General Terms and Conditions of sale of Cosphatec GMBH
1. Scope of Application
1.1
These General Terms and Conditions of Sale (hereinafter “GTC”) of Cosphatec GmbH (hereinafter “Cosphatec”) shall apply to all business relationships with our customers (hereinafter “Buyer”). These GTC shall apply only if the Buyer is an entrepreneur (Section 14 German Civil Code (BGB)), a legal entity under public law or a special fund under public law within the meaning of Section 310 (1) BGB.
1.2
These GTC shall apply exclusively. Deviating, conflicting or supplementary terms and conditions of the Buyer shall not be recognised unless Cosphatec has expressly agreed to their validity in writing. These GTC shall also apply if Cosphatec performs delivery to the Buyer without reservation in the knowledge of such conflicting or deviating conditions of the Buyer. The agreement on the simple retention of title pursuant to Clause 11.1 shall remain unaffected in any case.
1.3
These GTC shall apply to contracts for the sale and/or delivery of movable goods (“Goods”). It is irrelevant whether Cosphatec manufactures the Goods itself or purchases them from suppliers. Unless otherwise agreed, these GTC shall apply, in the version valid at the time of the Buyer’s order or last communicated to the Buyer in text form, as a framework agreement also for similar future contracts, without Cosphatec having to refer to them again in each individual case.
1.4
Individual agreements concluded with the Buyer in individual cases (including ancillary agreements, supplements and amendments) as well as specifications in Cosphatec’s order confirmation shall take precedence over these GTC. Subject to proof to the contrary, a contract in written or text form or our confirmation in written or text form shall be decisive for the content of such agreements.
1.5
Legally relevant declarations and notifications of the Buyer regarding the contract (e.g. notices of defects, setting of deadlines, withdrawal or reduction) shall be made in writing, i.e. in written or text form (e.g. letter, email, fax). Further statutory formal requirements and additional evidence (e.g. in case of doubts concerning the authority of the declaring party) shall remain unaffected.
2. Offers / Acceptance of Orders
2.1
Insofar as an order of the Buyer constitutes an offer, Cosphatec may accept it either by confirmation in written or text form or by delivery of the Goods.
2.2
Insofar as Cosphatec submits its own offer for delivery, such offer shall be non-binding and subject to change. A contract shall only be concluded upon our order confirmation in written or text form.
3. Prices and Payment Terms
3.1
The respective price lists and price list supplements of Cosphatec shall apply, unless deviating individual offers are issued. Cosphatec reserves the right to change prices during the year.
3.2
Statutory value added tax (VAT) is not included in the prices and will be shown separately on the invoice at the statutory rate applicable on the date of invoicing.
3.3
All prices are quoted ex works (Incoterms: Ex Works), including packaging costs. Packaging costs shall not be shown separately.
3.4
In the case of shipment, the Buyer shall bear the transport costs from the warehouse and any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
3.5
Cash discounts, rebates, price reductions and extended payment terms shall generally not be granted.
3.6
Payments shall be made by bank transfer to one of Cosphatec’s business accounts indicated on the invoice. Payments by cheque shall not be accepted. For new customers, the first three orders shall generally be supplied exclusively against advance payment. For all further orders, all payments shall be due within thirty (30) days from the invoice date without deduction (receipt of payment on a Cosphatec account). Cosphatec also reserves the right to execute further deliveries only against advance payment if there is an objective reason for doing so, in particular in the event of the Buyer’s default in payment, doubts as to the Buyer’s solvency, or a material deterioration of the Buyer’s financial situation. Upon expiry of this period, the Buyer shall be in default. During default, the Buyer shall pay interest on the monetary debt at a rate of nine (9) percentage points above the base interest rate. In particular, reminder fees (three-stage dunning process) and any bank charges due to non-honouring of a direct debit shall be charged to the Buyer. The assertion of further default damages remains reserved.
3.7
The Buyer shall be entitled to set-off only if its counterclaims have been finally adjudicated, are undisputed or have been recognised by Cosphatec. The same applies to the exercise of a right of retention. In addition, the Buyer may exercise rights of retention only insofar as its counterclaims arise from the same contractual relationship. Unjustified invoice deductions shall be claimed immediately, plus the corresponding default interest.
3.8
If a delivery time of more than four months is agreed, Cosphatec shall be entitled to take into account interim cost increases or cost decreases for the procurement and manufacture of its delivery and/or service which occurred in the meantime and for which Cosphatec is not responsible, in particular due to collective wage agreements or changes in material prices, including cost changes caused by changes in law, by adjusting the prices accordingly.
3.9
Any granted conditions and price commitments shall apply subject to any cost increases on which Cosphatec has no influence. This includes, in particular, increases in costs due to inflationary developments, changes in energy prices and/or operating costs, economic crises and other factors beyond Cosphatec’s control, as well as force majeure. If a price increase under this paragraph exceeds five percent (5%) of the originally agreed price, the Buyer shall be entitled to terminate the affected contract by written notice to Cosphatec within fourteen (14) calendar days after notification of the price increase. Services and consideration already provided shall, in this case, be settled in accordance with statutory provisions.
4. Delivery Time / Delay in Delivery
4.1
The delivery period shall be agreed individually or specified by Cosphatec in the order confirmation. If the ordered Goods are not in stock, Cosphatec shall indicate an estimated, non-binding delivery time. Such delivery time is stated to the best of Cosphatec’s knowledge but does not constitute a binding commitment. If the actual delivery time exceeds the indicated estimated delivery time by more than four weeks, the Buyer shall be entitled to grant Cosphatec a reasonable grace period of at least two weeks. Upon expiry of such grace period without result, the Buyer shall be entitled to the statutory rights.
4.2
If, for reasons for which Cosphatec is not responsible, Cosphatec does not receive deliveries or services from its suppliers, or does not receive them properly or in due time, despite proper and sufficient congruent cover transactions prior to conclusion of the contract (i.e. with respect to quantity and quality in line with the contractual agreement with the customer), or if events of force majeure of more than insignificant duration (more than fourteen (14) calendar days) occur, Cosphatec shall inform the Buyer without undue delay in writing or in text form. In such case, Cosphatec shall be entitled to postpone delivery for the duration of the impediment or to withdraw from the contract in whole or in part with respect to the unperformed part, provided that Cosphatec has complied with the above information obligations and has not assumed the procurement risk or a delivery guarantee. Any consideration already provided by the Buyer shall be reimbursed without undue delay in the event of withdrawal.
4.3
Force majeure shall include strikes, lockouts, governmental measures, shortages of energy or raw materials, transport bottlenecks or obstacles not attributable to Cosphatec, operational disruptions not attributable to Cosphatec (e.g. due to fire, water damage or machinery breakdown) and any other impediments which, viewed objectively, were not caused by Cosphatec.
4.4
The occurrence of a delay in delivery shall be determined in accordance with statutory provisions. A delay in delivery shall in all cases require a fixed delivery date and a reminder (notice of default) issued by the Buyer. Any claim for damages due to delay in delivery shall be limited to the scope of liability set forth in Clause 8.
4.5
The Buyer’s rights pursuant to Clause 8 of these GTC and Cosphatec’s statutory rights, in particular in the event of an exclusion of the obligation to perform due to impossibility or unreasonableness of performance and/or subsequent performance, shall remain unaffected.
4.6
Liquidated damages and/or any kind of contractual penalties due to delays in delivery and/or non-compliance with delivery or service quotas are excluded.
5. Transport, Logistics and Passing of Risk
5.1
Delivery shall be made ex works (EXW, Incoterms 2010). The warehouse shall also be the place of performance for delivery and the place for any subsequent performance. If the Buyer wishes the Goods to be shipped to a place other than the place of performance, the Buyer shall bear the shipping costs. If nothing has been contractually agreed in this respect, Cosphatec may determine the mode of shipment (packaging, shipping route, carrier) itself.
5.2
Upon handover of the Goods to the Buyer, the risk of accidental loss and accidental deterioration shall pass to the Buyer. In the case of shipment, the risk of accidental loss, accidental deterioration and the risk of delay shall pass already upon handover to the freight forwarder or carrier. If acceptance of the Goods is contractually agreed, such acceptance shall be decisive for the passing of risk. Further statutory provisions of German contract law governing contracts for work and services shall remain unaffected. Handover or acceptance shall be deemed to have occurred if the Buyer is in default of acceptance.
5.3
If the Buyer is in default of acceptance or if our delivery is delayed for other reasons for which the Buyer is responsible, Cosphatec shall be entitled to compensation for the damage incurred, including additional expenses (e.g. storage costs). In such case, Cosphatec shall invoice the Buyer a lump-sum compensation of EUR 15 per calendar day (starting with the delivery period or, if no delivery period is specified, with notification that the Goods are ready for dispatch).
5.4
Cosphatec’s right to prove higher damages and its statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be credited against any further monetary claims. The Buyer remains entitled to prove that Cosphatec suffered no damage at all or substantially lower damage than the lump sum stated above.
6. Packaging Disposal
6.1
The proper disposal of sales and transport packaging in accordance with applicable statutory and regulatory provisions shall be the sole responsibility of the Buyer.
6.2
To the extent Cosphatec is obliged to take back packaging and packaging materials (in particular sales and transport packaging) under the applicable packaging regulations or successor provisions, the Buyer shall return such packaging at its own expense, cleaned, free from foreign materials and properly sorted, and shall bear the costs of any required disposal.
7. Warranty for Defects
7.1
The Buyer may not refuse acceptance or receipt of deliveries due to minor defects. The Buyer shall notify Cosphatec in writing of any obvious defects within five (5) business days after delivery of the Goods. Hidden defects which could not be detected by proper inspection shall be notified in writing within five (5) business days after their discovery.
7.2
Claims for defects require that the Buyer has duly complied with the statutory obligations to inspect and give notice of defects. The Buyer shall assert complaints regarding defective products within five (5) business days after delivery of the Goods.
7.3
If a defect exists, Cosphatec shall, at its discretion, be entitled to subsequent performance either by remedying the defect or by delivering a new defect-free item. Cosphatec shall bear the expenses required for subsequent performance (in particular transport, travel, labour and material costs) unless such expenses increase because the item has been moved to a place other than the place of performance; in such case, the Buyer shall bear the additional costs.
7.4
If subsequent performance fails, the Buyer shall be entitled, at its option, to withdraw from the contract or to reduce the purchase price.
7.5
Any claims of the Buyer for damages and reimbursement of futile expenses shall exist only in accordance with Clause 8 of these GTC and shall otherwise be excluded.
7.6
The limitation period for defect claims (Section 438 (1) No. 3 BGB) shall be twelve (12) months from the passing of risk, unless a longer limitation period is mandatorily prescribed by law; in that case, the mandatory statutory limitation period shall apply.
7.7
Without prejudice to further claims of Cosphatec, in the event of an unjustified notice of defects the Buyer shall reimburse Cosphatec for the expenses incurred for inspecting and, if requested, remedying the alleged defect
8. Other Liability
8.1
Unless otherwise provided in these GTC, including the provisions below, Cosphatec shall be liable for breaches of contractual or non-contractual duties in accordance with statutory provisions.
8.2
Cosphatec shall be liable for damages—regardless of the legal grounds—in cases of intent and gross negligence. In cases of slight negligence, Cosphatec shall be liable only: (i) without limitation for damages resulting from injury to life, body or health; and (ii) for damages resulting from breach of an essential contractual obligation (an obligation the fulfilment of which is essential for proper performance of the contract and on compliance with which the contractual partner regularly relies and may rely), limited to the foreseeable damage typically occurring, but in any event capped at the respective net order value of the individual contract concerned.
8.3
The limitations of liability arising from Clause 8.2 shall not apply if Cosphatec fraudulently concealed a defect or assumed a guarantee as to the quality of the Goods. The same applies to claims of the Buyer under the German Product Liability Act.
8.4
In the event of a breach of duty that does not consist of a defect, the Buyer may withdraw only if Cosphatec is responsible for such breach. Otherwise, the statutory requirements and legal consequences shall apply.
8.5
Liability for liquidated damages or contractual penalties due to delayed delivery or non-fulfilment of agreed delivery quantities or rates shall exist only to the extent permitted by law.
9. Third-Party IP Rights
9.1
Cosphatec shall deliver the contractual products free from third-party industrial property rights and copyrights (collectively, “IP Rights”).
9.2
If a third party asserts justified claims against the Buyer due to an infringement of IP Rights by contractual products used in accordance with the contract, Cosphatec shall, at its discretion and at its own expense, (i) procure a right of use for the relevant products, (ii) modify them so that the IP Right is no longer infringed, or (iii) replace them. If this is not possible on reasonable terms, the Buyer shall be entitled to the statutory rights of withdrawal or reduction. Claims for reimbursement of futile expenses shall be excluded. Any obligation to pay damages shall be governed by Clause 8.2.
9.3
The above obligations shall apply only if (i) the Buyer informs Cosphatec in writing without undue delay about the claims asserted by the third party, (ii) the Buyer does not acknowledge an infringement, and (iii) Cosphatec retains all defensive measures and settlement negotiations. If the Buyer ceases deliveries of the contractual products to its customers for reasons of damage mitigation or other important reasons, the Buyer shall promptly inform its customers that such cessation does not constitute an acknowledgement of an IP infringement.
9.4
Claims of the Buyer due to infringement of IP Rights or other defects in title shall be excluded if (i) the Buyer is responsible for the infringement, or (ii) the infringement or defect in title is caused by specific instructions of the Buyer, by use of the contractual products not reasonably foreseeable for Cosphatec, or by the fact that the contractual products have been modified by the Buyer or used together with products not supplied by Cosphatec. Any further claims beyond those set out in Clause 9 shall be excluded, except where liability is mandatorily required by law.
9.5
If Cosphatec is held liable by a third party in connection with the Buyer’s unauthorised or unlawful use of products, marketing materials or similar, based on an infringement of copyright, design law, trademark law or unfair competition law, the Buyer shall indemnify Cosphatec in full against all claims, provided the Buyer is responsible for such unauthorised or unlawful use, and shall bear all resulting damages as well as attorneys’ and court costs.
10. Trademark Right
10.1
All rights in and to the contractual products, including copyrights, trademark rights, company rights or other distinctive signs and know-how (if any), shall vest exclusively in Cosphatec. Cosphatec hereby grants the Buyer a non-exclusive, revocable at any time, royalty-free right to use Cosphatec’s trademarks associated with the contractual products. This right of use shall automatically terminate at the latest upon termination of the business relationship.
10.2
Cosphatec is not obliged to maintain existing future registered IP Rights or to register new IP Rights.
10.3
Any acts of use by the Buyer in connection with Cosphatec’s IP Rights shall be performed exclusively for Cosphatec. If trademarks or trademark-like rights arise as a result of such use by the Buyer, these shall be transferred to Cosphatec without undue delay.
11. Retention of Title
11.1
Cosphatec shall retain title to the delivered Goods until full payment of all claims arising from the ongoing business relationship with the Buyer (extended retention of title / current account retention of title).
11.2
If the balance of all outstanding claims from the business relationship is settled in full, the retention of title in respect of the Goods delivered up to that point shall expire. New deliveries after settlement of the balance shall be secured exclusively by retention of title in the newly delivered inventory; the expired retention of title shall not revive.
11.3
The Buyer shall be permitted to process or transform the delivered item (“Processing”). Processing shall be carried out for Cosphatec. If, however, the value of the delivered item owned by Cosphatec is lower than the value of the goods not owned by Cosphatec and/or the processing, Cosphatec shall acquire co-ownership of the new item in the ratio of the value (gross invoice value) of the processed delivered item to the value of the other processed goods and/or the processing at the time of processing. If Cosphatec does not acquire ownership of the new item under the foregoing, Cosphatec and the Buyer agree that the Buyer grants Cosphatec co-ownership in the new item in the ratio of the value (gross invoice value) of the delivered item owned by Cosphatec to the value of the other processed goods at the time of processing. The foregoing shall apply mutatis mutandis in the event of inseparable mixing or combination of the delivered item with goods not owned by Cosphatec. To the extent Cosphatec acquires ownership or co-ownership, the Buyer shall keep such items in safe custody for Cosphatec with the diligence of a prudent merchant.
11.4
In the event of resale of the delivered item or the new item, the Buyer hereby assigns to Cosphatec—by way of security—the Buyer’s claims against its customer arising from such resale, together with all ancillary rights, without any further declarations being required. The assignment shall include any balance claims. However, the assignment shall apply only up to the amount corresponding to the price invoiced by Cosphatec for the delivered item. The portion of the claim assigned to Cosphatec shall be satisfied with priority.
If the Buyer combines the delivered item or the new item with real property, the Buyer also assigns—without further declarations being required—its claim to remuneration for such combination to Cosphatec, up to the amount corresponding to the price invoiced by Cosphatec for the delivered item.
The Buyer represents that the above advance assignment is not blocked by a prior global assignment to third parties (in particular, banks). If such a global assignment exists, the Buyer shall inform Cosphatec without undue delay and, to the extent reasonable, ensure that Cosphatec’s rights under the extended retention of title are not impaired, in particular by obtaining a release or partial waiver declaration from its bank.
11.5
Until revoked, the Buyer shall be authorised to collect the receivables assigned to Cosphatec. The Buyer shall immediately forward to Cosphatec any payments received on the assigned receivables up to the amount of the secured claim. If Cosphatec has legitimate interests (in particular in the event of default in payment, cessation of payments, commencement of insolvency proceedings, bill protest, or justified indications of over-indebtedness or imminent inability to pay), Cosphatec shall be entitled to revoke the Buyer’s collection authorisation. The collection authorisation and the authorisation to resell shall automatically expire—without any separate declaration by Cosphatec—once the Buyer files for the opening of insolvency proceedings over its assets or such application is filed by a third party.
Furthermore, after prior notice and observance of a reasonable period, Cosphatec may disclose the security assignment, realise the assigned receivables, and require the Buyer to disclose the security assignment to its customers.
Upon substantiation of a legitimate interest, the Buyer shall provide Cosphatec with the information required to assert Cosphatec’s rights vis-à-vis the customers and shall hand over the necessary documents.
11.6
While retention of title exists, the Buyer may not pledge the Goods or transfer them by way of security. In case of attachment, seizure or other dispositions or interventions by third parties, the Buyer shall notify Cosphatec without undue delay. Resale of the delivered item or the new item shall be permitted only to resellers in the ordinary course of business and only on the condition that the Buyer receives payment from its customer; the Buyer shall also agree with its customer that ownership shall pass to the customer only upon such payment.
11.7
If the realisable value of all security rights to which Cosphatec is entitled exceeds the total secured claims by more than 10%, Cosphatec shall, upon the Buyer’s request, release a corresponding portion of the security rights. The Buyer may submit such request at any time if it demonstrates that the realisable value of the collateral exceeds 110% of the secured claims. Cosphatec shall have the right to choose which security rights to release. Cosphatec shall decide on a release request within ten (10) business days after receipt.
11.8
In the event of breaches of duty by the Buyer, in particular in the event of default in payment, Cosphatec shall—after granting a reasonable grace period of five (5) business days—be entitled to demand surrender of the delivered item or the new item and/or (if necessary after setting a deadline) to withdraw from the contract; the Buyer shall be obligated to surrender the Goods. A demand for surrender shall not constitute a declaration of withdrawal unless explicitly stated.
12. Confidentiality
12.1
The Buyer shall treat all non-public technical, commercial and organisational information disclosed through the business relationship with Cosphatec as trade secrets and shall neither use such information for its own purposes nor make it accessible to third parties during the term of and after termination of this contract. Recording shall be permitted only to the extent required for the contractual purpose.
12.2
The Buyer shall use the information and documents made available in the course of the cooperation with Cosphatec solely for performing the tasks assigned to it. The same shall apply to any results, data and knowledge generated in connection with this contract or individual contracts.
12.3
Within the limits of the state of the art, the Buyer shall immediately and effectively protect all information and data of Cosphatec against unauthorised access by third parties, in particular against theft, loss, manipulation, damage or any reproduction.
12.4
If the Buyer has indications that unauthorised third parties may have obtained knowledge of the information and data, the Buyer shall inform Cosphatec without undue delay and, in coordination with Cosphatec, take all necessary steps to clarify the facts and, if necessary, prevent future access.
12.5
In maintaining confidentiality, the Buyer shall apply the diligence of a prudent merchant, and at least the same care it applies to its own confidential information.
13. Antitrust Clause
13.1
The Buyer undertakes to comply with Article 101 TFEU and Article 102 TFEU, the applicable national antitrust laws and any other national competition law provisions. Once it has been established by a final decision of the German Federal Cartel Office, a cartel court, the European Commission, a competition authority within the meaning of Regulation (EC) No 1/2003, or any other national or supranational competition authority, that the Buyer participated/participates in an antitrust infringement during the period of the business relationship/purchase of goods, the Buyer shall pay liquidated damages in the amount of ten percent (10%) of the amounts invoiced by Cosphatec for the products/services affected by the anticompetitive arrangements, plus interest of eight percent (8%) from the beginning of the cartel. The Buyer shall remain entitled to prove that Cosphatec has suffered no damage or substantially lower damage than the liquidated amount stated above. Cosphatec reserves the right to assert further contractual or statutory claims for damages, in particular due to the antitrust infringement. The Buyer shall provide Cosphatec, upon request, without undue delay with the information necessary to review the existence and scope of such claims. The obligation to pay damages shall also apply if the business relationship has already ended at the time the antitrust infringement is established.
14. Governing Law, Jurisdiction, Contract Language
14.1
These GTC and the contractual relationship between Cosphatec as seller and the Buyer shall be governed by the laws of the Federal Republic of Germany, excluding the international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
14.2
If the Buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, Cosphatec’s registered office (currently Hamburg, Germany) shall be the exclusive place of jurisdiction, including international jurisdiction, for all disputes arising directly or indirectly from the contractual relationship. The same shall apply if the Buyer is an entrepreneur within the meaning of Section 14 BGB.
Cosphatec shall also be entitled to bring an action at the place of performance of the delivery obligation pursuant to these GTC or any overriding individual agreement, or at the Buyer’s general place of jurisdiction. Mandatory statutory provisions (exclusive places of jurisdiction) shall remain unaffected.
14.3
The contract language shall be German. If contract copies or parts thereof are additionally prepared in another language, the German version shall prevail in case of ambiguities or discrepancies. Negotiation language shall be German or English.
