General Sales Terms and Conditions
Landsberger Straße 155,
§ 1 General – Scope of Application
1. Our Sales Terms shall apply exclusively; we do not acknowledge any conditions from the customer that differ or deviate from our Sales Terms unless we have expressly agreed to them in writing. Our Sales Terms shall also apply if we effect delivery to the customer without reservation despite knowledge that the customer has conditions that differ or deviate from our Sales Terms.
2. Our salespersons are not authorized to make oral ancillary agreements or give assurances that extend beyond the written agreement.
3. Our Sales Terms shall only apply to companies in terms of § 310 para. 1 of the German Civil Code.
4. Force majeure, cessation of operations, production limitations, strikes, damage to production facilities, non-delivery or delayed delivery by upstream suppliers, official actions or similar, unforeseen events shall discharge us from fulfillment of concluded agreements. Damage claims by the customer shall not arise therefrom.
§ 2 Offer – Offer Documents
1. Our statements and promotional representations are not offers to conclude agreements but rather invitations – non-binding in content – to submit bids (“invitatio ad offerendum”). An agreement is deemed to exist only with written confirmation of an order or with delivery of the products.
2. Details concerning the delivery period shall be understood as estimated delivery times.
3. If the purchase order qualifies as an offer pursuant to § 145 of the German Civil Code, we may accept this offer within 2 weeks.
§ 3 Provided Documents
We reserve ownership rights, intellectual property rights and copyrights for all documents provided to the customer relating to placement of the order, e. g. calculations, illustrations, etc. These documents may not be made available to third parties unless we provide the customer with our express written consent to do so. If we do not accept the customer’s offer within the period in § 2, these documents shall be returned to us without delay.
§ 4 Prices – Payment Terms
1. Unless otherwise agreed or provided for in the order confirmation, our prices shall apply “ex works”, excluding packaging; packaging shall be invoiced separately.
2. The statutory value-added tax is not included in our prices; the statutory amount shall be listed on the day of billing separately on the invoice.
3. The deduction of discounts requires a special written agreement.
4. Unless otherwise provided for in the order confirmation, the net purchase price (without deduction) shall be due within 7 days from the date of invoice. The legal rules concerning the consequences of default of payment shall apply.
5. The customer shall only be entitled to set-off rights if its counterclaims are adjudicated as final, undisputed, or acknowledged by us or are in a close relationship of mutuality with our demand. Furthermore, the customer is only entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.
§ 5 Delivery Period
1. The beginning of the delivery period specified by us assumes that all technical questions have been clarified between us and the customer.
2. Further, fulfilment of our delivery assumes that the customer has timely and properly fulfilled its obligation. The right to object to non-fulfilment of the contract shall remain reserved.
3. If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect including any additional expenditures. Further claims or rights shall remain reserved.
4. If the conditions under section I., § 3 clause 3. exist, the risk of accidental loss or accidental deterioration of the product shall at that time transfer to the customer when he fell in default of acceptance or payment.
5. We accept liability in accordance with the legal requirements insofar as the underlying purchase agreement is a fixed date transaction in terms of § 286 para. 2 no. 4 of the German Civil Code or § 376 of the German Commercial Code. We also accept liability in accordance with the legal requirements provided that the customer is entitled to assert that its interest in fulfilling the agreement further has ended due to a delay in delivery for which we are responsible.
6. We further accept liability in accordance with the legal requirements provided that the delay in delivery is due to willful or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. Provided that the delay in delivery is caused by a negligent breach of contract for which we are responsible, our liability for damages shall be limited to foreseeable damages that typically occur.
7. We also accept liability in accordance with the legal requirements provided that the delay in delivery for which we are responsible is caused by the culpable breach of an essential contractual obligation; in this case, however, the liability for compensation is limited to foreseeable damages that typically occur.
8. Additional statutory claims and rights of the customer shall remain reserved.
§ 6 Transfer of Risk, Packaging Costs
1. Unless otherwise provided for in the order confirmation, the delivery is stipulated to be “ex works”.
2. If the product is shipped to the customer at the customer’s request, the risk of accidental loss or accidental deterioration of the product shall transfer to the customer upon dispatch to the customer, at the latest when the products leave the factory/warehouse. This shall apply independent of whether the product is dispatched from the place of performance or who bears the freight charges.
3. Separate agreements shall apply to the taking back of packaging.
4. We shall cover the delivery with transport insurance if desired by the customer; the customer shall bear any costs that arise therefrom.
§ 7 Warranty, Compliance with Operating Instructions
1. The customer’s warranty claims require that the customer has properly fulfilled its obligations to examine and give notice of defects in accordance with § 377 of the German Commercial Code.
2. If a defect exists, we shall be entitled to make supplementary performance at our option in the form of remedial action or delivery of a new item free of defects. In the event of supplementary performance, we shall bear the necessary costs only up to the amount of the purchase price.
3. If supplementary performance fails, the customer is entitled, at its option, to demand rescission or price reduction. A failure to remedy shall only be assumed if we have been granted sufficient opportunity for rectification twice within a reasonable period, but the desired success is not achieved, rectification is not possible, we refuse to or unreasonably delay rectification, reasonable doubt exists concerning the prospect of success or rectification is unreasonable for other reasons.
4. The limitation period for defect claims is 12 months, calculated from the time of transfer of risk.
- 5. The limitations and shortening of limitation periods governed above shall not apply. i) to items that have not been used according to their customary use for a building, causing them to be defective,
- ii) to damages arising to injury to life, body and health caused by a willful or negligent breach of duty on the part of the seller or a seller’s legal representative or vicarious agents,
- iii) to other damages caused by a willful or gross negligent breach of duty on the part of the seller or a user’s legal representative or vicarious agents, or
- iv) if the seller fraudulently conceals the defect.
6. The limitation period in the event of recourse against the supplier according to §§ 478, 479 of the German Civil Code shall remain unaffected.
7. The operating instructions must be observed for the respective product. The operating instructions are available at the following link: www.casodia.com
§ 8 Joint and Several Liability
We shall be liable to the customer as follows for all contractual, quasi contractual and legal claims as well as tort claims for damages and reimbursement of expenses:
1. The seller shall have unlimited liability on any legal ground. i) in cases of intent or gross negligence,
ii) for willful or negligent injury to life, body or health,
iii) due to a guarantee commitment, unless otherwise provided with respect thereto, and/ or
iv) based on mandatory liability such as the product liability law.
2. In the case of breach of an essential contractual obligation, liability is limited to the foreseeable damages typical for the contract provided that unlimited liability is not assumed pursuant to the clause above. Fundamental contractual obligations are obligations that, according to their content, the agreement imposes upon the seller to achieve the purpose of the agreement, the fulfillment of which is only made possible through proper implementation of the contract and the observance of which the customer may ordinarily rely upon.
3. We shall otherwise be exempt from liability.
4. The abovementioned limitation shall also apply insofar as the customer demands useless expenses in lieu of performance instead of a claim for damages.
5. Insofar as our liability for compensation is excluded or restricted, this shall also apply
with respect to personal liability for compensation on the part of our employees, workers, personnel representatives and vicarious agents.
§ 9 Guarantee of Retention of Title
1. We shall retain ownership of the product until all payments have been made under the supply agreement. We shall be entitled to take the product back should the customer act in a way that is contrary to the agreement, particularly in the case of default in payment. Our taking the product back means a rescission of the agreement. We shall be entitled to use the product after it is taken back. The utilization proceeds shall be credited towards the customer’s obligations – less reasonable utilization costs.
2. The customer is obligated to, handle the product with care; in particular, the customer is obligated to insure the product at the customer’s own expense against fire, water and theft adequately to cover the replacement value. If necessary, the customer shall timely conduct maintenance and inspection work at its own expense.
3. The customer shall notify us immediately in writing in the event of attachments or other actions by third parties so that we may take legal action pursuant to § 771 of the German Code of Civil Procedure. If the third party is unable to reimburse us for the court and out-of-court costs of legal action pursuant to § 771 of the German Code of Civil Procedure, the customer shall be liable for the losses that we incur.
4. The customer shall be entitled to resell the product in the ordinary course of business; however, it shall already now transfer to us all claims against its buyers or third parties in the amount of the final invoice (including VAT) that it acquires from the resale, irrespective of whether the product is resold without or after processing. The customer shall also remain entitled to collect this claim after the assignment. Our entitlement to collect the claim ourselves shall be unaffected thereby. However, we agree not to collect the claim so long as the customer meets its payment obligations using the proceeds collected, does not default in payment and particularly if no motion is made to open a reorganization or insolvency proceeding or payments are not suspended. Should this be the case, however, we may demand that the customer disclose to us the assigned claims and their debtors, give us all information necessary for collection, hand over the documents associated therewith and inform the (third party) debtors of the assignment.
5. The processing or conversion of the product by the customer shall always be carried out on our behalf. Should the product be processed with other items that do not belong to us, we shall acquire joint ownership of the new item in proportion of the value of the product (final invoice amount including VAT) to the other items processed at the time of processing. The same as applies to products delivered with conditions shall apply to items created by this processing.
6. Should the product be inseparably comingled with other items that do not belong to us, we shall acquire joint ownership of the new item in proportion of the value of the purchased item (final invoice amount including VAT) to the other items comingled at the time of comingling. If the comingling is carried out in such a way that the customer’s component is to be considered the main component, it is agreed that the customer shall assign ownership to us proportionally. The customer shall reserve for us sole ownership or joint ownership that arises in this manner.
7. The customer shall also assign to us the claims that support our claims against it that arise against a third party from the integration of a product into a property.
8. At the customer’s request, we shall undertake to release the securities to which we are entitled, as the realizable value of our securities exceed the receivables to be secured by more than 20%; it shall be incumbent upon us to choose the securities to be released.
§ 10 Data protection and data security
1. Both parties shall observe applicable legal data protection provisions, in particular, those applicable in Germany, and shall oblige their employees used in connection with this Agreement to maintain data secrecy in accordance with statutory provisions.
2. It is agreed that the customer shall remain the “data owner” both generally in the contractual relationship and in the data protection sense. The customer is the sole authorized party to the data with regard to the power of disposition over all personal data used by it. We, and all third parties involved with implementation of the Agreement, do not carry out controls over personal data stored for the customer in terms of the legal permissibility of collection, processing use; the customer bears sole responsibility for this.
3. For the purposes of implementation of the Agreement, the customer grants us the right to be able to reproduce personal data stored by us for customers, insofar as this is required for performance of the services owed pursuant to this Agreement. We are also entitled to keep the data in a backup system or separate backup computer centre. To eliminate disruptions, we are further entitled to make changes to the structure of the data or the data format.
4. We can assign subcontracts but shall impose on any subcontractors the relevant obligations which result from the Agreement and these terms and conditions.
5. We or third parties commissioned by us shall take technical and organizational security precautions and measures for compliance with statutory data protection provisions.
6. The customer is fundamentally not entitled to require access to the premises of the computer centre, from which the Platform is operated. The statutory rights of the customer’s data protection officers to review compliance with statutory data protection provisions – following written notification – remain unaffected hereby.
7. The Contracting Parties proceed on the basis of the absence of an order-related data processing agreement.
8. If and to the extent that the customer processes personal data on IT systems for which we have technical responsibility, an order-related data processing agreement is to be concluded with us. To the extent that we could access personal data, we act solely as the external data processing service (art. 28 GDPR) and process and use such data only in performance of the Agreement. We shall observe the customer’s instructions for handling such data. The customer shall be responsible for any adverse consequences of such instructions for performance of the Agreement. Details relating to the handling of personal data shall then be regulated in the order-related data processing agreement.
§ 11 Modification of these Terms
1. We are entitled to modify these Terms (sections I. to III.) provided that the fundamental provisions of the contractual relationship remain unaffected thereby, the modification being required to adapt to developments that were not foreseeable upon conclusion of the agreement and which, if not considered, would significantly impair the equity of the contractual relationship. “Fundamental provisions” in this sense are specifically those that refer to the type and scope of the contractually stipulated subject matter of performance and the term including the provisions concerning termination.
2. We are also entitled to adjust or amend the Sales Terms if this is required to eliminate issues concerning performance of the agreement due to regulatory loopholes that emerge after the agreement is concluded. This can particularly be the case if one or more clauses of these Sales Terms are declared by courts to be invalid in whole or in part.
3. Intended modifications to the General Terms and Conditions according to section III., § 2 clauses 1 and 2 shall be communicated to the customer at the contact address provided by the customer at least one month before their effective date. The customer shall have an exceptional right of termination on the effective date for the modifications. If the customer does not terminate the agreement in writing within one month after notice of modification, the modifications shall become an integral part of the agreement on the effective date. The customer shall be explicitly informed of this consequence in the notice of modification.
§ 12 Place of Jurisdiction – Place of Performance
1. If the customer is a merchant, legal entity under public law or special fund under public law, the exclusive place of jurisdiction – for the documents and exchange process, as well – shall be our registered office; however, we shall be entitled to initiate litigation with the court having competent jurisdiction over the customer’s place of business.
2. The customer shall independently observe the import and export rules to be applied to the deliveries or services, particularly those of the United States. The customer shall bear any customs duties, fees or other expenses for cross-border deliveries or services. The customer shall independently handle legal or administrative proceedings concerning cross-border deliveries or services unless otherwise expressly agreed.
3. The law of the Federal Republic of Germany shall govern exclusively; the application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
4. Unless otherwise provided for in the order confirmation, our registered office shall be the place of performance.
§ 13 Miscellaneous provisions
1. We are entitled to use the services of third parties (vicarious agents) to fulfil our obligations.
2. The contractual language is German.
3. No ancillary agreements have been made.