Delivery and Payment Terms
CEMEC Intelligente Mechanik GmbH (CEMEC GmbH) sale, delivery and payment terms.
Our sale, delivery and payment terms are based on those of the VDMA, 2016.
Area of application:
Exclusively our terms stated below apply to all deliveries and are accepted by placing or confirming an order with us. We hereby expressly exclude contradictory purchase terms of the ordering party. These are also deemed to be excluded even if we don't exclude them upon receipt of an order. Acceptance of the ordering party's purchasing terms requires our express, written confirmation. If any provisions are ineffective, all other provisions shall remain binding. Technical changes and ongoing development are reserved.
Terms of delivery and payment, as defined for the individual contract, have ultimate validity.
The quotation documentation such as figures, drawings and weight and dimension specifications are only approximate, insofar as they are not expressly specified as binding. CEMEC GmbH reserves the intellectual property rights and copyright to quotations, drawings and other documentation; these must not be made accessible to third parties. CEMEC GmbH is obligated to make plans which have been designated as confidential by the ordering party available to third parties only with the ordering party's approval. Our service always is offered and delivered as autonomous project input by CEMEC GmbH.
Conclusion of a contract:
Orders by the ordering party require the written form. The CEMEC GmbH order confirmation or, if a timely order confirmation isn't available, our quotation is definitive for the scope of delivery. Subsidiary agreements and changes must be confirmed in writing by CEMEC GmbH. CEMEC GmbH is entitled to issue subcontracts to other companies. CEMEC GmbH is responsible for monitoring the obligation of confidentiality of all parties.
The delivery period begins when the order confirmation is sent, however not before furnishing of the documentation, permits, approvals and bought-in parts to be provided by the ordering party and not before an agreed-upon prepayment has been received. The delivery period is considered to have been met if the article of sale has left the plant or if readiness for shipment has been communicated before the end of the delivery period. Delivery deadlines are only binding if they have been confirmed in writing by CEMEC GmbH. CEMEC GmbH reserves the right to make partial deliveries insofar as this appears to be advantageous for an expedient transaction. Partial deliveries made and billed by CEMEC GmbH shall be regulated within the framework of our payment terms.
CEMEC GmbH is entitled to withhold further deliveries as long as the ordering party is in arrears. No encumbrances can be placed on CEMEC GmbH for the resulting delay in delivery. The delivery period is extended adequately in case of labour dispute measures, in particular strikes and lockouts, as well as in case of unforeseen events which are outside of our control, insofar as such obstacles can be shown to influence the manufacturing or delivery of the article of sale. This also applies if these circumstances arise at sub-suppliers and if bought-in parts are rejected. CEMEC GmbH shall also not be held liable for the aforementioned circumstances if these occur during an already existing default. In important cases, CEMEC GmbH will inform the ordering party as quickly as possible about the start and end of such obstacles. Failure to meet a delivery deadline on the part of CEMEC GmbH doesn't entitle the ordering party to withdraw from the supply contract, unless any conditions in the section on "Right of the ordering party to withdraw" are met.
CEMEC GmbH is not liable for damage or loss, caused by delay of delivery by CEMEC GmbH. If the delivery is delayed upon request of the ordering party, then the cost incurred through storage will be charged to the ordering party starting 14 days after notification of readiness for shipment was provided, or in the event of storage at the supplier's plant, 1/2 of one percent of the invoice amount per month. However, CEMEC GmbH entitled to dispose of the article of sale otherwise after an appropriate period has been set and has expired to no effect, and to supply the ordering party within an appropriately extended period. Adherence to the delivery period presupposes fulfilment of the ordering party's contractual obligations.
Transfer of risk:
The risk is transferred to the ordering party at the latest upon dispatch of the articles of sale, even in the event of partial deliveries or if CEMEC GmbH has assumed other performances, e.g. the shipping costs or cartage and setup. Upon request by the ordering party, the shipment is insured against theft, damage, transport, fire and water damage and against other risks by CEMEC GmbH at the ordering party's cost. Any potentially required claim for compensation shall be made by the ordering party itself against the insurance company. If the shipment is delayed due to circumstances for which the ordering party is at fault, then the risk is transferred to the ordering party on the day the shipment is ready; however, CEMEC GmbH is obligated to obtain the insurance coverage requested by the ordering party at the ordering party's cost. Supplied items, even if they exhibit minor defects, shall be accepted by the ordering party, notwithstanding the rights arising from the "Warranty" section.
CEMEC GmbH is liable for proper packaging, which will be invoiced. Delivery is made freight forward ex 91174 Spalt.
CEMEC GmbH is liable as follows for defects of the delivery, also including the lack of expressly assured properties, under the exclusion of further claims and notwithstanding the "Right of the ordering party to withdraw" section: At the equitable discretion of CEMEC GmbH, all parts which turn out to be unusable or the usability of which is materially compromised within the legal warranty period since being put into operation on account of circumstances preceding the transfer of risk - in particular on account of faulty construction, poor quality materials or defective processing - shall be repaired or replaced. CEMEC GmbH must be informed immediately in writing if such defects are found. Parts which were replaced become the property of CEMEC GmbH. If shipping, setup or putting into operation is delayed through no fault of CEMEC GmbH, then the liability expires at the latest 12 months after the transfer of risk. For third-party products, the liability of CEMEC GmbH is limited to the ceding of liability claims to which CEMEC GmbH is entitled against the supplier of the third-party products. The right of the ordering party to assert claims due to defects is in all cases subject to a statute of limitations of 6 months from the time of atimely complaint, but at the earliest at the end of the legal warranty period. No warranty is provided for damage resulting from the following reasons: Unsuitable or improper use, faulty assembly and/or putting into operation by the ordering party or a third party, natural wear, faulty or negligent handling, unsuitable operating equipment, replacement materials, faulty construction work, unsuitable foundation soil, chemical, electrochemical or electrical effects, damage due to overvoltage, insofar as CEMEC GmbH is not at fault for these. The ordering party must make the necessary time and opportunity available for all repairs and replacement deliveries deemed necessary at the equitable discretion of CEMEC GmbH in coordination with CEMEC GmbH, otherwise CEMEC GmbH is relieved from the liability for defects. Of the immediate costs arising from the repair and/or replacement delivery, CEMEC GmbH - insofar as the claim turns out to be valid - bears the costs for the replacement part including shipping as well as appropriate costs for removal and installation, furthermore, if this can justifiably be required according to the individual situation, the potential costs for providing its installers and support personnel. For the remainder, the ordering party bears the costs. The ordering party has the right to rectify the defect itself, or have it rectified by a third party and to claim compensation for the associated costs from CEMEC GmbH only in urgent cases involving a threat to operational safety and to avert excessive damage, in which case CEMEC GmbH must be notified immediately, or in cases where rectification of the defect by CEMEC GmbH is delayed. The ordering party has the right to rectify the defect itself, or have it rectified by a third party and to claim compensation for the associated costs from CEMEC GmbH only in urgent cases involving a threat to operational safety and to avert excessive damage, in which case CEMEC GmbH must be notified immediately, or in cases where rectification of the defect by CEMEC GmbH is delayed. Modifications or repair work performed improperly by the ordering party or third parties without the prior approval of CEMEC GmbH void all liability for the resulting consequences. Further claims of the ordering party, in particular any claims for compensation for damage which didn't occur to the article of sale itself, are excluded. This liability exclusion doesn't apply in case of intent, gross negligence of the owner or managing employees or in case of culpable violation of significant contractual obligations. In case of culpable violation of significant contractual obligations, CEMEC GmbH is only liable for damages typical for the contract and reasonably foreseeable - except in case of intent and gross negligence on the part of the owner or managing employees. It doesn't apply either in the event of missing properties which are expressly assured if the assurance was aimed at protecting the ordering party against damages not occurring to the article of sale itself.
Liability for secondary obligations:
If the supplied item cannot be used by the ordering party on account of omitted or faulty execution of recommendations or consulting as well as other secondary contractual obligations occurring before or after conclusion of the contract and for which CEMEC GmbH is at fault - in particular instructions for operation and maintenance of the article of sale -, then the provisions in the "Liability for defects" and "Right of the ordering party to withdraw" apply under the exclusion of all further claims.
Right of the ordering party to withdraw:
If a delay in performance according to the "Delivery period" section of the delivery terms exists, and if the ordering party grants CEMEC GmbH which has incurred the delay an appropriate grace period with the express declaration that it will refuse acceptance of the performance after the grace period expires and if the grace period isn't met, then the ordering party is entitled to withdraw from the contract.
If the impossibility of performance occurs during a default of acceptance or is attributable to the ordering party, then the ordering party's obligation to counter-performance remains in effect. The ordering party furthermore has the right to rescission of the contract if CEMEC GmbH by its own fault allows an appropriate grace period provided to it for the repair or supply of replacement parts pertaining to a defect for which it is at fault according to the delivery terms to lapse without effect. The ordering party's right to rescission of the contract is given in other cases in which CEMEC GmbH fails in its repairs or delivery of replacement parts. All other claims by the ordering party are excluded, in particular with regard to withdrawal or abatement as well as compensation for damages of any sort, also including such damages which didn't occur to the article of sale itself. The ordering party doesn't have the right to withdraw from the contract if the result of development work isn't foreseeable or only becomes apparent and assessable through the development or if the article of sale exhibits defects which only become apparent and assessable through the realization of the article of sale.
Prices, payment terms:
The respective latest pric lists apply, ex works CEMEC GmbH and unpackaged. The respective prices are understood not to include VAT. VAT is accounted for separately on the invoice at the respective applicable rate. Payments are due within 10 days with no deductions. Default of payment occurs automatically, following an overdue notice or at the latest 30 days after the due date and receipt of an invoice.
Interest on arrears in the amount of 3% above the respective daily rate on overdrafts of the Deutsche Bundesbank is due in case of default of payment. The right to assert further rights is retained. Cheques are only accepted as an undertaking to pay, i.e. they are only considered as payment once they have cleared and the invoice amount is posted to an account held by CEMEC GmbH. The ordering party is not entitled to exercise any right of retention. This also applies in case of claims and notices of defects.
If, after accepting an order, CEMEC GmbH becomes aware of circumstances which CEMEC GmbH judges to put the credit worthiness of the ordering party into doubt, then CEMEC GmbH is entitled to demand payment in advance or to withdraw from the contract without the ordering party being entitled to assert any claims. CEMEC GmbH is also not obligated to make any further deliveries prior to payment in full of outstanding invoice amounts, not even on the basis of other separate orders. If the ordering party is in arrears with the payment of payable invoices, then all invoices from CEMEC GmbH become due for immediate payment. This also applies if they would not be due yet according to the invoice date. If the ordering party withdraws from the current contract without a valid reason according to the "Right of the ordering party to withdraw" section, then no claims against us exist. The advance payments which have been made already are property of CEMEC GmbH. Bank guarantees for the advance payments lapse. In addition, we are entitled to invoice for the work performed already, up to the amount of the order and in relation to the work performed. If no advance payments are made, then CEMEC GmbH is entitled to charge an appropriate cancellation fee as compensation. If an ordering party becomes insolvent, we have first charge of assets with a value comparable to the order amount.
Retention of title:
The goods delivered by us remain our property until payment of all claims arising from the business relationship (principle and incidental claims). The customer may not sell or use the delivered goods in the course of regular business operations until they have been paid for in full. The ordering party may neither pledge the article of sale nor transfer it as security. The ordering party must inform CEMEC GmbH immediately in the event of seizure or confiscation or other dispositions by a third party. In the event that the ordering party breaches the contract, in particular in case of default of payment, CEMEC GmbH is entitled to take back following an overdue notice and the ordering party is obligated to surrender the property. Asserting the retention of title or seizure of the article of sale by CEMEC GmbH doesn't effect a withdrawal from the contract. For the remainder, the regulations according to §455 BGB (German Civil Code) apply. Not included in the design price or offer are reproduction rights or granting of licenses to the customer or third parties. CEMEC GmbH retains full ownership of inventions and the resulting patents, utility patents or design patents made within the framework of an order with CEMEC GmbH. The right to evaluations and marketing of these is reserved by CEMEC GmbH. Other agreements must be confirmed in writing by us. The products or developments from CEMEC GmbH are not expressly unencumbered by third-party rights without a contractually agreed upon and completed patent search. In addition, a mutual obligation of secrecy towards third parties is agreed and covers a period of 5 years from the start of the business relationship. It includes all customer/supplier information as well as concrete order information and development results. This global confidentiality agreement can be supplemented/replaced by a separate agreement made in writing.
Place of performance and jurisdiction:
The place of performance is 91174 Spalt. Place of jurisdiction is Gunzenhausen, and/or the courts responsible for Spalt.
The jurisdiction is Gunzenhausen and/or the courts responsible for Spalt for fully-qualified traders, for persons who don't have a general domestic place of jurisdiction, and for persons who have moved their residence or usual place of residence abroad after the contract was concluded or whose residence or usual place of residence is unknown at the time the action is filed.
The laws of the Federal Republic of Germany apply to all legal relationships between the ordering party and us.
CEMEC Intelligente Mechanik GmbH
Gewerbepark Hügelmühle 30
Spalt, dated 01.01.2018, signed Martin Schwab, managing partner