KENEX Industrial Wires & Cables GmbH
1. General
All deliveries and services provided by us are based solely on the following terms of business. Customers' business terms do not apply even if we have not expressly objected to them and have provided the delivery.
2 Offer, conclusion of contract, written form
2.1 Our offers are subject to change. Technical information and descriptions of delivery items contained in offers, brochures and other information are non-binding. Once a customer places a purchase order, a contract is established on the basis of our written order confirmation, which has legal effect even if issued as a machine-generated form that does not contain a signature or name of the supplier.
2.2 Information provided prior to the purchase order as part of the order process, in particular information regarding performance, consumption or other individual information, is only binding if we confirm this information as binding as part of the order confirmation or subsequently in writing.
3. Prices
3.1. The prices in effect on the day of delivery shall apply; the same applies to any applicable statutory value-added tax. Unless the pricing information contains different values, prices for copper cables contain a copper basis of EUR 150 for 100 kg copper (not including underground cables: Cu basis -0- and communication cables: Cu basis EUR 100 / 100 kg copper). The selling price is based on the DEL listing - exchange listed price for copper on the day following receipt of the order plus 1 % costs for metal purchases. The selling price will be increased or decreased by the difference between the copper basis and the DEL listing. In the case of other metals (e.g. aluminium or lead), invoicing will take place in the same manner as for the copper price. The values contained in the offer form the starting point for the calculation. In the case of products that do not contain an indication of the metal basis, hence full pricing (cable connections etc.), we reserve the right to adapt prices accordingly in the event of an extraordinary change in raw material prices. Surcharges and discounts on metal and raw material prices are always deemed strictly net.
3.2. In the event of unforeseen increases in costs for materials, labour or transport, taxes or fees between the date of the contract and delivery, we are entitled to adjust prices in accordance with these factors, if delivery is not to take place within four months of concluding the contract. Where the customer makes changes following the conclusion of the contract, we are entitled to adjust the prices in accordance with the additional costs incurred through this change.
4. Minimum order value and surcharges for small volumes
The minimum order amount is EUR 150 net. A fee of EUR 25 for pro-rated costs will be applied to orders below this value.
5. Fibre optic cables
Fibre optic cables may not be exchanged. Goods will be replaced if the delivery is defective. Other claims are hereby expressly excluded.
6. Delivery quantities
Lengths may permissibly vary by +/- 10%. Deliveries may be made in different partial lengths due to product, manufacturing or commercial factors. With regard to special manufactures, we reserve the right to deliver lengths that may vary up to 15% from the ordered quantity. In the case of cutting to length or fixed length orders, the length-based measurement tolerance is 0.4% to 2%. Where partial deliveries are deemed an acceptable solution, they may be delivered and invoiced separately.
7. Delivery periods and dates
7.1 We will endeavour to adhere to the delivery periods and dates indicated in the order confirmation to the best of our ability; however, these dates merely reflect expected dates, rather than a fixed or calendar-based delivery date.
7.2 The delivery period only begins once all details have been clarified. Deliveries will only be made once all inquiries have been responded to in a timely manner, all required or requested drawing and documents or parts to be supplied have been forwarded, and all required approvals have been issued; otherwise delivery periods will be extended accordingly.
7.3 Delivery periods and dates are deemed adhered to if the shipment has been shipped out, a notice of availability for shipping has been submitted or the shipment has been picked up within the lead time or on the date.
7.4 We are only required to execute an order or delivery if the customer has made all agreed payments. Where payments are made with a delay, we are entitled to extend the delivery period accordingly.
7.5 Where non-compliance of a delivery period or date is the result of force majeure, mobilisation, war, riots, strikes, lock-outs or other unforeseen hindrances which affect our operations, for which we are not responsible, and which occurred or became known to us after the conclusion of the contract, the delivery period or date will be amended accordingly. This also applies to unforeseen events which affect the operations of our sub-suppliers, and for which neither the suppliers nor our company are responsible. Where the hindrance exceeds three months following the granting of a reasonable extension, the purchaser is entitled to withdraw from that part of the contract which has not yet been fulfilled.
7.6 Where a contract penalty has been agreed to, it is limited to 5 % of the order amount.
7.7 If shipments are delayed at the request of the customer or for another reason for which the customer is responsible, we may, beginning a month following the notice of availability for shipment, apply charges for the costs incurred for storage, but at minimum a storage fee of 5 % of the invoice amount for each started month. The total storage fee is limited to 5 % of the invoice amount, unless we have incurred verifiably higher costs.
8 Packaging type and costs
8.1 Packaging for shipment purposes will be charged separately or provided on a loan basis. If the delivery is shipped in drums belonging to Kabeltrommel GmbH, Cologne (KTG), the rental fee for the drums will be invoiced directly by KTG at their respective terms. Once the drums are no longer in use, they must be reported directly to KTG. The corresponding guidelines form a part of these general delivery conditions and can be forwarded on request. Where shipments consist of one-way drums, no rental fee applies. In general, one-way drums may not be returned. However, if they are in excellent condition, they may be returned to us free at the receiving station once prior arrangements have been made. We reserve the right to select either KTG or one-way drums for shipment purposes.
8.2. Deliveries of mesh box and Euro flat pallets will be done on an exchange basis; any delays incurred by the supplier as a result will be charged to the ordering party. Barrels will be credited at 2/3 of the calculated value if they are returned free of charge and are suitable for reuse; this does not apply to one-way barrels (which are marked as such).
9. Transfer of risk, shipping types and costs
9.1 With regard to all deliveries - including CIF or FOB deliveries or self pick-up - risk is transferred to the recipient as soon as the shipments have been submitted to the person conducting the transport, or they have left our warehouse for the purpose of shipping, regardless of who is responsible for the freight costs. If shipping becomes impossible for reasons that are not our fault, the risk is transferred to the buyer at the time the notice of availability for shipping is issued.
9.2 Shipping is carried out on the account of the recipient. Insurance will only be taken out on the express wish of the customer, who will then also be responsible for any applicable costs. No pick-up discounts apply.
9.3 In the case of a written agreement that goods will be shipped carriage free and duty paid, the recipient is nevertheless responsible for the additional costs incurred by a requested express shipment method or another special shipping method. Transport insurance taken out by us on the basis of this agreement will only cover damages resulting from loss or damage to the goods, but not subsequent claims for damage compensation.
9.4 Where cost clauses are used, the terms and definitions of INCO TERMS 2010 shall apply, unless otherwise set out in these general terms of sale.
10. Liability due to default and as per Sections 325, 326 BGV (German Civil Code)
We do not assume any liability for lost profits. Claims and rights resulting from default may only be asserted as of a default period of one month. Damage compensation for each completed week of default is limited to 1 %, and a total of 10 % of the contract sum. Where, following a period in which we have been in default for more than one month, the customer grants a reasonable extension period with a notice that performance may be refused, he is entitled to withdraw from the contract upon expiry of this time period. Damage compensation due to non-fulfilment is limited to 10 % of the contract sum.
11. Notice of defects and warranties
11.1 The warranty period begins as of the delivery date. No warranty applies if operating or maintenance instructions are not followed, products are modified or subjected to subsequent work without our approval, if the replacement parts or consumables that are used do not correspond with original specifications, or parts which were not delivered or approved by us are used.
11.2 The purchaser must immediately notify us of any defects in writing, at the latest within one week of receiving the delivered item. Naturally, this applies to defects which can be detected within this time period as a result of careful inspection. Defects which cannot be detected within this time period despite a careful inspection must be reported to us in writing immediately following their discovery. The notice of defect must always contain the delivery slip and invoice number.
11.3 In the case of justified defects, we are entitled to three attempts at repairing the defects within a reasonable and required time period, but we are also entitled to provide replacement products at our own discretion. Replacement performance shall take the place of repair attempts, which means that replacements may be provided following two unsuccessful repair attempts, or an immediate replacement may be followed by two repair attempts. In line with the entitlement to a notice of defects, warranty service will be provided free of charge for the purchaser as regards the required ancillary costs, such as freight costs. However, this does not apply if the purchaser expressly requests that we view, discuss, investigate or undertake similar action at the registered office of the purchaser. The purchaser shall be responsible for these costs even if the notice of defects is found to be justified.
11.4 In the event that, following a notice of defects issued by the purchaser, we request that the goods be returned to us, or the purchaser sends the goods back without notifying us, we will only accept the goods for the purpose of reviewing the notice of defects. Our acceptance of the goods for the purpose of reviewing the notice of defects shall not be construed as an acknowledgement of the notice of defects. If the purchaser returns the goods unsolicited and the notice of defects is found to be unjustified, we are not required to resubmit the goods to the purchaser. The goods will then be stored at the risk of the purchaser.
11.5 Where repair attempts are unsuccessful following a reasonable time period, the purchaser may demand rehibition or a reduction. Liability for normal wear and tear is hereby excluded.
11.6 Warranty claims only apply to the purchaser and may not be assigned or transferred. All other warranty claims are hereby expressly excluded, with the exception of compensation claims resulting from guaranteed characteristics which were designed to protect the purchaser against the risk of subsequent damages from defects. However, this only applies if such characteristics were guaranteed in writing.
11.7 No warranties are assumed for the deterioration of the delivered item due to natural wear and tear, damages following the risk of transfer or improper handling.
11.8 In the case of purchase and plant delivery contracts regarding justifiable items, warranties for certain characteristics, in particular that the delivered item is suited for the customer's purposes, will only be assumed if we have provided express and written assurance in this regard.
11.9. Information regarding wires, consumption etc., which we have confirmed in writing at the time the contract was concluded, are only warranted as characteristics if we have expressly guaranteed compliance in this regard.
11.10 Our liability for material defects is as follows: We are required to repair, issue a replacement delivery or provide new performance at our choice, with regard to all those parts or performance which feature a material defect within the period of limitation, as long as the cause for the defects was already present at the time of the risk of transfer. Claims for material defects lapse in 12 months. Subsequent customer claims or customer claims asserted against us or our assistants, which differ from those set out in this section, are hereby excluded.
12. Other damage compensation claims
12.1 Damage compensation claims asserted by the customer due to subsequent damages from defects, breach of contractual or statutory ancillary obligations, positive breach of contract, fault at time of contract conclusion or unauthorised action are hereby excluded unless they are the result of intentional or grossly negligent action on our part or the part of our assistant.
12.2 Where we are required to provide damage compensation, the obligation shall always be limited to the damages that could be foreseen at the time the contract was concluded.
12.3 In the case of work performance, we must provide damage compensation due to non-performance as per Section 635 BGB only for significant defects which materially impair the product's usability. We are only responsible for replacing lost profits if the defect is the result of intentional or grossly negligent action or a breach of recognised rules of technology, or the defect is the result of a missing characteristic guaranteed in the contract.
12.4 Claims due to fault which existed at the time the contract was concluded as well as positive breaches of contract will lapse in the same time period as rights to warranties, insofar as they are based on material defects or a characteristic of the delivered item, otherwise in 3 years.
12.5 Claims due to negligently omitted clarification regarding negative characteristics of our products are excluded, as long as they do not establish a material defect, and unless we additionally and expressly assumed the provision of advisory services for the customer.
12.6 The preceding provisions do not affect our statutory liability as per the product liability act.
13. Payment terms
13.1 Invoices are issued upon shipment. Where goods available for shipping cannot be shipped for reasons which fall into the customer's area of risk, the invoice will nevertheless be issued and become due. Our invoices are due for payment on a strictly net basis 30 days as of the invoice date, unless otherwise agreed to.
13.2 In the event that contractually agreed payment terms are exceeded, we are entitled to demand default interest in the amount of 5 % over the applicable basis rate, without having to provide proof of damages. We reserve the right to claim for additional damages. Payment terms are only deemed as adhered to if we have received the payment within the payment period and we have attained control over the funds, hence, once the amount has been fully credited to our account in the case of bank transfers and cheque payments.
13.3 Notwithstanding any contrary provisions of the purchaser, we are entitled to apply payments to the purchaser's oldest outstanding debts. If we have already incurred costs and interest, we are entitled to apply payments initially to costs, then interest and finally to the main claim.
13.4 We may make the conclusion of the contract contingent on advance payment. If this is not the case, we may only charge for those portions of the goods which were contained in a partial shipment, and if payments are then in default, demand advance payment or immediate payment. Statutory consequences of default are not affected by these provisions.
13.5 Including cases in which the customer has issued a notice of defects, the customer may only offset amounts with undisputed or legally established claims, or may only apply offsets based on such claims, or may only withhold payment based on such claims. Where payments are withheld, the claim must be based on the same contract.
13.6 We will only accept drafts if we have provided our express prior approval. Drafts or cheques are always accepted on account of performance.
14. Retention of title
14.1 Goods delivered by us will remain our property until all claims from our business relationship with the customer have been paid. This retention of title also applies to agreed payments by bank draft.
14.2 The customer is entitled to sell and/or combine the reserved goods as part of his normal business operations, unless set out differently below; he is not permitted to pledge the reserved goods or transfer them as security.
14.3 The customer hereby now assigns to us all claims from the further sale of the reserved goods, in the amount of the selling price that has been agreed; we hereby accept the assignment. We will only agree to a further sale if an effective transfer of claim can take place based on the preceding declaration of assignment. In the event that the reserved goods are sold with other goods, regardless of whether the goods are not combined with other goods or subsequent to being combined with other goods, the advance assignment only applies in the amount of the invoice value of the reserved goods which are sold in conjunction with the other goods.
14.4 Until revoked by us, the customer is authorised to collect the claims assigned to us on our account in his own name. The authorisation to collect also lapses without our express revocation, if the purchaser does not meet his obligations due to us, the conditions of the 14.6 below occur, or there is doubt that the collected amounts can be forwarded to us. Upon request, the customer is required to provide written information regarding the whereabouts of our goods which are subject to retention of title. He must indicate other parties entitled to ownership as well as debtors with regard to the assigned claims, and provide us with all information regarding the assigned claim that is required for collection purposes, to provide required documents and notify the debtor of the assignment at our request. At our request, the customer must provide us with notices of assignment at any time.
14.5 Where reserved goods are combined with other goods which do not belong to us (installation), we are entitled to the resulting proportionate share in the new product in the proportion of the order value of the reserved good to the value of the other goods at the time they were combined.
14.6 Where payments are made on the basis of cheque-draft processes, our rights to retention of title and security interests shall not be affected, and shall remain until our liability resulting from the draft or cheque has ended.
14.7 Where the customer's actions are in breach of the contract, in particular in the case of payment default for claims resulting from the business relationship, if the customer incurs losses of assets, suspends payments, an application has been made to commence legal reorganisation or insolvency proceedings, or he requests an out-of-court settlement from his creditors, we may demand the immediate return of our property without prejudice to our other rights. The acceptance of returned goods does not constitute a withdrawal from the contract on our part, unless we have expressly declared such in writing.
15. Rights, design and program
We reserve the right to title and exclusive intellectual property rights for all cost quotes, drawings and other documents; they may not be made accessible to third parties without our express approval. We reserve the right to make changes to designs and construction in view of possible improvements and new insights. Diameter figures for cables and wires may vary due to production-related factors and are deemed purely nominal (not absolute).
16. Delivery of goods abroad
Where a domestic purchaser intends to deliver goods abroad, he must generally check whether the goods to be exported will be subject to the restrictions of the Foreign Trade Act of the Federal Republic of Germany. The exporter is solely responsible for adhering to the corresponding provisions. This also applies to the provisions of American foreign trade law.
17. Place of fulfilment and jurisdiction, final provisions
45307 Essen shall be the exclusive place of fulfilment for all obligations from this contract, in particular the payment of the purchase price, as well as the exclusive place of jurisdiction. All obligations arising from this contract are exclusively subject to the laws of the Federal Republic of Germany. The validity of the United Nation Uniform Law on the International Sale of Goods (CISG) is hereby excluded. Where individual provisions of these contract terms are or shall be found to be invalid, the validity of the remaining provisions shall not be affected, if the total construct of the contract still sets out a remaining meaningful provision.
(As at: October 2012