For the legal relations between CONTA-CLIP Verbindungstechnik GmbH (hereinafter referred to as CONTA-CLIP) and the purchaser, all deliveries and services from CONTA-CLIP are subject exclusively to these General Terms and Conditions of Delivery and Payment (hereinafter referred to as the conditions). The general terms and conditions of the purchaser shall apply only when CONTA-CLIP has expressly agreed to them in writing.
These conditions also apply to all future legal relationships between CONTA-CLIP and the purchaser.
The documents belonging to CONTA-CLIP's offers (such as illustrations, drawings, weights and dimensions) are only approximate unless they are expressly designated as binding. CONTA-CLIP reserves the property rights and copyrights to cost estimates, drawings and other documents and data, irrespective of the form in which they are in. These documents may not be made accessible to third parties without the consent of CONTA-CLIP.
The purchaser shall have the non-exclusive right to use standard software and firmware with the agreed performance characteristics in unmodified form on the agreed devices. The purchaser may make only one backup copy of the standard software without an explicit agreement.
The term "damage claims" in these conditions also includes claims for reimbursement of needless expenditures.
I. General Provisions
II. . Conclusion of contract, deliveries, assignment transfer
All offers are subject to change.
Only CONTA-CLIP's order confirmation is decisive for the scope of delivery. Partial deliveries are permissible if they are reasonable for the purchaser. If the deliverables have been custom manufactured to customer specifications, CONTA-CLIP shall be entitled to deliver 10% more or 10% less of the ordered quantity, based on manufacturing requirements.
The purchaser may only assign claims against CONTA-CLIP with their consent. This shall not apply to the purchaser's claims for payment.
III. Price and payment conditions
All prices are cited from the factory (ex works); they do not include packaging or the applicable VAT.
Costs associated with packaging, loading, freight, insurance, installation and initial commissioning will be charged additionally. Costs for installation or assembly include not only the agreed fee but also additional costs such as travel and transportation costs as well as allowances. CONTA-CLIP reserves the right to charge surcharges for partially opened packaging units. For an order value of up to 75.00 euro net per order, CONTA-CLIP charges a processing fee of 10.00 euro; discounts and agreed special prices are not granted.
CONTA-CLIP shall be bound to the prices agreed in the order for four months after the conclusion of the contract. If longer periods for providing the deliveries or services have been agreed, CONTA-CLIP is entitled to a pro rata premium for increased costs related to material or labour costs which have increased from the original price calculation.
The assertion of rights of set-off and retention by the purchaser is only permissible with undisputed or legally established claims.
IV. Retention of title
The delivered goods remain the property of CONTA-CLIP until full payment of the agreed price including all claims arising from the business relationship and future claims.
The purchaser is permitted to resell the goods in the ordinary course of business. The purchaser hereby assigns their claims from the resale of the reserved goods, in particular the claim for payment against its customers, to CONTA-CLIP, which accepts this assignment. The purchaser shall notify its debtors of the assignment at CONTA-CLIP's request. Claims and names of the purchaser's debtors shall be communicated.
The purchaser is entitled to collect claims from the resale. In the event of default in payment or if, according to commercial judgement, circumstances become known which reduce the creditworthiness of the purchaser, CONTA-CLIP is entitled to revoke the right of collection.
The processing of the reserved goods is carried out for CONTA-CLIP as manufacturer within the meaning of § 950 BGB (German civil code). If the reserved goods are processed or mixed with other items not belonging to CONTA-CLIP, CONTA-CLIP acquires co-ownership of the new item in the ratio of the net invoice value of the reserved goods to the net invoice value of the other goods used at the time of processing or mixing.
The transfer by way of security of goods subject to retention of title is not permitted. In the event of access by third parties to the reserved goods (in particular seizures), the purchaser will make notice of the reservation of title, notify CONTA-CLIP immediately, and send a copy of the seizure protocol.
CONTA-CLIP is entitled to withdraw from the contract and demand the return of the delivered goods if the purchaser acts in breach of contract.
V. Deadlines for deliveries; delays
- Compliance with delivery deadlines by CONTA-CLIP depends on all the documents (including permits, clearances and plans) that are to be provided by the purchaser being received on time, and compliance with the agreed terms of payment and other obligations by the purchaser. Unless these conditions are fulfilled in time, the deadlines set shall be extended appropriately; this shall not apply where CONTA-CLIP is responsible for the delay.
- If non-observance of the deadlines is due to force majeure (such as mobilization, war, uprisings, strike, lockout or pandemic), then the deadline periods shall be extended accordingly. The same applies in the event that CONTA-CLIP is not supplied in a timely or proper manner, when CONTA-CLIP is not responsible for this.
- If CONTA-CLIP is responsible for a delay, the purchaser may – provided he can substantiated that his damage was incurred because of the delay – claim compensation for each full week of the delay in the amount of 0.5%, but not more than 5% of the price for that part of the delivery which could not be put into useful service due to the delay. Clause XI shall apply to any further claims for damages.
- If dispatch or shipment is delayed at the purchaser's request by more than one month after notice of readiness for dispatch was declared, the purchaser can be charged a storage charge of 0.5% of the price of the delivery items for each new month, while the total storage charge may not exceed 5%. Proof of lower or higher storage fees is reserved for both contractual parties.
VI. Transfer of risk
Even with freight-free delivery, the risk shall pass to the purchaser as follows:
For deliveries without installation or assembly, when they are delivered or collected. At the purchaser's request and expense, deliveries from CONTA-CLIP shall be insured against the usual transport risks;
For deliveries including assembly and installation, on the day of acceptance on the client's premises or, insofar as agreed, along with the acceptance.
If the dispatch, handing over of goods, start, mounting, assembly, installation, acceptance into operations or test runs are delayed for reasons attributed to the purchaser, or if the purchaser delays acceptance on other grounds, then risk shall pass to the purchaser at the point of delay.
VIII. Material defects
- Claims from the purchaser because of defects presuppose that the delivered item does not have the contractually agreed quality or, if such quality was not agreed, is not suitable for the use presupposed according to the contract or for the usual usage. In the case of delivered items which are manufactured on the basis of special specifications of the purchaser, the delivered item is free of defects if it corresponds to the drawing approved by the purchaser.
- CONTA-CLIP hereby assigns its claims against suppliers of essential third-party products to the purchaser. The purchaser can only hold CONTA-CLIP liable for defects in essential third-party products if a previous out-of-court claim against the third-party supplier has been unsuccessful.
- The products are delivered free of any manufacturing or material defects. Should the delivered products nevertheless have defects, the customer must report these in writing immediately, but at the latest within eight days after receipt of the delivery. Defects which cannot be discovered within this period even after careful inspection shall be notified to us in writing immediately after they are discovered. By negotiating any notices of defects, CONTA-CLIP does not waive the objection that the notice was not in time, factually unfounded or otherwise insufficient. In the event of justified notices of defect, CONTA-CLIP has the right to choose between repair and replacement within a reasonable period of time. If such supplementary performance fails, the purchaser may reduce the price or – if the breach of contract is not minor – withdraw from the contract. In addition, they are entitled to claim damages or reimbursement of expenses, when applicable. If the purchaser withdraws from the contract, they must return the delivered item to CONTA-CLIP and – irrespective of other claims – pay an appropriate fee for the period of use in the amount of the usual rent.
- Claims by the purchaser for expenses incurred for the purpose of subsequent performance (in particular transport, travel, labour and material costs) are excluded insofar as the expenses increase because the delivery item has subsequently been taken by the purchaser or a third party to a location other than the place of delivery, unless the transfer corresponds to the intended use of the delivered item or was agreed with CONTA-CLIP when the contract was concluded. Transport costs incurred in the course of subsequent performance shall be borne by the purchaser.
- Claims of the purchaser concerning defects shall expire after 12 months beginning with the handover of the delivered item. This does not apply when the law (in §§ 438 para. 1 no. 2, 479 para. 1 and 634 a para. 1 no. 2 BGB of the German civil code) prescribes longer periods, namely for buildings and objects for buildings, recourse claims and construction defects.
- Claims for damages due to defects are limited as follows: we shall not be liable in the event of a slightly negligent breach of immaterial contractual obligations. Warranty claims shall not arise from minor deviations from the agreed quality, from minor impairment of usefulness, from natural wear and tear, or from damage arising after the transfer of risk and caused by faulty or negligent handling, excessive strain and unsuitable equipment which are not assumed under the contract. Liability for consequential harm caused by a defect is excluded except in the case of intent, gross negligence or breach of essential contractual obligations. Any claims for defects in the products shall be forfeited if CONTA-CLIP's operating, maintenance or assembly instructions are not followed, if modifications are made to the products, if parts are replaced, or if consumables are used that do not comply with the original specifications. Insofar as CONTA-CLIP is liable for consequential harm caused by a defect, liability is limited to foreseeable damage not attributable to extraordinary circumstances. Material contractual obligations are those whose fulfilment makes the proper performance of the contract possible and on whose compliance the purchaser may rely.
- The above limitation of liability does not limit the purchaser's claims for bodily injury or damage to health attributable to CONTA-CLIP or in the event of loss of life of the purchaser or its vicarious agents. The purchaser's claims under the Product Liability Act, claims in the event of a guarantee given by CONTA-CLIP, and claims in the event of fraudulent concealment of a defect also remain unaffected. The statutory limitation periods shall apply with regard to these claims.
- Recourse claims by the purchaser against CONTA-CLIP (in accordance with § 478 of German civil code: recourse of the contractor) are only possible insofar as the purchaser has not reached any agreements with his consumer which go beyond the statutory warranty claims. Item 4, above, shall also apply to the scope of the right of recourse for the purchaser against CONTA-CLIP, pursuant to § 478 para. 2 of the German civil code.
IX. Industrial property rights and copyrights; defects in title
- If not otherwise agreed upon, CONTA-CLIP shall be obliged to render the delivery free of any industrial property rights and copyrights of third parties (hereinafter referred to as "property rights"). Insofar as a third party asserts justified claims against the buyer owing to the infringement of property rights and copyrights through deliveries made by CONTA-CLIP which are used contractually, CONTA-CLIP shall be held liable to the purchaser within the time periods specified in clause VIII item 5 as follows:
- CONTA-CLIP shall, as it sees fit and at its costs, either obtain a right of use for the delivered goods concerned or modify them so that the proprietary right is not breached, or exchange it. If this is not possible for CONTA-CLIP under reasonable conditions, the purchaser is entitled to the statutory rights of withdrawal or reduction.
- CONTA-CLIP's obligation to pay damages is specified in Clause VIII. 6.
- The above obligations of CONTA-CLIP shall only apply if the purchaser immediately notifies CONTA-CLIP of any such claims asserted by the third party in writing, does not concede the existence of an infringement, and leaves any protective measures and settlement negotiations to the discretion of CONTA-CLIP. If the purchaser stops using the delivered supplies in order to reduce damages or for other good reasons, he shall be obliged to inform the third party that this suspension of usage does not constitute acknowledgement of an infringement of property rights.
- Claims of the purchaser are excluded insofar as he is responsible for the infringement of property rights. Claims by the purchaser shall also be excluded in cases where the infringement of proprietary rights is caused by special specifications made by the purchaser, through an application which was not foreseeable by CONTA-CLIP, or due to the fact that the delivery is changed by the purchaser or used together with products which were not delivered by CONTA-CLIP.
X. Obligations according to the ElektroG (Electric and Electronic Equipment Act)
- The purchaser undertakes to indemnify CONTA-CLIP against the requirements of § 19 I 1 ElektroG (take-back by the manufacturer) and associated claims by third parties. The purchaser shall dispose of the purchased goods themselves and at their own cost in accordance with the statutory provisions.
- If the purchaser passes on the purchased goods to commercial third parties without a further contractual obligation to assume the disposal obligations, then the purchaser must carry out proper disposal after the end of use and take back the goods at their own expense.
- The claim for exemption by CONTA-CLIP expires seven years after the end of the use of the delivered goods. This period begins with the end of the year in which the claim arose. It is independent of the knowledge of CONTA-CLIP.
XI. Other compensation claims
- The following limitations apply to contractual and non-contractual (tortious) liability as well as to liability for fault in the formation of contract (culpa in contrahendo) by CONTA-CLIP. The burden of proof for the limitation of liability or facts justifying an exclusion of liability lies with CONTA-CLIP.
- CONTA-CLIP is not liable for the slightly negligent breach of immaterial contractual obligations. In the event of a slightly negligent breach of material contractual obligations, the claim for damages shall be limited to the foreseeable damage typical for the contract, but not more than 5 million euro per claim, even if it is a breach of material contractual obligations. In the event of a grossly negligent breach of non-essential contractual obligations, CONTA-CLIP shall be liable for the foreseeable damage typical of the contract. In the event of a slightly negligent breach of duty due to delay, liability shall be limited to 5% of the agreed net price. Material contractual obligations are those whose fulfilment makes the proper performance of the contract possible and on whose compliance the purchaser may rely.
- A limitation of liability does not apply when we are liable for injury to life, limb or health.
- Any claims of the purchaser under the Product Liability Act shall not be affected by the above limitations of liability. Clause VIII shall apply accordingly with regard to the limitation period.
XII. Intra-community deliveries
The purchaser assures the accuracy of the information concerning his name, his address and his VAT ID number, which he shall provide immediately without prompting. The purchaser shell report any change in his name, address and company and its sales tax identification number, both to us and to the domestic tax authority that is relevant for the purchaser. In the event that a delivery is subsequently treated as taxable because of the incompleteness of the specifications by the purchaser, the purchaser must compensate for any resulting sales tax or expenses incurred by CONTA-CLIP.
XIII. Other compensation claims
- The place of performance for all obligations arising from the contractual relationship is Hövelhof, Germany.
- Hövelhof, Germany shall be the place of jurisdiction for all disputes arising from the contractual relationship if the purchaser is a merchant, a legal entity under public law or a special fund under public law. However, CONTA-CLIP is at liberty to appeal to the court with jurisdiction for the purchaser's registered office.
- Only German law shall apply. The United Nation's Convention on Contracts for International Sale from April 11, 1980 (UN CISG) is not applicable.