General Terms and Conditions of Sale and Deliveries of Cornelius
Deutschland GmbH Applicable to Merchants and Companies
§ 1 General area of applicability
1. All deliveries, services and offers of Cornelius Deutschland GmbH (hereinafter
referred to as: Cornelius) shall take place exclusively on the basis of these
general terms and conditions of payment and delivery. These shall form a part of all
contracts which Cornelius concludes with its contracting partners (hereinafter:
Customer) in respect of the services and/or deliveries offered by Cornelius. These
terms and conditions shall also apply in respect of all future deliveries, services
or offers to the Customer, even if not separately agreed once again. At the latest
on acceptance of the goods which form the subject matter of the contract, the terms
and conditions here listed shall be deemed to have been accepted. However, these
general terms and conditions of payment and delivery shall only apply if the
customer is an entrepreneur in accordance with § 14 of the German Civil Code (BGB),
is a legal person under public law or is a special fund under public law.
2. Any terms and conditions of purchase provided by the Customer shall not apply if
and to the extent that they conflict with the provisions of the present terms and
conditions or stipulate provisions whose scope of application exceeds the terms and
conditions stipulated herein. Even if Cornelius refers to correspondence which
contains terms and conditions of the Customer or of third parties or makes mention
of such, this does not suggest any agreement in respect of the validity of such
terms and conditions.
§ 2 Offer and conclusion of the contract
1. All offers of Cornelius shall be subject to confirmation and non-binding unless
expressly identified as being binding or containing a specific acceptance
2. The Customer shall be bound towards Cornelius in respect of its delivery
commission/order following receipt by Cornelius. Delivery commissions/orders shall
require written confirmation by Cornelius in order to take legal effect. An invoice
concerning the respective order which is sent to the Customer shall also be deemed
to represent written confirmation.
3. If the order confirmation issued by Cornelius contains elements which put the
Customer in a better position with regards to prices, delivery terms or the
provisions of these terms and conditions, the Customer shall be deemed to have
accepted such deviations.
4. Representations concerning the object of delivery of service (for example drawings
and pictures) as well as information provided by Cornelius concerning the object of
delivery or service (for example weight, dimensions, utility value, durability,
technical data and/or tolerances) shall only be approximately applicable, unless
their applicability for the purpose which is contractually envisaged requires
precise conformity. They shall not represent guaranteed performance specifications,
rather they are descriptions or designations of the delivery or service. Deviations
according to commercial customs and usage, as well as deviations resulting from
statutory provisions and deviations constituting technical improvements, together
with a replacement of components by equivalent parts, shall be permissible provided
they do not impair usability for the contractually agreed purpose
5. Cornelius shall retain ownership and/or copyright in respect of all offers and
quotations submitted by it, as well as in respect of all drawings, pictures,
calculations, prospectuses, catalogues, tools, models and other documents and aids
made available to the Customer. The Customer shall not be permitted to make such
items accessible to third parties either as such or in terms of contents, to make
the items known, to use them by itself or through third parties or to duplicate them
without the express permission of Cornelius. The Customer shall be obliged to fully
return the items to Cornelius at the request of the latter and to destroy any copies
made if the said copies are not necessary for the proper course of business or if
negotiations do not lead to conclusion of a contract.
§ 3 Prices and payments
1. The sales prices of Cornelius shall be net prices for the scope of service and
delivery listed in the order confirmation. Additional or special services shall be
charged for separately. Any value added tax accrued shall be calculated and charged
to the extent under statute and to the legally applicable amount. The sales prices
shall apply, except by special agreement, from the place of performance outlined in
§ 4 and shall be exclusive of packaging, freight, postal fees, insurance and other
shipping charges, which will also be charged for separately.
2. Insofar as the agreed prices are based on the list prices of Cornelius and the
deliveries do not take place until more than 4 months following conclusion of the
contract, the valid list prices of Cornelius at the time of delivery shall apply
(minus an agreed percentage or fixed discount).
3. Price amendments shall be permissible if a period of time of more than 4 weeks
exists between submission of the offer or conclusion of the contract and the agreed
delivery date. Should the cost of wages, the price of raw materials, the costs of
materials or the market cost prices then increase prior to delivery, Cornelius shall
be entitled to reasonably increase the price in accordance with the cost increases.
The Customer shall only be entitled to rescind the contract if the price increase
considerably exceeds the increase in the general cost of living between placing of
the order and delivery.
4. Unless otherwise agreed in writing, invoice amounts shall be paid without any
deduction within 30 days of issuing of the invoice. The date of receipt by Cornelius
shall be decisive in respect of the date of payment. In case of payment default,
Cornelius shall be entitled to charge default interest. The rate of interest for
default interest shall be 5% above of the currently applicable base rate of
interest, in accordance with § 352 of the German Commercial Code (HGB).
5. In case of small orders with a net value of less than 100.00 euros, we shall
charge a flat shipping and packaging fee of 15.00 euros, which shall be added to the
6. The setting off of counter claims of the Customer or the retention of payments due
to such claims shall only be permissible if the said counter claims are undisputed
or have been legally recognised.
7. Cornelius shall be entitled to only carry out or provide outstanding deliveries or
services in consideration of an advance payment or provision of security, should
Cornelius become aware, following conclusion of the contract, of circumstances which
are of a nature to significantly reduce the creditworthiness of the Customer and due
to which the payment of outstanding claims of Cornelius by the Customer (including
those of other individual orders for which the same framework agreement applies) is
§ 4 Delivery and delivery time
1. The place of performance shall be place of business of Cornelius, unless another
location is stated in the order confirmation. On handover of the goods to the
Customer, the risk shall be assumed by the Customer. Handover to a carrier,
freighting company or other third party engaged with transportation shall be the
same as handover to the Customer.
2. Intended deadlines and dates of delivery issued by Cornelius shall always apply
approximately, unless a set deadline or set date has been agreed (fixed
transaction). If shipping was agreed, delivery deadlines and delivery dates shall be
calculated according to the time of handover to the carrier, freighting company or
other third party engaged with transportation.
3. Cornelius shall not be liable in respect of impossibility of delivery or delivery
delays to the extent that this was caused by force majeure or other occurrences
which were not foreseeable at the time of conclusion of the contract (for example,
operational disruptions of any kind, difficulties in procuring materials or energy,
transport delays, strikes, lawful blockades, lack of manpower, energy or raw
materials, difficulties obtaining the necessary official permits, official measures,
or non-delivery, incorrect delivery or non-timely delivery by suppliers), for which
Cornelius is not responsible. To the extent that such occurrences make the delivery
or service significantly more difficult for Cornelius or makes this impossible, and
the hindrance is not only of a temporary nature, Cornelius shall be entitled to
rescind the contract. In case of hindrances of a temporary duration, the delivery
and service obligations shall be extended or the delivery and service dates shall be
postponed in accordance with the period of time of the hindrance, plus a reasonable
period of grace. To the extent that the Customer cannot be expected to accept the
delivery or service due to the delay, the Customer shall be entitled to rescind the
contract by informing Cornelius in writing immediately.
4. Cornelius shall be entitled to provide partial deliveries, in particular in the
• the partial delivery can be used by the customer within the scope of the
contractual intended use.
• delivery of the remaining ordered goods is guaranteed.
5. Should Cornelius enter default in respect of a delivery or service, or should a
delivery or service become impossible for it for whatever reason, the liability of
Cornelius shall be limited to payment of damages in accordance with § 6 of these
terms and conditions.
6. Correct and timely self delivery on the basis of a covering transaction on the
same terms shall be reserved. Cornelius shall inform the Customer without delay of
the non-availability of the goods which form the subject matter of the contract or
their primary products and in case of rescission, shall refund the corresponding
consideration to the Customer immediately (settlement of advance payment).
§ 5 General liability
1. Cornelius shall be liable in case of intention or gross negligence on the part of
one of its representatives or vicarious agents in accordance with the statutory
provisions. Otherwise, Cornelius shall only be liable in accordance with the Product
Liability Act (Produkthaftungsgesetz) due to injury to life, body and health or due
to culpable breach of so-called cardinal obligations. Cardinal obligations in
accordance with Sentence 2 concern obligations whose fulfilment makes the proper
execution of the contract possible and whose compliance the contracting parties can
reasonably expect to be able to rely on. However, the claims to damages in respect
of breach of cardinal obligation in accordance with Sentence 2 shall be limited to
foreseeable losses which are typical for the contract. The liability of Cornelius
shall also be limited to foreseeable losses which are typical for the contract in
cases of gross negligence, if none of the exceptional cases listed in Sentence 2 of
this paragraph are present.
2. Liability for damage by the supplied item to the legal property of the Customer,
for example damage to other property, shall be fully excluded. This shall not apply
if intention or gross negligence are present, so-called cardinal obligations under
Paragraph 1 Sentence 2 were breached, or in case of liability due to violation of
life, body or health.
3. The provisions of the two paragraphs above concern payment of damages alongside
performance and payment of damages instead of performance, regardless of legal
reason, in particular due to defects, breach of obligations under the contractual
relationship or due to unlawful acts. They shall also apply to claims to
reimbursement of frustrated expenditure. Liability for delay shall however be
determined by § 6, liability for impossibility shall be in accordance with § 7 of
these general terms and conditions and sale and delivery.
§ 6 Liability for delay
Cornelius shall be liable for delay in respect of performance in cases of intent or
gross negligence, both on its own part and on the part of its representatives or
vicarious agents in accordance with the statutory provisions. However, the liability
of Cornelius in cases of gross negligence and breach of so-called cardinal
obligations in accordance with § 5 Paragraph 1 Sentence 2 shall be limited to
foreseeable losses which are typical of the contract, provided no injury to life,
body or health is present. Otherwise, the liability of Cornelius due to delay in
performance in respect of payment of damages alongside performance shall be limited
to 10% of the net value of the delivery and in case of payment of damages instead of
performance, 20% of the net value of the delivery (excluding packaging, freight,
postage, insurance and other shipping costs. Further claims of the Customer shall be
excluded - also following expiry of any deadline for performance set to Cornelius.
The above-mentioned limitations shall not apply in respect of liability due to
injury to life, body or health.
§ 7 Liability for impossibility
Cornelius shall be liable in accordance with the statutory provisions in case of
impossibility of performance in case of intention or gross negligence or on the part
of one of its representatives or vicarious agents. The liability of Cornelius in
cases of gross negligence or the breach of cardinal obligations in accordance with §
5 Paragraph 1 Sentence 2 shall, however, be limited to the losses which are
foreseeable and typical of the contract if none of the exceptional cases listed in
Sentence 5 of this provision are present. Otherwise, the liability of Cornelius due
to impossibility shall be limited to payment of damages and to refund of frustrated
expenses to a total of 30 % of the net value of the delivery (excluding packaging,
freight, postage, insurance and other shipping costs). Further claims of the
Customer due to impossibility of the delivery shall be excluded. The said
restriction shall not apply in cases of liability due to intention, gross
negligence, or injury to life, body or health. The right of the Customer to rescind
the contract shall not be affected.
§ 8 Complaints and liability for defects
1. Following handover of the goods, the Customer shall inspect these without delay.
Defects which the Customer discovers during inspection shall be notified to
Cornelius in writing immediately. Otherwise, the goods shall be deemed to have been
accepted and the defect as approved. Should a hidden defect only arise later, the
defect notification shall also be submitted to Cornelius without delay, however at
the latest within one year of transfer of risk.
2. To the extent that the
objects of the contract are not handed to or delivered to the Customer in order to
shorten the delivery channel, rather they are handed to or delivered to a third
party on the instructions of the Customer, the said third party shall be authorised
and obliged by the Customer to assume the above-mentioned obligations and duties of
the Customer. The conduct of the third party shall be charged as the own conduct of
§ 9 Obligation of subsequent delivery
Within the framework of subsequent performance, Cornelius shall not, under any
circumstances, be obliged to make subsequent delivery or to undertake
remanufacturing. Should subsequent performance fail, the Customer shall have the
right to request a reduction or to rescind the contract. Failure in accordance with
the previous provision shall be present if a second subsequent delivery was also
defective. The right of the Customer to require damages in lieu of performance in
accordance with the statutory provisions and these terms and conditions shall not be
§ 10 Right of rescission of the Customer
1. Within the framework of the statutory provisions, the Customer shall only be
entitled to rescind the contract if Cornelius is responsible for the breach of
obligation. However, in case of defects, the statutory prerequisites shall remain.
In case of breach of obligation, the Customer shall declare to Cornelius within a
reasonable period of time on request as to whether it will rescind the contract or
request continued performance.
2. As a rule, a right of rescission on the
part of the Customer shall be excluded in case of ordering products which are
specially manufactured and delivered in accordance with the wishes and requirements
of the Customer (so-called "specials") where, in case of rescission by the Customer,
a further sale is impossible or is only possible following modification or technical
amendments, unless the rescission is communicated by the Customer without delay, at
the latest within three days of receipt of the order confirmation and Cornelius can
cancel purchase orders which have already been carried out without incurring any
expenses. Otherwise, rescission shall only be possible if the Customer covers the
cost of labour and materials which have already been accrued.
§ 11 Statute of limitation
1. The period of limitation for claims and rights due to defects in the delivery
shall be one year, regardless of legal reason.
2. The periods of limitation in accordance with Paragraph 1 above shall also apply in
respect of all damages claims against Cornelius which are connected to the defect,
regardless of the legal basis of the claim. To the extent that damages claims of any
kind which are not connected with defects exist against Cornelius, the period of
limitation in accordance with Paragraph 1 shall apply in respect of the said claims.
3. The periods of limitations in accordance with Paragraphs 1 and 2 above shall
apply with the following provisos:
a) The periods of limitation shall not, as a rule, apply in case of intent.
The periods of limitation shall also not apply if Cornelius has maliciously kept the
defect a secret or if Cornelius has assumed a guarantee in respect of the quality of
the delivery. Should Cornelius have maliciously concealed a defect, the statutory
periods limitation which would apply without the presence of malice shall apply in
place of the periods set out in Paragraph 1 above.
c) The periods of limitation shall also not apply to damages claims in cases of
injury to body, life, health or freedom, to claims under the Product Liability Act
(Produkthaftungsgesetz), in case of gross negligent breach of duty or in case of
breach of cardinal obligations as defined in § 5 Paragraph 1 Sentence 2.
d) The periods of limitation shall not apply in respect of actions for recourse of
the Customer in accordance with §§ 478, 479 of the German Civil Code (BGB).
4. The period of limitation shall commence for all claims on the assignment of risk,
as outlined in § 4 Paragraph 1.
§ 12 Recourse (§ 478 of the German Civil Code, BGB)
Recourse claims on the part of the Customer against Cornelius in accordance with §
478 BGB (recourse of the entrepreneur) shall only exist to the extent that the
Customer has not reached any agreements with its customer which go beyond the
statutory claims for defects.
§ 13 Return of goods which have been objected to
Goods in respect of which a complaint has been registered can only be returned to
Cornelius with permission or recognition of a warranty claim.
§ 14 Reservation of title
1. All delivered goods shall remain the property of Cornelius (supplied under
reservation of title) until settlement of all claims of Cornelius against the
Customer, regardless of legal reason, in particular in respect of the relevant
balance claims of Cornelius against the Customer, even if payments are made for
specified claims. The transfer of ownership shall not take place until full payment
of the purchase price. In case of breach of duty by the Customer, in particular in
case of payment default, Cornelius shall be entitled to demand surrender of the
delivered goods and/or rescind the contract, also without the setting of a deadline.
The Customer shall be obliged to surrender the delivered goods. The surrender demand
on the part of Cornelius shall not constitute a declaration of rescission unless
such a declaration is expressly mentioned.
2. Should the customer combine, process or mix the goods supplied by Cornelius under
reservation of title with other goods which are not the property of Cornelius, the
company shall be entitled to co-ownership in the combined, processed or mixed goods
to the relationship of the invoice value of the goods supplied under reservation of
title to the invoice value of the other goods. The Customer shall store the said
goods for Cornelius free of charge.
3. The Customer shall only be entitled to sell the goods supplied under reservation
of title in the course of normal business dealings under its normal terms and
conditions of business, provided it is not in default. The Customer shall only be
entitled to resell the goods subject to retention of title if the claim arising from
resale is assigned to Cornelius. The Customer shall not be entitled to dispose of
the goods supplied under reservation of title in any other way. The claims of the
Customer arising from the resale of the goods supplied under reservation of title
are hereby assigned to Cornelius. In case that the goods supplied under reservation
of title are sold together with other goods which are not the property of Cornelius,
the assignment of the claim from the resale shall only apply to the amount of the
invoice value of the goods subject to reservation of title.
4. The Customer shall be entitled to collect claims arising out of the sale of the
goods supplied under reservation of title. The Customer shall not be entitled to
assign such claims. The authority of Cornelius to collect the claims by itself shall
not be affected. However, Cornelius shall be obliged not to collect the claims by
itself if the Customer properly complies with its payment obligations and is not in
payment default. Should this however be the case, Cornelius shall be entitled to
demand that the Customer gives notification of the assigned claims and their
debtors, gives all necessary information for collection surrenders the relevant
documents and informs the debtors (third parties) of the assignment.
5. Should the value of the securities held by Cornelius exceed the claims of
Cornelius in relation to the Customer by more than 10%, Cornelius must release such
securities on the demand of the Customer.
6. The Customer shall notify Cornelius immediately concerning seizures or other
impairments by third parties. If the reservation of title or the assignment is not
effective according to the law in the scope of which the goods are placed, the
reservation of title and assignment in this country shall be deemed agreed. Should
the co-operation of the Customer be required in this respect, the Customer shall
take all measures which are necessary for authorisation and maintenance of such
§ 15 Data protection
All data shall be electronically and/or manually saved in accordance with data
protection laws and other statutory provisions and regulations. To the extent that
is necessary to carry out the transaction or to the extent required under laws and
regulations, we shall forward the data (or parts thereof) onto third parties, whilst
complying with the statutory provisions.
§ 16 Severability clause
The ineffectiveness, unenforceability or incompleteness of one of the provisions in
these terms and conditions of business or in a contract concluded on the basis of
these terms and conditions of business shall not affect the effectiveness of these
terms and conditions of business and the corresponding contract. The statutory
regulations shall replace the ineffective provision.
§ 17 Place of jurisdiction, applicable law
The place of jurisdiction for disputes arising out of contracts which were concluded
on the basis of these terms and conditions shall be the court having jurisdiction
over the place of business of Cornelius. In such disputes, the law of the Federal
Republic of Germany shall apply. In case of doubt the German version of the terms
and conditions shall prevail.
Terms and conditions of sale Cornelius GmbH
As of 01/2012