General Terms and Conditions of KAMEI GmbH & Co. KG, Heinrichswinkel 2, D-38448 Wolfsburg, Germany. Effective 18 January 2012
1. Scope of application
These General Terms and Conditions apply to all contracts concluded between KAMEI GmbH & Co. KG (hereinafter “KAMEI”) and the customer and to all offers, deliveries, and services, unless otherwise agreed upon between the parties by express written agreement. Any and all conditions or contract-changing terms of the customer are hereby expressly contradicted.
2. Order and conclusion of a contract
2.1. The order, once submitted, also by Internet or fax, is binding. A contract is not concluded until the order is accepted by written, verbal, or electronically (also by Internet) conveyed notice of acceptance from KAMEI. Delivery or invoicing is equivalent to a notice of acceptance.
2.2. The customer bears the responsibility for the accuracy of the order; furthermore, the customer is also responsible for providing KAMEI all information or specifications necessary for its order in a timely manner.
2.3.KAMEI processes data that concern the business relationship with the customer only in consideration of the applicable data protection laws.
3. Prices, carriage-free limits, terms of payment
3.1. The prices apply ex works plus shipping charges, collection fees, and packing costs in accordance with KAMEI's respective current price list. All prices are plus the respective currently applicable value-added tax.
3.2.For inland delivery over EUR 500.00 net goods value, KAMEI delivers carriage-free. Deliveries of roof boxes and storage boxes are excluded from the carriage-free limits. KAMEI reserves the right to choose the shipping method. In the case of export deliveries, KAMEI delivers ex works from Wolfsburg.
3.3. For payments within 10 days after invoice date (receipt of payment), KAMEI grants
2% discount on the invoice amount including the value added tax adjustment. Otherwise the customer shall
submit payments within 30 days after receipt of the invoice (receipt of payment), unless otherwise agreed.
3.4. For new business relationships, KAMEI reserves the right to demand cash on delivery or advance payment. Deliveries abroad require advance payment or cash against documents, or according to a special agreement. Bills of exchange and cheques are recognised as payment only on express agreement or on account of performance.
3.5. Set-off by the customer is not permitted, except against undisputed claims or those ready for judgement or legally established. The customer may assert rights of retention only in the context of the same legal relationship. Other deductions (e.g., postage) are not permitted.
3.6. The following applies to ongoing business relationships between KAMEI and the customer: If KAMEI becomes aware of circumstances that point to an impairment of the credit-worthiness of the customer or the inability to pay, KAMEI may make further deliveries subject to advance payment of the remuneration, contrary to previous practise. This also applies, if the circumstances should become known between conclusion of a contract and delivery or after one or several partial deliveries. If the customer rejects advance payment or does not pay despite the setting of a deadline, KAMEI has the right to withdrawal from the contract and to demand payment of damages. If a petition in bankruptcy is filed against the customer's assets and/or insolvency proceedings are initiated, KAMEI has a right of withdrawal and a right to demand of damages without further conditions. Upon receipt of the declaration of withdrawal, all outstanding accounts and claims for remuneration on the part of KAMEI shall become immediately due and payable.
4. Goods delivery
4.1. Delivery of the goods takes place ex stock from KAMEI or its vicarious agents. The customer shall accept the goods at any time once KAMEI has informed the customer that the goods are ready to for collection. Otherwise, KAMEI has the right to store the goods at the customer's expense and risk and to bill them as delivered ex works.
4.2. Information about delivery times is non-binding, unless a fixed delivery date was expressly promised by way of exception. KAMEI has the right to deliver or perform before expiration of a stated or agreed upon time. KAMEI has the right to perform through partial deliveries, to the extent reasonable.
4.3. KAMEI has the right to withdraw from the contract if KAMEI is not supplied by an up-stream supplier on a contract that is concluded in order to fulfil the customer's contract, or is not supplied in a timely manner, and KAMEI is not responsible for the non-delivery. In this case KAMEI is obligated to communicate the non-delivery to the customer immediately and to immediately refund any remuneration that was received. The same applies in the event of force majeure (e.g., war, embargo, comprehensive failure of travel routes, etc.).
5. Acceptance of goods
5.1. If the customer is a merchant, it shall examine the goods immediately after receipt. If it does not object to any recognisable defect, short deliveries, or incorrect deliveries within 5 working-days, then the delivery is deemed to be accepted.
5.2. If the customer of KAMEI has resold acquired, newly manufactured goods without changes or combination with other things in an uninterrupted supply chain to an end-consumer, the immediate passing on of the notice of defect to KAMEI, within 5 working-days at the latest, is sufficient.
6. Claims for defects, guarantee
6.1.In the event of a defect, the customer's statutory warranty claims apply, subject to the limitations to the extent defined in No. 7, below, in these General Terms and Conditions.
6.2. The statute of limitations for claims by the customer for defects, i.e. to rectification, compensation for self-remedy of defects, payment of damages, or reimbursement of fruitless expenses, amounts to 12 months starting from the statutory beginning of the statutory limitation period. This does not apply in cases of intent, fraudulent concealment of a defect, in the absence of a guaranteed quality, or for injury to life, limb or health of the customer.
6.3.Deviating from No. 6.2., the statutory period of limitation applies if the customer is a consumer or if the commodity manufactured as new by KAMEI was sold through an uninterrupted supply chain to a consumer without changes or combination with other things.
7. Liability, product liability
7.1. KAMEI’s liability for simple negligent breach of essential contractual duties (cardinal obligation or substantial secondary duty) is limited to the foreseeable contract-typical damages. Liability due to simple negligence for the breach of non-essential contractual duties is excluded. The breach of a duty of KAMEI is equivalent to a breach by its legal representative or vicarious agents.
7.2. The liability for damages that were caused intentionally or through gross negligence is not subject to limitations. The same applies to damages from an injury to life, limb, or health, if KAMEI is responsible for the breach of the duty, and to damages based the fraudulent concealment of a defect. For damages that can be attributed to the absence of a guaranteed quality or durability, KAMEI is responsible only if the risk of such damage is covered by the guarantee of quality or durability. All liability under product liability law remains unaffected.
8. Unjustified notice of defect
If the examination of a notice of defect submitted by the customer reveals that no defect was present, the customer shall compensate KAMEI for the expense resulting from the examination according to KAMEI's respective, then-current remuneration rates, or for costs that actually arose for the use of third-party services.
9. Technical modification of the goods
KAMEI reserves the right to change and improve the goods in accordance with technological advances, without communicating this to the customer in advance, if the function or form of the goods is not lastingly impaired or changed. If the model that was ordered is no longer available, KAMEI reserves the right to deliver the successor of the ordered model to the customer, as long as the function or form of the goods is not lastingly impaired or changed.
10. Retention of title
10.1.Goods that are delivered remain the property of KAMEI until the complete payment of all claims on the customer resulting from the business relationship.
10.2.Following justified withdrawal from the contract, KAMEI has the right to demand the return of the goods, sell them elsewhere, or otherwise dispose of them as long as the purchase price is not completely paid.
10.3.The customer shall manage the goods in a fiduciary capacity on behalf of KAMEI until complete payment is made and store the goods separately from its other property and that of third parties. Furthermore, the reserved goods shall be duly stored, secured, and insured and labelled as the property of KAMEI.
10.4.Until complete payment is made, the customer may use the goods in the usual course of business or resell it subject to retention of title. In the case of a resale, the customer hereby reassigns the claims arising out of the resale in the amount of the invoice with all associated rights and priority rights to KAMEI, which hereby accepts them. The customer is revocably entitled and obligated to collect on the assigned claims. KAMEI can give notice of the assignment to the customers of the customer at any time. The invoice amount is deemed to be the value of the reserved goods.
10.5.The customer does not have the right to assign or pledge
the goods as a security. In the event of attachment or other intervention by third parties, the customer shall inform KAMEI immediately.
10.6.The retention of title applies shall also apply if individual claims are applied by KAMEI to current invoices or a balance is acknowledged; unless the balance is paid in full.
10.7.If the customer suspends payments, or the opening of bankruptcy proceedings is requested against the customer's assets, or the same is opened or a provisional receiver is appointed, then the aforementioned rights of the customer to resale, processing, and collection of the claims resulting from it shall lapse.
10.8.If the collateral of KAMEI resulting on this basis exceeds the claims to which KAMEI is entitled by more than 20%, KAMEI hereby agrees to release it at its discretion at request by the customer or an affected third party.
11. Other provisions, place of jurisdiction
11.1.If individual terms of these General Terms and Conditions should be or become ineffective, then the effectiveness of the contract or the General Terms and Conditions is unaffected in all other respects.
11.2.German law applies to the exclusion of the UN Convention on Contracts for the Sale of International Goods (CISG) and conflict of laws provisions of German law.
11.3.If the customer is a merchant, Wolfsburg is the place of jurisdiction. KAMEI reserves the right to bring legal proceedings against the customer at its general place of jurisdiction.
11.4.Ancillary agreements, amendments or additions to the contract, including the revocation of this written form clause, must be in writing.
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