CEP Anlagenautomatisierung GmbH
General Terms and Conditions
CEP Anlagenautomatisierung GmbH (01/17)

I. Scope of application, general

1. These General Terms of Delivery and Service apply only for the rela-tionships of CEP Anlagenautomatisierung GmbH (in the following: CEP) with customers that are companies in the meaning of Section 310 (1) in conjunction with Section 14 German Civil Code (BGB) or le-gal persons under public law and/or a special fund under public law in the meaning of Section 310 (1) BGB; they also apply if no further reference is made to them in individual transactions and unless explic-itly agreed otherwise in writing.

2. These General Terms of Delivery and Service apply exclusively, even if the customer refers to differently worded or supplemental business conditions in its order or a letter of confirmation. Deviating, opposing or supplemental general conditions of our customers become a component of the agreement only and to the extent as we have ex-plicitly agreed to this in writing. This requirement for consent applies in every case, for example if we have executed the delivery or service for the customer without reservation, despite knowledge of the gen-eral terms and conditions of the customer.

3. The inclusion and interpretation of these General Terms of Delivery and Service as well as conclusion and interpretation of legal business with the customer are regulated exclusively according to the laws of the Federal Republic of Germany. Application of the uniform laws re-garding the international purchase of movable objects (UN Conven-tion on Contracts for the International Sale of Goods) is excluded. These General Terms of Delivery and Service overrule all previous ver-sions.

4. References to the application of legal regulations have merely a clari-fying significance. Therefore, the legal regulations apply also without such prior clarification, unless they are directly altered by our General Terms of Delivery and Service.

II. Conclusion of the contract

1. Unless a commitment is explicitly made in writing, the offers of CEP are subject to change and non-binding. This applies also if we have provided the customer with catalogues, product descriptions and technical documentation (e.g. drawings, plans, evaluations, calcula-tions) prior to conclusion of a contract.

2. Orders for deliveries or services placed by the customer are deemed a binding offer of contract, unless the order or the other agreements state differently. A contract is concluded only through order confir-mation by CEP or a tacit execution of the order. The extent of the contractually owed service is exclusively determined by the order confirmation by CEP.

3. Insignificant changes or industry-standard modifications, in particular of a technical or optical nature, remain reserved and do not consti-tute a deviation from the order if their acceptance can be reasonably expected of the customer and/or do not entail an impairment of functionality. The makes or brands mentioned in the specification are not binding in case of doubt, but are only examples and may be re-placed by products of an equal technical value.

4. All subsidiary agreements and alterations to the purchase contract are only effective if confirmed in writing by CEP.

III. Prices and payments

1. The prices are subject to change. In case of delivery of the goods, the valid prices as amended are – unless otherwise agreed – ex-works plus the statutory rate of VAT, and are hence exclusive of costs for transport, packaging or other ancillary services such as loading, transport, transport insurance, customs duties and registration costs, as well as their respective VAT. We do not take back transport and any other packaging material according to the stipulations of the Packag-ing Ordinance (VerpackVO); they become the property of the cus-tomer. This does not apply to exchangeable, reusable pallets.

2. Assembly or installation requested by the customer requires a sepa-rate remuneration agreement; absent a suitable agreement, CEP will be entitled to charge its standard rates based on workload.

3. CEP reserves the right to adjust prices appropriately if cost decreases or cost increases occur after conclusion of the contract, in particular due to collective bargaining agreements or changes in prices for ma-terials. CEP will provide verification of these changes to the customer on request.

4. All receivables for CEP are due immediately and payable without delay upon receipt of invoice and delivery of the goods and/or provision of service. CEP will be entitled to partial payments in case of work and supply services, whereby the services provided must be validated. The following provisions shall apply, unless otherwise agreed:
- the amount of 30% of the confirmed value of the gross invoice amount is due and payable upon order confirmation by CEP;
- the following instalment payments are due in appropriate amounts under consideration of the respective level of performance. CEP is entitled instalments of up to 95% of the anticipated gross invoice amount until the time of final acceptance;
- the remaining 5% are due and payable upon final acceptance and/or upon complete remedy of the defects that may have been noted during official acceptance.

5. The customer is in default of payment if it does not settle the invoice within 14 days of receipt. The assertion of default interest (Section 353 German Commercial Code (HGB)) remains unaffected. In case of de-fault payment, CEP may charge interest of 8 percentage points above the respective base interest rate of the European Central Bank; the as-sertion of further default damages remains reserved.

6. The customer may only offset claims by CEP and assert a right of retention based on other claims if these are uncontested, have been adjudicated upon finally or are recognised by CEP. Furthermore, the customer may only exercise the right of retention in cases that refer to the same contractual relationship.

7. Non-compliance with the agreed payment conditions or other cir-cumstances that indicate a significant deterioration of the financial po-sition of the customer with due consideration of standard banking benchmarks will result in all claims, including bills of exchange and cheque claims held by CEP that are based on the same contractual relationship, becoming due immediately. CEP is not required to make further deliveries before complete settlement of all outstanding in-voice amounts has been received.

8. In case that payment has been agreed by bill of exchange, the cus-tomer will be required to carry all bill of exchange and processing charges in this regard. CEP only accepts cheques on account of pay-ment and upon condition that they are redeemed upon presentation. All expenses, fees and costs in this regard will be carried by the cus-tomer.

9. Deductions of discounts from invoices by CEP are not permitted.

IV. Annulment expenses

In the event that the customer withdraws from a confirmed order with-out proper justification, CEP may, without prejudice to the option of asserting greater actual damage, demand 10% of the agreed price for the costs incurred for processing the order, as well as for loss of profit. It is at the discretion of the customer to prove less damage.

V. Scope of supply and services

1. The scope of supply and services is determined by the written order confirmation from CEP.

2. Unless other explicit instructions are provided by the customer for delivery, CEP will ensure a sensible and effective packaging of the goods. The place of fulfilment for all obligations arising from this con-tract is the factory premises of CEP, i.e. the registered address of the manufacturer or the respective trading outlet.

3. Unless explicitly agreed otherwise in writing, the customer will carry the shipping costs for packaging, dispatch and transport.

4. The customer is responsible for procurement of any official permits that may be necessary. Effectiveness of the contract is not predicated upon the issue of these permits.

5. Unless otherwise stated in the order confirmation from CEP, measures for employee training in the use of the supplied system and its supply and assembly that are not immediately necessary for the assurance of good working order, as well as the maintenance and support of an installed system, do not belong to the scope of service. Excepted are also all devices and tools such as cranes, forklifts, operat-ing platforms, scaffolds and the usual sanitary facilities required for the installation, which must be provided by the customer. The costs of energy consumption during installation are also not included in the scope of service and will be carried by the customer. Furthermore, the scope of services does not include travelling ex-penses and accommodation for employees of CEP, as well as transport costs. They must be remunerated separately by the custom-er.

6. CEP is entitled to make partial deliveries or partial services, if permitted by the nature and type of the purchased, i.e. contractual object. CEP will keep records of items not supplied during partial deliveries and will make delivery as soon as they become available. Insofar as the customer does not wish to accept partial or gradual delivery, it must notify CEP explicitly in writing. Unless agreed otherwise specifically, the customer accepts in principle that orders may be fulfilled as partial deliveries, i.e. as partial services.

7. CEP explicitly reserves the right to commission third parties with the fulfilment of direct deliveries to the customer.

8. Changes to the scope of delivery are permitted during the delivery period, provided their acceptance can be reasonably expected of CEP and the customer with due consideration of their interests.

9. All drawings, drafts, models and other records of any kind, as well as all relevant documentation provided by CEP during the offer phase, remain the sole property of CEP. They must be returned to CEP upon request at any time and unless explicitly agreed otherwise. The prop-erty rights, copyrights and other rights of CEP to documentation mentioned above remain with CEP, even after conclusion of the con-tract. The customer is granted a usufruct and right of use only to the extent as is necessary for the purpose of contractual fulfilment and if explicitly granted in the contractual documents. Reproduction and disclosure of documentation that is specific to the project are prohib-ited.

10. If included in the scope of delivery, the customer is granted a non-exclusive right to use of the supplied software, including its doc-umentation. The software will be provided for use in conjunction with the supplied object of delivery. It is prohibited to use the software on more than one system. The delivery of development infrastructures and software rights held by third parties are not included in the contract, unless such items are explicitly identified as included items. The provision of software will be exclusively in a machine-readable form (object code). The customer may only copy, edit or translate the software or transform it from the object code into the source code in the extent permitted under law (Sections 69a ff. Copyright Act (UrhG)). The customer undertakes to refrain from removing manufacturer in-formation – and copyright notices in particular – or from altering them without prior written consent from CEP. All other rights to the software and documentation, including all cop-ies, remain with CEP. The customer is not permitted to issue sub-licences.

VI. Delivery periods and delayed delivery

1. Delivery dates and delivery periods that are agreed as bindingly agreed upon or non-bindingly agreed upon must be specified in writing. Delivery periods begin upon conclusion of the contract. Inso-far as knowledge of essential technical details is necessary for delivery, the delivery period will only commence once CEP has received all es-sential details necessary for planning and fulfilment (“closing date”).

2. Delivery obligations are predicated on the receipt of supplies from its providers by CEP. This applies also to raw materials and technical equipment. This is without prejudice to the legal rights and obligations of the contractual parties.

3. Adherence to agreed delivery periods is predicated on fulfilment by the customer of its contractual cooperation duties in good time, in particular the provision of all documents required of the customer, the necessary permits and authorisations that the customer must ob-tain and that advanced performances required by the customer or a third party commissioned by the customer have been completed properly and in good time. The agreed delivery periods will be post-poned in each case for as long as a requirement as stated in the for-going remains unfulfilled by the customer. The delivery period is ad-hered to if the customer receives notification of readiness for shipping by the end of the delivery period, unless shipping is delayed for rea-sons that are the responsibility of CEP. In case that additional costs are incurred due to non-compliance by the customer with its duties of cooperation, e.g. a longer project period, the customer will be re-sponsible for these costs, also directly under certain circumstances, even if a blame can only be identified for a particular contractual partner.

4. The customer is responsible for the timely and contractual provision (personnel, materials etc.) of resources. CEP will only be liable for sub-standard work completed by personnel brought in by the customer in the case that the instructions it provided were incorrect. The cus-tomer is liable for the quality and suitability of materials provided, and will carry the associated risks.

5. The customer can insist that CEP make delivery four weeks after the end of a non-binding delivery deadline or a non-binding delivery pe-riod. CEP will be in default upon receipt of this notice. Any default damages to which the customer is entitled shall be restricted to no more than 5% of the agreed purchase price in case of slight negli-gence on the part of CEP. Furthermore, in case that the customer wishes to withdraw from the contract and/or demands compensation in lieu of performance, the customer must extend to CEP an appropriate grace period to make delivery after the end of the four-week period as stated in clause 1. In the event that by coincidence, CEP becomes unable to make deliv-ery while in default, CEP will be liable according to the limitations on liability as agreed in the forgoing. CEP is not liable insofar as the dam-age would have occurred also in the event of punctual delivery.

6. CEP will only be in default with delivery, even in the case of failure to adhere to a binding delivery deadline, if it receives notice thereof from the customer.

VII. Assembly at the customer’s premises

1. Unless otherwise agreed, assembly takes place by CEP or its repre-sentatives on the premises of the customer after suitable coordination between the contractual partners.

2. Prior to assembly, the customer must satisfy all requirements needed to ensure smooth assembly procedures. In particular, the customer must provide necessary equipment and tools in good time; moreover, the construction site must remain accessible to the employees and representatives of CEP for the duration of assembly. Insofar as assembly takes place in operational production sites, the customer must ensure that ongoing production at its place of opera-tion does not impede assembly of the systems to be delivered by CEP.

3. CEP is not answerable in any way for disruptions to assembly that are the responsibility of the customer. The customer must reimburse CEP for additional costs incurred in this regard, in particular additional travelling expenses, accommodation costs for employees and repre-sentatives, as well as downtime etc.

4. The customer’s operations may be disrupted during assembly on its premises. The customer agrees to this kind of disruption in opera-tions, unless the disruptions to the customer’s operations are abso-lutely avoidable. In case that absolutely avoidable disruptions to the customer’s opera-tions occur during assembly, the onus of proof shall rest with the cus-tomer that the obstruction was absolutely avoidable in the definition according to this provision and that the responsibility for this disrup-tion is attributable to CEP.

5. Insofar as CEP shall be deemed liable for any disruption in operations in the definition according to the forgoing provisions, the liability of CEP and its vicarious agents for damages incurred in this regard shall be limited – irrespective of the legal grounds – to intentional and grossly negligent violation of duties by CEP or its vicarious agents. This does not apply in case of damage to life, limb and health.

VIII. Impossibility of performance, force majeure

1. Insofar as CEP is unable to satisfy the terms of delivery due to reasons for which it is not responsible (impossibility of performance), it will no-tify the customer without delay and will, at the same time, specify an appropriate new delivery period. If performance is not possible within the new delivery period as well, CEP is entitled to withdraw from the entire contract or from such parts of the contract as have not yet been fulfilled. CEP will reimburse the customer for any consideration already paid without delay.

2. War, terrorism, strike, lock-out, bottlenecks in the supply of raw mate-rials and energy, transport and unavoidable operational disruptions, sovereign orders – also insofar as they render execution of the trans-action affected commercially unviable for a foreseeable period – lack of transportation and other cases of force majeure concerning sup-pliers of CEP as well, shall release CEP from its obligation to make de-livery for the duration of the disruption and the persistence of its re-percussions. These events also entitle CEP to withdraw completely or partly from the contract without the customer being entitled to com-pensation for damages. Clause 1 subclause 3 applies accordingly.

IX. Transfer of risk, acceptance

1. The customer undertakes to accept the delivery, i.e. service, within 40 days from receiving notice of its readiness. In case of non-acceptance, CEP will be entitled to assert its legal rights. Insofar that CEP demands compensation, it shall be 15% of the gross invoice value. Compensation may be raised or lowered in the event that CEP can prove a greater damage or the customer can prove a lesser damage.

2. The risk of accidental destruction and deterioration for deliveries is transferred to the customer as follows:
- without prejudice to the rights recourse against the commissioned carrier, upon loading onto the means of transport selected by CEP at the registered business address of CEP if the purchase item is to be dispatched by CEP; this also applies if CEP carries the shipping costs and other costs of delivery and assembly;
- upon properly notified provision at the registered business address of CEP for purchased items that will be collected from CEP by the customer. This also applies if CEP carries the shipping costs and other costs of delivery and assembly.

3. In case of delivery “free domicile”, the customer will be responsible for unloading. The customer will then be solely responsible for any dam-age to the delivered item during unloading.

4. Insofar as the customer notices a deviation between the delivered item and the item listed on the transport paper, or obvious transport damage to the purchased item upon its receipt, it must immediately express all reservations toward the carrier and at the same time notify CEP of these circumstances.

5. Insofar as the contract refers to the provision of services instead of the sale of goods, acceptance of the service will take place instead of handover of goods. In case of installation of equipment and equip-ment parts on the customer’s premises by employees and/or repre-sentatives of CEP, the risk of loss, damage or deterioration is trans-ferred to the customer at the latest upon transfer of ownership to the object of the service, e.g. by installation as an essential component in property of the customer. Transfer will otherwise take place upon ac-ceptance or partial acceptance.

6. Acceptance of an installation and/or service takes place immediately after commissioning by means of a protocol that will be prepared and signed jointly and that identifies all defects and remaining work that must be dealt with. Acceptance shall also be deemed completed inso-far and inasmuch as CEP commits to the immediate rectification of identified defects. Acceptance does not exclude downstream optimisa-tion of the process and does not constitute complete provision of all contractual services. Subsequent assertion of defects and remaining work not approved in the acceptance protocol shall only be possible if they were not identi-fiable during acceptance. The onus of proof rests with the customer in this regard. CEP is entitled to demand partial acceptance for self-contained units according to the forgoing regulations.

7. In the event that the customer does not comply with its obligation to cooperate during acceptance or partial acceptance, CEP shall be enti-tled to set a reasonable deadline for acceptance by the customer. The item shall be considered as accepted insofar as acceptance or partial acceptance does not take place according to clause 6 within this peri-od, provided that CEP sends to the customer an acceptance protocol prepared by CEP, and the customer does not raise any written and reasoned objections within a period of one week.

8. Use of the delivered system by the customer for its intended purpose shall also be considered tantamount to acceptance of delivery.

X. Reservation of title

1. The purchased item remains the property of CEP until complete payment of all receivables (including future receivables) owed to CEP under the purchase agreement and irrespective of their nature has been made. Acceptance of a bill of exchange by CEP is not consid-ered payment until it has been honoured upon presentation.

2. The reservation of title also applies to claims by CEP against the pur-chaser from the ongoing business relationship, until such time as set-tlement of claims in connection with the purchase has been received.

3. In case of payment default or upon occurrence of circumstances that indicate a significant deterioration in the financial circumstances of the customer and upon due consideration of customary banking practic-es, CEP shall be entitled – without enforcing a right of withdrawal or extending a grace period – to take back the purchased item at the cost of the customer and to commit the customer to surrender the purchased item.

4. Insofar as CEP shall therefore be entitled to compensation in lieu of performance and it has taken back the purchased item, CEP and the customer agree that CEP will provide reimbursement for the fair mar-ket price of the purchased item at the time it was taken back. A pub-licly appointed and sworn expert will determine the fair market price of the purchased item at the discretion and upon request of the cus-tomer, which may only be expressed immediately upon taking back of the purchase item. The customer will carry all cost of withdrawal of the purchased item and its marketing. Marketing costs shall amount to 5% of the usual market value, without requiring the provision of evidence. They must be raised or lower insofar as CEP proves to the customer that the ac-tual costs were higher or lower.

5. The assertion of reservation of title and the levy of execution on the supplied purchased items by CEP does not constitute a withdrawal from the contract, unless explicitly declared in writing by CEP. 

6. The customer is prohibited from assigning the purchased item or pledging it as collateral. In case of levy of execution or seizure, or in case of other disposals by third parties, the customer shall be required to notify CEP in writing without delay. In these cases, the customer must provide CEP with all information and documentation necessary in order to protect its rights. The bailiff or third party must be in-formed of CEP’s reservation of title.

7. For the duration of reservation of title, the customer shall only be permitted to sell the goods in the ordinary course of business and only upon condition that the customer and the reseller receives pay-ment from its customer or asserts a reservation of title such that own-ership is only transferred to the customer once it has fully satisfied its payment obligations. Furthermore, reserved goods may only be sold insofar as the customer is not in default. The reseller must also agree with its customer that receivables arising from the resale of the items shall be assigned to CEP according to the following terms. Resale shall also include delivery of reserved goods for the fulfilment of work and supply contracts. Insofar as the customer resells reserved goods, it automatically assigns future receivables from its customers due to such resale transactions as well as all ancillary rights – including any payment balances – to CEP as collateral without this arrangement requiring explicit agree-ment in each case. Insofar as the reserved goods are resold together with other goods without an individual price having been negotiated for the reserve goods, the customer shall assign to CEP the part of the total remaining receivable equivalent to the price of the reserved goods as invoiced by CEP, with priority status before all other receiva-bles. The receivables assigned to CEP as collateral will be used to the same extent as collateral for CEP as is the case for the reserved goods in the definition according to clause 1. In case of a legitimate interest, the customer must provide CEP with the information and documentation necessary for the assertion of its rights against the customers. The customer is entitled to collect the assigned receivables from resale of the goods until such time as this right is withdrawn. CEP is entitled to withdraw the customer’s right to collect receivables in case of good cause, in particular default on payment, suspension of payment, initiation of insolvency proceedings, refusal by a bank to honour a bill of exchange, or justified indications for excessive debt or imminent inability to pay on the part of the cus-tomer. Moreover, subject to prior warning with extension of a rea-sonable grace period, CEP shall be entitled to disclose the collateralisa-tion, liquidate the signed receivables and demand that the customer informs its own customers of the collateralisation arrangement. In no case is the customer authorised to assign the receivable; this applies also to factoring transactions, from which the customer is also prohibited due to the extension of authorisation to collect.

8. The customer is entitled to process the reserved goods or to mix and connect them with other goods. Processing, mixing and connecting (hereafter: processing) takes place on behalf of CEP, but at no obliga-tion on the part of CEP. The customer shall safeguard the new item on behalf of CEP and shall exercise therein the due care of a prudent businessman. The new item shall be classified reserved goods in the definition according to clause 1. In case of processing with other items not belonging to CEP, CEP shall be entitled to co-ownership of the new item in a proportionate rela-tionship of the value of the processed, mixed or connected (hereafter: processed) reserved goods relative to the value of the other pro-cessed goods at the time of their processing. Insofar as the customer acquires sole ownership of this new item, the customer will automati-cally assign to CEP the ownership and contingent rights in a propor-tionate relationship of the invoice value equivalent to their processing, relative to the value of the other processed goods at the time of their processing. The co-ownership rights of CEP shall be deemed reserved goods in the definition according to the provisions above. In case of resale of the new items, the customer hereby assigns its re-ceivables towards its customer from resale of the goods and all ancil-lary rights to CEP as collateral, without this arrangement requiring ex-plicit agreement in each case. However, this assignment shall apply only up to the amount equivalent to the value of the processed re-served goods as invoiced by the customer. The share of the receiva-ble assigned to CEP must be satisfied with priority status. Clause 7 (4) applies in regard to the authorisation to collect the requirements for any withdrawal of these rights.

9. Insofar as the system supplied by CEP is intended to become an essential component of a property, i.e. building, as defined in Section 94 (2) BGB (Section 946 BGB), CEP shall be entitled to completely or partially remove the system it delivers in the event that its justified claims to payment from the contractual relationship are not satisfied by the customer. In this regard, CEP or a company commissioned by CEP and its employees in each case are entitled to enter the custom-er’s premises and remove the system or system parts. In the same way, CEP is entitled to block the operating system in the event of un-satisfied claims to payment. Insofar as removal is not possible, the customer automatically assigns to the buyer as collateral – without requiring specific declaration – the claim to which it is entitled as remuneration for the connection and all ancillary rights in a proportionate relationship of the value of con-nected, reserved goods relative to the remaining connected goods, i.e. the connected property, at the time of the connection.

10. Insofar as the value of all realisable collateral to which CEP is entitled exceeds the value of as yet unsatisfied receivables by more than 10%, CEP shall be required – upon request by the customer or a third par-ty affected by the excess collateral – to release commensurate collat-eral at its own discretion. However, this shall only apply insofar as a significant valuation or liquidation risk does not exist.

11. Insofar as any reservation of title and/or collateral rights extended to CEP as set forth in sections 1 to 10 should be ineffective for legal reasons or their effectiveness or validity towards third parties be conditional upon the satisfaction of conditions that cannot be rea-sonably expected of CEP or the customer, CEP shall be entitled to in-sist on the provision of other collateral as conforms to standard bank-ing practice and to make delivery of the purchased item subject to the provision of this collateral. The customer undertakes to cooperate in all measures required for the provision of this collateral. The provi-sions as set forth in sections 1 to 10 will then apply equivalently.

XI. Warranty complaints, supply chains

1. Unless otherwise specified in the following, statutory provisions shall apply to the customer’s rights in case of defects (warranty claims).

2. The specifications by CEP as provided to the customer prior to its order or included in the contract in the same way as these General Terms of Delivery and Service shall apply as agreement on the prop-erties of goods and services.

3. Insofar as quality has not been agreed, i.e. a description of service was not included with the offer, CEP hereby undertakes to provide a per-formance according to generally accepted good engineering prac-tice. CEP shall not be liable for public announcements (e.g. advertising statements and designations) to third parties; this shall apply in partic-ular to statements made by the manufacturer in case of deliveries of goods. Liability for erroneous assembly instructions is excluded.

4. In case of deliveries, the customer is required to inspect the goods immediately and to report any defects in writing, by fax or electronic data transfer. Provisions as set forth in Sections 377, 378 HGB will ap-ply. In case of partial performance, notice of the defective item must have been submitted within two weeks after approval of the service by an-other trade, but by no later than two weeks after (part) acceptance. Timely dispatch of the notice of defects shall be sufficient to comply with the deadline in these cases. Insofar as the customer fails to provide notification of defects accord-ing to the provisions set forth above, CEP shall not be liable for de-fects. The onus of proof for compliance and timeliness of the notice of defects, as well as the existence and time of their identification, shall rest with the customer.

5. Insofar as the supplied item or service is defective, it shall be at the discretion of CEP to rectify the defect by subsequent performance or replacement delivery according to statutory provisions. This is without prejudice to the right of CEP to refuse a selected subsequent perfor-mance, provided the legal requirements are satisfied. Rectification of defects shall take place at the discretion of CEP on the premises of the customer or otherwise at a location in Germany as determined by CEP. Necessary expenses incurred for subsequent per-formance, in particular transport, travel, labour and material costs, shall be carried CEP. Insofar as the system, i.e. the delivered item, is not (no longer) at the registered address of the customer in Germany, and has instead been moved abroad, the customer will be required to reimburse CEP for the additional costs incurred in this regard, e.g. travel expenses.

6. It shall be at the discretion of the customer to reduce the purchase price or withdraw from the contract in case that subsequent perfor-mance has failed or is impossible, or if subsequent performance can-not reasonably be expected of the customer or CEP, or in the event that CEP earnestly and definitively refuses – rightly or wrongly – to provide subsequent performance, or in the event that the grace peri-od extended to CEP by the customer is passed unsuccessfully, i.e. has become dispensable according to statutory provisions. Notwithstand-ing, a right of withdrawal does not exist in regard to insignificant de-fects. The customer’s right to demand delivery of a faultless item, i.e. provision of a faultless service, shall lapse upon declaration of with-drawal, i.e. reduction. Liability to pay compensation for damages shall be limited by the terms set forth in section XII and otherwise excluded. This shall apply also to the reimbursement of expenses.

7. CEP will not be liable for defects in the item or any follow-on damage caused by improper storage or processing of the delivered item.

8. Any alterations or repairs conducted by the customer on the deliv-ered item will void the warranty.

9. The following applies insofar as the customer is entitled to rectify defects: a) The customer may only assert claims for the rectification of defects toward CEP; notification must be in writing. Notwithstanding, it is at the discretion of CEP to commission third parties with rectification of the defects, i.e. to consult such third parties in their rectification. b) The customer must also contact CEP without delay in case that the purchase item becomes inoperable due to a material defect. Clause 2 lit. a) applies accordingly. c) Replaced parts will become the property of CEP d) The customer shall be entitled to assert claims for defects in parts installed to rectify defects according to the terms set forth in the purchase contract, up and until the end of the limitation period for the purchased item.

10. The following regulations apply to warranty claims by the customer insofar as the newly manufactured goods supplied by CEP to the customer are resold to a different customer: Except in cases provided for under law, the statutory relief from the onus of proof in favour of the customer in regard to the time at which a defect exists (Sections 478 (3), 476 BGB) will not apply, even if more than six months have passed between the transfer of risk to the customer and the transfer of risk to the customer’s buyer. The rights of the customer to subsequent performance according to clause 5 apply with the following condition: the customer is entitled to demand that CEP provide the type of subsequent performance that it owes to its buyer with due consideration of the customer’s statutory and contractual rights of refusal. The discretionary rights afforded to CEP under clause 5 shall not apply in this regard. The customer is en-titled to assign its claim to subsequent performance to its buyer, but only on account of performance and/or as collateral, i.e. without prejudice to its continued liability toward the customer. Assignment in lieu of performance is void. This is without prejudice to the right of CEP to refuse subsequent performance upon satisfaction of the statu-tory conditions. The claim to reimbursement for expenses as applicable in relation to its buyer (Section 478 (2) BGB) shall be excluded insofar as CEP has agreed with its customer an equivalent compensation in the meaning of Section 478 (4) BGB.

XII. Liability

1. CEP shall be liable – irrespective of the legal grounds – only in case of intent or gross negligence on the part of its entities and assistants. The above exclusion of liability for simple negligence does not apply to the violation of essential contractual obligations, unless in cases of liability for material defects. Liability for essential contractual obligations will be restricted to the typical and foreseeable damages at the time of con-tractual conclusion.

2. CEP shall not be liable – irrespective of the legal grounds – for assem-blies, machines, soft and hardware or for system components provid-ed by the customer. This shall apply also and in particular if the cus-tomer has instructed CEP on how to provide the service, unless CEP performed the service as instructed without expressing any reserva-tions it may have. The customer carries the onus of proof in this re-gard.

3. Liability for the payment of compensation due to a guarantee accept-ed by CEP, as well as liability according to the Product Liability Act (ProdHG), are not affected by the provisions above. The same applies to damage due to a violation of life, limb or health.

4. CEP shall be liable for damage incurred by the customer or third parties due to mistakes or defects in the CEP product according to statutory provisions, but not in cases of
- merely pecuniary losses that do not represent material or personal damage (e.g. loss of profit, loss of business, downtime),
- claims in regard to damages that are the responsibility of the cus-tomer or a third party beyond CEP’s sphere of influence,
- risks that are not insurable. In total, liability is limited to the amount of 10 per cent of the net de-livery value.

5. Insofar as the damage is covered by an insurance policy (excluding fixed-amount insurance policies) for the claim in question, the liability of CEP shall be restricted only to any associated disadvantages in-curred by the company, e.g. an increase in insurance premium or in-terest losses up to the settlement of the claim by the insurance com-pany.

6. Liability for delayed delivery is provided for conclusively by Section VI.

7. This does not apply to personal liability of legal representatives, vicari-ous agents and employees of CEP for damages they cause by slight negligence.

XIII. Limitation period

1. The limitation period for claims of defects in regard to services pro-vided in regard to buildings and the delivery of items that are cus-tomarily used in buildings according to their intended purpose, as well as for that effectiveness of such items, shall be limited to five years from acceptance, i.e. service, i.e. transfer of risk according to section Ziff. IX. For services or deliveries in regard to machinery or electri-cal/electronic equipment, as well as for maintenance and/or servicing of such equipment, the period of limitation shall be one year. In case that inspection, i.e. delivery of service, did not occur, the limi-tation period shall begin at the end of the year in which the claim emerged. The limitation periods described above apply also to com-peting claims due to tortious acts.

2. The statutory limitation period shall apply additionally in the following cases:
- for warranty claims in which the buyer has maliciously refrained from disclosing the defect or has accepted a guarantee for certain properties,
- for rights of recourse by the customer in regard to supply chains (section XI.9),
- for claims to damage concerning injury to life, limb and health,
- fur other claims to damages due to intentional or grossly negligent breach of contract,
- for claims in regard to the Product Liability Act,
- for claims to compensation from the violation of other essential contractual locations.

3. All other claims and rights of the customer not mentioned above in clauses 1 and 2 – irrespective of the legal grounds – shall lapse after one year from delivery, i.e. acceptance. In cases in which delivery or acceptance did not take place, the limitation period shall begin at the end of the year in which the claim emerged. Shorter statutory limita-tion periods will take precedence.

XIV. Miscellaneous

1. There is no principle right to replacement of a delivery. The agree-ment to provide a replacement in individual cases must be in writing. All costs incurred for replacement, including transport, packaging and rebooking, shall be carried by the customer. CEP is entitled to charge handling expenses amounting to 10% of the net value of the replaced purchased item plus the statutory rate of value added tax. These costs are payable immediately and without deduction.

2. Transfer of the customer’s rights and obligations as set forth in con-tracts concluded with CEP requires written approval by CEP.

3. Upon conclusion of a project, CEP shall be entitled to use it as a reference project and to conduct inspections with interested parties after conclusion of the project, provided an appointment is arranged in good time.

XV. Place of fulfilment

The place of fulfilment for deliveries and payments is the registered address of CEP in Dresden.

XVI. Place of jurisdiction and applicable law

The place of jurisdiction – also for bills of exchange and cheques – is the competent court at the domicile of CEP in Dresden that is materially and locally responsible. CEP is also entitled to sue the customer at any other admissible place of jurisdiction. The same applies if the customer does not have a general place of jurisdiction in Germany, or the registered address or common place of residence is unknown at the time of litiga-tion.

XVII. Severability clause

The ineffectiveness of individual provisions of these General Terms of Delivery and Service, now or in the future, will not affect their effective-ness as a whole. The ineffective clause must be replaced with an effective clause that comes as close as possible to the economic purpose of the ineffective clause. Statutory provisions will replace the ineffective clause alternatively.

In case of dispute, the German version shall prevail.

 


CEP Anlagenautomatisierung GmbH

Löbtauer Str. 71
01159 Dresden

Tel.: +49 351 4821830
Fax: +49 351 4821855
E-Mail: info@cep-dresden.de
Internet: www.cep-dresden.de