A. Applicability of the terms and conditions of CBO
B. Terms and conditions of purchase and order
C. General conditions of performance
D. Special conditions for the "CBO web store"
A. APPLICABILITY OF CBO'S TERMS AND CONDITIONS
These terms and conditions apply to all business relations between CBO and its contractual partners, even if individual transactions no longer refer specifically to the terms and conditions, if the contractual partner is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law. In these terms and conditions, the partners who transact business with CBO on the supplier and/or customer side are referred to as contractual partners.
These terms and conditions apply always and exclusively. Deviating, conflicting or supplementary general terms and conditions of the contracting party shall only become part of the contract if and to the extent that CBO has expressly agreed to their validity in writing. Individual agreements made with the contracting party in individual cases (including subsidiary agreements, supplements and amendments) shall in any case take precedence over these terms and conditions. For the content of such agreements, subject to proof to the contrary, a written contract or the written confirmation of CBO is decisive.
Notes to the applicability of statutory provisions are for clarification purposes only. Therefore, even without such clarification, the statutory provisions shall apply, unless they are directly amended or expressly excluded in these Terms and Conditions.
In different legal systems, the same words may have different meanings. In foreign language, i.e. non-German, versions of these Terms and Conditions, the German legal meaning of the corresponding words shall prevail in each case.
B. TERMS AND CONDITIONS OF PURCHASE
B.1. contract/ content/ scope of services/ sample/ packaging etc.
In addition to the statutory provisions, the following terms and conditions apply to orders placed with a supplier by CBO.
Contracts with suppliers, as well as their cancellation, amendment and termination, as well as delivery calls, must be in writing or at least in text form to be effective. Corresponding verbal declarations of intent must be confirmed in this form in order to become effective.
Cost estimates and planning in advance of a contract are binding.
Cost estimates and planning in advance of a contract are free of charge.
The specification of the goods shall be governed solely by CBO's purchase order.
The supplier is obliged to supply all accessories, instructions and data sheets necessary for the proper use of the goods.
The supplier is obliged to include operating instructions, warnings and documentation of the goods in all languages of the EU.
Working plans and design drawings shall also be supplied.
The supplier is obliged to include a certificate of origin for all items of goods, in accordance with the EU preferential regulations in force at the time of delivery.
The supplier guarantees that the goods comply with the regulations in force in the EU and that they have all the certificates required in the EU, such as CE and all the certificates commonly used in the EU, such as TÜV/GS, EMV, VDE, LMBG.
If the contractual country of destination of the goods is outside the EU, the goods shall comply with the regulations of the country of destination.
The Supplier shall deliver to CBO or - at the request of CBO to a third party designated by CBO - a sufficient number of samples of the Goods for testing purposes prior to the first delivery owed under the Contract. The costs including freight etc. shall be borne by the Supplier. The samples become the property of CBO upon delivery. The Supplier's obligations under clauses B.1.06 to B.1.11 shall also apply to the samples.
For samples that CBO releases, the following applies: the supplier warrants that the corresponding merchandise conforms to the released sample.
For samples not released by CBO, the following applies: the supplier shall provide new samples in accordance with B.1.12.
The packaging used by the supplier must be environmentally friendly and meet the requirements for safe transport, taking into account the specific circumstances. The Supplier shall inform CBO of the size and weight of the packaging in its order confirmation, but at the latest when the goods are dispatched.
In the event of a breach of the provisions of B.1.09 to B.1.11, the Supplier shall owe liquidated damages of € 5,000.00 for each individual case, unless the Supplier provides CBO with evidence of lesser damages. In addition, the Supplier shall owe compensation for any inspection costs, fines and the like incurred because of the breach, as well as compensation for any further damage.
The supplier shall ensure, by marking the goods or by other appropriate means, that batch tracing is possible and shall inform CBO, upon request, of the nature and use of the marks.
The supplier shall, at its own expense and responsibility, obtain any export and import permits and other authorizations that may be required and shall clear the goods through customs.
B.2. Prices/ Terms of Payment
Solely decisive and binding is the price stated in the order of CBO, which is always exclusive of sales tax.
The price shall be understood in case of a supplier outside the EU and shipment according to FOB named port of shipment of ICC Incoterms 2020, otherwise always DDP named place of destination of ICC Incoterms 2020.
If payment for packaging by CBO has been agreed, such payment shall only be due if the packaging price is shown separately in the invoice. In addition, if payment for packaging has been agreed, only the supplier's cost price is always owed.
If CBO owes remuneration for packaging in accordance with clause B.2.03, CBO shall have the right to return the packaging to the Supplier against reimbursement of two thirds of the packaging price shown in the invoice. For this purpose EXW destination of the delivery of goods of ICC Incoterms 2020 shall apply.
The Supplier shall issue its invoice after the arrival of the delivery at the place of destination, indicating the CBO purchase order number and in accordance with the purchase order and these Terms and Conditions of Purchase.
Each invoice must be accompanied by: Proof of delivery or bill of lading, a certificate of completeness, and an inspection report certifying that the goods are in proper condition and meet CBO's requirements under CBO's quality assurance policies.
Invoice claims are not due until the requirements of B.2.05 and B.2.06 are met.
In the case of goods arriving early from deliveries made by the contracting party, the invoice will be value dated on the delivery date contractually agreed with CBO. In that case, the value date shall be deemed to be the invoice receipt date.
In the event of defective goods or services or partial delivery by the contractual partner in breach of contract, the invoice shall be valued on the date on which the goods or services are free of defects or the date of complete delivery. The value date shall in that case be deemed to be the date of receipt of the invoice.
CBO shall pay on invoices by the last day of the month following the month in which the invoice is due, taking a 3% discount, or net within 30 days of the due date.
All payments shall be made subject to invoice verification and reclaim.
B.3. Terms of delivery and delay in delivery
The delivery dates and deadlines specified in the order are binding. Delivery periods shall run from the date of the order.
Partial deliveries require the consent of CBO at least in text form.
Determinative for compliance with the delivery time is the complete provision of the service at the place of destination.
The supplier has to inform CBO immediately in text form about circumstances endangering the compliance with the delivery time, estimating the extent of the threatening delay and the probability of occurrence. The supplier is obliged to inform CBO in an appropriate form immediately of any change in the above circumstances.
The unconditional acceptance by CBO of late performance does not constitute a waiver of any claim for delay in performance.
The supplier owes CBO in case of delay in delivery a lump-sum damage for delay in the amount of 0.5% of the order value per working day, but not more than 5% of the order value. CBO reserves the right to further legal claims. The supplier reserves the right to prove that a lower or no damage caused by delay has occurred.
B.4. Transfer of risk/ Inspection of outgoing goods/ Obligation to examine and give notice of defects
A transfer of risk before CBO has taken over the goods is excluded, unless CBO is in default with the takeover.
The supplier undertakes to carry out an outgoing goods inspection.
The inspection and notification obligations for CBO in case of defects of the delivered goods are otherwise based on §§ 377, 381 HGB (German Commercial Code), whereby it is sufficient that obvious defects are notified by CBO within 12 days from delivery of the goods. For hidden defects a complaint period of 12 days from discovery of the respective defect applies.
B.5. Warranty and other liability of the supplier
CBO's supplier shall provide warranty and indemnity to the extent and for the duration provided by law, unless otherwise provided below in this Section B.5.
An entire batch of the delivered goods shall be deemed defective if the number of individual items claimed to be defective exceeds 1% of the respective batch (so-called serial defects)
The Supplier shall indemnify CBO against claims for damages by third parties (including the costs of a reasonable legal defense) which are brought against CBO on grounds of product liability, infringement of industrial property rights or for any other legal reason.
The Supplier shall owe CBO compensation for all costs incurred by CBO from claims pursuant to B.5.03 and from the defense against corresponding claims. It is irrelevant whether the supplier knew or should have known of the rights of third parties or whether the supplier knew or should have known of the regulations applicable in the country of destination.
The supplier shall also be liable for the costs of warning or recall actions due to defects of the goods delivered by the supplier.
The Supplier shall have a right of retention only to the extent that it has claims against CBO that are acknowledged by CBO or that have been finally determined by a court of law.
In the event of material defects, CBO shall have the right to choose whether the Supplier shall supply a replacement or remedy the defects.
If, after being requested to do so by CBO, the supplier fails to acknowledge defects and provide a warranty within a reasonable period of time, CBO shall have the right, in order to mitigate damages, to remedy the defects itself or to procure a replacement for the defective goods at the supplier's expense.
CBO shall be entitled without restriction to set-off and retention on account of its own claims against the Supplier.
B.6. Supplier recourse
The legally determined recourse claims within a supply chain (supplier recourse according to §§ 445a, 445b, 478 BGB) are unrestrictedly entitled to CBO besides the claims for defects. CBO is in particular entitled to demand exactly the kind of supplementary performance (repair or replacement) from the supplier, which CBO owes to its customers in the individual case. The legal right of choice (§439 Abs. 1 BGB) of CBO is not limited by this.
Before CBO recognizes or fulfills a claim for defects asserted by its customers (including reimbursement of expenses pursuant to §§445a para. 1, 439 para. 2 and 3 BGB), CBO shall notify the Supplier and request a written statement, briefly stating the facts. If a substantiated statement is not made within a reasonable period of time and no amicable solution is brought about, the claim for defects actually granted by CBO shall be deemed to be owed to its customer. In this case, the supplier has the burden of proof to the contrary.
CBO's claims from supplier recourse shall also apply if the defective goods have been further processed by CBO or another contractor, e.g. by incorporation into another product.
B.7 Confidentiality and products
The Supplier undertakes to keep confidential all confidential information received from CBO during the business relationship and not to make it available to any third party without the express consent of CBO. The Supplier shall oblige its suppliers, employees, vicarious agents and assistants accordingly.
Products made according to documents designed by CBO, such as drawings, models and the like, or according to information from CBO or with tools from CBO or copied tools, may not be used by the Supplier itself, nor offered to third parties, nor otherwise placed on the market. This shall apply mutatis mutandis also to printing orders of CBO.
B.8. Right of termination in case of framework agreement
. CBO may terminate any framework agreement with the Supplier if a deterioration in the Supplier's financial situation has occurred within the meaning of Section 321 of the German Civil Code (BGB) or if the Supplier fails to meet its obligations for more than 21 days despite a reminder.
B.9 Place of performance/ Place of jurisdiction/ Choice of law
The place of performance for all deliveries and services is the destination designated by CBO.
For all disputes arising from or in connection with the contractual relationship between the contracting party and CBO, the place of jurisdiction shall be Duisburg. CBO is entitled in the aforementioned case to sue the contracting party, also at its respective registered office.
The law of the Federal Republic of Germany shall apply, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
C. GENERAL CONDITIONS OF PERFORMANCE
C.1. order confirmation / minimum order values
The following regulations apply if CBO provides deliveries or services. This applies in particular also to such deliveries and services which are made on the basis of an order via electronic data interchange (EDI).
For the content of the respective contract, the written order confirmation of CBO, if applicable, in connection with the service specifications prepared by CBO, shall be authoritative. Verbal agreements in connection with contract conclusions, which are made with employees of CBO, who are not authorized representatives, require likewise the written confirmation of CBO for their effectiveness.
The Customer shall provide CBO with all information and documents which are necessary or useful for the performance of the contracted services. If a performance specification is prepared and submitted to the customer for review and approval, this performance specification shall define the scope of services in a binding manner for both parties.
Property statements concerning the products and services of CBO are only attributable to CBO if these statements- originate from CBO or are made on the express instructions of CBO or - are expressly authorized by CBO or - are public statements and CBO has known or should have known these statements for four weeks and has not distanced itself from them. Auxiliary persons of CBO in the sense of § 434 paragraph 1 BGB do not include authorized dealers and customers of CBO acting as resellers. A sufficient correction of property information in the sense of § 434 paragraph 1 BGB can be made in any case on the homepage of CBO under the address www.cbo-it.de.
Property specifications attributable to CBO, which include measurable values, are to be understood with a tolerance customary in the industry. Exceeding the tolerance, however, does not automatically result in the presumption of a defect.
C.2. Perpetual Rights / Copyright
The designs, models, layout plans, disposition and other drawings, text templates etcetera created by CBO remain the intellectual property of CBO, even if the customer has paid compensation for the work. The right to exploit these objects and the intellectual achievements embodied in them remains exclusively reserved to CBO.
CBO is entitled to attach its own company and brand marks. The customer is prohibited to remove such marks affixed by CBO.
The customer is responsible to CBO that the templates, drafts, plans, texts, trademarks etcetera handed over by him may be used rightfully.
As far as CBO has the sole copyright to the control software and other software, which is delivered with the plants, only the simple right of use to the software is transferred to the customer and this in the form that the software may be used exclusively for the operation of the individual plant, which is the subject matter of the contract.
Any reproduction and other use of the software is not permitted to the customer.
The decompilation of the software is not allowed. If the Customer requires interface - information, CBO will disclose the interfaces of the Software upon request. Only if CBO does not comply with this request within a reasonable period of time, the customer is permitted to decompile the software parts necessary for this analysis for the purpose of the interface - analysis. A period of two weeks is considered to be reasonable. C.3 Shipment / Transfer of Risk
CBO reserves the right to select the method of shipment unless a specific method of shipment is expressly specified.
If the goods leave CBO's premises or warehouse, the Customer assumes all risk. Insurance of the shipment will only be provided at the request of the customer and then at the customer's expense.
The risk is transferred to the customer when the goods are handed over to the carrier, when the customer is notified that the goods are ready for shipment or when the goods are made available on the agreed delivery date. C.4 Delivery time / approvals / deadlines for repairs and the like
Delivery date means a point in time, be it a certain day or a calendar week or similar, on which the delivery or service is to take place. Delivery period means the period of time within which a delivery or service is to be made. Delivery time is the generic term for delivery dates and delivery periods.
All delivery times are subject to the availability of performance at CBO. If the performance is not available (non-availability of the performance), CBO will inform the customer immediately and at the same time inform the customer of the expected new delivery time. If the performance is also not available within the new delivery time, CBO is entitled to withdraw from the contract in whole or in part; any consideration already provided by the customer will be refunded immediately. As a case of non-availability of the performance in this sense is considered in particular the not timely self-delivery of CBO by its suppliers, if CBO has concluded a congruent hedging transaction, neither CBO nor its supplier is at fault or CBO is not obliged to procure in the individual case.
Any agreed delivery periods shall apply ex works, unless expressly agreed otherwise. Such delivery periods shall commence at the time stipulated in the order confirmation, but no earlier than when the documents, approvals, call-offs and shipping addresses to be obtained by the customer are available, all details of the order have been clarified and the customer has made any agreed down payments or provided collateral. Insofar as a delivery period has been agreed, this shall be extended appropriately if the customer is in arrears with the provision of documents, approvals, shipping address notifications, down payments or securities to be procured by him. If a delivery date has been agreed, this shall be postponed appropriately if the customer is in arrears with the provision of documents, approvals, shipping address notifications, down payments or securities to be procured by him. A corresponding postponement of delivery dates or extension of delivery times also takes place if the prerequisites for the services to be provided by CBO, which the customer has to provide himself or through third parties, are not available in time.
If permits to be provided by CBO, which are a prerequisite for a lawful delivery, are delayed or not granted at all for reasons not attributable to CBO, CBO shall not be liable for this.
If changes to the order are requested by the customer after confirmation of the order, the delivery period shall not commence until CBO has confirmed the change. An agreed delivery date shall be postponed accordingly.
The performance or delivery period is extended appropriately in the event of unforeseen obstacles, which CBO cannot avert despite reasonable care according to the circumstances of the case, e.g. natural disasters, pandemics, official orders, blockades, war, terrorist attacks, strike, lockout and other labor unrest, confiscation, embargo, total or partial failure of subcontractors or other circumstances for which CBO is not responsible, unless CBO has exceptionally expressly assumed the procurement risk or a delivery guarantee. In the aforementioned case CBO also has the right to withdraw from the contract, provided that it is not only a temporary impediment to performance.
In cases where standard components cannot be used in the context of repairs, warranty work, subsequent deliveries and the like, because the equipment in question is a special design according to the agreement or because special components have been installed, the corresponding performance time due to CBO shall be extended by the time required to procure the corresponding components if the order was placed in good time.
A claim for damages instead of performance or for damages due to delay is excluded in the cases of clause C.4.06, if CBO has informed the customer immediately about the impediments to performance.
The same applies to fixed transactions. Such must be expressly agreed as such in writing.
The legal rights of CBO, especially in case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/ or subsequent performance), remain unaffected.
C.5. partial deliveries / excess and short quantities
CBO is entitled to deliver up to 10% more or less in case of deliveries of uncountable goods, without this being considered as a breach of duty. Partial deliveries are also permitted to an extent that is reasonable for the customer.
If CBO makes use of the right of partial delivery or short delivery or excess delivery, payments cannot be withheld by the customer for this reason.
Unless otherwise agreed, prices are ex works or ex warehouse, excluding packaging.
As far as packaging accrues, CBO will pack according to the existing regulations and proceed according to § 4 VerpackV.
The prices, the same applies to costs, are exclusive of the applicable value added tax.
If after the order confirmation the cost factors change, in particular the prices for raw or auxiliary materials as well as wages and transport costs, CBO can make a corresponding adjustment of the prices, if there is a longer period than 4 months between the order confirmation and the delivery.
If an assembly, commissioning, maintenance, repair or any other service is delayed for reasons beyond the control of CBO, the customer shall bear all costs resulting therefrom, in particular waiting times and further travel costs and expenses of the employees employed by CBO and subcontractors engaged by CBO caused by the delay.
The legal consequence referred to in clause C.6.05 shall only occur if the reasons for the delay are the responsibility of the customer.
C.7. Terms of payment, dispatch of invoice
The provisions of the Value Added Tax Act shall apply to down payments.
Unless otherwise agreed, payments are due immediately.
Payments to be made to CBO are due at the latest 7 days after the invoice date and delivery or acceptance of the goods. If this date is exceeded, the debtor is in default of payment.
Place of performance for payments is the registered office of CBO.
The customer can only offset with undisputed or legally established claims. This restriction does not apply, however, if the counterclaim set off by the customer is in a synallagmatic relationship to the claim of CBO.
The customer has, except in cases of C.7.05, no right of retention. Furthermore, the rights according to § 320 BGB remain intact as long and as far as CBO has not fulfilled its warranty obligations.
If CBO accepts checks for payment, this is done only as performance on account of performance.
Payment by bill of exchange is excluded; bills of exchange will not be accepted by CBO for payment. If CBO accepts bills of exchange on the basis of a special agreement to the contrary, this is done only as performance on account of performance.
If the customer after the conclusion of the contract - should it still require a declaration of intent of the customer for the conclusion of the contract, after the last declaration of intent of CBO directed to the conclusion of the contract - a substantial deterioration in his financial situation occurs, e.g. if there are bill and/or check protests, CBO can demand advance payment or provision of security for all services and deliveries still to be executed from contracts from the same legal relationship (§ 273 BGB) at the discretion of CBO. If the customer does not comply with this demand, CBO can withdraw from these said contracts or, after setting a deadline, demand compensation instead of performance, namely without special proof 25% of the non-executed order amount, unless the customer proves a lower damage. Only if exceptionally there is an unusually high damage in the individual case, CBO can demand compensation for the damage exceeding the lump sum.
The invoices of CBO shall in principle be sent only by electronic means, unless otherwise expressly agreed by way of exception. The Customer shall provide CBO with the information required for the electronic sending of invoices upon request.
For a correction made at the customer's request and the associated reissue of an invoice, CBO shall charge an expense fee of 30€ plus VAT.
C.8. Duty to examine and to give notice of defects
Claims for defects on the part of the customer presuppose that he has fulfilled his statutory obligations to examine and give notice of defects (§§ 377, 381 HGB) as well as the regulations in this section C.8.
The deliveries of CBO, also drawings, execution plans, project planning proposals etc., are to be checked by the customer immediately at handover for their usability and correctness.
Obvious defects must be asserted in writing to CBO immediately, at the latest, however, within 6 days after arrival at the place of destination, specifying the concrete complaints.
In case of direct delivery of the goods to third parties, the maximum complaint period is extended to 14 days.
The customer must also give written notice of hidden defects immediately after discovery, but no later than 6 days after discovery in the form of C.8.03.
C.9. Claims for defects by the customer (warranty)
Warranty in these terms and conditions means: claims for poor performance due to delivery of a defective item or production of a defective work.
The statutory provisions shall apply to the customer's rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated in the following. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse pursuant to § 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the customer or another company, e.g. by incorporation into another product.
If the customer does not comply with the control and complaint obligations listed in section C.8, the liability of CBO for the non-disclosed defect is excluded.
The general limitation period for claims arising from material defects and defects of title is 12 months from delivery or, if acceptance has been agreed, from acceptance. The special statutory provisions on the limitation period (in particular §§ 438 para.1 no. 1 and no. 2, para. 3, 444, 445b BGB or § 634a para. 1 no. 2 and no. 3, para. 3 BGB) shall remain unaffected.
The limitation period of 12 months shall also apply to contractual and non-contractual claims for damages based on a defect in the item. This reduction of the limitation period does not apply, however, if the cause of damage is based on intent or gross negligence of CBO or its representatives or vicarious agents; in case of damage resulting from injury to life, body and health; in case of delay, if a fixed delivery date has been agreed; in case of fraudulent concealment of a defect; in case of assumption of a guarantee and/or the procurement or manufacturer's risk in the sense of §276 BGB (German Civil Code) by CBO; in cases of mandatory legal liability, in particular according to the Product Liability Act. A reversal of the burden of proof at the expense of the customer is not associated with the above provisions.
If the warranty period is inhibited or interrupted by work or replacement deliveries carried out by CBO, such inhibition or interruption extends only to the functional unit affected by the replacement delivery or rectification.
In the event that the customer has a right to supplementary performance, CBO shall first decide whether supplementary performance shall be effected by remedying the defect (rectification) or by delivery of a defect-free item (replacement). The right to refuse the subsequent performance under the legal preconditions remains unaffected.
No warranty is given for damages for which CBO is not responsible. This includes, for example, damage caused by the following reasons: Unsuitable or improper use, faulty assembly or commissioning by the customer or by third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials or replacement materials, defective construction work, unsuitable building ground, or chemical , electromagnetic, electrochemical or electrical influences, provided they are not the fault of CBO.
CBO does not guarantee for components provided by the customer. The customer is solely responsible for the suitability and condition of such components, unless expressly agreed otherwise.
In the event of non-observance of the operating and maintenance instructions by the customer, it shall be presumed that any damage incurred is attributable thereto. In this case, the customer shall bear the burden of presentation and proof to the contrary.
CBO is entitled to make the supplementary performance dependent on the customer paying the due purchase price. However, the customer is entitled to retain a reasonable part of the purchase price in relation to the defect.
Work on items delivered by CBO or other services rendered by CBO shall only be deemed to be work to remedy defects or rectify defects insofar as the defectiveness has been expressly acknowledged by CBO or insofar as notices of defects have been proven and insofar as these proven notices of defects are justified. Without these preconditions, such work shall be considered as a special service.
Also in all other respects, rectifications or replacements shall be provided by CBO as special services, if they are not expressly provided in recognition of a legal obligation.
The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, shall be borne or reimbursed by CBO in accordance with the statutory provisions if there is actually a defect. Otherwise, CBO may demand reimbursement from the customer of the costs arising from the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the customer.
In the event that equipment supplied by CBO is installed or operated outside the Customer's principal place of business, although the relevant contract was concluded with a branch or principal place of business of the Customer located in Germany, the Customer shall, however, bear the additional costs arising from the fact that any warranty measures to be provided by CBO involve transport costs, travel expenses and other expenses which exceed the borders of Germany.
The customer shall give CBO the necessary time and opportunity to carry out rectifications and replacement deliveries owed as warranty.
The customer is entitled to the right to reduce the price (reduction) only if CBO agrees to it.
If the supplementary performance has failed or a reasonable period to be set by the customer for the supplementary performance has expired unsuccessfully (§ 323 para. 1 or § 281 para. 1 BGB) or is dispensable according to the statutory provisions (§ 323 para. 2 or § 281 para. 2 BGB) or can be refused by CBO according to § 439 para. 3 BGB or § 635 para. 3 BGB or is unreasonable for the customer, the customer may withdraw from the contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
Claims of the customer for damages or reimbursement of futile expenses are also excluded in the case of defects in accordance with section C.10.01 and exist only in the cases of section
C.10. Other liability
Unless otherwise provided in these General Terms and Conditions, claims for damages and reimbursement of expenses of the customer, irrespective of the legal ground, against CBO are excluded, subject to the following clause C.10.02. This applies in particular to claims for damages in tort (e.g. § 823 BGB). As far as the liability is excluded or limited, this also applies to the personal liability of the employees, representatives and vicarious agents of CBO. C.10.02 The limitations of liability in these general terms and conditions do not apply as far as the cause of damage is based on intent or gross negligence of CBO or its representatives or vicarious agents; in case of culpable violation of essential contractual obligations, in which case the compensation for damages is limited to the typical contractual damage foreseeable at the time of conclusion of the contract. Material contractual obligations are obligations which protect the legal positions of the contractual partner which are material to the contract and which the contract is intended to grant to the contractual partner in accordance with its content and purpose; material contractual obligations are also obligations the fulfillment of which makes the proper execution of the contract possible in the first place and on the fulfillment of which the customer has regularly relied and may rely; in the case of damages resulting from injury to life, body and health; in the case of delay, insofar as a fixed delivery date has been agreed; in the case of fraudulent concealment of a defect; in the case of assumption of a guarantee and/or the procurement or manufacturer's risk within the meaning of §276 BGB by CBO; in cases of mandatory statutory liability, in particular under the Product Liability Act. A reversal of the burden of proof at the expense of the customer is not associated with the above provisions.
Because of a breach of duty, which does not consist in a defect, the customer can only withdraw or terminate, if CBO is responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences apply.
C.11. Call orders
If call orders are not called within 4 weeks after the expiration of the agreed call period, CBO is entitled to demand payment.
The same applies to call orders without a specially agreed call period, if 4 months have elapsed without a call since receipt of CBO's notification of readiness for shipment.
C.12. Storage / Default of acceptance
Should temporary storage of finished goods at CBO become necessary due to default in acceptance, this shall not constitute a storage contract.
CBO is also not obliged to insure stored goods.
In case of default of acceptance, CBO is entitled to store the goods at a commercial warehouse at the risk and for the account of the Customer.
In case of storage at CBO, CBO may charge 0.5% of the invoice amount per month, but at least € 30 and further € 25 from every second full cubic meter of goods per month.
The above two clauses shall also apply in the event that shipment is delayed at the request of the customer for more than 2 weeks beyond the indicated readiness for shipment.
If the customer does not accept the ordered goods despite setting a deadline, CBO is entitled to demand 25% of the agreed price as a lump sum compensation, regardless of the proof of the actual damage, unless the customer proves a lower damage.
C.13. Retention of title
All deliveries of CBO are made under retention of title.
This reservation together with the following extension is valid until the payment of all claims from the business relation with the customer until the complete release from contingent liabilities, which CBO has entered in the interest of the customer and which are related to the delivery.
Pledging of the delivered items is not permitted.
CBO shall be entitled to demand the return of its reserved goods in the event of an important reason, in particular in the event of default in payment, against offsetting of the proceeds of the sale. This demand for return does not constitute a withdrawal from the contract.
If and as far as the taken back goods can be sold by CBO otherwise in the usual course of business as new, the customer owes without further proof 10% of the goods invoice value as taking back costs. If a sale as new in the usual course of business is not possible, the customer owes another 30% of the goods invoice value for loss of value without further proof. The customer reserves the right in each case to prove a lower percentage.
CBO reserves the right to claim other, further damages.
The treatment and processing of the goods delivered by CBO shall always be carried out on behalf of CBO, so that the goods shall remain the property of CBO to the exclusion of the consequences of § 950 BGB in any state of treatment and processing and also as finished goods. If the goods subject to retention of title are processed with other items also delivered under exclusion of the legal consequences of § 950 BGB, CBO shall at least acquire co-ownership of the new item in proportion of the invoice value of the goods of CBO to the invoice value of the other processed items.
The Customer hereby assigns in advance to CBO all claims arising from the resale (including claims to be assigned or obtained by way of factoring), processing, installation and other utilization of our goods. As far as the products sold, processed or installed by the Customer include items which are not owned by the Customer and for which other suppliers have also agreed to retention of title with a sale clause and assignment in advance, the assignment shall be made in the amount of CBO's co-ownership share corresponding to a fraction of the claim, otherwise in the full amount.
The collection authorization remaining to the customer despite assignment expires by revocation permitted at any time.
If the value of the securities to which CBO is entitled exceeds CBO's claim against the Customer by 50% in the case of deliveries of goods, or by 20% in the case of other services, CBO shall be obliged, at the Customer's request, to release securities to a corresponding extent at CBO's discretion.
C.14. Place of performance and fulfillment
Place of performance and fulfillment for the services to be provided by CBO is always the premises of CBO.
Place of performance for deliveries is the business or the warehouse of CBO in particular also if CBO takes over the transport itself.
All headings in the CBO - Terms and Conditions are for ease of reading only and shall have no bearing on the meaning and interpretation of the individual provisions.
As written declarations of will and knowledge in the sense of the CBO - Terms and Conditions also such declarations are to be regarded, which are transmitted in text form (thus for example by fax or eMail).
Delivery dates designate a point in time, be it a certain day, be it a calendar week or similar, on which the delivery has to be made. Delivery periods refer to the period of time within which a delivery is to be made. Delivery time is the generic term for delivery dates and delivery periods.
C.16. Place of jurisdiction/choice of law
If the customer is a merchant in the sense of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of CBO in Mülheim an der Ruhr. However, CBO is also entitled in all cases to bring an action at the place of performance of the delivery obligation according to these General Terms and Conditions of Service or a prior individual agreement or at the general place of jurisdiction of the customer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
The law of the Federal Republic of Germany shall apply to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG). The prerequisites and effects of the retention of title pursuant to Section C.13. shall be governed by the law at the respective location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective thereafter.
C.17. Final provision
Should any provision of these Terms and Conditions or any provision subsequently incorporated therein be or become invalid, void or unenforceable, in whole or in part, or should any omission in these Terms and Conditions become apparent, the validity of the remaining provisions shall not be affected thereby. § Section 306 (2) and (3) of the German Civil Code (BGB) shall remain unaffected.
D. SPECIAL CONDITIONS FOR THE "CBO-WEB-SHOP"
D.1 Scope/ Definitions
The special conditions for the “CBO web shop” in the version valid at the time of the order apply exclusively to the business relationship between CBO as the web shop provider and the customer. Deviating general terms and conditions of the customer are not recognized unless CBO expressly agrees to their validity in writing.
A consumer is when the purpose of the ordered deliveries and services cannot be attributed predominantly to his commercial or self-employed professional activity. On the other hand, an entrepreneur is any natural or legal person or partnership with legal capacity who, when concluding the contract, acts in the exercise of their commercial or independent professional activity.
D.2 Scope of offer/conclusion of contract/contract language/use of password
The CBO offer in its web shop is aimed exclusively at entrepreneurs and not at consumers. The customer expressly confirms that he is ordering from CBO in his capacity as an entrepreneur and that the order is being placed by an authorized representative.
After registering, the customer can select products from the range of CBO products and collect them in a so-called shopping cart using the “Add to shopping cart” button. By clicking on the “Order with obligation to pay” button, he submits a binding request to purchase the goods in the shopping cart. Before sending the order, the customer can change and view the data at any time. However, the application can only be submitted and transmitted if the customer has accepted these contractual terms and conditions by clicking on the "Accept General Terms and Conditions" button and thereby included them in his application.
CBO then sends the customer an automatic acknowledgment of receipt by e-mail, in which the customer's order is listed again and which the customer can print out using the "Print" function. The automatic acknowledgment of receipt only documents that the customer's order has been received by CBO and does not constitute acceptance of the application. The contract only comes into effect when CBO submits the declaration of acceptance, which is sent in a separate e-mail (order confirmation). In this e-mail or in a separate e-mail, but no later than upon delivery of the goods, the text of the contract (consisting of the order, general terms and conditions and order confirmation) will be sent to the customer on a durable medium (e-mail or paper printout) (confirmation of contract). The text of the contract is not stored at CBO and is not accessible to the customer.
The final contract is in German.
When registering in the CBO web shop, the customer must assign a secure password for his user account, which may only be known to persons authorized to represent the customer. The customer must keep the password strictly confidential and protect it from unauthorized access. When placing an order, the customer cannot claim that a person who is not authorized to represent the customer initiated the ordering process, unless he can prove that he has protected and kept the password in accordance with the specifications.
D.3 Delivery times/ Prices
Any specified delivery times are non-binding and are calculated from the time of the order confirmation, provided that the purchase price has been paid in advance (except for purchases on account).
The prices quoted do not include the applicable statutory sales tax and apply ex works or ex warehouse, excluding packaging. The customer bears any customs duties, fees, taxes and other public charges.
D.4 Terms of payment
The customer can make the payment in advance or on account. For new customers, payment on account is only possible after the third successful purchase with payment in advance.
D.5 Additional validity of the GTC
Apart from that, sections A. and C. of these general terms and conditions of CBO also apply to orders or contracts concluded via the CBO web shop.