General Terms and Conditions of KSF Grillgeräte GmbH
§ 1 Scope of application
1) For contracts with KSF Grillgeräte GmbH (“KSF”) these terms and conditions apply exclusively. Deviations from the terms and conditions stipulated herein require the written consent of both parties and apply only to the respective business transaction concerned.
These terms and conditions shall also apply to all future business transactions with the customer, even if they are not separately agreed again.
§ 2 Conclusion of contract, obligation to perform and deliver
1. Orders shall only be binding if we confirm them or comply with them by sending the goods.
2. Information on the object of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as their representations (e.g. drawings and illustrations) are only approximately authoritative unless the usability for the contractually stipulated purpose requires exact conformity. They are not guaranteed quality features, but descriptions or markings. Deviations that are customary in the trade as well as deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components by equivalent parts are permissible insofar as they do not impair the usability for the contractually stipulated purpose.
3. Goods ordered on call must be accepted within 12 months after order confirmation. If the customer 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 further claims.
4. Delivery periods are non-binding unless a binding delivery period has been agreed in individual cases. Compliance with a binding delivery period presupposes that all commercial and technical questions have been finally clarified. KSF may, without prejudice to the customer’s rights arising from default, demand from the customer a reasonable extension of the delivery date, at least, however, by the period of time during which the customer does not fulfil his contractual obligations towards KSF, in particular, does not provide required information or does not make agreed payments.
5. If KSF is prevented from fulfilling its obligation due to the occurrence of unforeseeable extraordinary events which KSF could not avert despite taking reasonable care according to the circumstances of the individual case, in particular official interventions, operational disruptions, labour disputes, delays in the delivery of essential raw and auxiliary materials or transport-related delays, the delivery period shall be extended to a reasonable extent. If the aforementioned events make delivery or performance impossible not only for a temporary period, KSF will be released from its obligation, as will the customer. Any further claims are excluded.
6. If KSF is in default with a delivery or service or if a delivery or service becomes impossible for KSF, irrespective of the reason, KSF’s liability is limited in accordance with this clause. If the customer can prove that he has suffered damage as a result of KSF’s delay, the customer may claim a lump-sum compensation for delay of 0.5% for each full week of delay, but in no case more than a total of 5% of the price of the delivery item which could not be put into useful operation due to the delay.
§ 3 Prices, terms of payment
1. The prices are net prices in the currency indicated and are based on the respective valid price lists plus the currently valid statutory value added tax. Costs for packaging, shipping, delivery, customs and insurance as well as other ancillary costs shall be invoiced separately. Deliveries and services not included in the offer shall be invoiced separately.
2. Unless separate terms of payment have been agreed in writing, payment in advance shall apply. If no advance payment has been agreed and if, after conclusion of the contract, KSF becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the customer and which jeopardise the payment of KSF’s outstanding claims against the customer under the respective contractual relationship, KSF is entitled to make outstanding deliveries or services only against advance payment or provision of security.
3. Should we voluntarily take back newly or incorrectly ordered equipment, we will charge the resulting take-back costs, but at least 15% of the value of the goods.
4. For orders with a value of less than 50,- € net we charge a surcharge for small quantities of 10,- € net.
5. Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material, energy or freight costs for deliveries which take place 4 months or more after conclusion of the contract.
6. In case of default in payment, KSF will charge default interest in the amount of 9 percentage points above the respective base rate per annum. KSF reserves the right to claim a higher damage caused by default. A processing fee of € 10.00 will be charged for each reminder as well as possible lawyer’s fees in the amount prescribed by law, if any.
7. Goods which have been paid for belong to the buyer. In the unlikely event that goods which have already been paid for should go into insolvency – even if delayed – they are settled and secured with the full amount. Paid goods may of course be returned in this case and will be refunded thereafter, so that the amount in the insolvency can be settled positively to offset any payments due to creditors. Any reduction in the value of the goods in this case will be dropped free of charge.
By purchasing and paying for the goods, the buyer expressly agrees that paid goods from our company can be returned for refund at any time in the event of insolvency and declares that there is no insolvency delay on his part.
§ 4 Place of performance, dispatch, transfer of risk
1. Place of performance for all obligations arising from the contractual relationship is the registered office of KSF.
2. Shipment shall be effected for the account and at the risk of the customer.
3. If no specifications are made by the customer regarding the mode of dispatch and packaging, these will be made at KSF’s due discretion.
4. In case of delivery, the risk shall pass to the customer at the latest upon handing over of the delivery item (decisive in this respect is the beginning of the loading process) to the carrier.
5. If we are unable to dispatch the goods through no fault of our own or if the handover is delayed for reasons for which the customer is responsible, the risk shall pass to the customer upon notification that the goods are ready for dispatch. If KSF incurs higher costs as a result, these shall be reimbursed by the customer.
7. On behalf and at the risk and expense of the customer, KSF will insure all consignments against damage and loss (transport insurance). If damage occurs to the consignment due to transport or transport-related damage and if KSF is entitled to claims against the transport insurer and/or the carriers for this reason, KSF will assign these claims to the customer upon the customer’s request – excluding liability for the existence of the claims – concurrently against payment of the total price agreed for the subject matter of the contract and all costs owed. Any further claims against KSF based on transport damage or transport-related damage are excluded.
§ 5 Infringement of industrial property rights
(1) If, in the course of manufacturing the goods according to drawings, samples or other information provided by the customer, industrial property rights of third parties are infringed, the customer shall indemnify KSF against all claims.
2. KSF is entitled to advertise the ordered products for its own purposes and to refer to the name and logo of the customer.
§ 6 Retention of title
1. KSF retains title to the delivered goods until all claims arising from the business relationship with the customer have been satisfied. This also applies to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the delivery item if the customer acts in breach of contract, in particular in the event of default in payment.
2. The customer is obliged to treat the delivery item with care as long as ownership has not yet passed to him. In particular, he is obliged to insure it adequately at his own expense at least against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the customer must carry this out in good time at his own expense. As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of a third-party action in accordance with §771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us. 3.
3. In the event that the “retention of title” means of security is unknown at the location where the contractual object is located, the means of security agreed upon shall additionally be the means of security which, according to the law applicable at this location, comes closest to a “retention of title” or the means of security which, according to this law, represents the typical means of security (e.g. “lien” or “security interest, attached and perfected”). The customer shall be obliged to cooperate, in particular to submit declarations of intent, which are required under the law applicable at the respective location for the agreement and establishment of such a means of security.
§ 7 Guarantee, warranty, claims for defects
1. For fryer controllers, immersion heaters, motors, thermocouples, burners and tubular heaters we grant a warranty of 1 year from the date of invoice. The warranty does not cover the above-mentioned components if they are installed in BavariaGrill appliances. Furthermore, glass and glass bodies are expressly excluded from the guarantee. The warranty only covers the replacement of the defective component, not the costs for disassembly and reassembly or other consequential costs.
2. Claims for defects of newly manufactured items shall become statute-barred 1 year after delivery to the customer. The delivery of used items shall be made to the exclusion of any warranty. The limitation periods do not apply in the case of intent or fraudulent concealment of a defect or in the case of an acceptance of a guarantee. Furthermore, the limitation periods for claims for damages do not apply in cases of injury to life, limb or health, in the case of claims under the Product Liability Act and in the case of a grossly negligent breach of duty or breach of material contractual obligations.
3. The purchaser is obliged to give notice in text form of any recognisable defects within one week of delivery of the goods at the latest, and of any non-recognisable defects within one week of their discovery at the latest. These deadlines are preclusive deadlines.
4. If, despite all due care, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall always be given the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision.
5. Repair of the subject matter of the contract or parts thereof shall neither suspend nor interrupt the original limitation periods for claims based on defects. Replaced parts shall become our property.
6. Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear and in the case of damage which occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials or due to special external influences which are not assumed under the contract. If the purchaser or third parties carry out improper maintenance work or modifications, there shall also be no claims for defects for these and the resulting consequences.
§ 8 Liability
1. Except in the case of a breach of an essential contractual obligation or cardinal obligation in a manner endangering the purpose of the contract or in the case of the assumption of a guarantee, we shall not be liable for damage caused by slight negligence. In the event of a grossly negligent breach by simple vicarious agents, in the event of the assumption of a guarantee or in the event of a slightly negligent breach of material contractual obligations or cardinal obligations in a manner endangering the purpose of the contract, our liability shall be limited to the foreseeable damage typical for the contract. Further claims are excluded.
2. In the case of § 7 item 4, our liability is limited to a maximum of three times the amount of the value of the goods concerned in each case, in the case of pure financial loss to a maximum of twice the amount of the order value.
3. KSF is not liable for damages resulting from a breach of the customer’s obligations. The customer is obliged to observe the instructions for use and operation as well as the safety instructions. In particular, the customer shall follow KSF’s instructions as to how the contractual goods are to be used without risk, which precautionary measures are to be taken regularly and in individual cases and which misuse is to be avoided.
4. Insofar as KSF provides technical information or acts in an advisory capacity and such information or advice is not part of the contractually agreed scope of performance owed by KSF, this shall be done free of charge and to the exclusion of any liability.
§ 9 Final provisions
The seller is not willing to participate in dispute resolution proceedings at a consumer arbitration board.
2. The exclusive place of jurisdiction for all disputes arising from this contract is our registered office.
3. This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
4. Should individual provisions of these GTC be or become null and void, the remaining provisions shall remain in effect. Insofar as the contract or these GTC contain regulatory gaps, those legally effective regulations are deemed to be agreed to fill these gaps which the contracting parties would have agreed according to the economic objectives of the contract and the purpose of these GTC if they had known about the regulatory gap.
© KSF Grillgeräte GmbH, Anni-Sturz-Str. 1, D-93489 Schorndorf, Fon: +49-9467.71114.0, Fax: +49-9467.71114.99, firstname.lastname@example.org; www.ksf.info
No guarantee for completeness, correctness and topicality. Any liability excluded. Status: 2016
Alternative dispute resolution pursuant to Art. 14 (1) ODR Regulation and § 36 VSBG: https://ec.europa.eu/consumers/odr