General Terms and Conditions of Delivery of the Casco International GmbH, the Casco Schutzhelme GmbH and the S.C. Casco Group s.c.s.
Sec. 1 General Information
(1) These General Terms and Conditions of Delivery apply to all agreements regarding deliveries and any other services including all forms of cooperations and sales/distribution agreements of the Casco International GmbH or the Casco Schutzhelme GmbH, Gewerbering Süd 11, 01900 Bretnig, as well as S.C. Casco Group s.c.s., Parc Industrial Sud F.N., 440247 Satu Mare, Romania – hereinafter referred to as “CASCO” – in business transactions with companies, legal entities under public law or a special fund under public law. They therefore apply to all future business relationships, also if they have not been expressly agreed to again.
(2) No authorised dealer contract or any other distribution agreement arises between the parties also in the event of repeated delivery. Exclusiveness or territorial protection has not been agreed to. This type of agreement must be made in writing. This also applies to a waiver of the written form requirement. The application, also analogous application of commercial agency law is excluded.
(3)In the event that the customer objects to the applicability of the General Terms and Conditions of Delivery, he must report this to CASCO in writing beforehand. Deviating (purchase) conditions of the customer or third parties are hereby objected to and rejected. As a result the business conditions of the customer or third party are not applicable, also if CASCO does not separately object to their validity in individual cases or if CASCO refers to a letter that contains or refers to the business conditions of the customer or a third party.
Sec. 2 Offers and Conclusion of Contract
(1) The product descriptions of CASCO do not represent a binding offer. A contract is concluded and therefore a contractual obligation exists for the individual services, however, when CASCO expressly accepts the purchase offer by means of an order confirmation or by coherent action, in particular by preparing the shipment of the goods. As a general rule, CASCO sends order confirmations only in cases of exception. Acceptance normally is performed with the shipment of the goods.
(2) Customers ordering from the online shop of CASCO shall receive an automatic confirmation email. This does not represent an order confirmation and therefore also does not represent any form of acceptance.
(3) Drawings, illustrations, dimensions, weights, or any other performance data are only binding if this has been expressly agreed to in writing. Also non-binding is the information on availability in the online shop of CASCO.
(4) CASCO will at its discretion choose not to deliver or make a short delivery in the event items are no longer available or only available in limited quantity. In the event that the customer accepts the short delivery without any objections the contract is concluded only for the amount delivered in the short delivery. If the customer wishes a delivery exceeding the short delivery amount, then a new order must be placed.
(5) Product descriptions, information in prospects, catalogues, newsletters and price lists are performance descriptions, insofar as they have become a part of the contract, however they are no guarantees. A guarantee must be declared in writing by CASCO management.
(6) CASCO retains ownership and copyright on all offers and quotes submitted by CASCO and all drawings, illustrations, calculations, prospects, catalogues, models, tools and other documents and aids. The customer may not disclose, make known, use for himself or have used by a third party or duplicate any of these items without the express consent of CASCO. The customer must return these items in their entirety at the request of CASCO and destroy any copies, if they are no longer needed by the customer in the orderly course of business or negotiations do not lead to the conclusion of a contract.
(7) The employees of CASCO are not authorised to make verbal collateral agreements or verbal confirmations that go beyond the content of the written agreement.
Sec. 3 Scope of CASCO performances
(1) The scope of performances expected of CASCO are derived from the order confirmation or the order accepted by CASCO and where applicable agreed upon contractual changes and supplements. CASCO reserves the right to make minor design changes to the product.
(2) Changes to the order may only be made by concluding a change in contract or amendment of the contract. Each change request of the customer is considered an offer to CASCO to terminate the existing contract in connection with the offer to conclude a new agreement. CASCO is not obligated to accept the offer of the customer.
Sec. 4 Prices
(1) The prices of services rendered by CASCO have been calculated on the basis of the order confirmation or the order accepted by CASCO and any contractual changes and supplements agreed on, alternatively, based on the price lists currently valid at the time of the agreement of each rendering of service. Prices therefore do not include shipping and handling, any taxes or customs charges incurring during cross-border goods trafficking, ancillary costs of money transfers or any applicable sales tax. If the delivery is to be shipped according to contract for a period exceeding four months following conclusion of the contract, a deviating regulation with reservation on a case by case basis applies that the general prices according to the price list of CASCO on the day of the delivery are valid minus any percentage or fixed discounts agreed on, however not to exceed five percent of the originally agreed on price pursuant to clause 1.
(2) For the delivery to wholesale, prices are understood as ex-works (EXW Incoterms 2000). CASCO supplies the goods ex-works in Bretnig for pickup by the customer. In the event that a forwarder is commissioned, the ordering of the forwarder shall be performed by the customer at his own expense. A message is sent to the customer and not the forwarder to notify that the goods are ready to be picked up.
(3) In the event that the delivery is to be shipped to a retail store, the delivery is performed by shipping to the customer.
(4) Costs caused by changes of the order data subsequently ordered by the customer are charged separately.
Sec. 5 Performance period and delays by CASCO
(1) As a general rule deadlines or due dates for rendering a service are only non-binding, unless a deadline or date has been expressly confirmed or agreed to as binding. In so far as the shipment has been agreed to, the delivery deadlines and dates refer to the time of handover to the forwarder, carrier or any other third party hired for the transport.
(2) CASCO may – irrespective of its rights resulting from default of the customer – to request an extension of the delivery and performance periods from the customer or postponement of delivery and performance dates during a period in which the customer does not fulfil his contractual obligations to CASCO.
(3) CASCO shall not be liable for delays in performance resulting from force majeure and due to events which make performance by CASCO not only temporarily difficult or impossible – this includes in particular operational failures of any kind, difficulties in procurement of materials or energy, delays in transportation, strike, authorised lock-outs, official orders or missing, incorrect or late delivery by the by the suppliers – and for delivery defaults for which CASCO is not responsible. If such events significantly impact the delivery or performance of CASCO or make delivery or performance impossible and the impediment and object of impediment are of a temporary nature, CASCO shall be entitled to postpone the performance for the duration of the impediment plus an appropriate amount of start-up time. In the event of impediments that are not of a temporary nature CASCO is entitled to partially or completely withdraw from the contract with respect to the unfulfilled scope of delivery. If the impediment lasts longer than two months, the customer is entitled after granting an additional period of time of reasonable length to withdraw from the contract with respect to the unfulfilled scope of delivery.
Sec. 6 Payment and default of the customer
(1) Unless otherwise agreed, CASCO invoices are to be paid eight days after issuance without deductions.
(2) To the extent that advanced payment has been agreed on, the performance shall be made by CASCO after receipt of the transfer amount.
(3) CASCO is entitled, contrary to any deviating conditions of the customer, at first to offset any older debts, and will inform the customer about the type of billing made. If costs and interest have incurred, CASCO is entitled to offset the payment at first against the costs, second against the interest and lastly against the principle service.
(4) Payment is considered fulfilled only when the sum is available to CASCO. In the case of checks, payment is considered to be made as soon as the check has cleared.
(5) If CASCO becomes aware of certain circumstances, which question the creditworthiness of the customer (e.g. payment stops, bounced checks), CASCO is entitled to demand payment for the entire residual amount, also if CASCO has accepted checks, CASCO is also authorised in addition in this case to demand advance payments or a surety.
(6) If the customer does not meet this fulfilment by the deadline, interest shall be paid to the amount of 5% p.a. for the outstanding amounts as of the due date, assertion of higher interest and additional claims in the event of default remain unaffected.
Sec. 7 Offsetting, retention and assignment
(1) The customer is only entitled to off-set, retain or make reductions to the invoice, also if notifications of defect or counter claims are being made, if the counter claims have been determined to be undisputed or legally binding. The customer is also entitled to retention, however, irrespective of the additional pre-requisites found in clause 1, if the retention is made as a result of counter claims from the same contractual relationship.
(2) With the exception of sec. 354a HGB the customer may assign claims from this contract to third parties only after obtaining previous written consent by CASCO.
Sec. 8 Delivery and transfer of risk
(1) Handover or delivery is performed subject to any deviating regulation on a case-by-case basis only when the customer has paid the agreed upon remuneration in full. Deliveries are performed ex-works.
(2) CASCO is only entitled to partial deliveries if:
- The partial delivery has been agreed upon for the customer within the scope of the intended purpose of the contract,
- The delivery of the rest of the goods ordered is secured and
- The extensive additional expenses or additional costs do not incur for the customer as a result (unless CASCO has declared that it is willing to assume these costs).
(3) The risk of accidental loss or accidental deterioration of the goods is transferred to the customer with the handing over of the delivery item (whereby the beginning of the unloading process is decisive) to the person performing the transport. This also applies if CASCO has declared in cases of exception and contrary to the general practice of CASCO its willingness to assume the shipping costs, if the shipment occurs in cases of exception by an employee of CASCO or if partial deliveries or other services of CASCO are still pending. If the goods are ready for shipment and the shipment is delayed or acceptance is delayed for reasons for which CASCO is not responsible, notification that the goods are ready to be shipped shall be considered as the handing over and the risk is transferred to the customer.
(4) At the request of the customer the shipment shall be insured by CASCO against insurable risks at the expense of the customer.
(5) If the shipment is returned as undeliverable, CASCO shall not be obligated to keep the goods for the customer, unless the customer is not responsible for the impediment of delivery. CASCO shall be entitled to destroy the delivery following inspection of the regularity of the shipment, notification of the customer and the deadline of an appropriate period of grace to pick up the goods has passed. Entitlement to remuneration by CASCO remains unaffected therefrom. The temporary storage of the goods is performed at the risk of the customer.
(6) Storage costs and transfer of the risk shall be assumed by the customer. In the event that the storage is performed by CASCO, storage costs of 0.25% of the invoice amount of the delivery items to be stored shall be charged for each week begun. Subject to assertion and proof of higher or lower storage costs.
Sec. 9 Retention of title
(1) Until fulfilment of all demands (including all balance claims of current account) for which CASCO is entitled to from the customer irrespective of the legal reasons, CASCO shall be granted the following securities, which shall be released upon request and at the discretion of CASCO, insofar as their value sustainably exceeds the demands by more than 20%.
(2) Delivered goods remain the property of CASCO. Processing and transformation of the goods shall be performed always on behalf of CASCO as producer, however, without any obligations for CASCO. If CASCO’s ownership on the object expires due to fusion, then it is already now agreed that the ownership on the single object shall be transferred to CASCO in proportion to the value (invoice value). The customer shall keep the property of CASCO free of charge. Goods for which CASCO is entitled to ownership are described in the following as goods subject to retention of title.
(3) The customer is entitled to process and to sell the goods subject to retention of title through proper business transactions as long as the customer is not in default. Measures that breach other rights of CASCO are not considered proper business transactions. Pledging or transfers by way of security are not permitted. As a precautionary measure, the customer already herewith assigns the claims resulting from the selling or any other legal reason (insurance, unauthorised handling) with regard to the goods subject to retention of title (including all balance claims of current account) to CASCO in their entirety. CASCO agrees, however, not to collect the claim as long as the customer fulfills his payment obligations, does not default payment and in particular no petition in bankruptcy has been filed or pending inability to make payment. If this is the case, however, then CASCO is entitled to demand that the customer notifies CASCO about the assigned claims and their debtor, to provide all of the information required for collection, to provide the corresponding documents at the cost of the customer and to notify the debtors (third-parties) about the assignment.
CASCO grants the customer revocable authorisation to collect assigned claims for CASCO on behalf of CASCO in his own name. This authorisation to collect may be revoked if the customer does not fulfil his obligations of payment in an orderly manner.
(5) In the event of third party access to the retention goods, in particular pledging, the customer shall notify the third party of the ownership of CASCO and inform CASCO immediately thereof, so that CASCO may implement its own ownership rights. If the third party is not able to reimburse CASCO in connection with court costs and out-of-court costs incurring as a result, the customer shall be liable for these costs.
(6) In the event of conduct that is in breach of contract, in particular default of payment by the customer, CASCO is entitled to demand surrender of the object. This terminates the temporary right of the customer to retain the object, termination or withdrawal from the contract is therefore in case of doubt not associated with this.
Sec. 10 Warranty
(1) The products will be delivered free of fabrication and material faults.
(2) Claims resulting from material defects are excluded to the extent that the fault on the object is the result of improper assembly by the customer or by a third party assigned with the assembly task, changes or modifications performed on the object, the changing of parts or if used materials are applied, which do not comply with the original specifications and which make elimination of the defect impossible or unreasonably difficult. In each case the customer must bear the additional costs to remove the defect caused by the change.
(3) For the rest, the following regulations apply:
a) Claims arising as a result of defects do not exist resulting from minor deviations of the agreed upon properties and in the event of minor impairments of usability as well as in the event of excessive or short deliveries of up to five per cent of the order amount.
b) The obligation of the customer to immediately inspect and to report any defects pursuant to sections 377 and 381 para. 2 BGB (German Civil Code) remains unaffected.
(4) In the event that the customer reports that the product has a defect, CASCO is entitled to make improvements on the goods or to deliver new goods at its discretion. For examining whether goods have a defect CASCO shall apply the following at its discretion:
a) the defective goods or the defective part of the goods shall be sent for repair and subsequent return to CASCO; if the goods are defective, CASCO shall reimburse the shipping costs incurred, if this does not apply, to the extent the costs have increased, because the delivery object is located at a different location than that of its intended use; freight collect postage or short-paid postage is to be refrained from, freight collect postage or short-paid postage shipments are not accepted by CASCO.
b) A service technician of CASCO shall perform the repairs on the premises of the customer after previous consultation with the customer. The customer shall keep the defective goods ready for this.
(5) If the subsequent improvement is unsuccessful following an appropriate period of grace, the customer may choose between demanding a deduction of the remuneration or withdrawal from the contract.
(6) Liability for normal wear and tear is excluded.
(7) For claims of compensation the provisions in sec. 11 (liability) apply for the rest.
Sec. 11 Liability
(1) CASCO shall be liable to compensation of claims or replacement of wasted expenses, irrespective of the legal reason (e.g. obligations from legal transactions and obligations similar to legal transactions, breach of duty and unauthorised action), only under the following circumstances:
a) Liability for intent and from warranty is unlimited.
b) In the event of gross negligence CASCO shall be liable to the amount of damage that is typical and predictable at the time of conclusion of the contract.
c) Liability for ordinary negligence is excluded. In the event of infringement of an obligation essential to the contract, the fulfilment of which is essential for proper implementation of the contract and the adherence to which requires regular trust of the contract partners (cardinal obligation, such as the obligation of timely delivery of the delivery object that is free of essential defects as well as obligations of consultation, protection and care, which should make it possible for the customer to be able to use the delivery object according to the contract or to protect life and limb of the employees of the customer or to protect their property from significant damage), CASCO shall be liable to the amount of damage that is typical and predictable at the time of conclusion of the contract.
d) If CASCO is in default of its performance, CASCO shall be liable for this performance also in case of accidents unlimitedly, unless the damage would have occurred in the event of timely performance. For the rest, liability for ordinary negligence is excluded.
(2) To the extent that the liability of CASCO is excluded or limited, then this also applies to the personal liability of employees, representatives and vicarious agents of CASCO.
(3) The legal regulations apply to damage resulting from injury to life, limb or health and for claims pursuant to the product liability law.
Sec. 12 Statute of limitation
(1) The statute of limitations
a) for claims on reimbursement of the remuneration as a result of withdrawal or deduction (one year), however not less than three months after submission of the effective withdrawal or reduction declaration;
b) in the event of other claims resulting from material defects (one year);
c) For claims resulting from title defects (two years), if the title defect does not include an exclusivity right of a third party, as a result of which the third party may request surrender or destruction of the object left in the possession of the customer;
d) In the event of other claims for compensation or replacement of wasted expenses (two years).
(2) The statute of limitations begins subject to any deviating individual contractual regulation in the cases of para. 1 lit. a) to c) according to the legal provisions of the warranty regulations to be applied, in the event of lit. d), starting at the time in which the customer becomes aware of the circumstances from which the claims result or without having to have acted in gross negligence.
(3) The statute of limitations becomes effective at the very latest with the expiration of the longest period determined in sec. 199 of the German Civil Code (BGB). In the event of compensation for damages and expenses from intent, gross negligence, warranty, malice and the cases mentioned in sec. 11 para. 3, the statutory statute of limitations apply, however.
Sec. 13 Confidentiality
The parties may not provide third parties with access to business and operational secrets or any other confidential information arising as a result of the contractual relationship and from the area of each party (with the exception of information that is publicly available). This also applies after the contractual relationship has ended.
Sec. 14 Industrial Property Rights, Licenses
(1) Brands, patents, utility patents, design patents and other commercial industrial property rights as well as any permits and licenses required exist with regard to the contract product as a general rule only for Germany. The customer therefore agrees to inform CASCO immediately if he becomes aware of the existence of conflicting rights of a third party.
(2) Exporting, offering and marketing outside of Germany shall be performed in consideration of any license or permit requirements and conflicting rights of third parties at the risk of the customer The customer shall attempt to apply for the required licenses and permits at his own cost, if need be, CASCO is obligated to perform any action required as a result. CASCO reserves the right to perform the application and registration of the required industrial property rights itself at its own cost upon notification of the customer. The customer is not permitted to apply and register his own industrial property rights with regard to the contract products without the consent of CASCO. It is also prohibited for the customer to apply for or register Internet domains, which include the “CASCO” logo or any other brand or product name of CASCO, and/or to otherwise use such Internet domains for his own purpose or third party purpose without the consent of CASCO.
(3) The customer shall not make any changes to the contract products or to the packaging or documentation. In particular the customer shall not remove, make illegible, paste over or otherwise remove or change any brands or logos on the products.
Sec. 15 Final provisions
(1) Contracts concluded on the basis of the General Terms and Conditions of Delivery as well as the future legal relationships between CASCO and the customer shall be subject exclusively to German law under exclusion of the provisions of UN sales law.
(2) Unless otherwise specified in the order on a case-by-case basis, the place of business CASCO shall be the place of performance.
(3) Exclusive place of venue for all disputes arising from the contractual relationship is the place of business of CASCO. Further, CASCO shall also be entitled to select any additional place of venue for legal action taken against the customer.