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§ 1 Applicability of the Terms and Conditions
1. The following terms and conditions apply to all our business relationships with our customers (“Buyers”), provided that the Buyer is a trader within the meaning of § 14 of the German Civil Code (BGB), a legal person governed by public law or a special fund under public law within the meaning of § 310(1) of the German Civil Code (BGB).
2. Our General Terms and Conditions of Business and Delivery shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Buyer shall only form part of the contract to the extent that we have expressly agreed to their validity. This requirement for consent shall also apply in cases where the Buyer refers to its own general terms and conditions in the context of its order and we have not expressly objected to them.
3. These General Terms and Conditions of Sale apply to contracts for the sale and/or delivery of movable goods (‘Goods’). It is immaterial whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433 and 650 of the German Civil Code (BGB)). Unless otherwise agreed, these General Terms and Conditions of Sale shall apply, in the version valid at the time of the buyer’s order or in the version most recently communicated to the buyer in writing, as a framework agreement also for similar future contracts, without us as the seller being required to refer to them again on a case-by-case basis.
4. Individual agreements made with the buyer on a case-by-case basis (including ancillary agreements, additions and amendments) and details set out in our order confirmation shall take precedence over these General Terms and Conditions of Sale. Subject to evidence to the contrary, a written contract or our written confirmation shall be decisive as to the content of such agreements.
5. Legally relevant declarations and notifications by the buyer concerning the contract (e.g. notices of defects, setting of deadlines, withdrawal or reduction in price) must be made in writing, i.e. in written and textual form (e.g. letter, email, fax). Any further statutory formal requirements and additional evidence (where necessary, in the event of doubts regarding the declarant’s legitimacy) remain unaffected.
6. Where reference is made to the applicability of statutory provisions, it should be noted that such references serve merely to clarify. The statutory provisions shall apply – even if no such clarification has been provided – to the extent that they are not amended or excluded by these General Terms and Conditions of Sale.
§ 2 Offer and Conclusion of Contract
1. Our offers are subject to change and non-binding. This also applies even if we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, cost estimates, references to DIN standards) and other product descriptions or documents (including in electronic form). We reserve ownership rights and copyright in all documents provided to the buyer in connection with the placing of the order. These documents must not be made available to third parties unless we give the buyer our express written consent to do so.
Insofar as the quotation includes cost estimates, drawings, illustrations, samples, dimensions and weights, etc., minor or customary deviations and alterations are possible, meaning that they are only approximate in this respect, unless expressly agreed otherwise.
2. When the buyer places an order for the goods, this constitutes a non-binding offer to enter into a contract in accordance with Section 145 of the German Civil Code (BGB). Unless otherwise stated in the order, we are entitled to accept this offer to enter into a contract within four weeks of its receipt by us.
3. The Buyer’s acceptance of the offer to enter into a contract may be declared either in writing (e.g. by means of an order confirmation) or by delivery of the goods to the Buyer. Should we, as the seller, fail to accept the Buyer’s offer within the period specified in Section 2, the documents sent by us to the Buyer must be returned to us without delay.
The contract shall also be deemed to have been concluded if CT-Coating AG confirms acceptance of the order in writing within this period (4 weeks), has carried out the delivery or service, or commences performance of the service or delivery.
4. If the client cancels the contract without there being a valid reason justifying termination or withdrawal, the contractor may, instead of calculating specific damages, demand the following graduated cancellation fees (each based on the net contract sum):
• up to 24 weeks before the agreed delivery date: 10%
• up to 12 weeks before the agreed delivery date: 25%
• from 4 weeks before the agreed delivery date: 50%
The buyer is expressly permitted to prove that the contractor has suffered no loss at all or a loss substantially less than the respective lumb sum. The contractor reserves the right to claim a higher, substantiated loss in lieu of the lumb sum.
§ 3 Prices, Payment Terms
1. We are bound by the contractually agreed prices for our deliveries for a period of 4 months from the date the quotation is issued. In the event of a delivery date agreed at a later date, or if the buyer falls within the category of persons referred to in Section 310(1) of the German Civil Code (BGB), we shall deliver or perform at our prices valid on the date of transfer of risk, without prior notification to the buyer.
Unless a fixed-price agreement has been concluded, we reserve the right to make reasonable price adjustments due to changes in labour, material and distribution costs for deliveries taking place 3 months or more after the conclusion of the contract.
2. In the case of a sale by delivery, the buyer shall bear the transport costs ex-warehouse and the costs of any transport insurance requested by the buyer. In the event that we do not invoice the transport costs incurred in individual cases, we shall charge a fixed transport fee (excluding transport insurance). Any customs duties, fees, taxes and other public levies shall be borne by the buyer.
3. Payment of the purchase price must be made exclusively to the account specified in the order confirmation/invoice. Unless otherwise agreed, the purchase price is payable immediately upon invoicing and without deduction.
4. The buyer shall be in default once the above payment deadline has expired. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate pursuant to Section 288(2) of the German Civil Code (BGB), amounting to nine percentage points above the relevant base rate. We reserve the right to claim further damages arising from the default. In dealings with traders, our entitlement to commercial interest on overdue payments pursuant to Section 353 of the German Commercial Code (HGB) remains unaffected.
5. If, after the conclusion of the contract, it becomes apparent that our claim to payment of the purchase price is at risk due to the buyer’s inability to pay (e.g. following an application to open insolvency proceedings), we are entitled, in accordance with the statutory provisions on refusal to perform and, where applicable, after setting a deadline, to withdraw from the contract (Section 321 of the German Civil Code (BGB)). In the case of contracts where the manufacture of non-fungible goods (custom-made items) is owed, we may declare our withdrawal immediately. The statutory provisions regarding the dispensability of setting a time limit remain unaffected in this respect.
§ 4 Rights of retention
The buyer is only entitled to rights of set-off or retention if their claim has been legally established or is undisputed and their counter-claim is based on the same contractual relationship. In the event that defects occur in connection with the delivery, the buyer’s counter-rights, in particular those set out in Section 8(6), second sentence, of these General Terms and Conditions of Business and Delivery, remain unaffected.
§ 5 Delivery Period and Delay in Delivery
1. Any information regarding delivery times or production dates shall only be deemed to have been bindingly agreed if it has been individually confirmed by us in writing. The specified delivery periods are provided in good faith in accordance with the prevailing circumstances and shall be adhered to as far as possible. The delivery period shall be deemed to have been met if, by the end of the delivery period, the goods have left the factory or distribution centre, or, where dispatch is possible, notification of readiness for dispatch has been given. Should advance payments from the customer be received late, CT-Coating AG may notify the buyer in writing of updated delivery times shortly after receipt of the advance payment.
2. In the event that we are unable to meet contractually agreed delivery times for reasons beyond our control, we must inform the buyer of this circumstance without delay and, at the same time, notify them of the expected or new delivery time.
If a delayed delivery cannot take place even within the newly notified delivery period due to the unavailability of the goods or services, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already provided by the buyer (in the form of payment of the purchase price).
The service is deemed to be unavailable, for example, if our supplier has failed to deliver to us on time, if we have concluded a corresponding hedging transaction, if there are other disruptions in the supply chain (for example, due to force majeure), or if, in individual cases, we are not obliged to procure the goods.
3. Whether we, as the seller, are in default of delivery is determined in accordance with the statutory provisions. However, a prerequisite for us, as the seller, being in default of delivery is a formal notice of default from the buyer. In the event that we are in default of delivery, the buyer may claim lump-sum compensation for the loss incurred as a result of the delay. The flat-rate compensation for each full calendar week of delay shall amount to 0.5% of the net price (delivery value), but shall not exceed a total of 5% of the delivery value of the goods delivered late. We reserve the right to provide evidence that the buyer has suffered no loss or only a loss less than the above-mentioned flat-rate amount.
4. The buyer’s rights under § 10 of these General Terms and Conditions of Sale and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
§ 6 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
1. Delivery is made ex warehouse. The warehouse also constitutes the place of performance for the delivery and the place for any subsequent performance. Should the buyer wish to have the goods dispatched to a different destination (sale by delivery), they shall bear the costs of dispatch. In the absence of any contractual agreement, we may determine the method of dispatch (packaging, route of dispatch, carrier) at our discretion.
2. Upon handover of the goods to the buyer, the risk of accidental loss and accidental deterioration passes to the buyer. In the case of a sale by delivery, the risk of accidental loss of the goods, accidental deterioration of the goods and the risk of delay passes to the buyer as soon as the goods are handed over to the forwarding agent or carrier. Where the contract provides for acceptance of the goods, this shall be decisive for the transfer of risk. Further statutory provisions under the law governing contracts for work and services remain unaffected. The handover or acceptance of the goods shall be deemed to have taken place if the buyer is in default of acceptance.
3. In the event that the buyer is in default of acceptance or our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to claim compensation from the buyer for the damage incurred, including additional expenses (e.g. storage costs). Where this is the case, we shall invoice the buyer for a lump-sum compensation amounting to 0.5 per cent of the total order value per week (commencing from the delivery deadline or, if no delivery deadline has been specified, from the notification that the goods are ready for dispatch). Our statutory claims (reimbursement of additional expenses, reasonable compensation, termination) and the right to prove greater loss remain unaffected.
4. Proof of greater loss and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum shall be set off against any further monetary claims. The buyer, however, reserves the right to prove that we have incurred no loss at all or only a significantly lower loss than the aforementioned lump sum.
§ 7 Retention of Title
1. We reserve title to the goods delivered until full payment has been made of all our present and future claims arising from the contract of sale and any ongoing business relationship (secured claims).
2. Until full payment of the secured claims has been made, the goods subject to retention of title may neither be pledged to third parties nor transferred as security. The buyer must notify us in writing without delay in the event that an application is made to open insolvency proceedings or, in the event of third-party interventions (e.g. attachments) affecting the goods belonging to us. Insofar as the third party is unable to reimburse us for the judicial and extrajudicial costs of legal proceedings in accordance with Section 771 of the German Code of Civil Procedure (ZPO), the buyer shall be liable for the loss incurred by us.
3. In the event of conduct by the buyer in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled, in accordance with the statutory provisions, to withdraw from the contract and/or to demand the return of the goods on the basis of the retention of title. A demand for the return of the goods does not simultaneously constitute a declaration of withdrawal; rather, we are entitled merely to demand the return of the goods and to reserve the right to withdraw from the contract. In the event that the buyer fails to pay the purchase price due, we must first have set the buyer a reasonable deadline for payment, which must have elapsed without result, before asserting these rights. This applies only insofar as setting such a deadline is not dispensable under the statutory provisions.
4. Until revoked in accordance with Section 7(4)(c), the buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
a) Products resulting from the combination, mixing or processing of our goods are subject to retention of title to their full value, whereby we are deemed to be the manufacturer. In the event that, upon combination, mixing or processing with goods belonging to third parties, the third parties’ right of ownership remains in force, we shall acquire co-ownership in proportion to the invoice values of the combined, mixed or processed goods. In all other respects, the same provisions shall apply to the resulting product as to the goods delivered subject to retention of title. The buyer shall also assign to us, for security purposes, any claims arising against a third party as a result of the combination of the goods subject to retention of title with immovable property. In this case, we accept the assignment.
b) The buyer hereby assigns to us, as of this date, either in full or to the extent of our share of co-ownership pursuant to Section 7(4)(a), for security purposes, the claims against third parties arising from the resale of the goods or the product, in the amount of the final invoice amount agreed with us (including VAT). We accept this assignment. The obligations of the buyer set out in paragraph 2 above shall also apply in respect of the assigned claims.
c) The buyer remains authorised, alongside us, to collect the claim. Provided that the buyer meets its payment obligations towards us, there is no impairment of the buyer’s ability to pay, and we do not assert the retention of title by exercising a right under Section 7(3), we undertake not to collect the claim. Should we exercise a right pursuant to Section 7(3), we may require the buyer to disclose the assigned claims and their debtors, and to provide all information necessary for collection, hand over the relevant documents and notify the debtors (third parties) of the assignment. Furthermore, we are entitled to revoke the buyer’s right to resell the goods and their right to process the goods subject to retention of title.
d) In the event that the realisable value of the security exceeds our claims by more than 10 per cent, we shall, at the buyer’s request, release security at our discretion.
5. The buyer is obliged to treat the goods with due care for as long as ownership has not yet passed to them. In particular, they are obliged to insure the goods adequately at their own expense against theft, fire and water damage at replacement value. If maintenance and inspection work is required, the buyer must carry this out in good time at their own expense.
§ 8 The Buyer’s Claims for Defects
1. The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect or short deliveries, as well as improper assembly/installation or defective instructions), unless otherwise specified below. This is without prejudice to the statutory provisions governing the sale of consumer goods (Sections 474 et seq. of the German Civil Code (BGB)) and the buyer’s rights arising from separately issued guarantees, in particular those provided by the manufacturer.
2. Agreements which we have entered into with purchasers regarding the quality and intended use of the goods (including accessories and instructions) generally form the basis of our liability for defects under the warranty. An agreement on quality encompasses all product descriptions and manufacturer’s specifications that form part of the individual contract or are contained in the documents provided by us to the buyer at the time the contract is concluded. In the event that no quality has been agreed, the existence of a defect must be assessed in accordance with the provisions of Section 434(3) of the German Civil Code (BGB). Against this background, it should be noted that the manufacturer’s brochures and other documents provided prior to the conclusion of the contract take precedence over statements made by other third parties.
3. In the case of goods containing digital elements or other digital content, it should be noted that we are only obliged to provide and update the digital content insofar as this is expressly stipulated in an agreement on quality in accordance with paragraph 2 above. We accept no liability for public statements made by the manufacturer or other third parties.
4. We shall not be liable for defects of which the buyer is aware at the time of conclusion of the contract in accordance with Section 442 of the German Civil Code (BGB), or of which the buyer is unaware due to gross negligence.
5. The buyer’s claims for defects shall only exist insofar as the buyer has complied with their statutory obligations to inspect and give notice (Sections 377, 381 of the German Commercial Code (HGB)). Where the goods consist of building materials or other goods intended for installation or further processing, an inspection must be carried out immediately prior to processing. Written notice must be given to us without delay should a defect become apparent during delivery, during the inspection or at a later date. Obvious defects must be reported in writing within 8 calendar days of delivery, and hidden defects within the same period from the date of their discovery. Should the buyer fail to fulfil or neglect their obligation to carry out a proper inspection and/or to give notice of defects, our liability for any defect that has not been notified, or has not been notified in a timely or proper manner, is excluded in accordance with the statutory provisions. Where the goods were intended for fitting, mounting or installation, this shall also apply if the defect only became apparent after the relevant processing as a result of non-compliance with or breach of one of these obligations. In such cases, the buyer shall have no claim for reimbursement of ‘fitting and removal costs’.
6. Should the goods delivered prove to be defective, we, as the seller, shall have the right to choose whether to provide subsequent performance by rectifying the defect (repair) or by delivering goods free from defects (replacement). Should the method of subsequent performance chosen by us be unreasonable for the buyer in a particular case, the buyer may refuse it. We reserve the right, however, to refuse subsequent performance in accordance with the statutory requirements. Furthermore, we are entitled to make the subsequent performance to be provided by us conditional upon the buyer paying the purchase price due. The buyer is, however, entitled to withhold a portion of the purchase price commensurate with the defect.
7. The buyer must allow us the necessary time and opportunity to carry out the remedial action. In particular, the buyer must hand over to us the item in respect of which they have claimed a defect, for the purposes of inspection. In the event that we supply a replacement item free from defects, the buyer must return the defective item to us in accordance with the statutory provisions. However, the buyer is not entitled to a right of return.
8. Unless we have contractually undertaken to do so, subsequent performance shall not include the removal, dismantling or deinstallation of the defective item, nor the fitting, attachment or installation of a defect-free item. This shall not affect the buyer’s claims for reimbursement of ‘fitting and removal costs’.
9. We shall reimburse the expenses necessary for the purposes of inspection and subsequent performance (transport, labour and material costs, as well as, where applicable, removal and installation costs) in accordance with the statutory provisions and these General Terms and Conditions of Business and Delivery, provided that a defect exists. However, we may demand reimbursement from the buyer for costs incurred as a result of an unjustified request to remedy a defect, provided that the buyer knew or should have realized that no defect actually existed.
10. The buyer has the right to remedy the defect themselves and to demand reimbursement of the expenses objectively necessary for this, where there is an urgent need (e.g. in the event of a risk to operational safety or to prevent disproportionate damage). The buyer must inform us immediately if they carry out the remedy themselves. In the event that we are entitled to refuse subsequent performance in accordance with statutory provisions, the buyer has no right to remedy the defect themselves.
11. The buyer may, in accordance with statutory provisions, withdraw from the contract of sale or reduce the purchase price if a deadline set by the buyer for subsequent performance has expired without result or is dispensable under statutory provisions. However, in the event of a minor defect, the buyer shall have no right of withdrawal.
12. The buyer’s claims for reimbursement of expenses pursuant to Section 445a(1) of the German Civil Code (BGB) are excluded, unless the final contract in the supply chain is a sale of consumer goods (Sections 478, 474 BGB) or a consumer contract for the provision of digital products (Sections 445c, second sentence, 327(5), 327u BGB).
13. Claims for damages or for reimbursement of futile expenditure by the purchaser (Section 284 BGB) shall, even in the event of a defect, only arise in accordance with Sections 9 and 10 of the General Terms and Conditions of Business and Delivery.
14. If the supplier’s operating or maintenance instructions are not followed, modifications are made to the products, parts are replaced or consumables are used that do not comply with the original specifications, any warranty shall lapse unless the purchaser refutes a duly substantiated assertion that one of these circumstances alone caused the defect.
§ 9 Limitation Period
1. Notwithstanding § 438(1)(3) of the German Civil Code (BGB), the general limitation period for claims arising from material defects or defects of title shall be one year from delivery. Where acceptance has been contractually agreed, the limitation period shall commence upon acceptance.
2. In accordance with the statutory provisions, the limitation period is five years from delivery (Sections 438(1)(2) of the German Civil Code (BGB)) where the goods consist of a structure or an item which, in accordance with its usual intended use, has been used in a structure and has caused its defectiveness (building material). This is subject to further special statutory provisions on the limitation period (in particular Section 438(1)(1), (3), Sections 444 and 445b of the German Civil Code (BGB)).
3. The above limitation periods under the law of sale also apply to the purchaser’s contractual and non-contractual claims for damages arising from a defect in the goods, unless the application of the standard statutory limitation period pursuant to Sections 195 and 199 of the German Civil Code (BGB) would result in a shorter limitation period in the individual case.
Claims for damages by the buyer pursuant to Section 10(1) and Section 10(2)(a), as well as those under the Product Liability Act, are subject exclusively to the statutory limitation periods.
Section 10 Other Liability
1. We, as the seller, shall be liable, unless otherwise provided for in these General Terms and Conditions of Business and Delivery, including the following provisions, for breaches of contractual and non-contractual obligations in accordance with statutory provisions.
2. Within the scope of liability based on fault, we shall be liable for damages, irrespective of the legal basis, only in cases of intent and gross negligence.
In the event of simple negligence, subject to statutory limitations on liability (e.g. due care in our own affairs; minor breach of duty), we shall be liable only:
a. for damage resulting from injury to life, limb or health,
b. for damage resulting from a breach of a fundamental contractual obligation (obligations the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contracting party relies and is entitled to rely). In such cases, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
3. The limitations of liability arising under Section 10 shall also apply in relation to third parties and in the event of breaches of duty by persons for whose fault we are liable under statutory provisions. Where a defect has been fraudulently concealed and a guarantee as to the quality of the goods has been given, the limitations of liability shall not apply. This shall also apply to claims by the buyer under the Product Liability Act.
4. The buyer may withdraw from or terminate the contract on the grounds of a breach of duty not resulting from a defect only if we, as the seller, are responsible for the breach of duty.
5. Any right of the buyer to terminate the contract (in particular pursuant to Sections 650 and 648 of the German Civil Code (BGB)) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 11 Image file for customized front glass design
1. For orders involving customized front glass design of the glass heating modules, the image file provided by the customer must have a resolution of at least 300 dpi.
2. We do not acquire any rights to the image files provided by the customer at any time. We shall neither use the image files provided by the customer for any purpose other than the manufacture of the glass heating module, nor make them available to third parties.
3. The customer is solely responsible for the content of the image files provided. They must ensure that they hold all necessary copyright, trade mark or other rights relating to the image files transferred to us and to the front glass design commissioned. The customer shall bear sole responsibility for any consequences arising from a breach of these rights.
The customer is obliged to indemnify us against all justified claims made by third parties arising from the infringement of their rights due to the processing, reproduction and use of the image files provided in accordance with the order placed.
4. The content of the image files provided by the customer must not contravene any applicable prohibitive provisions, in particular the regulations governing the distribution of child pornography (Sections 184 et seq. of the German Criminal Code (StGB)). Should we become aware of any breaches of these provisions, we shall immediately involve the relevant law enforcement authorities.
§ 12 Governing Law and Jurisdiction
1. These General Terms and Conditions of Business and Delivery and the contractual relationship between us as the seller and the buyer shall be governed by the law of the Federal Republic of Germany, to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
2. If the buyer is a trader within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal person under public law or a special fund under public law, our registered office in Königswinter shall be the exclusive place of jurisdiction, including for international matters, 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 of the German Civil Code (BGB).
3. We are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Business and Delivery or any overriding individual agreement, or at the buyer’s general place of jurisdiction. This is without prejudice to any overriding statutory provisions (exclusive places of jurisdiction).
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