General terms of payment and delivery
( Version April 2020)
I. General conditions:
1. The following terms and conditions shall apply exclusively to the legal relationship between CAMA SYSTEM GmbH (hereinafter referred to as "CAMA") and the purchaser for all deliveries and/or services provided by CAMA. General terms and conditions of the purchaser shall only apply if CAMA has expressly agreed to them in writing. Mutually agreed written declarations shall be decisive for the scope of the services/deliveries. These general terms of delivery also apply to all future legal relationships between CAMA and the purchaser.
2. CAMA reserves all property rights and all copyright exploitation rights to cost estimates, models, drawings and other documents (hereinafter referred to as "Documents") without restriction. The documents may only be made available to third parties with the prior consent of CAMA and must be returned immediately on request if the order is not placed with CAMA. This regulation applies accordingly to documents of the purchaser; these may, however, be made accessible to third parties to whom CAMA has permissibly transferred deliveries.
3. The term "claims for damages" in these general terms and conditions of delivery also includes claims for reimbursement of futile expenditure.
II. Delivery quality and quantity:
1. partial deliveries are permitted, as far as they are reasonable for the purchaser.
2. if the delivery item is a customer-specific special production, CAMA is entitled to make excess or short deliveries of up to 10% of the ordered quantity, depending on the production process.
III. Prices and terms of payment:
1. all prices are ex works, excluding packaging, plus the applicable statutory value added tax. The prices refer to the price unit indicated.
2. packaging, loading, freight and insurance costs as well as assembly costs and costs of commissioning will be invoiced additionally. The costs of installation or assembly include in addition to the agreed remuneration, all necessary incidental expenses such as travel and transport costs and allowances. CAMA reserves the right to make surcharges for the opening of packaging units. Packaging and freight costs will be charged at cost price. If the minimum order value of 75.00 EUR net per order is not reached, CAMA will not grant any discounts or special prices. A processing fee of 10.00 EUR is charged.
3. payments are to be made free CAMA's paying agent.
4. For customers with whom CAMA does not yet have a supply relationship or for whom payment has already been delayed in the past, delivery will only be made against prepayment until a positive response from our credit insurer is received.
5. CAMA is bound to the prices agreed for an order for four months after the conclusion of the contract. If longer periods have been agreed for the provision of the delivery or service, CAMA is entitled to make a proportional surcharge for the cost increase that has occurred in the event of an increase in material or wage costs on the basis of the original price calculation.
6. if no other agreements have been made, the payment for deliveries or other services is payable with a 2% discount within eight days and without deduction within 30 days of the invoice date. Calculated shipping and packaging costs are always net and do not entitle the customer to a discount. The unconditional crediting of the CAMA bank account is decisive for the timeliness of payment. Invoices issued by CAMA will be sent to the purchaser by post or e-mail.
7. if the payment deadline is exceeded, the purchaser shall pay interest on arrears at a rate of 8 percentage points above the respective base rate, provided that he/she is an entrepreneur who is acting in the exercise of his/her commercial or self-employed professional activity when concluding the contract. This shall not apply if the customer proves that he is not responsible for the delay. If the purchaser defaults on a payment, all claims shall become due immediately, unless the purchaser proves that he is not responsible for the delay.
8. The customer may only set off against such claims that are undisputed or have been legally established.
IV. Simple and extended retention of title
1. The items of the deliveries (reserved goods) shall remain the property of CAMA until all claims against the purchaser arising from the business relationship have been fulfilled. Insofar as the value of all security rights to which CAMA is entitled, the amount of all secured claims by more than 20%, CAMA shall, at the request of the purchaser, release a corresponding part of the security interests; the supplier shall be entitled to choose between different security interests when releasing.
2. if the purchaser resells goods subject to retention of title, the purchaser hereby assigns his future claims from the resale against his customer with all ancillary rights - including any balance claims - to CAMA by way of security, without the need for further special declarations. If the goods subject to retention of title are resold together with other items without an individual price having been agreed for the goods subject to retention of title, the purchaser shall assign to CAMA that part of the total price claim that corresponds to the price of the goods subject to retention of title invoiced by CAMA.
3. The purchaser is permitted to process the goods subject to retention of title or to mix or combine them with other items. The processing is carried out for CAMA. The purchaser shall store the resulting new item for CAMA with the care of a prudent businessman. The new item shall be deemed to be reserved goods.
CAMA and the purchaser hereby agree that if the goods are combined or mixed with other items that do not belong to CAMA, CAMA shall in all cases be entitled to co-ownership of the new item in the amount of the share resulting from the ratio of the value of the combined or mixed reserved goods to the value of the other goods at the time of combination or mixing. The new item shall be deemed to be the goods subject to retention of title.
The provision on the assignment of claims according to No. 3 shall also apply to the new item. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined or mixed reserved goods invoiced by CAMA.
If the purchaser combines the goods subject to retention of title with real estate or movable property, he/she shall also, without the need for special declarations, assign to CAMA, by way of security, his/her claim to which he/she is entitled as remuneration for the combination, together with all ancillary rights, in the amount of the ratio of the value of the combined goods subject to retention of title to the other combined goods at the time of combination.
4. until revocation, the purchaser shall be entitled to collect assigned claims from the resale. In the event of good cause, in particular default of payment, suspension of payments, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency on the part of the purchaser, CAMA shall be entitled to revoke the purchaser's authority to collect. In addition, CAMA may, after prior warning and subject to a reasonable period of notice, disclose the assignment of security, realize the assigned claims and demand disclosure of the demand assignment by the purchaser to the customer as security.
5. during the existence of the reservation of title, the customer is prohibited from pledging or assigning the goods by way of security and resale is only permitted to resellers in the normal course of business and only on condition that the reseller receives payment from his customer and makes the reservation that the property is only transferred to the customer when the customer has fulfilled his payment obligations.
6. in the event of seizure, confiscation or other dispositions or interventions by third parties, the customer must inform CAMA immediately. If a justified interest is substantiated, the purchaser must immediately provide CAMA with the information required to assert its rights against the customer and hand over the necessary documents.
7. In the event of breaches of duty by the purchaser, in particular default of payment, CAMA shall be entitled to withdraw from the contract, in addition to taking back the goods, after the unsuccessful expiry of a reasonable deadline set for the purchaser; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The purchaser shall be obliged to surrender the goods. The taking back or assertion of the retention of title or the seizure of the reserved goods by CAMA shall not constitute withdrawal from the contract, unless CAMA has expressly declared this.
V. Time limits for deliveries; delay
1. The observance of delivery periods shall be subject to the timely receipt of all documents to be supplied by the Purchaser, necessary permits and releases, in particular of plans, and the observance of the agreed terms of payment and other obligations by the Purchaser. If these prerequisites are not fulfilled in time, the deadlines shall be extended accordingly; this shall not apply if CAMA is responsible for the delay.
2. if non-observance of the deadlines is only due to force majeure, e.g. mobilization, war, riot or similar events, e.g. strike, lockout, the deadlines shall be extended accordingly. The same applies in the event that CAMA is not supplied on time or properly.
3. If CAMA is in default, the purchaser can - provided he can credibly demonstrate that he has suffered a loss as a result - demand compensation for each completed week of the delay of 0.5 percent each, but in total no more than 5 percent of the price of that part of the deliveries, which could not be put into useful operation due to the delay.
4. both claims for damages by the purchaser due to delay in delivery and claims for damages in lieu of performance that exceed the limits specified in No. 3 shall be excluded in all cases of delayed delivery, even after expiry of a deadline set by CAMA for delivery. This shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health. The purchaser may only withdraw from the contract within the framework of the statutory provisions if CAMA is responsible for the delay in delivery. A change in the burden of proof to the detriment of the purchaser is not associated with the above provisions.
5. If dispatch or delivery is delayed at the request of the purchaser by more than one month after notification of readiness for dispatch, the purchaser may be charged storage fees of 0.5 per cent of the price of the items of the Supplies for each additional month or part thereof, but in no case more than a total of 5 per cent. The contracting parties are at liberty to prove higher or lower storage costs.
VI. Transfer of Risk
1. the risk shall pass to the customer as follows, even in the case of carriage paid delivery
For deliveries without installation or assembly, when they are brought to dispatch or collected. At the request and expense of the purchaser, CAMA will insure deliveries against the usual transport risks;
in the case of Supplies involving assembly or erection, on the day of acceptance in the own works or, if agreed, after a fault-free trial run.
2. if dispatch, delivery, the start or feed through of assembly or erection, the taking over in the own works or the trial run is delayed for reasons for which the purchaser is responsible or if the purchaser is in default of acceptance for other reasons, the risk shall pass to the purchaser when the default occurs.
VII. Illustrations and descriptions
1. illustrations and descriptions as well as technical data are only shown in simplified form in the catalogues, on the order lists or other order documents. Changes of any kind, especially those resulting from technical progress, modified design or similar, are reserved, provided they are reasonable for the customer.
2. data and information on the use of our goods are non-binding and do not release the customer from the need to carry out his own checks and tests. The customer is responsible for the observance of legal and official regulations when using our goods.
The customer may not refuse to accept deliveries due to minor defects.
IX. Defects of quality
The supplier is liable for material defects as follows:
1. all those parts or services which exhibit a material defect shall, at CAMA's discretion, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.
2. claims for subsequent performance shall become statute-barred 12 months after the start of the statutory limitation period; the same shall apply to withdrawal and reduction. This period shall not apply insofar as the law according to §§ 438 para. 1 no. 2 (buildings and items for buildings), 479 para. 1 (right of recourse) and 634 a para. 1 no. 2 (building defects) of the German Civil Code (BGB) prescribes longer periods in the case of intent, fraudulent concealment of the defect and failure to comply with a guarantee of quality. The statutory provisions on suspension of the statute of limitations and restart of the periods remain unaffected.
3. notices of defects by the purchaser must be made immediately in writing.
4. in the case of notices of defects, payments by the purchaser may be withheld to an extent that is in reasonable proportion to the material defects that occur. The Purchaser may only withhold payments if a notice of defect is asserted, the justification of which is beyond doubt. The Purchaser shall not have a right of retention if its claims for defects have become statute-barred. If the notification of defects is unjustified, CAMA shall be entitled to demand compensation from the purchaser for the expenses incurred.
5. CAMA shall be given the opportunity for subsequent performance within a reasonable period of time.
6. if the supplementary performance fails, the purchaser can demand compensation from CAMA - without prejudice to any claims for damages pursuant to Art. XI - withdraw from the contract or reduce the remuneration.
7. there shall be no claims based on defects in cases of insignificant deviation from the agreed quality, insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable equipment, defective construction work, unsuitable building ground or which arise due to particular external influences which are not provided for under the contract, or non-reproducible software errors. If the Purchaser or third parties carry out improper modifications or repair work, no claims for defects shall exist for these and the consequences thereof.
8. information in catalogues, descriptions, illustrations and drawings as well as dimensional, weight and performance data only characterise the quality of CAMA products and do not constitute a guarantee.
9. If the purchaser or third parties carry out improper modifications or repair work, there are no claims for defects for these and the resulting consequences. If claims for defects are asserted, the purchaser must immediately send a sample to CAMA for inspection.
10. Claims by the purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded if the expenses increase because the object of the delivery has subsequently been taken to a location other than the purchaser's branch office, unless the transfer corresponds to its intended use.
11. the purchaser's right of recourse against CAMA in accordance with § 478 BGB (recourse of the entrepreneur) shall only exist insofar as the purchaser has not made any agreements with his customer that go beyond the statutory claims for defects. Furthermore, No. 10 shall apply mutatis mutandis to the scope of the purchaser's right of recourse against CAMA pursuant to § 478 para. 2 BGB.
12. claims for damages on the part of the ordering party due to a material defect are excluded. This shall not apply in the event of fraudulent concealment of the defect, failure to comply with a guarantee of quality, injury to life, body, health or freedom, or in the event of an intentional or grossly negligent breach of duty by CAMA. A change in the burden of proof to the disadvantage of the purchaser is not associated with the above provisions. Further or other than in this Art. IX shall be excluded.
X. Industrial property rights and copyrights; defects of title
1. unless otherwise agreed, CAMA is obliged to provide the delivery free of industrial property rights and copyrights of third parties (hereinafter referred to as "property rights") only in the country of the place of delivery. If a third party asserts justified claims against the purchaser due to the infringement of property rights by the delivery made by CAMA and used in accordance with the contract, CAMA shall be liable to the purchaser within the period of time stipulated in Art. IX No. 2 as follows:
CAMA shall, at its own discretion and at its own expense, either obtain a right of use for the deliveries concerned, modify them so that the property right is not infringed or replace them. If this is not possible for CAMA under reasonable conditions, the purchaser shall be entitled to the statutory rights of withdrawal or reduction.
CAMA's obligation to pay damages shall be governed by Art. XII.
The above obligations of CAMA shall only apply if the purchaser immediately notifies CAMA in writing of the claims asserted by the third party, does not acknowledge an infringement and leaves all defensive measures and settlement negotiations to CAMA. If the purchaser ceases to use the delivery in order to reduce the damage or for other important reasons, he shall be obliged to point out to the third party that the cessation of use does not constitute an acknowledgement of an infringement of property rights.
2. claims of the Purchaser shall be excluded if he is responsible for the infringement of the Property Rights. Claims by the purchaser shall also be excluded if the infringement of property rights is caused by special specifications of the purchaser, by an application not foreseeable by CAMA or by the fact that the delivery is modified by the purchaser or used together with products not supplied by CAMA.
3. In the event of property right infringements, the provisions of Art. 1a shall otherwise apply to the claims of the purchaser regulated in No. 1a. IX No. 4, 5 and 9 shall apply accordingly.
4. In the event of other defects of title, the provisions of Art. IX shall apply accordingly.
5. any further-reaching or other provisions other than those in this Art. XI against CAMA and its vicarious agents due to a defect of title are excluded.
XI. Impossibility; contract adjustment
1. if delivery is impossible, the purchaser is entitled to claim damages, unless CAMA is not responsible for the impossibility. However, the customer's claim for damages shall be limited to 10% of the value of that part of the delivery which cannot be put into useful operation due to the impossibility. This limitation shall not apply if liability is mandatory in cases of intent, gross negligence or injury to life, body or health; this shall not imply a change in the burden of proof to the detriment of the purchaser. The right of the purchaser to withdraw from the contract remains unaffected.
2. if unforeseeable events within the meaning of Art. IV No. 2 substantially change the economic importance or the contents of the delivery or have a substantial effect on the operation of CAMA, the contract shall be adapted accordingly in good faith. If this is not economically justifiable, CAMA has the right to withdraw from the contract. If CAMA wishes to exercise this right of withdrawal, it must inform the purchaser immediately after recognizing the consequences of the event, even if an extension of the delivery period was initially agreed with the purchaser.
XII. Other claims for damages
1. claims for damages by the customer, regardless of the legal basis, in particular due to breach of duties arising from the contractual obligation and from unlawful acts, are excluded.
2. this shall not apply in cases of mandatory liability, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, body or health, or breach of material contractual obligations. However, the claim for damages for the violation of essential contractual obligations is limited to the contract-typical, foreseeable damage, as far as there is no intent or gross negligence or liability for injury to life, body or health. A change in the burden of proof to the disadvantage of the purchaser is not associated with the above provisions.
3. as far as the customer is entitled to claim damages according to this Art. XI, such claims shall be time-barred upon expiration of the period set forth in Art. IX No. 2. The same shall apply to claims of the Purchaser in connection with measures to prevent damage (e.g. recall action). In the case of claims for damages under the German Product Liability Act, the statutory limitation provisions shall apply.
XIII. Intra-Community deliveries
The customer assures the correctness of the details of his name, his address and his VAT ID number, which he shall provide immediately without request. He undertakes to notify CAMA and the relevant tax authorities of any change in his name, address and VAT ID number. In the event that a delivery is subsequently treated as taxable due to the incompleteness of the information provided by the purchaser, the purchaser must reimburse CAMA for the VAT payable to the tax office and any other expenses resulting from this.
XIV. Place of performance, place of jurisdiction and applicable law
1. place of performance is Nellmersbach. If the purchaser is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the local court of Waiblingen or the regional court of Stuttgart. CAMA is, however, also entitled to bring an action at the purchaser's place of business.
2 German law shall apply exclusively to the legal relationship. The application of UN purchase law (CISG) is excluded.
XV. Binding force of the contract
The contract remains binding in its remaining parts even if individual provisions are legally ineffective. This shall not apply if adherence to the contract would constitute unreasonable hardship for one of the parties.
General terms of payment and delivery