General Terms and Conditions of Sale and Delivery
for Products and Services of the Electrical Industry
for Use in Business Transactions with Companies
Recommended non-binding terms and conditions of the German Electrical and Electronic Manufacturers' Association (ZVEI) e.V.
- January 2002 -
I - General provisions
(1) The scope of supplies or services (hereinafter referred to as ("supplies") shall be determined by the written declarations of both parties. However, the general terms and conditions of the Purchaser shall apply only to the extent that the Supplier or service provider (hereinafter referred to as "Supplier") has expressly agreed to them in writing.
(2) The Supplier reserves its unrestricted rights of ownership and copyright exploitation rights to cost estimates, drawings, and other documents (hereinafter referred to as "Documents"). The Documents may only be made accessible to third parties with the prior consent of the Supplier and, if the order is not placed with the Supplier, must be returned to the Supplier immediately upon request. Sentences 1 and 2 shall apply mutatis mutandis to documents of the Purchaser; these may, however, be made accessible to third parties to whom the Supplier has permissibly transferred supplies.
(3) The Purchaser shall have the non-exclusive right to use standard software with the agreed performance features in unchanged form on the agreed equipment. The Purchaser may make two backup copies without express agreement. (4) Partial deliveries are permissible as far as they are reasonable for the Purchaser.
II - Prices and terms of payment
(1) The prices are ex works excluding packaging plus the applicable statutory value added tax.
(2) If the Supplier has undertaken the installation or assembly and unless otherwise agreed, the Purchaser shall bear, in addition to the agreed remuneration, all necessary ancillary costs such as travel expenses, costs for the transport of tools and personal luggage as well as allowances.
3) Payments shall be made free Supplier's payment office.
(4) The Purchaser may only set off such claims as are undisputed or have been established by a court of law.
III - Retention of title
(1) The objects of the deliveries (reserved goods) shall remain the property of the Supplier until all claims to which the Supplier is entitled against the Purchaser arising from the business relationship have been fulfilled. If the value of all security interests to which the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interests at the request of the Purchaser.
(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 permitted only to resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes a reservation that he will not sell the retained goods to third parties. The resale shall only be permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from his customer or makes the reservation that ownership shall not pass to the customer until he has fulfilled his payment obligations.
3) In the event of seizures, attachments or other dispositions or interventions by third parties, the Purchaser shall notify the Supplier without delay.
(4) In the event of a breach of duty by the Purchaser, in particular in the event of default in payment, the Supplier shall be entitled to rescind the contract and take back the retained goods after a reasonable period of grace granted to the Purchaser has expired to no avail; the statutory provisions on the dispensability of setting a period of grace shall remain unaffected. The Purchaser shall be obliged to surrender the goods.
IV - Time limits for delivery and delay
(1) Compliance with delivery periods shall be subject to the timely receipt of all documents to be provided by the Purchaser, necessary approvals, and releases, in particular of plans as well as compliance with the agreed terms of payment and other obligations by the Purchaser. If these preconditions are not fulfilled in time, the periods shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.
(2) If non-compliance with the time limits is due to force majeure, e.g., mobilisation, war, riot, or similar events, e.g., strike, lockout, the time limits shall be extended accordingly.
(3) If the Supplier is in default, the Purchaser may - provided he can credibly demonstrate that he has suffered a loss as a result - claim compensation of 0.5% for each full week of default, but in no case more than a total of 5% of the price of that part of the supplies which, owing to the default, could not be put to the intended use.
(4) The 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 affect the supplies. This shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body, or health. The Purchaser may withdraw from the contract within the scope of the statutory provisions only if the Supplier is responsible for the delay in delivery. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
(5) The Purchaser shall be obliged to declare, at the Supplier's request and within a reasonable period of time, whether he intends to rescind the contract due to the delayed supplies or whether he insists on the supplies to be carried out.
(6) If dispatch or delivery is delayed at the request of the Purchaser by more than one month after notification of readiness for dispatch, the Purchaser may be charged storage costs of 0.5% of the price of the items of the supplies for every month commenced, but in no case more than a total of 5%. The contracting parties are at liberty to prove higher or lower storage costs.
V - Transfer of risk
(1) Even in the case of carriage paid delivery, the risk shall pass to the Purchaser as follows:
a) in the case of deliveries without installation or assembly, when they have been dispatched or collected. At the request and expense of the Purchaser, the Supplier shall insure the supplies against the usual risks of transport.
b) In the case of supplies with installation or assembly, on the day of taking over in the Purchaser's own works or, if so agreed, after a fault-free trial run.
(2) If dispatch, delivery, the start or performance of installation or assembly, taking over 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 any other reason, the risk shall pass to the Purchaser.
VI - Installation and assembly
Unless otherwise agreed in writing, the following provisions shall apply to assembly and installation:
(1) The Purchaser shall assume at his own expense and provide in good time:
a) all earthwork, construction work and other ancillary work outside the trade, including the skilled and unskilled labour, building materials and tools required for this purpose,
b) the commodities and materials required for assembly and commissioning, such as scaffolding, lifting gear and other devices, fuels, and lubricants,
c) power and water at the place of use, including connections, heating, and lighting,
d) at the place of assembly, for the storage of the machine parts, apparatus, materials, tools, etc., sufficiently large, suitable, dry, and suitable storage areas for the machine parts, apparatus, materials, and tools, etc. at the place of installation for the storage of machine parts, apparatus, materials, tools, etc., sufficiently large, suitable, dry and lockable rooms and for the installation personnel adequate working and recreation rooms including sanitary facilities appropriate to the circumstances; furthermore, the Purchaser shall take the measures for the protection of the property of the Supplier and of the installation personnel on the site which he would take for the protection of his own property.
e) protective clothing and protective devices required as a result of special circumstances at the assembly site.
(2) Before the start of the assembly work, the Purchaser shall provide the necessary information on the location of concealed electricity, gas and water lines or similar installations as well as the required structural data without being requested to do so. (3) Before the start of the assembly or installation, the materials and objects required for the start of the work must be available at the place of assembly or installation and all preparatory work must have progressed to such an extent that the assembly or installation can be started as agreed and carried out without interruption. Access roads and the installation or assembly site must be levelled and cleared.
(4) If assembly, installation, or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional travelling of the Supplier or the installation personnel.
(5) The Purchaser shall immediately certify to the Supplier on a weekly basis the duration of the working hours of the installation personnel and the completion of the installation, assembly, or commissioning.
(6) If the Supplier demands acceptance of the delivery after completion, the Purchaser shall carry out such acceptance within two weeks. If this does not happen, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place if the delivery has been put into use - if applicable, after completion of an agreed test phase.
VII - Acceptance
The Purchaser may not refuse to accept deliveries due to insignificant defects.
VIII - Defects as to quality
The Supplier shall be liable for material defects as follows:
(1) all those parts or services shall, at the Supplier's discretion, be repaired, replaced, or provided again free of charge which exhibit a material defect within the limitation period - irrespective of the period of operation - provided that the cause of the defect already existed at the time of the passing of risk. 2. claims for material defects shall be excluded.
(2) claims for material defects shall become statute-barred after 12 months. This shall not apply insofar as the law pursuant to Art. 438 (1) no. 2 (buildings and things used for a building), Art. 479 (1) (claims under a right of recourse) and Art. 634a (1) no. 2 (defects of a building) of the German Civil Code (BGB) prescribes longer periods as well as in cases of injury to life, body, or health, in the event of a wilful or grossly negligent breach of duty by the Supplier and in the event of fraudulent concealment of a defect. The statutory provisions on suspension of expiry, suspension, and recommencement of the periods shall remain unaffected.
(3) the Purchaser shall notify the Supplier of any material defects in writing without undue delay.
(4) in the event of a notice of defect, payments by the Purchaser may be withheld to an extent which is in reasonable proportion to the material defects which have occurred. The Purchaser may withhold payments only if a notice of defect is asserted and there can be no doubt as to its justification. If the notice of defect is unjustified, the Supplier shall be entitled to demand reimbursement from the Purchaser of the expenses incurred by him.
(5) the Supplier shall first be given the opportunity to remedy the defect within a reasonable period of time.
(6) If the supplementary performance fails, the Purchaser may - without prejudice to any claims for damages pursuant to Art. XI - withdraw from the contract or reduce the remuneration.
(7) Claims for defects shall not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or as a result of particular external influences which are not foreseeable under the contract as well as in the case of non-reproducible software errors.
(8) claims of the Purchaser for expenses incurred for the purpose of supplementary performance, in particular transport, travel, labour and material costs, shall be excluded to the extent that expenses are increased because the subject-matter of the delivery has subsequently been brought to another location than the Purchaser's branch office, unless the transfer is in accordance with its intended use.
(9) the Purchaser's right of recourse against the Supplier pursuant to Art. 478 BGB (German Civil Code) shall only exist to the extent that the Purchaser has not concluded an agreement with his customers exceeding the scope of the statutory provisions governing claims based on defects. Furthermore, No. 8 shall apply mutatis mutandis to the scope of the Purchaser's right of recourse against the Supplier pursuant to Art. 478 (2) BGB (German Civil Code).
(10) claims for damages shall otherwise be governed by Art. XI (Other claims for damages) shall apply to claims for damages. Further claims or claims other than those regulated in this Art. VIII against the Supplier and his vicarious agents on account of a material defect are excluded.
IX - Industrial property rights and copyrights
(1) Unless otherwise agreed, the Supplier shall be obliged to deliver the supplies free from third parties' industrial property rights and copyrights (hereinafter referred to as "IPR") only in the country of the place of delivery. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in Art. VIII No. 2 as follows: a) the Supplier shall, at his option and expense, either obtain a right to use the product, modify the product in such a way that the property right is not infringed, or replace the product. If this is not possible for the Supplier on reasonable terms, the Purchaser shall be entitled to the statutory rights of rescission or reduction. b) the Supplier's obligation to pay damages shall be governed by Article XI. c) the aforementioned obligations of the Supplier shall only apply if the Purchaser notifies the Supplier in writing without undue delay of the claims asserted by the third party, does not concede the existence of an infringement and leaves all defensive measures and settlement negotiations to the Supplier's discretion. If the Purchaser ceases to use the supplies in order to minimise the damage or for other good reason, he shall be obliged to inform the third party that such cessation of use does not constitute an acknowledgement of an infringement of an IPR.
(2) Claims of the Purchaser shall be excluded if he is responsible for the infringement of the property right.
(3) Claims of the Purchaser shall also be excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by an application not foreseeable by the Supplier or by the supplies being modified by the Purchaser or being used together with products not provided by the Supplier.
(4) In the event of infringements of industrial property rights, the claims of the Purchaser set out in No. 1 a) shall otherwise be governed by the provisions of Art. VIII No. 4, 5 and 9 shall apply accordingly.
(5) In the event of other defects of title, the provisions of Art. VIII shall apply mutatis mutandis.
(6) Further claims or claims other than those provided for in this Art. IX against the Supplier and his vicarious agents on account of a defect in title are excluded.
X - Impossibility; Adjustment of Contract
(1) If delivery is impossible, the Purchaser shall be entitled to claim damages, unless the Supplier is not responsible for the impossibility. However, the Purchaser's claim for damages shall be limited to 10 % of the value of that part of the supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in cases 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 withdraw from the contract remains unaffected.
(2) If unforeseen events within the meaning of Art. IV No. 2 substantially change the economic importance or the contents of the supplies or considerably affect the Supplier's business, the contract shall be adapted considering the principles of reasonableness and good faith. If 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, he shall notify the Purchaser thereof without undue delay after having realised the repercussions of the event, even if an extension of the delivery period had initially been agreed with the Purchaser.
XI - Other claims for damages
(1) Claims for damages and reimbursement of expenses of the Purchaser (hereinafter referred to as "Claims for Damages"), irrespective of their legal basis, in particular for breach of duties arising out of the contractual obligation and out of tort, are excluded.
(2) This shall not apply in the case of mandatory liability, e.g., under the Product Liability Act, in cases of intent, gross negligence, injury to life, body or health, or breach of a condition which goes to the root of the contract. However, the claim for damages for the breach of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability for injury to life, body, or health. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
(3) Insofar as the Purchaser is entitled to claims for damages according to this Art. XI, they shall become statute-barred upon expiry of the limitation period applicable to claims based on material defects pursuant to Art. VIII No. 2. In the case of claims for damages under the Product Liability Act, the statutory limitation provisions shall apply.
XII - Place of 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 Supplier's place of business. However, the Supplier shall also be entitled to bring an action at the Purchaser's place of business.
(2) German substantive law shall apply to the legal relationships in connection with this contract to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIII. Binding force of the contract
The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. This shall not apply if adherence to the contract would constitute unreasonable hardship for one of the parties.
© 2002 Zentralverband Elektrotechnik- und Elektroindustrie (ZVEI) e.V. [German Electrical and Electronic Manufacturers' Association] Stresemann Allee 19, 60596 Frankfurt am Main. All rights reserved.