All deliveries, performances and offers from the seller shall be carried out solely on the basis of these general terms and conditions. These are part of all contracts that the seller concludes with the buyers regarding the deliveries and performances of our offers.
Terms of business of the buyer or of a third party shall not be applied, even if the seller does not object separately to their validity in a given case. Even if the seller refers to a document that contains or refers to the terms of business of the contractor or a third party, this shall not be regarded as agreement with the application of such terms of business.
Offer and conclusion of the contract
All offers by the seller are without engagement and non-binding unless they are expressly designated as binding. The seller may accept orders without fourteen days after receipt. The date on which our acceptance is received by the buyer shall be relevant for compliance with the time limit.
The concluded contract of sale and purchase, including these general terms and conditions, shall be solely relevant for the legal relationships between the seller and the buyer. This shall reproduce all agreements between the parties to the contract regarding the object of the contract.
Prices and payment
All dealer purchase prices shall apply to the scope of delivery and services listed in the acceptances of orders. Extra or special services shall be invoiced separately. Prices are understood in euros plus freight and packaging, VAT and any COD fees that may be due.
All end consumer prices shall apply to the scope of delivery and services listed in the acceptances of orders. Extra or special services shall be invoiced separately. Prices are understood in euros including VAT but not including freight and packaging.
Insofar as the agreed prices are based on the seller’s list prices and the delivery is not to take place until more than four months after conclusion of the contract, the seller’s list prices valid on delivery shall apply. This shall not apply if the buyer is a consumer.
Payments shall be made exclusively by COD, PayPal or in advance. The costs of advance payments shall be for the buyer’s account. If payment is made via PayPal or in advance, the goods shall not be shipped until after a check of the receipt on the payment in one of the company accounts.
The buyer may only set off own claims against our claims if the counterclaims are not disputed or have been determined without further legal recourse.
Delivery and delivery period
Unless a firm period or a firm date has been fixed in writing, our deliveries shall be carried out as quickly as possible.
If we fail to comply with an agreed delivery date, the buyer shall set a suitable period of grace that may not be less than two weeks in any case.
Place of performance, shipping, transfer of risk
Unless otherwise agreed, the place of performance for obligations under the contractual relationship is Theres-Obertheres.
Shipping shall by via UPS, standard mail or DHL.
The risk shall be transferred to the buyer at the latest when the delivery item is handed to the carrier, freight forwarder or other third party designated to carry out the shipment (whereby the start of the loading procedure shall be relevant). If the shipping or handover is delayed because of circumstances for which the buyer is responsible, the risk shall be transferred to the customer on the day on which the delivery item is ready for shipment and the buyer has notified the buyer of this. If the buyer is a consumer, the risk of accidental destruction of, accidental damage to or the accident loss of the delivered goods shall pass to the buyer when the item is delivered to the buyer or the buyer is in default of acceptance.
Storage costs after the transfer of risk shall be for the buyer’s account. On storage by the seller the storage costs shall amount to 0.5% of the invoice amount of the delivery items for each complete week. The right to claim and show proof of additional or lower storage costs is reserved.
The seller will insure the shipment against theft, damage through breakage, transport, fire and water damage or other insurable risks only at the express request of the buyer and for his account.
Patents, utility model protection, trade marks, TÜV reports, EC type-approval
All important damping devices, muffler or adjuster elements for use in an exhaust port (muffler or adjuster systems) that we use are patented by and for KESSTECH GmbH or are registered throughout Europe or worldwide as utility models.
TÜV technical component reports and EC type-approvals are the property of the respective applicant.
Complaints and exchange
There is no legal right to the exchange of goods that are free of defects.
We will only process complaints with the original packaging and invoice. They must be submitted in writing. Products that have pressure points caused by exhaust clamps on mufflers and manifolds, or scratches, dents or other damage are excluded from exchange and return. The exhaust must not have been used for test runs with the vehicle.
Electrical and electronic parts of all kinds are excluded from any exchange that has to be granted. Any exchange that has to be granted is excluded here as well.
If a delivered item has a material defect, the buyer may demand from us at first remedy of the defect or delivery of an item free of defects. If the buyer is an entrepreneur, we may choose between remedy of the defect or delivery of an item free of defects. The option may be exercised in written form (including by fax or email) to the buyer within five working days after notification of the defect.
If the subsequent performance in accordance with section 8.1. is unsuccessful or is inacceptable for the buyer, the buyer is entitled in accordance with the applicable law to withdraw from the contract, to reduce the purchase price or to demand damages or reimbursement of his unsuccessful expenditures.
The guarantee period is four years from delivery.
If the buyer is an entrepreneur, the delivered items shall be inspected carefully without delay after delivery to the buyer or a third party it designates. They are regarded as approved if the seller does not receive a written notification of defect with regard to obvious defects or other defects that were detectable on an immediate careful inspection within seven working days after delivery of the delivery item, or otherwise within seven working days after detection of the defect, or an earlier time at which the defect was detectable by the buyer during normal use without a detailed inspection. The delivery item that is the subject of the complaint shall be returned to the seller on demand carriage-paid.
In case of default of delivery our liability for negligence (excluding gross negligence) shall be limited to an amount of 10 per cent of the respective sales price including VAT.
We shall not be liable (for any legal reason whatsoever) for damage (including third-party damage) that could not typically be expected with regard to the type of the respective order and the goods and with normal use of the goods. This applies in particular for the following cases:
Non-compliance with installation or attachment and other information (Observe installation manual).
Incorrect, unworkmanlike installation or attachment of the parts we delivered. The buyer shall in particular check whether parts of the series motorcycle are required for the installation or attachment and where applicable check that these are present and are not defective or damaged.
The exhaust systems are always developed, constructed, designed and homologated to the delivery condition of the original vehicle. KESSTECH GmbH cannot evaluate whether the installation of further accessory parts together with a KESSTECH exhaust system is possible and still legal and therefore assumes no warranty or liability. Our Technical Support will be happy to answer any question.
In particular, liability is generally excluded if the vehicle has received "tuning" or if the fuel-air mixture has been influenced, for example by a modified air filter.
In addition, we do not assume any liability for material properties. With TÜV-tested exhaust systems that are tampered with or were subject to alterations we do not assume any liability for the resulting damage. In addition to this we do not assume any liability for tampering in any form whatsoever with our exhaust systems, damper systems or with our motorcycle air filter panels, or with our motor car applied load reports, springs or rims.
The above-mentioned limitations of liability shall not apply to intention and gross negligence. This applies as well in case of actions by simple vicarious agents.
Insofar as we provide technical information or give advice and this information or advice is not part of the contractually agreed scope of service that we owe, this is done without payment and to the exclusion of all liability.
The limitations of liability in this section 8 shall not apply to our liability for warranted properties as defined in §444 German Civil Code (BGB), for injuries to life, limb and health, or in accordance with the Product Liability Act.
Exhaust systems with TÜV technical component reports or EC type-approval that we supply are always delivered, or installed in our company, with the parts of the parts lists as described in the technical component report or the EC type-approval.
Our exhaust systems with EC type-approval can only comply with the legal requirements if the vehicles in which our exhausts and exhaust systems are installed are also in a condition that complies with the legal requirements of the vehicle manufacturer, at least the parts relevant to exhaust gases and noise (e.g. OE catalysers, OE exhaust and air filter flaps, camshafts, ignition, air filter insert and air filter case, lambda sensors, etc.). If original parts that are relevant parts are no longer found on the vehicle, we can no longer guarantee the law conformity of our exhaust systems.
Extended retention of title
KESSTECH GmbH retains title to the delivery item until receipt of all payments under the delivery contract.
If the buyer is a merchant, this shall apply with regard to all payments from the other business relationship with the buyer and covers retention of title to the recognised balance, insofar as KESSTECH GmbH books accounts receivable from the buyer in the current account (all monies clause).
If the buyer of an item subject to retention of title places the claim from a resale of the delivery item into a mutual account relationship existing with its buyer, the current account claim shall be assigned in the amount of the balance owed. This shall apply analogously for the causal balance in the event of insolvency of the conditional buyer.
In the event of conduct by the buyer in contravention of the contract, in particular with default of payment, KESSTECH GmbH shall be entitled, after setting a suitable time limit, to take back the delivery item; the buyer shall be obliged to surrender the item. Taking back the delivery item by KESSTECH GmbH shall always mean withdrawal from the contract.
Attachment of the delivery item shall also always be withdrawal from the contract. In case of attachments or other interventions by third parties the buyer shall inform KESSTECH GmbH without delay in writing so that the latter can take legal action in accordance with §771 Civil Procedure Rules (ZPO). If the third party is unable to reimburse KESSTECH GmbH the court and extra-judicial costs of an action in accordance with §771 ZPO, the buyer shall be liable for the loss suffered by KESSTECH GmbH.
The buyer shall be obliged to insure the delivery item appropriately at its own cost against theft, breakage, fire and water damage as long as the delivery item has not been paid for in full and title has not yet passed in full to the buyer.
The buyer shall be entitled to sell the delivery item in the normal course of business. However, it hereby assigns to KESSTECH GmbH all claims in the amount of the final invoice amount (including VAT) that accrue to it from the resale against its buyer or a third party, namely regardless of whether the delivery item is resold without or after processing. The buyer shall be entitled to collect this debt even after it is assigned. This shall not affect the authority of KESSTECH GmbH to collect the debt itself. However, KESSTECH GmbH undertakes not to collect the debt as long as the buyer duly complies with its payment obligations and is not in default of payment. If this is in fact the case, KESSTECH GmbH may demand that the buyer notifies KESSTECH GmbH of the assigned claims and their debtors, provides all the information required for their collection, hands over the associated documents and informs the debtors (third parties) of the assignment.
Processing or converting the delivery item shall always be done for KESSTECH GmbH. If the delivery item is processed with other items that do not belong to KESSTECH GmbH, the latter shall acquire co-ownership of the new item in the ratio of the value of the delivery item to the other processed items at the time of processing. For the rest, the provisions regarding reserved goods shall apply analogously to the item created through processing.
If the delivery item is connected or mixed inseparably with other items that do not belong to KESSTECH GmbH, the latter shall acquire co-ownership of the new item in the ratio of the value of the delivery item to the connected or mixed items at the time of the connecting or mixing. If the connecting or mixing is carried out in such a way that the buyer’s item is to be regarded as the main item, it is deemed to be agreed that the buyer assigns co-ownership to KESSTECH GmbH pro rate. The buyer shall safeguard the sole ownership or co-ownership for KESSTECH GmbH.
The buyer also assign claims to KESSTECH GmbH for securing the KESSTECH GmbH’s claims against it that accrue to it against a third party through the connection of the delivery item with a property.
KESSTECH GmbH shall be obliged at the buyer’s request to release sureties to which it is entitled insofar as their value exceeds the claims that are to be secured, insofar as these have not been settled, by more than 10%.
Contractual penalty If there is a breach of Art. 6 a) and/or b) in any way whatsoever, in particular through the use of one or more of our brands or trade marks, through recreating one or more of our exhaust systems, or through recreating one or more of our own developed adapters to interference systems, or by commissioning a third party to recreate our exhaust systems, or by interfering with, changing, reproducing our patented mufflers, parts, approval numbers or markings of the exhaust systems, EC type-approvals or TÜV technical component reports, or by recreating our adapters or interference tubes, the buyer shall be obliged to pay a contractual penalty in the amount of EUR 100,000 without KESSTECH GmbH providing proof. Claims for damages (without setting off the contractual penalty) are reserved.
If the buyer is a merchant as defined in §1(1) German Commercial Code (HGB), a legal entity under public law or special assets under public law, the courts at the seller’s registered office shall have sole jurisdiction for all disputes arising from or in connection with the contractual relationship concerned. This rule shall not affect mandatory statutory provisions on exclusive jurisdictions. In all other cases we or the buyer may institute proceedings before any court with jurisdiction based on statutory regulations.
The relationship between the seller and the buyer shall be governed solely by the law of the Federal Republic of Germany. The United Nations Convention on the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
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