General Business Terms and Conditions

1 Scope

1.1
Any legal transaction, in particular deliveries and services that C-nox conducts with an entrepreneur as per BGB (German Civil Code), a corporate body organized under public law or a legal entity under public law, is governed by these terms and conditions. Contractual agreements differing from or adding terms hereto are valid and binding only, as far as they are confirmed by C-nox in writing. Differing business terms and conditions will not become part of a contract, not even due to execution of an order.

1.2
Any contract comes into existence through order confirmation by C-nox in writing (Article 126b BGB). C-nox can be held to any offers for a maximum time span of 30 days, only. Should the offer be accepted after expiration of such binding time frame, then C-nox shall have the right to adjust the offered price as they see fit, within reason. As far as commercial contract terms are being used, the Incoterms 2000 should be consulted for interpretation.

1.3
C-nox reserves the right to designs and samples, drawings, offers and similar information of physical and/or non-physical nature (such as files, etc.), as well as copyrights and proprietary rights. Such information shall not be made available to any third parties. The same applies to information or documents marked as “confidential“. Should the consignee violate this obligation, then a contractual penalty of twice the price of the offer will be forfeited.

2 Delivery

2.1
All deliveries are EXW (Incoterms 2010), ex/from factory workshop in Neumünster, excluding packaging, loading and unloading. Place of delivery and performance is C-nox’s domicile. This also applies in cases, where C/nox covers the transportation costs.

2.2
Upon delivery EXW, the risk passes to the customer at that point. This even applies in cases, where there are partial deliveries made or further performances due by C-nox, such as assembly or initial startup/commissioning services. Inasmuch as commissioning services or similar performance was agreed upon, besides the delivery, article 7 below shall apply.

2.3
The anticipated delivery timeframe depends on C-nox’s order confirmation. If a fixed date is stated, then the calendar week appending to it shall count as the delivery timeframe. The adherence to the delivery timeframe is conditional upon the final and confirmed clarification by C-nox of all commercial and technical questions, as well as upon the fulfillment of all obligations and duties on the part of the customer. This entails, but is not limited to the obtainment of certifications, licenses from the authorities, the fulfillment of down-payments as well as the posting of a security or bond, covering the total amount due (article 648a BGB). The agreement for a fixed-date-delivery requires express, written agreement.

2.4
The adherence of the delivery timeframe is contingent upon self-delivery, free from defects and in a timely manner, as well as upon acts of god, labor disputes or other events beyond C-nox’s control.

2.5
In the event of circumstances as described under articles 2.2 – 2.4 herein, the delivery timeframe shall be adequately extended by at least the time of such delay plus 14 days. C-nox will communicate the timeframe of the delay to the customer at their earliest convenience.

2.6
Partial deliveries are admissible, unless this would pose an unreasonable burden upon the customer or in case, it was excluded by agreement.

2.7
Should the dispatch to or the acceptance by the customer be delayed due to reasons that fall within the risk of the customer, then C-nox will, 5 working days from the reporting of dispatch /readiness to accept, be entitled to invoice the costs of delay against proof/documentation. For safekeeping of equipment, a monthly flat fee of € 12,50 (net/before VAT) per each square meter of required space on Euro pallets will be charged, plus a one-time handling fee of € 150,- (net/before VAT).

2.8
The delivery timeframe is considered met and the delivery is deemed executed, when the delivery object was reported as ready for dispatch up until the last working day or if it was surrendered to a freight forwarder.

2.9
Unless the parties have particularly agreed upon the terms of transportation, C-nox shall be entitled to contract the transportation according to the ADSp (German Freight Forwarders’ Standard Terms and Conditions). Should the passing of the risks have already happened, then C-nox is entitled to bill the customer for all costs accumulated up to that point by separate invoice. For the liability in case of transportation damages, article 5.9 below shall apply.

3 Prices

3.1
All Prices are to be understood as net and ‘ex works C-nox’, ‘free ramp of truck’, excluding packaging, loading and unloading, unless otherwise expressly declared in writing within the order confirmation.

3.2
Payments may not be discounted and are to be paid to the account of C-nox immediately. All our receivables are duly displayed through invoices. Invoices are considered received 3 days after mailing or – in case of pre-dispatch by fax – at the time displayed within the ‘Sending Confirmation’. Should invoices be dispatched by e-mail, then the invoice is considered received at the time sent, as long as it was sent to an e-mail account that was communicated to C-nox and that has been used for communication in the past.

3.3
The right to retention of goods or the right to set off, applies only to undisputed (reason and amount) or legally confirmed claims.

3.4
For each type of transaction (customer or supplier) an adequate credit is provided so that insurability is given at HERMES. If the creditworthiness of the counterparty changes or subsequently proves to be incorrect, C-nox is unilaterally entitled to treaty changes.

4 Retention of Title

4.1
C-nox retains the title to the delivered goods, until all receivables originating from the business relationship with the customer are paid. It is the customer’s obligation to insure the delivered goods at replacement value against theft, breakage, fire, water and other damages from the point of the passing of the risk and the customer must show C-nox proof of such coverage. Should such proof not be presented, then C-nox shall be entitled to cover insurance for the account of the customer.

4.2
The customer may neither sell, pawn, nor transfer the delivered good as security. In case of seizure or garnishment or other disposition by third parties, C-nox must be notified immediately.

4.3
Should the customer violate his obligations, particularly his obligations to pay, then C-nox shall be entitled to take back the delivered goods and the customer is obligated to surrender them.  Beyond that, the customer is obligated to surrender after C-nox rescinds the contract; petition for bankruptcy proceedings or the announcement of such impending petition entitle C-nox to rescind the contract.

4.4
Upon demand, C-nox will at their reasonable discretion decide as to whether or not they will waive securities as per article 4.1 to 4.3 herein, if a security or bond in line with article 648a BGB is posted.

5 Warranty / Liability

5.1
Should the delivered merchandise display any defect that was already present at the time of the passing of the risk, then C-nox is entitled and obligated to remediation of said defect or to redelivery of merchandise free from defect. The remediation has to be carried out within a reasonable timeframe. The customer is obligated to transport the goods to the delivery location for the purpose of repair/remediation or to advance the cost for the trip and release to the location of the equipment.

5.2
It is the customer’s obligation to ensure that any goods are inspected for defects immediately after delivery (§ 377 HGB/German Commercial Code) and to report any damages in writing (§ 126 BGB). Damages that occur on the delivered merchandise after approval are considered as having occurred after the passing of the risk, unless it can be proven otherwise. C-nox is entitled and upon demand of the customer obligated, against surety of remuneration customary in this respect, to remedy such damages. The surety is to be returned after it is proven that the damage can be attributed to an already existing defect of the merchandise.

5.3
Should plausible clues exist for an unsuitable or improper use, a faulty installation or commissioning by the customer or for other faulty or careless treatment or improper maintenance, then it is assumed until proven otherwise that the damage was not caused by a defect that existed prior to the passing of the risk. The same applies to (the use of) unsuitable operating fluids and other operating agents, faulty workmanship on interfaces, unfit foundation surfaces or through other chemical, electro-chemical or electrical influences within the area of risk of the customer. Should the customer or a third party carry out works on the equipment without prior consultation of C-nox, then it can be assumed (unless proven otherwise) that any damages occurring thereafter are the result of such works.

5.4
Insofar as C-nox followed the customer’s instructions during the manufacture, particularly with respect to design or materials/components to be used, the customer shall be responsible for the characteristics and fitness resulting directly or indirectly from such instruction.

5.5 Should defects of title prevent the use of the delivered equipment, C-nox is obligated to remove such defects. Should this not be possible at economically reasonable conditions or within an acceptable timeframe, then both parties are entitled to rescind the contract. Economic conditions are considered unreasonable, when they exceed 50% of the agreed remuneration. Beyond that the legal stipulations do apply.

5.6 Article 5.4 applies upon violation of immaterial protection rights (copyrights, patent rights, trademark rights) only if and as far as

• The customer informs C-nox immediately of the asserted protection rights,
• The customer supports C-nox to the required extent in defending against claims or facilitates the removal of the defect of title according to article 5.4 herein,
• C-nox maintains the right to reserve all defense measures, including out-of-court arrangements,
• The defect of title is not based on an instruction by the client, and
• The legal violation was not caused by an arbitrary change or utilization by the customer that is not contractually sanctioned.

5.7
For damages that did not occur on the delivery item itself, C-nox shall – for whatever legal grounds – only be liable due to a deliberate act, gross negligence by bodies or executives and due to culpable violation of life and limb and health. The according applies to defects or deficiencies that were guilefully unmentioned or whose absence was expressly guaranteed. A potential liability as per product liability law remains untouched.
Should C-nox be responsible for the violation of a substantial obligation under the contract, then the liability shall be limited to reasonably predictable damage, typical for the contract. A damage that exceeds 50% of the delivery value is considered unpredictable. The adherence to the agreed delivery timeframe is, in absence of differing, express agreements, not considered a substantial obligation under the contract. The same applies with respect to obligations that were taken on besides the delivery. Claims for damages due to indirect financial losses and particularly due to unrealized profits are excluded.

5.8
The start of talks or negotiations about damages and potential defects as their cause does not constitute any waiver to the claim of late notification of defects.

5.9
C-nox shall not be responsible for damages caused during transport, unless the risk has not yet passed. Any claims under the transportation contract against the carrier shall be settled between him and the customer. Inasmuch as C-nox is entitled to claims against the carrier or other parties involved in the transport, those claims will be preemptively assigned to the customer. With the conclusion of this contract the customer accepts such assignment. In case the risk did not yet pass to the customer, the ADSp apply in their respective current version. After that the liability for damages to goods as per article 431 HGB (Damages during freight forwarder’s custody) are limited to € 5.00/kg; within multi-modal transports that include the transportation by sea to 2SDR/kg and further for each damage case or event to T€ 1,000 or rather T€ 2,000 or 2 SDR/kg, depending on which amount is higher. Article 27 ADSp does not constitute a waiver of liability as defined by article 25 of the Montreal Convention.

5.10
Regardless of the legal justification is the liability of C-nox limited to 50,000 €.

6 Software

6.1
If the delivery contains controls or similar components, on which software was installed from the delivery side, then the customer shall be entitled to the use of such software on a non-exclusive basis. The software and the pertaining documentation are provided for use on the designated delivery item. The utilization of the software on more than one piece of equipment is prohibited.

6.2
The customer is only entitled within the legally permissible scope (articles 69 a et seq. UrhG/German Copyright Act) to duplicate, rework or change the software in any other way. Manufacturer’s statements, in particular copyright or similar notations may not be removed or altered.

6.3
Unless software rights were granted to the customer, the right shall remain with C-nox. Sub-licensing is prohibited.

7 Other Performances / Commissioning

7.1
Should next to the delivery other work performances be required, in particular commissioning work, the following stipulations shall apply thereto.

7.2
Should deficiencies be claimed for such performances, then the alleged defect/deficiency must be described under use of the appropriate documentation, be documented and C-nox must be informed immediately. Should plausible clues exist that contradict any faultiness of the performance, then C-nox is only obligated to take measures towards the remedy of damages against surety of remuneration customary in this respect. Should it become apparent within this context that the performance did have an initial deficiency or defect, then this surety must be returned

7.3
The liability for such performances is limited to 20% of the agreed total remuneration.

7.4
The customer will be advised of the conclusion of commissioning performances in writing. The final acceptance of the performances has to take place within 5 working days after conclusion und is considered done, as soon as the customer takes over the operation of the equipment on his own authority.

8 Final Clause

8.1
All privities between C-nox and the customer shall be exclusively governed by the laws of the Federal Republic of Germany, as relevant to domestic contracting parties among each other.

8.2
Legal venue is the court with factual and local competency in regards to C-nox. C-nox shall be entitled to sue at the customer’s domicile.

8.3
The customer agrees that C-nox may store data from the contractual relationship as per article 28 BdatSchG (Federal Privacy Act of Germany) for the purpose of data processing and C-nox reserves the right to transmit data to third parties, inasmuch as this is reasonable for the fulfillment of the contract.
 

The interpretation of any part of these Terms and Conditions shall not be affected by the fact that it has been drawn up in the English language rather than in the German language. In particular, any English term used herein shall be interpreted in accordance with the German law and practice, irrespective of the relevant German term being added in brackets or not. In case of doubt or ambiguity, the German version of these Terms and Conditions shall prevail.


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