General terms and conditions of order, delivery and services of
ELSPRO Elektrotechnik GmbH & Co. KG in commercial transaction with business entities
Status September 2016
1. Scope of application
1.1 These General terms and conditions of order, delivery and service apply exclusively for business entities in terms of § 14 of the German Civil Code (BGB), i.e. natural or legal entities purchasing goods or services for commercial or occupational use. They furthermore apply for entities pursuant to public law and special fund under public law.
1.2 The following conditions apply exclusively for the business relationship with our customers, also with respect to information and consultation. If our General terms and conditions of order, delivery and service are incorporated in the transaction with our customers, they also apply for al further business relationships between the customer and us, unless explicitly otherwise agreed in writing.
Deviating conditions of the purchaser and/or ordering entity – hereinafter referred to as “Customer/s” – apply only if and in as far as we have explicitly acknowledge them in writing. Our silence to such deviating conditions is particularly not regarded as acknowledgement or approval, also in case of future agreements.
Our General terms and conditions of order, delivery and service apply instead of any purchasing conditions of the Customer, even if they stipulate that the acceptance of the order represents the unconditional acknowledgement of the Purchasing Conditions, or if we deliver following the Customer’s indication to the validity of his purchasing conditions, unless we have explicitly waived the application of our General terms and conditions of order, delivery and service. By accepting our order confirmation, the Customer acknowledges that he waives his right to object derived from his purchasing conditions.
1.3 Any general agreements or other contracts concluded with our Customers take priority. Unless specific regulations were negotiated, they are supplemented by these General terms and conditions of order, delivery and service.
2. Information / consultation / characteristics of products and services
2.1 Information and explanations with respect to our products and services occur exclusively based on our previous experiences. The hereby stipulated values are to be considered average values of our products.
2.2. All statements pertaining to our products and services, particularly the illustrations, drawings, measurement characteristic or performance features contained in our offers and documents as well as the Internet, including other, particularly technical specifications or specifications pertaining to contents are to be considered approximate average values, unless otherwise agreed. This applies accordingly for statements made by our employees, unless otherwise agreed. Also data without tolerances pertaining to our products, as they are contained in our Internet sites or our catalogues and/or brochures are subject to standard, product-dependent deviations and changes, particularly due to raw material tolerances and/or production-technological developments of the applied components.
2.3 In as far as we provide application instructions, these are drafted with the customary care; however, they do not exempt our Customers from the careful checking of our products with respect to suitability for the desired purpose. Unless otherwise agreed, the Customer is in any case obligated to test the usability of our products and/or services with respect to the intended designated use. This also applies for information pertaining to import and/or registration regulations.
2.4 We only assume the duty to give advice based on explicit, written, separate consultancy agreement.
2.5 The reference to standards, similar regulations as well as technical information, descriptions and illustrations of the delivery item in offers and brochures and/or the Internet and our advertisement only represent information regarding the suitability of our products if we have explicitly declared the characteristics as “Product Characteristics”; otherwise, it is a non-binding, general performance description. In the absence of any other agreement, this also applies for the statements made by our employees.
2.6 Warranty only applies as assumed by us if we have specified a characteristic and/or performance success in writing or text form as “legally guaranteed“.
2.7 Beyond the statutory, mandatory liability, we are not liable for the usability and/or registration and marketability for the Customer’s intended purpose unless we have explicitly agreed otherwise with the Customer. The regulation of no.11 remains unaffected.
3. Specimens/ provided documents and data / samples / quotes
3.1 The characteristics of samples and/or specimens shall only become an integral component of the agreement if this has been explicitly agreed in writing. The Customer is not entitled to use and transfer samples.
If we effect a sale based on a product sample, deviations from the sample are admissible in the delivered products and do not constitute a reason for complaint if they do not have any lasting impact on the product at the intended use of the delivered products under normal circumstances and if any agreed specifications are met by the delivered products, unless agreed otherwise.
3.2 We reserve all proprietary and copyrights with respect to samples, illustrations, drawings, date, quotes and other documents pertaining to our products, which have been disclosed or provided to the Customer. The Customer is obligated to refrain from providing third parties with access to the above-mentioned samples, data and/or documentation unless we grant our explicit written consent and return them to us upon request if an order based on these items has not been awarded to us.
The regulations in sentences 1 and 2 apply accordingly for the Customer’s documents, drawings or data; however, we are permitted to provide access to these to third parties to whom we transfer contractual deliveries and/or services in accordance with the Customer, or whom we engage as vicarious agents.
4. Formation of agreement / scope of delivery and service / procurement risk and warranty
4.1 Our offers are subject to change unless they are explicitly identified as binding or contain explicit binding assurances or if the commitment was otherwise explicitly agreed upon. They are requests to orders.
The Customer is bound to his order as contract application for 14 calendar days – in case of electronic order 4 working days at our registered office – following our receipt of the order, unless the Customer may expect to receive a later approval under ordinary circumstances (§ 147 BGB (German Civil Code).
4.2 An agreement is only formed – also in the course of regular commercial transactions – if we have confirmed the Customer’s order in writing or text form (i.e. also by fax or email) with an order confirmation. The order confirmation only applies subject to still outstanding payments being settled by the Customer and subject to any credit check by us about the Customer via Schufa, Creditreform, Bürgel or a comparable certified information authority remaining without a negative answer.
In case of delivery or service within the Customer’s obligation period to the order according to the offer, our confirmation can be replaced by our invoice.
4.3 In case of call orders or Customer-related acceptance delays, we are authorised to procure the material for the entire order and produce the total order quantity immediately and/or stock up on the entire order quantity. Any requests for change by the Customer can therefore no longer be considered after awarding the order, unless this has been explicitly agreed upon in writing.
4.4 The Customer is obligated to inform us in writing of any special requirements for our products in due time prior to the conclusion of the agreement. However, such directions do not extend our contractual obligations and liabilities.
In the absence of an explicit agreement to the contrary, we are merely obligated to deliver the ordered products as marketable and registerable within the Federal Republic of Germany.
4.5 We are merely obligated to perform from our own goods on hand (duty to retain stock) unless explicitly agreed otherwise with the Customer.
4.6 The assumption of a procurement risk or procurement warranty is not solely based on our duty to deliver certain goods merely of the same type.
4.7 We only assume a procurement risk in terms of § 276 BGB (German Civil Code) by virtue of written, separate agreement, utilising the term “we assume the procurement risk …”.
4.8 If the acceptance of the products or their dispatch, or the acceptance of our service is delayed for reasons attributable to the Customer, we are entitled, following the specification and the expiration of a 14 day period of grace to demand immediate payment of the purchase price and/or remuneration or withdraw from the agreement or reject fulfilment and demand compensation instead of the entire service at our discretion. The granting of the grace period has to be in writing or in text form. In the notification, we do not have to point out the rights according to this clause again.
In the event of the compensation demand regulated above, the compensation amounts to 20% of the net delivery price in case of purchase agreements, or 20% of the agreed net remuneration in case of service agreements. The right to the verification of a different amount of compensation or the lack of damage is reserved by both Parties. A reversal of the onus of proof is not associated with the above regulations.
4.9 If the dispatch is delayed at the Customer’s request or due to reasons attributable to the Customer, we are entitled – starting with the expiration of a reasonable term specified in the notification of readiness for dispatch in written or text form – to store the goods and charge the thus incurred costs at 1% of the net invoice amount of the stored goods for each commenced week. The assertion of further rights remains unaffected. The Customer is entitled to prove that no cost or that a significantly lower amount of costs have been incurred.
We are furthermore entitled to the alternatively disposition of the contractual goods following the expiration of the above-mentioned term and to supply the Customer anew in the originally agreed term.
4.10 In the event of a delayed delivery or retrieval order attributable to the Customer, we are entitled to delay the delivery by a period equal to the Customer’s arrears plus a scheduling period of 4 working days at the location of our registered offices.
4.11 Unless this is explicitly agreed in written or text form or if we are subject to a deviating statutory regulation, we are only obligated to provide operator information for our products as well as product labels in German, or at the Customer’s request in English subject to a specially agreed remuneration.
The Customer is responsible to provide us with all necessary information with respect to the ordered products within a reasonable time, so the order can be executed according to the Agreement.
4.12 We reserve the right to change specifications of the product to the extent necessary to comply with statutory requirements, if such changes do not cause the deterioration of quality and usability for the conventional purpose and, in as far as the suitability for a certain purpose was agreed, for the intended purpose.
4.13 We are entitled to excess or short deliveries up to 5% of the agreed delivery quantity.
4.14. The minimum order value is €150.00 net. We reserve the right to invoice the difference if the order falls below the specified amount.
5. Delivery / delivery period / delay in delivery / packaging / installation and assembly
5.1 Binding delivery deadlines and periods have to be agreed explicitly and in writing. In the event of non-binding or approximate (approx.) delivery deadlines and periods, we shall endeavour to meet these to the best of our ability.
5.2 Deadlines for deliveries and services commence with the receipt of our order confirmation by the Customer, however not before all technical, commercial and logistic details of the execution of the Agreement are clarified and all other prerequisites required from the Customer for the execution of the agreement are at hand, particularly until agreed deposits or sureties have been provided in full. This also applies for delivery and service deadlines.
If the Customer has requested changes after placing the order, a new, reasonable delivery or service deadline commences with the confirmation of the change by us.
5.3 Deliveries and/or services prior to the expiration of the delivery/service deadline are admissible. In case of duty to collect, the delivery day is the date of the readiness for dispatch note, otherwise the date of the dispatch of the products, in case of a duty to deliver, it is the date of the delivery at the agreed location.
In case of agreed duty to deliver, the unloading of goods is the responsibility and at the expense of the customer.
5.4 In the absence of another agreement, the Customer’s interest in our service is only omitted if we fail to deliver essential parts or deliver them delayed.
5.5 If we are in default of delivery, the Customer is obligated – if it is not inappropriate – to initially provide us with a reasonable period of grace to perform of at least 14 days. If this period of grace expires unsuccessfully, the Customer is only entitled to compensation due to breach of duty, regardless of the reason, according to the specifications of regulation no. 11.
5.6 We are not in default, as long as the customer is in delay with the fulfilment obligations toward us, also obligations from other agreements.
5.7 Until the means of transport to be provided by the Customer are available, we are not obligated to perform, unless, in deviation, we have explicitly agreed to provide means of transport or if duty to deliver has been negotiated. However, in case of an executable dispatch or call order, we are entitled to affect the delivery by way of own or rented means of transport. In this case, the goods are transported at the Customer’s risk.
During unloading and retrieving of goods, the Customer has to assist our personnel and/or our vicarious agents if required and technically and logistically reasonable for the Customer.
5.8 If no collection date is specified at the time of ordering, which has to be confirmed by us and/or if the acceptance does not occur at the agreed collection date, we shall dispatch the contractual goods at our choice with a freight forwarder commissioned by us or store the contractual goods at the Customer’s expense. We shall invoice the Customer with the incurred packaging, transport and insurance costs at the time of dispatch. In the event of storage, the Customer is obligated to pay a flat rate storage fee in the amount of 1% of the net remuneration for the stored products. Both Parties are entitled to prove lesser or greater expense, the Customer is also entitled to prove a complete lack of expenses.
5.9 In the absence of other agreements, we only take back packaging materials based on and to the extent of statutory obligations.
6. Force Majeure / self-supply
6.1 We shall inform the customer in writing or text form in due time if we do not, not correctly or not in time receive deliveries or performances from our pre-suppliers for reasons outside of our sphere of responsibility for the provision of contractually owed deliveries or performances despite proper and sufficient provision (congruent provision) in accordance with the quantity and quality based on the delivery or service agreement with the Customer or in the event of force majeure of a significant period of time (i.e. with a duration of more than 14 calendar days). In this case, we are entitled to delay the delivery by the duration of the impediment or partially or entirely withdraw from the agreement with respect to the unfulfilled part if we have complied with our above-mentioned duty to provide information and if we have not accepted the risk of procurement or a delivery and/or service warranty. Force majeure includes strike, lock-out, official interventions, energy and raw material shortage, not culpable transport bottlenecks or impediments, not culpable operational impediments – e.g. due to fire, water or machine damage – and all other impediments which have not been culpably caused by us based on objective approach.
6.2 If a delivery date or delivery deadline has been bindingly agreed and if, based on events according to no. 6.1, the agreed delivery date or the agreed delivery deadline is exceeded, the Customer, following the unsuccessful expiration of a period of grace of at least 30 calendar days, is entitled to withdraw from the Agreement based on the not yet fulfilled part. Further claims of the Customer, particularly those pertaining to compensation, are excluded in this case.
6.3 The regulation according to no. 6.2 applies accordingly, if the continued adherence to the agreement is objectively reasonable for the Customer for reasons mentioned in no. 6.1 also without the contractual agreement of a fixed delivery deadline.
7. Dispatch / transfer of risk / acceptance
7.1 Unless otherwise agreed in writing, the delivery is ex-factory or our branch and dispatch by a freight forwarder commissioned by us uninsured as duty-to-send in case of non-arranged duty to collect or send. In case of duty to collect and send, the goods are travelling at the risk and expense of the Customer.
7.2 The choice of transport route and means of transport in case of agreed dispatch or in the absence of an agreed collection date in case of duty to send is at our discretion. However, we shall endeavour to consider the Customer’s requests with respect to type of delivery and transport route, without constituting any right of the Customer. Any additional cost incurred, such as transport and insurance – also in case of agreed freight-free delivery – are the responsibility of the Customer.
If the dispatch is delayed at the request or due to the fault of the Customer, we shall store the goods at the expense and risk of the Customer. In this event, the notification of readiness for dispatch equals the dispatch.
7.3 In case of agreed duty to collect with the handover of the goods to the Customer, in case of agreed duty to send at the handover to the forwarding agent, the freight carrier or other companies determined for the execution of dispatch, however at the latest upon the goods leaving our factory or warehouse or our branch or the manufacturer’s factory, the risk of accidental destruction or accidental deterioration of the goods is transferred to the Customer, unless a duty to deliver has been agreed. The above condition also applies in case of an agreed partial delivery.
7.4 If the delivery is delayed due to the fact that we exert our right of retention as a consequence of the Customer’s total or partial default of payment or any other reason attributable to the Customer, the risk is transferred to the Customer as at the date of dispatch of the notification announcing readiness for dispatch and/or willingness to perform to the Customer at the latest.
8. Notice of defect/ breach of duty pertaining to material defects/ warranty/ extended warranty
8.1 The Customer is obligated to reprimand us immediately of discernible material defects, however at the latest within 12 days following the collection in case of delivery ex works or warehouse, otherwise after delivery, hidden material defects immediately upon discovery; however, the latter at the latest prior to the expiration of the warranty limitation period (deadline for the assertion of claims by the Customer due to breach of duty in form of material defects on our account), according to no. 8.7. A reprimand after the prescribed period excludes any claim by the Customer based on breach of duty pertaining to material defects. This does not apply in the event of intentional, gross negligent or malicious actions by us, in the event of violation of life, body or health or the acceptance of a defect-free warranty or procurement risk according to § 276 BGB (German Civil Code) or other mandatory statutory liabilities and in the event of a claim of recourse in the chain of supply (§§ 478, 479 BGB).
8.2 In case of material defects discernible upon delivery, the delivering transport company also has to be reprimanded and a written or text record of the defects has to be requested from the transport company. The initiation of the notice of defect against the delivering transport company after the prescribed period excludes any claim by the Customer based on breach of duty pertaining to material defects. This does not apply in the event of intentional, gross negligent or malicious actions by us, in the event of violation of life, body or health or the acceptance of a procurement risk or defect-free warranty according to § 276 BGB (German Civil Code), or the liability according to mandatory statutory liabilities and in the event of a claim of recourse in the chain of supply (§§ 478, 479 BGB).
If quantity and weight defects were already discernible following the above mentioned duty to inspect, the Customer has to reprimand these defects to the delivering transport company upon receipt of the goods and obtain a written copy of the complaint. A reprimand to the transport company after the prescribed period also excludes any claim by the Customer based on breach of duty pertaining to material defects. This does not apply in the event of intentional, gross negligent actions by us, in the event of violation of life, body or health or the acceptance of a defect-free warranty or procurement risk according to § 276 BGB (German Civil Code), or the liability according to mandatory statutory liabilities and in the event of a claim of recourse in the chain of supply (§§ 478 BGB).
8.3 The products delivered by us apply as approved upon commencement of processing, treatment, combination or amalgamation with other items. This applies respectively in the event of on-sending from the original place of destination, unless this correlates with the customary use of the delivered goods.
Prior to the commencement of one of the above-mentioned activities or other use of the products supplied by us, the Customer is obligated to verify with examinations suitable in extend and methodology whether the goods are suitable for the intended purpose.
8.4 Prior to the assertion of other rights, the Customer has to supply to us a warning notice including an appropriate period of grace in writing or text form in case of other breaches of duty on our part; otherwise, the Customer loses any resulting rights. This does not apply in the event of intentional, gross negligent or malicious actions by us, in the event of violation of life, body or health or the acceptance of a warranty or procurement risk according to § 276 BGB (German Civil Code), or the liability according to mandatory statutory liabilities.
8.5 If the Customer is a merchant in terms of the Commercial Code, we shall remedy defects incurred under the Customer’s sphere of influence and unjustified complaints at the expense of the Customer.
8.6 If the breach of duty is, as an exception, refers to a work performance on our part, withdrawal is excluded if our breach of duty is negligible.
8.7 Unless otherwise explicitly agreed in writing or text form, we grant warranty of 12 months, calculated from the date of transfer of risk (see no. 7) in the event of the Customer’s refusal to accept or approve from the moment of the notice of readiness for the transfer of goods, subject to the regulation of no. 8.8 cont. This does not apply for compensation claims of the Customer against us from a warranty, the assumption of a procurement risk, claims based on the violation of life, body or health, malicious, intentional or gross negligent acts or if a longer limitation period is mandatorily determined in cases of § 478 BGB (German Civil Code) (recourse in chain of supply), § 438 (1) no. 2 (Buildings and material for buildings) and § 634a (1) no. 2 BGB (construction defects) or other longer limitation periods mandatorily determined by law. § 305 b BGB (The priority of the individual verbal or written understanding) remains unaffected. A reversal of the onus of proof is not associated with the above regulation.
8.8 In case of fixed installed interior and exterior LED lighting under compliance with the following warranty conditions, we shall perform defect remedy specified under no. 8.9 for a further period of 4 years (“Extended Warranty Period”). This Extended Warranty Period continues immediately from the warranty period specified in no. 8.7.
8.9. However, we exclusively grant the Customer a failure-free life span within the Extended Warranty Period of up to 50,000 operating hours at an ambient temperature of up to +25°C.
- Failure of the LED in the context of the Extended Warranty Period only applies if:
a) The light flow reduction of an ELSPRO product exceeds 6% per annum and
b) The failure rate of the LED unit amounts to more than 0.2% /1000h.
- Failure in terms of this condition does not include failures based on environmental, external impacts or the vicinity of a radio control.
8.10. Claims based on this Extended Warranty Period exclude all consumables of the supplied products, such as batteries, lightbulbs and fuses.
Also excluded are failures based on
– improper installation and connection;
– inappropriate start-up;
– normal wear or lack of maintenance;
– incorrect operation of the device;
– mechanical damage, e.g. through shock or dropping;
– inappropriate repair, if the malfunction is based thereon;
– the installation of foreign parts;
– external impacts such as fire, water, abnormal environmental conditions;
– wilful destruction;
– lightning strike.
8.11 Within the period specified under no. 8.8, Extended Warranty Period, we remedy all defects on the product according to paragraph 2 below, which are verifiably based on a manufacturing fault, if they have not caused a failure in terms of no. 2 above.
In this context, we are obligated to provide replacement within the Extended Warranty Period according to no. 8.8, however exclusively in the event of a warranty case in terms of no. 8.9 above, or provide exchange or repair of the defect part at our discretion at our expense, if the spare parts replaced by us at the defect ELSPRO product become our property.
The transport of the defect product to us as well as the return transport is hereby conducted at the expense of the Customer.
8.12 The claim for performances from the Extended Warranty period only applies for the country in which the ELSPRO product was purchased.
8.13 Claims based on this Extended Warranty Agreement are only valid if the Customer has informed us of a defect in a product supplied by us immediately after discovery. Otherwise, he loses any claims from this Extended Warranty Period. The data on the type plate on the product together with the notice of defect is the prerequisite for the verification of the origin of the Customer’s claim based on the Extended Warranty Period.
The claim for the remedy of defect from the Extended Warranty Period furthermore implies that the customer cumulatively
- provides us with a detailed written description of the defect together with the justification of a claim;
- (if the product is transportable) dispatches the product appropriately protected for the purpose of repair at his expense,
- the defect is not based on a reproducible software error;
- the Customer has used the product exclusively according to its intended purpose and the provided operating instructions of the manufacturer and the issued usage and warning messages;
- the repair is not technically or commercial unreasonable for us.
8.14 If the Customer or a third party repairs the item inappropriately, we are not liable for any resulting consequences. This also applies for changes to the delivery item without our prior consent, if the faultiness of the delivered product is based on such changes.
8.15 Further claims of the Customer due to or in connection of defects or damage caused by a defects, regardless of the reason, are only valid according to the conditions in no. 11.
8.16 Our warranty (claims based on breach of duty due to poor performance in case of material defects) and the resulting liability is excluded if defects and related damages are not verifiably based on faulty material, faulty construction or faulty execution or faulty manufacturing materials or – if owed – insufficient usage instructions. The warranty and resulting liability is particularly excluded for the consequences of incorrect usage, unsuitable storage conditions and the consequences of chemical, electromagnetic, mechanical or electrolytic impacts, which do not comply with the agreed average standard impacts in the absence of those specified in the product description. This does not apply in case of malicious, gross negligent or intentional acts on our part or the violation of life, body or health, the assumption of a warranty, the procurement risk according to § 276 BGB (German Civil Code) and/or liability according to statutorily mandatory liability.
8.17 Claims by the Customer due to expenses based on the subsequent fulfilment, particularly transport, shipping, labour and material costs, are excluded if the expenditure increases because the goods were subsequently transferred to a location other than the destination branch of the Customer, unless the transfer correlates with the intended usage of the delivered product.
8.18 Warranty claims are excluded in case of merely insignificant deviations from agreed or conventional characteristic or usability of the delivered product.
9. Prices / payment conditions / Plea of uncertainty
9.1 All prices are principally net in Euro, excluding packaging, freight and insurance costs, plus VAT to be paid by the Customer (if legally applicable) in the respectively specified amount, ex works or warehouse.
9.2 In the absence of deviating agreement, services, which are not a component of the agreed scope of delivery, shall be executed based on our respectively valid general price lists at the time of receipt of the order.
9.3 We are entitled to increase the remuneration unilaterally according to the increase of material production and/or material and/or product procurement costs, salaries and ancillary wage and salary costs, social contributions as well as energy costs and costs due to environmental stipulations, currency fluctuations and or currency regulations and/or
customs changes, and/or changes to freight fees and/or public levies, if these directly or indirectly influence our contractually agreed services and if a period of more than 4 months has expired between conclusion of the agreement and delivery. An increase under the above-mentioned circumstances is excluded if the cost increase based on the specified factors is cancelled out by a cost reduction due to other specified factors pertaining to the total cost burden for the delivery. If the above-mentioned cost factors are reduced and the cost reduction is not cancelled out by the increase of other cost factors, we shall pass on the cost reduction to the Customer in the context of a price reduction.
9.4 If we agree to bear the freight costs as an exception, the Customer is responsible for additional costs resulting from tariff increases of the freight rates after the conclusion of the agreement.
9.5 Within the first three years of the delivery relationship with the Customer, the goods are exclusively delivered subject to pre-payment. Following the expiration of the above-mentioned period, payment is required DAP (Documents Against Payment).
9.6 Unless otherwise agreed with the Customer, agreed payment terms commence at the date of delivery.
9.7 Upon commencement of the default, default interest in the amount of 9% above the respective base interest rate applicable at the due date of the invoice shall be charged. The right to assert further damage is reserved.
9.8 If transfer is agreed, the date of the receipt of the payment by us, or the credit in our account and/or the account of the paying agent specified by us is deemed the date of payment.
9.9 The default of payment by the Customer causes the immediate maturity of all payment claims from the business relationship with the Customer. Without consideration for deferment agreements, bill of exchange term and instalment agreements, all obligations of the Customer toward us are immediately due and payable in this case.
9.10 If payment conditions are not met or if circumstances become known or evident, which raise justified doubts with respect to the Customer’s creditworthiness according to our commercial estimation, namely also such facts which already existed at the conclusion of the agreement, but which were not known or did not have to be known to us, we are this case entitled, regardless of further statutory rights, to cease work on ongoing orders or cease delivery and demand prepayment for pending or appropriate, customary sureties in form of a bank guaranty of a German credit institute associated with deposit protection funds at the choice of the Customer for pending deliveries, following the unsuccessful expiration of an appropriate period of grace for the performance of such sureties – regardless of further statutory rights – to withdraw from the agreement with respect to the still unfulfilled part. The Customer is obligated to reimburse us for all damages incurred due to the non-execution of the agreement.
9.11 The Customer is only entitled to a right of retention or offsetting with respect to such counter claims, which are uncontested or legally determined.
9.12 The Customer is only entitled to exert a right of retention if his counterclaim is based on the same contractual relationship.
9.13 We only accept proposed bills of exchange in exceptional cases based on explicit agreement and on account of performance. We charge processing expenses as well as bill of exchange fees from the due date of the invoice up to the date of expiration of the bill of exchange. The Customer is responsible for interest and costs for the discontinuation or the collection of bills of exchange. The date of their redemption is considered the date of payment in case of bills of exchange and cheques. In the event of a rejection of bill discounting by our house bank, or the existence of reasonable doubt that a bill discounting occurs during the term of the bill of exchange, we are entitled to demand immediate cash payment subject to the return of the bill of exchange.
9.14 Incoming payments are initially used for the amortisation of costs, subsequently interest and ultimately the main claim according to their age.
Any opposing specification by the Customer at payment is not considered.
10. Reservation of title / right of lien
10.1 We reserve the right of ownership for all goods delivered by us (hereinafter jointly referred to as “Reserved Goods“) until all claims based on the business relationship with the customer, including claims arising in future from agreements concluded subsequently, are fulfilled. This also applies for a balance in our favour if individual or all claims by us are incorporated into one outstanding invoice (current account) and if the balance has been drawn.
10.2 The Customer has to insure the reserved goods at replacement value, particularly against fire and theft. Claims against the insurance from a loss event concerning the reserved goods are hereby assigned to us in the amount of the value of the reserved goods.
10.3 The Customer is entitled to on-sell the supplied products in the course of normal commercial transactions. The Principal is not entitled to other directives, particularly pledging or granting of collateral. If the on-sold reserved goods are not paid immediately by the third party purchaser, the Customer is obligated to only continue sales based on a reservation of title. The entitlement to on-sell the reserved goods is unreservedly excluded if the Customer ceases payment or is in default of payment to us.
10.4 The Customer hereby assigns to us all claims, including securities and secondary rights arising to him from or in connection with the on-selling of reserved goods against the end user or third parties. We accept this assignation. He may not conclude agreements with his customer which exclude or affect our rights in any way or which nullifies the advance assignment of the claim. In the event of the sale of reserved goods together with other objects, the claim against the third-party-purchaser is deemed assigned to us in the amount of the delivery price agreed between us the and the Customer, unless the amounts applicable to the individual goods can be determined based on the invoice. We accept this assignation.
10.5 The Customer remains entitled to collect the claim assigned to us up to the admissible revocation. Upon our request, the Customer is obligated to submit to us the necessary information and documents in full for the collection of the assigned claim and inform his customers immediately, unless we inform the customer ourselves.
10.6 If the Customer incorporates claims from the on-sale of reserved goods into a current account relationship existing with one of his customers, he hereby assigns to us the resulting approved final balance in his favour in the amount, which equates to the total sum of claims posted in the current account relationship from the on-selling of our reserved goods. We accept this assignation.
10.7 If the Customer has already assigned claims from the on-selling of goods delivered or yet to be delivered by us to a third party, particularly due to non-recourse or recourse factoring, or if he has concluded other agreements which may impair our current or future third party security interest according to no. 10, he is obligated to notify us immediately. In the event of recourse factoring, we are entitled to withdraw from the agreement and demand the surrender of already delivered goods. This also applies in case of non-recourse factoring, if the Customer cannot dispose freely over the purchase price of the claim according to the agreement with the factor.
10.8 In case of actions contrary to the agreement by the Customer, particularly default of payment, we are entitled to retrieve all reserved goods following the withdrawal from the agreement. In this case, the Customer is obligate to surrender the goods unreservedly. To determine the inventory of the goods delivered by us, we are entitled to enter the Customer’s business premises at any time during normal business hours. Withdrawal from the agreement based on the retrieval of the reserved goods only exists if we provide an explicit written declaration or if stipulated by mandatory statutory regulations. The Customer is obligated to inform us immediately of any access by third parties to reserved goods or claims assigned to us.
10.9 If the value of the sureties pertinent to us according to the previous conditions exceeds the secured claims by a total of more than 10 %, we are obligated to release the sureties to this extent at our discretion upon the request of the Customer.
10.10 Treatment and processing of the reserved goods occurs on our behalf as manufacturer, however without obligations for us. If the reserved goods are processed or inseparably combined with objects not belonging to us, we procure co-ownership to the new item at the ratio of the invoice value of our goods to the invoice value of the other processed or combined objects. If our goods are combined with other movable objects to one uniform object and if the other object is to be considered the main object, it is deemed agreed upon that the customer hereby assigns to us the proportionate co-ownership to the item. The customer preserves the thus created ownership or co-ownership for us free of charge. The thus created co-ownership rights apply as reserved goods. At our request, the customer is obligated to provide us with the necessary information required to pursue our ownership or co-ownership at any time.
10.11 If, in case of deliveries abroad, certain measures are required by us or the Customer at the import state for the efficacy of the above-mentioned reservation of title, or the other rights described therein, the Customer has to notify us in writing or text form and execute such measures at his expense and without undue delay. We shall participate to these measures at the necessary extent. If the law of the import state does not permit the reservation of title, but permits the reservation of other rights to the delivery items up to the payment in full, we are able to exert all rights of this type if they are economically equal to a reservation of title.
11. Exclusion / limitation of liability
11.1 Subject to the exceptions listed below, we are not liable, particularly not for claims by the Customer for compensation or reimbursement for expenses – regardless of the legal reason – neither in case of the violation of duties from the contractual obligations nor from illegal actions (i.e. illegal and culpable infringement which is independent of a contractual breach of duty and not congruent).
11.2 The exclusion of liability according to no. 11.1 above does not apply in case of mandatory statutory liability as well as
- own intentional or gross negligent breach of duty and intentional or gross negligent breach of duty of legal representatives or vicarious agents;
- the violation of essential contractual obligations; “Essential contractual obligations” are obligations which protect the customer’s legal positions essential to the agreement which are just owed to him according to the content and purpose of the agreement. Furthermore, essential contractual obligations are those whereby the fulfilment generally facilitates the proper execution of the agreement and the compliance in which the customer regularly trusts or may trust;
- in the event of the violation of life, limb and heath also by legal representatives or vicarious agents;
- in the event of default, if a fixed time of delivery and/or performance was agreed;
- if we have assumed warranty for the characteristics of our goods or the existence of contractual performance, or a procurement risk in terms of § 276 BGB (German Civil Code);
- in case of liability according to the ProdhaftG (Product Liability Act) or other mandatory statutory liabilities.
11.3 In the even that we or our vicarious agents are accused of only slight negligence instead of the above-mentioned no. 11.2, there 3, 4, 5 and 6 indent, we are only liable for damages foreseeable and typical to the agreement also in case of the violation of essential contractual obligations.
11.4 Our liability is limited in the amount to a maximum liability amount of EUR 500,000.00 for each individual liability case. This does not apply if we are culpable of malice, intent or gross negligence, for claims based on the violation of life, limb or health, in case of a warranty assumed by us or the assumption of a procurement risk according to § 276 BGB (German Civil Code) or in cases of mandatory statutorily deviating greater liability sums. Any further liability is excluded.
11.5 The exclusions and/or limitations of liability according to no.11.1 to 11.4 above and no. 11.6 apply to the same extent in favour of our organs, our executive and non-executive employees and other vicarious agents as well as subcontractors.
11.6 Compensation claims of the Customer based on this contractual relationship can only be asserted within a preclusion period of one year as at the legal statute of limitation. This does not apply if we are culpable of malice, intent or gross negligence, for claims based on the violation of life, limb or health, as well as in case of a claim based on an illegal act or an explicitly assumed warranty or the assumption of a procurement risk according to § 276 BGB (German Civil Code) or in case of a mandatory statutory longer limitation period.
11.7 A reversal of the onus of proof is not associated with the above regulations.
12. Place of fulfilment / place of jurisdiction / applicable law
12.1 Place of fulfilment for all contractual obligations, with the exception of the case of assumption of a duty to deliver or agreement to the contrary, is the registered office of our company.
12.2 Exclusive place of jurisdiction for all disputes – if the Customer is a merchant in terms of the Commercial Code – is Düsseldorf, Federal Republic of Germany. However, we are also entitled to sue the Customer at his general place of jurisdiction.
12.3 The laws of the Federal Republic of Germany, particularly under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG), apply exclusively for all legal relationships between the Customer and us.
13. Proprietary rights
13.1 Unless otherwise agreed, we are merely obligated to deliver free from industrial property rights and third party copyrights within the Federal Republic of Germany.
If a third party raises claims due to the violation of proprietary rights by products delivered by us to the Customer, we are liable to the Customer within the period specified in no. 8.7 as follows:
- At our discretion, we shall initially attempt to either obtain a usage right for the respective delivery at our expense or alter the delivery item subject to compliance with the contractually agreed characteristics in such a manner that the proprietary rights are no longer violated, or exchange the item. If this is not possible for us at reasonable conditions, the Customer is entitled to his legal rights, which, however, are based on these General terms and conditions of order, delivery and service.
- The Customer is only entitled to rights in the event of an infringement of a patent by our delivery items if he has informed us immediately and in writing of the claims asserted by the third party, does not acknowledge any violation and if we retain all defence measures and settlement negotiations.
- If the Customer suspends the use of the products due to damage control or other important reasons, he is obligated to inform the third party that the suspension is not associated with any acknowledgement of an infringement of a proprietary right.
- If the Customer is challenged by a third party as a consequence of the usage of the products delivered by us, the Customer is obligated to inform us of this fact immediately and provide us with the opportunity to participate in any possible legal dispute. The Customer has to support us in such a legal dispute in every respect. The Customer has to omit actions, which could impair our legal position.
13.2 Claims of the Customer are excluded if he is culpable of the patent infringement. Claims of the customer are furthermore excluded in as far as the patent infringement is caused by special stipulations of the Customer, an application not foreseeable by us or because the Customer has altered the products or applied them in connection with other products not supplied by us, if the patent infringement is based thereon.
14. Export control / product registration / import specifications
14.1 The export of certain goods by the Customer from there can – e.g. based on their type or purpose or final destination – be subject to the procurement of permits. The Customer is obligated to strictly observe the relevant export regulations and embargos for these goods, particularly the European Union (EU), Germany and/or other EU member states as well as, if applicable, the USA or Asian or Arabian countries, if he exports the products supplied by us.
In addition, the Customer is obligated to ensure that he procures the necessary national product permits or product registrations prior to the export in a country other than the agreed first country of delivery and that the specifications incorporated in the national laws of the respective country for the provision of user information in the national language as well as all import regulations have been fulfilled.
14.2 The Customer shall particularly verify and ensure that
- the provided products are not destined for an armament-relevant, nuclear-technical or weapon-technical purpose;
- no companies and persons listed in the US-Denied Persons List (DPL) are supplied with US-origin goods, US software and US technology;
- no companies and persons listed in the US-Warning List, US-Entity List or US-Specially Designated Nationals List are supplied with US-origin products without relevant permit;
- no companies and persons are supplied who are specified in the list of Specially Designated Terrorists, Foreign Terrorist Organizations, Specially Designated Global Terrorists or the EU Terrorist List or other relevant negative lists for export control;
- no military recipients are supplied with the products delivered by us;
- no recipients are supplied who have violated other export control regulations, particularly the EU or ASEAN states;
- all early warning notifications of the relevant German or national authorities of the respective country of origin of the delivery are observed.
14.3 The access to and usage of goods delivered by us may only occur if the above-mentioned checks and safeguarding has occurred through the Customer; otherwise, the Customer has to refrain from the intended export and we are not obligated to perform.
14.4 The Customer is obligated to commit these third parties upon the transfer of the goods supplied by us in the same manner as specified in no. 14.1-14.4 and to inform them of the necessity to comply with such statutory provision.
14.5 In the event of agreed delivery outside of the Federal Republic of Germany, the Customer ensures at his expense that he, and with respect to the goods to be delivered by us, fulfils all national import conditions of the first country of delivery, unless we have contractually assumed the import status, and that this is legally admissible according to the laws of the respective country.
14.6 The Customer exempts us from all damages and expenditures resulting from the culpable violation of the obligations according to no. 14.1-14.6.
15. INCOTERMS / written form
15.1 If commercial clauses according to the International Commercial Terms (INCOTERMS) have been agreed, the INCOTERMS 2010 apply.
15.2 All agreements, subsidiary agreements, assurances and contractual alterations require the written form. This also applies for the waiver of the written form agreement. The priority of the individual written, textual or oral understanding (§ 305 b BGB (German Civil Code)) remains unaffected.
According to the regulations of the Data Protection Act, we point out that the contractual transactions in our company are conducted via an EDP system and that we also store the data received based on the business relationship with the Customer.
Hilden, September 2016