General delivery and payment conditions
(Conditions of sale)
1 General - scope of application
1. We act as manufacturers, resellers and intermediaries. These General Terms and Conditions of Delivery and Payment (Terms and Conditions of Sale) shall apply to companies (§ 14 BGB), legal entities under public law and/or a special fund under public law (Customers) and shall also apply to future transactions with the Customer within the framework of an ongoing business relationship (permanent delivery relationship).
2. Our terms and conditions of sale shall apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale unless we have expressly agreed to their validity in writing. Our terms and conditions of sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions are contrary to or deviate from our terms and conditions of sale.
3. Agreements made between us and the customer for the purpose of executing a conclusion (contract) are confirmed in writing. The written form is also maintained by transmission by fax or e-mail.
4. Verbal agreements, promises, assurances and guarantees made by our employees and other auxiliary persons in connection with the conclusion or amendment of the contract shall only become binding upon our written confirmation. The written form is also maintained by transmission by fax or e-mail.
5. A guarantee is only granted for 6 months. The guarantee includes only the exchange of the goods, but no further costs arising from reworking etc., unless expressly agreed in writing.
§ 2 Offer- offer documents
1. If the order is to be qualified as an offer in accordance with § 145 BGB, we can accept the order within a reasonable period of time in individual cases, however, at least 2 weeks.
2. We reserve the right of ownership and copyright to illustrations, drawings, calculations and other documents. This also applies to such written documents that are designated as "confidential". The customer requires our express written consent before passing them on to third parties.
3. Our offers are revocable until their acceptance.
§ 3 Prices - terms of payment
1. Unless otherwise agreed or stated in the order confirmation, our prices are "ex works (Incoterms 2000)".
2. The statutory value added tax is not included in our prices; it is shown separately on the invoice at the statutory rate on the day of invoicing.
3. The deduction of a discount requires a special written agreement.
4. Unless otherwise agreed or otherwise stated in the order confirmation, the purchase price shall be due for payment net without deduction within 30 days of the invoice date and shall be paid in such a way that we can dispose of the amount on the due date. The customer shall bear the costs and expenses of payment transactions. The legal regulations concerning the consequences of default of payment shall apply.
5. The customer is only entitled to offsetting rights if his counterclaims have been legally established, are undisputed or have been recognised by us. The customer is entitled to exercise rights of retention (§§ 273, 320 BGB) insofar as his counterclaim is based on the same contractual relationship or if his counterclaim has been legally established, is undisputed or has been recognised by us.
§ 4 Delivery - delivery time
1. Our delivery obligation is subject to timely and correct supply to ourselves, in the case of import transactions also subject to timely receipt of the necessary import and export documents (e.g. monitoring documents, export and import permits).
2. Compliance with our delivery obligation further presupposes the timely and proper fulfilment of the customer's obligations. We reserve the right to plead non-performance of the contract (§ 320 BGB) and any rights of retention (§ 273 BGB). Within the scope of contracts with continuous delivery (continuous delivery relationships), we may refuse to deliver the goods if our counterclaim for payment or our due payment claims against the customer from deliveries already made are not met (i.e. if the customer is in default with payment claims under the continuous delivery relationship) or if the counterclaim for payment or the due payment claims are endangered by the customer's lack of ability to pay which becomes apparent after conclusion of the contract.
3. delivery times are agreed individually. The observance of the delivery time presupposes that the order is completely clarified, all possibly necessary permissions are given and we have all documents and information to be provided by the customer, including the provision of possibly agreed letters of credit, payment guarantees, securities, deposits or down payments.
4. In the case of continuous delivery relationships, we are to be given call-offs and classification of types for approximately the same monthly quantity; if the call-off or classification of types is not made or not made in time, we are entitled to make the determination at our reasonable discretion.
5. If the customer is in default of acceptance or culpably violates other obligations to cooperate (main or secondary contractual obligations), we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to make further claims.
6. If the conditions of paragraph (5) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
7. Events of force majeure entitle us to postpone the delivery for the duration of the hindrance and a reasonable start-up time. This also applies if such events occur during an existing delay. Currency, trade policy and other sovereign measures, strikes, lock-outs, obstruction of traffic routes, delay in import/customs clearance and all other circumstances which, through no fault of our own, make delivery significantly more difficult or impossible shall be deemed equivalent to force majeure. It is irrelevant whether these circumstances occur at our premises, at the supplier's works or at the premises of a sub-supplier. If, as a result of the aforementioned events, the execution of the contract becomes unreasonable for one of the contracting parties, in particular because the execution of the contract is delayed in essential parts by more than 12 months, this party may demand the cancellation of the contract. If, during the period of the hindrance, our purchasing and/or transport and/or handling costs (acquisition costs) change by more than 20% compared to the time of conclusion of the contract, we shall be entitled to make a reasonable price adjustment at our reasonable discretion.
§ 5 Transfer of risk - packaging costs - quantities/tolerances
1. Unless otherwise agreed or otherwise stated in the order confirmation, delivery shall be "ex works (Incoterms 2000)".
2. If packaging for the goods to be delivered is customary in the trade and appropriate, they will be packed accordingly in the form customary for the products. Any packaging beyond the purpose of transport or other special protection, e.g. for longer-term storage or safekeeping, requires an express agreement. Unless otherwise expressly agreed, the customer shall bear the costs incurred for this packaging and other protective measures.
3. Separate agreements shall apply to the return of packaging. We are not responsible for any costs incurred for the return shipment or disposal of packaging material.
4. If the customer so wishes, we will cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer, unless expressly agreed otherwise.
5. We are expressly entitled to deliver partial quantities to a reasonable extent - especially in the case of continuous delivery relationships. Overdeliveries or underdeliveries of the contractually agreed delivery quantity are permissible within the scope of the usual industrial standards. The indication of an "approximate" quantity entitles us to over- or under-deliveries of up to 10 %.
6. Unless otherwise agreed or otherwise stated in the order confirmation, the risk, including the risk of possible loss of the goods, shall pass to the Customer upon handover of the goods to the forwarding agent or carrier, but no later than when the goods leave the supplying factory or - if a supplying factory is not stated in the order confirmation - our warehouse; this shall also apply in the event of a contractual agreement on delivery of the goods free of freight charges (e.g. "free domicile" or "carriage paid") to the contractually agreed destination.
§ 6 Description of the object of purchase - liability for defects - compensation
1. It is up to the customer to describe details and specifications of the object of purchase (such as certain grades, qualities, deviations from any standards) completely, clearly and correctly; incomplete or unclear information is at his expense.
2. A liability for a certain grade, quality or for a certain purpose or suitability is only accepted insofar as this is expressly agreed. The assumption of a guarantee as to quality, durability or other guarantees requires express written agreement; the contents of any agreed specification or any expressly stated purpose of use shall not constitute a corresponding guarantee without express written agreement. Even if we agree to provide factory certificates, declarations of conformity, test certificates or similar documents (accompanying documents), this does not constitute a guarantee or liability without a special express written agreement.
3. In the event of a defect in a product manufactured by CVEP GmbH, which results in a recall action and is initiated by the customer or the authorities, the customer of CVEP is obliged to inform its contractual partners/customers that the article in question is to be replaced or repaired and to arrange/organise the replacement. CVEP GmbH is obliged to replace the article free of charge and to deliver the article to the customer within the legal warranty period in order to ensure a smooth exchange of the article. CVEP is only liable for the costs of the recall action within the legal framework. Outside the warranty, the customer bears the costs by placing a new order. The customer shall also bear the costs of the recall action outside the warranty. CVEP supports the customer with all the necessary information in the course of the recall action, such as batch limitation of the error, etc.
4. The customer's claims for defects require that the customer has properly and immediately fulfilled its obligations to examine the goods and make a complaint. The Customer's obligations to inspect and give notice of defects shall not be affected by the attachment or handing out of accompanying documents or by the resale of the delivered goods by the Customer. Warranty claims are excluded if and insofar as the customer does not fulfil his obligation to carry out an inspection without delay in the ordinary course of business. In the case of larger deliveries of goods, random samples are to be taken to a meaningful extent. We must be notified immediately of any defects discovered (notice of defects), but in the case of hidden defects at the latest within two weeks of discovery of the defect, and in the case of all other defects at the latest within two weeks of delivery of the goods. The notification of defects must specify the type of defect or deviation, as well as the respective individual delivery (if possible, stating the date of delivery) and the article description so that we can identify the goods complained about and the delivery. In the case of defects which only become apparent at a customer's customer's premises despite the performance of an inspection which is feasible in the normal course of business, additional information must be provided on the date of the onward delivery and the type of defect notification by the customer. Upon request, the rejected goods or a sample thereof shall be made available to us at our expense. In the event of unjustified complaints, we reserve the right to charge the customer for freight and handling costs as well as the inspection costs (e.g. expert costs, laboratory costs).
5. In the event of a breach of essential contractual obligations, we shall be liable for slight and gross negligence and for intent; in the event of a breach of insignificant contractual obligations, we shall only be liable for intent and gross negligence; in this case, we shall be liable for the fault of our representatives or vicarious agents as for our own fault. Except in the case of intentional breach of duty, our liability is limited to the foreseeable, typically occurring damage; in the case of any damage caused by delay (damage caused by default), our liability is also limited to the value of the goods (net sales price) of the goods concerned.
6. Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
7. Unless otherwise regulated above, liability is excluded.
8. The period of limitation for claims for defects (also for hidden defects) is 1 year, calculated from delivery of the goods.
§ 7 Joint and several liability
1. Any further liability for damages other than that provided for in § 6 is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or claims in tort for compensation for property damage in accordance with § 823 BGB.
2. The limitation according to paragraph (1) shall also apply if the customer demands compensation for useless expenses instead of a claim for compensation for the damage instead of performance.
3. Insofar as liability for damages against us is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
§ 8 Retention of title
1.We reserve the right of ownership of the purchased goods until receipt of all payments from the delivery contract. If the customer acts in breach of contract, in particular in case of default of payment, we are entitled to take back the object of sale. The taking back of the object of sale by us shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to sell it; the proceeds of the sale shall be set off against the customer's liabilities - less reasonable costs of sale.
2. The customer is obliged to treat the object of sale with care; in particular, he is obliged to insure it sufficiently at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is necessary, the customer must carry this out in good time at his own expense.
3. In the event of seizure or other interventions by third parties, the customer must inform us immediately in writing so that we can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
4. The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including value added tax) of our claim, which accrue to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. If there is a current account relationship or a current invoice between the customer and his buyers, into which the claims from the resale of the object of sale delivered by us are entered, the aforementioned assignment to claims existing in favour of the customer shall continue to the current account balance (up to the total amount of the claims from the resale originally entered into the current account).
5. The Customer shall remain authorised to collect the claims from the resale or to the current account balance even after the assignment. Our authority to collect these claims ourselves remains unaffected by this. We undertake, however, not to collect the claims as long as the customer meets his payment obligations from the proceeds received, does not fall into arrears and, in particular, no application for the opening of composition or insolvency proceedings has been made or payments have been suspended. However, if this is the case, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
6. The processing or transformation of the purchased goods by the customer is always carried out for us. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount including VAT) to the other processed objects at the time of processing. For the rest, the same shall apply to the object resulting from processing as to the object of sale delivered under reservation of title.
7. If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount including VAT) to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it is deemed to be agreed that the customer transfers proportional co-ownership to us. The customer shall hold the sole ownership or co-ownership thus created in safekeeping for us.
8. To secure our claims against him (the customer), the customer also assigns to us the claims which accrue to him (the customer) against a third party through the connection of the object of sale with a property.
9. We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is at our discretion.
10. If the purchased goods are taken abroad before they are fully paid for, the customer is obliged to inform us of this immediately, stating the country, and to cooperate at our request in the ordering and, if necessary, registration of comparable foreign security rights (e.g. liens/mobiliary mortgages, transfer of claims from the resale of the goods subject to retention of title); we are entitled to disclose and notify third parties of our retention of title security, including the assignment of claims.
§ 9 Export to EU Member States
In the case of cross-border deliveries within the EU, the customer must inform us of his VAT identification number, under which he will be taxed on income within the EU, before delivery. Otherwise, he must pay for our deliveries, in addition to the agreed purchase price, the VAT amount legally owed by us. The legal requirements for tax exemption of the delivery remain unaffected
§ 10 Place of jurisdiction - place of performance
2. The law of the Federal Republic of Germany shall apply to the entire supply relationship with the customer - and as far as legally possible including any non-contractual obligations; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.
3. Place of performance is Hallerndorf/Germany
* BGB = the German civil cod