168 8. Article index

Spare parts catalogue 2021

KESSEL AG

(a) The reservation of title includes the full value of the products resulting from processing,

mixing or combining our goods, whereby we are deemed to be the manufacturer. Should, in

the event of processing, mixing or combining with goods belonging to third parties, these

third parties retain their rights of ownership, we will acquire co-ownership in proportion to the

invoice value of the processed, mixed or combined goods. Otherwise, the same will apply to

the resulting product as applies to Goods delivered subject to reservation of title.

(b) The Purchaser cedes to us with immediate effect the receivables due from third parties

created as a result of the re-sale of the Goods or the Products, either in their entirety or equal

to any co-ownership we might have in accordance with the previous paragraph, as security.

We accept the cession. The Purchaser’s obligations referred to in paragraph 2 also apply with

respect to the ceded receivables.

(c) In addition to us, the Purchaser is entitled to collect the receivables. We undertake not to

collect the receivables as long as the Purchaser ful

fils its payment obligations to us, as long

as there is no deficiency in its ability to perform and we do not enforce the reservation of title

by exercising a right in accordance with paragraph 3. Should this be the case, however, we

may demand that the Purchaser inform us of the receivables ceded and their debtors as well

as all information required to collect the receivables, hands over the relevant documents and

notifies the debtors (third parties) of the cession. Moreover, in this case we are entitled to

rescind the Purchaser’s authority to continue to dispose of and to process the Goods subject

to reservation of title.

(d) Should the realisable value of the collateral exceed our claims by more than 10 %, we will,

at the Purchaser’s request, release collateral of our choice.

8. Purchaser’s warranty claims

(1) Unless anything different is agreed below, the Purchaser’s rights in the event of quality

and legal defects (including incorrect and deficient deliveries as well as incorrect assembly

or incorrect assembly instructions) will be governed by the provisions of the law. In any event,

the special provisions of the law relating to the final delivery of unprocessed Goods to a

consumer are not affected, even should this consumer have further processed the goods

(supplier’s recourse in accordance with §§ 478 BGB). Claims derived from supplier’s recourse

are excluded should the defective goods have been further processed by the Purchaser or

some other entrepreneur, e.g. as a result of installation in another product.

(2) Liability for defects is based above all on the agreement made on the nature of the Goods.

All product descriptions which are the object of the individual contract will be considered an

agreement on the nature of the goods.

(3) Should the nature of the goods not have been agreed, the provision, whether a defect is

present or not (§ 434 paragraph 1 page 2 and 3 BGB) will be judged by the provision of the law.

We assume no liability for statements made by third parties (e.g. advertising claims).

(4) Warranty claims by the Purchaser are conditional on it having ful

filled its legal obligations

to examine the Goods and to report defects (§§ 377, 381 HGB). This also includes a visual

check for transport damage and an immediate report to the freight forwarder/service provi-

der in accordance with section 5 paragraph 1 of these SCS. Should a defect be identified at

the time of the delivery, the examination or at some time subsequently, this must be notified

to us immediately in writing. In any event, obvious defects must be reported in writing within

five days of the delivery and defects not identified at the time of the examination must be

reported in writing within the same period of time from when the defect is discovered. Should

the Purchaser fail to carry out an examination correctly and/or fail to report defects cor-

rectly, our liability for the defect not reported or not reported on time or properly is excluded

in accordance with the provisions of the law.

(5) Should the object delivered be defective, we may initially choose whether we provide sub-

sequent fulfilment by eliminating the defect (rectification) or by the delivery of a defect-free

object (replacement shipment). Our right to refuse subsequent fulfilment in accordance with

the conditions provided for in law is not affected.

(6) We are entitled to make the required subsequent fulfilment dependent on whether the

Purchaser has paid the purchase price due. The Purchaser is however entitled to withhold a

reasonable part of the purchase price proportionate to the defect. Reasonable is generally

double the costs required in order to remedy the defect.

(7) The Purchaser is required to grant us the time and opportunity required in order to carry

out the subsequent fulfilment due, in particular to hand over the Goods complained of for

purposes of examination. In the case of a replacement shipment, the Purchaser is required

to return the defective object as required by law. Subsequent fulfilment does not include

either dismantling or re-assembling the defective object should we originally not have been

required to carry out assembly.

(8) We will reimburse the expenses required for examination and subsequent fulfilment, par-

ticularly the costs of transport, travel, labour and materials as well as, if applicable, those of

dismantling and reassembly, in accordance with the requirements of the law, provided a de-

fect is actually present. Otherwise, we may demand from the Purchaser the reimbursement

of the costs of the unjustified request that the defect be eliminated (particularly the costs

of examination and transportation), unless the fact that the object was not defective was

not evident to the Purchaser.

(9) Should subsequent fulfilment fail or should a time-limit for subsequent fulfilment to be set

by the Purchaser expire without the desired result or be unnecessary in accordance with the

provisions of the law, the Purchaser may rescind the contract or reduce the purchase price.

Should the defect be only minor however, there is no right to rescind the contract.

(10) Claims by the Purchaser for compensation or the reimbursement of costs incurred in vain

with regard to defects are only admissible in accordance with § 8 and are otherwise excluded.

9. Other liability

(1) Unless these SCS including the following conditions provide for anything different, we are

liable for the infringement of contractual and out-of-court obligations in accordance with the

provisions of the law.

(2) We are liable for compensation – irrespective of the legal reason – in accordance with the

law of negligence in cases of deliberate intent and gross negligence. In the event of minor

negligence, we are liable, subject to a lesser degree of liability in accordance with the pro-

visions of the law (e.g. duty of care in one’s own affairs), only a) for damage due to injury to

life, limb or health, b) for damage due to a not inconsiderable infringement of a significant

contractual obligation, the fulfilment of which makes the proper implementation of the con-

tract possible at all and on whose compliance the contractual partner normally relies and

may rely); in this case, our liability is however limited to compensation for the foreseeable

damage typically incurred.

(3) The limitations of liability referred to paragraph 2 also apply to infringements of obligati-

ons in favour of persons for whose negligence we are responsible according to the law. They

do not apply should we have fraudulently concealed a defect or assumed a guarantee of the

nature of the goods and to claims by the Purchaser in accordance with the German Law on

Product Liability.

(4) The Purchaser may only rescind or terminate the contract on account of an infringement

of an obligation that does not constitute a defect should we be responsible for the infringe-

ment of the liability. Free right to terminate on the part of the Purchaser (particularly in accor-

dance with §§ 651, 649 BGB) is excluded. Otherwise, the conditions and legal consequences

provided for in law will apply.

10. Time-limitation

(1) The Purchaser’s claims will become time-expired within two years of the delivery of the

Goods unless the Goods concerned are building materials and/or building modules used in the

construction of buildings in accordance their normal intended use.

(2) Building materials and building modules that have been used in the construction of a

building in accordance with their normal intended use and which have caused the building to

have defects are governed by the provisions of the law.

11. Data processing / data protection

(1) We record, process and use personal data (e.g. name, delivery address, invoice address,

telephone number, tax number etc.). that have become known as part of contractual rela-

tions and which are required in order to process orders. We also process third parties’ data

(final customers/ final consumers) transmitted to us by the Purchaser for the purpose of

processing as part of the order. For its part, the Purchaser is responsible for processing the

data in accordance with data protection within the meaning of the General Data Protection

Regulation (GDPR for short) and the German Federal Data Protection Law (BDSG for short)

within the meaning of these laws.

(2) We transmit data obtained as part of the business relationship with the Purchaser to

external third parties

• for the purpose of preparing quotations,

• for order processing and invoicing purposes

• as part of fulfilling data processing tasks with service partners.

We oblige external third parties to ensure the confidentiality and security of the data. The

volume of data transmitted is established contractually. Provided this is required in order to

safeguard legitimate interests, we also transmit data to end customers/end users directly or

through a contractual partner within the meaning of article 28 GDPR. In doing this, we ensure

that the interests of the Purchaser and of end customers/end users worthy of protection are

not impinged. Equally, the Purchaser is required to ensure when processing that the interests

of end customers/end users worthy of protection are not impinged and that the provisions of

the GDPR and BDSG are complied with. In this regard, the Purchaser will ensure in particular

that there is a legal basis in accordance with GDPR und BDSG for processing end customers’/

end users’ personal data. The Purchaser may ensure this by concluding contracts or by ha-

ving secured end customer’ consent to our further processing of personal data. The Purcha-

ser will for its part also fulfil existing information obligations to its end customers/end users

in accordance with GDPR. The Purchaser will inform the end customers /end users in a way

that can be proven that their personal data has been forwarded to us in order to carry out the

order and for processing purposes.

(3) We reserve the right to obtain information from commercial information agents or credit

insurers with regard to the Purchaser’s credit rating for purposes of checking his creditwort-

hiness and to report data to him – limited to cases of processing not according to contract,

e.g. application for a dunning letter, with regard to an undisputed claim, enforcement order,

sequestration measures. Data will only be transmitted provided that this is necessary in

order to safeguard our legitimate interests. Balance sheet data will be handled confidentially

and used solely for the purpose of credit checking.

The Purchaser expressly gives his consent to the data processing described above. With

regard to the processing of contractual partners’ and final customers’ personal data pro-

vided to us by the Purchaser for the purpose of carrying out the order, the Purchaser will

irrefutably ensure with documentary evidence that the legal basis required for this purpose

in accordance with the GDPR and the BDSG exists in our favour.

12. Choice of law and place of jurisdiction

(1) These SCS and the contractual relationship between ourselves and the Purchaser are sub-

ject to the law of the Federal Republic of Germany to the exclusion of international uniformity

law, particularly UN purchasing law.

(2) Should the Purchaser be an entrepreneur within the meaning of the Commercial Code, a

public-law legal entity or public-law special assets, the sole – also international – place of

jurisdiction for all disputes arising directly or indirectly from the contractual relationship is

our registered office (Lenting) Ingolstadt. The same will apply should the Purchaser be an

entrepreneur within the meaning of § 14 BGB ist. We are however in any event entitled to

lodge a claim at the place of performance of the delivery obligation in accordance with these

SCS or with an individual agreement having precedence or at the Purchaser’s general place

of jurisdiction. This will not affect overriding provisions of the law, particularly with respect

to exclusive responsibilities.

Lenting, 01.01.2019