General Terms and Conditions (GTC)

General legal information

Scope of Application

These terms and conditions of delivery and payment apply to all deliveries and services by COSBER, including proposals, consultations and other ancillary services, including future deliveries.
In relation to the Client’s General Terms and Conditions, COSBER’s terms and conditions of delivery and payment shall apply exclusively; Terms and Conditions of Purchase and other terms and conditions of the Client are hereby contradicted. The objection also applies if we do not object to the terms and conditions again.

Offer and Conclusion

COSBER’s offers are always non-binding. Offers or orders of the Client shall only be deemed to have been accepted if expressly declared by COSBER. Silence in response to such an offer does not constitute acceptance.
The scope of the delivery or service is determined solely by our order confirmation and the following conditions. Changes require our express written confirmation.
These terms replace COSBER’s previous terms of delivery. They shall apply until new terms and conditions of delivery come into force, including for all future deliveries to the Purchaser.
All rights, in particular copyrights as well as exploitation and reproduction rights, remain with COSBER, unless we have transferred them to the customer on the basis of a special written agreement. The customer is only granted a right of use to use the software for the purpose contractually required or resulting from the nature of the item.

III. Prices

Unless otherwise agreed, all prices are ex works plus domestic or foreign sales tax at the respective statutory rate.
COSBER’s prices are daily list prices and are based on the current cost components for materials, wages and overheads. If the delivery takes place later than 3 months after the conclusion of the contract and the costs have changed by the day of delivery, we are entitled to invoice our then valid list prices.
Customs duties, freight, insurance premiums and other costs related to the execution of the contract will be invoiced separately to the Client.
The return of repaired goods, insofar as this is not covered by the liability for material defects, is subject to the charging of an appropriate shipping and packaging fee in addition to the remuneration for the service provided by COSBER.

Payment

Unless otherwise agreed in writing, in particular advance payments are owed or advance payments according to the progress of delivery or construction, the payments of the Purchaser are due upon receipt of the invoice within 30 days without deduction of a discount. Delivery can also be made dependent on payment step by step (e.g. cash on delivery or bank direct debit) or an advance payment.
Payment must always be made by bank transfer. Discount and collection fees as well as interest plus VAT are at the expense of the customer. In the case of bank transfers, the obligation of the customer is only fulfilled if the transfer has been made to the account specified by us.
If the customer is in default with his payment obligation in whole or in part, he shall – without prejudice to all other rights to which we are entitled – pay interest plus VAT in the amount of 9.00% above the base interest rate of the Deutsche Bundesbank p.a. on the amount still outstanding. Insofar as COSBER can charge maturity interest, the same interest rate has been agreed. The right to assert higher damages is reserved.
If the customer is in default with a payment, if he ceases his payments, if there is over-indebtedness or any other reason for insolvency, or if the opening of insolvency proceedings is applied for or if he does not honour due bills of exchange, all outstanding claims shall become due for payment immediately. The same shall apply in the event of any other significant deterioration in the economic circumstances of the purchaser. If a significant deterioration in the economic circumstances of the customer occurs, COSBER shall be entitled, at our discretion, to claim advance payments or security deposits on account of our claims under all existing contracts and to refuse performance until advance payment or security has been provided. If the Purchaser is in default with the advance payment or the provision of security, COSBER may withdraw from the contract or claim damages for non-performance after setting an appropriate grace period.
Unless otherwise agreed in writing, payments will be offset against the oldest receivable due.
The Purchaser shall only have the right to withhold payments or to offset them against counterclaims to the extent that his counterclaims are undisputed or legally established.
If the customer is entitled to warranty claims, he may only assert a legally entitled right of retention in respect of the payment owed by him in the amount of an amount that is in reasonable proportion to the reduction in value caused by the defects that have occurred.

Delivery time, delay in delivery

Delivery periods begin with the order confirmation, but not before all necessary details of the order have been clarified.
If the Client does not fulfil contractual obligations in time, COSBER shall be entitled to postpone the delivery deadlines and dates appropriately in accordance with the needs of the production process.
If COSBER is prevented from fulfilling its obligations due to unforeseen events affecting COSBER or its suppliers and which COSBER could not avert even with the reasonable care under the circumstances of the case, e.g. war, forces of nature, strikes and lockouts, other operational disruptions and delays in the delivery of necessary raw materials, the delivery time shall be extended by the duration of the hindrance by a reasonable period of time. If the obstruction makes the delivery impossible or unreasonable for COSBER, we can withdraw from the contract; the client has the same right if the acceptance cannot reasonably be expected of him due to the delay.
Partial deliveries and corresponding invoices are permissible, unless they are unreasonable for the customer.
Further rights arising from delay in delivery, in particular claims for damages on the part of the Purchaser, are excluded to the extent specified in these GTC.

Transfer of Risk and Acceptance

The risk for the delivery item shall pass from COSBER to the customer when it leaves the factory premises. This also applies if partial deliveries are made or if we have taken over other services, e.g. shipping costs or transport.
Insofar as the shipment of the delivery item is delayed as a result of circumstances for which the customer is responsible, the risk shall pass to the customer from the day of readiness for shipment. This also applies in cases where the delivery item is stored at COSBER at the request of the customer.
Delivered items must also be accepted if they have insignificant defects or if they are only partial deliveries. The rights of the customer arising from our liability for defects remain unaffected by this.

VII. Default of acceptance by the purchaser

If the customer is in default of acceptance, COSBER may refuse to perform as long as the customer has not paid the fee owed by him in full.
Furthermore, COSBER is entitled to withdraw from the contract after a reasonable grace period, which will generally not be less than 14 days, and to claim damages for non-performance. If no more than 15% of the contract sum is claimed as damage, this does not require any further proof. However, the customer reserves the right to prove that the damage is lower than this lump sum.
The other statutory rights and the assertion of further damages are expressly reserved.

VII. Retention of Title, Assignment of Claims

The delivered goods shall remain our property (reserved goods) until all claims, in particular the respective balance claims, to which COSBER is entitled against the Client in the context of the business relationship, have been met.
Processing and processing of the reserved control room are carried out for COSBER as a manufacturer within the meaning of § 950 BGB, without obliging COSBER. The worked and processed goods shall be deemed to be reserved goods within the meaning of subsection (1).
In the event of processing, combination and mixing of the goods subject to retention of title with other goods by the Client, COSBER shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If COSBER’s ownership ceases to exist as a result of combination, mixing or processing, the Client shall hereby transfer to COSBER the rights of ownership or expectation of ownership or expectation rights to the new stock or item to the extent of the invoice value of the goods subject to retention of title, in the case of processing in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used, and shall store the goods subject to retention of title free of charge for COSBER. COSBER’s co-ownership rights shall be deemed to be reserved goods within the meaning of paragraph 1.
The Client may only resell the goods subject to retention of title in the ordinary course of business, under its normal terms and conditions and as long as it is not in default, provided that it agrees with its customer on retention of title and that the claims arising from the resale pursuant to paragraphs 5 and 6 are transferred to COSBER. The Client shall not be entitled to dispose of the goods subject to retention of title in any other way. The use of the goods subject to retention of title for the performance of contracts for work and services and contracts that have as their object the delivery of goods to be manufactured or produced (“contracts for the supply of goods”) is also considered to be resale.
The Client’s receivables from the resale of the goods subject to retention of title are already assigned to COSBER; this also applies to the respective balance claims if the resale claim is placed in a current account in the amount of the resale claim. The assigned receivables serve as security to the same extent as reserved goods.
If the goods subject to retention of title are resold by the Client together with other goods not supplied by COSBER, the receivables from the resale or the respective balance receivables shall be assigned to COSBER in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods. In the event of the resale of goods in which we have co-ownership shares in accordance with paragraph 3, COSBER will be assigned a part of the receivables corresponding to our co-ownership share.
The Client shall be entitled to collect receivables from the resale or balance receivables, unless we revoke the collection authorisation in the cases referred to in Clause 3 (6). At the request of COSBER, the Client is obliged to inform its customers immediately of the assignment to COSBER – unless we do so ourselves – and to provide COSBER with the information and documents necessary for collection.
Under no circumstances shall the Client be entitled to assign the claims in any other way. This also applies to factoring transactions; the client is also not permitted to do so on the basis of the direct debit authorisation. However, we are prepared to agree to factoring transactions on a case-by-case basis, provided that the consideration from this ultimately accrues to the client and the satisfaction of our claims is not jeopardised.
The Client must notify COSBER immediately of any seizure or other impairment by third parties.
If the value of the existing collateral exceeds the secured receivables by more than ten per cent in total, we are obliged to release collateral at our discretion on the Client’s publishers’ premises.
If the retention of title is not effective under the law in whose area the goods are located, a security corresponding to the retention of title in this area shall be deemed to have been agreed. If the cooperation of the client is necessary for the creation of such rights, he must take all measures necessary to establish and maintain such rights.

VIII. Assembly, repair and maintenance
On the basis of the following regulations, we carry out agreed assembly, maintenance and repair services on the basis of the following regulations:

Insofar as advance services are to be provided by the customer, the customer is liable for the timely and professional execution on the basis of the information, sketches and other planning to be provided by us, as specified in the order confirmation. The Purchaser must ensure that his preliminary work is in accordance with the requirements of the date of installation, assembly or repair to be communicated by COSBER. The customer is responsible for backing up his data, which could be endangered by the provision of our services.
The costs of transporting the equipment to be assembled are borne by the customer, such as unloading aid, etc., unless we have agreed otherwise.
The customer must also ensure at his own expense that the premises are suitable for installation and that the necessary power connections are available.
Unless otherwise agreed, COSBER’s services will be billed according to their time and effort on the basis of the hourly rates in force at the time. Additional costs for travel to and from the event, accommodation and redemption will be charged.
The customer is obliged to immediately satisfy himself of the proper condition of the services provided by COSBER and to accept them or to complain about any defects found. The power is considered accepted when the equipment is put into operation in the workshop or business. It shall also be deemed to have been accepted if a substantiated notice of defects is not filed in writing within one month of the end of the service. This does not affect the right of the customer to report defects that become known subsequently and to demand their removal within the scope of our warranty obligation.
Replaced parts become our property without compensation.

General Limitations of Liability

Unless otherwise provided for in these Terms and Conditions, we shall only be liable for damages due to breach of contractual or non-contractual obligations or in the case of the initiation of a contract in the event of intent or gross negligence on the part of our legal representatives or vicarious agents as well as in the event of culpable breach of essential contractual obligations (cardinal obligations).
In the event of culpable breach of cardinal obligations, we shall only be liable for the foreseeable damage typical for the contract, except in cases of intent or gross negligence on the part of our legal representatives or vicarious agents.
COSBER’s liability is limited to the benefits of our business liability insurance.
In the event of culpable breach of cardinal obligations, liability is also limited to twice the contract value of the delivery that caused the damage.
The above limitations of liability do not apply in the event of injury to life, limb and health and for personal injury or damage to privately used property in accordance with the Product Liability Act.

Claims for defects

The contractual quality and freedom from defects of COSBER’s goods is determined exclusively by the express agreements on quality/properties and quantity of the ordered goods at the time of the transfer of risk.
In the case of goods that have been sold as declassified material – e.g. so-called IIa material – we are not responsible for the specified defects and for such defects that the customer usually has to expect with such material.
A warranty for a specific purpose or suitability is only assumed to the extent that this has been expressly agreed; in all other respects, the risk of suitability and use shall be borne exclusively by the Client.
COSBER is not liable for deterioration or deterioration or improper handling of the goods after the transfer of risk.
The contents of the agreed specification and any expressly agreed purpose do not constitute a guarantee; the assumption of a guarantee requires an express written agreement.
The customer must inspect received goods immediately upon receipt. Warranty rights only exist if defects are immediately reported in writing. Hidden material defects must be reported immediately after their discovery. After an agreed acceptance has been carried out, the complaint of defects that could have been detected during this acceptance is excluded.
In the event of complaints, the Client shall immediately give COSBER the opportunity to inspect the goods complained of; upon request, COSBER shall be provided with the complained goods or a sample thereof at our expense. In the event of unjustified complaints, COSBER reserves the right to charge the Client with freight and handling costs as well as the inspection costs at customary prices.
In the event of a material defect, we will provide subsequent performance at our discretion – taking into account the interests of the customer – either by replacement delivery or by rectification. If the subsequent performance by COSBER is not successfully carried out within a reasonable period of time, the Client may set COSBER a reasonable period of time for subsequent performance, after the fruitless expiry of which it can either reduce the purchase price or withdraw from the contract; further rights due to defects are excluded to the extent specified in Section X.
In the event of a defect of title, COSBER shall have the right to rectify the defect by remedying the defect within a reasonable period of time, which is usually at least two weeks from receipt of the notice of defect. In all other respects, subsection (8) shall apply mutatis mutandis.
The limitation period for claims due to material defects of movable property is, without prejudice to §§ 478, 479 of the Civil Code and unless otherwise expressly agreed between the parties, a) in the case of an item that has been used for a building in accordance with its usual use and has caused its defectiveness, three years from delivery, and b) in all other respects one year from delivery.

In addition, the statutory provisions apply with regard to the statute of limitations with regard to defects.
If the Client is entitled to recourse claims against COSBER in accordance with § 478 of the German Civil Code (BGB), these are limited to the statutory scope of the warranty claims asserted against the Client by third parties. The Client is obliged to defend against such claims – as far as possible.

Right of withdrawal of the customer

If the service incumbent on COSBER becomes impossible, the customer is entitled to withdraw from the contract. In the event of partial impossibility, the customer is only entitled to do so if the partial performance is not of interest to him. If the impossibility occurs during the default of acceptance or due to the fault of the customer, the latter remains obliged to provide the consideration.
If COSBER is in default of performance and the customer grants COSBER a reasonable grace period in accordance with § 326 of the German Civil Code (BGB) with the express declaration that he refuses to accept the service after the expiry of this period, and if the grace period is not observed due to our fault, the customer is entitled to withdraw.

XII. Own right of withdrawal due to unforeseen events
If unforeseen events within the meaning of Section V. 3 significantly change the economic significance or content of the service or have a significant effect on the operation of COSBER, COSBER has the right to withdraw from the contract.

XIII. Secrecy

The parties mutually undertake to treat the business or technical information originating from the other in the context of the initiation and execution of the contract as strictly confidential. Information that is publicly known or that we or the customer has demonstrably received from third parties without violating a confidentiality obligation are exempt from the confidentiality obligation. The confidential information received will only be used to the extent necessary to fulfil the purpose of the contract.
Any confidential information received must be returned to COSBER immediately and in full or, at COSBER’s option, demonstrably destroyed.
COSBER reserves all rights to the information (including copyrights and the right to register industrial property rights, patents, utility models, etc.).

XIV. Intellectual Property Rights

COSBER shall not be liable for claims arising from the infringement of industrial property rights or copyrights of third parties (hereinafter referred to as “property rights”) if the property right is or was owned by the purchaser or a company that directly or indirectly owns a majority of its capital or voting rights.
We are not liable for claims arising from the infringement of intellectual property rights unless at least one intellectual property right from the IP family has been published either by the European Patent Office or in one of the countries of the Federal Republic of Germany, France, Great Britain, Austria or the USA.
The Purchaser shall immediately inform COSBER of any (alleged) infringements of intellectual property rights or related risks that become known and, as far as possible, shall leave the conduct of legal disputes (including out of court) to COSBER upon request.
At COSBER’s option, the latter shall be entitled to obtain a right of use for the product infringing an intellectual property right or to modify it in such a way that it no longer infringes the intellectual property right, or to replace it with a similar product that no longer infringes the intellectual property right. If COSBER is unable to do so on reasonable terms or within a reasonable period of time, the Purchaser shall be entitled to the statutory rights of withdrawal – provided that COSBER has made it possible for COSBER to carry out a modification. Under the conditions mentioned, COSBER also has the right to withdraw. COSBER reserves the right to take the measures available to COSBER even if the infringement of intellectual property rights has not yet been legally established or acknowledged by us.
Claims of the customer are excluded if he is responsible for the infringement of intellectual property rights or if he does not support COSBER to an appropriate extent in defending against claims by third parties.
Claims of the Purchaser are also excluded if the products are manufactured in accordance with the specification or the instructions of the Purchaser or if the (alleged) infringement of the intellectual property right results from the use in combination with another object not originating from COSBER or if the products are used in a way that we could not have foreseen.
COSBER’s obligation to pay damages in the event of infringements of intellectual property rights is otherwise governed by Section X.
Further claims or claims of the customer other than those regulated in this section due to the infringement of third-party property rights are excluded.

Place of jurisdiction, place of performance and applicable law
Should any provision of these Terms be or become invalid, this shall not affect the validity of the remainder of the Terms. The contracting parties are obliged to replace the invalid provision with a provision that comes as close as possible to their economic success.
The place of performance and exclusive place of jurisdiction for deliveries and payments as well as all disputes arising between the parties is, insofar as the customer is a registered merchant, a legal entity under public law or a special fund under public law, the registered office of COSBER in Munich. However, COSBER is entitled to sue the contractual partner at its registered office.
All legal relationships arising from the business relationship shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG).