General Terms and Conditions (TAC) for Commercial Activity
1. scope of application
(1) All deliveries, services and offers of codex GmbH & Co. KG (hereinafter referred to as “codex”) shall be based exclusively on these General Terms and Conditions (“TAC”). These form an integral part of all the contracts which codex concludes with its contractual partners (hereinafter referred to as “customers”) for the deliveries or services offered by it. They also apply to all future transactions with the customer, even if they are not agreed upon separately.
(2) These General Terms and Conditions shall only apply to companies within the meaning of § 14 BGB (Bürgerliches Gesetzbuch [German Civil Code]).
(3) Unless otherwise individually agreed in writing, these TAC shall apply exclusively to all legal transactions. The customer acknowledges them by placing an order or accepting a delivery. Deviating conditions or counter-confirmations by the customer which have not been expressly acknowledged in writing by codex are not binding, even if codex does not expressly object to them.
(1) As product and service-related advice, the advice provided by codex extends exclusively to the products and services created by codex.
(2) codex will only provide further advice to the customer if this is expressly requested. Failure to make statements does not constitute advice.
3. offer and conclusion of contract
(1) Letters of offer from codex are non-binding and without obligation, unless they are expressly marked as binding or contain a defined acceptance period. Letters of offer from codex are therefore generally deemed to be a request to submit an offer and only become binding upon written confirmation of the same by codex.
(2) Information contained in brochures, catalogs and technical documents is not binding; in particular, it does not release the customer from the obligation to carry out his own checks.
(3) Information provided by codex concerning the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations thereof (e.g. drawings and illustrations) are only approximate unless the usability for the contractually intended purpose presupposes exact conformity. They are not guaranteed characteristics of quality, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that are based on legal regulations or represent technical improvements are permissible, provided they do not impair the usability for the contractually intended purpose.
(4) In principle, the order placed by the customer represents the offer to conclude the contract. The order must contain all information relevant to the execution of the order. Missing, erroneous or incomplete disclosures are deemed explicitly to not having been agreed upon and do not create any obligation of codex in regard to claims concerning fulfilment, warranty or compensation for damage.
(5) Orders shall be placed in writing; however, they can also be transmitted via telephone or otherwise electronically, at the customer’s own risk.
(6) Codex will accept the order within 10 working days of receipt of the order by confirmation of the order, unless a different acceptance period is provided for.
(7) Upon confirmation of the order by codex, the contract, even if its content differs from that of the order, shall be deemed to have been concluded with the content of the confirmation, unless the customer objects to the order confirmation immediately.
(1) If the customer wishes to make amendments to the subject of the delivery or service after conclusion of the contract, a separate contractual agreement is required for this.
(2) If the customer withdraws an order placed before conclusion of the contract, codex, without prejudice to the possibility of making a claim for higher actual damage, shall be entitled to charge 10% of the delivery or service price for the costs arising due to the processing of the order and for lost profits. The customer shall reserve the right to prove a lower degree of damage.
(3) In the event of consensual amendments to the contractual subject-matter, delivery or service periods or dates shall be agreed anew.
5. delivery and delivery time
(1) Deliveries shall be made “ex-works” according to clause EXW of the INCOTERMS 2020.
(2) If codex offers the prospect of times and dates for deliveries and services, then these shall always be considered mere approximations, unless a fixed time or a fixed date is committed to or agreed upon. If dispatch has been agreed, delivery periods and dates shall refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.
(3) The customer is entitled to withdraw from the contract if codex is responsible for failure to comply with a fixed delivery date and a reasonable extension has expired without success.
(4) codex is entitled to render the agreed delivery or service prior to the agreed time. Partial delivery or performance of services is allowed, and can be billed separately
6. default of acceptance
(1) If the customer does not accept the goods on a permissible/agreed delivery date or at the end of the agreed delivery period due to a circumstance for which it is responsible, codex may charge storage costs of 0.5% for each month or part thereof, but not more than a total of 5% of the price of the goods or services. The contracting parties shall be free to prove higher or lower storage costs. codex is entitled to determine a suitable place for storage at the expense and risk of the customer and to insure the delivery or service items.
(2) If codex is entitled to demand compensation for damage instead of performance, codex may, without prejudice to the possibility of claiming higher actual damages, demand 15% of the total price as damages. The customer reserves the right to prove a lower degree of damage.
7. force majeure
(1) Codex shall not be liable for the impossibility of delivery or for delays in delivery in so far as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring material or energy, transport delays, strikes, legal lockouts, shortages of energy or raw materials, official measures, or outstanding, incorrect or untimely delivery by suppliers) for which codex is not responsible. If such events render it difficult or impossible for codex to deliver or perform a service, and the obstruction is not only temporary in nature, codex shall be entitled to withdraw from the contract. For obstructions of a temporary nature, the delivery or service performance deadlines shall be extended or postponed by the time period of the obstruction, plus a reasonable period for restarting.
(2) If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by means of an immediate written declaration to codex.
(3) If codex is able to foresee that the goods cannot be delivered within the delivery period, the customer will be informed immediately in writing, the reasons for this will be communicated to the customer and, if possible, the expected delivery date will be stated.
8.terms of payment
(1) Unless otherwise agreed, the agreed prices are in EURO ex works plus the statutory value added tax, customs, freight, packaging and transport insurance costs. Import and export duties shall be charged separately. An insurance policy for the goods to be shipped shall be taken out by codex only upon request and at the customer’s expense.
(2) Invoice amounts must be paid within 30 days without any deduction. Receipt by codex is decisive for the date of payment. In the event of non-payment, the customer shall be in default without further reminder. Discounts and rebates will only be granted under separate agreement.
(3) codex expressly reserves the right to accept bills of exchange or cheques. Bills of exchange and cheques are accepted subject to the consent of codex only on account of performance and are only deemed to be payment after they have been credited without reservation. Discount charges and bill of exchange costs will be borne by the customer.
(4) If there are several outstanding claims of codex against the customer and if payments by the customer are not made in respect of a specific claim, codex is entitled to determine which of the outstanding claims has been paid.
(5)In the event of default, deferment of payment or partial payment, codex shall be entitled to demand interest on arrears at a rate of 9 percentage points above the respective prime rate and to withhold further services until all due invoices have been settled. Proof of a higher degree of damage remains reserved.
(6) In the event of justified doubts as to the customer's ability to pay or creditworthiness, e.g. in the event of late payment, slow payment, etc., codex shall be entitled to demand advance payment or suitable security for the performance to be rendered by the customer. If the customer is not prepared to do so, codex is entitled to withdraw from the contract after a reasonable extension period and to demand compensation for damages due to non-performance.
(7) Offsetting against counterclaims or the retention of payments on account of such claims by the customer is only permissible insofar as the counterclaims are undisputed or have been declared final and absolute.
(8) Granted terms of payment shall lapse and outstanding claims shall become due for payment immediately if an application is made for the opening of insolvency proceedings against the assets of the customer, if the customer has made incorrect statements about his creditworthiness or if there are other justified doubts about the solvency or creditworthiness of the customer.
(9) Insofar as VAT is not included in the invoicing of codex on the basis of information provided by the customer (e.g. in case of “intra-Community deliveries” within the meaning of §§ 4 No.1b in conjunction with 6a UStG (Umsatzsteuergesetz [German VAT Act]) and codex is subsequently charged with a payable VAT amount (§ 6a IV UStG), the customer shall be obligated to pay the appropriate amount to codex. This duty exists irrespective of whether codex subsequently has to pay value added tax, import sales tax, or comparable taxes domestically or abroad.
9. place of performance, transfer of risk, packaging
(1) The place of performance for the services ordered is the registered office of codex or the external and/or forwarding warehouse where the goods are made available. Unless otherwise agreed, the customer shall collect the goods from the registered office of codex after notification of readiness. The place of performance and fulfilment of the contractual obligations owed by the customer is always the registered office of the commercial branch of codex.
(2) The risk of destruction, loss or damage to the goods shall pass to the customer upon notification that the goods are ready for collection.
(3) Insofar as dispatch has been agreed, the risk shall pass to the customer upon dispatch of the goods or their handover to the commissioned transport company.
(4) Packaging and loading aids, such as pallets, will only be provided by codex for transport purposes. They must be returned in undamaged condition and carriage paid within 30 days of the actual delivery date to the registered office of the commercial branch or to an external and/or forwarding warehouse at the discretion of codex. If this is not done, codex shall be entitled to invoice a daily flat-rate usage fee of EUR 0.50 plus statutory VAT per piece of packaging and/or loading aids provided from the 31st day after delivery. However, the total usage fee to be paid shall in no case exceed EUR 25 plus statutory VAT. Non-returnable packaging must be disposed of by the customer in accordance with the regulations.
(5) Additional costs for a more urgent mode of shipment requested by the customer shall be borne by the customer. This also applies if it was agreed in individual cases that codex would bear the freight costs.
10. duty of inspection and complaint
(1) The delivered items must be inspected carefully and immediately after delivery to the customer or to the third party designated by it.
(2) In case of damage or loss of the goods in transit, inventory shall be taken immediately, and codex shall be informed thereof. Claims arising from any transport damages must be lodged immediately with the forwarder by the customer.
(3) The delivered items shall be deemed as contractually rendered if codex does not receive a written notice of defects concerning obvious defects or other defects that could be recognised in case of an immediate careful inspection, within seven working days of delivery of the delivery items; otherwise within seven working days of discovery of the defect or at an earlier point in time at which the defect was recognisable to the customer during normal use of the delivery items without closer inspection.
(4) At the request of codex, the rejected delivery item must be returned to codex carriage paid. After consultation with codex as to the most favourable method of dispatch, codex will reimburse that expense in case of a justified complaint; this shall not apply if the expenses increase because the delivery item is located at a different place than the place of intended use.
11. material and legal defects
(1) Insofar as there is a defect in goods or services supplied by codex, codex shall be entitled, at its own choice, to either subsequent improvement, replacement delivery or credit. This does not apply to claims of recourse according to §§ 445a, 445b BGB, if the last contract in the supply chain is a contract for the sale of consumer goods.
(2) After consultation with codex, the customer may also carry out the rectification of defects. Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded if the expenses increase because the goods have subsequently been taken to a location other than the customer's branch.
12. The liability
(1) The liability of codex for compensation for damages, irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contractual negotiations and tort, shall be limited in accordance with this clause 12, insofar as fault is involved.
(2) The limitations of this clause 12 shall not apply to the liability of codex for wilful conduct, for guaranteed characteristics, for injury to life, body or health or under the Produkthaftungsgesetz [Product Liability Act].
(3) codex shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, insofar as this does not constitute a breach of material contractual obligations. Essential contractual obligations include the obligation to deliver the delivery item on time, its freedom from defects of title and such material defects which impair its functionality or suitability for use more than just insignificantly, as well as obligations to provide advice, protection and care, which are intended to enable the customer to use the delivery item in accordance with the contract or which are intended to protect the life or limb of the customer's personnel or to protect the customer's property from considerable damage.
(4) Insofar as codex is liable for damages on the merits pursuant to the above paragraph, this liability shall be limited to damages which codex foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which should have been foreseen when exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall only be eligible for compensation if such damage is typically to be expected when the delivery item is used for its intended purpose.
(5) In the event of liability for simple negligence, the obligation of codex to pay compensation for material damage and resulting further financial losses shall be limited to an amount of EUR 15 million per case of damage (corresponding to the current cover sum of its product liability insurance or liability insurance), even if this involves a breach of material contractual obligations.
(6) The above exclusions and limitations of liability shall apply to the same extent in favour of the management bodies, legal representatives, employees and other vicarious agents of codex.
(7) Insofar as codex provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this shall be done free of charge and to the exclusion of any liability.
(8) If the customer asserts recourse against codex due to claims by third parties, codex shall not be liable insofar as the customer has effectively limited its liability vis-à-vis its own customers. The liability of codex for recourse claims is excluded to the extent that these exceed the statutory claims for defects and damages on the basis of an agreement concluded between the customer and its buyer.
(9) The customer is obliged to notify codex immediately in writing of any claims asserted by third parties and to reserve all defensive measures and settlement negotiations for codex.
13. term of limitation
(1) In the cases of §§ 438 para. 1 No. 2, 479 and 634 a para. 1 No. 2 BGB (German Civil Code) as well as in the case of intent, fraudulent concealment of a defect, claims for damages due to personal injury or freedom of a person, claims arising from the Product Liability Act and grossly negligent breach of duty, the statutory limitation periods shall apply to the customer's claims. This also applies to regress claims in accordance with §§ 445a, 445b BGB, if the last contract in the supply chain is a consumer goods purchase. In all other respects, the period of limitation for claims and rights due to defects in the products, services and works of codex and the resulting damages is one year.
(2) Measures of subsequent performance shall neither suspend the limitation period applicable to the original performance of services nor shall they cause the limitation period to start anew.
14. reservation of ownership
(1) The following provisions serve to secure all existing current and future claims of codex against the customer arising from the business relationship between them.
(2) The goods delivered by codex to the customer shall remain the property of codex until all secured claims have been paid in full. The goods as well as the goods which take their place according to the following provisions and which are covered by the reservation of ownership shall hereinafter be referred to as "reserved goods".
(3) The customer shall store the reserved goods free of charge for codex.
(4) The customer is entitled to use and sell the reserved goods up to the onset of an enforcement event in the course of ordinary business transactions. Pledging or assigning security is not permitted.
(5) In the event of a further sale of the reserved goods, the customer shall assign immediately the claim arising from it against the acquirer to codex. The same applies to miscellaneous claims which replace the reserved goods or arise otherwise in regard to the reserved goods, such as insurance claims or claims deriving from impermissible action in case of loss or destruction. codex gives revocable authorisation to the customer to collect claims assigned to codex in its own name. Codex may only revoke this direct debit authorization in the event of exploitation.
(6) If third parties access the reserved goods, in particular by way of execution, the customer will immediately inform them of the ownership of codex and inform codex of this in order to enable it to enforce its ownership rights. At the request of codex, the customer must provide all necessary information on the existence of the reserved goods and on the claims assigned to codex and must inform his customers of the assignment. The customer shall support codex in all measures that are necessary to protect the ownership of codex to the reserved goods, and shall bear the resulting costs.
(7) codex shall release the reserved goods as well as the items taking their place or claims if their value exceeds the amount of the secured claims by more than 20%. Codex shall be free to select the items to be released thereafter.
(8) If codex withdraws from the contract in the event of conduct on the part of the customer in breach of the contract - in particular default of payment - (case of realisation), codex shall be entitled to demand the return of the reserved goods.
(9) The customer’s right to dispose of the goods that are under the codex reservation of ownership as well as to collect the claims assigned to codex expires as soon as the customer no longer fulfils its payment obligations and/or files an application for the opening of insolvency proceedings. In the aforementioned cases and in the event of other conduct on the part of the customer which is in breach of the contract, codex shall be entitled to take back the goods delivered under reservation of ownership without the need for a reminder.
(1) The customer undertakes to treat all aspects of the business relationship worthy of protection as confidential.
(2) Duplication of the documents provided to the customer is only permitted within the scope of operational requirements and copyright regulations.
16. final provisions
(1) If the customer is a merchant as defined by the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of codex in Ulm, Germany. The same applies if the customer is an entrepreneur as defined in § 14 BGB. In all cases, however, we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement or at the customer’s general place of jurisdiction. This shall not affect any overriding statutory provisions, in particular those relating to exclusive jurisdiction.
(2) The business relations with the customer shall be governed exclusively by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
(3) Should individual parts of these General Terms and Conditions be invalid for commercial transactions, the validity of the remaining provisions shall not be affected. The contractual partners shall endeavour to reach an individual agreement on an effective clause that comes closest to the economic purpose and legal sense of the original wording, taking into account the interests of both parties.
The customer acknowledges that codex stores data from the contractual relationship for the fulfilment of the contract in accordance with Art. 6 of the General Data Protection Regulation (GDPR) and reserves the right to transfer the data to third parties, such as insurance companies, insofar as this is necessary for the fulfilment of the contract.
codex GmbH & Co. KG | Heuweg 5/1 | D-89079 Ulm
As of: January 01, 2022