General Terms and Conditions
Status 2019-08
We – Commeo – confirm your order subject to the exclusive application of our general terms and conditions of sale.
§ 1 Application
(1) These terms and conditions of sale shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing.
(2) These terms and conditions of sale shall also govern all future transactions between the parties and shall also apply if we perform delivery despite our knowledge of differing or contrary terms. These terms and conditions apply to any products made and/or sold by Commeo.
(3) These terms and conditions of sale shall only apply vis á vis entrepreneurs, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code).
§ 2 Offer, Acceptance
Insofar as the order constitutes an offer within the meaning of § 145 BGB we are entitled to accept the offer within two weeks. Offers made by Commeo e.g. on its Website does not constitute binding contractual offers. These online-offers are merely requests for an offer by the purchaser for the respective product.
§ 3 Documents
With regard to all documents submitted to the Purchaser in written or electronic form, eg calculations, drawings, technical data, performance descriptions, software, etc., we reserve the right to property and copyrights. These documents may not be made accessible to third parties without our written consent. If we do not accept the offer of the Purchaser within the time limit of § 2, these documents shall be returned to us immediately.
§ 4 Prices, Payment
(1) Prices are ex works (EXW 49134 Wallenhorst, Otto-Lilienthal-Straße 8, Germany), exclusive of the respective statutory VAT The prices include packaging that complies with the respective national and international law.
(2) The purchase price is due and payable net within 14 days from the date of the invoice. From the due date default interest in the amount of 9% above the respective base interest rate p. a. shall accrue. We reserve all rights to claim further damages for delay.
(3) All prices are based on Euro. If prices in offers or contracts specified or agreed in a different foreign currency the relevant daily rate (corresponding foreign currency to Euros) – also called base rate – will be listed at the same time. If the exchange rate oft he foreign currency on the actual date of payment differs by more than 3% from the base rate, Commeo reserves the right to adjust the contract price accordingly.
(4) In the event of an increase in material production and/or material and/or product procurement costs, energy costs and costs due to environmental regulations, and/or currency regulations and/or customs changes, and/or freight rates and/or public charges, Commeo shall be entitled to unilaterally increase the prices of the goods accordingly from the date of the price change if more than 3 months elapse between conclusion of the contract and deliver. This provision shall apply mutatis mutandis to any further change in the prices of the aforementioned commodities as compared with the last change in the prices of the aforementione commodities Commeo will immediately inform the purchaser of the price change. An increase in the prices in the aforementioned sense is excluded insofar as the increase in costs for individual or all of the aforementioned factors is offset by a reduction in costs for other of the aforementioned factors in relation to the total costs for the delivery. If the abovementioned cost factors are reduced without the cost reduction being offset by an increase in other abovementioned cost factors, the cost reduction shall be passed on to the purchaser in the form of a price reduction. The aforementioned price adjustments may be announced in writing or through certified access to a price list on the website of Commeo. In the latter case, the purchaser is obliged to consult this regularly in order to be aware of the price adjustments.
§ 5 Offset, Right to Retain
The purchaser shall be entitled to offset only insofar as the purchaser’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. The purchaser is entitled to claim retainer rights only to the extent such rights are based on the same transaction. Claims of the Purchaser against Commeo may only be assigned to third parties with the prior written consent of Commeo. sec. 354a HGB (German Commercial Code) shall remain unaffected.
§ 6 Delivery
(1) Delivery is conditioned upon timely and proper performance of all duties of the purchaser. Defences based on non-performance of the contract are reserved.
(2) In case of default in acceptance or other breach of duties to cooperate by the purchaser we are entitled to claim any resulting damage including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the purchaser at the time of such default or breach of duty to cooperate.
(3) Further legal claims and rights of the customer/purchaser due to a default in delivery remain unaffected.
§ 7 Passing of Risk, Shipment
(1) In principle, EXW Incoterms 2010 Otto-Lilienstraße 8, 49134 Wallenhorst, Germany, applies to the shipment and transfer of risk.
(2) If the goods are shipped at the request of the purchaser, the risk of accidental loss and accidental deterioration of the goods shall be transferred the purchaser at the time of shipment.
§ 8 Retention of Title
(1) We retain title to the goods until receipt of all payments in full. In case of breach of contract by the purchaser including, without limitation, default in payment, we are entitled to take possession of the goods.
(2) The purchaser shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.
(3) As long as the purchase price has not been completely paid, the purchaser shall immediately inform us in writing if the goods become subject to rights of third persons or other encumbrances.
(4) The purchaser may resell goods subject to the above retention of title only in the course of his regular business. For this case, the purchaser hereby assigns all claims arising out of such resale, whether the goods have been processed or not, to us. Notwithstanding our right to claim direct payment the purchaser shall be entitled to receive the payment on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the purchaser complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
(5) Insofar as the above securities exceed the secured claim by more than 10%, we are obligated, upon our election, to release such securities upon the purchaser’s request.
§ 9 Warranty
(1) Precondition for any warranty claim of the purchaser is the purchaser’s full compliance with all requirements regarding inspection and objection established by sec. 377 HGB.
(2) Diverging from Art. 39 (2) CISG (United Nations Convention on Contfacts for the International Sale of Goods 1980) warranty claims shall be time-barred after 12 months of the passage of risk.
(3) In case of non-conformity of the goods the purchaser is entitled to alternative performance in the form of subsequent improvement or delivery of conforming goods. If such alternative performance has failed, the purchaser is entitled to reduce the purchase price or to withdraw from the contract. The rules of the CISG (United Nations Convention on Contracts for the International Sale of Goods 1980) apply in conjunction with German law in the case of warranty claims.
(4) Claims for warranty do not exist in the event of a minor deviation from the agreed upon condition, in case of insignificant impairment of usability, in natural wear and tear, as in the case of damage which is unsuitable after the passing of risk due to faulty or negligent treatment, excessive stress, unsuitable operating equipment or due to special external influences which are not presupposed under the contract. If improper repair work or modifications are made by the purchaser or third parties, the purchaser shall not be entitled to guarantee or compensate for these changes and any consequences of these changes.
(5) The place of fulfillment of the supplementary performance is business location of Commeo in Wallenhorst, Otto-Lilienthal-Straße 8, Germany.
(6) Claims of the customer due to the expenses necessary for the purpose of the supplementary performance, in particular transport, path, work and material costs, shall be excluded insofar as the expenses increase because the goods delivered by us have been moved to a place other than the place of business of the purchaser as agreed in the contract.
§ 11 Industrial property rights and copyrights
(1) Commeo does not guarantee that the delivered products do not violate any industrial property rights or copyrights of third parties. The purchaser must immediately notify Commeo of any claims raised against him for this reason. The purchaser shall neither remove, alter, cover nor otherwise disclaim any indications on the products concerning copyrights, trademarks or other proprietary rights.
(2) The purchaser must release Commeo from all claims made by third parties based on infringement of industrial property rights and copyrights if the delivered products were manufactured according to designs or instructions of the purchaser.
§ 12 force majure and self-supply
1) If Commeo does not receive, does not receive correctly or does not receive on time the deliveries or services of Commeo’s suppliers for reasons for which it is not responsible for the provision of the contractual delivery/service owed by Commeo, despite proper and sufficient coverage, or if events of force majeure of not inconsiderable duration of at least 14 calendar days occur, Commeo shall inform the purchaser thereof in writing or in text form duly. In this case, Commeo shall be entitled to postpone the delivery/service for the duration of the impediment or to withdraw from the contract in whole or in part with regard to the unfulfilled part of the contract, provided that Commeo has complied with the aforementioned duty to inform. The following shall be deemed equivalent to force majeure: war (whether declared or not), blockade, military embargo, act of terrorism, sabotage, piracy, strike, lockout, pandemic, epidemic, intervention by the authorities, shortage of energy and raw materials, transport bottlenecks or impediments for which Commeo is not responsible, impediments to operations for which Commeo is not responsible – e.g., a delay in the delivery of the goods or the delivery of the goods to a place other than the place of performance. e.g. due to fire, water and machine damage – and all other impediments that, from an objective point of view, have not been culpably caused by Commeo.
2) If a delivery and/or service date or a delivery and/or service period has been bindingly agreed and if the agreed delivery date or the agreed delivery period is exceeded due to events in accordance with the above paragraph 1, the purchaser is entitled to withdraw from the contract with regard to the part of the contract not yet fulfilled after a reasonable grace period has expired without result. Additional claims of the purchaser, in particular those for damages, are excluded in this case.
3) The above settlement from paragraph 2 shall apply accordingly if, for the reasons stated in paragraph 1, it is objectively unreasonable for the purchaser to continue to adhere to the contract even without contractual agreement of a fixed delivery date.
4) If the impediment to performance and/or delivery is based on a pandemic/epidemic such as the Corona/Covid19 pandemic or a comparable event that is already known to the public through official announcements by public bodies, governments and authorities and thus also to the contracting parties at the time of conclusion, amendment and extension of the contract, Commeo may nevertheless invoke the above paragraphs if the respective pandemic/epidemic or comparable event declines or expands, so that this decline or expansion results in an impediment to performance within the meaning of the above paragraphs. In particular, but not exclusively, this shall be the case if, for example, sovereign measures (e.g. lockdown, plant closures and travel restrictions) or the absence of at least 10% of Commeo’s employees or their suppliers – regardless of whether the employees are demonstrably infected, ill or neither of them – are such an impediment. The above shall apply mutatis mutandis if the decline or expansion of the pandemic/epidemic or comparable event is wave-like.
§ 13 Deterioration of assets
If the Purchaser breaches his obligations to pay or fulfill other contractual obligations, or if an insolvency proceeding against his assets or an out-of-court settlement procedure is requested, Commeo shall be entitled to rescind the non-fulfilled part of the contract.
§ 14 Authentic Language
In case of differences between German and English version the German version has priority. The English version is only a help for translation.
List of Terms
(general) terms and conditions of sale
default in acceptance
offset
base interest rate
retention of title
defence based on non-performance of the contract
assistant in performance
due and payable
foreign currency
passage of risk
Counterclaim
total costs
statutory VAT
warranty
governmental entity
default in delivery
delivery / warranty certificate
remedy of defect
obligation to cooperate
alternative performance
(course of) normal business
special governmental estate
Legal declarations
Commodities
Price list
Product Liability Act
product procurement costs
Convention on Contracts for the International Sale of Goods (CISG)
Entrepreneur
requirements regarding inspection and objection
Deterioration of assets
default interest
stay of payments
accidental deterioration
rights to retain
customs changes
