General Terms and Conditions of Citizen Systems Europe GmbH
§ 1 Scope
(1) These General Terms and Conditions (GTC) shall apply to all our business relationships with our customers (hereinafter: "Buyer"). The GTC shall only apply if the Buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.
(2) The GTC apply in particular to contracts for the sale and delivery of movable goods (hereinafter also referred to as "products" or "goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). The GTC shall also apply in their respective version as a framework agreement for similar future contracts for the sale and delivery of our products to the same buyer, without us having to refer to them again in each individual case. We shall inform the Buyer immediately of any changes to our General Terms and Conditions.
(3) Our General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their applicability. This requirement of consent shall apply in any case, in particular even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer's General Terms and Conditions or if the Buyer refers to its General Terms and Conditions in the context of the order and we do not expressly object to them.
(4) Individual agreements with the Buyer (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Our written confirmation or a written contract shall be decisive for the content of such agreements.
(5) Legally relevant declarations and notifications which the Buyer makes to us after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reductions) must be made in writing. Written form in the context of these GTC includes written and text form (e.g. letter, e-mail, fax).
§ 2 Offer and conclusion of contract
(1) Our offers are subject to change and non-binding. The order of the goods by the Buyer shall be deemed a binding contractual offer. We are entitled to accept this contractual offer within 14 days of receipt, unless otherwise stated in the order.
(2) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
(3) The legal relationship between us and the Buyer shall be governed solely by the purchase contract concluded in writing, including these General Terms and Conditions of Delivery. This fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal undertakings on our part prior to the conclusion of this contract shall not be legally binding and verbal agreements between the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.
(4) Additions and amendments to the agreements made, including these General Terms and Conditions, must be made in writing.
§ 3 Delivery, transfer of risk, default of acceptance
(1) Unless otherwise agreed, the products shall be delivered ex warehouse (Dordrecht, the Netherlands), which is also the place of performance. At the Buyer's request and expense, the products will be shipped to another destination (sale to destination). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer when the goods packed for transportation are made available for collection, but at the latest when they are handed over to the Buyer. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Buyer upon delivery of the goods to the forwarding agent, carrier or other person designated to carry out the shipment. If the Buyer is in default of acceptance, this shall be deemed equivalent to handover.
(3) In the event of default of acceptance by the Buyer, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). The same shall apply if the Buyer fails to perform an act of cooperation owed by him or if our delivery is delayed for other reasons for which he is responsible. In such cases, we shall charge a lump-sum compensation of EUR 25.00 per pallet and week, starting with the agreed date of delivery or - in the absence of a delivery date - with the notification that our products are ready for dispatch, as well as a lump-sum fee of EUR 25.00 per delivery for repackaging costs (irrespective of the number of cartons or pallets).
The right to prove higher damages remains unaffected, as do our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination). The above lump sums shall be offset against further monetary claims. The Buyer shall be entitled to prove that we have suffered no loss at all or only a significantly lower loss than that covered by the lump sums.
(4) We shall only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Buyer and at his expense.
§ 4 Prices; terms of payment; minimum order value
(1) Our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT, unless otherwise agreed with the Buyer. The list price shall only apply to orders in the quantity of products contained in the relevant outer packaging (Master Cartons - MC). Products not in stock can only be ordered in the respective MC quantity. Orders below the respective MC quantity will not be accepted. Orders for items that are not in stock can no longer be cancelled once they have been ordered. Prices for consumables (tapes, labels, etc.) are quoted per packaging unit. It is not possible to order and sell individual rolls of consumables.
(2) In the case of sale by dispatch, the Buyer shall bear the transportation costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer. We do not take back transport packaging and all other packaging in accordance with the Packaging Ordinance; it becomes the property of the Buyer, with the exception of pallets.
(3) Unless expressly agreed otherwise, payment of the purchase price is due within 30 days of invoicing and delivery of the products. We reserve the right to deliver against advance payment in certain cases (e.g. delivery to certain countries) and will point this out accordingly in the corresponding order confirmation.
(4) The Buyer shall be in default upon expiry of the above payment deadline. During the period of default, interest shall be charged on the purchase price at 9% above the applicable base rate. We reserve the right to claim further damages caused by default. Our claim to commercial default interest in accordance with § 353 HGB remains unaffected.
(5) The Buyer shall only be entitled to set-off if his counterclaims have been legally established or are undisputed. The Buyer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship. In the event of defects in the delivery, the Buyer's right of retention shall be limited to three times the cost of subsequent performance.
(6) If it becomes apparent after conclusion of the contract that our claim to the purchase price is jeopardized by the Buyer's inability to pay (e.g. by an application for the opening of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract.
(7) The minimum order value is EUR 1000.00 net. If the minimum order value is not reached and we nevertheless deliver in justified exceptional cases, a processing fee of EUR 50.00 will be charged. If the expenditure exceeds the aforementioned lump sum, we shall only deliver against prior confirmation of the expenditure to be quantified by us.
(8) If an item is marked "EOL" in the list of goods in stock, it is subject to an end-of-life notice that is already in force.
§ 5 Delivery periods and delay in delivery
(1) Deadlines and dates for deliveries and services promised by us are always only approximate, unless a fixed deadline or a fixed date has been expressly confirmed or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with transportation.
(2) We shall be entitled - without prejudice to our rights arising from default on the part of the Buyer - to demand from the Buyer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the Buyer fails to meet its contractual obligations towards us.
(3) We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of the manufacturer to deliver or to deliver correctly or on time) for which we are not responsible. Should such events make delivery or performance significantly more difficult or impossible for us and if the hindrance is not only of a temporary nature, we shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. If the Buyer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to us.
(4) We are entitled to make partial deliveries ending the delay in delivery if
-the partial delivery can be used by the Buyer within the scope of the contractual purpose,
-delivery of the remaining goods ordered is ensured.
(5) If we are in default with a delivery or service or if a delivery or service becomes impossible for us, for whatever reason, our liability for damages shall be limited in accordance with the provisions of § 8 of these GTC.
§ 6 Retention of title
(1) We reserve title to the products sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The products subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The Buyer must notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties seize the products belonging to us.
(3) If the Buyer acts in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the products on the basis of the retention of title. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
(4) Until revoked, the Buyer is authorized to resell and/or process the products delivered under retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our products, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us as a security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above section. We accept the assignment. The obligations of the Buyer stated in paragraph 2 shall also apply in consideration of the assigned claims.
(c) The Buyer shall remain authorized to collect the claim besides us. We undertake not to collect the claim as long as the Buyer meets his payment obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we can demand that the Buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer's request.
§ 7 Liability for material defects and defects of title
(1) The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise specified below. In all cases, the statutory provisions on the sale of consumer goods (§§ 474 ff. BGB) and the rights of the Buyer arising from separately issued guarantees, in particular on the part of the manufacturer, shall remain unaffected.
(2) The basis of our liability for material defects is above all the agreement reached on the quality of the goods. The product descriptions designated as such, which were provided to the Buyer prior to his order or were included in the contract in the same way as these GTC, shall be deemed to be an agreement on the quality of the goods. Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 (1) sentences 2 and 3 BGB). We accept no liability for public statements made by third parties (e.g. advertising statements).
(3) The Buyer's claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects in accordance with §§ 377, 381 HGB. If a defect becomes apparent during the inspection or later, the Buyer must notify us of this in writing without delay. The notification of defects shall be deemed immediate if it is made within two weeks, whereby the timely dispatch of the notification shall suffice to meet the deadline. Obvious defects, including incorrect or short deliveries, must be notified in writing within two weeks of delivery, irrespective of this obligation to inspect and give notice of defects, whereby the timely dispatch of the notification is also sufficient to meet the deadline. If the buyer fails to carry out the proper inspection and/or report defects, our liability for the unreported defect shall be excluded.
(4) If the delivered item is defective, we shall be entitled at our discretion, which we must make within a reasonable period of time, to remedy the defect (rectification) or to deliver a defect-free item (replacement delivery).
(5) We are entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
(6) The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions.
(7) Should a defect actually exist, we shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs. However, if the Buyer's request to remedy a defect proves to be unjustified, we may demand reimbursement of the costs incurred from the Buyer.
(8) In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect himself and to demand compensation from us for the expenses objectively required for this. The Buyer shall notify us immediately, if possible in advance, of any such self-remedy. The right to self-remedy does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(9) If the supplementary performance fails or if a reasonable deadline to be set by the Buyer for the supplementary performance expires without success (or if this is dispensable according to the statutory provisions), the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, the right of withdrawal is excluded.
(10) Claims of the Buyer for damages or reimbursement of futile expenses pursuant to § 284 BGB shall only exist in accordance with the provisions of § 8 below and are otherwise excluded. Claims of the Buyer for reimbursement of expenses pursuant to § 445a para. 1 BGB are also excluded, unless the last contract in the chain is a sale of consumer goods (§§ 478, 474 BGB).
§ 8 Other liability
(1) Unless otherwise stated in these GTC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages - irrespective of the legal grounds - in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable - subject to statutory limitations of liability - for
a) for damages resulting from injury to life, limb or health,
b) for damages arising from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for foreseeable, typically occurring damages.
(3) The limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims of the Buyer under the Product Liability Act.
(4) The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty.
§ 9 Limitation periods
(1) The general limitation period for claims arising from material defects and defects of title is one year from delivery.
(2) Special statutory provisions for claims for restitution in rem by third parties, for fraudulent intent and for claims in supplier recourse in the case of final delivery to a consumer shall remain unaffected.
(3) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act remain unaffected in any case.
§ 10 Choice of law and place of jurisdiction
(1) These GTC and all legal relationships between us and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The conditions and effects of the retention of title in accordance with § 6 are subject to the law at the respective storage location of the products, insofar as the choice of law made in favor of German law is inadmissible or ineffective.
(2) If the Buyer is a merchant within the meaning 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 shall be our registered office in Esslingen. However, we are also entitled, at our discretion, to bring an action at the Buyer's general place of jurisdiction.