‘GCBs’ – General Conditions of Business of COTRONIC GmbH (Inc.)
Art. 1 Area of application
The following ‘GCBs’ – General Conditions of Business in their latest version are exclusively applicable for all businesses, legal persons of the public law or organisations of public-law assets (hereinafter referred to as ‘the customers’) at the point of time of the conclusion of agreements and contracts with the corporation.
All contradictory or divergent conditions of business of the purchaser are inapplicable, even when such are not specifically contradicted by the corporation.
Art. 2 Fundamental stipulations
- The subject matter of the contract is the sale of goods.
- The contractual language is German.
Art. 3 Offers and conclusion of the contract
- All written or verbal offers and tenders are non-binding and subject to being unsold.
- A contract of purchase and sale comes into legal force by the acceptance of an order by the corporation and the issuing of a written confirmation of order.
- All verbal side agreements are to require the written approval of the corporation. Any waiver of the written form is also to be approved by the corporation in writing.
Art. 4 Documentation made available
- The corporation retains its ownership rights and copyrights in all documentation made available to interested parties or prospective customers, in connection with any offer, tender and purchase order (e.g. technical drawings, data sheets, certificates, etc.).
- Such documentation may not be made available to third parties, unless the corporation grants its express approval to an interested party or prospective customer.
Art. 5 Prices
- All prices are to be understood as ex works, excluding packing and insurance premiums, but plus value-added tax, where VAT is to be charged by reason of statutory requirements, at the rate prevailing for the time being. Consignment- and packing -charges will be invoiced separately.
- The corporation is entitled to alter its fixed prices in cases of delivery dates 3 months or later than 3 months, after the conclusion of an order contract, together with prior notification to the customer and before the consignment of the goods, where such are made necessary by external influences for which the corporation is not responsible, e.g. fluctuations in foreign exchange rates, customs’ tariff charges, or alterations in the cost of supplied materials, energy and raw materials.
- For consignments abroad outside of the Federal Republic of Germany, the purchaser is to bear all impinging charges and costs, e.g. bank charges and customs duties, costs for the production- and verification of documentation, and consignment charges, etc.
Art. 6 Payment terms and conditions
- In the cases of new customers and customers with registered offices (corporate domiciles) abroad, the corporation is entitled, after undertaking a creditworthiness verification, to require an advance payment in whole or in part of the value of an order.
- The invoices of the corporation are payable 30 days after receipt without deductions. Any divergent agreements, especially the deduction of discounts are to require the prior particular written agreement of the corporation. Payments will be deemed as made in full when the corporation can freely dispose on its bank account of all the funds due.
- In case of any repeated late payments, the corporation is entitled to consign ordered goods only after receipt of the purchase price.
- Should the customer be in arrears of payment, then the corporation is entitled to charge interest on the arrears at the statutory rate of interest, plus reminder charges of currently EUR 5.00 per issued reminder.
Art. 7 Consignments and deliveries
- The delivery time period commences upon receipt of the confirmation of order, and not before clarification of all technical details and other aspects of the order, the receipt of the agreed advance payment or sureties for payment.
- Should the purchaser be late in the acceptance of an offer or tender, or when the purchaser culpably infringes any collaborative obligations, then the corporation is entitled to charge indemnities for loss or damage, to include any additional outlay or expenditure. The corporation also reserves its entitlement to make any further financial claims on the purchaser. When the foregoing circumstances apply, then the perils of incidental destruction or incidental deterioration of the subject matter of the purchase and sale, pass to the purchaser at the point in time when the purchaser is in arrears of acceptance or arrears of indebtedness to the corporation.
- Partial consignments and deliveries are to be permissible where reasonable. Invoices for partial consignments and deliveries are payable on the payment terms and conditions of the corporation.
- The corporation is only liable for premeditated or gross negligent arrears of consignment and delivery, to the extent of 0.5% for each commenced week of delay and up to a maximum of 5.0% of the total invoiced price for that part of the consignment and delivery affected by the arrears.
Art. 8 The passing of the perils at consignment
When the goods are sent to the purchaser at its request, then the perils of incidental destruction or incidental deterioration of the subject matter of the purchase and sale, pass to the purchaser at the point in time, at the latest when the goods leave the works or warehouse. This applies independent of whether the consignment of the goods is made from the place of fulfilment or whoever bears the freight charges.
Art. 9 Product details and manufacturer warranties
- All product indications provided on the website of the corporation (www.cotronic.de) and in its catalogues, are shown on the basis of the information provided by the relevant manufacturers.
- The listed technical indications shown on the website of the corporation (www.cotronic.de) and in its catalogues, as well as product dimensions and sizes, weights and the descriptions and graphics serve only for the orientation of prospective purchasers. Any differences and specifically constructional alterations in form, colour shade and/or weights are shown subject to reasonable reservations. The same applies for the data sheets published on the website, where in cases of doubt, the data sheets of the various manufacturers are definitive and which will be made available to interested parties and prospective customers on the occasion of the making of offers or tenders.
- Should a manufacturer provide a warranty going beyond the scope of the warranty provided by the corporation, then the warranty terms and conditions of that manufacturer are definitive. Any warranty claims should therefore be directed at the relevant manufacturer and not against the corporation.
Art. 10 Complaints
- Upon the discovery of a material deficiency in the goods received on the occasion of a goods-inwards inspection, the customer should inform the corporation in writing. When a material deficiency is only discovered at a later date, then such is also to be advised to the corporation with immediate effect.
- Loss or damage during transportation is also to be reported to the corporation with immediate effect. In addition, loss or damage during transit should also be reported to the carrier and a confirmation from the carrier obtained.
- Deficiency claims become time-limitation barred within 12 months of delivery by the corporation to the purchaser. The statutory time-limitation periods of time are to apply for loss or damage indemnity claims following premeditation and gross negligence, and as a result of death or injury to persons and their health attributable to a premeditated or negligent infringement of contractual duties on the part of the user. Before the return of goods, the permission of the corporation is to be obtained.
- Should despite the taking of all due care, a deficiency be discovered in the goods delivered, which existed already at the point in time of the passing of the perils, then the corporation can select to make improvements or replacements for complaints presented within the prescribed periods of time. The corporation is always to be given an opportunity to make subsequent fulfilment within a reasonable period of time. Recourse claims remain unrestrictedly unaffected by the foregoing stipulations.
- Should the subsequent fulfilment not be successful, then the purchaser can withdraw from the contract or reduce the remuneration, notwithstanding any other indemnity claims for loss or damage.
- Deficiency claims do not obtain for inconsiderable divergences from the agreed characteristics, for only inconsiderable encroachments upon the usability, for natural wear and tear, for loss or damage after the passing of the perils, as a result of erroneous or careless treatment, undue stress and strain, unsuitable operating mediums, defective verifications-/ controls or because of external influences, which are unforeseen under the contract. Deficiency claims will also not obtain as a result of improper repairs or alterations undertaken by the purchaser or third parties, as also for the consequences thereof.
- Claims of the purchaser for any outlay or expenditure necessary for the purpose of the subsequent fulfilment, in particular charges for transportation, travel, working and materials, are excluded in so far as the outlay and expenditure increase because the goods supplied by the corporation are subsequently delivered to a location other than the place of business of the purchaser, unless the movement corresponds with their proper intended use.
- Recourse claims of the purchaser against the corporation, only obtain when the purchaser has not contracted any agreement with its own customer exceeding the deficiency claims mandatory under the statute law. Art. 7. hereof apply correspondingly for the extent of any recourse claims of the purchaser against the corporation.
Art. 11 Reservation of ownership rights
- The corporation reserves its ownership rights in the goods supplied until settlement of all outstandings under the particular contract of purchase and sale. This also applies for all future supplies, even when the corporation does not specifically refer thereto. The corporation is entitled to take back the subject matter of the purchase and sale when the purchaser infringes any contractual duties.
- The purchaser is obliged to treat the subject matter of the purchase and sale with all due care until the ownership rights pass to it. The purchaser is in particular obliged to store the subject matter dry and to insure it sufficiently at its own expense against theft, fire and water damage for reinstatement value. When servicing and maintenance work routines or inspections are to be carried out, then the purchaser is to conduct these at its own expense in good time. So long as the ownership rights have not yet passed to the purchaser, the purchaser is to inform the corporation in writing with immediate effect, when the goods delivered are distrained or subject to any other interventions of third parties. In so far as the third party is unable to indemnify the corporation for the costs of court- or out-of-court proceedings in litigation cases, pursuant to Art. 771 of the German Federal ‘ZPO – Zivilprozessordnung’ (Civil Proceedings Order), then the purchaser is liable to the corporation for any loss or damage suffered.
- The purchaser is however entitled to sell the goods onwards subject to the reservation of the ownership rights of the corporation, in normal day-to-day business. But, the purchaser is to cede to the corporation its financial claim on its own customer here and now for the amount of the agreed total invoiced price of the corporation, to include the statutory amount of value-added tax. The foregoing cession applies even though the subject matter of the purchase and sale is onward sold unprocessed or after processing. The purchaser is therefore still authorised to collect the proceeds of the onward sale, even after the cession. The authorisation of the corporation to collect the financial claim of the purchaser on its own customer remains unaffected thereby. The corporation will however not proceed to make the collection as long as the purchaser addresses its duty of payment towards the corporation out the proceeds of such onward sale, and is not in arrears of payment, and in particular makes no application to the court for the opening of insolvency proceedings, or introduces cessation of its payments.
Art. 12 Place of jurisdiction and applicable law
- All contracts and the entire legal business relationship between the parties are subject to the body of law of the Federal Republic of Germany, to the exclusion of the ‘CISG – United Nations Convention on Contracts for the International Sale of Goods’.
- The exclusive place of fulfilment and the place of jurisdiction for all disputes under a contract are the place of the registered office
(COTRONIC GmbH, Braaker Bogen 16, 22145 Braak, Germany).
- All agreements between the contractual parties concluded for the execution of a contract, are included in writing in that contract.
Braak (Germany) in May 2016