More InformationGeneral terms for the supply of products and services of the Electrical and Electronics Industry for use in commercial transactions between businesses
Recommended by the German electrical and electronic manufacturer's association ( Zentralverband der Elektrotechnik- und Elektronikindustrie e. V. )
- As of January 2002 -
I. General Provisions
1. The scope of deliveries and/or services ( hereinafter referred to as "Supplies" ) shall be determined by the written declarations of both Parties. The Purchaser's general terms and conditions shall only apply to the extent expressly confirmed in writing by supplier or service provider ( hereinafter referred to as "Supplier" ).
2. The Supplier herewith reserves any industrial property rights and/or copyrights pertaining to its cost estimates, drawings and other documents ( hereinafter referred to as "Documents" ). The Documents shall not be made accessible to third parties without the Supplier's prior consent and shall, upon request, be returned without undue delay to the Supplier if the contract is not awarded to the Supplier. The clauses 1 and 2 apply to Purchaser's documents accordingly; they may be made accessible to those third parties whom the Supplier has authorized to make deliveries.
3. The Purchaser shall have the non-exclusive right to use standard software, provided that it remains unchanged, is used within the agreed performance parameters, and on the agreed equipment. The Purchaser may make a backup copy without express agreement.
4. Partial Supplies are acceptable as long as they are reasonable to the customer.
II. Prices and Terms of Payment
1. Prices shall be ex works and exclude packaging; value added tax shall be added at the then applicable rate.
2. If the Supplier is also responsible for assembly or installation and unless otherwise agreed, the Purchaser shall pay the agreed remuneration and any incidental costs required, e. g. travel costs, costs for the transport of tools and equipment, and personal luggage as well as allowances.
3. Payments are payable free of any charges to the Supplier's designated account.
4. The Purchaser may only offset against claims that are undisputed or have been determined to be legally valid.
III. Reservation of Title
1. Items pertaining to the Supplies ( "Retained Goods" ) shall remain the property of the Supplier until each and every claim the Supplier has against the Purchaser on account of the business connection has been fulfilled. If the value of the security rights given to the Supplier exceeds the amount of all claims by more than 20%, the Supplier shall at the request of the Purchaser release a corresponding portion of the security rights.
2. For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible 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 fulfilling its obligation to effect payment.
3. The Purchaser shall inform the Supplier forthwith of any seizure or other act of intervention by third parties.
4. Where the Purchaser fails to fulfill its duties, including failure to make payments due, the Supplier shall be entitled to cancel the contract and take back the Retained Goods in the case of continued failure following expiry of a reasonable time set by the Supplier; the statutory provisions that a time limit is not needed remain unaffected. The Purchaser shall be obliged to return the goods.
IV. Delivery Times, Delays
1. Meeting of the delivery deadlines shall require on-time receipt of all documents, approvals, and releases, in particular of drawings, to be furnished by the customer as well as observance of agreed payment conditions and fulfilment of further obligations by the customer. Unless these conditions are fulfilled in time, times set shall be extended appropriately; this shall not apply where the Supplier is responsible for the delay.
2. Should deadlines not be met due to force majeure, such as mobilization, state of war, public unrest, or similar events like strikes or lock-outs, adequate extensions of time shall be granted.
3. If the Supplier is responsible for the delay (hereinafter referred to as Delay) and the Purchaser demonstrably suffered a loss therefrom, the Purchaser may claim a compensation as liquidated damages of 0.5 % for every completed week of Delay, but in no case more than a total of 5% of the price of that part of the Supplies which because of the Delay could not be put to the intended use.
4. Purchaser's claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above shall be excluded in all cases of delayed Supplies even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of mandatory liability based on intent, gross negligence, or due to injury of life, body or health. Cancellation of the contract by the Purchaser based on statute shall be limited to cases where the Supplier is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
5. At the Supplier's request the Purchaser shall declare within a reasonable period of time whether the Purchaser cancels the contract due to the delayed Supplies or insists on the Supplies to be carried out.
6. If dispatch or shipment is delayed at the Purchaser's request by more than one month after notice of the readiness for dispatch was given, the Purchaser may be charged, for every month commenced, storage costs of 0.5% of the price of the items of the Supplies, but in no case more than a total of 5 %. The contracting parties will be free to provide proof of higher or lower storage costs.
V. Passing of Risk
1. In case of deliveries which are made freight prepaid the risk will also be transferred to the customer as follows:
a) if the Supplies do not include assembly or erection, at the time when the Supplies are shipped or picked up by the carrier. At the orderer's request and expense, deliveries are insured by us against customary transport risks;
b) for deliveries with assembly or installation, on the date of acceptance at the buyer's own business premises or - subject to agreement - after a completely successful trial run.
2. In the case that shipment or delivery or the start or execution of the installation or assembly or the acceptance in the customer's facilities or the test run should be delayed for reasons the customer is responsible for or if acceptance should be delayed by the customer for any other reason, risk shall pass to the customer.
VI. Assembly and Installation
Unless otherwise agreed in writing, assembly/installation shall be subject to the following provisions:
1. The Purchaser shall provide at its own expense and in good time:
a) all earthwork, construction work or other ancillary work not customary in the branch of business, to include all required skilled and support personnel, construction materials and tools,
b) the equipment and materials necessary for assembly and commissioning such as scaffolding, lifting equipment and other devices as well as 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 on the assembly site for storing the machine parts, apparatus, materials, tools etc and suitable working and leisure rooms for the assembly personnel, including suitable sanitary facilities appropriate to the circumstances; furthermore, the purchaser shall undertake action to protect the property of the Supplier and assembly personnel on the building site as it would to protect its own property,
e) protective clothing and protective devices necessary due to special circumstances at the assembly place.
2. Prior to the commencement of assembly work the Purchaser shall automatically make available necessary details concerning the location of concealed electricity cables, gas pipes and water pipes or similar details as well as necessary static data.
3. Prior to the commencement of the installation or assembly work all provisions of materials and items requested for the commencement of the work must be available at the installation or assembly site, and all preliminary work must have progressed so far prior to the installation, that the installation or assembly may be commenced as agreed upon and be carried out without interruption. Access routes and the installation or assembly site have to be levelled and cleared.
4. In the case that installation, assembly, or commissioning should be delayed for reasons that we are not responsible for, the customer shall have to bear our reasonable cost of waiting and any additionally required travelling, or of our assembly staff.
5. The Purchaser shall certify on a weekly basis the respective working hours of the assembly staff and the Purchaser will also certify without delay the completion of the installation, assembly or commissioning and submit such certificates to the supplier.
6. Should the Supplier request formal acceptance of the Supplies after completion of the work, the Customer shall comply within a period of two weeks. If not done, acceptance is considered effected. The acceptance is also deemed to be executed when the Supplies are put to use - if appropriate, upon the completion of an agreed test phase.
VII. Acceptance
The purchaser may not refuse acceptance of Supplies due to minor defects.
VIII. Material Defects
The Supplier shall be liable for material defects as follows:
1. All parts or services where a Defect becomes apparent within the limitation period shall, at the discretion of the Supplier, be repaired, replaced or provided again free of charge irrespective of the hours of operation elapsed, provided that the reason for the Defect had already existed at the time of the risk passage.
2. Claims based on Defects are subject to a limitation period of 12 months. This provision shall not apply where longer periods are prescribed by law according to Sec. 438 para. 1 No. 2 ( buildings and things used for a building ), Sec. 479 para. 1 ( right of recourse ), and Sec. 634a para. 1 No. 2 ( defects of a building ) German Civil Code ( BGB ), as well as in cases of injury of life, body or health, or where the Supplier intentionally or grossly negligently fails to fulfill its obligation or fraudulently conceals a Defect. The legal provisions regarding suspension of expiration (Ablaufhemmung), suspension (Hemmung) and recommencement of limitation periods remain unaffected.
3. The Purchaser shall notify the Supplier in writing of material defects without delay.
4. In case of material defects the customer shall be entitled to withhold payments up to an amount which is deemed appropriate in relation to the material defects arisen. The Purchaser may only withhold payments, if there is no doubt that the notice of defects given is justified. The Supplier may require the Purchaser to reimburse the expenses arising from cases where the notification of defect is unjustifiable.
5. The Supplier shall first be given the opportunity supplementary performance within a reasonable period of time.
6. Should the supplementary performance fail, then the buyer can irrespective of any damage compensation claims according to article XI withdraw from the contract or diminish the remuneration.
7. The Purchaser shall not be entitled to assert any claim for defects in case of only minor deviation from the agreed condition of the Supplies or in case of inconsiderable impairment of serviceability or for damages that have occurred after passage of risk through incorrect or negligent handling, excessive use, inappropriate operating materials, defective construction works, or inappropriate building ground or owing to particular exterior influences that had not been provided in this contract, as well as in case of non-reproducible software defects. Claim based on defects attributable to improper modifications or repair work carried out by the Purchaser or third parties and the consequences thereof shall be likewise excluded.
8. The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel and transport, labour, and material, to the extent that expenses are increased because the subject-matter of the Supplies was subsequently brought to another location than the Purchaser's branch office, unless doing so complies with the intended use of the Supplies.
9. The Purchaser's right of recourse against the Supplier pursuant to Sec. 478 BGB is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects. As for the extent of the claim of the Purchaser against the supplier as a result of the right of recourse paragraph 8 shall be applicable accordingly.
10.As for the right to claim damages Section XI ( Other Damage Claims ) shall be applicable. Further-reaching claims or claims other than those regulated in this Section VIII filed by the Purchaser against the Supplier and his vicarious agents on account of a material defect are precluded.
IX. Industrial Property Rights and Copyright; Defects of Title
1. Unless otherwise agreed, the Supplier shall provide the Supplies free from third parties' industrial property rights and copyrights with respect to the country of the place of destination. If a third party files justified claims against the Purchaser by reason of the infringement of Protective Rights through contractually utilized deliveries rendered by the Supplier, the Supplier is liable towards the Purchaser within the term specified in Section VIII, point 2 as follows:
a) The Supplier shall choose whether to acquire, at its own expense, the right to use the industrial property rights with respect to the Supplies concerned or whether to modify the Supplies such that they no longer infringe the industrial property rights or replace them. If this would be unreasonable to demand from the Supplier, the Purchaser may cancel the contract or reduce the remuneration pursuant to the applicable statutory provisions.
b) The Supplier's liability to pay compensation conforms with Section XI.
c) The obligations of the supplier mentioned above will only be applicable, in as far as the Purchaser informs the Supplier immediately in writing of any asserted claims by a third party, if and when the Purchaser does not acknowledge such a violation, and in as far as all defense measures and out-of-court settlements are reserved to the Supplier. If the Purchaser stops using the Supplies in order to reduce the damage or for other good reason, it shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.
2. Claims of the Purchaser shall be excluded if it is itself responsible for the infringement of industrial property rights.
3. Claims of the Purchaser shall also be excluded if the infringement of the industrial property rights is caused by specifications made by the Purchaser, to a type of use not foreseeable by the Supplier or to the Supplies being modified by the Purchaser or being used together with products not provided by the Supplier.
4. In the event of Protective Rights being infringed, claims on the part of the Purchaser regulated in point 1 a) are subject to the provisions of Section VIII, points 4, 5 and 9.
5. In case of other defects of title, the provisions of Section VIII apply accordingly.
6. Further-reaching claims or claims other than those regulated in this Section IX filed by the Purchaser against the Supplier and his vicarious agents on account of a defect of title are precluded.
X. Impossibility, Adjustment of Contract
1. To the extent that Supplies are impossible to be carried out, the Purchaser shall be entitled to claim compensation for damages, unless the Supplier is not responsible for the impossibility. The Purchaser's claim for damages shall, however, be limited to an amount of 10 % of the value of the part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of mandatory liability based on intent, gross negligence or injury of life, body or health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The right of the Purchaser to cancel the contract shall remain unaffected.
2. In so far as unforeseeable events in terms of Section IV, point 2 change the economic significance or the content of the delivery substantially or have a substantial impact on the operations of the Supplier, the contract will be adequately adapted in good faith. Should this not be economically feasible, the Supplier shall have the right to cancel the contract. If the Supplier intends to exercise its right to cancel the contract, it shall notify the Purchaser thereof without undue delay after recognising the implications of the circumstances; this shall also apply even where an extension of the delivery period had previously been agreed with the Purchaser.
XI. Other Claims for Compensation
1. Claims for damages and compensation for expenses by the Purchaser ( hereinafter referred to as "Claims for Damages" ), regardless of the legal basis, in particular due to breach of duties resulting from the contractual obligation and from unlawful actions are excluded.
2. This shall not apply insofar as a liability is mandatory, e.g. according to the Product Liability Act, in cases of wilful intent, gross negligence, due to injury to life, the body or even impairment of health, due to the breach of essential contractual duties. The claim to damages for the neglect of essential contractual obligations is limited to foreseeable damage specific to contracts unless it is a case of premeditation, gross negligence or unless liability is obligatory because of damage to life, bodily injury or damage to health. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
3. To the extent that the Purchaser has a valid Claim for Damages according to this Secion XI, it shall be time-barred upon expiration of the limitation period applicable to Defects pursuant to Section VIII, point 2. Claims for damages under the Product Liability Act shall be covered by the statute of limitations.
XII. Place of jurisdiction and applicable law
1. If the Purchaser is a businessperson, sole venue for all disputes arising directly or indirectly out of the contract shall be the Supplier's place of business. However, the Supplier is also entitled to file a suit at the Purchaser's place of business.
2. Legal relations existing in connection with this contract shall be governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods ( CISG ).
XIII. Binding nature of the contract
The contract remains binding with respect to its remaining parts even if individual provisions are legally ineffective. This shall not apply if adherence to the contract would constitute unreasonable hardship for one of the parties.