General Terms and Conditions of Delivery for Products and Services of the Electrical Industry Page 1 of 6
General Terms and Conditions of Delivery
for products and services of the electrical industry
for use in business transactions with entrepreneurs
Non-binding conditions recommended by the German Electrical and Electronic Manufacturers‘ Association
(ZVEI) e. V.
– Status January 2002 –
I. General provisions
1. the scope of the deliveries or services (hereinafter: deliveries) shall be determined by the
mutual
written declarations are authoritative. General terms and conditions of the Purchaser shall
only apply insofar as the supplier or service provider (hereinafter: supplier) has expressly agreed to them in writing.
agreed to them in writing.
2. the supplier retains title to cost estimates, drawings and other documents (hereinafter: documents).
Supplier reserves its property and copyright exploitation rights without restriction.
without restriction. The Documents may only be made accessible to third parties with the prior consent of the Supplier and
and, if the order is not placed with the Supplier, must be returned to the Supplier immediately upon request.
immediately upon request. Sentences 1 and 2 shall apply accordingly to the Purchaser’s documents;
However, these may be made accessible to third parties to whom the supplier has permissibly
deliveries.
3. the customer shall have the non-exclusive right to use standard software with the agreed
agreed
features in unchanged form on the agreed devices. The customer
may make a backup copy without express agreement.
(4) Partial deliveries are permissible insofar as they are reasonable for the customer.
II Prices and terms of payment
1. prices are ex works excluding packaging plus the applicable statutory value added tax.
statutory value added tax.
2. if the supplier is responsible for installation or assembly and nothing to the contrary has been agreed,
the Purchaser shall bear, in addition to the agreed remuneration, all necessary ancillary costs such as
travel expenses,
costs for the transportation of tools and personal luggage as well as allowances.
allowances.
(3) Payments shall be made free Supplier’s paying agent.
4. the customer may only offset claims that are undisputed or have been legally established.
have been legally established.
III Retention of title
1. the objects of the deliveries (goods subject to retention of title) shall remain the property of the supplier until
fulfillment
of all claims to which the Supplier is entitled against the Purchaser arising from the business relationship.
Insofar as the value of all security interests to which the Supplier is entitled exceeds the amount of all secured
claims
claims by more than 20%, the Supplier shall, at the request of the Customer, release a corresponding
release a corresponding part of the security rights.
2. during the existence of the retention of title, the customer is not permitted to pledge or transfer
transfer by way of security
resale only to resellers in the ordinary course of business and only under the
business transactions and only under the condition that the reseller is released from his
General
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the reseller receives payment from the customer or makes the reservation that ownership shall only pass to the customer
the customer has fulfilled his payment obligations.
3. in the event of seizure, confiscation or other dispositions or interventions by third parties, the
purchaser
inform the supplier immediately.
4. in the event of breaches of duty by the customer, in particular in the event of default in payment, the supplier shall be
the unsuccessful expiry of a reasonable period of grace set for the Purchaser, the Supplier shall be entitled to withdraw from the contract
and to take back the goods; the statutory provisions on the dispensability of setting a deadline remain unaffected.
shall remain unaffected. The Buyer shall be obliged to surrender the goods.
IV. Deadlines for deliveries; default
1. compliance with deadlines for deliveries is subject to the timely receipt of all documents to be
documents, necessary approvals and releases to be supplied by the customer, in particular
plans, as well as compliance with the agreed terms of payment and other obligations by the customer.
by the customer. If these conditions are not fulfilled in good time, the deadlines shall be
shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.
is responsible for the delay.
2. if non-compliance with the deadlines is due to force majeure, e.g. mobilization, war, riot, or similar events, e.g. strikes
similar events, e.g. strike, lockout, the deadlines shall be extended accordingly.
appropriately.
3. if the supplier is in default, the customer may – if he can credibly demonstrate that he has suffered damage as a result
compensation for each completed week of delay of 0.5% of the price for that part of the deliveries
of the price for that part of the supplies which, owing to the delay, cannot be used for the intended purpose.
which could not be put to the intended use due to the delay.
4. both claims for damages by the customer due to delay in delivery and claims for damages in lieu of
claims for damages in lieu of performance which exceed the limits specified in No. 3,
are excluded in all cases of delayed delivery, even after the expiry of any delivery deadline set to the supplier.
delivery deadline set for the supplier. This shall not apply in cases of intent, gross negligence or
negligence or on account of injury to life, limb or health.
liability. The customer may only withdraw from the contract within the framework of the statutory provisions
withdraw from the contract,
if the Supplier is responsible for the delay in delivery. A change in the
burden of proof to the detriment of the Purchaser is not associated with the above provisions.
5. the purchaser is obliged, at the request of the supplier, to declare within a reasonable period of time
whether he withdraws from the contract due to the delay in delivery or insists on delivery.
insists on delivery.
6. if dispatch or delivery is postponed at the request of the customer by more than one month after
notification
of readiness for dispatch, the customer may be charged a storage fee for each month or part thereof
0.5 % of the price of the items of the deliveries, but not more than a total of
5 % in total. The contracting parties are at liberty to prove higher or lower storage costs.
parties to the contract.
V. Transfer of risk
1. the risk shall pass to the customer as follows, even in the case of carriage paid delivery
a) in the case of deliveries without installation or assembly, when they are shipped or collected.
have been collected. At the request and expense of the Purchaser, deliveries shall be insured by the Supplier against
the usual transportation risks;
b) in the case of deliveries with installation or assembly, on the day of acceptance at its own premises or
agreed, after a faultless trial run.
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2. if the dispatch, delivery, commencement, performance of installation or assembly
installation or assembly, the acceptance in the customer’s own plant or the trial run is delayed for reasons for which the
reasons for which the customer is responsible or if the customer is in default of acceptance for other reasons, the
the risk shall pass to the customer.
VI Installation and assembly
Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly
provisions:
1. the Purchaser shall, at its own expense and in good time, provide:
a) all earthwork, construction work and other ancillary work outside the industry, including the necessary
and auxiliary personnel, building materials and tools,
b) the equipment and materials required for assembly and commissioning, such as scaffolding,
lifting equipment and other devices, fuels and lubricants,
c) energy and water at the place of use, including connections, heating and lighting, and
and lighting,
d) at the assembly site for the storage of machine parts, equipment, materials, tools, etc,
tools, etc., in sufficiently large, suitable, dry and lockable rooms and for the
suitable working and recreation rooms for the assembly personnel, including
sanitary facilities appropriate to the circumstances; furthermore, in order to protect the property of the
Supplier and the assembly personnel on the construction site, the Purchaser shall take the same measures it would take to
the protection of its own property,
e) protective clothing and protective devices which are required due to special circumstances at the installation site.
are necessary.
2. before the start of the installation work, the customer must provide the necessary information about the position of concealed
electricity, gas and water pipes or similar installations as well as the necessary static data without being asked.
information without being requested to do so.
3. prior to the start of the installation or assembly work, the necessary
necessary
and objects required for the start of the work must be available at the installation or assembly site and all
work must have progressed to such an extent that assembly or erection can be started as agreed and without interruption.
can be started as agreed and carried out without interruption. Access routes
and the installation or assembly site must be leveled and cleared.
4. if the installation, assembly or commissioning is delayed due to circumstances for which the supplier is not
circumstances for which
circumstances for which the supplier is not responsible, the customer shall bear the reasonable costs of waiting time and additional
necessary travel by the Supplier or the assembly personnel.
5. the Purchaser shall inform the Supplier on a weekly basis of the duration of the working hours of the assembly personnel and
the completion of the installation, assembly or commissioning without delay.
6. if the supplier demands acceptance of the delivery after completion, the customer must accept it
within
within two weeks. If this is not done, acceptance shall be deemed to have taken place. The
acceptance shall also be deemed to have taken place if the delivery – if applicable after completion of an
agreed
test phase – has been put into use.
VII Acceptance
The customer may not refuse acceptance of deliveries due to insignificant defects.
refuse acceptance.
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VIII Material defects
The Supplier shall be liable for material defects as follows:
1. all those parts or services shall, at the Supplier’s discretion, be repaired free of charge,
or provide new parts or services free of charge if they show a material defect within the limitation period – irrespective of the
period – irrespective of the period of operation – if the cause of the defect already existed at the time of the
transfer of risk.
2. claims for material defects shall become statute-barred after 12 months. This shall not apply insofar as the law pursuant to §§ 438
Para. 1 No. 2 (buildings and items for buildings), 479 Para. 1 (right of recourse) and 634a
para. 1 no. 2 (construction defects) of the German Civil Code (BGB) and in cases of injury to life
injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty by the
by the supplier and in the event of fraudulent concealment of a defect. The statutory provisions
suspension, suspension and recommencement of the periods shall remain unaffected.
3. the purchaser must notify the supplier of material defects in writing without delay.
4. in the event of notices of defects, payments by the customer may be withheld to an extent that is in
proportionate to the material defects that have occurred. The customer may
withhold payments only if a notice of defects is asserted, the justification of which is beyond doubt.
of which there can be no doubt. If the notice of defects is unjustified, the Supplier shall be entitled to
to demand compensation from the purchaser for the expenses incurred.
5. the supplier must first be given the opportunity to remedy the defect within a reasonable period of time.
granted.
6. if the subsequent performance fails, the customer may – without prejudice to any claims for damages
claims for damages
in accordance with Art. XI – withdraw from the contract or reduce the remuneration.
7. claims for defects shall not exist in the event of only insignificant deviations from the agreed
agreed quality,
only insignificant impairment of usability, natural wear and tear
or damage that occurs after the transfer of risk as a result of incorrect or negligent handling
excessive use, unsuitable operating materials, defective construction work, unsuitable building ground
building ground or which arise due to special external influences which are not provided for in the contract
not assumed under the contract, as well as in the case of non-reproducible software errors. If the customer
improper modifications or repair work carried out by the customer or third parties, then
exist
no claims for defects for these and the resulting consequences.
8. claims of the customer for the expenses necessary for the purpose of subsequent performance
in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase
expenses increase because the object of the delivery is subsequently transferred to another party.
place other than the customer’s place of business, unless the shipment corresponds to its intended use.
its intended use.
9. recourse claims of the purchaser against the supplier in accordance with § 478 BGB (recourse of the
entrepreneur)
only exist insofar as the purchaser has not made any agreements with his customer that go beyond the statutory
agreements with his customer that go beyond the statutory claims for defects. For the scope of the
the purchaser’s right of recourse against the supplier pursuant to § 478 para. 2 BGB, No. 8 shall apply accordingly.
shall apply accordingly.
10. for claims for damages, Art. XI (Other claims for damages).
Further
or claims other than those regulated in this Art. VIII against the supplier and its vicarious agents due to a material
Supplier and its vicarious agents due to a material defect are excluded.
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IX. Industrial property rights and copyrights; defects of title
1. unless otherwise agreed, the supplier is obliged to deliver the goods only in the country of the place of delivery.
place of delivery
free from industrial property rights and copyrights of third parties (hereinafter: property rights).
to perform. If a third party asserts a claim for infringement of industrial property rights by
the supplier and used in accordance with the contract,
the Supplier shall be liable to the Purchaser within the period specified in Art. VIII No. 2 as follows
as follows:
(a) The Supplier shall, at its option and expense, either
obtain a right of use, modify them in such a way that the property right is not infringed, or
replace them. If this is not possible for the Supplier under reasonable conditions, the
the statutory rights of withdrawal or reduction.
b) The Supplier’s obligation to pay damages shall be governed by Art. XI.
c) The aforementioned obligations of the Supplier shall only apply insofar as the Purchaser notifies the
Supplier immediately in writing of the claims asserted by the third party,
does not acknowledge an infringement and allows the Supplier all defensive measures and settlement negotiations.
settlement negotiations
remain reserved. If the Buyer ceases to use the delivery in order to minimize damages or for other
other important reasons, he shall be obliged to inform the third party
that the cessation of use does not constitute an acknowledgement of an infringement of property rights.
is associated with an infringement.
2. claims of the customer are excluded insofar as he is responsible for the infringement of property rights.
is responsible for the infringement.
3. claims of the customer shall also be excluded if the infringement of property rights was caused by
special specifications of the Purchaser, by an application not foreseeable by the Supplier or
by the fact that the delivery is modified by the customer or used together with products not supplied by the supplier.
products not supplied by the Supplier.
4. in the event of infringements of industrial property rights, the claims of the customer regulated in no. 1 a) shall apply.
purchaser
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 accordingly.
6. further claims or claims other than those regulated in this Art. IX against the supplier and his vicarious
the Supplier and its vicarious agents due to a defect of title are excluded.
X. Impossibility; contract adjustment
1. if the delivery is impossible, the purchaser is entitled to demand compensation, unless the
unless the supplier is not responsible for the impossibility. However, the
However, the Purchaser’s claim for damages shall be limited to 10 % of the value of that part of the delivery which
cannot be put to the intended use due to the impossibility. This
limitation
shall not apply in cases of intent, gross negligence or due to injury to life, limb or
liability for injury to life, limb or health; a change in the burden of proof to the
burden of proof to the detriment of the customer. The right of the customer
to withdraw from the contract remains unaffected.
2. insofar as unforeseeable events within the meaning of Art. IV No. 2 significantly change the economic importance or
the content of the delivery or have a significant impact on the supplier’s operations,
the contract shall be adapted appropriately in good faith. Insofar as this
economically unreasonable, the Supplier shall be entitled to withdraw from the contract. If
make use of this right of withdrawal, he must do so after realizing the scope of the
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event, even if an extension of the delivery period was initially agreed with the customer.
an extension of the delivery period was initially agreed with the customer.
XI Other claims for damages
1. claims for damages and reimbursement of expenses of the purchaser (hereinafter referred to as
claims for damages),
for whatever legal reason, in particular for breach of duties arising from the
from the contractual obligation and from tort, are excluded.
2. this shall not apply where liability is mandatory, e.g. under the German Product Liability Act, in cases of
cases of intent, gross negligence, due to injury to life, limb or health, due to breach of material contractual
health, due to the violation of essential contractual obligations. The claim for damages
for the breach of essential contractual obligations is, however, limited to the foreseeable damage typical of the contract
foreseeable damage typical for the contract, unless there is intent or gross negligence or due to
liability for injury to life, limb or health. A change in the
burden of proof
to the disadvantage of the customer is not associated with the above provisions.
3. insofar as the customer is entitled to claims for damages under this Art. XI, such claims for damages shall become time-barred upon
expiry of the limitation period applicable to claims for material defects pursuant to Art. VIII No. 2.
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
disputes arising directly or indirectly from the contractual relationship. However, the supplier is
also entitled to sue at the customer’s registered office.
2. the legal relationships in connection with this contract shall be governed by German substantive
substantive law to the exclusion of the United Nations Convention on Contracts for the
international
Sale of Goods (CISG).
XIII Binding nature of the contract
Even if individual provisions of the contract are legally ineffective, the remaining
parts
binding. This shall not apply if adherence to the contract would constitute unreasonable hardship for one of the parties.
party.