General terms and conditions

(As per 07/1997) (following the recommended conditions of the ZVEI, Central Association of the Electrotechnical Industry)

 

I. General provisions

1.) The written declarations of both parties are decisive for the scope of deliveries or services (hereafter named deliveries). General terms and conditions of the customer are only applicable in so far as the supplier or provider (hereafter named supplier) has explicitly consented to them in writing.

2.) The supplier has the unrestricted ownership and copyright exploitation rights to quotations, drawings and other quotation documents (hereafter named documents); they shall not be made accessible to third party without the written consent of the supplier and shall be returned immediately on request, if the order is not placed. This applies accordingly to the customer's documents; these may, however, be made accessible to the third party to whom the supplier has permissibly transferred deliveries.

3.) Partial deliveries are permissible in so for as they can be expected of the customer.

II. Prices and terms of payment

1.) Our prices are ex works plus the valid VAT. They are based on the labour, material and general costs valid at the time of confirmation on the order. Should these costs change up to the day of delivery, we are entitled to increase the price accordingly, unless delivery takes place within 4 months after ordering.

For standard types, delivery is as follows: From 500 Euro net order value carriage prepaid; for special versions and retractable supply towers/hydrants ex works excluding packaging.

The packaging of special constructions, that require individual manufacture because of their exceptional dimensions, are calculated at cost price and cannot be taken back.

For orders under EUR 50  net value of goods, the discount will be reduced by 5% and for oders under EUR 10 net value of goods, the gross price will be calculated. With the exception of spare parts - parts of devices - and repairs.

2.) Payments shall be made within 30 days after the date of invoice without any discount, free paying office of the supplier. In case of payment within 14 days from date of invoice a discount of 2% will be allowed. Discount is not given on payments in arrears. Cheques will only be accepted under the usual provison. For all types of payment, the day of payment is the day on which the supplier can command the sum.

3.) The customer can only set off claims that are determined as undisputed of legally binding against the claims of the supplier.

III. Right of lien

1.) The objects of the deliveries (conditional goods) remain the property of the supplier until all claims against the customer to which he has a right arisising from the business connection are fulfilled. In so far as the value of all rights of security to which the supplier is entitled, exceeds the amount of all claims covered by a security by more than 20%, the supplier shall release a corresponding part of the rights of security at the request of the customer.

2.) As long as the right of lien exists, the customer is not entitled to pledge of goods or transfer of security and reselling is only allowed to resellers during ordinary business and only on the condition that the reseller receives payment from his customer or makes a proviso that ownership is not transferred to the customer until he has fulfilled his obligations to pay.

3.) In the event of pledges, confiscation or other provisions or infrigement of third party, the customer shall inform the supplier of same immediately.

4.) In the event of breach of duty of the customer, in particular relating to default of payment, the supplier is entitled to rescission and repossession, if the adequate period allowed to the customer has unsuccessfully expired; the legal provisions relating to the dispensability of appointment of a date remain unaffected. The customer is obliged to hand over the goods.

IV. Delivery periods

1.) The delivery period stated in the order confirmation is decisive. Compliance with the delivery period is subject to: the receipt in due time of all documents, approvals, releases, delivery from own suppliers, compliance with the payment conditions stipulated by the supplier and other obligations. If these conditions are not fulfilled in due time, the delivery period shall be adequately prolonged. The delivery period is regarded as complied with, when the goods have been dispatched or collected within the agreed delivery period.

2.) If there is evidence that non-compliance with the delivery period is due to force majeure, trade dusputes or unforeseen circumstances, the delivery period shall be adequately prolonged.

3.) If the agreed or prolonged delivery period is not complied with, the customer can demand compensation for delay for every full week of the delay of 0.5% up to a total of 5% of the value of that part of the delivery that has been suffered damage arising from the delay.

Further claims to compensation of the customer are excluded. This does not apply if urgently liable in cases of intent or gross negligence. The right of the customer to withdraw after the futile expiry of a period of grace granted by the supplier remains unaffected.

4.) Not only compensation claims of the customer due to delay of delivery but also compensation claims instead of performance, that go beyond the limits mentioned in Point 3, are excluded in all cases of delayed deliveries, even after expiry of a delivery period that the supplier has been given to deliver. This does not apply if urgently liable in cases of intent or gross negligence or due to injury to life, body or health. The customer is only entitled to rescind the contract in the course of the legal provisions as long as the suppplier justifies the delay of the delivery. A change to the onus of proof to the disadvantage of the customer is not connected to the afore mentioned provisions.

5.) The customer is obliged to declare within a appropriate period at the request of the supplier whether he will rescind the contract due to delay of delivery or to insist on delivery.

6.) Should despatch or delivery be delayed by more than one month after notification of readiness to despatch at the request of the customer, the customer can be charged with storage costs amounting to 0.5% of the price of the object of the deliveries, at the most however 5%. The contractual parties are free to decide on proof of higher or lower storage costs.

V. Passage of risk

1.) In case of carriage-free delivery, risk also passes to the customer, if the goods have been dispatched or collected. Dispatch takes place according to the instructions of the customer and/or at the discretion of the supplier without responsibility for cheapest forwarding. The consignment shall be insured by the supplier against usual transport risks at the cost of the customer.

2.) Should dispatch be delayed at the request of the customer or for reasons for which he is responsible, the risk is transferred to the customer from the day of readiness to dispatch. If the goods are taken back, the customer shall bear all risks until the supplier receives the goods.

VI. Securities

A prerequisite for the obligation to deliver is the credibility of the customer. Basically, the supplier is entitled to demand prepayment or security or cash if he regards this as necessary. Should the customer remain in arrears with the fulfilment of commitments or does not answer questions concerning his credibility, the supplier reserves the right to cancel the order and if neccessary, to claim damages due to non-fulfilment. Already delivered goods must then be returned to the supplier immediatly in their original state. Furthermore, all claims of the supplier shall become due without delay in case of execution levied upon the property of the customer, insolvency or bankruptcy proceedings, liquidation or transfer of a business as well as a pledge of all supplier claims.

VII. Taking back goods

Duly delivered goods can only be taken back within 4 weeks after delivery and with our prior written consent. For goods duly returned with our consent, we shall deduct 20% of the net invoice amount, however, at least 10 Euro per item for processing fees when issuing a credite note.

If an alteration is made to constructions that have been ordered, the customer must replace the costs that have arisen up to this time. If the goods are cancelled, the customer shall pay the refund as agreed minus the expenses saved by us as a result of the annulment of the contract. Taking back goods does not apply to special constructions.

 

VIII. Liability for defects

The supplier undertakes a guarantee that the sold goods at the time of transfer of risk do not have defects. - However, in so far as defects to parts that were traceably acquired from the supplier already existed before transfer of risk, the supplier is liable to the customer as follows:

1.) The customer is only entitled to the following warranty rights, if he has complied correctly with the obligation to inspect and complain according to §§377,378 Commercial Code and has informed the supplier immediately in writing of the established defects.

2.) All those parts or services whose usability is not only insignificantly affected within 12 months, shall be reworked or redelivered or reproduced free of charge at the option of the supplier, without consideration of the operating time, calculated from the day of transfer of risk due to an incident that occurred before the transfer of risk.

3.) Should the customer notify a defect concerning the delivered goods or service, this warrants a right to retain payment only if the determination of the existence of defects is legally binding or is not disputed by the supplier. The relationship of the retained payment to the defects that occurred must be appropriate.

4.) The customer shall afford the supplier the required time and opportunity to eliminate defects according to his discretion. Should he refuse this, the supplier is not liable for defects.

5.) If the supplier allows an adequate period of grace that has been granted to him to laps, without eliminating the defect, or if reworking is impossible or refused by the supplier, the customer has the right to claim reduction. Should an agreement not be reached between the customer and supplier as regards the reduction, the customer may demand redhibition.

6.) The right of the customer, to assert claims arising from defects, expires by limitation in all cases 6 months from the time of the complaint, however, not before expiry of the warranty period. If no agreement is reached within this period, the supplier and the customer may agree to an extension of this limitation period.

7.) The liability for defects does not refer to natural wear, neither to damage that occurs after transfer of risk due to faulty nor negligent handling, excessive or incorrect strain, unsuitable equipment, unsatisfactory construction work and other external influence of this kind that is not presumed according to the contract. If the supplier is held liable for damage as joint and several debtors by a third party for one of these reasons, the customer shall now irrevocably assume liability in the inner relationship.

It the customer or third party carries out incorrect alterations or repair work, there is no warranty for them and the ensuing consequences.

8.) The warranty period for reworking and replacement deliveries is 3 months. It lasts at least until expiry of warranty period for the defective goods.

9.) Further claims of the customer against the supplier and his vicarious agents are precluded, in particular a claim to replacement of damage that did not occur to the object of delivery itself. This does not apply unless forcibly warranted for according to the Product Liability Law with restriction as per §7, or in cases of intent or gross negligence or missing warranted qualities.

IX. Protective rights, copyrights

1.) In so far as third party asserts legitimate claims against the customer due to violation of a protective right/copyright (hereafter named protective rights) by product used according to the contract supplied by the supplier, the supplier is liable to the customer within the period determined in Art. VII No.2 as follows:

a) The supplier shall effect an usufructuary right for the product, change or replace the product or, if this is not possible under appropriate conditions, he shall take back the product and refund the purchasing price. Further claims are excluded.

b) The above mentioned obligation of the supplier only exists if the customer informs the supplier of the claims asserted by third party immediately in writing, if the customer does not recognize a violation of the protective rights and the supplier's right to all preventive measures and negotiations for settlement remains reserved.

2.) Claims of the customer are precluded in so far as he is responsible for the violation of protective rights.

3.) Claims of the customer are further precluded in so far as violations of protective rights are caused by special provisions of the customer or by an unforeseeable application of the supplier or are caused by the fact that the delivery is altered by the customer or used together with products that are not delivered by the supplier.

4.) In the event of violation of protective rights, the claims regulated in No. 1a) of the customer are applicable, for the rest the provisions of the article defects of quality No.4,5 and 9 are applicable accordingly.

5.) In the event of other defects of title, the provisions of article VII apply accordingly.

6.) Further claims or claims of the customer other than those regulated in article IX against the supplier and his vicarious agents due to a defect of title are excluded.

X. Impossibility, contract adaption

1.) If the delivery for which the supplier is responsible is impossible for a reason that he can justify, the customer is entitled to demand up to 10% of the value of the products that were not delivered as damage claims.

2.) In so far as events that the supplier do not considerably change the economical importance or the contents of the delivery to a great extent or influence the business of the supplier, the supplier has the right to withdraw from the contract or to adapt the contract accordingly in agreement with the customer.

XI. Other damage claims

Damage claims of the customer arising from positive breach of contract, from violation of obligations during the contractual negotiations and from unauthorized handling are excluded. This does not apply, in particular in case of intent, gross negligence missing warranted qualities, unless forcibly warranted according to law.

XII. Venue and applicable law

1.) Sole venue, if the customer is a tradesman is where the headquarters of the supplier are located for all disputes arising directly or indirectly from the contractual relationship. The supplier, however, is also entitled to claim at the location of the headquarters of the customer.

2.) German substantive law applies to the legal relations pertaining to this contract excluding the United Nations Convention referring to the international sale of goods (CISG)

 

 

Terms of sale, delivery and payment:

 

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