Terms and Conditions

General Terms and Conditions of Sale and Delivery

I. General, scope of application

(1) These General Terms and Conditions apply to all current and future business relationships.

(2) Deviating, conflicting or supplementary general terms and conditions shall not become part of the contract, even if known, unless expressly agreed in writing.

(3) Consumers within the meaning of these Terms and Conditions are natural persons with whom a business relationship is entered into, without this being attributable to a commercial or self-employed professional activity.

(4) Entrepreneurs within the meaning of these Terms and Conditions are natural or legal persons or partnerships with legal capacity with whom a business relationship is entered into and who, when concluding the legal transaction, act in the exercise of their commercial or self-employed professional activity.

(5) Customers within the meaning of these Terms and Conditions are both consumers and entrepreneurs.

II. Offers and placing of orders

(1) Our offers are always subject to change and non-binding. In case of doubt, the contract is only concluded upon and in any event only in accordance with the terms and content of our written order confirmation, if such is issued. Offers and attachments must not be made accessible to third parties.

(2) Collateral agreements, amendments, additions or cancellations of the contract require our written confirmation.

(3) Our field staff are authorised to conclude contracts and collect payments only with written power of attorney.

(4) The illustrations and information contained in our price lists, brochures, cost estimates and offers, in particular weight or dimension specifications or other technical data, as well as DIN, VDE or other in-house or cross-company standards and samples referred to, merely identify the subject matter of the contract and constitute a warranty of qualities only if confirmed accordingly in writing.

(5) The purchaser assumes responsibility for the information incumbent upon it and the parts to be provided by it.

(6) Price audit for subcontracts relating to public contracts: Agreements on submitting to a price audit for public contracts pursuant to VOPR No. 30/53 shall only become part of an order if, upon acceptance of the order, we expressly declare this in writing to the client.

III. Prices and terms of payment

(1) Our prices are net prices in euros ex works, excluding packaging, without discount or any other reduction. Freight and insurance plus the VAT valid on the day of delivery. The granting of a cash discount requires a separate written agreement between the contracting parties.

(2) If the cost factors decisive for pricing for manufacturing materials, energy, operating materials, wages, salaries, freight, handling charges, customs duties, taxes or similar change in the period from conclusion of the contract until the contractually intended delivery date, we may invoice the resulting additional burden and subsequently increase the agreed price accordingly. The price increase is limited to the price enforceable on the market. If a fixed price has been agreed, we are entitled to demand that the client agree a new higher price, deviating from the offer prices. If no agreement is reached, we are entitled to withdraw from the contract. If the client is not a merchant, our right of withdrawal applies only in the event of a contractually agreed delivery period of more than 4 months or if a continuing obligation exists.

(3) Our invoices are deemed accepted unless written objection is raised within 30 days of the invoice date. We will inform the customer of this with each invoice.

(4) Payments are to be made within 8 days of receipt of the invoice, without deductions or discounts. In the event of maturity or default of payment, we shall charge interest at the rate of the bank lending interest charged to us, but at least 5% above the base interest rate, as well as our other default damages. The acceptance of cheques or bills of exchange is by way of performance and requires our express consent.

(5) In the event of default in respect of more than one liability, all our claims against the customer become immediately due and payable.

(6) The customer is entitled to set-off only if its counterclaims have been legally established or recognised by us. The customer may exercise a right of retention only if its counterclaim is based on the same contractual relationship.

(7) Our receivables have been assigned to BFS Finance GmbH, Verl, insofar as the invoices bear a corresponding note. Payments may be made with discharging effect only to BFS. The bank details can be found in the note on the invoice.

IV. Deliveries, transfer of risk

(1) Unless otherwise agreed, the delivery period begins upon receipt of the order confirmation, but not earlier than upon delivery of the material to be processed, provided that by these dates all contractually essential technical and organisational details have been definitively agreed.

(2) Unforeseeable, unavoidable or other serious events affecting us, a supplier or a subcontractor, such as strike, lockout, operational disruption, energy or material shortages, staff absences, official orders or interventions, natural events, lack of means of transport etc., which lead to delivery or performance delays or even to impossibility of performance and for which we are not responsible, shall extend the agreed delivery periods by the duration of the impediment and, in the event of impossibility, entitle both parties to withdraw from the contract.

(3) If the extension of the delivery time significantly changes the cost situation on which we based the submission of the relevant offer, or if performance is otherwise unreasonable for us, we are entitled to withdraw, to the exclusion of the client’s claims for damages.

(4) The delivery time is deemed met if, by its expiry, the delivery item has left the works or if readiness for dispatch has been notified to the client. Otherwise, the delivery time is to be regarded only as approximate, so that the client is entitled to rights in the event of failure to meet the delivery time only if specially agreed.

(5) If, after written reminder, the client is in default with respect to its obligations to provide or cooperate, we are entitled, at our choice, after setting a written grace period of 14 days, to withdraw from the contract or to claim damages for non-performance.

(6) Partial deliveries are permitted.

(7) If the customer is an entrepreneur within the meaning of § 1, it bears the loading, transport and unloading risk at the latest from handover of the goods to the carrier. This also applies if we have assumed the transport costs. If the customer is a consumer within the meaning of § 1, the risk passes to the customer only upon handover of the goods to it. If the goods to be processed are collected by us at the client’s request, the transport risk is borne by the client. The client is free to insure against these risks. The above provisions also apply if we have assured delivery free of freight.

(8) If the goods are ready for dispatch and dispatch or acceptance is delayed for reasons for which we are not responsible, the risk passes to the client upon receipt of the notice of readiness for dispatch. The client must call off goods made ready for dispatch immediately, but no later than after expiry of a period of 10 days following notification. If no call-off is made, this entitles us to store the goods at the client’s cost and risk at our discretion. Finally, storage charges of 1% of the invoice amount may be charged for each commenced month, whereby the storage charges are limited to 5% of the invoice amount, unless we can prove higher storage costs.

(9) Unless otherwise agreed, the customer shall bear the costs of unloading the goods. If the goods are not unloaded by the customer without delay, the customer shall bear the additional expense or damage caused by waiting times. Unloading using the crane mounted on the delivery vehicle shall be carried out at the customer’s request and expense.

V. Acceptance

(1) If acceptance is agreed, it can only take place at the delivery works. Acceptance must take place without delay after we have notified the client of completion. If acceptance then does not take place despite an appointment being set by us, we are entitled to dispatch the goods without acceptance or to store them at the client’s cost and risk. The goods shall be deemed delivered and accepted in accordance with the contract upon dispatch or storage, unless the buyer has expressly declared otherwise within a reasonable period set by us. When setting the period, we will specifically draw the buyer’s attention to the intended significance in the event of its silence.

VI. Retention of title and security rights

(1) In contracts with consumers, we retain title to the goods until the purchase price has been paid in full. In contracts with entrepreneurs, we retain title to the goods until all claims arising from an ongoing business relationship and any claims arising in connection with the purchase item have been settled in full. During the period of retention of title, the customer is obliged to notify us immediately of any third-party access to the goods, for example in the event of seizure, as well as any damage to or destruction of the goods, to provide us with the information necessary for legal enforcement and to hand over necessary documents. The customer must notify us immediately of any change in possession of the goods.

(2) We have a statutory entrepreneur’s lien on items handed over to us. Irrespective of this, the client grants us a contractual lien on the items handed over, which serves to secure all claims arising from the business relationship. If the parts are delivered to the client before full payment, it is agreed already now with the client that it transfers ownership of these parts to us as security for our claims up to the value of our receivables, and that the transfer of possession is replaced by the client holding the parts in safekeeping for us. The same applies with regard to the client’s expectant right in items handed over to us which were delivered to the client by a third party subject to retention of title. We are entitled to bring about the cessation of the retention of title. Claims for retransfer by the client against a third party to whom it previously transferred the items handed over to us by way of security are assigned to us. We hereby accept the assignment.

(3) The client may neither pledge nor transfer by way of security items over which we have a lien or which are in our reserved ownership or security ownership. However, it may resell or process the items in the ordinary course of business, unless it has already effectively assigned the claim against its contracting partner in advance to a third party. Any processing by the client of items in our reserved ownership or security ownership into a new movable thing is carried out on our behalf with effect for us, without creating any liabilities for us. We hereby grant the client co-ownership of the item in the ratio of the value of the new item to the value of our performance. The client must store the new item with due commercial care and free of charge.

(4) If reserved goods are processed by the customer into a new movable item, the processing is carried out in our name and on our behalf. If processing takes place with items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the goods supplied by us to the other processed items. The same applies if the goods are mixed, blended or combined with other items not belonging to us. If the customer acquires sole ownership through combination, mixing or blending, it hereby transfers to us co-ownership in the ratio of the value of the reserved goods to the other goods at the time of combination, mixing or blending. In these cases, the customer shall store the item belonging to us or in which we have co-ownership, which is also deemed reserved goods within the meaning of the following provisions, free of charge.

(5) If reserved goods are resold by the entrepreneur, the entrepreneur hereby assigns to us the claims arising from the resale against third parties in the amount of the value of the reserved goods; we accept the assignment. If we have co-ownership of the resold reserved goods, the assignment of the claims extends to the amount corresponding to the value of our co-ownership share. After the assignment, the entrepreneur is authorised to collect the claim. We reserve the right to collect the claim ourselves as soon as the entrepreneur does not properly meet its payment obligations. In this case, the entrepreneur is obliged to name to us the debtors of the assigned claims and to notify them of the assignment.

(6) At our request, the client must provide individual evidence of the claim and disclose the assignment made to third-party purchasers with the request to pay us up to the amount of our claims. We are entitled at any time to notify the subsequent purchaser of the assignment ourselves and to collect the claim. However, we will not make use of this and will not collect the claim as long as the client properly meets its payment obligations.

(7) The client is obliged to inform us immediately of enforcement measures by third parties against the security rights or our property. The client is also obliged to insure our property adequately and, if required, to assign to us the claims against the insurer. At the client’s request, the securities to which we are entitled under the above provisions shall be released to the extent that their value exceeds the claims to be secured by more than 20%.

(8) All our claims, including those arising from other contracts, become immediately due and payable, even in the event of deferral, as soon as the client is in default with the fulfilment of other obligations owed to us, suspends payments, is over-indebted, insolvency proceedings are opened by the court over its assets or the opening of such proceedings is rejected for lack of assets, or circumstances become known which are likely to substantially reduce the client’s creditworthiness. In such a case, we are entitled, at our option, to carry out outstanding deliveries and services only against advance payment or provision of security, or to withdraw from the contract after prior unsuccessful reminder, even if the consideration is not yet due.

VII. Warranty

(1) If the customer is an entrepreneur, customary trade breakage and shrinkage shall not constitute a defect. If the customer is an entrepreneur, we shall initially provide warranty for defects in the goods by subsequent performance (at our option rectification or replacement delivery). If the customer is a consumer, the statutory provisions apply.

(2) If subsequent performance fails, the customer may, as a rule at its option, demand a reduction of remuneration (price reduction) or rescission of the contract (withdrawal). In the event of only a minor breach of contract, in particular in the case of only minor defects, the customer shall not have a right of withdrawal.

(3) Entrepreneurs must notify us in writing of obvious defects immediately upon receipt of the goods; otherwise, the assertion of warranty rights is excluded. Timely dispatch is sufficient to meet the deadline. The entrepreneur bears the full burden of proof for all prerequisites of the claim, in particular for the defect itself, for the time the defect was discovered and for the timeliness of the notice of defect. Consumers must inform us in writing of obvious defects within a period of two months from the time at which the non-conforming condition of the goods was discovered. Receipt of the notice by us is decisive for compliance with the period. If the consumer fails to provide this notice, the warranty rights expire two months after discovery of the defect. This does not apply insofar as we can be accused of fraudulent intent. The consumer bears the burden of proof for the time of discovery of the defect. If the consumer was induced to purchase the item by incorrect statements made by the manufacturer, the consumer bears the burden of proof for its purchasing decision. In the case of used goods, the consumer bears the burden of proof for the defective nature of the item.

(4) If, after failed subsequent performance, the customer chooses to withdraw from the contract due to a defect in title or a material defect, it shall have no additional claim for damages due to the defect. If, after failed subsequent performance, the customer chooses damages, the goods shall remain with the customer if this is reasonable for it. Damages are limited to the difference between the purchase price and the value of the defective item. This does not apply if we have fraudulently caused the breach of contract.

(5) If the customer is an entrepreneur, only the manufacturer’s product description shall generally be deemed agreed as the quality of the goods. Public statements, promotions or advertising by the manufacturer do not constitute any further contractual quality specification of the goods.

(6) If the customer receives defective installation instructions, we are only obliged to supply defect-free installation instructions, and only if the defect in the installation instructions prevents proper installation.

(7) Warranty rights of the customer shall become time-barred, in each case commencing with delivery of the goods, a. in the case of an item which has been used for a building in accordance with its usual use and has caused its defectiveness, in five years, b. in the case of other items from a contract with a consumer, in two years; claims for damages of the consumer due to a defect in one year, c. in the case of other items from a contract with an entrepreneur in one year.

(8) This does not apply if we can be accused of fraudulent intent. In this case, the customer’s warranty rights are subject to the regular limitation period.

VIII. Exclusion of liability

(1) In the case of slightly negligent breaches of duty, our liability is limited to the foreseeable, contract-typical, direct average damage according to the type of goods. This also applies to slightly negligent breaches of duty by our legal representatives or vicarious agents. Vis-à-vis entrepreneurs, we are not liable for slightly negligent breaches of non-essential contractual obligations.

(2) When calculating damages, an appropriate limitation applies in relation to the value of the delivered goods to the value of the product manufactured by the customer, the particularity of the installation location and the recognisability and avoidability of the occurrence of damage by the customer. Damages that could have been avoided by appropriate product traceability measures by the customer are not reimbursable.

(3) The maximum liability amount on the part of CP Tech GmbH to compensate warranty or damage claims is €5,000,000 per calendar year.

(4) CP Tech GmbH is also not liable for loss of profit and business interruption losses. In the event of delay in delivery, CP Tech GmbH is only liable for reimbursement of reasonable special transport costs.

(5) The only exception is liability due to grossly negligent or intentional conduct by CP Tech GmbH. This limitation of liability also applies in the relationship between the customer and the employees, vicarious agents and sub-suppliers used by CP Tech GmbH.

(6) The above limitations of liability do not affect the customer’s claims under product liability. Furthermore, the limitations of liability do not apply in the case of bodily injury or damage to health attributable to us or in the event of loss of the customer’s life.

(7) Contractual penalties or lump-sum damages items are not accepted by CP Tech GmbH.

IX. Copyright

(1) The client indemnifies us against all claims of third parties in connection with industrial property rights, in particular copyright and similar rights in drawings and documents provided to us. We undertake to use produced photocopies and other reproductions exclusively for the purposes of costing and production and not to pass them on to third parties.

X. Drawings and other documents

(1) We reserve property rights and copyrights to cost estimates, drawings and other documents provided to the client. These documents may not be used for purposes other than those specified by us or made accessible to third parties. Upon request, the documents must be returned.

XI. Trade secrets/data protection

(1) The client is obliged not to disclose trade secrets, in particular process engineering information relating to our products, to third parties. Drawings, manufacturing information and other agreements are subject to data protection. These data must therefore also not be passed on to third parties. By accepting the Terms and Conditions, the client gives its consent that the data stored about its person in the course of fulfilling the purpose may be processed using electronic data processing.

XII. Insurance

(1) Insurance, for example against breakage, transport or fire damage and against theft, will only be taken out for items delivered by the client or transports to be carried out to it by special agreement and at the client’s expense.

XIII. Place of performance, jurisdiction and applicable law

(1) The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) do not apply.

(2) If the customer is a merchant, a legal entity under public law or a special fund under public law, our registered office is agreed as the place of performance for all claims arising from and in connection with this contract.

(3) If the customer is a merchant, a legal entity under public law or a special fund under public law, the court in whose district our registered office is located shall have jurisdiction for all disputes arising from this contract. The same applies if, at the time the action is brought, the customer has no general place of jurisdiction in Germany or its domicile or habitual residence is unknown. The customer may also be sued at its registered office.

XIV. Severability clause

If any of the above provisions of these Terms and Conditions or of the contract concluded with the customer is void, invalid or unenforceable for any reason, the validity of the remaining provisions and of the underlying contract shall remain unaffected. In such a case, the parties are obliged to replace the invalid provision with an agreement that most closely corresponds to the provision that has ceased to apply.