementary performance has expired without success or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price in consultation with us. In the case of an insignificant defect, however, there is no right of withdrawal.

(10) Claims of the buyer for damages or reimbursement of futile expenses shall only exist in accordance with § 8, even in the case of defects, and are otherwise excluded.

 

§ 9 Other Liability

(1) Insofar as nothing to the contrary arises from these general conditions of sale, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2) We shall be liable for damages - irrespective of the legal basis - within the framework of liability for culpability in cases of intent and gross negligence. In the event of ordinary negligence, we shall be liable subject to a milder standard of liability in accordance with statutory

provisions (e.g. for diligence in own affairs) only

(a) for damages resulting from injury to life, limb or health,

(b) for damages arising from the considerable breach of an essential contractual obligation (obligation whose fulfillment is essential to the proper performance of the contract and on whose observance the contractual partner regularly relies and may rely on). In this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from paragraph 2 shall also apply in the event of breaches of duty by or for the benefit of persons for whose fault we are responsible in accordance with statutory provisions. They shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims of the buyer under the Product Liability Act.

(4) Due to a breach of duty that does not consist of a defect, the buyer may only

withdraw from or terminate the contract if we are responsible for the breach of duty. A free right of termination of the buyer (especially according to §§ 651, 649 German

Civil Code) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.

 

§ 10 Statute of Limitations

(1) Notwithstanding § 438 para. 1 No. 3 German Civil Code, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.

(2) The aforementioned limitation periods of the sales law also apply to contractual and non-contractual claims for damages of the buyer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 German Civil Code) would lead to a shorter limitation period in individual cases. Claims for damages of the buyer according to § 8 para. 2 sentence 1 and sentence 2(a) as well as according to the Product Liability Law become statute-barred, however, only after the legal limitation periods.

 

§ 11 Choice of Law and Place of Jurisdiction

 

(1) These general conditions of sale and the contractual relationship between us and the buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Munich. The same applies if the buyer is an entrepreneur within the meaning of § 14 German Civil Code. In all cases, however, we shall also be entitled to institute legal proceedings at the place of performance of the delivery obligation in accordance with these general conditions of sale or a prior individual agreement or at the general place of jurisdiction of the buyer. Prior statutory provisions, in particular regarding exclusive responsibilities, shall remain unaffected.

(3) Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, this shall not affect the validity of the remainder of the contract. The invalid or unenforceable provision shall be replaced by the statutory provisions.