General terms and conditions
General Terms and Conditions of CNS GMBH (haftungsbeschränkt), 14548 Schwielowsee for use in business transactions with contractors (as of March 1, 2012)
1. scope of application, written form
1) Our deliveries, services and offers are made exclusively on the basis of these terms and conditions. These shall also apply to all future contract conclusions, even if they are not expressly agreed again. We object to any terms and conditions of business of our customers; they shall not apply.
(2) All agreements in connection with the conclusion, an amendment or modification of the contract are only effective if they are confirmed by us in writing or by e-mail. Our representatives or travelers are not authorized to make legally effective declarations.
(3) Notifications and declarations to us, in particular reminders, notifications of defects and notices of termination, must be made in writing.
2. offers and conclusion of contracts, assignment
(1) Offers made by our company are always subject to change and non-binding, unless they are expressly marked as a binding offer. This shall also apply if we have provided the customer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form.
(2) A contract with us shall only be concluded if an order placed with us is accepted by us within a period of two weeks by sending an order confirmation by mail or e-mail or if the service ordered is provided. If the offer is submitted in writing, this period shall commence on the date of issue stated in the offer.
(3) Cost estimates are non-binding and subject to a charge.
(4) Documents such as catalogs, illustrations, drawings, weight specifications, cost estimates, technical documentation (e.g. drawings, plans, invoices, calculations, references to DIN standards) or other product descriptions – also in electronic form – do not contain guarantees within the meaning of § 443 of the German Civil Code (BGB), but descriptions of performance.
(5) We expressly reserve the right to the rights set forth in sec. 2 para. 3. The Supplier shall retain all intellectual property rights and copyrights in the documents referred to above. In particular, the customer is not entitled to duplicate, process or make available to third parties these documents or to use or exploit them in any other way that is contrary to our interests without our prior express written consent.
(6) The assignment of rights of the customer arising from the contracts concluded with us shall require our express consent.
3. prices
(1) All prices are EXW (ex works) 14548 Schwielowsee, in accordance with INCOTERMS 2010, ICC Publication No. 715 ED.
(2) Unless otherwise stated in our order confirmations, our list prices shall apply. Prices without a currency designation are always in EURO, otherwise in the indicated currency and in each case plus VAT at the statutory rate applicable on the day of delivery or other provision of services, insofar as such tax is payable. Furthermore, all taxes, customs duties or charges as well as consular or legalization fees, which may also be levied under a law other than German law, must be added. Commercial packing is included in the price. Special packaging requested by the customer will be charged separately. Insurance, shipping and transport are at the expense of the customer.
(3) Unless otherwise agreed, we shall be entitled to increase prices for contracts with a term of more than 12 months in accordance with cost increases due to collective agreements, material price increases, increases in insurance premiums or vehicle operating costs and in the event of changes to or the introduction of statutory taxes or duties. The same shall apply if, in the case of contracts for a one-off exchange of services, our performance is delayed by more than four months for reasons for which the customer is responsible. If the increase is more than 5% of the agreed price, the customer has the right to terminate or withdraw from the contract.
4. delivery and execution conditions and deadlines, partial services
(1) Delivery dates and delivery periods must be expressly agreed and otherwise do not exist as such in principle. Estimated delivery dates stated by us are not binding.
(2) Our deliveries are made EXW (ex works) according to. the amounts due according to sec. 3 par. 1 applicable INCOTERMS. We pack the goods according to customary standards and select the packaging of the goods excluding any liability.
(3) Compliance with binding delivery dates and deadlines shall be determined by the date of notification of readiness for shipment of the delivery item (EXW (ex works) pursuant to. the amounts due according to sec. 3 par. 1 applicable INCOTERMS).
(4) In the event that the agreed delivery and performance deadlines (performance deadlines) are exceeded, the customer shall only be entitled to withdraw from the contract if it has requested us to perform by setting a grace period of at least two weeks.
(5) If the delay in performance is due to an extraordinary event which we were unable to prevent even by exercising reasonable care, the agreed performance period shall be extended by the duration of the impediment plus the period for which the impediment occurred. a start-up period that is reasonable in the individual case. We may only invoke a reasonable extension of the performance period if we have notified the customer of our impediment in writing without delay. However, an extension of the agreed performance period shall not occur if this is unreasonable for the customer. In this case, the customer has the right to withdraw from the contract under the conditions of paragraph (4). Extraordinary events also include industrial action, unforeseeable disruptions in our operating facilities, machinery, energy and material supply, etc., and in particular cases in which we are not supplied on time by a sub-supplier despite concluding a congruent hedging transaction.
(6) If, as a result of an extraordinary event within the meaning of Para. 5 or if performance is impossible or unreasonable for other reasons for which we are not responsible, we shall be entitled to withdraw from the contract by means of a written declaration, provided that we have notified the customer of the hindrance in writing without delay.
(7) We reserve the right to deliver the ordered goods in partial deliveries and to perform commissioned work in partial services, insofar as this is reasonable for the customer. We are entitled to issue partial invoices for partial services.
5. payment, default, set-off
(1) Unless otherwise agreed or stated in our order confirmation, all payments by the customer shall be made at the German domicile of CNS and our claim for payment shall become due upon receipt of our invoice. All payments must be received by us without deduction by the 15th of the month following the invoice date. Upon expiration of this day, the customer is automatically in default. We charge interest on arrears at the statutory rate as well as 5.00 euros for each reminder. However, we shall be entitled to claim higher damages caused by the delay.
(2) Even if the customer has stipulated otherwise, we shall be entitled to make payments in accordance with the terms of the contract. §§ 367 para. 1, 366 par. 2 BGB (German Civil Code).
(3) Bills of exchange or checks shall only be accepted on account of performance. The customer shall bear discount and bill charges as well as other bank charges. If a bill of exchange or check is not honored on time or if the preconditions for a risk to the claim arise, we shall be entitled to make the entire basic claim due immediately or to assert it, irrespective of current checks or bills of exchange.
(4) The customer shall only be entitled to set-off or retention if the counterclaims have been legally established, have been acknowledged by us or are undisputed.
(5) If the customer is in default of payment in the case of continuing obligations, our obligation to perform together with liability shall be suspended until we have received the amount in arrears, without the customer being released from payment for the term of the contract or from the contract at all.
6. transfer of risk, storage fees
(1) The risk of accidental loss or accidental deterioration of our performance(s) and/or the delivery item shall pass to the Customer in accordance with the EXW (ex works) provision pursuant to §§ 3 and 4 of the German Civil Code (BGB). the amounts due according to sec. 3 par. 1 and, insofar as the goods are not delivered to our business premises, at the time of handover (also to a transport person) or, if the customer is in default of acceptance, at the time of our offer of handover to the customer.
(2) If the delivery of an item ready for shipment is postponed by more than one month at the request of the customer, we shall be entitled to charge the customer storage fees in the amount of 0.5% of the invoice amount of the delivery item concerned for each month or part thereof.
7. claim risk
If there is a significant deterioration in the financial circumstances of the customer which endangers our claims, or if it emerges that insolvency proceedings have been instituted against the customer’s assets in the three years prior to the conclusion of the contract or have been dismissed for lack of assets, or that the customer has submitted an affidavit of his financial circumstances or that an arrest warrant has been issued for this purpose, we shall be entitled to demand advance payment or the provision of security by way of bank guarantee from the customer. If the customer does not comply with our request within a reasonable period of time, we are entitled to withdraw from the contract by written declaration or, in the case of continuing obligations, to terminate the contract. Further legal claims remain unaffected.
8. liability for freedom from defects
(1) In order to maintain its warranty claims, the customer shall inspect the delivery items supplied by us for their proper condition immediately upon receipt of the goods. Warranty claims are excluded if they are not asserted in writing within 10 days after receipt of the goods, stating the delivery bill and invoice number as well as a description of the defect complained about. Defects that are not obvious must be reported in writing immediately after their discovery; the burden of proof for the concealment of the defects shall be borne by the customer.
(2) We shall only be liable under the warranty for defects which are not due to natural wear and tear and which impair the usability of the performance not only insignificantly. Any warranty shall lapse if the customer himself or through third parties has carried out work on the goods without our consent or if our installation conditions, operating and maintenance instructions, in particular with regard to the intended use of the delivery item recommended by us in each case and the associated combination of the delivery item of a purpose-specific selection of products, have not been complied with and the defect is based on this.
(3) Insofar as a delivery item is defective, we shall be entitled, at our discretion, to make a replacement delivery or to remedy the defect.
(4) The sale of used items takes place under exclusion of any warranty. This shall not apply to damages resulting from injury to life, body or health, in the event of an intentional or grossly negligent breach of duty or in the event of a culpable breach of a material contractual obligation by us. Furthermore, this shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the used item. Possible claims of the customer from § 479 BGB remain unaffected.
(5) If we provide services in the search for or elimination of defects without being obligated to do so or without a defect being demonstrable or attributable to us, we may demand remuneration for this in accordance with our list prices (Section 3).
(6) The customer shall support us to an appropriate extent in the analysis of defects and the elimination of defects. For this purpose, the customer shall grant us access to its facilities after prior agreement. The elimination of a defect shall also be deemed to have taken place if we show the customer reasonable solutions to avoid the effects of the defect. The elimination of defects can be carried out at the customer’s site, at our business premises or by remote maintenance, at our discretion.
(7) Only if the rectification of defects/replacement delivery fails twice, is refused or does not take place within a reasonable period of time set by us, the customer shall be entitled, at its option, to withdraw from the contract or to demand a corresponding reduction of the purchase price. Claims for damages by the customer against us on account of the defect shall only exist within the scope of Section 9 of these Terms and Conditions.
(8) The warranty period for rectification of defects, replacement delivery, withdrawal and reduction is one year, calculated from the transfer of risk. The warranty period for claims for damages due to the defect is two years if the defect is due to an intentional or grossly negligent breach of duty or has led to injury to life, limb or health, otherwise one year calculated from the transfer of risk.
9. liability for damages
(1) Unless otherwise stipulated in these Terms and Conditions, we shall be liable for damages only in the event of intent and gross negligence, unless a material contractual obligation for the performance of the contract (cardinal obligation) has been breached. In the event of merely simple negligence, we shall in any case only be liable for the foreseeable damage typical for the contract.
(2) Liability for personal injury shall remain unaffected, as shall liability under mandatory statutory provisions, in particular under the Product Liability Act.
(3) We shall not assume any liability for personal injury and property damage due to modifications to the delivery item made by the customer or a third party after delivery without our written consent. Furthermore, we shall not be liable for personal injury and property damage if the delivery item is placed in a location that is not protected against access by children and unauthorized persons. The customer shall indemnify us with regard to any third-party liability claims.
(4) The above limitation of liability in para. 1 to 4 shall also apply in the event of the fault of one of our employees, workers, staff, representatives and vicarious agents.
10. withdrawal from the contract
If one of the contracting parties fails to perform its obligations or fails to perform them in accordance with the contract (default, impossibility, breach of ancillary contractual obligations), the other contracting party may withdraw from the contract if the breach of obligation has not been remedied within a reasonable period of time to be set. In the event of defectiveness, the provisions of Clause 8 para. 6.
11. termination of continuing obligations
(1) Unless otherwise agreed, contracts for continuing obligations are concluded for a period of two years. The contract shall be extended beyond the aforementioned or the agreed period for a further year in each case if it is not terminated in writing with three months’ notice to the end of the respective period.
(2) In case of relocation of the customer as well as in case of sale or other abandonment of the contractual object, the customer may terminate continuing obligations extraordinarily with a notice period of three months.
(3) Continuing obligations may be terminated by either contracting party without notice for good cause if
a) insolvency proceedings are opened against the assets of the other contracting party
or the opening is rejected by a final court decision for lack of assets;
b) one of the contracting parties fails to perform or fails to perform in accordance with the contract (default, impossibility, defectiveness, breach of ancillary contractual obligations) and the breach of duty is not remedied or is repeated despite a warning;
c) other important circumstances arise which disrupt the contractual relationship to such an extent that the contractual partner can no longer be expected to adhere to the contract in good faith. In addition, we are entitled to terminate the contract without notice for good cause if the customer is in arrears with two monthly installments for regular monthly payments.
12. retention of title, transfer of ownership by way of security
(1) The delivered items shall remain our property until the purchase price claim has been fulfilled. The pledging or transfer by way of security of the delivery item by the customer is not permitted until payment has been made.
(2) If our delivery item is processed, the processing shall be carried out for us. If the customer processes, combines or mixes the delivered item with other items, we shall be entitled to co-ownership of the new item on a pro rata basis.
(3) If the object delivered under reservation of title is sold by the customer, irrespective of its condition, the customer hereby assigns to us the claims arising for it from the sale, including claims from bills of exchange or checks issued for this purpose against its customer or third parties, together with all ancillary rights; we accept the assignment. We authorize the customer to collect the claims assigned to us for our account in his own name. If the customer is in default of payment of our claims in whole or in part for more than two weeks or if the conditions for endangering the claim exist, we shall be entitled to revoke the direct debit authorization. In this case, the customer is obliged to disclose the assignment to his debtors and to provide us with all information necessary for the collection of the claims as well as to hand over all documents (including any checks and bills of exchange) to us. All costs associated with the collection of the claim shall be borne by the customer.
(4) We may demand the return of the delivery items subject to retention of title from the customer, if we have previously demanded the return of the delivery items in accordance with the provisions of the German Civil Code. Clause 10 have withdrawn from the contract.
(5) The customer shall notify us immediately in writing – in urgent cases by telephone with subsequent written confirmation – of access by third parties to the delivery items or to the claims assigned to us and shall support us in every way in our intervention against third parties. The costs of necessary interventions shall be borne by the customer.
(6) If the value of all security rights to which we are entitled under the above conditions exceeds the amount of the secured claim by more than 10%, we shall be obliged to release a corresponding part of the security rights at the customer’s request.
13. burden of proof
Unless otherwise expressly stipulated in these GTC, the statutory provisions on the burden of proof shall remain unaffected.
14. general
(1) The place of performance for all obligations is our registered office. Our place of business shall be the place of jurisdiction if the customer is a merchant, a legal entity under public law or a special fund under public law. However, we are also authorized to sue the customer at his general place of jurisdiction.
(2) The legal relationship between the customer and us shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(3) The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. In this case, the parties undertake, unless statutory provisions intervene, to replace the invalid provisions with provisions that come as close as possible to the economic sense and purpose of the invalid provisions.
15. amendments to the general terms and conditions
In the case of continuing obligations, we reserve the right to amend the provisions of these General Terms and Conditions at any time and without stating reasons or to supplement them by introducing additional provisions. We will notify the customer of the changes or amendments in writing. They shall be deemed accepted if the customer does not object in writing within a period of six weeks after receipt of the notification of changes and additions. The customer shall be informed separately in the change and supplement notification of the significance of the consequences of the expiry of the six-week period and the associated recognition.
