General Terms and Conditions of cotedo Trading GmbH
(as of February 2018)
Please note that this English version of our Terms and Conditions is provided for your information only, it has no legally binding character. The current German version is binding.
(1) Our terms of sale apply exclusively; we do not recognise any opposing or diverging conditions unless we have expressed our written approval of their validity. Our terms of sale apply even if we are aware of any opposing or diverging conditions of sale issued by the customer and nevertheless perform the delivery to the customer.
(2) All agreements between us and the customer, which are reached for the purpose of executing this contract,
are set out in writing in this contract.
(3) Our conditions of sale apply exclusively to businesspeople in the sense of Section 310, Paragraph 1, BGB.
(4) Our conditions of sale also apply to all future transactions with the customer.
(5) Should these conditions of sale be translated into other languages, only the German text of these Terms and Conditions is legally binding.
2. Offers and Conclusion of Contract
(1) Our offers are subject to change unless otherwise stated in the order confirmation.
(2) Orders which qualify as offers according to Section 145 BGB can be accepted by us within two weeks.
(3) We reserve the rights of ownership and copyright to our illustrations, drawings, calculations and other documents. This also applies to written documents which are designated as “confidential”. The customer may not make these documents available to third parties, nor announce them or utilise or reproduce them through any third parties without our express written consent.
(1) Unless otherwise stated in the order confirmation, or prices shall apply ex works (EXW) in accordance with Incoterms 2010. This does not apply to the packaging which will be charged separately.
(2) We reserve the right to change our prices accordingly if a delivery is made later than three months after the conclusion of the contract, and cost increases occur, particularly due to tariff agreements or material price changes. We are obliged to proceed in the same manner in case of cost reductions. On request, evidence for both cost reductions and cost increases will be provided to the customer.
(3) VAT is not included in our prices; it will be displayed on our invoice at the statutory rate of the date of invoicing.
(4) For smaller orders up to a net value of € 100.00, we collect a surcharge of € 15.00 (net) per delivery.
(5) Any deduction of cash/trade discounts requires a special written agreement.
4. Conditions of Payment
(1) Unless otherwise stated in the order confirmation, the purchase price is due net (without deductions) within ten days from the invoice date. Legal rules regarding the consequences of late payment apply.
(2) This regulation notwithstanding, first orders shall only be executed against advance payment. Additionally, we reserve the right to demand advance payment from individual customers and for individual agreements without giving reasons.
(3) The customer shall only be entitled to compensation rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. Additionally, he shall be entitled to exercise a right of retention to the extent that his counterclaims are based on the same contractual relationship.
5. Transfer of Risk, Packaging
(1) Unless otherwise stated in the order confirmation, delivery ex works (EXW) in accordance with Incoterms 2010 is agreed.
(2) The packaging shall be executed as disposable packing which shall not be taken back by us.
(3) If the customer so wishes, we shall cover the delivery by a transport insurance. All costs incurred shall be borne by the customer.
6. Deliveries and Delivery Time
(1) The beginning of the delivery time stated by us presupposes the clarification of all technical questions.
(2) Compliance with our delivery obligation requires the timely and proper fulfilment of the customer’s obligation. The defence of lack of performance of the contract is reserved.
(3) We reserve the right to make partial deliveries due to supply shortfalls or unavailability of products.
(4) 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, including any additional expenses. Further claims or rights remain reserved.
(5) If the conditions of paragraph 4 are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the customer at the time when the latter is in default of acceptance or payment.
(6) We are liable according to the legal provisions, as far as the underlying contract is a fixed transaction according to Section 286, Paragraph 2, Sentence 4 BGB or Section 376 HGB. We are also liable in accordance with the statutory provisions, as long as the customer is entitled to assert that his interest in the further performance of the contract has ceased as a consequence of a delay in delivery for which we are responsible.
(7) Furthermore, we shall be liable in accordance with the statutory provisions if the delay in delivery is based on an intentional or grossly negligent breach of contract for which we are responsible. Any fault of our representatives or vicarious agents shall be attributable to us. If the delay in delivery is based on a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(8) In addition, we are liable in the event of default in delivery amounting to a maximum of 5% of the delivery value.
(9) Further legal claims and rights of the customer remain reserved.
7. Warranty, Liability for Defects, Transport Damage
(1) The limitiation period for claims for defects is 12 months, beginning with the transfer of risk.
(2) When selling used items, we exclude the warranty for material defects.
(3) Claims of the customer for defects presuppose that he has duly fulfilled his duties of inspection and complaint according to Section 377 HGB.
(4) In the event of obvious transport damage or loss during transport, the customer must note this on the waybill of the transport company.
(5) If the defect of the purchased item exists, we shall be entitled, at our discretion, to remedy the defect or to deliver a new, defect-free item. In case of defect remedy or replacement delivery, we are obliged to bear all expenses arising, in particular transport, travel, labour and material cost, provided that these are not increased by the purchase item being moved to a place other than the place of performance.
(6) Should the customer not package the returned item in a proper manner, if he does not send it back to the seller or a third party named by the seller, or if he handles the purchased item in an improper manner, the warranty obligation ceases to apply.
(7) If the supplementary performance fails, the customer is entitled to demand rescission or reduction, at his discretion.
(8) We shall be liable according to the statutory provisions if the customer asserts claims for damages based on intent or gross negligence on the part of our representatives or vicarious agents. Unless we are charged with intentional breach of contract, the liability for damages is limited to the predictable, typically occurring damage. In case of injury to life, body or health, we are always fully liable.
(9) We are liable according to the legal provisions if we culpably violate an essential contractual obligation. In this case, the liability for damages is also limited to the foreseeable, typically occurring damage. An essential contractual obligation exists if the breach of duty relates to an obligation on whose fulfilment the customer did and could rely.
(10) Unless otherwise stipulated above, liability is excluded.
8. Joint Liability
(1) A liability for damages exceeding the regulations of Section 7 is excluded, irrespective of the legal nature of the asserted claim. This applies particularly to claims for damages arising from negligence on conclusion of the contract due to other breaches of duty or due to tort claims for compensation for property damage in accordance with Section 823 BGB.
(2) The limitation according to paragraph 1 shall also apply insofar as the customer, instead of claiming compensation for the damage, demands replacement of useless expenses instead of performance.
(3) For the limitation of all claims which are not subject to the limitation due to a factual deficit, an exclusion period of 18 months applies. It begins with knowledge of the damage and the person of the author of the damage.
(4) If the liability for damages towards us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, staff, collaborators, representatives and vicarious agents.
9. Retention of Title
(1) We reserve the ownership of the purchased item until we have received all payments stipulated in the delivery contract. In case of breach of contract by the customer, in particular in case of default of payment, we are entitled to withdraw the purchased item. The withdrawal of the purchased item by us constitutes a withdrawal from the contract. After taking back the purchased item, we shall be entitled to commercialise it. The proceeds shall be applied towards the customer’s accounts payable, after deduction of reasonable processing costs.
(2) The customer is obliged to handle the purchased items with care. In particular, he is obliged to insure them at his own expense against fire, water and theft damage at replacement value. Should maintenance or inspection work be required, the customer is obliged to carry it out in a timely manner at his own expense.
(3) In case of garnishment or other inventions by third parties, the customer is obliged to notify us immediately in written form, so that we can take action in accordance with Section 771 ZPO. Should the third party not be in a position to reimburse us for the judicial and extra-judicial costs of a claim in accordance with Section 771 ZPO, the customer is liable for the loss.
(4) The customer is entitled to resell the purchased item in the ordinary course of business. However, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim arising from the resale against his customers or third parties, irrespective of whether the purchased item was resold without or after processing. To collect this claim, the customer remains authorized even after the assignment. Our authority to collect the claim itself remains unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, does not default on payment and, in particular, has not filed an application for settlement or insolvency proceedings or has ceased payments. Should this be the case, we can demand that the customer notify us of the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
(5) The processing or transformation of the purchased item by the customer is always carried out for us. If the purchased item is processed with other items not belonging to us, we acquire the co-ownership of the new item in proportion of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. Incidentally, the same applies to the thing resulting from processing as to the purchased object delivered under reservation.
(6) If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, then it is agreed that the customer assigns proportional co-ownership to us. The customer keeps the resulting sole ownership or co-ownership for us.
(7) The customer also assigns to us the claim to secure our claims against him, which accrue by the connection of the purchased object with a property against a third party.
(8) We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is our responsibility.
10. Final Provisions – Jurisdiction – Place of Fulfilment
(1) If the customer is a merchant, our place of business shall be the place of jurisdiction. However, we shall be entitled to take action against the customer at his place of residence.
(2) The substantive law of the Federal Republic of Germany applies exclusively; the validity of the UN Sales Convention (CISG) and the Rome I Regulation is excluded.
(3) Unless otherwise stated in the order confirmation, our place of business is the place of performance.