for use in business transactions with commercial enterprises
Non-binding recommended conditions of the Zentralverband Elektrotechnik- und Elektronikindustrie (ZVEI) e.V.
- version of January 2002 -
I. General conditions
1. The written declarations by both contractual parties shall be authoritative for the scope of the supply of goods or services (hereinafter referred to as “Supplies”). The General Terms and Conditions of the Purchaser shall, however, only be valid insofar as the supplier or service provider (hereinafter referred to as “Supplier”) has explicitly agreed thereto in writing.
2. The Supplier shall reserve his unlimited rights of ownership and copyright exploitation rights to estimates, drawings and other documentation (hereinafter referred to as “Documentation”). The Documentation shall only be made accessible to third persons with the prior consent of the Supplier and, if the order is not placed with the Supplier, it shall be returned to the Supplier immediately upon request. Clauses 1 and 2 shall be valid accordingly for Documentation of the Purchaser; this may however be made accessible to third persons to whom the Supplier has permissibly transferred Supplies.
3. The Purchaser shall have the non-exclusive right to standard software for use with the agreed features in unchanged form on the agreed devices. The Purchaser shall be authorised to make a back-up copy without obtaining explicit agreement.
4. Partial Supplies shall be permissible insofar as they are acceptable to the Purchaser.
II. Prices, and terms and conditions of payment
1. The prices shall be quoted ex-works excluding packaging, plus the respectively valid statutory value-added tax.
2. If the Supplier is also responsible for the installation or assembly, and if nothing to the contrary has been agreed, the Purchaser shall pay, in addition to the agreed remuneration, all the necessary ancillary costs such as travel expenses, transportation costs for the tools and personal gear, as well as daily allowances.
3. Payments shall be effected free Supplier’s accounts office.
4. The Purchaser may only set off undisputed claims, or claims against which no legal recourse is possible.
III. Retention of title
1. The goods Supplies (goods subject to retained ownership) shall remain the property of the Supplier until all claims against the Purchaser, to which the Supplier is entitled as a result of the business relationship, have been settled. If the combined value of the security interests of the Supplier exceeds the value of all the secured claims by more than 20%, the Supplier shall release a corresponding part of the security interests if so requested by the Purchaser.
2. For the duration of the retention of title, the Purchaser shall not pledge the retained goods or use them as security, and resale shall be permissible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of property to the customer dependent upon the customer having fulfilled its obligations to effect payment.
3. In the event of attachments, seizures or other official orders or interventions by third parties, the Purchaser shall inform the Supplier immediately thereof.
4. Should the Purchaser fail to comply, in particular, by not effecting payment by the agreed date, the Supplier shall be entitled to withdraw from the contract and to recover the items supplied if the Purchaser fails to provide remedy within a reasonable period of time stipulated by the Supplier; the provisions of the law regarding the possibility of dispensing with the fixing of a time limit shall remain unaffected. The Purchaser shall be obligated to return the items.
IV. Time limits for Supplies; delay
1. The observance of the agreed time limits for Supplies presupposes the prompt receipt of all the Documentation to be delivered by the Purchaser, as well as the required authorisations and releases, in particular of plans, and also the Purchaser’s observance of the agreed terms and conditions of payment and other obligations. Unless these conditions are fulfilled in time, the time limits set shall be extended accordingly; this shall not apply where the Supplier is responsible for the delay.
2. If non-observance of the time limits for delivery are due to force majeure, such as mobilisation, war, riot or similar events, e.g. strike or lockout, these time limits shall be extended accordingly.
3. Should the Supplier be in default of delivery, the Purchaser may – subject to satisfactory evidence that he has suffered damage as a result of this – demand 0.5% compensation for each full week of the default, but not more in total than 5% of the price for the part of the Supplies which could not be put to appropriate use on account of the default.
4. Both claims for damages by the Purchaser due to a delay in delivery and claims for damages in lieu of performance that go beyond the limits specified under No. 3 shall be excluded in all cases of delayed delivery, even after the expiry of a delivery deadline the Supplier has possibly been set. This shall not apply insofar as mandatory liability is involved, for example in cases of wilful intent, gross negligence or due to fatal injury, bodily injury or damage to health. The Purchaser may only withdraw from the contract in accordance with the statutory provisions insofar as the Supplier is responsible for the delay in delivery. The afore-mentioned regulations shall not involve a modification of the burden of proof to the detriment of the Purchaser.
5. The Purchaser undertakes, at the Supplier’s request, to state within a reasonable period of time whether it wishes to withdraw from the contract as a result of the delay, or whether it insists on the supply being effected.
6. If, at the Purchaser’s request, the dispatch or delivery is delayed by more than one month after notice has been given that the goods are ready for dispatch, the Purchaser may be charged storage costs for each commencing month to the amount of 0.5% of the price of the items in the Supplies, but no more than a total of 5%. The contracting parties shall have the right to provide evidence of higher or lower storage costs.
V. Passing of risk
1. Even where goods are delivered freight paid, the risk shall pass to the Purchaser as follows:
a) for Supplies that do not include installation or assembly on being made available for shipment or on collection. At the Purchaser’s request and expense, Supplies are insured by the Supplier against customary transport risks;
b) for Supplies that include installation or assembly, on the day of acceptance in the Purchaser's own facility or, if so agreed, after a perfect trial run.
2. The risk shall pass to the Purchaser if the dispatch, delivery, start, performance of the installation or assembly, the acceptance in the Purchaser’s own works, or the trial run is delayed for reasons for which the Purchaser is responsible, or if the Purchaser is in default of acceptance for other reasons.
VI. Installation and assembly
The following provisions shall apply for the installation and assembly unless otherwise agreed to in writing:
1. The Purchaser shall bear the costs for, and timely provide:
a) all earth-moving and construction work and other ancillary services not specific to the Supplier’s trade, including the necessary skilled and unskilled labour, materials and tools,
b) the required equipment and consumables necessary for assembly and commissioning, such as scaffolding, lifting gear and other devices, fuels and lubricants,
c) energy and water at the point of use, including connections, heating and lighting,
d) sufficiently large, suitable, dry and lockable rooms at the place of assembly for storing machine components, apparatus, materials and tools, etc., and suitable work and staff-rooms for the assembly personnel, including suitable sanitary facilities according to the circumstances; furthermore, the Purchaser shall take the same measures on the building site for protecting the assets of the Supplier and its assembly personnel, that it would take for protecting its own assets,
e) protective clothing and protective devices necessitated by the particular circumstances of the assembly site.
2. Prior to commencement of the assembly work, the Purchaser shall provide all the necessary information concerning the locations of concealed electricity, gas and water supply cables and pipes or similar installations, as well as the required statistical information without being explicitly requested to do so.
3. Prior to commencement of the installation or assembly, the provisions and items required for commencing the work shall be given at the place of installation or assembly, and all the preliminary work must have progressed so far, prior to commencing the construction, that the installation or assembly can be started according to the agreement and be performed without interruption. The approach routes and the installation or assembly site must already have been levelled off and cleared.
4. If installation, assembly or commissioning is delayed due to circumstances beyond the control of the Supplier, the Purchaser shall bear, to a reasonable extent, the costs incurred for waiting time and any additionally required travel expenses of the Supplier or the assembly personnel.
5. The Purchaser shall provide the Supplier with weekly information on the duration of the working hours of the assembly personnel, and shall immediately confirm the completion of the installation, assembly or commissioning.
6. Should the Supplier request acceptance of the Supplies after completion, the Purchaser shall comply therewith within a period of two weeks. Should this not take place, the acceptance shall be deemed as completed. The acceptance shall also be deemed as having taken place if the Supplies – if applicable after completion of an agreed test phase – have been brought into use.
The Purchaser shall not be entitled to refuse the receipt of Supplies due to minor defects.
VIII. Material defects
The Supplier shall be liable for material defects as follows:
1. At the discretion of the Supplier all the parts or services showing a material defect within the limitation period – irrespective of the hours of operation – shall be remedied, re-delivered or re-performed free of charge, accordingly, provided that the cause thereof had already existed prior to the passing of risk.
2. Warranty claims due to material defects shall expire after 12 months. This shall not be valid insofar as longer periods are stipulated by law pursuant to Articles 438 para. 1 No. 2 (building structures and components for building structures), 479 para. 1 (claims asserting a right of recourse) and 634a para. 1 No. 2 (construction defects) German Civil Code (“BGB”), and in cases of fatal injury, bodily injury or damage to health, or where the Supplier wilfully, or as a result of gross negligence, fails to fulfil its obligation or fraudulently conceals a defect. The legal provisions concerning the suspension, interruption and renewed beginning of the deadlines shall remain unaffected thereby.
3. The Purchaser shall immediately be required to give written notice of defects to the Supplier.
4. In the case of complaints, the Purchaser shall be entitled to withhold payments commensurate with the material defects that have arisen. The Purchaser shall only withhold payments, if there can be no doubt that the notice of defects given is justified. If the complaint was lodged unjustifiably, the Supplier shall be entitled to claim compensation from the Purchaser for the expenses incurred to him.
5. The Supplier shall first be given the opportunity for subsequent performance (“Nacherfüllung”) within a reasonable period of time.
6. If subsequent performance fails, the Purchaser – notwithstanding possible claims for damages pursuant to Art. XI – may withdraw from the contract or reduce the remuneration.
7. Claims for defects shall not apply if there is only a minor deviation from the agreed quality of the goods, only a minor impairment of the usability, natural wear and tear, or damage that occurred after the passing of risk due to improper or careless handing as a result of undue strain, unsuitable operating resources, faulty construction work, unsuitable subsoil, or due to special external influences which had not been taken into consideration in the contract, nor in the case of non-reproducible software errors. If modifications, maintenance or repairs are carried out improperly by the Purchaser or third parties, they shall have no right to claim damages for defects or consequential damages in respect of the consequences thereof.
8. Any claims asserted by the Purchaser as a result of the expenditure required for subsequent performance, in particular for the cost of transportation, travelling, labour and material, shall be ruled out insofar as this expenditure increased as a result of the object of delivery having been subsequently transported to a place other than the Purchaser’s premises, unless such transportation complies with its intended use.
9. Any claims asserting a right of recourse of the Purchaser against the Supplier pursuant to Art. 478 BGB (German Civil Code) (recourse of the entrepreneur) shall only be lodged to the extent that the Purchaser has not made any arrangements with its customers beyond the scope of legal claims for defects. Moreover, No. 8 shall apply mutatis mutandis to the scope of the claim asserting a right of recourse that the Purchaser has against the Supplier pursuant to Art. 478 para. 2 BGB.
10. For any further claims for damages, Art XI (other claims for damages) shall apply. Any other claims of the Purchaser against the Supplier and its vicarious agents or any such claims beyond those provided for in this Art. VIII due to a material defect, shall be excluded.
IX. Industrial property rights and copyrights; defects of title
1. Unless otherwise agreed, the Supplier undertakes to carry out the delivery solely in the country of the point of delivery, free of industrial property rights and copyrights of third parties (hereinafter referred to as “Property Rights”). Insofar as a third party asserts justified claims on the grounds of a breach of Property Rights against the Purchaser with respect to Supplies provided by the Supplier for contractually agreed purposes, the latter shall be liable to the Purchaser within the period stipulated in Art. VIII No. 2, as follows:
a) The Supplier shall, at its own discretion and at its own expense, either acquire a utilisation right for the Supplies concerned, modify them such that they no longer infringe the Property Right, or replace them. Should this not be possible for the Supplier under reasonable conditions, the Purchaser shall be entitled to the statutory rights of rescission or reduced remuneration.
b) The liability of the Supplier to pay damages shall be governed by Art. XI.
c) The above obligations of the Supplier shall only apply insofar as the Purchaser immediately notifies the Supplier in writing of any claims asserted by a third party, does not concede the existence of an infringement, and leaves any protective measures and settlement negotiations to the discretion of the Supplier. If the Purchaser suspends the use of the supply for reasons of minimising damages or for other important reasons, it undertakes to inform the third party that the suspension of use does not involve any acknowledgement of an infringement of a Property Right.
2. Claims of the Purchaser shall be excluded insofar as it is responsible for the infringement of the Property Right.
3. Claims by the Purchaser shall also be excluded in cases where the infringement of the Property Right is caused by special specifications on the part of the Purchaser, by a type of application not envisaged by the Supplier, or by the fact that the delivery has been modified by the Purchaser or used together with products that have not been supplied by the Supplier.
4. In the event of infringements of Property Rights, the provisions of Art. VIII Nos. 4, 5 and 9 shall otherwise apply mutatis mutandis for the claims of the Purchaser set forth in No. 1 a).
5. Should other defects of title arise, the provisions of Art. VIII shall apply mutatis mutandis.
6. Any other claims of the Purchaser against the Supplier and its vicarious agents or any such claims beyond those provided for in this Art. IX, due to a defect of title, shall be excluded.
X. Impossibility; contract modification
1. Insofar as the supply is impossible, the Purchaser shall be entitled to claim damages, unless the Supplier is not responsible for such impossibility. However, the Purchaser’s entitlement to compensation shall be restricted to 10% of the value of the part of the supply which cannot be put into appropriate operation, due to the impossibility. This restriction shall not apply in cases of mandatory liability, for example in cases of wilful intent, gross negligence or due to fatal injury, bodily injury or damage to health; it shall not involve a modification of the burden of proof to the detriment of the Purchaser. The right of the Purchaser to withdraw from the contract shall remain unaffected.
2. Insofar as any unforeseeable occurrences within the purport of Art. IV, No. 2 considerably change the economic importance, or the content of the delivery, or exercise a major influence on the operations of the Supplier, the contract shall be amended accordingly in good faith. Insofar as this is not economically justifiable, the Supplier shall have the right to withdraw from the contract. If the Supplier intends to exercise this right of rescission, it shall notify the Purchaser thereof as soon as it recognises the implications of the event, even if an extension of the delivery time had originally been agreed with the Purchaser.
XI. Other claims for damages
1. Claims for damages and expenditures by the Purchaser (hereinafter referred to as “Claims for Damages”), regardless of whatever legal grounds, in particular owing to a breach of duties arising from the contractual obligations and from tort, shall be excluded.
2. This shall not apply wherever liability is mandatory, e.g. under the Product Liability Act, in cases of wilful intent, gross negligence, due to fatal injury, bodily injury or damage to health, due to the breach of essential contractual duties. The claim for damages for the infringement of essential contractual obligations shall however be limited to the predictable damage typical for this type of contract, unless a case of wilful intent or gross negligence is given or unless liability is assumed for fatal injury, bodily injury or damage to health. The aforementioned regulations shall not involve a modification of the burden of proof to the detriment of the Purchaser.
3. Insofar as the Purchaser is entitled to Claims for Damages pursuant to this Art. XI, these Claims for Damages shall be time-barred upon expiration of the limitation period applicable to claims for material defects, pursuant to Art. VIII, No. 2. In the case of Claims for Damages in accordance with the Product Liability Act, the legal provisions relating to limitation periods shall apply.
XII. Jurisdiction and applicable law
1. If the Purchaser is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of the Supplier. The Supplier shall, however, also be entitled to take legal action at the Purchaser’s registered office.
2. For the legal relationships in connection with this contract, German substantive law shall apply with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIII. Binding nature of the contract
2. If individual provisions of this contract are legally invalid, the validity of the remaining provisions shall not be affected thereby. This shall not apply if adhering to the contract would cause unreasonable hardship to either of the parties.
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