I. General Provisions
1. For the legal relations between CONTA-CLIP S.r.l. (hereinafter referred to as "CONTA-CLIP") and the purchaser, all deliveries and services from CONTA-CLIP are subject exclusively to the following conditions. The general terms and conditions of the purchaser shall apply only when CONTA-CLIP has expressly agreed to them in writing. The scope of services and deliveries shall be determined by mutually matching written statements from both parties.
These General Conditions of Delivery also apply to all future legal relationships between CONTA-CLIP and the purchaser.
2. CONTA-CLIP retains exclusive ownership and all copyrights to any cost estimates, models, drawings and other documents (hereinafter referred to as "documents"). The documents shall only be provided to third parties with prior consent from CONTA-CLIP. They shall be returned immediately upon request when the order is not granted to CONTA-CLIP. This rule correspondingly applies to the purchaser's documents; however, these may be provided to third parties to whom CONTA-CLIP has rightfully transferred deliveries.
3. The purchaser shall have the non-exclusive right to use standard software and firmware with the agreed performance characteristics in unmodified form on the agreed devices. The purchaser may make only one backup copy of the standard software without an explicit agreement.
4. The term "damage claims" in these General Conditions of Delivery also includes claims for reimbursement of needless expenditures.
II. Delivery quality and quantity
1. CONTA-CLIP maintains a quality management system that meets the requirements of DIN EN ISO 9001.
2. Partial deliveries are permissible if they are reasonable for the purchaser.
3. If the deliverables have been custom manufactured to customer specifications, CONTA-CLIP shall be entitled to deliver 10% more or 10% less of the ordered quantity, based on manufacturing requirements.
III. Price and payment conditions
1. All prices are cited from the factory (ex works); they do not include packaging or the applicable VAT. Prices are based on the specified unit price.
2. Costs associated with packaging, loading, freight, insurance, installation and initial commissioning will be charged additionally. Costs for installation or assembly include not only the agreed fee but also additional costs such as travel and transportation costs as well as allowances. CONTA-CLIP reserves the right to charge surcharges for partially opened packaging units. Packaging and freight charges are charged at cost price. If the order amount is less than 75.00 euro net, CONTA-CLIP shall not grant discounts or special prices. A processing fee of 10.00 euro shall then be applied.
3. Payments shall be made to CONTA-CLIP without any deductions or transaction charges.
4. For purchasers having no prior delivery relationship with CONTA-CLIP or for purchasers having a history of late payment, deliveries shall be made only after advance payment until the purchaser's credit worthiness is established.
5. CONTA-CLIP shall be bound to the prices agreed in the order for four months after the conclusion of the contract. If longer periods for providing the deliveries or services have been agreed, CONTA-CLIP is entitled to a pro rata premium for increased costs related to material or labour costs which have increased from the original price calculation.
6. If no other agreements have been made, the fee for deliveries or services can be adjusted with a 2% discount when paid within eight days. Otherwise, the payment shall be made with no discount within 30 days of the invoice date. Calculated shipping and handling costs are always net costs and do not qualify for this discount. The arrival of unconditional credit to CONTA-CLIP's bank account is the relevant factor when determining the timeliness of payment. Invoices from CONTA-CLIP shall be sent by post or by e-mail to the purchaser.
7. If the payment term is exceeded, the purchaser shall pay interest at the rate of 8 percentage points above the base rate, insofar as the purchaser is a commercial entity independently engaged in a trade or business at the point in time that the contract is concluded. This shall not apply if the purchaser can prove that he is not responsible for the delay. If the purchaser is in default of payment, all debts become due immediately, unless the purchaser can prove that he is not responsible for the delay.
8. The purchaser may set off only those claims that are undisputed or legally binding.
IV. Simple and extended retention of title
1. The delivery items (reserved goods) remain the property of CONTA-CLIP until all CONTA-CLIP's claims against the purchaser arising from the business relationship have been fulfilled. Insofar as the value of all secured rights to which CONTA-CLIP is entitled exceeds the amount of all secured claims by more than 20%, CONTA-CLIP shall release a corresponding part of the secured rights at the purchaser's request; the supplier shall have the right to choose between various secured rights for release.
2. In the event that the purchaser resells the goods that are subject to retention of title, he hereby by way of security assigns to CONTA-CLIP his future claims from the resale to his customers with all ancillary rights – including possible balance claims from the current account – without requiring any further declarations or explanation. If the retained-title merchandise is re-sold together with other articles without an individual price being agreed upon, the purchaser hereby assigns to CONTA-CLIP the portion of the overall price corresponding to the price of the goods subject to retention of title stated in CONTA-CLIP's invoice.
3a. The purchaser is entitled to process items that are subject to retention of title and to combine and merge these with other items. The processing shall be carried out for CONTA-CLIP. The purchaser shall store the resultant new items for CONTA-CLIP with due and prudent professional care. The new item shall be considered as retained goods.
3b. There is already a consensus between CONTA-CLIP and the purchaser that when the accompanying materials are combined or mixed with other materials which do not belong to CONTA-CLIP, this results in CONTA-CLIP's co-ownership of the new item. CONTA-CLIP's ownership fraction is based on the value derived from the ratio of the value of the combined materials provided to the other goods at the time of their joining. The new item shall therefore be considered as retained goods.
3c. In accordance with item 3, the assignment of claims provision also applies to the new item. Such assignment is valid only up to the amount that equals the amount invoiced by CONTA-CLIP for the processed, joined or mixed retained goods.
3d. If the purchaser combines the goods subject to retention of title with properties or mobile objects, then he also assigns to CONTA-CLIP his claim entitlement for remuneration of the combination including all ancillary rights, without any further special declarations being necessary, in the ratio of the value of the retained goods to the remaining combined goods at the time of the combination.
4. The purchaser is authorised to withdraw the transferred payment from further sales until it is revoked. Where good cause exists to do so – in particular in the event of default in payment, stoppage of payment, the commencement of insolvency proceedings, the protest of a bill of exchange or substantiated indication of the purchaser's indebtedness or impending inability to pay – CONTA-CLIP is entitled to revoke the purchaser's right to collect receivables. Furthermore, after giving previous warning and on heeding a corresponding period of grace, CONTA-CLIP may disclose the assignment of security, realise the assigned claims and demand disclosure of the assigned securities by the purchaser towards the customer.
5. For the duration of the retention of title, the purchaser may not pledge the retained goods or use them as security. Resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customers or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to make payment.
6. In the event of seizures, confiscation or other interventions by third parties, the purchaser shall immediately inform CONTA-CLIP. When a legitimate interest is substantiated, the purchaser shall give CONTA-CLIP all information necessary to assert CONTA-CLIP’s rights on the purchaser and hand over the necessary documents.
7. If the purchaser is in breach of his obligations, in particular if he is in default of payment, CONTA-CLIP shall be entitled to take back the goods and to withdraw from the contract when the purchaser has failed to cure the breach within the reasonable time period; the statutory provisions relating to the dispensing of a deadline shall remain unaffected. The purchaser is obliged to surrender the goods. The taking back of the reserved goods and retention of title shall not require termination of the contract by CONTA-CLIP, unless expressly stated by CONTA-CLIP.
V. Deadlines for deliveries; delays
1. Compliance with delivery deadlines is conditional upon all the documents (including permits, clearances and plans) that are to be provided by the purchaser being received on time, and compliance with the agreed terms of payment and other obligations by the purchaser. Unless these conditions are fulfilled in time, the deadlines set shall be extended appropriately; this shall not apply where CONTA-CLIP is responsible for the delay.
2. If non-observance of the deadlines is due to force majeure (such as mobilization, war, uprisings, strike or lockout), then the deadline periods shall be extended accordingly. The same shall apply in cases where deliveries to CONTA-CLIP are not made punctually or in the proper manner.
3. If CONTA-CLIP is responsible for a delay, the purchaser may – provided he can substantiated that his damage was incurred because of the delay – claim compensation for each full week of the delay in the amount of 0.5%, but not more than 5% of the price for that part of the delivery which could not be put into useful service due to the delay.
4. Both compensation claims on the part of the purchaser for delivery default and compensation claims in lieu of performance beyond the limits specified in item 3 shall be excluded in all cases of delayed delivery, even after a delivery deadline which CONTA-CLIP may have set. This does not apply in the case of intent, gross negligence or due to bodily injury, damage to health or in the case of loss of life where there is a mandatory liability. The purchaser can only withdraw from the contract within the limit of legal regulations when CONTA-CLIP is responsible for the delay. No change of burden of proof to the disadvantage of the purchaser is connected with the preceding provisions.
5. If dispatch or shipment is delayed at the purchaser's request by more than one month after notice of readiness for dispatch was declared, the purchaser can be charged a storage charge of 0.5% of the price of the delivery items for each new month, while the total storage charge may not exceed 5%. Proof of lower or higher storage fees is reserved for both contractual parties.
VI. Transfer of risk
1. Even with freight-free delivery, the risk shall pass to the purchaser as follows:
a. For deliveries without installation or assembly, when they are delivered or collected. At the purchaser's request and expense, deliveries from CONTA-CLIP shall be insured against the usual transport risks;
b. For deliveries including assembly and installation, on the day of acceptance on the client's premises or, insofar as agreed, after correct trial operation.
2. If the dispatch, handing over of goods, start, mounting, assembly, installation, acceptance into operations or test runs are delayed for reasons attributed to the purchaser, or if the purchaser delays acceptance on other grounds, then risk shall pass to the purchaser at the point of delay.
VII. Illustrations and descriptions
1. Illustrations, descriptions and technical data are only shown in simplified form in the catalogues, order lists and other order documentation. We reserve the right to make changes of any kind, arising in particular from technological progress, modified design or similar, as long as such changes are reasonable for the purchaser.
2. Data and information on the application of our goods are non-binding and do not exempt the purchaser from conducting his own tests and trials. The purchaser is responsible for compliance with all laws and regulations when using our goods.
The purchaser shall not refuse to accept the delivery due to minor defects.
The supplier is liable for defects as follows:
1. All those parts or services exhibiting a defect must, as CONTA-CLIP sees fit, be repaired, redelivered or provided again free of charge, provided that the defect's cause existed at the time of transfer of risk.
2. Claims for repair or replacement are subject to a statute of limitations of 12 months calculated from the start of the statutory statute of limitations; the same shall apply in respect of withdrawal from the contract and demands for reductions. This time limit does not apply to the extent that the law (under sec. 438, para. 1, item 2 (buildings and building items), sec. 479 para 1 (recourse to claims) and sec. 634a, para. 1, item 2 (building defects) of the German civil code) stipulates longer time limits in the case of intention, fraudulent concealment of the defect and failure to comply with a guarantee of specified qualities. The legal regulations concerning expiry suspension, interruption and restart of the limitation period remain unaffected.
3. Notifications of defects by the purchaser shall be given in written form without undue delay.
4. Retention of payment by the purchaser because of material defects may only be asserted to an extent that is proportional to the actual defects. The purchaser may only withhold payments if the legitimacy of the notice of defects is not in any doubt. The purchaser shall not have the right to retention if his claims for defects have legally expired. If the notice of defect is wrong, CONTA-CLIP is entitled to demand compensation from the purchaser for the expenses incurred.
5. CONTA-CLIP shall be given the opportunity to remedy with subsequent fulfilment within a reasonable period of time.
6. If such a remedy fails, the purchaser may – without prejudice to any claim for damages under clause XI – withdraw from the contract or reduce the payment.
7. Warranty claims shall not arise from minor deviations from the agreed quality, from minor impairment of usefulness, from natural wear and tear, or from damage arising after the transfer of risk and caused by faulty or negligent handling, excessive strain, unsuitable equipment, defective workmanship, inappropriate foundation, or from extraordinary external influences which are not assumed under the contract, or from non-reproducible software errors. If the purchaser or third parties perform improper modifications or repair work, no claims for defects will exist for these actions or their consequences.
8. Information contained in catalogues, descriptions, pictures and drawings as well as dimensions, weight and performance data indicate only the quality of the products of CONTA-CLIP; they do not constitute a warranty.
9. If the purchaser or third parties perform improper modifications or repair work, no claims for defects will exist for these actions or their consequences. Upon assertion of warranty claims, the purchaser must immediately send a sample to CONTA-CLIP for inspection.
10. Any claims of the purchaser for expenses required for the purpose of supplementary performance (such as the costs of transportation, infrastructure, labour and materials) are excluded if the expenses increased because the delivered item has been transferred to a location that is not the purchaser's location, unless that transfer is in accordance with its intended use.
11. Recourse claims by the purchaser against CONTA-CLIP (in accordance with sec. 478 of German civil code: recourse of the contractor) are only possible insofar as the purchaser has not reached any agreements with his consumer which go beyond the statutory warranty claims. Item 10 shall also apply to the scope of the right of recourse for the purchaser against CONTA-CLIP, pursuant to sec. 478 para. 2 of the German civil code.
12. Damages claims by the purchaser arising out of a material defect are excluded. This does not hold true for fraudulent concealment of the material defect, negligence in upholding a guarantee of quality, fatal injury, bodily harm, hazard to health or freedom, or a premeditated or grossly negligent breach of duty by CONTA-CLIP. No change of burden of proof to the disadvantage of the purchaser is connected with the preceding provisions. Any other defect claims of the purchaser exceeding the claims provided for in clause IX are excluded.
X. Industrial property rights and copyrights; defects in title
1. If not otherwise agreed upon, CONTA-CLIP shall be obliged to render the delivery free of any industrial property rights and copyrights of third parties (hereinafter referred to as "property rights"). Insofar as a third party asserts justified claims against the buyer owing to the infringement of property rights and copyrights through deliveries made by CONTA-CLIP which are used contractually, CONTA-CLIP shall be held liable to the purchaser within the time periods specified in clause IX item 2 as follows:
a. CONTA-CLIP shall, as it sees fit and at its costs, obtain a right of use for the delivered goods concerned or modify them so that the proprietary right is not breached, or exchange it. If this is not possible for CONTA-CLIP under reasonable conditions, the purchaser shall be entitled to the legal remedy of withdrawal or reduction of the purchase price.
b. The obligation of CONTA-CLIP to provide compensation for damages shall be determined according to clause XII.
c. The above obligations of CONTA-CLIP shall only apply if the purchaser immediately notifies CONTA-CLIP of any such claims asserted by the third party in writing, does not concede the existence of an infringement, and leaves any protective measures and settlement negotiations to the discretion of CONTA-CLIP. If the purchaser stops using the delivered supplies in order to reduce damages or for other good reasons, he shall be obliged to inform the third party that this suspension of usage does not constitute acknowledgement of an infringement of property rights.
2. Claims of the purchaser are excluded insofar as he is responsible for the infringement of property rights. Claims by the purchaser shall also be excluded in cases where the infringement of proprietary rights is caused by special specifications made by the purchaser, through an application which was not foreseeable by CONTA-CLIP, or due to the fact that the delivery is changed by the purchaser or used together with products which were not delivered by CONTA-CLIP.
3. In the event of property rights infringements, the claims of the purchaser stipulated in item 1a shall apply, in addition to the provisions in clause IX, items 4, 5 and 9.
4. In the event of other defects of title, the provisions in accordance with clause 6 shall apply accordingly.
5. Further claims of the purchaser against CONTA-CLIP and our agents on account of material defects or other claims than those regulated in this clause XI are excluded.
XI. Impossibility; contractual revision
1. Insofar as the delivery is impossible, the purchaser is entitled to demand compensation unless CONTA-CLIP is not responsible for the impossibility. However, the claim for compensation of the purchaser shall be restricted to 10% of the value of the part of the delivery which cannot be put to the intended use due to the impossibility. This limitation shall not apply in the case of mandatory liability based on intent, gross negligence or injury to life, body or health. This does not imply a change in the burden of proof to the detriment of the purchaser. The right of the purchaser to withdraw from the contract shall remain unaffected.
2. Where unforeseeable events within the meaning of clause IV, item 2 substantially change the economic importance or the contents of the delivery or considerably affect the operation of CONTA-CLIP, the contract shall then be adapted appropriately in good faith. Where doing so is not economically reasonable, CONTA-CLIP has the right to rescind the contract. If CONTA-CLIP intends to exercise its right to rescind the contract, it shall notify the purchaser thereof without undue delay after having realized the repercussions of the event, even if a prolongation of the delivery period was initially agreed with the purchaser.
XII. Obligations of ElektroG
1. The customer undertakes to indemnify and keep indemnified the contractor from and against any claims, even of third parties, out of § 19 I 1 ElektroG (return of manufacturer). He guarantees to effect the disposal of received goods at his expense after the end of usage. By doing this he complies with all applicable legal provisions and standards.
2. If the customer distributes the purchased goods to commercial third parties without transferring the liability of disposal through contractual obligation, he is responsible for the proper disposal after the end of usage and takes back the goods on his own account.
3. Seven years after the end of the usage of the delivered goods, the right of indemnification of the contractor expires. The period begins with the end of the year in which the claim arose. It is independent of the knowledge of the contractor.
XIII. Other compensation claims
1. Any claims for damages the purchaser may have, regardless of the legal grounds, especially due to a breach of duty arising in connection with the contract or tort, shall be excluded.
2. This shall not apply in the case of mandatory liability, e.g. under the German Product Liability Act, in cases of intent, gross negligence, injury to life, body or health, or breach of essential contractual obligations. The claim for damages for the breach of fundamental contractual obligations shall be restricted to the contractually typical, foreseeable damage, insofar as wilful intent or gross negligence does not exist or liability exists due to injury to life, body or health. No change of burden of proof to the disadvantage of the purchaser is connected with the preceding provisions.
3. To the extent that the purchaser is entitled to claim for damages according to clause XI, these expire subject to the limitation period valid for clause XI, item 2. The same shall apply to claims by the purchaser that are associated with measures designed to prevent damage (e.g. product recalls). In the case of claims for compensation in accordance with the Product Liability Law, the legal provisions related to limitation periods shall apply.
XIV. Intra-community deliveries
The purchaser assures the accuracy of the information concerning his name, his address and his VAT ID number, which he shall provide immediately without prompting. The purchaser shell report any change in his name, address and company and its sales tax identification number, both to us and to the domestic tax authority that is relevant for the purchaser. In the event that a delivery is subsequently treated as taxable because of the incompleteness of the specifications by the purchaser, the purchaser must compensate for any resulting sales tax or expenses incurred by CONTA-CLIP.
XV. Place of performance, jurisdiction and applicable law
1. The place of performance (fulfilment) is Hovelhof, Germany. The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, if the purchaser is a fully qualified merchant, shall be the Delbrück local court of the Paderborn district court. However, CONTA-CLIP is also entitled to instigate legal proceedings at the place of business of the person or company who placed the order.
2. German law shall apply exclusively for all legal relationships. The application of the UN Sales Law Convention (CISG) is excluded.
XVI. Binding nature of the contract
Even if individual provisions of the contract are null and void in law, the other parts of the contract remain binding. This does not apply if adherence to this contract would constitute an undue hardship for either party.