Appendix
6.5 General terms and conditions
fulfilment of all claims resulting from the business transactions linking us with
the ordering party. In the event of the ordering party surrendering cheques or bills
of exchange as conditional payment, the said rights of ownership shall remain in
force until honouring of the said documents and final crediting has taken place.
7.2 The ordering party shall be entitled to sell the supplied merchandise in the
ordinary course of business as long as it meets all its obligations in due time
resulting from the business transactions linking us with the said ordering party.
However, the ordering party may not pledge the goods on which we claim reservation
of ownership or assign the same by way of security. When effecting resale on
credit of any goods on which we claim reservation of ownership, the ordering party
undertakes to safeguard our rights.
7.3 In the event of the ordering party acting in breach of his contract – in particular by
defaulting payment – we shall be entitled, without setting a period of notice, to
demand return of the delivered goods and/or withdraw from the contract; the
ordering party is obliged to return the goods. There shall be no declaration of withdrawal
from the contract implicit in the demand to return the goods, unless this is
declared explicitly by us.
7.4 By way of security, the ordering party herewith undertakes to assign to us, here
and now, all claims and rights resulting from the sale of goods on which we claim
reservation of ownership. We herewith accept the said assignment. On request, the
ordering party undertakes to name to us the debtors of the assigned claims and
to notify the said debtors of such assignment. In the event that the ordering party
collects any monies or other covering resources from its debtors prior to the full
satisfaction of our claims, this is deemed to be on trust on our behalf.
7.5 Where the ordering party resorts to any treatment or processing of goods on which
we claim reservation of ownership, this is always deemed to be done on our
behalf. In the event of goods on which we claim reservation of ownership being
processed or inseparably fused with other objects not belonging to us, we acquire
co-ownership of the new item in a ratio of the invoice-value of the goods on which
we claim reservation of ownership to such other processed or fused objects at the
time processing or fusing takes place. In the event of goods on which we claim
reservation of ownership being bonded or inseparably fused with other movable
items to form a uniform object and that other object being regarded as the principal
object, it is agreed that the ordering party assigns proportional co-ownership
to us if such principal object belongs to the said ordering party. In all other respects
the same applies to the object brought about through processing, bonding or
fusing action as to that on which we claim reservation of ownership.
7.6 The ordering party is under obligation to effect separate storage of the goods
on which we claim reservation of ownership as well as those objects that have
resulted from bonding or fusion.
7.7 The ordering party is under obligation to notify us immediately of any third-party
execution proceedings or measures affecting the goods on which we claim reservation
of ownership, the same applying to claims assigned to us or any other form
of security, surrendering at the same time all documents required for intervention;
the same applies to impairment of any other nature. Costs and damages are to be
borne by the ordering party.
7.8 On request made by the ordering party, we will release the said security at our
option if and where the total value of such security exceeds the securable claims
by more than 20%.
8. Notification of Defects and Warranty Claims
8.1 Warranty claims become statute-barred in 12 months.
This does not apply if and where the law in pursuance of Section § 438, Paragraph
1, Subparagraph 2, § 479, Paragraph 1 and § 634 a, Paragraph 1, Subparagraph 2
BGB stipulates longer limitation periods as well as in cases of injury to life, body
or health involving breach of obligation on our part due to malice aforethought or
gross negligence and in the case of fraudulent concealment of any defect.
Statutory regulations governing suspension of expiration as well as suspension and
recommencement of prescriptive periods remain unaffected thereby.
8.2 Obvious defects occurring in a mutual commercial transaction must be reported in
writing by the ordering party within 8 days after receipt of the goods; hidden
defects must be reported in writing immediately after being discovered within the
warranty period in accordance with 8.1. Where notification of defects is delayed, no
claims in respect of material defects can be raised by the ordering party pertaining
to the respective faults. The same applies analogously to complaints relating to
quantities or to the delivery of goods different from those stipulated by contract.
8.3 Material defects are deemed not to exist if these are only negligible deviations
from the stipulated quality or only impair serviceability of the product to a
negligible extent, or are the result of natural wear and tear or damage occurring
after the passing of risk due to improper or careless handling, inadequate
maintenance, excessive strain or due to exceptional outside influences for which
no allowance is made in the contract.
No claims in respect of material defects can be raised if resulting from improper
repairs or alterations carried out by the ordering party.
8.4 Where complaints in respect of defects are justified and reported in due time, we
have the option of taking back the defective products and delivering satisfactory
goods in lieu thereof or repairing the said defective products. In the event of
repeated repair or repeated replacement delivery coming to naught in respect of
one and the same defect, the ordering party has the option of rescinding the
contract or reducing the purchase price.
8.5 The ordering party must give us the necessary time and opportunity to perform
all the required repair work or to effect replacement delivery, otherwise this will
exempt us from liability in respect of such material defect.
8.6 Claims on the part of the ordering party for expenses necessary for the purpose
of carrying out subsequent performance, in particular transport costs, mileage or
costs in respect of labour and materials are ruled out if the said expenses undergo
increase due to the product supplied having been subsequently translocated to
another site different from the ordering party’s business establishment unless such
translocation corresponds to the intended use according to the terms of the contract.
8.7 In the event of the product supplied being subjected to further use despite a
discovered defect, we only accept liability for the original defect but not for any
damage caused by further use of the product subject to such defect.
8.8 Warranty is assumed in respect of replacement deliveries and repairs in the same
way as for the original product supplied. However, warranty is deemed to end at
the latest on termination of the stipulated warranty period given in respect of the
original product supplied unless the statutory warranty period for the replacement
delivery or repair has not yet expired; in that case, warranty is deemed to end on
expiration of that period. We shall not be accountable for material damage to the
delivery which we acquire from third parties and pass on unchanged to the ordering
party; the responsibility for malice aforethought or negligence is unaffected by
this.
8.9 Rights of recourse on the part of the ordering party against the supplier in pursuance
of Section § 478 BGB are only deemed to exist if and where the ordering party
has not made any arrangements with its own purchaser extending beyond the
statutory warranty claims.
8.10 All other claims of the ordering party are ruled out, in particular claims for
compensation of damages and expenses resulting from defectiveness of the
product supplied and any other breaches of duty resulting from relationship under
the law of obligations and tort.
This does not apply if and where compulsory liability is incurred, e.g. in cases
involving malice aforethought, gross negligence, injury to life, body or health due
to breach of essential contractual obligations or, for example, in pursuance of the
Product Liability Act.
However, any claim for compensation of damages due to breach of essential
contractual obligations is limited to contract-typical, foreseeable damages unless
involving malice aforethought or gross negligence, or where liability is incurred for
injury to life, body or health. Change in burden of proof to the detriment of the
ordering party is not connected with the above rulings.
the event of the ordering party being entitled to any claims for compensation of
damages and expenses according to this section, these become statute-barred on
expiration of the statutory period of limitation applicable to claims for material
defects in accordance with the above ruling in 8.1.
Claims for compensation resulting from the Product Liability Act are governed by
the statute of limitations.
9. Notes/Specifications on Product and Liability
9.1. The customer must ensure and provide proof thereof to us on request by us, which
is permitted at all times, that (i) our product information (e.g. product descriptions,
instructions for use, service and maintenance) is received by the respective
addressees (e.g. end buyers) and (ii) instructions and information contained in our
product information (in particular concerning the use, service and maintenance)
are complied with by the respective addressees (e.g. end buyers). We shall make
the documents which are necessary in this respect – insofar as not already also
supplied by us- available to the customer on written request.
9.2. Statements to the ordering party in connection with the conclusion of a contract
(e.g. Descriptions of performance, reference to DIN standards, etc.) do not in the
event of doubt entail the acceptance of a guarantee. In the event of doubt,
only expressed written declarations by KFV Karl Fliether GmbH & Co. KG are
authoritative on the acceptance of a guarantee.
10. Technical Modifications/Copyright
We reserve the right to make technical modifications at any time serving to
improve our products or to enhance their further development. This does not
constitute any entitlement to claims, regardless of what kind.
11. Legal Venue and Place of Performance, Applicable Law
11.1 Unless otherwise expressly agreed upon in writing, German Law shall apply
exclusively, ruling out application of the UN Convention on Contracts for the
International Sale of Goods.
11.2 The place of performance is Velbert and legal venue is Wuppertal if the ordering
party is a merchant as defined in Section § 1 HGB, a legal entity under public law or
a special fund under public law.
144 Last update: 11.01.2013