General Terms and Conditions of CNS GmbH
General Terms and Conditions of CNS GmbH (with limited liability), 14548 Schwielowsee, for use in business transactions with contractors (as per 1 March 2012)
1. Scope of validity, written form
(1) Our deliveries, services and offers are exclusively based on these terms and conditions. They shall likewise apply to all future contracts signed, even if not ex-plicitly agreed once again. Our customers’ terms and conditions are objected to; they shall not apply.
(2) Any agreements in connection with entering into, amending or changing the contract shall only be effective if made in writing or by e-mail and confirmed by us. Our representatives or travellers shall not be authorised to make declarations with legal effect.
(3) Notices and declarations to us, especially reminders, reports of defects and no-tices of termination shall require the written form.
2. Offers and contract conclusion, assignment
(1) Offers from our company shall always be subject to change and non-binding, in so far as same are not explicitly designated by ourselves as constituting a binding offer. This shall also be true in cases where we have left to the customer cata-logues, technical documentations (e.g. drawings, calculations, estimates, refer-ences to DIN standards), other product specifications or records, including elec-tronic ones.
(2) A contract with us shall only come into being if an order placed with us is ac-cepted by us by way of an order confirmation by mail or e-mail within two weeks of receipt of the order or if the relevant work is performed by us. In case of a written offer those two weeks begin with the issue date stated on the offer.
(3) Cost estimates shall be non-binding and non-gratuitous.
(4) Records such as, for example, catalogues, pictures, drawings, weight specifica-tions, cost estimates, technical documentations (e.g. drawings, plans, calculations, estimates, references to DIN standards) or other product specifications – including electronic ones – do not contain any guarantees within the meaning of section 443 of Germany’s Civil Code, Bürgerliches Gesetzbuch (BGB), but rather performance specifications.
(5) We expressly reserve proprietary rights and copyrights to the records referred to in section 2 (3). In particular, the customer shall not be entitled to reproduce or process such records, make them available to third parties or use or exploit them in any other way contrary to our interests, unless we grant our explicit prior consent in writing.
(6) The assignment of rights arising for the customer from the contracts concluded with us shall require our explicit consent.
(1) All our prices shall be quoted EXW (ex works) 14548 Schwielowsee, pursuant to INCOTERMS 2010, ICC Publication No. 715 ED.
(2) Unless provided for otherwise in our order confirmation, our listed prices shall apply. Prices not denominated in any particular currency shall always be deemed to be in EURO, otherwise the currency indicated, and in each case plus value added tax at the applicable statutory rate on the date of delivery or other service per-
formed, to the extent that such other service is requested. Added further shall be all taxes, customs or charges, including consular or legalisation fees, which may pos-sibly be imposed under a jurisdiction other than German law. Prices shall include packaging, as customary in the line of business. Any special packaging requested by the customer shall be invoiced separately. The costs of insurance, dispatch and transportation shall be borne by the customer.
(3) Unless agreed otherwise, we shall have the right to increase prices under con-tracts with a term of more than 12 months to adjust them to higher costs resulting from collective bargaining agreements, higher costs of material, increased insur-ance premiums or vehicle operation expenses and in the event that statutory taxes or charges are changed or newly introduced. The same shall apply if – under con-tracts relating to the one-off exchange of services – the performance of our service is delayed by more than four months for reasons which the customer is answerable for. If the increase exceeds 5% of the agreed price, the customer may terminate or rescind the contract, as the case may be.
4. Terms and periods of delivery and execution, partial services
(1) Dates and periods of delivery shall be specifically agreed; otherwise they shall generally not be deemed to exist as such. Expected dates of delivery indicated by us shall be non-binding.
(2) Our deliveries shall be effected EXW (ex works) pursuant to the relevant INCO-TERMS referred to in section 3 (1) above. We shall pack the merchandise in com-pliance with customary standards and shall choose the type of packaging to the ex-clusion of any liability.
(2) Binding dates and periods of delivery shall be deemed to be observed on the date of reporting readiness for the dispatch of the deliverables (ex works pursuant to the relevant INCOTERMS referred to in section 3 (1) above).
(3) In the event that deadlines agreed for periods of delivery and execution (per-formance periods) are exceeded, the customer shall only be entitled to rescind the contract after it has requested us to render the performance, fixing – as a minimum – a two-week period of grace for this purpose.
(4) If the delay in performance is caused by an extraordinary event which we were unable to prevent, even if applying the diligence to be reasonably expected of us, the agreed performance period shall be extended by the duration of such impedi-ment, plus a reasonable start-up period, as appropriate in the specific case. We shall only be in a position to invoke an adequate extension of the performance pe-riod if we have promptly advised the customer of the impediment in writing. The performance period shall not be extended, however, if this is unacceptable for the customer. In this case the customer shall have the right to cancel the contract, pro-vided that the requirements set out in paragraph (4) are met. Extraordinary events shall include, without limitation, industrial action, unforeseeable malfunctions of our operational facilities and equipments, disruptions in supplies with energy and mate-rials, and the like, as well as cases where we have not been supplied by a presup-plier on time in spite of having entered into a congruent covering transaction.
(5) In the event that performance is impossible or unacceptable for us as a result of an extraordinary event within the meaning of paragraph (5) or other reasons for which we are not answerable, we shall be entitled to rescind the contract by a writ-ten declaration, provided that we have promptly advised the customer of the im-pediment in writing.
(6) We reserve the right to make part deliveries of the goods ordered or to perform contractual works in parts, to the extent that this is acceptable for the customer. We may make out partial invoices for partial services.
5. Payment, default, setoff
(1) Unless agreed otherwise or provided for otherwise in our order confirmation, all customer payments shall be made to CNS’s German headquarters and our claim to payment shall fall due upon receipt of our invoice. Any and all payments shall be made as per the 15th day of the month following the date of the invoice into our ac-count without deductions. At the end of such day the customer shall automatically be in default. We shall charge default interest at the statutory rate, plus Euro 5.00 for each written reminder. However, we shall be entitled to assert any default dam-age incurred by us in excess thereof.
(2) Even if the customer provides for otherwise, we shall be entitled to the setoff of payments pursuant to section 367, paragraph 1, and section 366, paragraph 2 BGB.
(3) Bills of exchange or checks shall only be accepted subject to the receipt of the money. The customer shall bear the costs of discounting and bills of exchange and other bank charges. If a bill of exchange or check is not honoured in due course or if the criterion of a jeopardised entitlement to consideration is met, we shall have the right to declare or assert the basic receivables as a whole, irrespective of cur-rent checks or bills exchange, as immediately due and payable.
(4) The customer shall not be entitled to setoff or retention, unless the customer’s counterclaims are finally established by a court of law, are acknowledged by us or are undisputed.
(5) In the event that the customer defaults on recurrent payment obligations, our duty to perform and our liability shall be suspended until the outstanding amount is received by us, the customer not being exempted from making payment throughout the term of the contract or being granted general discharge from its duties under the contract.
6. Passage of risk, warehouse fees
(1) The risk of the accidental destruction or accidental deterioration of our work(s) shall pass to the customer in accordance with the EXW (ex works) clause con-tained in the INCOTERMS referred to in section 3 (1) and, to the extent that the merchandise is not delivered to our business premises, at the time of handover (also to a transport agent) or, if the customer delays acceptance, at the time when we offer the handover of the merchandise.
(2) In the event that the delivery of any deliverable ready for dispatch is postponed by more than one month upon the customer’s request, we shall be entitled to charge to the customer a warehouse fee equal to 0.5 % of the amount invoiced for the deliverable concerned for every started month of delay.
7. Jeopardised entitlement to consideration
If the customer’s financial situation substantially deteriorates and such deterioration jeopardises our claims or if it is found that in the three years immediately preceding the conclusion of the contract insolvency proceedings had been opened in respect of the customer’s assets or their opening been dismissed for insufficiency of funds or that the customer had submitted an affirmation in lieu of an oath concerning his financial situation or that an arrest warrant had been issued in such context, we shall have the right to request the customer to make advance payment or secure
payment by way of a bank guarantee. In the event that the customer fails to comply with our request within a reasonable period, we shall be entitled to rescind the con-tract by a written declaration or – in case of contracts involving continuing obliga-tions – to give notice to terminate the contract. More extensive legal claims shall remain unaffected.
8. Liability for freedom from defects
(1) In order to preserve its claim to warranty in case of defects the customer shall be under the obligation to check the goods delivered by us for their proper condition promptly upon their receipt. Warranty claims on account of defects shall only be permissible if they are asserted within 10 days of receipt of the goods in writing, in-dicating the numbers of the delivery note and the invoice, together with a descrip-tion of the defect complained of. Non-apparent defects shall be reported promptly after their detection; the burden of proof concerning the hidden nature of the defect shall be borne by the customer.
(2) We shall only be liable to give warranty for such defects as are not attributable to normal wear and tear and affect the usability of the work performed in not only a negligible way. No warranty shall be given if the customer, either personally or through third parties, carries out works on the items delivered without our consent or fails to comply with our installation conditions, operating and maintenance in-structions, especially with regard to the purpose of use recommended by us for such item in each case and the combination of the item delivered with a certain re-lated range of products, provided that such conduct on the customer’s part is the reason for the defect.
(3) To the extent that an item delivered is found to be defective, we may – at our discretion – opt for substitute delivery or remedial action.
(4) If second-hand items are sold, warranty shall be excluded. This shall not apply to damage caused by death, physical injury or injury to health in case of a wilful or grossly negligent breach of duty or in case of a culpable breach of a material con-tractual obligation by us. Furthermore, this shall not apply where we have mali-ciously concealed a defect or have assumed a guarantee for the condition of the second-hand item. Claims arising for the customer from section 479 BGB, if any, shall remain unaffected.
(5) If we perform error-search or error-elimination services without being obligated to do so or in the absence of a defect clearly attributable to us, we may charge a fee for such services according to our listed prices (section 3).
(6) The customer shall reasonably assist us in error-analysis and error-elimination efforts. For this purpose the customer shall, upon prior appointment, grant access to its facilities. A defect shall also be deemed to be remedied if we propose to the customer acceptable solutions aimed at avoiding the effects of the defect. The re-medial works may, at our discretion, be performed on the customer’s premises, our business premises or by remote maintenance.
(7) Only in the event that remedial action/substitute delivery fails twice, is rejected or not effected within a reasonable period granted to us, may the customer, at its election, rescind the contract or claim a corresponding purchase price reduction. Customer claims for damages on account of a defect may only be asserted against us on the basis of section 9 of these Terms and Conditions.
(8) The period of warranty for remedial action, substitute delivery, rescission and price reduction shall be one year, counted from the date when the risk passed. The period of warranty for claims for damages on account of a defect shall be two years if the defect is attributable to a wilful or grossly negligent breach of duty or has re-
sulted in death, physical injury or injury to health, otherwise one year, counted from the date when the risk passed.
9. Liability for damages
(1) Except if provided for otherwise herein, we shall solely be liable for damages in case of wilful intent and gross negligence, unless a contractual duty of material im-portance to the performance of the contract (cardinal duty) has been breached. In respect of claims merely based on ordinary negligence, we shall in any case only be liable for damage typical of the contract and foreseeable damage.
(2) Liability for personal injury shall remain unaffected, just as liability under manda-tory statutory provisions, especially the Product Liability Act.
(3) We do not assume liability for personal injury and property damage if the same is caused by changes of the item delivered performed 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 item delivered is installed at a place not protected from access by children and unauthorised persons. The customer shall indemnify us with regard to any liability-based third-party claims.
(4) The above limitation of liability in paragraphs 1 to 4 shall likewise apply if any of our employees, associates, representatives and agents is at fault.
10. Rescission of contract
If either contracting party fails to fulfil an obligation incumbent upon it or fails to do so in accordance with the contract (default, impossibility, breach of collateral du-ties), the other contracting party may rescind the contract, unless the breach of duty is cured within a reasonable period granted for this purpose. In case of deficiency the provisions in section 8 (6) shall additionally apply.
11. Termination of contracts involving continuing obligations
(1) Except if agreed otherwise, contracts involving continuing obligations shall be concluded for a period of two years. The contract shall be extended beyond the aforementioned or agreed period by another year, unless it is terminated in writing at three-month notice to the end of the given period.
(2) In the event that the customer moves to another place, sells or otherwise aban-dons the subject matter of contract, the customer may terminate contracts involving continuing obligations on an exceptional basis, observing a three-month period of notice.
(3) Either contracting party may terminate contracts involving continuing obligations with immediate effect for good cause if and when
a) insolvency proceedings are opened in respect of the other contracting party’s assets or their opening is finally dismissed for insufficiency of funds;
b) either contracting party fails to fulfil an obligation incumbent upon it or fails to do so in accordance with the contract (default, impossibility, deficiency, breach of col-lateral duties) and such breach of duty is not cured in spite of a written warning or is repeated;
c) other important events occur which affect the contractual relationship so heavily that the other contracting party cannot reasonably be expected to abide by the con-tract any longer in good faith. In addition, in case of regular monthly payments, we shall be entitled to termination with immediate effect for good cause if the customer defaults on two monthly instalments.
12. Retention of title, transfer of title as security
(1) Pending payment of the purchase price owed, the items delivered shall remain our property. The customer must not pledge or transfer title to the items delivered as security before payment is made.
(2) If the item delivered by us is processed, such processing shall be made for us. Whenever the customer processes an item delivered or combines or mixes it with other items, we shall hold joint title to the new thing on a pro rata basis.
(3) In the event that the item delivered subject to reserved title is sold by the cus-tomer, no matter in which condition, the customer hereby assigns to us the claims arising for it from the sale, including claims under bills negotiated for this purpose or checks, against the buyer or third party, inclusive of all collateral rights; we accept such assignment. We empower the customer to collect the claims assigned to us for our account in the customer’s own name. If the customer defaults on payments to satisfy our claims or any part thereof by more than two weeks or if the criterion of jeopardised entitlement to consideration is met, we may revoke the direct debit au-thority. In this case the customer shall be required to disclose the assignment to its debtors and to furnish us with any information necessary for collecting the claims and to surrender to us all relevant records (including checks and bills of exchange, if any). All costs associated with the collection of the claims shall be borne by the customer.
(4) We may demand of the customer to surrender the items delivered subject to re-served title, provided that we have rescinded the contract according to section 10 before.
(5) The customer shall immediately inform us about third-party access to the items delivered or to the claims assigned to us in writing – in urgent cases by phone, fol-lowed by written confirmation – and shall assist us in any way in our intervention with third parties. The costs of necessary interventions shall be borne by the cus-tomer.
(6) In the event that the value of all security rights to which we are entitled accord-ing to the terms and conditions above exceed the amount of the secured claim by more than 10%, we shall be obligated to release a corresponding portion of the se-curity rights upon the customer’s request.
13. Burden of proof
Except if explicitly provided for otherwise in these GTC, the statutory rules concern-ing the burden of proof shall remain unaffected.
(1) Place of performance for all obligations shall be our registered place of busi-ness. Our place of business shall be the venue if the customer is a merchant or a legal entity under public law or separate estate governed by public law. However, we shall also be entitled to sue the customer at its place of general jurisdiction.
(2) The legal relations between the customer and us shall exclusively be governed by the law of the Federal Republic of Germany, to the exclusion of the UN Sales Convention.
(3) Even in the event that individual provisions of the contract are legally ineffective, the rest of the contract shall continue to be binding. The parties undertake in such a case to replace – to the extent that no statutory clauses are applicable instead – the ineffective provisions by such provisions as come closest to the ineffective ones in terms of their economic purpose and meaning.
15. Changes of the General Terms and Conditions
With a view to contracts involving continuing obligations, we reserve the right to change the provisions of these General Terms and Conditions or to amend the same by introducing additional provisions at any time without indicating reasons. The changes or amendments shall be communicated to the customer in writing. They shall be deemed to be acknowledged, unless the customer objects thereto in writing within a period of six weeks after receipt of the notice of such change or amendment. In the notice of change or amendment the customer shall be sepa-rately advised of the consequences of the expiry of the six-week period and the ac-knowledgment associated with this.