Terms and conditions
terms and conditions of CENTA Antriebe Kirschey GmbH - GERMANY
The here mentioned conditions apply to Germany only.
For the European CENTA Group Orgalime S 2012 applies.
I. General – Scope of Application
1. Exclusively our sales conditions are valid; CENTA will not accept any contrary or deviate customer condition, unless we have confirmed otherwise expressively in writing. Our sales conditions are even valid, if we are informed about contrary or deviated conditions to ours and deliver unconditionally.
2. The sales contract becomes valid with our written order confirmation, if not otherwise confirmed due to special delivery agreements.
3. CENTA retains vendor’s lien and copy rights for samples, cost estimates, drawings and any material or immaterial information – even electronic – they may not be passed on to third parties. We commit ourselves not to pass on confidential customer information and records to third parties without customer’s consent.
4. To become legally binding, any agreement in regard to the contract between CENTA and the customer must be drawn up in writing.
5. Our sales conditions are only valid for companies according to § 310 Abs. 1 BGB.
6. If, after closing of contract, our monetary claims should be endangered by the customer’s leak of solvency, CENTA is entitled to require collaterals within an appropriate term. If the customer does not meet this requirement, CENTA is entitled to cancel the contract.
II. Quotation – Contract
1 .Our quotations are conditional, unless otherwise expressively agreed in writing.
2. All quoted prices in the quotation and the order confirmation are net-prices and have to be added to the corresponding VAT.
3. The scope of delivery is defined in our written order confirmation.
4. In case of wage – and/or material price changes, CENTA reserves price adjustments based on the corresponding changes, if more than 4 months lie between contract and the agreed delivery time.
III. Prices and Payment
1. All prices are valid ex works including loading, however excluding packing and de-loading, unless otherwise agreed. All prices have to be added to the corresponding legal VAT.
2. Unless otherwise agreed following payment term is valid: 30 days net.
3. The customer is only entitled to retain payments or adjust counter claims, if these claims are undisputed and legally valid.
4. If the customer’s payment is delayed for more than 2 weeks or deteriorating financial circumstances become obvious, all open debts become due at once.
IV. Transfer of Risk – Taking Delivery
1. The risk is transferred to the customer, as soon as the product has left our company, even in case of partial shipment and even if CENTA has incurred additional services, such as dispatch costs or delivery and installation.
2. In case a final inspection is required, this date becomes valid for the transfer of risk. The final inspection has to be done immediately on delivery, or alternatively after the goods have been announced to be ready for dispatch.
3. If dispatch or final inspection is delayed or even canceled, due to customer’s responsibility, the risk is transferred to the customer immediately, when the products are ready for dispatch or final inspection.
4. Partial dispatch is acceptable as long as it is not unreasonable for the customer.
1. Unless otherwise agreed in the order confirmation, delivery is „ex works“.
2. All transport- and other packing materials, according to packing standards, will not be taken back, except for pallets. The customer is obliged to take on responsibility and costs for disposal.
3. If required by the customer, all deliveries may be covered by a transport insurance policy, however all related costs have to be taken on by the customer.
Vl. Delivery Times
1. The delivery time and its compliance depend on the agreements between the contract partners, provided that all commercial and technical details are clarified and provided that the customer meets all obligations. If not, the delivery may delay accordingly, except for the case that CENTA is responsible for the delayed clarification.
2. The compliance of delivery times is reserved for correct and in time supplies.
3. The delivery term is met, if the product has left our company until the end of the term or has been announced to be ready for dispatch. In case a final inspection is required the inspection date or the announcement to be ready for inspection, is valid – unless the inspection is refused justifiably.
4. If the delivery or the final inspection is delayed for reasons within the customer’s responisbility, CENTA reserves the right to charge him with the costs, resulting from the delay, valid from 1 month after dispatch or inspection announcement date:
Not less than 0.5 % of the invoice amount per month
However, CENTA is entitled to dispose of the delivery item, after an appropriate and unsatisfied terminal date and to deliver the items in question to the customer after an adequate delayed period.
5. If the noncompliance of delivery time is due to force majeure, industrial dispute or other events not within the responsibility of CENTA, the delivery time may be extended reasonably. We will inform the customer instantly about the beginning and the end of such circumstances.
VII. Delivery Delay
1. If the bindingly confirmed delivery date is delayed due to a breach of duty within the responsibility of CENTA, the customer is entitled to claim penalty, limited to 0.5%/per week, 5% of the invoice amount at the most.
2. If the customer claims for penalty instead of delivery after futile demands and our breach of duty is significant, our liability is limited to the scope of common and foreseeable damages.
3. If the delivery delay is based on our breach of substantial items of contract duties, CENTA is legally liable, however our liability is limited to the scope of common and foreseeable damages.
VIII. Liability for Defective Deliveries
1. As prerequisite for our liability for defective deliveries the customer has to meet his obligation to claim and investigate according to § 377 HGB.
2. The determinant factor for designating our delivered goods as free of defects is based on the agreed upon design features.
3. For defective sales items CENTA is liable as follows: We commit ourselves to correct deficiencies either by reworking or by replacement. If 2 reworks or 1 replacement delivery fail, the customer is entitled to cancel the contract or to reduce the invoice price, and to claim for compensation instead of delivery, or amends for futile expenses, provided that the legal requirements are met.
4. The period of prescription for claims is 1 year, beginning from the transmission of risk to the customer.
IX. Liability and Compensation
1. If CENTA is responsible for the breach of duty deliberately or negligently, we are liable within the scope of legal provisions. Furthermore we are liable for injuries and damages to life and health, based on deliberate and negligent breaches of duty by either CENTA or our legal representative or vicarious agent. However, the liability for damages according to product liability law is not affected.
2. Furthermore CENTA is liable for damages, based on the breach of an essential contract duty (cardinal duty), which is a basic and essential part of the contract, presenting the customer’s purpose to agree upon the contract and which the customer relies on. If CENTA is liable in this respect, the liability is limited to common and foreseeable damages at the time of closing the contract.
3. In case that CENTA negligently causes indirect or ensuring material damages, we are liable in a way that our liability is limited in terms of liability and product liability insurance. This limitation is only valid, if the insured amount lies within the foreseeable frame of impending indirect or ensuring damages. If the insurance does not assume liability, although the insured amount is not exceeded, CENTA will assume the subsidiary liability.
4. If liability is excluded or limited for CENTA, this is also valid for our staff members, subsidiaries, representatives and vicarious agents.
X. Reservation of Proprietary Rights
1. We reserve proprietary rights of the sales item until full clearance of all open receivables of the current business relationship. If the customer acts contrary to the contract agreements, especially in case of delays of payment, CENTA is entitled to demand the sales items back. After return demand, CENTA is entitled to use the items, by settling the proceeds with the customer’s open payables and deducing appropriate costs of realization.
2. The customer is obliged to carefully handle the retain items, and especially to sufficiently insure them in regard to their original value at his own expense against fire-and water-damage and theft. As far as maintenance and inspection is required, the customer has to perform them in due time at his own expense.
3. In case of seizures or other interventions of third parties the customer has to instantly inform us in writing , in order to enable us to take legal actions according to § 771 ZPO. If the third party is unable to refund our out of court expenses of such action, the customer is liable for the loss in question.
4. The customer is entitled to resell the goods in terms of his ordinary business process; however he has to cede already then all demands of the invoice amount (including VAT), resulting from reselling to his customers or third parties. Even after ceding, the customer remains entitled to collect his demands; however, our right to collect these demands on our own remains unaffected.
Yet we commit ourselves to not collect the demands on our own as long as the customers meets his financial obligations from the received proceeds, his payment is not delayed or even stopped and if he has not declared insolvency. If this is the case, however, CENTA may require that the customer gives note about the ceded demands and the related debtor, as well as all relevant information and records to collect our demands and moreover that he informs the debtor (third party) about the cession.
5. We commit ourselves to release the entitled collaterals on customer’s demand, if the realizable value of the collateral exceeds the actual demand by more than 10%, while exclusively CENTA is entitled to select the releasable collateral.
XI. Software License
1. As far as software forms part of the delivery, the customer is non-exclusively entitled to use this software including the corresponding documentation, left to him for the use of the special relevant delivered item, while the use of this software for other systems is not permitted.
2. The customer may only copy, revise, translate the software or transfer the object code to a source code within the legal scope. The customer has to commit himself not to remove or change manufacturer’s specifications and copy right notes without our explicit permission.
3. All other rights in regard to the software and documentation including all copies are reserved for CENTA or the software supplier respectively. It is not permitted to give away sublicenses.
XII. Forum Contractus and Place of Jurisdication
1. Forum Contractus for all deliveries and payments is Haan, if not otherwise confirmed in the sales contract.
2. Place of Jurisdication for all contract related disputes is Wuppertal. However we reserve the right, to take legal actions against our customer at his own Place of Jurisdication, the same is true for bill and cheque liabilities.
3. Exclusively German Right is valid, while the application of CISG is excluded.
XIII. Final Clause
1. Any amendment or supplement of the contract, including these AGB (terms and conditions) have to be drawn up in writing, this is also valid for any amendment or supplement of this regulation.
2. If individual clauses of these AGB (terms and conditions) become invalid, this does not affect the other clauses. In this case all contract partners are bound to create alternative, preferably economic and legally valid results for the invalid part clauses.