General Terms & Conditions
General Terms & Conditions of CMC GmbH & Co.KG Classic Modell Cars, Stuttgarter Str. 106, 70736 Fellbach (hereinafter referred to as simply CMC) in respect of buyers/persons placing orders (hereinafter referred to as “customer”).
1. General points
1.1. The following conditions shall exclusively be considered to be authoritative in respect of all legal transactions with CMC, in particular for all quotes and contracts issued by CMC, provided no other conditions have expressly been stipulated and acknowledged in writing.
1.2. Any deviations from these conditions must be agreed in writing.
1.3. Supplementary agreements made verbally must be confirmed in writing.
1.4. The General Terms & Conditions, purchase conditions or similar conditions of the customer shall not be recognised by CMC, even if an order is fulfilled with knowledge of the deviating conditions.
1.5. These terms and conditions do not apply to legal transactions with consumers.
2.1. Quotes issued by CMC remain non-binding and subject to change up until the point in time when the order has been confirmed. The contract does not come into effect until the order has been confirmed by CMC or the order has been executed.
2.2. Quotes issued by CMC are issued under the express condition that they receive deliveries from their own suppliers, whereby CMC is responsible for the careful selection of their suppliers and for ensuring their capacity to perform.
2.3. In the event that they are unable to deliver, CMC will inform their customers within one week of having become aware of the issue at hand. The provision of this information shall be considered as withdrawal from the contract with exemption from the obligation to provide a service, providing the inability to deliver is not attributable to CMC.
2.4 Illustrations, drawings, measurements, weights and other descriptions of goods and services in the documentation attached to a quote are to be understood as providing only approximate indications, unless this has been expressly stated as being otherwise.
3.1. CMC delivers their goods according to the usual technical standard. CMC reserves the right to make minor variations to the delivered goods from what has been agreed on account of changes in construction and/or improvements, or due to slight changes in colour or shape, and such goods shall be considered to be in accordance with the contractual terms.
3.2. CMC has the right to make partial deliveries.
3.3. CMC will only accept liability for damages on account of late delivery or inability to deliver in the case of intent or gross negligence. Liability cannot be assumed for remote or consequential damages nor for damages arising as a result of force majeure.
3.4. The risk of destruction, loss or damage of the goods is transferred to the customer when the goods are dispatched or, in the case that they are collected by the customer, at the point where they are handed over to the customer, even when carriage paid delivery has been agreed upon.
3.5. CMC shall not bear responsibility for any kind of transport difficulties. CMC shall take out a goods-in-transit insurance policy for deliveries within Germany or, for exports, up until the German border.
3.6. Delivery dates are always to be considered non-binding, unless an agreement has been expressly drawn up by the two parties stating otherwise. This applies in particular to newly introduced models and goods.
3.7. Delivery dates and lead times shall only result in the enforcing of the legal consequences of Section 323 para.2 no. 2 of the German Civil Code (BGB) (Dispensing with the setting of a period of time in revoking the contract) if this has been expressly agreed in writing.
3.8. In the event that the delivery cannot be made at an agreed time on account of circumstances which are the responsibility of the customer, then the risk is transferred to the customer at the point in time at which the notification of readiness to deliver was sent to the customer. Warehousing costs shall then be payable by the customer.
3.9. The customer does not have the right to assign any claims against CMC for deliveries of goods to third parties or to pledge them as securities.
4. Quality and condition of the goods, obligation to examine goods and give notice of defects
4.1. CMC undertakes to manufacture all their goods in a professional manner in conformity with normal commercial practice. They undertake to produce goods of average grade and quality. For all goods delivered by CMC, minor surface irregularities and slight colour shading are to be accepted as being in accordance with the terms of the contract.
4.2. The description of goods in catalogues, advertising material or quotes issued by CMC does not represent a guarantee of quality or of durability in accordance with Section 443 of the German Civil Code (BGB), unless an indication or agreement has expressly been made to the contrary.
4.3. At the point when the customer hands over their contractual offer, the customer is obliged to indicate expressly to CMC whether the ordered goods require a particular certification, particular tests in regard to function, quality or durability, or brand labelling, and the customer is to provide CMC with the relevant paperwork concerning such certifications, tests or labelling.
4.4. The customer is to examine the goods and their packaging immediately on delivery, according to standard business practice.
4.5. Complaints regarding visible defects, quantity or the assortment of goods delivered are to be made within 3 days of receipt of the goods in writing to CMC, along with justification for the complaint. The customer is not released from their obligation to payment on account of these complaints.
4.6. In the case of justified complaints, CMC will perform follow-up deliveries for any missing quantities and, in other cases, at their discretion, CMC will either rectify the problem, deliver replacement goods or give the customer a price reduction.
4.7. CMC cannot accept any liability for damages which could have been avoided if the customer had complied with their obligation to examine goods.
4.8. Insofar as damages occur despite compliance on the part of the customer with their obligation to examine the goods and give notice of defects, CMC will only accept liability if they were caused with intent or through gross negligence. In this case, liability is limited to foreseeable damage arising as a result of this breach of obligation.
5. Force majeure
5.1. War, strike, lock-outs, shortage of raw materials and energy, unpredictable disruptions to operations or to traffic, fire damage, flooding, acts of higher authorities – also insofar as they make the carrying out of the affected business transaction uneconomic for the foreseeable future – as well as all other cases of force majeure, also those affecting their suppliers, shall be considered to release CMC from the obligation to deliver for the duration of the disruption and to the extent of its effects.
5.2. Such events give CMC the right to withdraw from the contract completely or partially, without the customer having the right to compensation.
6.1. Prices quoted are net from the place of business of CMC, with the addition of any Value Added Tax which is due at the statutory rate applicable in each case.
6.2. Invoices will be issued on the day of delivery of the goods. Provided no other arrangement has been made in writing in any individual case, they are – even in the case of partial deliveries – payable to CMC within 30 days of the invoice date without deductions. Payment is not considered to have been effected until CMC can freely access the funds; fees, discounts, collection charges and all other ancillary payment costs are to be paid by the customer. With the first delivery or in the case of an unusual increase in the ordered quantity in comparison to previous deliveries, it may be that payment in advance or cash on delivery is requested.
6.3. The deduction of discounts or reductions is not permitted without an express agreement to this effect.
6.4. Payments made by the customer shall first be used to cover costs and interest already incurred, and then the oldest outstanding debt. If there is any significant deterioration in the creditworthiness of the customer, this shall be considered to provide justification for CMC to request advance payments or security deposits.
6.5. In the case of a late payment, while also reserving the right to assert further claims for damage due to the delay, interest on arrears of 8 percentage points above the base interest rate at the time will be charged.
6.6. In the case of late payment/payment default by the customer, CMC is entitled to hold back further deliveries, likewise in the case of a material deterioration in the financial situation of the customer in the period following the conclusion of the contract, or in the case that false declarations concerning the creditworthiness of the customer have been made when concluding the contract. In this case, CMC is also entitled to revoke any periods granted for payment and to demand the immediate settlement of all unpaid invoices.
6.7. In the case of non-acceptance of ordered goods or if goods are withheld on account of delays in payment, then CMC is entitled to demand, as a flat-rate payment for damages, 30% of the value of goods which are already in progress or are finished, and 15% of the value of final remainders that have not yet been called up, to cover costs that have arisen, raw material price risks and lost profits. The customer is free to demonstrate and provide evidence that the damages suffered by CMC are lower than this figure.
6.8. Under no circumstances does the customer have the right to offset payments with counter-claims or to exercise a right of retention on the funds, unless their counter-claim has been recognised by CMC or has been established to be legally enforceable. The customer may, under no circumstances, offset payments with assigned claims.
7. Retention of title
7.1. Until the purchase price has been paid in full, the goods shall remain under the ownership of CMC. If the customer is a businessperson, then the goods remain the property of CMC up until the settlement of all claims of CMC in respect of the customer which arise from the business relationship, until the balance has been settled. In the absence of an agreement stating otherwise, payments are charged in the following order: costs, interest payments, principal amount.
7.2. The customer is entitled to dispose over the goods within the framework of a proper and correct business transaction. Other dispositions, in particular pledging the goods or using them as security, or relinquishing them by way of exchange to third parties, are not permitted. CMC is to be notified immediately in writing of any legally enforced seizures of goods undertaken by third parties or other impairments of the goods, together with a photocopy of the full court seizure record and/or any other evidence. Insofar as CMC takes back the goods on account of the risk of loss or damage or any other inappropriate handling, this does not constitute a withdrawal from the contract. Intervention costs that arise for CMC as a result are to be paid by the customer.
7.3. Claims of the customer from the selling on of goods to a third party shall be assigned to CMC in advance. If the goods are sold by the customer together with other items, then the assignment of the purchase price claim will be limited to the value of the goods delivered by CMC. The customer is authorised, until this right is revoked, to collect the amount receivable from the resale, within the framework of a proper and correct business operation.
7.4. Upon request, the customer is to provide details of the debtor of the assigned claims to CMC and to disclose the assignment of the debt.
7.5. If the value of the security provided to CMC exceeds the total claims by more than 20%, then CMC undertakes, at the request of the customer, to release fully paid up goods at the discretion of CMC.
8. Rights of the customer in the case of defective goods
8.1. For one year after delivery of the goods, CMC shall bear liability for the goods being free from defects which would annul or considerably reduce the fitness for use of the goods when used or operated under normal circumstances. Defects which arise through wear and tear, or through a lack of maintenance or incorrect maintenance, will not be recognised, even if these defects arise during the first year after delivery. Furthermore, defects will not be recognised that – not on account of any conduct on the part of CMC – have been caused by improper or incorrect handling, incorrect assembly or commissioning by the customer or a third party, unauthorised modifications or similar circumstances within the sphere of influence of the customer.
8.2. A particular quality/characteristic of the goods sold by CMC or its suitability for a particular use cannot be considered to have been agreed upon unless a separate written agreement has expressly been drawn up by the contractual parties.
8.3. Notifications of defects and complaints of any kind must be made immediately. In particular, complaints regarding obvious defects are to be issued in writing within 3 days of the goods being handed over.
8.4. If complaints are not issued or are delayed, then warranty claims against CMC are excluded.
8.5. Claims on account of defective goods are limited to the remedying of the fault and indeed, at the discretion of CMC, to the right to either have the problem rectified and/or to receive a replacement. CMC is to be granted a reasonable period of time and sufficient opportunity to remedy the problem. Should CMC be denied such opportunity and time, then CMC is to this extent freed from their obligation to rectify the problem and from further claims for defects. The customer only has right to withdraw from the contract or to a reduction in the purchase price if repeated attempts at rectification and/or replacement deliveries by CMC have failed. In the case of withdrawal from the contract or of an agreed exchange of the goods, CMC is entitled to ask for an appropriate sum as compensation for use and/or compensation of value.
8.6. Claims for compensation or reimbursement of expenses made against CMC may only be made in the case of intent or gross negligence. Liability for remote and/or consequential damages is excluded.
8.7. The remedying of issues and other claims in regard to defects do not extend to natural wear and tear or to damages that arise after the transfer of risk as a result of incorrect or negligent handling of the goods, excessive use or loading, the use of unsuitable operating materials or on account of particular external influences which were not to be presupposed according to the object and purpose of the contract, or which can be traced back to improperly carried out modifications or repair measures on the part of the customer.
8.8. The provisions of Sections 478 and 479 of the German Civil Code (BGB) concerning claims to recourse remain unaffected providing that compensation is only required to be paid by CMC in the case that the deficits are the result of intent or grossly negligent conduct on the part of CMC and/or the damages are a matter of injury to life, limb or health.
8.9. The customer is not entitled to assign their warranty claims against CMC to a third party.
9. Liability in the case of injury to life, limb or health and in the case of intent or gross negligence.
9.1. In the case of injury to life, limb or health which arises as a result of a negligent breach of duty on the part of CMC, or an intentional or negligent breach of duty on the part of a legal representative or vicarious agent of CMC, the exclusion limitations and liability limitations cited above under point 8 shall not apply.
9.2. The same applies in the case of a breach of a cardinal obligation in the contract, as well as in cases where mandatory liability is required by law.
10. Intangible rights, damage to the business
10.1. With respect to all illustrations of its goods in catalogues, flyers and on the internet, CMC either holds the copyright or the corresponding licence for the images. Furthermore, the names and logo of CMC are intangible legal assets protected by law.
10.2. For the purposes of the sale of CMC goods, the customer is permitted to use images of the goods that have been derived from CMC sales materials or from images on the internet, provided and as long as their conduct within the framework of the business relationship with CMC is in compliance with the terms of their contract. This entitlement of the customer may be revoked at any time by CMC.
10.3. CMC reserves the right as a distributor of high-quality goods to take proceedings in the case that damage is done to their business or to their reputation on the instigation of customers, in particular through price dumping.
11. Applicable law, place of fulfilment, place of jurisdiction, written form
11.1. The legal relationship between CMC and third parties is subject exclusively to German law. International purchase law shall not apply.
11.2. The exclusive place of fulfilment for the obligations of both parties shall be the registered seat of CMC.
11.3. The exclusive place of jurisdiction for the obligations of both parties shall be the registered seat of CMC.
11.4. Changes, additions, complete or partial annulment on account of any agreements must be in writing in order to be considered effective. This also applies to this clause itself. Supplementary agreements made verbally – including those made before concluding the contract – shall not be considered valid.
12. Severability clause
12.1. The invalidity of any individual contractual provision shall not result in the invalidity of the contract as a whole.
12.2. The invalid provisions are to be replaced by the legally valid provisions which the parties would have chosen if they had known about the legal situation at the time of the conclusion of the contract, taking into consideration the intent and purpose of these terms and conditions, in order to achieve the striven-for economic success. Otherwise the statutory provisions shall apply.
Valid as of 01.05.2011