§ 1 Validity
1.1 These General Terms and Conditions of Sale (hereinafter: GTC) shall apply to all deliveries of goods and services of CT-VIDEO GmbH (hereinafter: CTV), including all ancillary services, advice and information. These GTC shall apply exclusively and in the version current at the time of conclusion of the contract.
1.2 With the placement of the order by the buyer/client (hereinafter referred to as the Customer), these GTC shall be deemed to have been accepted and to form an integral part of the contract. Any conflicting or deviating terms and conditions of the Customer are hereby rejected. They shall only become part of the contract if CTV expressly agrees to them in writing in individual cases.
1.3 These GTC shall also apply if CTV carries out the delivery to the Customer without reservation or provides services for the Customer in the knowledge that the Customer’s terms and conditions conflict with or deviate from these GTC.
1.4 These GTC only apply to entrepreneurs (Section 14 BGB), legal entities under public law or a special fund under public law within the meaning of Section 310 (1) sentence 1 BGB.
1.5 These GTC shall also apply to all future contracts with the customer in the version valid at the time the contract is concluded.
1.6 All agreements made between CTV and the Customer, as well as additions and amendments to these agreements, must be made in writing. This also applies to any waiver of the written form requirement.
1.7 CTV field staff and commercial agents are not authorized to make agreements or commitments that deviate from these GTC. This requires legally effective individual agreements concluded by authorized representatives of CTV.
§ 2 Offers, conclusion of contract, offer documents, information and advice
2.1 Offers are always non-binding. A contract is only concluded when CTV issues a written order confirmation. The scope of CTV’s services is conclusively determined by CTV’s written order confirmation together with its written annexes. Offers are only binding in exceptional cases and in individual cases if they are submitted in writing and expressly designated as binding.
2.2 CTV shall only be bound by binding offers without an explicitly stated binding period until the expiry of two weeks after receipt of the offer by the Customer.
2.3 Samples and specimens are non-binding. Designs may be modified by CTV insofar as this is compatible with the customer’s specifications or the deviation is only minor.
2.4 All information on the suitability and possible applications of goods/services is provided to the best of CTV’s knowledge. However, they only represent empirical values which are not guaranteed; they do not justify any claims against CTV. The Customer shall not be released from the obligation to satisfy itself of the suitability of the goods/services for the intended use by carrying out its own tests.
2.5 The Customer agrees to the further use and reproduction by CTV of any drawings, plans, models, templates, samples, tools, means of production, dimensions, weights and similar performance data provided to CTV and – insofar as necessary for the order – also to their transfer to third parties. If the values specified by the customer change, the customer must inform CTV immediately.
§ 3 Place of fulfillment, transfer of risk, transport costs, packaging
3.1 All deliveries shall be made free carrier (FCA) place of manufacture, unless otherwise agreed in writing. The Incoterms© 2020 shall apply as agreed.
3.2 Shipment shall be at the risk of the Customer, even if CTV should exceptionally bear the transportation costs. The transfer of risk shall be determined in accordance with the Incoterms© clause referred to in clause 3.1. In the case of work services, the risk shall pass to the Customer upon acceptance.
3.3 Unless otherwise agreed in writing, all transportation, packaging, insurance, customs clearance costs, customs duties, etc. that exceed the scope of performance of an FCA delivery (Incoterms© 2020) shall be borne by the Buyer.
3.4 Shipment shall be made in the least expensive packaging required for the delivery.
3.5 CTV shall only take back packaging supplied within the scope of its statutory obligations; packaging shall not be taken back for deliveries abroad. The take-back does not include the return delivery and the costs incurred for this. If the Customer is not a private end consumer within the meaning of the German Packaging Ordinance, the disposal of the packaging shall be charged to the Customer at cost price. If the packaging is not returned, CTV shall not participate in or bear any disposal costs.
3.6 The Customer is obliged to inspect delivered goods/services immediately after delivery for obvious transport losses, transport defects or transport damage, to identify and document complaints in accordance with the carrier’s conditions in the presence of the driver and to notify CTV in writing on the day of receipt of the goods/services. Hidden transport losses, transport defects or transport damage must be reported in writing within three calendar days of delivery of the goods/services at the latest. If the customer fails to notify us in good time, the goods/services shall be deemed to have been approved with regard to any transport losses, transport defects or transport damage. The customer must always comply with the necessary formalities vis-à-vis the carrier. In all other respects, § 438 HGB applies.
3.7 The obligations under clause 3.6 shall also apply to the customer if the delivery/service is made to or with a third party at the customer’s request.
§ 4 Delivery
4.1 Unless otherwise agreed in writing, delivery or performance periods (hereinafter: performance period) are non-binding, are subject to proper and timely delivery to CTV and shall only commence after clarification of all execution details, in particular by the Customer, but at the earliest on the date of the order confirmation by CTV and payment of due advance and installment payments by the Customer.
4.2 Insofar as performance deadlines are exceptionally agreed as binding, the following shall apply: If the Customer is in default with the fulfillment of its contractual obligation, all performance periods shall be extended by the duration of the delay plus a reasonable restart period. Performance periods shall be extended in the event of circumstances for which CTV is not responsible and in the event of force majeure (e.g. unforeseeable operational, traffic or shipping disruptions, fire damage, floods, unforeseeable shortages of power, energy, raw materials or auxiliary materials, subsequent shortages of materials, import and export restrictions, strikes, lockouts, official decrees and similar unforeseeable events that subsequently make performance difficult or impossible for CTV or CTV’s subcontractors) by a reasonable period of time for the duration of the hindrance plus a reasonable restart period, but no longer than a reasonable restart period. a reasonable restart time, but by a maximum of three months in total. CTV shall notify the Customer immediately of the beginning and end of such hindrances.
CTV shall not be responsible for the aforementioned circumstances even if they occur during a delay. If the obstacle to delivery lasts longer than three months, both contracting parties are entitled to withdraw from the contract. In the event of non-compliance with the performance deadlines specified by CTV as binding, the Customer shall be entitled to set CTV a reasonable grace period of – as a rule – at least one month in writing. If the delivery is not made by the end of the grace period, the customer shall be entitled to withdraw from the contract. Delivery shall be deemed to have been made on time as soon as the goods/services have left the factory or warehouse of CTV or the subcontractor/sub-supplier before the deadline expires. CTV shall only compensate for damages caused by delay in accordance with the provisions in clause 8.
4.3 CTV’s obligation to deliver shall lapse without compensation if it is permanently prevented from fulfilling its obligation by government measures of the country of origin of the goods or supranational organizations, acts of war or natural disasters.
4.4 In the event of a subsequent amendment to the contract which could affect an agreed performance period, the performance period shall be extended accordingly, unless otherwise agreed in writing.
4.5 If the customer does not fulfill his obligation to cooperate (e.g. in technical matters) in good time, the performance period shall also be extended accordingly.
4.6 CTV is entitled to provide partial services and partial deliveries and to invoice them separately at any time, taking due account of the interests of the Customer.
4.7 If safety precautions are required for installation work to be carried out by CTV at the Customer’s premises, the Customer must ensure that they are observed and bear the costs. If inspections are to be carried out, the Customer must arrange this and bear the costs.
4.8 If the Customer does not collect the goods within the agreed performance period, but at the latest within one week of receipt of any notification of availability/invoice, or if it refuses to accept the goods/service, the Customer shall be in default of acceptance. If the Customer is in default of acceptance, CTV shall be entitled to set the Customer a grace period for collection or acceptance of the goods/services. A grace period of one week shall be deemed reasonable. After the fruitless expiry of the grace period, CTV shall be entitled – without prejudice to further claims – to withdraw from the contract and/or demand compensation. In the latter case, CTV is entitled to demand 5% of the agreed net purchase price as liquidated damages without proof of specific damage, unless the Customer proves that CTV has suffered no damage or less damage. CTV is entitled to demand compensation for the actual loss incurred instead of the liquidated damages. In the event of default of acceptance, the risk of accidental loss or accidental deterioration of the goods shall pass to the Customer.
§ 5 Price, payment and default
5.1 The purchase price is the amount stated in CTV’s order confirmation.
5.2 Quotation prices are based on the current USD/EUR, GBP/EUR and CHF/EUR exchange rates on the day the quotation is issued. CTV reserves the right to make corresponding price adjustments due to any changes in exchange rates up to the time of invoicing.
5.3 Unless otherwise agreed in writing, prices are EX Works (EXW) place of manufacture according to Incoterms© 2020 without loading and without packaging. CTV is entitled, but not obliged, to take out transport insurance at the Customer’s expense.
5.4 The statutory value added tax is not included in the price. It shall be due at the respective statutory rate and shown separately on the invoice. In the case of services within the European Union, the Customer must provide its VAT identification number to be used by CTV for this contract together with the corresponding address in good time before the contractually agreed performance deadline in order to prove its exemption from VAT. In the event of failure to provide timely and complete notification, CTV reserves the right to charge the applicable VAT.
In the case of services outside the European Union, CTV is entitled to charge the statutory VAT if the customer does not send proof of export to CTV within one month of the respective shipment.
5.5 Unless otherwise agreed in writing, the invoiced purchase price shall be due immediately upon delivery without deduction. The timeliness of payment shall be determined by the receipt of the amount for unconditional disposal by CTV.
5.6 If staggered deliveries have been agreed or partial deliveries are made, the purchase price shall be due with each partial delivery. CTV is also entitled to demand reasonable payments on account.
5.7 In the event of late payment, the Customer undertakes to pay interest at a rate of 8% above the prime rate of the European Central Bank. CTV is entitled to exercise a right of retention to which it is entitled even if the Customer is in default of payment in respect of previous deliveries.
5.8 If the Customer is in default of payment or if justified doubts arise as to its solvency, CTV shall be entitled to declare all claims against the Customer due immediately and/or to demand the provision of security even before delivery/service, to withhold outstanding deliveries/services from all contracts with the Customer in whole or in part or to withdraw from existing contracts in whole or in part.
5.9 The customer shall only be entitled to rights of set-off, retention and refusal of performance if his counterclaims are legally established, undisputed or recognized. In addition, the customer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
5.10 CTV reserves the right to use payments to settle the oldest claim due plus the default interest and costs accrued thereon, in the following order: costs, interest, claim.
§ 6 Traceability of goods
If the goods delivered by CTV are passed on to third parties, the Buyer is obliged to keep a record of this so that the Buyer can provide information about the further whereabouts of the goods at any time. If, for example, in the event of a recall campaign initiated by CTV, the Buyer is unable to provide information on the whereabouts of the delivered goods, liability for any resulting damage to persons or property shall pass to the Buyer.
§ 7 Defects
7.1 The quality and condition of the delivered goods shall be determined by the specification and description of the subject matter of the contract provided by CTV when the offer is made or the order is confirmed. The contracting parties agree that the goods are free of defects if they correspond to the quality stated in the specification at the time of the transfer of risk.
7.2 Claims for defects shall become time-barred one year after the transfer of risk in accordance with Section 3.
7.3 The customer is obliged to accept work and installation services immediately, at the latest within two days after notification of completion or after delivery. Delivery shall be deemed to be a request for acceptance. An acceptance report shall be drawn up at CTV’s request.
7.4 Obvious defects, incorrect deliveries or deviations in quantity must be reported by the Customer to CTV in writing without delay – without prejudice to the provision in clause 7 or Section 640 (2) BGB – at the latest within seven calendar days of delivery of the goods or acceptance of the work services. Once the Customer has started further processing, there is no further right of complaint. Hidden defects must be reported immediately, at the latest within seven calendar days of their discovery. If the Customer fails to notify CTV in good time, the goods/services shall be deemed to have been approved and accepted without defects. For customers who are merchants within the meaning of the German Commercial Code (HGB), § 377 HGB shall apply in addition.
7.5 Defects must be reported in writing.
7.6 After receipt of the notice of defects, the goods must be sent to CTV for inspection at its request, insofar as this is possible without unreasonable expense. Any other procedure must be agreed in writing with CTV. If the notification of defects is unfounded, the Customer shall bear the costs incurred by CTV as a result of the inspection.
7.7 In the event of a justified complaint, the Customer shall be entitled, at CTV’s discretion, to two free rectifications or to a replacement delivery. Shortfalls shall be delivered subsequently. If the two attempts at rectification or replacement delivery are not successful within a reasonable period, the Customer shall be entitled to the statutory rights.
7.8 CTV may refuse to remedy defects or make a replacement delivery as long as the Customer fails to meet its due obligations to CTV. The assertion of the defense of defects and corresponding rights of the Customer to refuse performance/retention due to defects shall remain unaffected by this.
7.9 The warranty is excluded if the goods/services are not used properly by the Customer or are connected to or installed in unsuitable parts (e.g. parts not supplied by CTV or not in accordance with the operating instructions). Furthermore, the warranty shall be excluded in the event of natural wear and tear, chemical, electrochemical or electrical influences, harmful environmental conditions of which CTV was unaware, as well as in the event of modifications to the goods made without the consent of CTV and in the event of defects caused by improper use, incorrect operation and negligent handling, in particular if the Customer does not follow the operating and maintenance instructions.
7.10 The above limitations of warranty do not apply to damages resulting from injury to life, limb or health caused by an intentional or negligent breach of duty by CTV or one of its legal representatives or vicarious agents. The above limitations of the warranty shall also not apply to other damage caused by an intentional or grossly negligent breach of duty by CTV or one of its legal representatives or vicarious agents or if the other damage was caused by the absence of a guaranteed quality or due to fraudulent concealment of a defect. For the damages described in this paragraph and the corresponding claims, the time limitation of the claims to one year in accordance with Section 7.2 above shall not apply.
7.11 The assignment or pledging of warranty claims to third parties without transfer of ownership of the goods is excluded. The Customer undertakes to inform CTV immediately and in full if warranty claims are asserted against it by its customer.
7.12 CTV’s liability for consequential damages is excluded, unless these are based on an intentional or grossly negligent breach of duty by CTV. In this respect, the Customer undertakes to indemnify CTV against any claims by its customers resulting from consequential damage caused by a defect, unless there is a deliberate or grossly negligent breach of duty by CTV.
§ 8 Liability
8.1 Any claims for damages by the Customer arising directly or indirectly in connection with the order, delivery or use of goods/services of CTV or the use of work services, irrespective of the legal grounds, are excluded. This exclusion of liability shall not apply in the event of a breach of a material contractual obligation (cardinal obligation). Cardinal obligations are obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely, i.e. rights and obligations which the contract must grant according to its content and purpose.
8.2 CTV’s liability is in any case limited to compensation for foreseeable damage typical of the contract. (Damage) compensation claims of the Customer against CTV, which are based on contractual penalty claims of the Customer’s customers, are in no case foreseeable for CTV and typical for the contract in the above sense. CTV is entitled to provide evidence of lower damages.
8.3 If the loss is covered by an insurance policy taken out by the Customer for the loss in question, CTV shall only be liable for any associated disadvantages suffered by the Customer, e.g. higher insurance premiums or interest disadvantages, until the claim is settled by the insurance company.
8.4 The above exclusions and limitations of liability do not apply to damages resulting from injury to life, limb or health caused by an intentional or negligent breach of duty by CTV or one of its legal representatives or vicarious agents. The above exclusions and limitations of liability shall also not apply to other damage caused by an intentional or grossly negligent breach of duty by CTV or one of its legal representatives or vicarious agents or if the other damage was caused by the absence of a guaranteed quality or due to fraudulent concealment of a defect.
§ 9 Strict liability/product liability
If claims are asserted against CTV by third parties on the basis of strict liability, in particular on the basis of product liability, the Customer shall assume liability to the extent that it would also be directly liable. CTV’s liability for measures taken by the Customer to avert damage, e.g. product recalls, is excluded to the extent permitted by law.
§ 10 Reservation of title, reservation of copyright, confidentiality
10.1 CTV retains title to all its goods/services (goods subject to retention of title) until all claims arising from the business relationship with the Customer have been settled. This also applies to items that are installed or handed over as part of work services. The retention of title vis-à-vis the Customer shall remain in force even if the claims are included by CTV in a current account (current account) and the balance has been drawn and recognized (current account reservation). The transfer of risk in accordance with clause 3 remains unaffected by this.
10.2 The customer shall treat the goods subject to retention of title with care. It is obliged to insure the goods subject to retention of title at its own expense against fire, water damage and theft at the gross invoice value and hereby assigns to CTV its claims for compensation under these insurance contracts in the amount of the gross invoice value. The assignment is hereby accepted.
10.3 The Customer shall be entitled to resell the delivered goods exclusively in the ordinary course of business as long as it fulfills its contractual obligations to CTV and the resale gives rise to a claim for payment at least in the amount of the purchase costs. In the event of resale of the goods subject to retention of title by the Customer, the Customer shall only deliver the goods to its customers subject to the effectively agreed retention of title until full payment has been made (forwarded retention of title), whereby the agreed current account reservation pursuant to clause 10.1 shall not apply to the forwarded retention of title. The Customer assigns in advance to CTV all its claims against its customers or third parties arising from the resale of the goods subject to retention of title, including any claims to which it may be entitled in the future, in accordance with the gross invoice value of the deliveries or CTV’s co-ownership share. CTV hereby accepts the assignment. If CTV’s goods/services are processed, combined, mixed and/or blended with third-party goods, the assignment of claims shall only apply in the ratio of the gross invoice value of the goods subject to retention of title to the value of the third-party goods also sold. The Customer shall remain authorized to collect the claims even after the assignment. This shall not affect CTV’s right to collect the receivables itself. However, CTV is obliged not to collect the claim as long as the Customer duly fulfills its payment and other obligations. However, if the Customer defaults on payment, CTV shall be entitled to notify the assignment of the claim or the retention of title to the Customer’s customers and to collect the claims itself. The Customer must transfer the proceeds from the resale of the goods subject to retention of title to CTV immediately, insofar as the claims are or become due.
In the event of suspension of payments, an application for insolvency of the Customer’s assets or non-fulfilment of its obligations to CTV, the authorizations to resell the goods subject to retention of title and to collect the claims against the Customer’s purchasers shall automatically expire and pass to CTV. The Customer is obliged to disclose the assigned claims and their debtors to CTV on request, to provide CTV with all information necessary for collection and to hand over the relevant documents, in particular business records.
10.4 Any processing, combining, mixing and/or blending of the goods subject to retention of title by the Customer shall always be carried out for CTV, without CTV being under any obligation as a result. In the event of processing, combining, mixing and/or blending together with items not belonging to CTV, CTV shall become co-owner of the new item in the ratio of the value of the goods subject to retention of title to the other items at the time of processing, combining, mixing and/or blending. If the Customer acquires sole ownership of the new item, it is agreed that the Customer shall transfer co-ownership to CTV in proportion to the gross invoice value. The Customer shall hold the resulting sole or co-ownership for CTV. The same shall apply to the goods created by processing, combining, mixing and/or blending as to the goods delivered under retention of title.
10.5 If the Customer acts in breach of contract, in particular in the event of default in payment, CTV shall be entitled to take back goods subject to retention of title that have not yet been paid for. The Customer has no right of possession in this respect. After taking back the goods, CTV is authorized to sell them. The proceeds of the sale shall be set off against the Customer’s liabilities less the costs of sale. The Customer shall be entitled to prove that the realization has caused unreasonably high costs; the corresponding difference shall then not be borne by the Customer.
10.6 The Customer is not permitted to pledge or assign the goods subject to retention of title as security. The goods delivered by CTV must be expressly excluded from any transfer by way of security of entire warehouses. In the event of foreclosure or seizure, the Customer shall draw attention to the existing retention of title and notify CTV immediately in writing so that the necessary countermeasures can be taken. The Customer shall be liable for the judicial and extrajudicial costs incurred by CTV as a result, if no compensation can otherwise be obtained.
10.7 CTV is obliged to release any securities granted to it at the request of the Customer if the realizable value of the securities exceeds the claims to be secured by more than 20%; CTV is responsible for selecting the securities to be released.
10.8 If the goods subject to retention of title are delivered to a location outside the Federal Republic of Germany or taken to such a location by the Customer, the following shall take precedence over clauses 10.1 to 10.7: The Customer shall ensure that CTV’s retention of title is effectively protected in the country in which the goods are located or to which they are to be transferred. If certain actions are necessary for this (e.g. special marking or local registration), the Customer shall undertake these in favor of CTV at its own expense. If the cooperation of CTV is necessary, the customer shall inform CTV of this without delay. In addition, the customer shall inform CTV of all material circumstances that are of significance in the context of the most extensive possible protection of CTV’s property. In particular, the Customer shall provide all documents and information necessary to enforce the rights arising from the property. The provisions of this clause 10.8 shall apply accordingly if, under the legal system of the place where the goods are located, a reservation of title cannot be effectively agreed for the creation of a legal position for CTV that effectively protects the interests and claims of CTV in an equally effective or otherwise suitable manner, insofar as this is legally possible.
10. 9 CTV reserves its ownership and all rights of use and exploitation under copyright law to drawings, plans, models, templates, samples, tools, means of production and similar items as well as to confidential information/ideas provided to the Customer or paid for by CTV. These items and information/ideas may not be made available or otherwise made accessible to third parties without prior written consent. The reproduction of such objects and information/ideas is only permitted within the framework of the requirements of the contractual relationship and in compliance with copyright provisions. Third parties who come into contact with the objects and information/ideas as intended must be obligated accordingly by the customer.
10.10 The Customer is obliged to treat all (non-public) technical, economic and personal processes and circumstances of CTV of which it becomes aware in connection with contractual relationships with CTV or its offers, ancillary services, advice and information as business or trade secrets at all times – even in cases of doubt – to maintain confidentiality about them and to ensure that third parties (including family members and employees not involved in the matter) do not gain unauthorized knowledge of them. The duty of confidentiality shall continue to apply even after termination of the contractual relationship. If the Customer culpably breaches the confidentiality obligation, it shall be obliged to pay CTV a contractual penalty of 5% of the net order value for each individual case of breach. CTV reserves the right to assert further claims for damages.
§ 11 Indemnification in the event of infringement of third-party property rights
The Customer warrants by way of independent guarantee that in the event that CTV produces on the basis of designs and specifications or with goods/materials of the Customer, the Customer is the unrestricted holder of the necessary copyrights and industrial property rights. If copyrights or industrial property rights are nevertheless asserted against CTV by a third party in this respect, the Customer shall indemnify CTV against all costs and claims in this regard.
§ 12 Export control clause
12.1 The fulfillment of the contract with regard to those delivery parts covered by state export regulations is subject to the proviso that there are no obstacles due to German, US or other applicable national, EU or international regulations of foreign trade law as well as no embargoes or other sanctions. When exporting or transferring the goods delivered by CTV, the customer must comply with the applicable regulations and obtain any necessary permits. The Customer acknowledges that it is its sole responsibility to comply with these laws and regulations.
12.2 The customer undertakes to provide all information and documents required for an export or shipment. Upon request, the Customer shall provide CTV immediately with all information on the final recipient, final destination and intended use of the goods to be delivered by CTV as well as any export control restrictions in this regard. delays due to export inspections or approval procedures shall suspend deadlines or delivery times.
12.3 CTV is entitled to terminate the contract, in whole or in part, without notice if termination by CTV is necessary to comply with national or international legal provisions.
12.4 In the event of termination in accordance with clause 12.3 above, the assertion of a claim for damages or the assertion of other rights by the customer due to the termination is excluded.
12.5 In the event of a breach of export control obligations by the Customer, the Customer shall immediately indemnify CTV in full against all claims asserted by the authorities and/or other third parties against CTV and compensate CTV for all damages asserted by the authorities and/or third parties against CTV. This shall not apply if the Customer is not responsible for the infringements. This does not imply a reversal of the burden of proof.
12.6 If permits are not granted or other delivery restrictions exist, the corresponding offer of CTV shall become invalid and a contract relating thereto shall be deemed not to have been concluded with regard to these goods. Any claim for damages in connection with the refusal or delay of licenses or other export restrictions is excluded, unless it is based on intent or gross negligence on the part of CTV.
§ 13 Choice of law, place of jurisdiction, general provisions
13.1 The contractual relationship is subject to the law of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
13.2 The place of performance for all obligations arising from this contractual relationship shall be the registered office of CTV. The place of jurisdiction for all disputes arising from this contractual relationship shall be the court responsible for the registered office of CTV and, at CTV’s discretion, also that of the Customer.
13.3 Personal data shall be stored by CTV in compliance with the statutory provisions.
13.4 Should individual provisions of these GTC or the contract be or become invalid in whole or in part, the remaining provisions shall remain unaffected.
© February 2020 CT-VIDEO GmbH