General terms and conditions of delivery

 

For products and services from the electrical industry

1. Extent of deliveries or services
1.1. The extent of the deliveries or services is determined by reciprocal declarations in writing. If a contract has been concluded without any such declarations, the written order confirmation by the supplier or provider (hitherto known as the supplier) is binding or, in the absence of this, the written order of the purchaser.
1.2. Protection devices will also be included in as far as this is mandatory or explicitly agreed.
1.3. For all deliveries the Rules and Regulations of the Association of German Electricians are binding in as far as they are valid for the security of the deliveries or services. Deviations are acceptable if security is provided for by other means.
1.4. The supplier retains the property rights and copyright to all estimates, drawings and other documents; only if the supplier agrees may they be shown to third parties. Drawings and other documents which belong to offers made, are to be returned immediately on demand. Sentences 1 and 2 are also valid for documents of the purchaser; these may be made accessible to such third parties that services or deliveries have been assigned to.
1.5. Supplements are only effective if confirmed in writing.
   
2.
Price
  Prices apply for delivery excluding assembly and installation ex factory, exclusive of packaging.
   
3. Reservation of proprietary rights
  All goods remain the property of the supplier until payment in full has been received. Until paid in full they must not be mortgaged or assigned by way of collateral. The supplier has to be notified immediately of the mortgaging of goods. Goods subject to the retention of title are processed by the supplier as a producer according to §950 BGB, without committing the supplier in any way. When processed with other goods, not belonging to the supplier, by the purchaser, the supplier retains property rights of the product in relation to the value of the goods to the total value. The accounts receivable from the resale of goods subject to the retention of title are passed to the supplier. If the goods subject to the retention of title are resold after processing, the assignation exists up to the invoice amount of the resold goods. Any rights from the retention of title remain until the complete release of any obligation the supplier entered into on behalf of the purchaser.
   
4. Terms and conditions of payment
4.1. Any payments are to be made free of any charges to the appointed paying agent
4.2. The purchaser can only offset any accounts receivable which are uncontested and legally confirmed.
   
5. Deadlines for deliveries and services
   

5.1.
The reciprocal declarations in writing determine the deadlines for deliveries and services. Section 1, 1.1., sentence 2 is valid accordingly.
5.2. The deadline is adhered to
a. on receipt of delivery without assembly and installation if the ready-to-operate delivery has been dispatched or collected within the delivery deadline. In case the dispatch is delayed due to reasons within the responsibility of the purchaser, the deadline is considered valid on notification of readiness for dispatch within the agreed deadline.
b. on delivery with assembly or installation as long as these take place within the agreed deadline.
5.3. If the non-adherence to the deadline is due to mobilization, war, uprisings, strike, lock-out or to any unforeseeable circumstances, the deadline will be extended accordingly. In case of non-adherence due to reasons other than section 5.3, chapter 1, the purchaser can – as long as he can prove that the delay will cause damage – claim compensation for the delay for each full week to the sum of ½ out of 100 to the sum of 5 out of 100 of the value of the delivery or services which could not be made operable because of missing parts. The purchaser can demand the payment of such compensation if the reasons named in 5.3, chapter 1 occur after self-inflicted exceeding of the deadline. Claims for compensation by the purchaser, which exceed the limit of the above-mentioned 5 out of 100 are excluded in all cases of delayed delivery, even if an extension of the original deadline has been granted. This is not the case if intent or gross negligence make liability compulsory. The right of the purchaser to withdraw from the contract after the expiry of an extension is not affected.
5.4. If the dispatch or the delivery is delayed due to the wishes of the purchaser, a storage fee of ½ out of 100 of the invoice amount – starting one month after the notification of readiness for dispatch – can be charged to the purchaser for every month (from the beginning of every month??). The storage fee is limited to 5 out of 100, unless higher costs can be substantiated.
   
6.
Transfer of risk
  The transfer of risk is passed to the purchaser, even when a carriage-free delivery has been agreed:
a. on delivery without assembly and installation when the ready-to-operate consignment has been dispatched or collected. The packaging should be effected with the utmost care. The dispatch is handled according to the discretion of the supplier. The consignment will be insured by the supplier against breakages, transport, or fire damages according to the instructions and at the expense of the purchaser.
b. On delivery with assembly and installation on the day of commissioning at the plant: if a trial run has been agreed after the successful completion of the trial run. Provided that the trial run or the commissioning at the plant occurs immediately after the ready-to-operate assembly or installation. If the purchaser does not accept the offer of a trial run or the commissioning at the purchaser’s plant, the risk for the period of delay is transferred to the purchaser after a period of 14 days.
c. If the dispatch, the delivery or the beginning and implementation of the assembly or installation is delayed at the request of the purchaser or delayed due to reasons within the responsibility of the purchaser, the risk for the period of delay is transferred to the purchaser. However, the supplier is obliged to affect the required insurances on demand or at the request of the purchaser.
   
7.
Assembly and installation
A. These regulations apply for every kind of assembly and installation, unless otherwise agreed in writing:
a. The purchaser has to provide in due time, and bear the expenses for the following:
 
1.  Helpers like handymen and, if necessary, bricklayers, carpenters, locksmiths, crane drivers, other skilled workers with all the necessary tools,
 2.  ll earthworks, foundations, building work, scaffolding, plastering, painting and other extra work outside the industry, including all necessary building materials,
3.  All utensils necessary for the installation, like construction wood, wedges, bedding layers, cement, plaster and sealing agents, lubricants, fuels etc, as well as scaffolding, hoisting devices and other equipment,
4. Energy and water including all the necessary circuit points to the location, heating and general lighting
5. On location adequately sized, dry and lockable rooms for the storage of machine parts, apparatus, materials and tools; for the personnel suitable working and leisure areas, including adequate sanitary facilities. Additionally, the purchaser has to implement measures to protect property of the supplier and the personnel that he would implement for the protection of his own property;
6. Protective clothing and protective devices which are made necessary by the circumstances at the place of installation and not customary in the industry of the contractor.
b. The purchaser has to supply details of the location, without delay, of any hidden electricity-, gas- or water –pipes or similar installations, as well as the required statistical data.
c. Before installation or assembly all the required parts have to be on location and all masonry or carpentry has to be at a stage, so that the installation or assembly can be started immediately on arrival of the personnel and without interruption. Especially the access roads and the assembly area must be levelled and cleared, the foundations set and dried, the foundations positioned and backfilled. When the installation occurs indoors, the wall-plastering has to be finished and doors and windows installed.
d. If there is a delay of the installation, assembly or commissioning due to circumstances, at the construction site, outside of the control of the supplier (creditor’s default), the supplier has to bear reasonable expenses to cover any waiting period and any further travel of the personnel.
e. The supplier has to certify the working hours of the personnel every week to the best of their knowledge. The supplier is also obliged to issue a certificate to the personnel on the completion of the installation or assembly without delay.
f. The supplier is not liable for the work of his assembly workers or construction personnel or other workers if the work is not connected to the assembly or installation or not instructed by the purchaser.
   
 B. If the supplier has undertaken the installation or assembly on individual billing, the following regulations in addition to the ones listed under A. become valid:
 1. The purchaser reimburses the supplier the charges agreed on acceptance of order, for working hours and surcharges for additional working hours, night work, work on Sundays and public holidays, for work under aggravating circumstances as well for planning and supervision.
 2. Additionally, the following costs will be reimbursed separately:
 a. Travelling costs, costs for the transportation of tools and personal luggage,
 b. The allowance for the working hours as well as for rest days and public holidays.
   
8. Acceptance
8.1. Delivered items are to be accepted by the purchaser, even if they appear marginal.
8.2. Part deliveries are unacceptable.
   
9. Liability for defects
  For defects, including the lack of warranted characteristics, the supplier assumes liability as follows:
 9.1. All parts or services, which are rendered unusable or the usability of which has been impaired – due to faulty construction, or defective workmanship – within 12 months (regardless of the period of operation) from the moment the risk has been transferred, are to repaired without charge or supplied later if the circumstances occurred before the transfer of risk. The supplier has to be notified immediately in writing of such defects.
9.2. The purchaser has to adhere to all obligations arising from the contract, especially the terms of payment. If a notification of defects is asserted, payments may be withheld to an adequate extent which relates to the occurring defects. If the contract is part of his trade, the purchaser can only withhold payments if a notification of defects takes place with no doubt as to its validity.
9.3.  The purchaser has to grant the supplier the required discretionary period and the opportunity to correct any defects. If he refuses, the supplier is exempt from liability.
9.4. If an adequate deadline is disregarded by the supplier, the purchaser can demand withdrawal of the contract (redhibitory action) or the reduction of the payment (abatement).
9.5. The right of the purchaser to claim is barred under the statute of limitations within 12 months starting with the date of the objection. If there is no agreement reached within this period, supplier and purchaser can agree to an extension of said period.
9.6. The liability for defects does not include wear and tear, damages resulting from faulty or negligent handling, excessive usage, improper equipment, faulty building work, improper location and other chemical, electrochemical or electrical influences which are not provided for in the contract.
9.7. The liability for consequences resulting from changes or maintenance undertaken by the supplier or third parties is rescinded.
9.8. The period for rectification is 3 months, for replacement deliveries or services it is 6 months. It is valid at least until the expiry of the original warranty for the delivery item. The period for the liability for defects – for the parts which cannot be operated during the period of interruption – is extended by the period of business interruption resulting from rectification, replacement deliveries or services.
9.9. The terms of the warranty period are not applicable when other periods are mandatory.
9.10. Other claims by the purchaser against the supplier and vicarious liability are excluded, specifically a claim for compensation referring to damages not to the delivery item itself. 6 This does not apply, if e.g. liability is mandatory for damages to persons or damages to privately used items or in cases of intent, negligence or the lack of warranted characteristics.
9.11. The numbers 9.1. and 9.2. are valid accordingly, for claims by the purchaser to rectification, replacement deliveries or compensation which occurred through suggestions or advice within the framework of the contract or through violation of supplementary contractual conditions.
   
10. Unenforceability and adaptation of contract
10.1. If the supplier or the purchaser are unable to deliver the obligatory delivery or service, the general legal principles apply with the following stipulations: Is the unenforceability due to the supplier, the purchaser can demand compensation. The compensation is restricted to 10 out of 100 of the value of that part of the delivery or service which cannot be operated properly due to the unenforceability. Claims for compensation by the purchaser which exceed 10 out of 100 are excluded. This is not the case when liability is assumed for intent or gross negligence. The right of the purchaser to withdraw from the contract remains unaffected.
10.2. If unforeseen circumstances, in terms of 5.3., section 1, change the economic significance or the contents of the delivery or service considerably or markedly influence the business of the supplier, the contract will be adapted accordingly to the principle of utmost good faith. If is this is economically not justifiable, the purchaser has the right to withdraw from the contract. If he wants to call upon this right, he has to inform the purchaser immediately on realizing the extent of this incident, even if an extension of the delivery time had been agreed with the purchaser.
   
11. Others claims to compensation
  Claims to compensation resulting from a breach of claims from the breach of obligations during contract negotiations or from unlawful acts are excluded. This does not apply, if e.g. liability is mandatory for damages to persons or damages to privately used items or in cases of intent or gross negligence. This limitation of liability also applies to the purchaser.
   
12. Place of jurisdiction
12.1. Sole place of jurisdiction, if the purchaser is a registered trader, is the location chosen by the supplier- branch or head office - as far as all disagreements resulting directly or indirectly from the contract are concerned.
12.2. German laws apply to all contractual relations.
   
13. Liability of the contract
  The contract remains binding in all parts, even if individual points are invalid. This does not apply if the adherence to the contract constitutes an unreasonable hardship for one party.

Status as of february 2009
 

 

 

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