Terms of delivery and payment

Terms and Conditions of Sale, Delivery and Payment of CEMEC Intelligente Mechanik GmbH, hereinafter referred to as CEMEC GmbH.

Our VLZ conditions are based on those of the VDMA, 2018.

Scope

All deliveries are subject exclusively to our following conditions, which are deemed to be accepted by placing the order or upon our order confirmation. We hereby expressly object to any conflicting purchasing conditions of the customer. They shall also be deemed not accepted even if we do not object to them after receipt of an order. Acceptance of the customer’s purchasing conditions requires our express written confirmation. If any condition is legally ineffective, all other conditions shall remain binding. We reserve the right to make technical changes and further developments.

Ultimately, the Terms and Conditions of Delivery and Payment assigned to and agreed upon in the individual contract/order shall apply.

Offer

The documents belonging to the offer, such as illustrations, drawings, weight and dimension data, are only approximately authoritative, unless they are expressly designated as binding. CEMEC GmbH reserves the right of ownership and copyright to cost estimates, drawings and other documents; they may not be made accessible to third parties. CEMEC GmbH is obliged to make plans designated as confidential by the customer accessible to third parties only with the customer’s consent. Dienstleistungen (services) are always offered and provided by CEMEC GmbH in the sense of independent provision of project services.

Conclusion of contract

Orders placed by the customer must be in writing; the order confirmation from CEMEC GmbH shall be decisive for the scope of delivery, unless there is no order confirmation in due time, our offer. Verbal agreements and amendments require written confirmation from CEMEC GmbH. CEMEC GmbH is entitled to subcontract to other companies. CEMEC GmbH is responsible for monitoring the confidentiality obligations of all parties involved.

Delivery

The delivery period begins with the dispatch of the order confirmation, but not before the customer has provided the documents, permits, approvals, supplied parts to be procured, and not before receipt of an agreed down payment. The delivery period shall be deemed to have been met if the delivery item has left the factory by the time it expires or if readiness for dispatch has been notified. Delivery dates are only binding if they have been confirmed in writing by CEMEC GmbH. CEMEC GmbH reserves the right to make partial deliveries, provided that this appears advantageous for prompt processing. Partial deliveries made and invoiced by CEMEC GmbH shall be settled in accordance with our terms of payment.

CEMEC GmbH is entitled to suspend further deliveries for the duration of a payment default on the part of the customer. The resulting delay in delivery cannot be attributed to CEMEC GmbH. The delivery period shall be extended appropriately in the event of measures taken in the context of industrial disputes, in particular strike and lockout, as well as the occurrence of unforeseen events that are beyond our control, insofar as such obstacles demonstrably have an influence on the completion or delivery of the delivery item. This shall also apply if these circumstances occur at upstream suppliers and for the rejection of purchased parts. CEMEC GmbH shall also not be responsible for the aforementioned circumstances if they arise during an existing delay. CEMEC GmbH shall notify the customer as soon as possible in important cases of the beginning and end of such obstacles. Exceeding a delivery period by CEMEC GmbH does not entitle the customer to withdraw from the delivery order, unless points from the section “Customer’s Right of Withdrawal” are fulfilled. CEMEC GmbH is not liable for damages incurred or caused to the customer by delay in performance by CEMEC. If dispatch is delayed at the request of the customer, the costs incurred as a result of storage shall be charged to the customer, starting 14 days after notification of readiness for dispatch, but in the case of storage in the supplier’s plant, 1/2% of the invoice amount shall be charged for each month. However, CEMEC GmbH is entitled, after setting a reasonable deadline and its fruitless expiry, to otherwise dispose of the delivery item and to supply the customer with a reasonably extended deadline. Compliance with the delivery period is subject to the fulfillment of the customer’s contractual obligations.

Transfer of risk

The risk shall pass to the customer at the latest with the dispatch of the delivery parts, even if partial deliveries are made or CEMEC GmbH has assumed other services, e.g. the shipping costs or delivery and installation. At the request of the customer, the shipment shall be insured by CEMEC GmbH at his expense against theft, breakage, transport, fire and water damage, as well as other risks. Any compensation claim that may be required must be submitted by the customer himself to the insurance company. If dispatch is delayed as a result of circumstances for which the customer is responsible, the risk shall pass to the customer from the date of readiness for dispatch; however, CEMEC GmbH is obliged to effect the insurance policies requested by the customer at the customer’s request and expense. Delivered items, even if they have insignificant defects, shall be accepted by the customer without prejudice to the rights under section “Warranty”.

Packaging, freight

CEMEC GmbH is liable for proper packaging, which will be charged. Delivery is ex works from 91174 Spalt.

Warranty

CEMEC GmbH shall be liable for defects in the delivery, including the absence of expressly warranted characteristics, to the exclusion of further claims, without prejudice to section “Customer’s Right of Withdrawal” as follows: All those parts shall be repaired or replaced free of charge at the reasonable discretion of CEMEC GmbH, which prove to be unusable or whose usability is not insignificantly impaired within the statutory warranty period since commissioning as a result of a circumstance existing prior to the transfer of risk – in particular due to faulty design, poor materials or defective workmanship. CEMEC GmbH must be notified of such defects in writing without delay. Replaced parts shall become the property of CEMEC GmbH. If dispatch, installation or commissioning is delayed through no fault of CEMEC GmbH, liability shall expire at the latest 12 months after the transfer of risk. For third-party products, the liability of CEMEC GmbH is limited to the assignment of the liability claims to which CEMEC GmbH is entitled against the supplier of the third-party products. The customer’s right to assert claims for defects shall become statute-barred in all cases 6 months from the date of the timely notification of defects, but at the earliest upon expiry of the statutory warranty period. No warranty is assumed for damages resulting from the following reasons: Unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials, replacement materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences, overvoltage damage, unless they are attributable to a fault on the part of CEMEC GmbH. For the performance of all repairs and replacement deliveries deemed necessary by CEMEC GmbH at its reasonable discretion, the customer shall, after consultation with CEMEC GmbH, grant the necessary time and opportunity, otherwise CEMEC GmbH shall be released from liability for defects. Of the direct costs incurred as a result of the repair or replacement delivery, CEMEC GmbH shall bear the costs of the replacement part, including shipping, as well as the reasonable costs of removal and installation, insofar as the complaint proves to be justified, and furthermore, if this can reasonably be demanded according to the circumstances of the individual case, the costs of any provision of its fitters and auxiliary staff that may be required. Otherwise, the customer shall bear the costs. Only in urgent cases of endangerment of operational safety and to avert disproportionately large damages, whereby CEMEC GmbH must be notified immediately, or if CEMEC GmbH is in default with the elimination of the defect, the customer has the right to eliminate the defect himself or by third parties and to demand reimbursement of the necessary costs from CEMEC GmbH. The warranty for the replacement part and the repair is three months, but it runs at least until the expiry of the original warranty period for the delivery item. The period for liability for defects on the delivery item shall be extended by the duration of the interruption of operation caused by the repair work. If changes or repair work are carried out improperly by the customer or third parties without the prior consent of CEMEC GmbH, the liability for the resulting consequences shall be waived. Further claims of the customer, in particular a claim for compensation for damages that have not occurred to the delivery item itself, are excluded. This exclusion of liability shall not apply in the event of intent, gross negligence on the part of the owner or executive employees, as well as in the event of culpable breach of essential contractual obligations. In the event of culpable breach of essential contractual obligations, CEMEC GmbH shall be liable – except in cases of intent and gross negligence on the part of the owner or executive employees – only for the contractually typical, reasonably foreseeable damage. It shall also not apply in the absence of characteristics that are expressly warranted if the warranty was specifically intended to protect the customer against damages that have not occurred to the delivery item itself.

Liability for ancillary obligations

If, through the fault of CEMEC GmbH, the delivered item cannot be used by the customer in accordance with the contract as a result of omitted or faulty execution of proposals and consultations preceding or following conclusion of the contract, as well as other contractual ancillary obligations – in particular instructions for operation and maintenance of the delivered item – the provisions of sections “Liability for Defects” and “Rights of the Customer to Withdraw” shall apply to the exclusion of further claims of the customer.

Rights of the customer to withdraw

If there is a delay in performance within the meaning of section “Delivery Time” of the delivery conditions, and the customer grants CEMEC GmbH, which is in default, a reasonable grace period with the express declaration that he refuses to accept the service after expiry of this grace period and the grace period is not complied with, the customer is entitled to withdraw. If the impossibility occurs during the delay in acceptance or through the fault of the customer, the customer remains obliged to render consideration. The customer also has a right to rescind the contract if CEMEC GmbH allows a reasonable grace period granted to it for the repair or replacement delivery with regard to a defect for which it is responsible within the meaning of the delivery conditions to expire fruitlessly through its fault. The customer’s right to rescind the contract exists in other cases of failure of the repair or replacement delivery by CEMEC GmbH. All other further claims of the customer are excluded, in particular for termination or reduction as well as for compensation for damages of any kind, including damages that have not occurred to the delivery item itself. The customer does not have the right to withdraw from the contract if, in the case of development work, the result is not foreseeable, or only becomes recognizable and assessable through the development, the delivery item has defects that only become visible and assessable through the realization of the delivery item.

Prices and terms of payment

The latest price lists apply, ex works CEMEC GmbH unpacked. The prices are exclusive of sales tax. This will be shown separately in the invoice at the applicable rate. Payments are to be made within 10 days without deduction. The default in payment occurs automatically after a reminder, or at the latest 30 days after the due date and receipt of an invoice. In the event of default in payment, default interest will be charged at a rate of 3% above the current daily rate of the Deutsche Bundesbank for overdraft facilities, subject to the assertion of further rights. Checks are only accepted on account of payment, i.e. they are only considered payment when their redemption is ensured and the invoice amount has been credited to one of the accounts of CEMEC GmbH. The customer is not entitled to exercise a right of retention. This also applies in the event of complaints and notices of defects.

If, after acceptance of an order, CEMEC GmbH becomes aware of circumstances that, in CEMEC GmbH’s opinion, make the customer’s creditworthiness appear doubtful, CEMEC GmbH is entitled to demand advance payments or to withdraw from the contract without the customer being able to assert claims. Likewise, CEMEC GmbH is not obliged to make any further deliveries before full payment of due invoice amounts, even on the basis of further independent orders. If the customer is in arrears with the payment of due invoices, all invoices from CEMEC GmbH shall become due for immediate payment. This shall also apply if they would not yet be due for payment according to the invoice date. If the customer withdraws from the current contract without a justified reason from section “Customer’s Right of Withdrawal”, there are no claims against us. The advance payments already made are the property of CEMEC GmbH. Bank guarantees for the advance payments become invalid. In addition, we are entitled to invoice these in relation to the work performed, up to the order total. If no advance payments have been made, CEMEC GmbH has the right to charge a reasonable cancellation fee as compensation. In the event of insolvency of a customer, we have first-ranking access to operating resources in a comparable amount to the order total.

Retention of title

The goods delivered by us remain our property until all claims arising from the business relationship (principal and ancillary claims) have been paid. The purchaser may not sell or use the delivered goods in the ordinary course of business before full payment. The customer may neither pledge the delivery item nor assign it as security. In the event of seizures as well as attachment or other dispositions by third parties, he must notify CEMEC GmbH immediately. In the event of breach of contract by the customer, in particular in the event of default in payment, CEMEC GmbH is entitled to take back the goods after a reminder and the customer is obliged to surrender them. The assertion of the retention of title as well as the seizure of the delivery item by CEMEC GmbH shall not be deemed a withdrawal from the contract. In all other respects, the provisions of §455 BGB shall apply. The design price or offer does not include reproduction rights, licensing to the client or third parties. Inventions and the resulting patents, utility models or registered designs that are made to CEMEC GmbH within the scope of an order remain in the full possession of CEMEC GmbH. Evaluations and marketing of these are reserved to CEMEC GmbH. Other agreements require our written confirmation. Without a contractually agreed and carried out patent search, the products or developments of CEMEC GmbH are not expressly free from third-party rights. In all other respects, a mutual obligation of confidentiality towards third parties is agreed for a period of 5 years from the beginning of the business relationship. This includes all customer and supplier data, as well as the specific order information and development results. This global confidentiality agreement can be supplemented/replaced in writing by a separate agreement.

Place of performance, place of jurisdiction

Place of performance is 91174 Spalt. The place of jurisdiction is Gunzenhausen, or the courts responsible for Spalt. The place of jurisdiction for fully qualified merchants, for persons who do not have a general place of jurisdiction in Germany, as well as for persons who have moved their domicile or habitual residence abroad after conclusion of the contract, or whose domicile or habitual residence is not known at the time of the action, is Gunzenhausen, or the courts responsible for Spalt.

The law of the Federal Republic of Germany shall apply to all legal relationships between the customer and us.

CEMEC GmbH

Gewerbepark Hügelmühle 30
91174 Spalt

Spalt, 01.01.2021, signed Martin SCHWAB, Managing Director