General Terms and Conditions of Sale and Delivery
1. general - scope
1.1 The following terms and conditions of sale and delivery apply to all deliveries and services of COLDPLASMATECH GmbH to the Customer. By accepting these conditions without objection, the customer agrees to their exclusive validity. They also apply without special agreement to all future business with the customer.
1.2 We hereby expressly object to any deviating terms and conditions of the customer to the extent that they deviate from these Terms and Conditions of Sale and Delivery to our disadvantage.
1.3 We reserve the right to change our terms and conditions of sale and delivery with effect for all future business relations with the customer at any time after appropriate notice.
2. conclusion of contract, offer documents
2.1 Our offers are always subject to change. Orders shall only be deemed accepted when we have accepted them vis-à-vis the customer by written order confirmation.
2.2 Verbal agreements after conclusion of the contract, in particular subsequent amendments and supplements to our Terms and Conditions of Sale and Delivery as well as collateral agreements of any kind, shall require our confirmation to become effective.
2.3 We reserve all property rights and copyrights to cost estimates, illustrations, calculations and other documents as well as to samples and specimens provided. They may not be made accessible to third parties, even if they are not expressly marked as confidential.
3.1 The delivery and performance periods stated or confirmed by us shall be deemed to be approximate values and shall only be binding if this is expressly agreed. The delivery and performance periods shall commence with the dispatch of the order confirmation, but not before clarification of all technical questions and all details of the execution of the order.
3.2 In the event of force majeure and other unforeseeable circumstances for which we are not responsible - e.g. industrial disputes, operational disruptions, disruptions to the energy supply and the supply of raw materials and materials, transport disruptions, official measures - delivery periods shall be extended to a reasonable extent if we are prevented from fulfilling our obligation in a timely manner. If delivery becomes impossible or unreasonable as a result of the aforementioned circumstances, we shall be released from our delivery obligation. This shall also apply if these events occur during a delay in delivery or at a sub-supplier. In these cases we are not obliged to the customer to
compensation for damages. We shall notify the customer of the impediment to performance and its termination without delay.
3.3 Import, export and/or shipment of our products to other countries may be subject to German, EU and US import or export regulations. The customer shall be solely responsible for obtaining the relevant permits and authorizations
. However, at the customer's request, we will make every reasonable effort to obtain the necessary
commercially reasonable efforts to provide any permits and/or other documents required by the German authorities for the export of the subject matter of the contract.
3.4 Deliveries in cross-border traffic require a separate agreement so that the safety regulations for the respective countries can be complied with. If, as a result, facts subject to value added tax are realized in the territory of the EU (except Germany) from our services, the purchaser of these services shall fulfill the value added tax obligations for us at his own expense.
3.5 We are entitled to make partial deliveries, provided that these are not unreasonable for the customer. We may invoice each partial delivery separately. If we make use of our right to make partial deliveries, packaging and shipping costs shall only be charged once.
4 Shipment, assumption of risk, default of acceptance
4.1 Unless otherwise agreed in writing, shipment shall be "ex works". We reserve the right to specify the factory. We shall arrange for shipment to the customer on the customer's behalf and at the customer's risk. The risk shall pass to the customer as soon as the goods have been handed over to the transport company or have left our factory or warehouse. This shall also apply if we bear the transport costs on the basis of individual agreements.
4.2 We shall not be liable for damages and losses during transport. Damage and loss shall in particular not release the customer from the obligation to pay the purchase price to us in full. Unless the customer has given special shipping instructions, we shall effect shipment by the best means available at our discretion. At the request of the customer, which must be communicated when the order is placed, we will take out transport insurance for the deliveries on his behalf and at his expense.
4.3 A delivery item that has been reported ready for shipment in accordance with the contract must be accepted by the customer without delay. If the shipment is delayed at the customer's instruction or through the customer's fault, we shall be entitled to either ship or store the subject matter of the contract at the customer's expense and risk at our discretion and to invoice the customer after expiration of a grace period of one week.
4.4 We are not obliged to take back faultless goods. If we nevertheless declare ourselves willing to take back faultless goods, we shall be free to charge additional costs for inspection, booking, etc. according to the amount of work involved.
5.1 Unless otherwise agreed in writing, our prices are ex works including normal packaging. The statutory value added tax is not included in our prices, it will be shown separately in the invoice at the statutory rate on the day of invoicing.
5.2 The customer shall bear the shipping costs, which shall be charged separately in the amount incurred.
5.3 Additional costs incurred by us due to subsequent changes to the order will be charged to the client.
5.4 The deduction of a cash discount shall require a special written agreement.
6.1 Our invoices are payable directly to us within the agreed payment period without any deduction. If no payment period has been agreed, payments shall be due within 14 calendar days after the invoice date. Fulfillment of the payment obligation shall occur on the date of receipt of the money by us or our bank. All payments shall be made free of charges and postage for us.
6.2 In the event of default in payment, interest on arrears shall be payable at a rate of 8 percentage points above the base interest rate pursuant to § 247 BGB. This shall not exclude the assertion of further damage caused by default. This shall not affect our customer's right to prove that only minor damage or no damage at all has been incurred.
6.3 Bills of exchange, checks and assignments shall only be accepted by special agreement and on account of payment without any discount guarantee. We may return bills of exchange and checks accepted on account of performance at any time and revert to the original claim, which shall then be due immediately. Discount charges, taxes on bills of exchange, interest on arrears shall be paid by the customer immediately. We shall not be liable for timely presentation, protest, notification and return of the bill of exchange in case of dishonor.
6.4 The customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been acknowledged by us. The customer shall also have no right of retention due to disputed counterclaims.
6.5 If we become aware of circumstances which, in our opinion, give rise to doubts about the creditworthiness of the customer, we shall be entitled to demand security by way of advance payment for outstanding deliveries, setting a deadline of at least one week, and to make payment only concurrently.
7.1 It shall be incumbent upon the customer to inspect the subject matter of the contract at its own expense without delay for freedom from defects, in particular for correctness and completeness, and to notify us without delay in writing of any defects as well as incorrect deliveries or shortfalls in quantity. A preclusive period of one week from receipt of the delivery shall apply to the notification. The customer shall notify us in writing of hidden defects immediately after discovery.
7.2 In the event of any notice of defect, we shall be entitled to inspect and test the delivery item complained about. Upon our request, the customer shall return the rejected product to us at our expense. If a notice of defect by the customer proves to be unjustified, the customer shall be obliged to reimburse us for all expenses incurred in this connection.
7.3 Defects and/or damage caused by force majeure or other external influences, improper handling, incorrect handling, ordinary wear and tear or corrosion are excluded from the warranty. This applies in particular if defects or damage are caused by the fact that the delivered product is not stored, operated or maintained in accordance with the handling method/indication spectrum as per the valid instructions for use.
7.4 Defects and/or damage resulting from the use of spare parts and accessories and/or consumables other than those expressly recommended and approved by us shall also be excluded from the warranty.
7.5 The customer undertakes to familiarize its employees and other third parties who will work with the subject matter of the contract in accordance with its intended use with all operating instructions, manuals and other information for use provided by us and to instruct the aforementioned group of persons accordingly in the handling, use, adjustment, storage, transport and disposal of the subject matter of the contract.
8.1 We shall only be liable for damages to the customer if our liability is based on intent or gross negligence, including the intent or gross negligence of our legal representatives or vicarious agents. Except in cases of intentional breach of duty, our liability shall in any case be limited to the foreseeable, typically occurring damage. We shall be liable in accordance with the statutory provisions for damages suffered by the customer due to a breach of a material contractual obligation and due to the absence of a quality of the item for which we have given a guarantee; in these cases, our liability shall also be limited to the foreseeable, typically occurring damage. In addition, any further liability for damages of the customer is excluded.
8.2 Liability for culpable injury to life, limb or health as well as under the Product Liability Act and other mandatory statutory liability provisions shall remain unaffected by the above exclusions of liability.
8.3 If the customer sells the subject matter of the contract unchanged or after processing, transformation, combination or mixing with other goods, the customer shall indemnify us internally against all product liability claims of third parties, as long as the customer is responsible for the defect giving rise to the liability.
9. retention of title
9.1 The delivered goods shall remain our property (reserved goods) until complete fulfillment of all our claims for payment existing at the time of the respective conclusion of the contract as well as future claims for payment arising from the business relationship with the customer.
9.2 The customer is obligated to treat the reserved goods with care and in accordance with our specifications. The customer shall insure the goods at its own expense against the usual risks, in particular against damage by fire, water and theft, sufficiently at replacement value. If maintenance and inspection work is required, the customer must carry this out at his own expense.
9.3 The customer shall not be entitled to pledge the goods subject to retention of title, to assign them by way of security or to make any other dispositions endangering our ownership. In the event of seizure or confiscation of the reserved goods by third parties, including the assertion of liens such as landlord's liens, and in the event of other impairments of our security rights, we must be notified immediately, enclosing the relevant documents. At the same time, the customer shall inform the third party of our reservation of title. The costs of an intervention by us, insofar as they cannot be obtained from the respective third party, shall be borne by the customer.
9.4 If the customer acquires the reserved goods for the purpose of resale, he shall only be entitled to sell them in the ordinary course of business. If the
reserved goods are not intended for resale, resale is not permitted for the duration of the reservation of title without our prior consent. The resale shall also be inadmissible if the resulting claim is covered by earlier dispositions of the customer in favor of third parties, for example by a
Global Assignment. The claims arising from the sale of goods subject to retention of title are hereby assigned to us in full with effect from the time of their accrual, together with all ancillary and security rights. We hereby accept the assignment. If goods subject to retention of title are sold, the assignment shall be in the amount that we have invoiced the customer for the goods subject to retention of title on a pro rata basis. If the customer sells the goods subject to retention of title together with other goods or after processing, transformation, combination or mixing with other goods, the assignment of claims shall be deemed to be agreed only in the amount of the part corresponding to the price agreed between the customer and us. All assignments shall be made with first priority for us.
9.5 In the event of default in payment by the customer of more than 1 month, cessation of payments by the customer, protest of a check or bill of exchange at the customer's (to the extent that we are in any way beneficiaries of such check or bill of exchange), a successful seizure of goods subject to retention of title or the filing of an application for the opening of insolvency or bankruptcy proceedings, we shall be entitled to claim damages.
court or out-of-court composition proceedings concerning the customer's assets, the customer's right to resell the goods subject to retention of title and the right to collect the claims shall expire. The customer shall inform us immediately of the above events and send us a list of the existing goods subject to retention of title. The reserved goods shall be returned to us immediately upon our request, without prejudice to our other rights. The customer shall grant us immediate access to the reserved goods. If we demand the surrender on the basis of this provision, this shall not be deemed to be a withdrawal from the contract. We shall also be entitled to collect the claims assigned to us. After withdrawal from the contract or after setting a deadline in accordance with § 323 BGB (German Civil Code) and fruitless expiry of the deadline, we shall be entitled to freely dispose of any goods subject to retention of title that have been taken back.
9.6 In the case of deliveries to the territories of other legal systems in which the above retention of title provision does not have the same security effect as in Germany, the customer shall do everything in its power to provide us with equivalent security rights without delay. The customer shall cooperate in all measures which are necessary for the
effectiveness and enforceability of such security interests are necessary and beneficial.
10 Intellectual Property, Third-Party Property Rights
10.1 The customer shall be responsible for ensuring that the materials, documents or other materials provided by it do not infringe the intellectual property or other rights of third parties. The customer shall be obliged to indemnify us against any claims of third parties in this respect.
10.2 If the customer prescribes how the products to be delivered are to be manufactured by means of specific instructions, information, documents, drafts or drawings, the customer shall warrant that the rights of third parties (in particular patents, utility models and other industrial property rights and copyrights) are not infringed thereby. The customer shall indemnify us against all claims asserted against us by third parties on account of such infringement.
11 Applicable law, place of jurisdiction, place of performance
11.1 These Terms and Conditions and the entire legal relationship between us and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany applicable between domestic parties.
11.2 If the customer is a merchant or a legal entity under public law, our place of business shall be the place of jurisdiction. However, we shall also be entitled to sue the customer at the court having jurisdiction for the customer's place of business.
11.3 Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.