General terms and conditions for commercial customers
§ 1 Scope
The following “General Terms and Conditions of Business” shall apply to the business relations with our customers, in particular for the delivery of products, for orders, services, information and advice connected with the products. If special individual agreements are made which deviate from our terms and conditions, the remaining terms and conditions of sale shall remain unaffected.
If our terms and conditions are introduced into the business with the customer, they shall also apply to all further business relations between the customer and us. “General terms and conditions” of the customer shall not become part of the contract even if we do not expressly object to them.
§ 2 Conclusion of contract, scope of performance, risk of performance
(1) A contract is only concluded – also in current business transactions – when we confirm the order or the order of the customer in writing or in text form (electronic data transmission with qualified signature, fax with legally valid signature). In the case of immediate delivery or performance of services, our confirmation may be replaced by our invoice or a delivery note.
(2) For the content of the contract and scope of services, our order confirmation is exclusively authoritative. We shall only be liable for the correctness of the information in our catalogue if we were aware of any incorrect information at the time of the conclusion of the contract and/or the information had not been corrected or revoked before the conclusion of the contract.
(3) Partial deliveries are permitted to us, as far as these are reasonable for the customer in the individual case due to a consideration of the interests worthy of protection.
(4) If the customer withdraws from the order due to circumstances for which we are not responsible, a cancellation fee of 25% of the invoice amount shall be due. The customer shall be at liberty to prove that CNC has suffered no loss or only a loss significantly lower than the lump sum.
§ 3 Performance Time, Delay
(1) Performance time specifications are non-binding for us, unless we expressly confirmed the performance date as binding. The time of performance shall commence upon receipt of the order confirmation, but not before the agreed down payment has been made. The time of performance shall be deemed to have been observed if, by the time of its expiry, the delivery item has left the warehouse or the customer has been notified of its readiness for dispatch.
(2) Any change to the order initiated by the customer after order confirmation shall have the effect of cancelling any binding deadlines and dates agreed.
(3) In the event of a delay in performance, the customer must first set us a reasonable grace period for performance in writing. We shall only be in default after the expiry of the reasonable grace period.
The exercise of the right of withdrawal must be notified in writing without delay. In addition to the right of withdrawal, the customer shall only be entitled to claim damages if we or our vicarious agents are guilty of intent or gross negligence.
(4) Events such as force majeure and operational disruptions, strikes and lockouts as well as other events that make production or delivery more difficult, such as difficulties in procuring materials, shall give us the right, insofar as we are not responsible for them, to extend the performance period in accordance with the impairment by notifying the customer without delay or to withdraw from the contract. This also applies if such circumstances occur at our suppliers. In the event of withdrawal, the customer shall be reimbursed without delay for any consideration already paid. The customer shall be entitled to the statutory claims as a result of impossibility or delay.
(5) If the acceptance of the service/goods or the shipment is delayed for a reason for which the customer is responsible, we shall be entitled, without prejudice to far-reaching rights, after setting and expiry of a 10-day grace period, at our discretion to demand immediate payment or to withdraw from the contract, or to refuse performance and to demand damages instead of the entire service. When setting the deadline in writing, we do not have to refer again to the rights arising from this clause. In the event of a claim for damages, the damages to be paid shall amount to 50% of the net delivery price. The customer reserves the right to prove a different amount of damages or that no damages were incurred. In all other respects, the customer shall be entitled to the statutory claims as a result of impossibility or delay.
(6) If the shipment or collection of the Product is delayed at the Customer’s request or for reasons for which the Customer is responsible, we shall be entitled to arrange for storage at the Customer’s sole risk, commencing at the time when the Products should have been shipped or the Customer should have collected the Products, and to charge a flat rate of 2.5% of the net invoice amount for each month or part thereof for the costs incurred thereby. The customer reserves the right to prove a different amount of expenses for the storage. In addition, we are entitled to otherwise dispose of the contractual products after the expiry of the deadline and to resupply the customer with a reasonable period of notice.
§ 4 Shipping, transfer of risk
(1) Unless otherwise agreed in writing, products shall be shipped by us ex works, uninsured at the risk and expense of the customer, to the delivery address specified by the customer.
(2) The risk of accidental loss or accidental deterioration of the object of performance shall pass to the customer as soon as the object of performance is handed over to the forwarding agent, carrier or other person or institution designated to carry out the shipment or has left our warehouse for the purpose of shipment. This shall also apply if we have assumed the shipping costs or the delivery, or if partial deliveries are made. If the customer has assumed the transport of the object of performance or if the shipment of the object of performance is delayed due to circumstances for which we are not responsible, the aforementioned risks shall pass to the customer upon our written notification of readiness for shipment.
(3) The customer is obliged, without prejudice to his rights, to take receipt of delivered goods, even if they have obvious defects, and to store them for us free of charge. If the customer refuses to accept the goods, we shall be entitled to demand 25% of the net value of the goods plus statutory value added tax as compensation. The customer and we reserve the right to prove a lower or higher damage.
§ 5 Prices, terms of payment, default
(1) The net catalogue prices valid at the time of our order confirmation plus the applicable statutory value-added tax shall apply.
(2) The packaging and shipping costs amount to € 8.90 for a net value of goods of up to € 50.00 and € 5.90 for a net value of goods of up to € 150.00. From a net value of goods of € 150.00, the packaging and shipping costs are free (excluding islands). In the case of the delivery of equipment, the dispatch of goods by forwarding agent as well as in the case of deliveries which, at the customer’s request, are not to be carried out by our usual standard parcel service (also applies to DHL), the resulting additional costs are to be borne by the customer. The current conditions for express shipments as well as shipments to German islands or goods that cannot be sent by parcel service can be requested from us at any time. Loading in the warehouse, customs duties, taxes and other additional costs will be charged by us at cost price. The dispatch by us takes place freight collect.
(3) For payment in advance, we grant a discount of 4%. If the settlement of our claim is made by way of direct debit, we grant a cash discount to 4%, except for offer prices and discounted prices. The customer is only entitled to a cash discount if all other, older liabilities from the customer’s business relationship with us have been fulfilled. Furthermore, we offer PayPal as a payment option.
(4) The date of payment shall be deemed to be the date on which the money is received by us or the date on which the value date is credited to our account.
(5) Only those who are authorized by us by express written power of attorney are entitled to receive money or other means of payment.
(6) We shall be entitled, despite any provisions of the customer to the contrary, to set off payments first against the customer’s older debts; we shall inform the customer of the type of set-off. If costs and interest have already been incurred, we shall be entitled to set off payments first against the costs, then against the interest and finally against the principal claim.
(7) The customer shall be in default of payment, even without a reminder, within 14 days after the due date of our invoice and delivery or within 14 days after notification of readiness of our delivery ex works. If a binding payment date has been agreed, the customer shall be in default if the payment date is not met.
On the occurrence of default in payment, we are entitled to charge interest on arrears at a rate of 8 9% above the respective base rate. The assertion of further damage caused by default remains unaffected by this.
(8) If the customer fails to comply with the terms of payment, we shall be entitled to perform any outstanding deliveries and services only against advance payment or provision of security. In addition, we shall be entitled to withhold deliveries and services from all contracts of the customer until payment has been made in full. In addition, all our outstanding claims shall become due for payment immediately. The same shall apply if, after conclusion of the contract, circumstances become known to us which substantially reduce the creditworthiness of the customer, in particular if execution is levied against the customer’s assets or insolvency or composition proceedings are instituted against the customer’s assets.
(9) The customer is only entitled to set off against our claim or to exercise a right of retention if the counterclaim is undisputed or has been legally established.
§ 6 Reservation of title
(1) We retain title to goods delivered by us, including accessories, until full payment of all due and future insofar determinable claims, including ancillary claims, arising from the business relationship. If we have granted the customer a current account, the retention of title shall serve to secure the entire current account and also to secure any outstanding causal balance.
The customer may resell unpaid performance items and/or performance items assigned to us by way of security (reserved goods) only in the ordinary course of business. The customer may neither pledge goods subject to retention of title nor assign them as security. In the event of seizure or confiscation or other disposition by third parties, the customer must notify us immediately.
The customer assigns to us the remuneration claims to which the customer is entitled against the purchaser as security in the amount of our outstanding claim. The set-off of payments received by the customer in each case shall be split up in proportion to the claims secured by retention of title.
We are obliged to release the securities to which we are entitled, at our discretion, to the extent that their value exceeds the claims to be secured and not yet settled by more than 20%.
(2) In the event of conduct in breach of contract, in particular default in payment, we shall be entitled – without having to withdraw from the contract beforehand – to take back all goods subject to retention of title after issuing a written warning and setting a reasonable deadline to remedy the conduct in breach of contract. In this case, the customer shall be obliged to surrender the goods without further ado, insofar as he is not only guilty of an insignificant breach of duty. In this case, we shall also have the right to disclose the assignment to the purchaser. At our request, the customer shall provide all necessary information required to enforce the claim.
§ 7 Duties to give notice of defects, breaches of duty, liability for material defects
(2) Deviations from specifications or agreements with regard to quality and quantity of up to +/-10% do not constitute a defect or the absence of warranted characteristics of the object of performance which entitles the customer to withdraw from the contract or to claim damages. In the event of delivery of an insignificant shortfall in quantity, the customer’s payment obligation shall be reduced proportionately; in the event of an insignificant excess quantity, it shall be increased accordingly. Electrical engineering material shall be deemed to be in conformity with the contract if it complies with the regulations of the Association of German Electrical Engineers (VDE).
(3) In the event of a defect, subsequent performance shall be effected at our discretion by remedying the defect or by subsequent delivery. The customer shall grant us the time and opportunity necessary for subsequent performance. If he refuses to do so, we shall be released from the obligation of subsequent performance. The warranty for subsequent performance shall only be given in the same way as for the original object of performance. If the customer is in default with due payment obligations, we shall be entitled to refuse subsequent performance up to the amount of a portion of our outstanding claims corresponding to the defect-free portion of the object of performance.
The regulations on the sale of consumer goods and in particular the so-called entrepreneur’s recourse according to §§ 478, 479 BGB remain unaffected by this.
(4) If the supplementary performance finally fails or if 2 attempts of supplementary performance remain unsuccessful, the customer may reduce the contractual remuneration with regard to the defective part of the object of performance accordingly and/or withdraw from the contract to that extent. The right to withdraw from the entire contract shall only be considered if, due to the defect in the object of performance, our overall performance significantly impairs the usual or contractually assumed purpose or is otherwise of no interest to the customer.
(5) Goods to be returned to us as a result of a complaint must have sufficient postage. Unpaid returns will not be accepted by us and will therefore be returned to the sender. If the complaint is our fault, the shipping costs will be refunded.
(6) The customer’s claim for subsequent performance shall become time-barred within one year from the passing of risk.
§ 8 Exclusion and limitation of liability
(1) No liability shall be assumed for damage or defects caused by unsuitable or improper use or storage, faulty assembly or commissioning by the customer or third parties, faulty or negligent handling (in particular excessive stress), unsuitable operating materials, replacement materials, chemical, electrochemical or electrical influences. Our liability is also excluded if the customer has carried out, arranged for or permitted modifications to the relevant object of performance and/or repair work without our consent, unless the customer proves that these modifications were not (partly) the cause of the damage.
(2) We shall also be liable for representatives or vicarious agents in cases of intent or gross negligence as well as in the event of culpably caused injury to life, body or health in accordance with the statutory provisions. In cases of gross negligence, however, our liability shall be limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in sentence 1 or sentence 3 of this paragraph applies at the same time. Apart from that, we shall only be liable in accordance with the Product Liability Act, due to culpable violation of essential contractual obligations or insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the delivery item. In the case of the aforementioned liability and liability without fault, in particular in the case of initial impossibility and defects of title, we shall only be liable for the damage typical for the contract and foreseeable.
(3) Liability for indirect damage or consequential damage caused by a defect is excluded, unless we have breached a material contractual obligation or we, our executives or vicarious agents are accused of a wilful or grossly negligent breach.
(4) Our liability is limited to a maximum amount of € 250,000.00 per claim, with the exception of the case of fraudulent intent, intentional acts and injury to body, life or health, the assumption of a guarantee or the risk of a defect in quality and legally mandatory deviating amounts of liability.
§ 9 Internet commerce
If the customer intends a resale via the Internet, he has to inform the seller (us) about this under notification of the appropriate Internet portal,. This duty to inform also applies if the customer advertises with our name or products on the Internet.
§ 10 Product Liability
(1) The customer shall not modify the goods (such as product, product repackaging, product sales packaging, operating instructions, instructions for use, indication of ingredients, minimum shelf life instructions), in particular with regard to safety, and in particular shall not modify, obscure or remove existing warnings about dangers in the event of improper use of the goods. In the event of a breach of this obligation, the customer shall indemnify us internally against product liability claims by third parties insofar as the customer is responsible for the defect giving rise to the liability.
(2) If we are required to issue a product recall or warning due to a defect in the goods, the customer shall assist us and take all reasonable steps ordered by us. The customer shall be obliged to bear the costs of the product recall or warning insofar as he is responsible for the defect and the damage incurred in accordance with the principles of product liability law. Further claims by us remain unaffected.
(3) The customer shall inform us without delay of the discovery of any risks in the use of the goods and of any possible product defects.
§ 11 Privacy
The personal data obtained by us from the customer at the start and in the subsequent course of the business relationship will be processed and stored by us exclusively for the fulfilment of our purposes in the course of the business transaction, in compliance with the German and European data protection regulations of the BDSG.
§ 12 Place of Performance, Jurisdiction, Applicable Law
(1) Place of performance and place of subsequent performance for all contractual obligations is the registered office of our company. German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of jurisdiction for all disputes shall also be the registered office of our company, unless another place of jurisdiction is prescribed by mandatory law. However, we shall also be entitled to sue the customer at his general place of jurisdiction.
§ 13 Salvatory clause
CNC Philippsburg/Germany, as of January 2020