GENERAL
TERMS

1. application, inclusion, exclusivity

1. The following General Terms and Conditions (GTC) apply to companies and consumers, the latter only insofar as clause 15 does not contain any deviating provisions for use with consumers.
2. The General Terms and Conditions apply to all business transactions with the buyer or other clients. They shall apply to all offers of KERANDO GmbH. Our terms and conditions shall also apply if the purchaser or customer refers to its own terms and conditions of business when accepting an order or in the order confirmation, or at other places or at another time, unless these have been expressly accepted by KERANDO GmbH in writing.
3. These Terms and Conditions shall also apply to pending and future transactions, even if these Terms and Conditions are not or not expressly mentioned or referred to in later contracts, insofar as these Terms and Conditions were only included in a contract in the past.

2. conclusion of contract, offers

1. Offers by KERANDO GmbH are subject to change without notice; contracts shall only come into existence through our written confirmation, which can also be issued together with the invoice, or through delivery.
2. Insofar as KERANDO GmbH purchases goods, places delivery or construction orders or goods are to be procured by the contractual partner, these shall be fully liable to KERANDO GmbH for supplies and services required for the performance and/or delivery – even if not at fault.
3. KERANDO GmbH reserves the right to correct and timely delivery to itself. KERANDO GmbH shall immediately inform the contractual partner about the unavailability of the delivery item, submit alternative offers and, in the event of withdrawal, immediately refund the consideration of the Customer.

3. delivery time, delivery, delivery risk, partial deliveries, risk assumption

1. The delivery period for deliveries by KERANDO GmbH shall commence upon the dispatch of the order confirmation by KERANDO GmbH, but not before the provision of any documents, permits, releases which may have to be obtained by the Customer and not before receipt of any agreed down payment, unless otherwise agreed.
2. In the absence of an expressly agreed fixed delivery time, delivery dates for our sales shall not be binding.
3. KERANDO GmbH shall comply with the delivery period if notification of readiness for dispatch has been given by the end of the delivery period or the delivery item has left the warehouse of KERANDO GmbH or the first European importer.
4. If a non-binding delivery period is not complied with, KERANDO GmbH shall be in default with the delivery if the delivery has not been made within four weeks after receipt of a written reminder from the Customer for KERANDO GmbH.
5. The delivery period shall be extended in the event of measures within the scope of labour disputes, in particular strikes and lockouts, as well as in the event of unforeseen obstacles which are beyond KERANDO GmbH’s control, e.g. operational disruptions, delays in the delivery of externally procured materials which are necessary for the performance of the order, insofar as such events demonstrably have a considerable influence on the delivery of the delivery item. This shall also apply insofar as these circumstances occur with upstream and sub-suppliers. The delivery period shall be extended in accordance with the duration of such measures and obstacles. KERANDO GmbH shall not be responsible for the aforementioned circumstances even if they arise during a delay that has already occurred. KERANDO GmbH shall notify the Customer of the beginning and end of such obstacles as soon as possible.
6. Deliveries shall be made to the agreed delivery address. In the event of changed instructions, the Customer shall bear the additional costs incurred thereby. For deliveries by KERANDO GmbH, the place of loading shall be the place of performance; in the absence of deviating agreements, each delivery by KERANDO GmbH or third parties commissioned by it shall be made for the Customer’s account and risk. The risk shall pass to the Customer upon delivery to the carrier or acceptance. In the event of differences in weight and/or quantity for which neither KERANDO GmbH nor the Customer is responsible, the dispatch weight, filling quantity or number of pieces determined by KERANDO GmbH shall be decisive.
7. Deliveries „free place of use or construction site“ shall be understood on the basis of agreed costs in fully loaded approx. 25 to trucks, without unloading and under the condition of passable delivery roads; this shall be the case to the extent that the driver can drive to the construction site at his dutiful discretion without damage to the vehicle, products and third-party property. If the vehicle leaves the delivery road at the instruction of the customer or his authorised representatives and assistants, the customer is liable for .
   Deliveries „free site of use or construction site“ are understood on the basis of agreed costs in fully loaded approx. 25 to trucks, without unloading and under the condition of passable delivery roads; this is the case insofar as the driver can drive to the construction site without damage to the vehicle, products and third-party property at his dutiful discretion. If the vehicle leaves the delivery road at the instruction of the customer or his authorised representatives and assistants, the customer shall be liable for any damage caused thereby. If no delivery with crane unloading has been agreed upon, the unloading must be carried out immediately and properly by a sufficient number of unloading personnel to be provided by the customer. Waiting times and additional costs due to delivery modalities deviating from the customer’s request will be charged to the customer. Paving material and boulders will be tipped, unless otherwise expressly agreed.
8. KERANDO GmbH reserves the right to execute orders in partial deliveries unless another agreement has been made and this is reasonable for the Customer and no disadvantages of use arise from this. KERANDO GmbH only has to accept partial deliveries if the possibility of partial delivery has been agreed.
9. The acceptance of goods must be effected in equal proportions during the agreed delivery periods. The Customer shall be liable for the consequences of late or insufficient call-off.
10. If the customer, his authorized representative or assistant wrongfully refuses acceptance, he shall bear all damages and expenses resulting from the refusal of acceptance.
    

4. prices

1. All prices are net ex destination according to the respective offers or price lists, plus VAT at the rate applicable on the day of invoicing.
2. The prices quoted by KERANDO GmbH in price lists or other declarations are subject to change without notice unless the customer enters into a price agreement with KERANDO GmbH.
3. Transport insurance shall only be taken out at the Customer’s request and expense.
4. The prices per square meter for paving include the recommended joint proportion in the laid surface. Euro pallets and special packaging material shall be invoiced separately.

5. terms of payment, offsetting

1. The purchase price is due in full upon delivery or acceptance. The Customer shall be in default immediately after the due date without any further declaration by KERANDO GmbH unless the Customer has fulfilled KERANDO GmbH’s claim. In the event of the existence of defects, the Customer shall not have a right of retention unless the goods are obviously defective. Nevertheless, the Customer shall only be entitled to withhold payment to the extent that the amount withheld is in reasonable proportion to the defects and the anticipated costs of subsequent performance, in particular the removal of defects. The customer shall not be entitled to assert claims and rights due to defects if the customer has not made due payments and the amount due is in reasonable proportion to the value of the possibly defective delivery.
2. In the case of pure wage labour, the due date is immediately after receipt of the invoice. We do not accept bills of exchange, other customer documents or assignments of claims as payment. Cheques will only be accepted in payment subject to the reservation of coverage. Discount charges shall be borne by the purchaser.
3. In the event of default in payment, we are entitled to charge interest on arrears at a rate of 5% above the respective base interest rate of the ECB. We reserve the right to assert further damages caused by default.
4. The Customer may only offset against KERANDO GmbH’s claim for payment with undisputed or legally established counterclaims. The Customer may only assign claims to which it is entitled against us to third parties with our written consent.

6. material defects, warranty, performance description

1. Claims for defects do not exist in the case of an only insignificant deviation from the agreed quality or in the case of an only insignificant impairment of usability.
2. The goods delivered by KERANDO GmbH shall have the agreed quality if they comply with the product description. Deviations, errors and tolerances within the rules of the DIN, EN standards or the recognised rules of technology shall not constitute a defect. The description of the products shall not be a guarantee of the quality unless it is expressly designated as such.
3. Samples and specimens and the like, as well as the reference to DIN regulations or EN standards only serve to describe and label the goods and do not constitute a guarantee declaration alone.
4. Deviations in structure and colour are reserved insofar as they are due to the nature of the materials used or are customary in trade. KERANDO GmbH shall have the right to choose between
5. rectification of defects and new delivery. If the rectification of defects fails (this shall be the case after the second unsuccessful attempt at subsequent delivery or rectification), the Customer shall have the right to reduce the purchase price or, at its option, to withdraw from the contract. The right of the customer to claim damages instead of performance according to the law or these contractual terms and conditions remains unaffected.
6. The Customer shall bear the expenses required for the purpose of any subsequent performance to the extent that they increase due to the fact that the goods delivered by KERANDO GmbH have been taken to a place other than the Customer’s branch office or the first delivery address, unless this would be in accordance with the intended use.
7. The Customer’s statutory rights of recourse against us shall only exist insofar as the Customer has not entered into any agreements with its purchaser that go beyond the statutory claims for defects; Clause 6 shall apply accordingly to the scope of the Customer’s right of return against KERANDO GmbH.

7.  reservations of withdrawal

1. We are entitled to withdraw from the contract without any obligation to pay damages if a supplier does not, not correctly or not in time fulfil his delivery for reasons for which we are not responsible and if alternative procurement is not possible or only possible under considerably less favourable conditions. Furthermore, we have the right to withdraw from the contract if the buyer behaves contrary to the contract or if a deterioration of the financial situation of the buyer occurs unforeseeably after conclusion of the contract.

8. investigation and complaints

1. The Customer shall immediately inspect the goods delivered by KERANDO GmbH and immediately notify KERANDO GmbH in writing of any defects, wrong deliveries, incorrect or excess quantities within 2 working days after delivery at the latest. Notification of defects and assertion of alleged claims must be made prior to processing, combining and mixing. Hidden defects must be notified immediately, i.e. also within 2 working days of their discovery, at the latest, however, before expiry of the warranty period.
2. KERANDO GmbH shall be given the opportunity to inspect the defect itself and/or have it inspected by experts commissioned by KERANDO GmbH. KERANDO GmbH shall be entitled to these rights unless the Customer can credibly demonstrate to KERANDO GmbH that immediate measures had to be taken due to imminent danger. KERANDO GmbH shall only assume the costs of experts not commissioned by KERANDO GmbH if a corresponding written agreement has been concluded in advance in the individual case.
3. Insofar as KERANDO GmbH acquires goods, KERANDO GmbH shall only notify any defects in the goods after they have been inspected at the premises of KERANDO GmbH’s customer, but no later than 14 days after delivery to KERANDO GmbH or another first destination.

9. reservation of title

1. The delivery item shall remain the property of KERANDO GmbH until all claims of KERANDO GmbH against the Customer arising from the business relationship have been satisfied.
2. During the existence of the retention of title, the Customer is prohibited from pledging or transferring ownership by way of security. Resale shall only be permitted to resellers in the ordinary course of business and only under the conditions that payment of the equivalent value of the delivery item is made to the Customer. The customer must also agree with his buyer that only with this payment the buyer acquires ownership.
3. The customer is permitted to process the delivery item or to mix or combine it with other items. The processing, mixing or combining (hereinafter jointly referred to as „processing“ and with regard to the delivery object as „processed“) shall be carried out for KERANDO GmbH. The object resulting from the processing shall be referred to as new goods. The Customer shall store the new goods for KERANDO GmbH with the care of a prudent businessman. In the event of processing with other objects not belonging to KERANDO GmbH, KERANDO GmbH shall be entitled to co-ownership of the new goods in the amount of the share resulting from the ratio of the value of the processed, mixed or combined delivery item to the value of the other processed goods at the time of processing.
4. Insofar as the Customer acquires sole ownership of the new goods, KERANDO GmbH and the Customer agree that the Customer shall grant KERANDO GmbH co-ownership of the new goods in the ratio of the value of the processed delivery item to the other processed goods at the time of processing.In the event of the sale of the delivery item or the new goods, the Customer hereby assigns its claim from the resale against the purchaser with all ancillary rights to KERANDO GmbH by way of security without the need for any further special declarations. The assignment shall apply including any balance claims. However, the assignment shall only apply to the amount corresponding to the price of the delivery item invoiced to the Contractor. The portion of the claim assigned to KERANDO GmbH shall be satisfied with priority.
5. If the Customer combines the delivery item or the new goods with real estate, immovable and/or movable property, it shall, without the need for further special declarations, also assign to KERANDO GmbH by way of security its claim to which it is entitled as remuneration for the combination, including all ancillary rights, in the amount of the ratio of the value of the delivery item or the new goods to the other combined goods at the time of the combination.
6. Until revoked, the Customer shall be authorised to collect the claims assigned in this clause. The Customer shall immediately forward payments made on the assigned claims up to the amount of the secured claim to KERANDO GmbH. In the event of an important reason, in particular in the event of default of payment, suspension of payments, the opening of insolvency proceedings, a petition for the opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the Customer, KERANDO GmbH shall be entitled to revoke the Customer’s collection authority. In addition, KERANDO GmbH may, after prior warning and observing a reasonable period of notice, disclose the assignment by way of security, realise the assigned claims and demand the disclosure of the assignment by the Customer to the Customer.
7. If a legitimate interest is substantiated, the Customer shall provide KERANDO GmbH with the information required to assert its rights against the Customer and hand over the necessary documents.
8. In the event of seizure, confiscation or other dispositions or interventions by third parties, the Customer shall notify KERANDO GmbH immediately.
9. Insofar as the realisable value of all security rights to which KERANDO GmbH is entitled exceeds the amount of all secured claims by more than 10%, KERANDO GmbH shall release a corresponding part of the security rights at the Customer’s request; KERANDO GmbH shall be entitled to choose between different security rights when releasing the security rights.
10. In the event of a breach of duty by the Customer, in particular in the event of default in payment, KERANDO GmbH shall be entitled, even without setting a deadline, to demand the return of the delivery item or the new goods and/or to withdraw from the purchase agreement; the Customer shall be obliged to return the goods. KERANDO GmbH’s demand for the return of the delivery item/new goods shall not constitute a declaration of withdrawal by KERANDO GmbH unless this is expressly declared.

10. liability committee

1. KERANDO GmbH shall be liable in cases of intent or gross negligence on the part of KERANDO GmbH or a representative or vicarious agent in accordance with the statutory provisions. Otherwise, KERANDO GmbH shall only be liable pursuant to the Product Liability Act for injury to life, body or health or for the culpable breach of material contractual obligations. However, the claim for damages for the breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract. The liability of KERANDO GmbH shall also be limited in cases of gross negligence to the foreseeable damage typical for the contract if none of the exceptional cases listed in sentence 2 of this paragraph applies.
2. However, liability for damages caused by the delivery item of the Customer’s legal assets, e.g. damages to other objects, is completely excluded. This does not apply in cases of intent or gross negligence or if liability is assumed for injury to life, body or health.

11. delay, impossibility

1. KERANDO GmbH shall be liable in the event of delay in performance in cases of intent or gross negligence on the part of KERANDO GmbH itself or a representative or vicarious agent in accordance with the statutory provisions. However, in cases of gross negligence, the liability of KERANDO GmbH shall be limited to the foreseeable damage typical for the contract if none of the exceptional cases listed in sentence 5 of this clause applies. Otherwise, KERANDO GmbH’s liability for delay in performance shall be limited to 10% of the value of the delivery for damages in addition to performance and to 5% of the value of the delivery for damages in lieu of performance. Any further claims of the Customer shall be excluded – even after the expiry of any deadline for performance which may have been set for KERANDO GmbH. The above provisions shall not apply in the event of liability due to injury to life, body or health. A change in the burden of proof to the disadvantage of the Customer is not associated with the above provisions.
2. The above provision shall also apply in the event of impossibility of performance with the special feature that KERANDO GmbH’s liability for damages and compensation for futile expenses due to the impossibility of performance shall be limited to a total of 15% of the value of the delivery and the Customer’s right to withdraw from the contract due to the impossibility of performance shall remain unaffected.

12. rescission

1. The Customer may only withdraw from the contract within the framework of the statutory provisions if KERANDO GmbH is responsible for the breach of duty; if it learns of defects, however, the statutory requirements shall remain in place. In the event of a breach of duty, the Customer shall declare within a reasonable period of time after KERANDO GmbH’s request whether it is withdrawing from the contract due to the breach of duty or insisting on delivery.

13. period of limitation

1. The period of limitation for claims and rights due to defects in the deliveries, irrespective of the legal grounds, is one year, unless the delivery of used goods is concerned. This shall not apply in cases of § 438 para. 1 No. 1 BGB (defects of title in immovable property), § 438 para. 1 No. 2 BGB (buildings, items for buildings), § 479 para. 1 BGB (right of recourse of the entrepreneur) or § 634a para. 1 No. 2 BGB (building or work whose success consists in the provision of planning or monitoring services for it). The cases mentioned in the above sentence 2 are subject to a limitation period of 3 years.
2. Insofar as claims and rights exist due to defects in the delivery of used goods, these are excluded. This does not apply in the cases of § 428 para. 1 No. 1 BGB (defects of title in immovable goods) or § 438 para. 1 No. 2 BGB (buildings), where a limitation period of 1 year applies.
3. The limitation periods pursuant to paragraph 1 shall also apply to all claims for damages against KERANDO GmbH which are connected with the defect, irrespective of the legal basis of the claim. Insofar as claims for damages of any kind exist against KERANDO GmbH which are not related to a defect, the limitation period of paragraph 1, sentence 1 shall apply to them.
4. The limitation period pursuant to paragraph 1 and paragraph 2 shall apply with the following proviso: – The limitation periods shall not apply in the event of intent. – The limitation periods shall also not apply if KERANDO GmbH has fraudulently concealed the defect or if KERANDO GmbH has assumed a guarantee for the quality of the deliveries. If KERANDO GmbH has fraudulently concealed a defect, the statutory limitation periods which would apply without the existence of fraudulent intent shall apply instead of the periods set forth in paragraph 1. – Furthermore, the limitation periods shall not apply to claims for damages in cases of injury to life, body or health or freedom, in the case of claims under the Product Liability Act, in the case of a grossly negligent breach of duty or a breach of material contractual obligations.
5. The limitation period for all claims begins with the delivery. If a work service is provided, the period of limitation begins with the acceptance.
6. Unless expressly provided otherwise, the statutory provisions on the commencement of the limitation period, suspension of the statute of limitations, suspension and restart of periods shall remain unaffected.
7. A change in the burden of proof to the disadvantage of the client is not connected with the above regulations.

14. place of performance, place of jurisdiction, choice of law

1. The place of performance is Essen.
2. For all disputes arising from the contract, if the Customer is a registered trader, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be, at the discretion of KERANDO GmbH, its registered office or the general place of jurisdiction of the Customer.
3. German law shall apply exclusively to all contracts concluded by us on the basis of these General Terms and Conditions.

15. non-applicability to consumers, deviating rules

1. For legal transactions in which a consumer (according to § 13 BGB) is involved, these General Terms and Conditions apply with the following restrictions and changes:
2. Clause 1.1) does not apply.
3. Clause 3.6), 3.8) do not apply to the cases of sale to destination according to §§ 747 para. 2 in connection with 447 BGB.
4. Clause 4.1) shall apply with the proviso that the prices are understood to include the respectively applicable value added tax.
5. Clause 5.1) shall only apply subject to the proviso that the default occurs in the event that the invoice or payment schedule contains a reference to the legal consequences of the default or another action (reminder) justifying the default is present.
6. Clause 5.2) shall apply with the proviso that in the event of default an interest rate of 5% above the base rate of the ECB shall be owed.
7. Clause 8.1) shall apply with the restriction that a period of 2 working days shall apply to the complaint and that the complaint may be made in writing or text form.
8. Clause 13) shall only apply in accordance with the statutory limitation provisions.
9. Clause 14.2) shall apply with the proviso that it shall remain subject to the statutory places of jurisdiction. Insofar as KERANDO GmbH fraudulently conceals a material defect, an agreement by which the obligation of KERANDO GmbH to provide a warranty due to defects of the object is waived or limited shall be null and void (§ 476 BGB).

16. final provisions

1. Subsidiary agreements, guarantees, changes or additions to the contract must be made in writing. This also applies to any waiver of this formal requirement.
2. Should individual provisions of these General Terms and Conditions or other contractual agreements be invalid in whole or in part, this shall not affect the validity of the remaining provisions. The parties to the contract shall agree on another effective provision in place of the invalid provision, which comes as close as possible to the economic purpose and interests of the parties.