Mit wachsender

General Sales, Delivery and Payment Conditions of Gebr. Cox GmbH


I. Definition of Terms and Scope of Application

I.1. Definition of Terms

In the following contract

“supplier” or “user” refers to Gebrüder Cox GmbH, Carl-Kühne-Straße 8, 47638 Straelen-Herongen

„customer” refers to orderer, contracting party or purchaser entering into a business relationship with the user.

“Goods” refers to objects of the contract or service provided by the user to the customer.

“GTC” refers to these General Sales, Delivery and Payment Conditions.

I.2. Material Scope of Application

For all – even future – deliveries, services and offers of the user, only the present GTC apply even without any express agreement. Conflicting or deviating conditions of the customer are not recognised by the user; the terms and conditions of the customer are hereby rejected. These GTC also apply if the user is aware of conflicting or deviating terms and conditions of the customer and still satisfies his contractual obligations without any reservation. Changing these GTC, including this provision, requires the written consent of the user or a written agreement.

I.3. Personal Scope of Application

These GTC shall apply only if the customer is an entrepreneur, a legal entity under public law or a public law special fund. The same applies to customers who conduct commercial activity abroad, which is comparable to that of a domestic entrepreneur, and to foreign institutions, which are comparable to domestic legal entities under public law or a domestic public-law special fund. An entrepreneur is a natural or legal person or a legal partnership, which exercises their commercial or independent professional activity when concluding a legal transaction.

II. Conclusion of the Contract

1. Written Form and Spoken Agreements

Agreements affecting the contract or its fulfilment require the written form for their validity.

2. Offers (Including Price, Dimensions and Weight Information)

Offers and the drawings, illustrations, dimensions, weights and other service data of the user contained therein are always non-binding, unless they are expressly designated as binding or contain a certain acceptance period. The user adheres to the prices in offers expressly marked as binding for four weeks from the date of offer, unless the offer is determined in any other acceptance period.

3. Order Confirmation

If the order of the customer is an offer according to § 145 of the German Civil Code (BGB), the user can accept this offer within two weeks after its receipt, unless the customer has determined a different acceptance period. A contract is only concluded upon written confirmation of the user. If, in individual cases, there is no confirmation or if the contract is concluded without order confirmation, then the offer of the user has precedence with respect to the content of the contract.

4. Information and Documents of the User

Technical restrictions may introduce deviations in particular with respect to image and colour illustrations. Advice and recommendations contained in advertisements, offers and brochures of the user including those spoken by the staff of the user are made using best knowledge and experience, however, they are always non-binding and legally-binding declarations cannot be derived thereof.

Information of the user regarding the object of the delivery or service (e.g. weights, dimensions, values, resilience, tolerances and specifications) and representations thereof (e.g. drawings and pictures) are only approximate, unless usability regarding the contractually-intended purpose presupposes an exact match. They are not warranted characteristics, but descriptions or identifications of goods or services. Customary deviations (especially material related to colour and grain differences, veins and/or inclusions of other materials and colours, disseminations, spots and/or voids and weight deviations) and deviations that occur legal provisions or technical improvements, as well as the replacement of components with equivalent parts are permitted provided they do not impair the usability for the contractually-intended purpose.

III. Delivery Conditions.

1. Place of Fulfilment and Transport

a) Unless otherwise agreed, the place of fulfilment and performance is the headquarters of the user. The goods are generally prepared for collection there.

b) If the user takes over responsibility for the shipment of the goods at the customer’s request, delivery takes place at the expense and risk of the customer. The risk of accidental loss or damage to the goods is transferred to the carrier in accordance with § 447 BGB with proper handover of the goods (generally at the time of commencing the loading process). If the user employs his own staff for transportation, then Section V. applies with respect to the liability of the user.

c) The choice of the transport route and means of transportation, as well as the packaging, remains the prerogative of the user, so long as this is reasonable for the customer.

d) The user is only entitled to make partial deliveries, if the partial delivery is of use to the customer with respect to the intended purpose under the contract, delivery of the remaining ordered goods is ensured and the customer does not incur any significant additional costs or additional costs (unless the user declares himself willing to assume these costs).

2. Delivery Schedules and Deadlines

a) Finalisation of the contract is subject to self-supply. The user is entitled to a right of withdrawal in the event that absence of self-supply is not temporary. This does not apply if the user is culpable with respect to the non-delivery.

b) The user shall not be liable for inability to deliver or for delays in delivery, if caused by force majeure or other events, unforeseen at the time the contract is concluded, (e.g. malfunctions of any kind, difficulties in obtaining materials or energy, transport delays, strikes, shortages of labor, energy or raw materials) and for which the user is not responsible. In case of ongoing hindrances, the time deadlines are extended or postponed for the duration of the hindrance plus a reasonable start-up period.

After a reasonable deadline, the customer can ask that the user exercises his right to vote under § 275 Abs. 2 BGB. If the requirements of § 275 para. 2 BGB are not satisfied, is not reasonable for the user performance despite possibility, he is entitled to a right of withdrawal. The customer may request that the user exercises his right of withdrawal within a reasonable period; the prompt right of the customer shall not apply if a waiting period is reasonable for the customer. The burden of proof lies with the customer.

c) The user is obliged to inform the customer immediately about the unavailability of the product, and in the case of withdrawal or recourse to § 275 para. 2 BGB to immediately reimburse the customer the consideration already received.

d) Agreed delivery dates are binding subject to timely self-supply. In the event of non-timely self-supply the products mentioned in a) shall apply mutatis mutandis to c).

e) The risk of accidental loss or damage to or deterioration of the goods in accordance with §§ 446 clause 3, 326 para. 2 No. 1. BGB is transferred to the customer as soon as the customer defaults on acceptance of the goods. The customer is in default of acceptance as soon as the user indicates dispatch readiness of the goods and the customer does not retrieve them or fails to collect the goods, despite agreeing a collection date or ready for collection has been indicated. This does not apply if the dispatch readiness is indicated before the agreed delivery date. In this case, the default of acceptance occurs on the date of the agreed delivery date.

If the customer does not accept the goods, then the user has the right to set the customer a grace period and charge the usual stand and storage fees for the duration the grace period, unless the customer proves that the user has not been incurred the corresponding expense or damage.

3. Damage Compensation in Case of Default and Impossibility

If the user defaults on a delivery or service or if it becomes, for whatever reason, impossible, to fulfil a supply or service, then the liability of the user is limited to damages in accordance with Section V of these GTC.

4. Packaging

The product is packed according to normal, industry practice. The packaging is not calculated separately, unless it is reusable packaging or otherwise expressly agreed. The user is affiliated with a return system in accordance with the provisions of the Packaging Ordinance.

5. Transport and Damage Insurance

Insurance against damage in transit, loss or breakage is provided only at the express request of the customer at his own expense and on his behalf. Damage reports must be reported immediately upon receipt of the goods and confirmed in writing forthwith with respect to type and scope. Transport damage and missing deliveries must be determined immediately upon arrival of the shipment by official rail reporting or similar evidence protocols and certified using the accompanying documents (waybill etc.). If the user incurs damage, the customer is obliged to assign claims arising from the insurance contract to the user.

IV. Material Defect

a) The deliveries of the user must be carefully inspected immediately upon delivery to the customer or to a third party appointed by him. The warranty rights of the customer regarding damage assume that these parties properly fulfilled their inspection and complaint obligations in accordance with § 377 HGB. Section III.5 applies to transport damages.

b) In case of material defects of the supplied goods, the user is obliged to provide repair or replacement according to his own decision within a reasonable time. The costs of remedy are borne by the customer, unless the remedy occurs at the request or instigation of the customer at a place other than the place of delivery. In case of failure, that is, impossibility, unacceptability, refusal or undue delay in repair or replacement, the customer can withdraw from the contract or reduce the purchase price accordingly.

c) If a defect is the fault of the user, the customer may claim damages under the conditions set out in Section V.

d) In case of defects of components from other manufacturers which cannot be remedied by the user due to licensing or factual reasons, the user will, according to his own judgement, exercise his warranty rights against the manufacturers and suppliers on behalf of the customer or assign these to the customer. Warranty claims against the user exist in event of such defects under other conditions and in accordance with these GTC only when the extra-judicial enforcement of the above-mentioned claims against the manufacturers and suppliers was unsuccessful. During the duration of the legal dispute, expiration of the relevant warranty claims of the customer against the user is inhibited.

e) Guaranties in accordance with § 276, 442, 443 BGB are only those that are expressly designated as a guarantee. In particular, the details in the offer and order confirmation do not represent any material warranty within the meaning of § 443 BGB, unless this is expressly agreed separately.

f) If the goods are sold as commodities of reduced quality, this is deemed as a quality agreement within the meaning of § 434 par. 1 sentence 1 BGB. The reduction in quality is in such cases not a defect.

The reference to DIN standards or similar compilations of a generally, binding nature are also agreements made within the meaning of § 434 par. 1 BGB and not guarantees in terms of §§ 276, 442, 443 BGB, unless otherwise agreed. Section II. 2 applies. The same applies to purchases according to sample or model or for monitoring and advice in the processing of materials in the context of customer service of the user.

g) After processing of the goods, warranty claims are excluded, unless the defect was not detectable despite a thorough examination before processing.

h) The transfer of warranty rights against the user is not permitted without written consent.

i) The warranty period is one year from collection or delivery. The statutory limitation period in case of delivery recourse pursuant to §§ 478, 479 BGB remains unaffected.

j) The above limitation periods also apply to contractual and non-contractual damage claims of the customer, based on a defect in the goods, unless application of the regular statutory limitation period (§§ 195, 199 BGB) would result in a shorter period in a particular case. The statute of limitations for claims under V.a) and V.b) is not affected in any case.

V. Liability

a) The user shall be liable in accordance with statutory provisions, if the customer asserts claims for damages due to intent or gross negligence, including intent or gross negligence of the representatives or agents of the user, regardless of the legal ground of appeal. Insofar as there is no intentional breach of contract, liability for damages is limited to foreseeable, typically occurring damage.

b) The user is liable according to statutory provisions if he or his representatives or agents culpably infringe any essential contractual obligation. In this case, liability for damages is limited to foreseeable, typically occurring damage. Essential contractual obligations are obligations of timely delivery and installation of the object of delivery in a state significantly free of material defects as well as advisory duties contractually assumed by the user, as well as protection and custody obligations, which should ensure the customer contractual use of the object of delivery or the protection of life, body or health of the customer or his representatives and agents, as well as the protection of property of the customer from significant damage.

c) If the user provides technical information or advice and this information or advice does not belong to the contractually agreed scope of the user, this is provided free of charge and without any liability. The user assumes no liability or guarantee for the accuracy, correctness and completeness of the information provided.

d) Liability for culpable injury to life, body or health remains unaffected, this also applies to mandatory liability under the Product Liability Act.

e) Liability assumed by the user from a guarantee is determined not by the foregoing agreements, but according to the warranty terms and the applicable legal provisions.

f) The above arrangements apply irrespective of the legal basis of liability, especially for non-contractual and tort claims and to the same extent in favour of the institutions, legal representatives, employees and other agents of the user.

g) Unless otherwise agreed in Section V, the liability of the user is excluded.

VI. Payment Maturity and Payment Agreement

1. Prices

The prices of the user are in euros plus VAT applicable at the time of delivery. The prices of the user are ex warehouse. Disposable packaging are included in the price, any reusable packaging shall be paid separately.

2. Maturity

a) Invoices are due upon receipt and payable unless payment terms are expressly agreed.

b) Maturity occurs immediately despite conflicting payment periods, if the agreed payment terms are not met, or the user becomes aware of circumstances after conclusion of the contract which are likely to reduce, essentially, the creditworthiness of customer and through which payment of the outstanding debts of the user by the customer in the respective contract is endangered.

c) If the customer defaults with any payment obligations with respect to us, all existing claims are due immediately.

3. Cheques and Bills

a) The user accepts bills or cheques only by special agreement. If cheques or bills are accepted as payment, cheque payment shall only be deemed as having been concluded once the cheque has been cashed. The same applies to payment with bills, so long as a deferral has not been simultaneously agreed. Credit assignments will be credited only after payment. The demand and due date remain unaffected until then. Any cash discount, protest and collection charges shall be borne by the customer.

b) The agents of the user are eligible to receive payment only with the express written collection authority, which must be examined in each case. The collection authority is unaffected, if the agent of the user issues a properly receipted invoice for a particular case.

4. Order of Settlement

If there are several payment demands of the user regarding the customer, then received payments are calculated starting with the oldest demand, first against costs, then against interest. Such withholding of payments on existing debts is possible even contrary to the repayment provision of the customer. The user informs the customer immediately, about the specific type of settlement.

5. Advance Payment

The user can, if there is reason to doubt the creditworthiness of the customer, demand advance payment from the customer. This does not apply, if otherwise agreed in an individual contract. Section II.2 applies. An advance payment obligation of the customer shall in any event be deemed approved, if true customer is in default of payment or does not comply with agreed payment arrangements.

6. Right of Retention

The customer is only authorised to exercise a right of retention, so long as as the undisputed or legally established counterclaims arise from the same contractual relationship.

7. Offsetting

The offsetting of counterclaims by the customer is only authorised as far as they are undisputed, acknowledged by the user or legally established.

8. Interest

a) The user has the right to charge customers, who are merchants, interest at the rate of 5% above the applicable base rate according to § 247 BGB from the due date.

Upon entering into default, the user may require the customer who is an entrepreneur to pay interest at 8% above the applicable base rate according to § 247 BGB.

b) The right to claim further damages is reserved.

9. Compensation

If the customer does not comply, or only partially complies, with his contractual acceptance and/or payment obligations with reasonable notice within the meaning of paragraph §§281. 2, 323 para. 2 BGB, the user may, without burden of proof, demand higher damage compensation instead of performance at a rate of 15% of the agreed gross remuneration. If the breach of duty of the customer only refers to partial performance, § 281 para. 1 sentence 2 BGB. The customer is free to prove the user had suffered only minor or no damage.

VII. Retention of Title

The goods remain the property of the user until fulfilment of all – including future and conditional – payment demands for all agreed deliveries arising from these GTC as well as the outstanding balance claim due from the current account of the aforementioned demands (reserved goods).

1. Insurance

The customer insures the reserved goods against the usual risks.

2. Redemption as security

In case of breach of contract by the customer, especially in case of default, the user is entitled to set a reasonable deadline, to demand the return of the goods; in this case the customer is obliged to surrender the goods.

3. Processing Clause

a) If the customer or a third party working on his behalf processes the goods into a new movable object, then the user is considered as processor. The user does not incur any obligations thereof.

b) When processing goods together with goods not belonging to the user, the user acquires co-ownership of the new item in proportion to the value of the goods of the other goods – not belonging to him – at the time of processing.

c) If the goods are connected, mixed or blended with those not belonging to the user belonging according to §§ 947, 948 BGB, then the user is co-owner in accordance with statutory provisions. If the customer acquires sole ownership by combining, mixing or blending, then he hereby transfer co-ownership to the user now in proportion to the invoice value of the goods to the other goods – not belonging to the user at the time of connection, mixing or blending. In this case, the customer must also keep, free-of-charge, the entity owned or co-owned by the user, which is also deemed as reserved goods within the meaning of the provisions of this Section VII.

4. Extended Retention of Title

a) If the customer sells the goods alone or together with goods either belonging to him or not, then he hereby now assigns any claims arising thereof in full, plus any additional claims, to the user; the user hereby accepts assignment.

b) If the resold, reserved goods are co-owned by the user, then the assignment of the debt extends to the amount of the share value of the user on co-ownership.

c) The assignment is dissolving subject to fulfilment of the current account reservation according to the previous Section VII. 1.

d) If a third party gains access to the reserved goods or the assigned claims, then the customer shall promptly notify the user by handing over the necessary documents to contest said actions and notify the creditor about the conflicting ownership of the user. The customer is liable for all costs incurred by the user arising in this connection.

e) If the reserved goods are incorporated as an essential component in the land of a third party by the customer whilst exercising his trade or business, the products mentioned in a) to e) shall apply mutatis mutandis for any resulting wage claim including the right to grant a security mortgage in the first position with suitable priority. If the customer builds the goods as an essential part in his land, then the customer hereby assigns rights to the amount of the value of the goods from the property or from the sale of the property to the user, determined in accordance with paragraph VII.4 lit.a).

f) The user assumes the assignments offered under a) to e) herewith.

5. Power of Disposal

The customer is entitled and authorised to resell, use and incorporate the reserved goods only in the normal, orderly course of business and only on the condition that the requirements referred to in this Paragraph VII are actually transferred to the user and that he is not in default. In all other instances, the customer is not entitled to dispose of the goods, in particular in case of pledges or collateral assignment.

6. Authority to Collect

The user authorises the customer, subject to possible revocation at any time, to collect the assigned claims under this Section VI. The user reserves the right to collect the claim in addition to the customer. The user will not make use of the right to collect, so long as the customer complies with his payment obligations – including to third parties. Upon request of the user, the customer must name garnishees and to notify them of the assignment; the user reserves the right to notify garnishees.

7. Expiration of Collection and Disposal Authority

a) With the cessation of payments or any judicial or extrajudicial settlement proceedings, the right to resell, use or installation of the goods and the authorisation to collect the assigned claims expire; the same applies to a cheque or bill protest.

b) The same applies in the case of application for or opening of insolvency proceedings.

8. Approval/Security

c) If the value of the granted securities exceeds the assets plus the assurance fee under Section VI. 4 a) by more than 10%, then the user is obliged to reassign or release according to his discretion.

d) The assignment expires subject to proof of actually existing third party rights.

VIII. Assignment, Offsetting, Right of Retention

We are entitled to assign claims from our business relationships.

All payments must be made free-of-charge to VR FACTOREM GmbH, Ludwig-Erhard-Straße 30 – 34, 65760 Eschborn, to whom we have assigned our current and future claims arising from our business relationships. Our right of retention has also been assigned to VR FACTOREM GmbH.

Offsetting by the customer with counterclaims is excluded, unless the counterclaims are undisputed or legally binding.

Exercising right of retention by the customer is excluded, unless it is based on the same contractual relationship or the counterclaims are undisputed or legally binding.

IX. Copyrights, Reproductions and Publication

1. Works of the User

a) The use of images or texts, and other copyrighted works of the user is only permitted in connection with advertising and direct reference to the products of the user in clear reference to the copyright holder, and only with the prior consent and approval of the user. All images, texts, designs etc. in the printing units, lists, catalogues, brochures and publications of the user are subject to copyright by the user. Reproduction, distribution or publication of this material, even in part, regardless of the type of release, is only permitted with the written permission of the user. It is expressly forbidden to use the documents supplied for any other purpose than the one approved by the user.

b) The user is entitled to claim damages for each violation under the terms of these conditions.

X. Data Protection

The address of the customer is stored electronically for fast and error-free processing. The user collects, processes and uses the data that the user has acquired whilst pursuing contractual relations in the context of the purpose of the contract, to the extent that this is necessary for the implementation or execution of the contract. Treatment of the personal data is carried out in accordance with the provisions of the Data Protection Act and the Teleservices Data Act.

XI. Choice of Law and Jurisdiction

The law of the Federal Republic of Germany applies exclusively to the entire business relationship, under exclusion of the UN Sales Convention. Jurisdiction for all disputes is Geldern.

XII. Severability Clause

Should individual provisions of the above conditions be wholly or partially invalid, this shall not affect the validity of the remaining clauses or remaining parts of such clauses. An invalid provision shall be deemed replaced by such rules, which approximate the economic purpose of the ineffective provision and which are effective.