General Terms and Conditions of Delivery of CITO‑SYSTEM GmbH Version 03/2023

I. Validity

  1. These General Terms and Conditions of Delivery ("Terms and Conditions of Delivery") are an integral part of every delivery contract concluded by us and shall apply exclusively. Other provisions, particularly the purchaser's general terms and conditions, shall not apply, regardless of whether they have been expressly rejected by us in an individual case or not. These Terms and Conditions of Delivery shall also apply exclusively if we perform a service unconditionally in the knowledge of other terms and conditions of business.
  2. Special agreements, ancillary agreements and promises, in particular by employees, shall only become valid if they are confirmed by us in writing, e.g. in the order confirmation or the contract.

II. Offer, Conclusion of the Contract and Performance Adjustment

  1. Our offers are generally non-binding. If an offer is expressly marked by us in writing as binding, it shall be binding for ten working days from the date of the offer.
  2. By placing an order for goods, the purchaser makes a binding declaration that he wishes to purchase the goods ordered. The written order is a binding offer. We are entitled to accept the contractual offer contained in the order within two weeks of receipt. Acceptance may be declared either in writing by order confirmation or by delivery of the goods to the purchaser, unless a written contract is concluded.
  3. We reserve all property rights and copyrights to all cost estimates, drawings, samples, gauges and tools. These may not be used for other purposes, reproduced or made available to third parties.

III. Call-Off Orders

  1. If call-off orders have been placed, the acceptance period shall be 6 months from the date of the order confirmation, insofar as no written agreement to the contrary has been made.
  2. After expiry of this period, we are entitled, at our discretion, to invoice for the remaining goods or to withdraw from the remaining order, in which case the purchaser will be charged with the costs incurred.

IV. Prices

  1. Our general price quotations (e.g. brochure, internet) are non-binding. Unless otherwise agreed, the respective current price list shall apply.
  2. Unless otherwise agreed, the prices are in accordance with EXW CITO Schwaig Incoterms® 2020 for the requested quantity plus the applicable statutory value added tax.
  3. Prices do not include shipping and packaging costs, insofar as nothing to the contrary has been agreed in writing.
  4. We reserve the right to adjust the prices accordingly in the event of cost changes occurring after conclusion of the contract until the time of delivery, in particular due to collective wage agreements, changes in raw material prices, other price changes of suppliers or exchange rate fluctuations, for which we are not responsible and which could not have been foreseen with sufficient certainty. Upon request, we shall provide the purchaser with evidence of the reasons for the price adjustment.

V. Terms of Payment, Default

  1. Unless otherwise agreed, our invoices shall be due for payment within 30 days of the invoice date or the occurrence of default in acceptance; a warranty retention is excluded. After expiry of these 30 days, the purchaser shall be in default of payment; a separate reminder shall not be required.
  2. If the purchaser is in default of payment, we shall be entitled to charge default interest at a rate of 8 percentage points above the base interest rate applicable pursuant to § 247 of the German Civil Code (BGB). We reserve the right to claim further damages.
  3. In case of first orders, CITO can demand delivery against advance payment. Otherwise, the timeliness of payment is determined by the receipt of the invoice amount on the specified account.
  4. If, after conclusion of the contract with the purchaser, it becomes apparent that due to his financial situation the fulfilment of his contractual obligations is jeopardised (in particular in case of cessation of payments, application for insolvency proceedings, seizure or execution measures, lodging of bill or cheque protests and debit note returns, also vis-à-vis or to third parties), we are entitled, at our own discretion, to withhold delivery until advance payment of the purchase price or provision of an appropriate security. This shall also apply if, as a result of the purchaser's default in payment, there are reasonable doubts as to the purchaser's solvency or creditworthiness.
  5. In the cases of item V.4, we are also entitled to withhold deliveries until receipt of all payments from outstanding claims against the purchaser or provision of an appropriate security. However, this shall only apply to claims not yet due, including claims for which we are obliged to perform in advance under contracts already concluded, and claims without any intrinsic natural or economic connection with the delivery, insofar as we have a justified interest in doing so.
  6. If the purchaser fails to make the advance payment or provide security in accordance with item V.4 within two weeks, we shall be entitled to withdraw from the corresponding contract.

VI. Handover, Transfer of Risk and Dispatch

  1. Unless otherwise agreed, deliveries shall be made in accordance with EXW CITO Schwaig Incoterms® 2020. The risk is transferred to the purchaser or the transport person upon handover of the goods. The handover shall be deemed to have taken place if the purchaser is in default of acceptance.
  2. Even if a sale by delivery to a place other than the place of performance has been agreed, the risk shall be transferred to the purchaser as soon as we have handed over the goods to the carrier. In the event of a sale by delivery to a place other than the place of performance, we reserve the right to choose the shipping routes, means of transport and other temporary protective measures in the absence of corresponding instructions from the purchaser, whereby we are not obliged to choose the lowest-priced type of shipping. If a sale by delivery to a place other than the place of performance has been agreed, the costs of postage and freight shall be borne by the purchaser unless otherwise agreed. Dispatch shall be effected by us in the name and for the account of the purchaser; we are authorised to do so.
  3. Unless otherwise agreed, packaging costs shall be borne by the purchaser; they shall be charged by us at cost price. For deliveries to a purchaser in Germany, we shall credit 2/3 of this packaging price if the packaging can be reused and if it has been returned to us free of charge.
  4. The purchaser is obliged to observe the obligations within the scope of export control when accepting the goods and, if necessary, to have the export approved.

VII. Delivery Period and Delivery

  1. Our statements regarding delivery dates or delivery periods are non-binding unless they have been agreed as binding in individual cases. In the event of non-binding delivery periods or delivery dates, we shall not be in default before the fruitless expiry of a reasonable period for delivery set by the purchaser in writing. The purchaser may not set the expiry of such a deadline at a date earlier than four weeks after the expiry of the non-binding delivery period or delivery date. Delivery dates and delivery periods are furthermore subject to the condition that all documents and information to be supplied by the purchaser, necessary approvals and releases are available.
  2. Transactions for delivery by a fixed date are not concluded.
  3. If we are unable to deliver on time due to force majeure or other circumstances for which we are not responsible, the delivery period shall be extended for the duration of these events.
  4. We shall not be in default of delivery if suppliers do not deliver to us correctly or on time for reasons that are not within our sphere of responsibility despite a congruent hedging transaction concluded by us.
  5. We are entitled to make partial deliveries insofar as their acceptance is not unreasonable for the purchaser, in particular if the delivery of the remaining ordered goods is ensured and the purchaser does not incur any significant additional expenses or costs as a result (unless we agree to bear these costs). Each partial delivery may be invoiced separately.
  6. Upon delivery, certain deviations from the order confirmation may occur with regard to the delivery quantity, insofar as this is reasonable for the purchaser. Excess or short deliveries of up to 10 % are considered reasonable and can be made by us.

VIII. Retention of Title

  1. We retain title to the goods delivered until the purchase price has been paid in full and all claims arising from the current business relationship have been settled.
  2. In the event that the purchaser acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the goods delivered subject to retention of title ("Retained Goods"). In the event of default in payment, no prior setting of a deadline shall be required. For the purpose of taking back the Retained Goods, we may enter the purchaser's business premises during normal business hours. Further claims on our part shall remain unaffected.
  3. After taking back the Retained Goods, we shall be entitled to make reasonable use of them after having given prior warning; the proceeds of such use shall be set off against the liabilities of the purchaser, less reasonable costs of utilisation.
  4. If the purchaser resells the Retained Goods for financing purposes or in the ordinary course of business, he undertakes to maintain our retention of title vis-à-vis the purchaser. The purchaser hereby assigns to us all claims against his customer or third parties arising from the resale in the amount of the final invoice amount (including value added tax) with all ancillary rights until all our claims have been settled in full, irrespective of whether the Retained Goods have been resold without or after processing.
  5. The purchaser shall notify his customer of the assignment of the claims to the delivery remuneration when reselling the goods. The purchaser is not entitled to sell the Retained Goods to buyers who have excluded or limited the assignment of payment claims against them. If the Retained Goods have been processed together with other items not belonging to the purchaser, the assignment shall only be made in the proportion of the co-ownership shares in the processed article in accordance with item VIII.9.
  6. The purchaser remains authorised to collect the claims after the assignment. Our right to collect the claims ourselves remains unaffected. However, we shall not collect the claims as long as the purchaser meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, has not filed for insolvency proceedings and has not suspended his payments. In the event of one of these cases, we may demand that the purchaser discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment. Upon the occurrence of such an event, the purchaser's right to collect the claims shall expire.
  7. Apart from that, the purchaser may neither sell nor pledge the Retained Goods nor assign them as security without our prior written consent. In the event of seizure, confiscation or other dispositions of the Retained Goods by third parties, the purchaser must draw attention to our ownership and notify us immediately. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 of the German Code of Civil Procedure (ZPO), the purchaser shall be liable for the loss incurred by us.
  8. The purchaser is obliged to treat the Retained Goods with care. In particular, he shall insure the Retained Goods sufficiently at replacement value against fire, water and theft.
  9. The processing or transformation of the Retained Goods by the purchaser shall always be carried out on our behalf. If the Retained Goods are processed or transformed together with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the Retained Goods to the other processed or transformed items at the time of processing or transformation; in all other respects, the same shall apply to the new item thus created as to the goods delivered subject to retention of title.
  10. If the Retained Goods are inseparably mixed or combined with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the Retained Goods to the other mixed items at the time of mixing or combining. If the mixing or combining is done in such a way that the purchaser's item is to be regarded as the main item, the purchaser shall transfer co-ownership on a pro rata basis. The purchaser shall keep the sole ownership or co-ownership thus created in safe custody for us.
  11. The purchaser shall take appropriate measures and provide us with comprehensive support in protecting our rights under this item VIII in the country in which the Retained Goods are located (if necessary by other means of security).

IX. Quality of the Goods, Warranty Rights, Liability

  1. The information contained in catalogues, brochures, circulars, advertisements, illustrations and comparable public promotions regarding performance, dimensions, weights, prices and the like are non-binding and, in particular, do not constitute a contractual statement of the quality of the goods unless they expressly become part of the contract.
  2. As a matter of principle, only our specific product description shall be deemed to be agreed as the quality of the goods.
  3. Dimensions and other specifications are subject to production-related leeway and tolerances. We reserve the right to make technical changes as well as changes in shape, colour and/or weight with equivalent quality and the same price within the scope of what is reasonable.
  4. Warranties, in particular warranties as to quality, shall only be binding on us to the extent that they (i) are contained in an offer or order confirmation, (ii) are expressly designated as a "warranty" or "warranty as to quality", and (iii) expressly stipulate the obligations resulting for us from such a warranty.
  5. Insofar as the manufacturer provides a warranty for the quality of the goods or that the goods will retain a certain quality for a certain period of time, the purchaser is entitled to the rights arising from the warranty exclusively against the manufacturer on the terms stated in the warranty statement and the relevant advertising, without prejudice to the otherwise existing claims against CITO.
  6. The warranty rights of the purchaser presuppose that he inspects the goods upon delivery and duly gives notice of defects. Complaints must be made in writing, stating the specific defect. Complaints about incomplete deliveries and other recognisable defects must be made to us in writing without delay, but at the latest within one week of delivery; hidden defects must be notified to us without delay, but at the latest within one week of their discovery. Acceptance of the goods may not be refused due to insignificant defects. Claims based on defects communicated late are excluded. If the purchaser does not comply with these obligations, claims due to defects are excluded.
  7. The purchaser shall bear the full burden of proof for all conditions of entitlement to warranty rights, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect. At our request, the defective goods shall be returned to us in original or equivalent proper packaging.
  8. For defects in the goods, we shall initially rectify the defect (subsequent improvement) or deliver a defect-free item (subsequent delivery) at our discretion. The rectification of defects shall take place without recognition of a legal obligation. In the case of rectification, the remaining part of the original limitation period shall begin to run with the return of the rectified goods. The same applies in the case of subsequent delivery.
  9. We shall be granted a period of at least 20 days for the rectification of defects. We shall be entitled to make several attempts to rectify the defect insofar as this is reasonable for the purchaser.
  10. We may refuse rectification on the grounds of disproportionate costs.
  11. If the rectification fails, the purchaser may, at his discretion, demand a reduction in the purchase price or withdraw from the contract. However, in the event of only a minor breach of duty, in particular in the event of only minor defects, the purchaser shall not be entitled to withdraw from the contract.
  12. Further claims for defects of any kind whatsoever shall be excluded, subject to any claims for damages limited in accordance with item X. The purchaser shall bear the reasonable costs of a repair or replacement.
  13. The purchaser shall bear the reasonable costs of an unjustified assertion of warranty rights (e.g. if the product was not defective); the same shall apply if we wrongly grant warranty rights without being obliged to do so.
  14. The limitation period for warranty rights is one year from delivery. However, this limitation does not apply if (i) a defect was fraudulently concealed or (ii) a warranty for the quality of a product was assumed (in this respect, the warranty provision or limitation period resulting from the warranty applies, if applicable). In the event of claims for damages, this limitation shall furthermore not apply in the following cases: (i) injury to life, body or health, (ii) intent and (iii) gross negligence on the part of our organs or executive employees.
  15. Any delivery of used items agreed with the purchaser in individual cases shall be made to the exclusion of any warranty for material defects.

X. Liability and Limitations of Liability

  1. In the event of simple negligence, our liability for damages shall be limited to damages arising from the breach of essential contractual obligations, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contracting party regularly relies and may rely; in this case, however, liability shall be limited to the typical foreseeable damage.
  2. In cases of item X.1, liability shall be limited to EUR 50,000. In cases of item X.1, the limitation period shall be two years after the date on which the claim arose and the purchaser became aware of the circumstances giving rise to the claim. Irrespective of the purchaser's knowledge, the claim shall become time-barred three years after the event causing the damage. The limitation period for claims for damages due to defects shall be governed by item IX.14.
  3. The above limitations of liability shall also apply to claims for damages of the purchaser against our organs, executives, employees or commissioned agents.
  4. Insofar as the supplier provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of performance owed by him, this shall be done free of charge and to the exclusion of any liability.
  5. The above limitations of liability shall apply to all claims for damages, irrespective of the legal grounds, with the exception of claims for damages by the purchaser (i) on account of intent or gross negligence, (ii) under the Product Liability Act, (iii) on account of fraudulently concealed defects, (iv) on account of the breach of an obligation arising from an assumed procurement risk or an assumed warranty (in this respect, the liability provision or limitation period arising from the warranty shall apply, if applicable) or (v) on account of injury to life, limb or health.

XI. Force Majeure

  1. If we are prevented from fulfilling our contractual obligations due to circumstances of force majeure such as mobilisation, war, terrorism, riots, natural disasters, fire or other unforeseeable circumstances for which we are not responsible, e.g. strikes or lawful lockouts, operational or transport disruptions, difficulties in procuring raw materials, lack of supplies from suppliers or in the case of epidemics, pandemics, epidemics or quarantine orders, the agreed delivery periods shall be extended in each case by the duration of the hindrance plus a reasonable starting period. We shall not be responsible for the aforementioned circumstances even if they occur during an already existing delay. We shall inform the purchaser of the beginning and the expected end of such circumstances as soon as possible.
  2. If the hindrance lasts six weeks or longer, both parties may withdraw from the contract.

XII. Counterclaims, Transferability

  1. The purchaser shall not be entitled to offset or exercise a right of retention on the grounds of disputed counterclaims or counterclaims that have not been finally adjudicated.
  2. The purchaser may not assign in whole or in part the rights and obligations incumbent upon him in connection with deliveries without our prior written consent. We are permitted to assign rights and obligations incumbent upon us in connection with deliveries, in particular to affiliated companies as defined in § 15 of the German Stock Corporation Act (AktG).

XIII. Data Protection

  1. Each party shall respect the applicable privacy laws.
  2. The Seller is entitled within the implementation of this Contract to process Buyer’s personal by means of electronic connecting devices. The Buyer agrees in particular that the Seller may transfer such data in the Seller’s country or abroad in order to implement this Contract, to provide services to the Buyer and to develop its offering of products and services in line with the applicable data protection rules. Our data protection declaration can be found in the latest version under: "www.cito.de/privacy-policy/"

XIV. Trade Compliance

  1. The contracting parties comply with all applicable trade laws and similar restrictions. The Seller under no circumstance shall be held liable for negative consequences resulting from trade law violations by the Buyer, such as:
    • The Buyer using the purchased Equipment (i.e. hardware, software, technology) to engage in weapons of mass destruction or similar illegal activities;
    • The Buyer re-selling or otherwise transferring the purchased Equipment to criminal organizations and/or other sanctioned parties;
    • The Buyer violating any kind of trade laws or similar restrictions, including embargos, sanctions, export controls or customs laws.
  2. In case this clause is violated by either party, the party being held liable for a violation shall indemnify the other party for any negative consequence suffered from such violation (i.e. penalties, fines, legal and court expenses), according to the degree of responsibility for the violation.

XV. Final Provisions

  1. The law of the Federal Republic of Germany shall apply to all legal relationships between us and the purchaser. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
  2. Nuremberg is agreed as the place of performance for the services to be rendered by the contracting parties and as the exclusive place of jurisdiction for all disputes between the parties.
  3. Should individual provisions of the contract with the purchaser, including these Terms and Conditions of Delivery, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.

Version 03/2023