§ 1 General remarks / Validity

1. The deliveries, services and offers provided by Thomas Krenn AG are based exclusively on these Terms and Conditions of Business (hereinafter also termed AGBs).

2. These AGBs are a constituent part of all the contracts Thomas Krenn AG concludes with its contractual partners (hereinafter also termed “ordering parties or customers”) in respect of the deliveries or services offered by the former.

3. The AGBs also apply to all future deliveries, services or offers provided to the given customer, even if they are not specifically agreed for the future deliveries, services or offers concerned.

4. The Terms and Conditions of Business of the customer or any third parties do not apply, even if Thomas Krenn AG does not explicitly refuse to accept their validity in the individual case concerned.

5. Even if Thomas Krenn AG refers to a letter in which the Terms and Conditions of Business of the customer or a third party are included or refers to them in their own right, this does not mean that the former accepts the validity of the Terms and Conditions of Business concerned.

§ 2 Offers and conclusion of contract

(1) Such offers, deliveries and services as are provided by Thomas Krenn AG are to be addressed exclusively to entrepreneurs, persons subject to public law and special funds subject to public law.

(2) The presentation of the company’s goods and the granting of the possibility of ordering on its Internet website does not equate to a binding offer having been submitted on the part of Thomas Krenn AG.

(3) Not until the customer places an order does the offer represent a request for the conclusion of a contract. The customer is then sent a confirmation of the receipt of the order by way of an e-mail being sent to the e-mail address specified by the former (confirmation of order) immediately after the order has been placed. This confirmation of order does not represent an acceptance of the customer’s offer, but instead is only intended to inform the latter that his order has been received by us. The contract comes into effect by way of a separate confirmation of order or the despatch of the goods within three days on the part of Thomas Krenn AG. The customer is informed of the despatch of the goods concerned.

(4) a) The legal relationship between Thomas Krenn AG and the customer is subject exclusively to the contract concluded via the online shop of Thomas Krenn AG including the General Terms and Conditions of Business set out here.

b) These contract lays down all the agreements made between contracting parties in respect of the object of contract. Any verbal assurances made by Thomas Krenn AG prior to the conclusion of this contract are deemed to be legally non-binding. Any additions and amendments to the agreements made including these Terms and Conditions of Business must be agreed in writing for them to become effective. With the exception of managing directors or authorised signatories, no members of staff of the vendor are entitled to make any verbal assurances deviating from the Terms and Conditions set out here. An agreement in writing can also take the form of a communication via fax or e-mail.

(5) Details provided by Thomas Krenn AG in respect of the delivery or service concerned (e.g. weights, dimensions, usage values, load capacity, tolerances and technical data) as well as our representations of same (e.g. drawings and illustrations) are only approximately authoritative insofar as the usability of the products or services concerned for the contractually intended purpose does not require exact compliance. They are not guaranteed characteristic features, but instead descriptions or identification of the given delivery or service. Standard deviations and such deviations as occur on the basis of statutory regulations or represent technical improvements as well as the replacement of components via equivalent parts are admissible insofar as they do not impair the usability of the products or services concerned for the contractually intended purpose.

(6) Thomas Krenn AG reserves its ownership of the copyright to all the offers and cost estimates it submits as well as to all the drawings, calculations, brochures, catalogues, models, tools and other documents and aids it provides to the customer. The customer may not make these items accessible to third parties either as such or in respect of their content, publicise same, use or reproduce them himself or via third parties without the vendor’s explicit consent. He is to return them in full to Thomas Krenn AG if asked by the latter to do so and to destroy any copies that may have been made if they are no longer needed by him for the proper and orderly conducting of his business or if negotiations do not lead to the conclusion of a contract.

§ 3 Prices and payment

(1) The prices apply to the scope of services and deliveries set out in the confirmations of order. Any additional or special services are to be charged separately. The prices are quoted in euros ex works plus packaging, statutory value-added tax, customs duties in the case of deliveries for export as well as any other fees and public charges.

(2) Insofar as the agreed prices are based on the list prices stipulated by Thomas Krenn AG and the delivery is to be supplied later than four months after the conclusion of contract, the list prices stipulated by Thomas Krenn AG at the time of the supply of the delivery (minus any percentage or fixed discount agreed) are to apply.

(3) Invoice amounts are due for payment with immediate effect in the absence of any written agreement to the contrary. The receipt of payment by Thomas Krenn AG is authoritative for the date of payment. Cheques are deemed to be valid as payment once they have been redeemed. Should the customer default on payment, the outstanding amounts are subject to interest payments at a rate 8% above that of the base rate prevailing at the time with effect of the default of payment; the assertion of claims to interest payments in excess of this and further damages in the case of default remains unaffected.

(4) The offsetting of counterclaims on the part of the customer is only admissible or a right of retention on the part of the customer due to such claims only exists insofar as the counterclaims concerned are undisputed or legally binding.

(5) Thomas Krenn AG is entitled to execute or render such deliveries or services as are still outstanding against prepayment or the provision of collateral only if such circumstances become known to it after the conclusion of contract as are capable of reducing the customer’s creditworthiness to a significant extent and via which payment of the outstanding receivables owed to Thomas Krenn AG by the customer on the basis of the contractual relationship concerned (including those from other individual orders subject to the same outline contract) is put at risk.

§ 4 Delivery and delivery period

(1) Deliveries are to occur on an ex-works basis.

(2) The periods and deadlines announced by Thomas Krenn AG are deemed to only apply approximately unless a fixed period or deadline has been assured or agreed explicitly. Insofar as a despatch has been agreed, the delivery periods and deadlines apply to the point in time at which the goods are handed over to the forwarding agent, freight carrier or other third party appointed to transport the goods concerned.

(3) Thomas Krenn AG may – notwithstanding its rights arising from any default on the part of the customer – demand an extension of the delivery and service periods or a postponement of the delivery and service deadlines by the period of time during which the customer fails to meet his contractual obligations vis-à-vis Thomas Krenn AG.

(4) Thomas Krenn AG cannot be made liable for the impossibility of delivery or for delays in delivery insofar as they have been caused by force majeure or such other events as were not foreseeable at the time of contract conclusion (e.g. operating disruptions of any kind, difficulties in respect of the sourcing of materials or energy, transportation delays, strikes, legally valid lock-outs, shortage of workers, energy or raw materials, difficulties in respect of the procurement of any regulatory permits required, regulatory measures or the failure to provide deliveries either at all or correctly or on time on the part of the suppliers) and were not the responsibility of Thomas Krenn AG. Insofar as such events make the provision of deliveries or services difficult to a significant degree or impossible and the hindrance concerned is not only of a temporary nature, Thomas Krenn AG is entitled to withdraw from the contract. In the case of hindrances of a temporary nature, the delivery or service periods are extended or the delivery or service deadlines are postponed by the period during which the hindrance exists plus a reasonable period of lead time. Insofar as the customer cannot reasonably be expected to accept the delivery or service due to the given delay, he may withdraw from the contract providing he gives the vendor immediate, written notification to this effect.

(5) Thomas Krenn AG is entitled to provide part deliveries only if

- part deliveries are useful to the customer in respect of the contractually intended purpose,

- the supply of the remaining part of the delivery concerned is assured and

- the customer does not incur additional expense or costs of any significance as a result (unless Thomas Krenn AG declares itself to be prepared to pay the amounts concerned).

(6) In the event that Thomas Krenn AG is in arrears with the provision of a delivery or service or unable to provide the delivery or service for whatever reason, the liability of Thomas Krenn AG in respect of payment of compensation is limited to that set out in § 8 of these General Terms and Conditions of Business.

§ 5 Place of fulfilment, despatch, packaging, transfer of risk, acceptance of delivery

(1) The place of fulfilment for all obligations arising from the contractual relationship is deemed to be Freyung, Germany in the absence of any agreement to the contrary. Should Thomas Krenn AG also be responsible for the provision of installation services, the place of fulfilment in this respect is deemed to be place at which the installation services concerned are to be rendered.

(2) The type of despatch and packaging used is to be left to the dutiful discretion of Thomas Krenn AG.

(3) The transfer of risk to the customer is to occur no later than the point in time at which the object to be supplied is handed over to the forwarding agent, freight carrier or other third party appointed to transport the goods concerned, whereby the commencement of the loading process is authoritative. This also applies in cases where part deliveries are to be supplied or Thomas Krenn AG has agreed to render other services (e.g. despatch or installation). If the despatch or hand-over of the given goods is delayed due to such circumstances as are the responsibility of the customer, the risk is transferred to the latter as from the date on which Thomas Krenn AG is ready to despatch and has notified the customer to this effect.

(4) Any storage costs incurred after the transfer of risk are payable by the customer. In the event that Thomas Krenn AG renders the storage services concerned, the storage costs amount to 1.5% of the invoice amount in respect of the delivery items in store per full week of storage. Both parties reserve the right to assert and prove that the storage costs actually incurred are higher or lower than those mentioned above.

(5) The consignment is to be insured by Thomas Krenn AG against theft and breakage as well as against damage in transit, by fire and water and against any other insurable risks at the express wish of the customer and at his expense.

(6) Insofar as acceptance of delivery is required, the purchase items are deemed to have been accepted if

- the delivery and, insofar as Thomas Krenn AG is responsible for rendering installation services, the installation have been completed,

- Thomas Krenn AG has notified the customer to this effect, informed him of his acceptance of delivery duties in accordance with § 5 (6) as set out here and asked him to perform his acceptance of delivery duties,

- twelve working days have elapsed since the delivery or installation or the customer has started making use of the purchase item (e.g. the equipment supplied has been put into operation) and in such cases six working days have elapsed since the delivery or installation, and

- the customer has failed to perform his acceptance of delivery duties within this period for any reason other than that in respect of a defect notified to Thomas Krenn AG that makes usage of the purchase item either impossible or is a significant hindrance to its usage.

§ 6 Warranty

(1) The warranty period amounts to one year from delivery or, insofar as acceptance of delivery is required, from acceptance of delivery.

(2) The items supplied are to be carefully examined immediately after delivery to the customer or to a third party appointed by same. They are deemed to have been accepted if Thomas Krenn AG does not receive written notification (§2 no. 4b) of a defect in respect of an obvious defect or such other defects as become apparent by way of an immediate, careful examination within seven working days of the delivery of the purchase items or otherwise within seven days of the discovery of the defect or the point in time at which the defect becomes evident for the customer by way of normal usage of the item delivered without closer examination being required. At the request of Thomas Krenn AG, the item delivered and subject to the complaint concerned is to be returned to Thomas Krenn AG at the customer’s expense. In the event that the complaint proves to be justified, Thomas Krenn AG is to reimburse the cost of the most favourable means of despatch; this does not apply insofar as the costs are higher due to the fact that the item supplied is being used at a location other than that intended for its use.

(3) In the case of material defects in respect of the item(s) supplied, Thomas Krenn AG is obliged and entitled to remedy the defect or replace the item(s) concerned as it sees fit by way of a choice to be made within a reasonable period of time. In the event that correction of the defect or the replacement of the item(s) concerned fails due to the impossibility, unreasonableness, refusal or inappropriate delay in respect of the correction or replacement concerned, the customer may withdraw from the contract or reduce the purchase price to an appropriate extent.

(4) Thomas Krenn AG may also render services in the form of maintenance provided on a remote basis.

(5) The services concerned do not have to be rendered by Thomas Krenn AG personally, but can also be rendered by a service partner or other agent appointed by Thomas Krenn AG to this end.

(6) Should a defect be attributable to the responsibility of Thomas Krenn AG, the customer is entitled to demand compensation in accordance with the provisions set out below under § 8.

(7) In the case of defects in respect of components made by other manufacturers that Thomas Krenn AG may not remedy for legal, licensing reasons or other de facto reasons, Thomas Krenn AG is to assert its warranty claims vis-à-vis the manufacturer and supplier for account of the customer or assign them to the customer as it sees fit. Warranty claims against Thomas Krenn AG exist in the case of such defects given compliance with the other relevant requirements and in accordance with the provisions set out in these General Terms and Conditions of Business only if the legal enforcement of the above-mentioned claims vis-à-vis the manufacturer and supplier is unsuccessful or, due to insolvency for example, has no prospect of success. For the duration of the legal dispute, the limitation of the customer’s given warranty claims vis-à-vis Thomas Krenn AG is to be postponed.

(8) The warranty is to lapse if the customer modifies the item supplied or has it modified by a third party without the consent of Thomas Krenn AG, fails to observe the manufacturer’s operating or maintenance instructions, uses materials that do not comply with the original specifications, thus rendering the rectification of the given defect(s) either impossible or unreasonable. In all such cases, the additional costs incurred by way of rectification of the given defect(s) are payable by the customer.

(9) The supply of used items agreed with the customer on a one-off basis is to occur to the exclusion of any warranty whatsoever.

(10) Third-party products are generally excluded from exchange.

§ 7 Intellectual property rights

(1) In accordance with the provisions set out under this section (§ 7), Thomas Krenn AG is responsible for ensuring that the item supplied is free of intellectual property rights or copyright owned by third parties. Each contracting party is to notify the other contracting party in writing without delay in cases where claims are asserted against the part concerned in respect of the violation of such rights.

(2) In the event that the item supplied violates the intellectual property rights or copyright owned by a third party, Thomas Krenn AG has the choice of either modifying the item supplied or replacing it at its expense such that third party rights are no longer violated with the item concerned still fulfilling its contractually agreed functions, or of obtaining usage rights for the customer by way of the conclusion of a licence contract. Should it fail to do this within a reasonable period of time, the customer is entitled to withdraw from the contract or reduce the purchase price to an appropriate extent. Any compensation claims the customer may assert are subject to the provisions set out under § 8 of these General Terms and Conditions of Business.

(3) In the case of any violation of rights via products made by other manufacturers but supplied by Thomas Krenn AG, Thomas Krenn AG has the choice of asserting its claims vis-à-vis the manufacturers and suppliers concerned for account of the customer or of assigning them to the customer. Claims against Thomas Krenn AG exist in such cases in accordance with the provisions set out here under § 7 only if the legal enforcement of the above-mentioned claims vis-à-vis the manufacturers and suppliers concerned is unsuccessful or, due to insolvency for example, has no prospect of success.

§ 8 Liability for payment of compensation on grounds of culpability

(1) The liability of Thomas Krenn AG for payment of compensation, for whatever legal reason, but above all for the impossibility or default of delivery, defective or incorrect delivery, breach of contract, neglect of duty in connection with the contract negotiations or unlawful acts, insofar as the former is to blame in respect of the above, is limited in accordance with the provisions set out here under § 8.

(2) Thomas Krenn AG is not liable

a) in cases of ordinary negligence on the part of its governing bodies, legal representatives, employees or other agents;

b) in cases of gross negligence on the part of its non-senior employees or other agents, insofar as no breach of essential contractual obligations is involved. Essential contractual obligations include the obligation to provide deliveries and installation services free of defects and on time as well as such advisory, protective and care duties as are to facilitate the customer’s contractual use of the item(s) supplied or protect the life, body and health of the staff of the customer or relevant third party or the customer’s property from significant damage.

(3) Insofar as Thomas Krenn AG is liable to pay compensation in accordance with the provisions set out under § 8 (2), the liability concerned is limited to such damages as Thomas Krenn AG foresaw at the time of conclusion of contract as potential consequences of a breach of contract or could have foreseen giving due consideration to circumstances that were known to it or must have been known to it and given the application of a standard level of care and prudence. Moreover, such indirect damage and consequential damage as are consequences of defects on the part of the item(s) supplied can only be reimbursed insofar as the damage concerned can be typically expected given the correct usage of the item(s) concerned.

(4) In the case of liability in respect of ordinary negligence, compensation to be paid by Thomas Krenn AG for damage to persons or property is limited to an amount of EUR 100,000.00 per claim even if a breach of essential contractual obligations is involved.

(5) In the case of liability in respect of ordinary negligence, the liability for data loss is limited to the expense incurred by way of such typical restoration activities as would have been required given the regular creation of back-up copies in accordance with the level of risk concerned.

(6) The above-mentioned exclusions and limitations of liability apply to the same extent in favour of the governing bodies, legal representatives, employees or other agents of Thomas Krenn AG.

(7) Insofar as Thomas Krenn AG provides technical information or is active in an advisory capacity, and the information or advice concerned is not included in the contractually agreed scope of services to be rendered by Thomas Krenn AG, this is to occur free of charge and to the exclusion of any liability whatsoever.

(8) The limitations set out here under § 8 do not apply to the liability of Thomas Krenn AG in respect of wilful behaviour, guaranteed characteristic features, damage to life, body or health, or provisions set out under the Product Liability Act.

§ 9 Reservation of ownership

1. Until such time as all claims (including all balance claims arising from the current account) as Thomas Krenn AG is entitled to for any legal reason whatsoever vis-à-vis the customer either now or in the future, Thomas Krenn AG is to be granted the following collateral that is to be released on request and as it sees fit insofar as the value of the collateral exceeds that of the receivables by more than 10% on a sustained basis.

2. The goods are to remain the property of Thomas Krenn AG until such time as all the secured receivables have been paid in full.

3. The processing or conversion of the goods is to occur at all times on behalf of Thomas Krenn AG as their manufacturer, without any obligation in respect of them, however. Should the (co-)ownership of the goods on the part of Thomas Krenn AG lapse due to their combination with other goods, the agreement is already concluded herewith that the (co-)ownership of the item(s) thus created on the part of the customer is assigned to Thomas Krenn AG on a pro rata valoris basis (invoice value). The customer is to take custody of the (co-)ownership of Thomas Krenn AG free of charge. Goods to which Thomas Krenn AG is entitled to (co-)ownership are to be termed hereinafter goods subject to the retention of title.

4. The customer is entitled to process and sell the goods subject to the retention of title by way of an ordinary and proper business transaction as long as he is not in default. He is not allowed to pledge them or assign them as security. Any claims arising from their resale or based on any other legal grounds (insurance, unlawful action) with regard to the goods subject to the retention of title (including all balance claims arising from the current account) are already to be assigned herewith in full by the customer to Thomas Krenn AG by way of collateral. Thomas Krenn AG grants him the revocable authorisation to collect the receivables assigned to Thomas Krenn AG for his account and in his own name. This authorisation in respect of collection can only be revoked if the customer fails to meet his payment obligations in a proper and orderly manner.

5. In the case of claims being asserted by third parties in respect of the goods subject to the retention of title, the customer is to inform them that the goods concerned are the property of Thomas Krenn AG and to notify the latter of the occurrence without delay. Any costs and damage are payable by the customer.

6. In the case of the customer behaving in violation of the contract - above all in respect of default of payment - the vendor is entitled to withdraw from the contract and demand that the goods subject to the retention of title be handed over.

§ 10 Software

Any software sold is of a standard type. Software is generally excluded from exchange.
 

§ 11 Obligations of the customer in respect of his own data security

Data security is not included in the scope of services provided by Thomas Krenn AG, but instead is the responsibility of the customer, in the absence of any agreement to the contrary. The customer is take the responsibility for securing all data.

Thomas Krenn AG recommends that back-up copies be created where necessary for files, programs, etc. and that all data be additionally secured on external data storage media.

§ 12 Customer’s area of responsibility, further obligations, customer’s duty to provide assistance

1. The customer’s area of responsibility includes the selection of products and their suitability for certain purposes.

2. The customer is obliged to support Thomas Krenn AG as far as possible in its rectification of defects or rendering of services, with particular regard to the notification of necessary information, the preparation of error reports if required, the granting of access to products and the communication of any other information that may be needed for the rendering of services on the part of Thomas Krenn AG relevant to warranty provision and/or any other services required.

3. The customer is to remove all such components as were not installed by Thomas Krenn AG insofar as this is required for the purposes of service rendition in respect of warranty provision and/or any other necessary services.

§ 13 General service, local service

1. General service provision including local services are to be provided by Thomas Krenn AG or by service partners appointed by Thomas Krenn AG. Response times are to be agreed on an approximate basis and may vary in individual cases due to accessibility, product location or the unavailability of spare parts / components, in the event that no fixed response times have been agreed.

2. Local services are to be rendered on the basis of a separate contractual relationship. The contract concerned governs service provision in addition to the guaranteed processing of existing claims. Local service provision is not obliged to be successful. Warranty claims in accordance with § 6 can be asserted simultaneously or subsequently.

3. The scope of local service provision does not encompass such spare parts and components as are not required for the retention of the given product’s functionality such as hinges and cosmetic parts as well as frame and housing parts. Should such services nevertheless be rendered free of charge, then this is done as a goodwill gesture and does not constitute any acknowledgement of legal obligation. The claims and terms relevant to warranty as well as the claims and terms relevant to liability remain unaffected by this.

4. Moreover, the scope of local service provision does not include services for which claims in respect of material damage are excluded in accordance with the above provisions, the replacement of floppy discs, the elimination of any computer viruses on the customer’s premises, configuration work, the replacement of consumables, product location changes, preventive maintenance (servicing), work that is unnecessary for repairing the item(s) concerned, work on the customer’s electrical environment, software and /or data adoption. Should such services nevertheless be rendered free of charge, then this is done as a goodwill gesture and does not constitute any acknowledgement of legal obligation. The claims and terms relevant to warranty as well as the claims and terms relevant to liability remain unaffected by this.

5. Both general services and those rendered locally can be provided via the telephone or via the Internet on a remote basis. The claims and terms relevant to warranty as well as the claims and terms relevant to liability remain unaffected by this.

6. In the event that components / equipment are replaced, Thomas Krenn AG acquires ownership of the components / equipment removed / replaced by way of the act of removal / replacement.

7. The terms and conditions stipulated by the given manufacturer apply exclusively to third-party products.

§ 14 Final provisions

(1) The place of jurisdiction for any disputes arising from the business relationship between Thomas Krenn AG and the customer is either Freyung (Lower Bavaria, Germany) or the court responsible for the customer’s registered office, as Thomas Krenn AG sees fit, in the case of any claims asserted vis-à-vis the customer. As far as claims asserted against Thomas Krenn AG are concerned, Freyung is deemed to be the exclusive place of jurisdiction or Passau, insofar as the regional court is responsible for such cases. Mandatory, statutory requirements in respect of exclusive places of jurisdiction remain unaffected by this provision.

(2) The relations between Thomas Krenn AG and the customer are subject exclusively to the law of the Federal Republic of Germany. The United Nations’ Convention on Contracts Governing the International Sale of Goods dated 11 April 1980 (CISG) does not apply.

(3) Insofar as the contract and these General Terms and Conditions of Business have failed to include certain provisions, then the contracting parties agree to fill the gaps with such legally valid provisions as they would have agreed on taking account of the economic objectives of the contract and the purpose of these General Terms and Conditions of Business, had they known that the provisions concerned were missing.

Important to note:

The customer is aware that Thomas Krenn AG stores data arising from the contractual relationship in accordance with the provisions set out under § 28 German Data Protection Act for the purposes of data processing and reserves the right to forward the data to third parties (e.g. insurance companies) insofar as this is necessary for contract fulfilment purposes.

Up to: 17.07.2008

General terms and conditions agb_eng_12_2008.pdf [1509 KB]

Thomas-Krenn.AG
Speltenbach-Steinäcker 1
94078 Freyung
+49 (0) 8551 9150-0  
+49 8551 9150 55

Passau District Court HRB (Commercial Register) 6790

Company’s registered office: D-94078 Freyung

Managing director: Christoph Maier