Terms and conditions
§ 1 Scope of Application
1. The following Terms and Conditions shall apply in the currently valid version for all contracts concerning sales and supply of goods concluded between Buyer and ourselves, Comair Germany GmbH (hereinafter also referred to as „Seller“), as far as there does not exist any deviant agreement. These Terms and Conditions shall also apply for all future business relations, even if not specifically stipulated.
2. Any contradictory conditions not expressly acknowledged by Seller shall be non-binding for Seller, even if Seller does not expressly contradict them. The following Terms and Conditions shall also apply if Seller implicitly executes Buyer’s orders while aware of Buyer’s contradictory or deviant conditions.
3. All illustrations, calculations, drawings and other documents shall be subject to Seller’s right of ownership, copyrights and any other property rights. Buyer may transfer these rights to a third party only upon Seller’s written consent, regardless of whether Seller has marked this as confidential.
§ 2 Quotations / Contract Conclusion
1. All quotations made by Seller shall be non-binding and subject to change, unless Seller expressly indicated them to be binding.
2. Contracts shall be tacitly concluded upon Seller’s execution of contract.
§ 3 Prices
1. All prices quoted are in EURO currency ex works without packaging and freight costs, unless otherwise agreed in writing between the contracting parties. Prices do not include statutory VAT. Applicable VAT shall be shown separately at the date of invoice.
2. Generally prices valid at date of dispatch shall apply.
§ 4 Minimum Order Value
The minimum order value is 3,000.00 EUR.
§ 5 Freight / Shipping Costs
1. All deliveries are always processed and shipped at the recipient’s cost and risk. Distribution and packaging are carried out according to our best judgement. The buyer also carries the transport risks in case of freight-free, FOB- and CFR-deliveries (Incoterms 2010), especially in case of flood. All deliveries are made ex works. Seller shall endeavour to take into account Buyer’s requests and interest regarding dispatch mode and route; any additional costs incurring hereunder – also in case of agreed freight, free dispatch – shall be borne by Buyer. Seller’s liability for the choice and actions of logistic companies and shipping is excluded and is generally subject to Buyer’s own responsibility.
2. When Seller hands over the goods to the carrier (e.g. forwarding agency, post office), Seller has fulfilled its contractual duties concerning dispatch. Thus the risk passes to Buyer as soon as the goods are handed over to the carrier, forwarding agency or any other third party designated to make dispatch, or if the goods have left Seller’s plant or stock. This shall apply regardless of whether dispatch of the goods is made from the place of performance or who shall bear the freight costs.
3. If dispatch is delayed upon Buyer’s request or due to Buyer’s fault, Seller shall store the goods at Buyer’s cost and risk. In this case the advice for readiness of dispatch is equivalent to dispatch.
4. If Buyer should refuse acceptance of goods upon delivery without justification, Seller is nevertheless entitled to invoice the incurred dispatch or freight costs.
§ 6 Terms of Payment
1. Unless agreed otherwise, invoices are payable within 30 days net, regardless of receipt of goods. Special agreements shall only be valid with written confirmation. Allowing a discount requires that Buyer is not in default with any other payments.
2. If Buyer is in default, Seller is entitled to claim interest for default amounting to 8 % above the applicable base rate of the European Central Bank. The assertion of any potentially higher claim shall remain unaffected hereby.
3. Any rights of offset or retention may be exercised by Buyer only if Buyer’s counter-claims are final or undisputed.
§ 7 Delivery Terms
1. Delivery terms are binding only insofar as we confirm them in writing. Otherwise any stipulated delivery terms shall be deemed as approximate time specification.
2. Seller is entitled to make partial deliveries or performances at all times, as far as these are reasonable for Buyer.
3. If Buyer is in default of acceptance, Seller is entitled to claim a compensation for the incurring damage or any possible additional expenses. The same applies if Buyer intentionally violates its obligation to co-operate. Upon default of acceptance or default of debtor the risk of accidental damage or theft passes to Buyer.
§ 8 Force Majeure
1. In case of any circumstances not attributable to Seller, in particular force majeure, strike, lockout, war, raw material and energy shortages etc. as well as obstructing government orders contradictory to contract performance the contracting parties are suspended from their contractual obligations for the duration of the disruption and to the extent of their effect, and also insofar as they make the implementation of the business affected for the foreseeable future not economically viable. This also applies if one of the circumstances of force majeure stated above affects Seller’s suppliers and an alternative delivery method does not exist or is available only under unreasonable conditions.
2. Should the resulting delays exceed a period of six weeks, then both contracting parties are entitled to withdraw from the contract with regard to the extent of obligation in question.
3. No compensation will be given to Buyer in cases of force majeure.
§ 9 Reservation of Proprietary Rights
1. Delivered goods remain Seller’s property until complete performance of all claims arising from the business relationship, irrespective of legal basis.
2. Seller shall treat the reserved goods with due care and caution and sufficiently insure them at replacement value against fire, water and theft at Buyer’s cost. Any maintenance and service works that might become necessary are to be executed in due time by Buyer at Buyer’s own expense.
3. Buyer is entitled to duly sell and/or use the reserved goods in the course of business, as long as Buyer is not in default. Buyer is not entitled to pledge or assign the reserved goods as security. By way of security, Buyer shall already now fully assign any claims arising out of resale or any other legal ground concerning the reserved goods (including all balance claims out of the current account) to Seller. Seller hereby accepts this assignment. Seller revocably entitles Buyer to collect the claims assigned to Seller on Seller’s account on Buyer’s own behalf. The collection authorization may be revoked at any time, if Buyer does not fulfill its obligations in due form. Buyer is not entitled to assign this claim by any means, not even by means of factoring, unless at the same time factor’s obligation is established to create the consideration in the amount of the claims to Seller as long as Seller holds any claims against Buyer.
4. Buyer may process or alter the reserved goods only for Seller. Seller is then deemed manufacturer in terms of § 950 BGB (German Civil Code). An obligation for Seller does not ensue therefrom. As far as the reserved goods are processed together with other objects not belonging to Seller, seller acquires joint ownership of the new object in proportion of the reserved goods’ value (invoice final amount incl. VAT) to the other combined objects at the moment of combination. For the new object created in the course of processing the same shall apply as for the reserved goods. If the reserved goods are inextricably combined with other objects not belonging to Seller, Seller shall acquire joint ownership of the new object in proportion of the reserved goods’ value (invoice final amount incl. VAT) to the other combined objects at the moment of combination. If Seller’s object is to be deemed the principal object as a consequence of combination, Buyer and Seller agree that Buyer assigns to Seller the proportionate ownership of the object. Seller hereby accepts this assignment. Buyer shall preserve Seller’s acquired sole or joint ownership of the object.
5. In case of third-party access to the reserved goods, specifically pledgings, Buyer shall refer to Seller’s ownership and immediately inform Seller so that Seller may assert its rights of title. As far as the third party is not able to reimburse any costs incurring before or out of court to Seller, Buyer shall be liable insofar.
6. Seller undertakes to release all securities owned by Seller insofar as the securities’ feasible value exceeds the value of the claim to be secured by more than 20 %. In this case Seller may choose the securities to be released.
§ 10 Warranties / Notification of Defects
1. Buyer’s claims for defects only exist if Buyer has duly exercised its duties of inspection and notification pursuant to § 377 BGB (German Civil Code). The goods are deemed as accepted if Seller has not received a written notification of defects concerning obvious defects noticeable in an immediate careful inspection either within 7 working days after delivery of the delivery item or else within 7 days after discovery of the defect or any earlier moment of time, where Buyer could discover the defect without further inspection during regular use of the delivery item. The occurred defects are to be notified stating the invoice number, the delivery date and the device number. Seller provides a respective form for handling. Upon Seller’s request the objected delivery item is to be returned to Seller free of freight charges. If the notification of defects is justified, Seller shall reimburse the costs of the most favourable dispatch route; this shall not apply if the costs increase because the delivery item is at another place than the place of normal use.
2. In case of warranty claims Seller first shall, according to its own choice, deliver missing items, make replacements or rectifications. If a rectification or replacement is either not possible or has finally failed or if it is unreasonably delayed, Buyer may claim a reduction of price. Buyer may claim the rescission of the contract if the contracting parties do not reach an agreement concerning the price reduction.
3. Buyer‘s warranty claims shall become statute-barred within 6 months as of provision of goods according to contract to Buyer or Buyer‘s vicarious agent or logistic company, unless Seller has fraudulently concealed the defect. In this case the statutory regulations shall apply.
§ 11 Liability
1. Seller shall be liable regardless of any aforesaid or following limitations of liability pursuant to the statutory regulations for damages to life, body and health, which may be attributed to Seller‘s or Seller‘s vicarious agent‘s negligent or intentional violation of duty as well as for damages comprised by the liability under the Product Liability Act. For any damages not included in clause 1 and subject to intentional or grossly negligent violations of contract as well as Seller‘s, Seller‘s legal representatives‘ or Seller‘s vicarious agent‘s fraudulent intent Seller shall be liable pursuant to the statutory regulations.
2. In case of liability pursuant to the statutory regulations liability for damages shall be limited to the predictable, typically occurring damage, though, as far as Seller, Seller‘s legal representatives or vicarious agents did not act intentionally. Seller shall be liable to the extent to which Seller has given a guarantee of quality or durability regarding the goods or parts of same. Seller shall only be liable for any damages subject to the lack of the guaranteed quality or durability, which do not directly affect the goods, though, if the risk of such damage obviously falls under the guarantee of quality or durability.
3. Seller shall also be liable for damages, which Seller causes due to simple negligent violation of such contractual obligations, the due performance of which enables the execution of the contract in the first place and to the compliance of which Buyer may trust routinely. However, Seller shall only be liable as far as the damages are typically connected with the contract and predictable.
4. Any further liability shall be excluded regardless of the legal nature of the asserted claim. This shall apply in particular for any tortuous claims or claims for compensation of futile expenses instead of performance. As far as Seller‘s liability is excluded or limited, this shall also apply for the personal liability of Seller‘s salaried employees, co-workers, legal representatives and vicarious agents.
§ 12 Miscellaneous
1. Should any provision of this agreement be or become invalid or infeasible in part or in whole, this shall not affect the effectiveness of the remaining provisions. In such case the invalid or infeasible provision shall be replaced by a valid or feasible provision most similar to the contracting parties’ original intent. The aforesaid provisions shall apply correspondingly, if any gap appears in the provisions.
2. Place of performance for all rights and obligations under this agreement and place of venue – if compatible – shall be Viersen, Germany.
3. Any disputes arising out of or in relation to this agreement shall be governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
4. Changes and amendments to this contract have to be made in writing to be effective, whereas the text form pursuant to section 126 b BGB (German Civil Code) shall be excluded. This will also include waiver of formal requirement.
5. Contractual language is English.