General Terms and Conditions of KAMEI GmbH & Co. KG, Heinrichswinkel 2, D-38448 Wolfsburg, Germany.
As of 18.11.2004
1. Area of application
These General Terms and Conditions shall apply to all contracts concluded between KAMEI GmbH &Co. KG (hereinafter known as KAMEI) and the customer, and to all offers, goods and services insofar as not otherwise expressly agreed in writing by the parties. Any and all conditions or amending provisions by the customer shall be excluded.
2. Placing of orders and conclusion of contract
2.1 Any order placed by the customer, including those placed via the Internet or by fax, shall be binding. A contract shall only come into effect when the order has been accepted by means of a written, verbal or electronically transmitted (including via the Internet) declaration of acceptance on the part of KAMEI. Delivery or billing shall be considered equivalent to a declaration of acceptance.
2.2 The customer shall be responsible for the accuracy of the order; the customer shall furthermore be responsible for providing KAMEI in good time with all the information or specifications necessary to complete the order.
2.3 KAMEI shall process data relating to its business relationship with the customer only in compliance with the currently
applicable data protection laws.
3. Prices, carriage-free limits, conditions of payment
3.1 The prices shall apply ex-works, plus carriage costs, COD charges and packaging costs as set out in the KAMEI price list current at the time. All prices are subject to the statutory VAT applicable at the time.
3.2 KAMEI shall deliver inland consignments of goods with a net value of more than EUR 350 free of charge. In the case of export deliveries with a net value of more than EUR 750, KAMEI shall deliver free of charge as far as the German border. Deliveries of roof boxes shall be excluded from these carriage-free limits. In the case of very small consignments of goods with a net value of less than EUR 50, KAMEI shall charge a processing fee of EUR 5 plus VAT. KAMEI reserves the right to choose the mode of delivery.
3.3 Payments made within 10 days of the invoice date (receipt of payment) shall be granted a 3% discount by KAMEI on the invoiced amount, including VAT adjustment. Otherwise the customer is to make payments within 30 days of receipt of the invoice (receipt of payment), insofar as no other arrangements have been agreed.
3.4 In the case of a new business relationship, KAMEI reserves the right to supply goods COD or against prepayment. Deliveries abroad shall be against prepayment, cash against documents, or according to separate agreement. Bills of exchange and cheques shall only be accepted in payment by express agreement, and only on account of performance.
3.5 Offsetting by the customer shall not be permitted except with claims that are undisputed, are ready for a decision or have been legally established. The customer shall only be able to assert rights of retention in the context of this same legal relationship. No other deductions (such as postage) shall be permitted.
3.6 The following shall apply to ongoing business relationships between KAMEI and the customer: In the event that KAMEI becomes aware of circumstances that indicate an impairment of the customer's creditworthiness or an inability to pay, KAMEI may make further deliveries dependent on prepayment, despite what may have been normal practice up to that point. This shall also apply if these circumstances should become known between conclusion of the contract and delivery, or after one or more partial deliveries have been made. In the event that the customer declines to pay in advance, or does not effect payment despite being given notice, KAMEI shall be entitled to withdraw from the contract and claim compensation. In the event that an insolvency application is made on the customers' assets, or insolvency proceedings have been initiated, KAMEI shall in addition have the right to withdraw and claim compensation without any further conditions. On receipt of the withdrawal declaration, all outstanding invoices and claims for remuneration by KAMEI shall become immediately due and payable.
4. Delivery of goods
4.1 Goods shall be delivered from stock by KAMEI or its agents. The customer is to accept the goods at any time, as soon as KAMEI has informed the customer that they area ready for collection. Otherwise KAMEI shall be entitled to store the goods at the customer's expense and risk, and to invoice them as delivered ex works.
4.2 Details relating to delivery periods shall not be binding unless a fixed delivery date has been expressly agreed upon. KAMEI shall be entitled to deliver goods or services before expiry of a specified or agreed period. KAMEI shall be entitled to make partial deliveries to a reasonable extent.
4.3 KAMEI shall be entitled to withdraw from the contract if KAMEI does not or not in due time receive deliveries arising from a transaction concluded for the purpose of meeting the customer's order, and if KAMEI is not responsible for the non-delivery. In this case KAMEI shall be obliged to inform the customer immediately of the non-delivery, and to return any payments already made without delay. The same shall apply in the event of force majeure (such as war, embargo, comprehensive failure of traffic routes etc.)
5. Acceptance of goods
5.1 If the customer is a merchant, he/she is to inspect the goods immediately on receipt. Unless he/she registers a complaint about any noticeable faults, insufficient or incorrect deliveries within 5 working days, the delivery shall be considered to have been approved.
5.2 If the customer has sold on the newly manufactured goods purchased from KAMEI without any modification or combination with other items, in an unbroken supply chain to a consumer, it shall suffice for the complaint to be forwarded immediately to KAMEI, within 5 working days at latest.
6. Case of defects, warranty
6.1 If there is a fault, the customer's legal right to redress shall apply, restricted to the extent specified in item 7 of these General Terms and Conditions.
6.2 The limitation period for claims made by the customer arising from faults, i.e. for remedy, self-repair along with compensation for any necessary expenditure, damages or compensation for fruitless expenditure shall be 12 months from the start of the statutory period of limitation. This shall not apply in cases of intent, malicious concealment of a fault, absence of a guaranteed quality or injury to life and limb or the health of the customer.
6.3 In departure from item 6.2., the statutory period of limitation shall apply if the customer is a consumer, or if the goods newly manufactured by KAMEI have been sold without modification or combination with other items in an unbroken supply chain to a consumer.
7. Liability, product liability
7.1 KAMEI shall be liable for infringements of essential contractual duties amounting to simple negligence (cardinal duty or essential secondary duty) only to the extent of contractually typical, foreseeable damages. Liability on the basis of simple negligence for the infringement of non-essential contractual duties shall be excluded. The infringement of duties by KAMEI shall be equivalent to that of its legal representative or agent.
7.2 The liability for damages that have been caused by intent or gross negligence shall be subject to no restrictions. The same shall apply to damages arising from injury to life and limb or health if KAMEI is responsible for the infringement of duty, and for damages that are based on the malicious concealment of a fault. KAMEI shall only be liable for damages arising from the absence of a guaranteed quality or durability if the risk of such damage is clearly included in a guarantee of quality or durability. Liability according to the Product Liability Act remains unaffected.
8. Unjustified complaints
If it emerges in the checking of a complaint made by the customer that there was no fault, the customer is to remunerate KAMEI for expenditure incurred as a result of the checking, according to KAMEI's remuneration rates current at the time, or according to the costs actually incurred in employing the services of third parties.
9. Technical modifications to the goods
KAMEI shall be entitled to modify and improve the goods in line with technological advances, without informing the customer of this in advance, insofar as the function and form of the goods are not permanently impaired or changed. It shall be entitled to supply the customer with the successor model to the one ordered, provided that the function and form of the goods are not permanently impaired or changed, if the model ordered is no longer available.
10. Retention of title
10.1 The goods supplied shall remain the property of KAMEI until all existing claims against the customer arising from the business relationship have been settled.
10.2 Following its justified withdrawal from the contract, KAMEI shall be entitled to demand return of the goods, to sell them elsewhere or to dispose of them in any other way, as long as the purchase price has not been paid in full.
10.3 The customer is to hold the goods in trust for KAMEI until payment has been made in full, and to store the goods separately from its other property and that of any third party. Furthermore, the retained goods are to be properly stored, secured and insured, and to be labelled as the property of KAMEI.
10.4 Until payment has been made in full, the customer may use the goods in the normal course of business or sell them on under retention of title. In the event of them being sold on, the customer immediately assigns to KAMEI the resulting claims up to the level of the invoiced amount, along with all subsidiary rights and priority rights. The customer shall be entitled and obliged until further notice to recover the assigned claims. KAMEI may at any time announce this assignment to the customer's clients. The invoiced amount shall be considered to be the value of the retained goods.
10.5 The customer shall not be entitled to mortgage or furnish the retained goods as security. In the event of seizures or other interventions by third parties, the customer is to inform KAMEI immediately.
10.6 The retention of title shall also apply if individual claims are inserted by KAMEI into ongoing bills, or if a debt is recognised, unless the debt has been settled.
10.7 If the customer ceases payment, if there is an application to initiate insolvency proceedings on the customer's assets, if they have been initiated or a provisional administrator has been appointed, the aforementioned rights of the customer to sell on or process goods and to recover resulting claims shall expire.
10.8 If the securities of KAMEI resulting from this exceed the claims to which it is entitled by more than 20 %, KAMEI undertakes to release these at the request of the customer or of a third party affected to that extent, at its own discretion.
11. Other arrangements, place of jurisdiction
11.1 Should any of the individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of remainder of the contract or of the General Terms and Conditions
11.2 German law shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and conflicting provisions of German legislation based on private international law.
11.3 If the customer is a merchant, Wolfsburg shall be the exklusive place of jurisdiction.
11.4 Any supplementary agreements, amendments or additions to the contract, including this clause relating to the written form, must be made in writing.
11.5 The General Terms and Conditions shall be executed bilingually in German and English. Should a dispute concerning the interpretation and application of these General Terms and Conditions arise, the German version shall prevail.