for commercial transactions with companies
Non-binding Recommended Conditions of ZVEI - Zentralverband Elektrotechnik- und Elektronikindustrie e. V.
As per June 2011
Article I: General Provisions (GTCs)
Legal relations between the Supplier and the Purchaser in connection with supplies and/or services of the Supplier (hereinafter referred to as ‘Supplies’) shall be governed solely by these GTCs. The Purchaser's general terms and conditions shall apply only if expressly accepted by the Supplier in writing. The scope of delivery shall be determined in accordance with the written declarations of both parties in which the scope of delivery is agreed.
The Supplier herewith reserves any industrial property rights and/or copyrights pertaining to its cost estimates, drawings and other documents (hereinafter referred to as "Documents”). The Documents shall not be made accessible to third parties without the Supplier's prior consent and shall, upon request, be returned without undue delay to the Supplier if the contract is not awarded to the latter. Sentences 1 and 2 shall apply mutatis mutandis to the Purchaser's Documents; these may, however, be made accessible to those third parties to whom the Supplier has been permitted to subcontract Supplies.
The Purchaser has the non-exclusive right to use standard software and firmware, provided that it remains unchanged and is used within the agreed performance parameters and on the agreed equipment. The Purchaser may, without express consent, make one back-up copy of standard software.
Partial deliveries are allowed, unless they represent an unacceptable imposition on the Purchaser.
The term ‘claim for damages’ used in these GTCs also includes claims for indemnification for fruitless expenditure.
Article II: Prices, Terms of Payment, and Set-Off
Prices are ex works and exclude packaging; value added tax shall be added at the then applicable rate.
If the Supplier is also responsible for assembly or erection and unless otherwise agreed, the Purchaser shall pay the agreed remuneration and any incidental costs necessarily incurred, e. g. for traveling and transport as well as allowances.
Payments shall be made free of charge to the Supplier’s payment office.
The Purchaser may set off only those claims which are undisputed or non-appealable.
Article III: Retention of Title
The items pertaining to the Supply (‘Retained Goods’) shall remain the Supplier's property until each and every claim of the Supplier against the Purchaser arising from the business relationship has been fulfilled. If the combined value of the Supplier's security interests exceeds the value of all secured claims by more than 20 %, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser; the Supplier shall be entitled to choose which security interest it wishes to release.
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 possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of property to the customer contingent upon the customer fulfilling its obligation to effect payment.
Should the Purchaser resell Retained Goods, it assigns to the Supplier as security, with immediate effect, all claims it will have against its customers arising from the resale, including any collateral rights and all balance claims, without any subsequent declarations to this effect being necessary. If the Retained Goods are sold on together with other items and no individual price has been agreed with respect to the Retained Goods, the Purchaser shall assign to the Supplier the proportion of the total price which corresponds to the price of the Retained Goods invoiced by the Supplier.
a) The Purchaser may process, amalgamate or combine Retained Goods with other items. Processing is performed on behalf of the Supplier. The Purchaser shall store the new item thus created for the Supplier, exercising the due care of a diligent business person. The new items shall be considered as Retained Goods.
b) The Supplier and Purchaser agree with immediate effect that if Retained Goods are combined or amalgamated with other items that are not the property of the Supplier, the latter shall acquire co-ownership in the new item in proportion of the value of the Retained Goods combined or amalgamated with the other items at the time of combination or amalgamation. In this respect, the new items are considered as Retained Goods.
c) The provisions on the assignment of claims pursuant to No. 3 above shall also apply to the new item. The assignment, however, shall only apply up to the level of the amount invoiced by the Supplier for the Retained Goods that have been processed, combined or amalgamated.
d) Where the Purchaser combines Retained Goods with real estate or movable goods, it shall, without any further declaration being necessary to this effect, also assign to the Supplier as security its claim to co-ownership of the combination, including all collateral rights for the prorate amount of the value of the combined Retained Goods in relation to the other combined items at the time of the combination.
Until further notice, the Purchaser may collect assigned claims relating to the resale. The Supplier is entitled to withdraw the Purchaser's collection authorization for good reason, including, but not limited to delayed payment, suspension of payments, the start of insolvency proceedings, protest of a bill, justified grounds to suspect over-indebtedness or the pending insolvency of the Purchaser. In addition, the Supplier may, upon expiry of an adequate period of notice, disclose the assignment, realize the claims assigned and demand that the Purchaser informs its customer of the assignment.
The Purchaser shall inform the Supplier forthwith of any seizure or other act of intervention by third parties. If a reasonable interest can be proven, the Purchaser shall, without undue delay, provide the Supplier with the information and/or Documents necessary to assert its claims against its customers.
Where the Purchaser fails to fulfill its duties, fails to make the payment due, or otherwise violates its obligations, the Supplier shall be entitled to rescind the contract and take back the Retained Goods where a reasonable grace period imposed on the Purchaser has expired with no rectification of the situation; the statutory provisions providing that a grace period is not required shall be unaffected by this. The Purchaser shall be obliged to return the Retained Goods. The fact that the Supplier takes back Retained Goods and/or exercises the retention of title, or has the Retained Goods seized, shall not be construed to constitute a rescission of the contract unless the Supplier makes an express declaration to this effect.
Article IV: Delivery times; Delay
Delivery times shall only be binding if all Documents to be furnished by the Purchaser and all necessary permits and approvals, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. If these conditions are not fulfilled in time, the deadlines shall be extended within reason; this shall not apply if the Supplier is responsible for the delay.
If non-observance of the deadline is due to:
a) force majeure, such as mobilization, war, terror attacks, rebellion or similar events (e.g. strike or lockout);
b) virus attacks or other attacks on the Supplier's IT systems which occur despite protective measures being in place which comply with the principles of proper care;
c) hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or to other circumstances for which the Supplier is not responsible; or
d) the Supplier not receiving its own supplies in due time or in due form,
such deadlines shall be extended accordingly.
If the Supplier is responsible for the delay (hereinafter referred to as the “Delay") and the Purchaser has demonstrably suffered a loss as a result, the Purchaser may claim compensation of 0.5 % for every complete week of the Delay, limited to a maximum of 5 % of the price of that part of the Supplies which could not be put to their intended use as a result of the Delay.
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 are excluded in all cases of delayed Supplies, even if the Supplier fails to meet an extended deadline for the Supplies. This shall not apply in cases of liability based on intent or gross negligence, or where there is loss of life, bodily injury or damage to health. Rescission of the contract by the Purchaser based on statute is limited to cases where the Supplier is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
At the Supplier's request, the Purchaser shall declare within a reasonable period of time whether it wishes to rescind the contract or insist on the delivery of the Supplies in the light of the delay.
If dispatch or delivery is delayed at the Purchaser's request by more than one month after notification of readiness for dispatch, the latter may be charged, for every additional month commenced, storage costs of 0.5 % of the price of the items included in the Supply, limited to a maximum of 5 %. The parties to the contract are at liberty to demonstrate that higher or lower storage costs respectively have been incurred.
Article V: Passing of Risk
Even where freight-free delivery has been agreed, risk shall pass to the Purchaser as follows:
a) if the delivery does not include assembly or erection, at the time when it is shipped or picked up by the carrier. Upon the Purchaser's request, the Supplier shall insure the delivery against the usual transport risks at the Purchaser's expense;
b) if the delivery includes assembly or erection, on the day the goods are taken over in the Purchaser's own works or, if so agreed, after a successful trial run.
The risk shall pass to the Purchaser if dispatch, delivery, the start or performance of assembly or erection, 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 has otherwise failed to accept the Supplies.
Article VI: Assembly and Erection
Unless otherwise agreed in written form, assembly and erection shall be subject to the following provisions:
The Purchaser shall provide at its own expense and in good time:
a) all earth and construction work and other ancillary work outside the Supplier's scope, including the necessary skilled and unskilled labor, construction materials and tools;
b) the equipment and materials necessary for assembly and commissioning, such as scaffolding, lifting equipment and other devices as well as fuels and lubricants;
c) energy and water at the point of use, including connections, heating and lighting;
d) suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities as appropriate in the specific circumstances; furthermore, the Purchaser shall take all measures it would take for the protection of its own possessions to protect the possessions of the Supplier and of the erection personnel at the site;
e) protective clothing and protective devices required due to the particular conditions prevailing at the specific site.
Before the erection work starts, the Purchaser shall, without further request, make available any information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data.
Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the assembly or erection site and any preparatory work must have advanced to such a degree that assembly or erection can commence as agreed and be carried out without interruption. Access roads and the assembly or erection site must be level and clear.
If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall, within reason, bear the costs incurred for idle times and any additional traveling expenditure of the Supplier or the erection personnel.
The Purchaser shall submit weekly reports to the Supplier on the number of hours worked by the erection personnel, and the Purchaser shall give written confirmation immediately upon the completion of assembly, erection or commissioning work.
If, after completion, the Supplier demands acceptance of the performance, the Purchaser shall comply accordingly within a period of two weeks. The same consequences as upon acceptance shall apply if and when the Purchaser allows the two-week period to expire or the Supplies are put to use after the completion of any agreed trial periods.
Article VII: Receiving Supplies
The Purchaser shall not refuse to receive Supplies on account of only minor defects.
Article VIII: Quality Defects
The Supplier shall be liable for quality defects (“Sachmängel", hereinafter referred to as "Defects") as follows:
Defective parts or defective services shall, at the Supplier's discretion, be either repaired, replaced or provided again free of charge, provided that the reason for the Defect already existed at the time when the risk passed to the Purchaser.
Claims for repair or replacement are subject to a statute of limitations of 12 months calculated from the time when the statutory statute of limitations began; the same shall apply mutatis mutandis in the case of rescission and reduction. This shall not apply where longer periods are prescribed by law according to Art. 438 Para. 1 No. 2 (Buildings and items for building), Art. 479 Para. 1 (Right of recourse), or Art. 634a Para. 1 No. 2 (Building defects) of the German Civil Code ("Bürgerliches Gesetzbuch"), or in the case of intent, fraudulent concealment of the Defect or non-compliance with guaranteed characteristics ("Beschaffenheitsgarantie"). The legal provisions regarding suspension of the statute of limitations ("Ablaufhemmung", "Hemmung") and recommencement of limitation periods shall be unaffected.
Notifications of Defect by the Purchaser shall be given in written form without undue delay.
In the case of notification of a Defect, the Purchaser may withhold payments to an amount that is in a reasonable proportion to the Defect. However, the Purchaser may only withhold payments if the object of the notification of Defect involved is incontestable. The Purchaser has no right to withhold payments if the period during which it may claim for a Defect has expired. Unjustified notifications of Defect shall entitle the Supplier to demand reimbursement of its expenses by the Purchaser.
The Supplier shall be given the opportunity to repair or to replace the defective goods ("Nacherfüllung") within a reasonable period of time.
If repair or replacement is unsuccessful, the Purchaser is entitled to rescind the contract or reduce the amount payable; any claims for damages to which the Purchaser may be entitled pursuant to No. 10 shall be unaffected.
There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, only minor impairment of usability, natural wear and tear, or damage arising after the passing of risk as a result of faulty or negligent handling, excessive strain, unsuitable equipment, defective building work, inappropriate subsoil, or claims based on particular external influences not assumed under the contract, or non-reproducible software errors. Claims based on defects attributable to improper modifications or repair work carried out by the Purchaser or third parties and the consequences thereof are likewise excluded.
The Purchaser shall have no claim with regard to expenses incurred in the course of supplementary performance, including costs of travel, transport, labor, and material, to the extent that expenses are increased because the object of the Supplies has subsequently been brought to a location other than the Purchaser's branch office, unless doing so is consistent with normal use of the Supplies.
The Purchaser's right of recourse against the Supplier pursuant to Art. 478 BGB is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects. Moreover, No. 8 above shall apply mutatis mutandis to the scope of the right of recourse the Purchaser has against the Supplier pursuant to Art. 478 Para. 2 BGB.
The Purchaser shall have no claim for damages based on Defects. This shall not apply to the extent that a Defect has been fraudulently concealed, the guaranteed characteristics are not complied with, or in the case of loss of life, bodily injury or damage to health and/or intentionally or grossly negligent breach of contract on the part of the Supplier. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser. Any other or additional claims of the Purchaser based on a Defect which exceed the claims provided for in this Article VIII, are excluded.
Article IX: Industrial Property Rights and Copyrights; Defects In Title
Unless otherwise agreed, the Supplier shall provide the Supplies free from third parties' industrial property rights and copyrights (hereinafter referred to as "IPRs") with respect to the country of the place of delivery only. 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 Article VIII No. 2 as follows:
a) The Supplier shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies concerned, modify the Supplies such that they no longer infringe the IPR, or replace them. If this would be impossible for the Supplier under reasonable terms, the Purchaser may rescind the contract or reduce the remuneration pursuant to the applicable statutory provisions;
b) The Supplier's liability to pay damages is governed by Article XII;
c) The above obligations of the Supplier shall apply only if the Purchaser (i) immediately notifies the Supplier of any such claim asserted by the third party in written form, (ii) does not concede the existence of an infringement and (iii) leaves any protective measures and settlement negotiations to the Supplier's discretion. If the Purchaser stops using the Supplies in order to reduce the damage or for other good reason, it shall be obliged to indicate to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that use has been discontinued.
Claims of the Purchaser shall be excluded if it is responsible for the infringement of an IPR.
Claims of the Purchaser shall also be excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by a type of use 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.
In addition, with respect to claims by the Purchaser pursuant to No. 1 a) above, Article VIII Nos. 4, 5, and 9 shall apply mutatis mutandis in the event of an infringement of an IPR.
Where other defects in title occur, Article VIII shall apply mutatis mutandis.
Any other claims of the Purchaser against the Supplier or its agents or any such claims which exceed the claims provided for in this Article IX based on a defect in title are excluded.
Article X: Conditional Performance
The performance of this contract Is conditional upon there being no hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or any existing embargos or other sanctions.
The Purchaser shall provide any information and Documents required for export, transport and import purposes.
Article XI: Impossibility of Performance; Adaptation of Contract
To the extent that delivery is impossible, the Purchaser is entitled to claim damages, unless the Supplier is not responsible for the impossibility of the situation. The Purchaser's claim for damages shall, however, be limited to a maximum of 10% of the value of the part of the Supplies which, owing to the impossibility of the situation, cannot be put to their intended use. This limitation shall not apply in the case of liability based on intent, gross negligence or loss of life, bodily injury or damage to health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The Purchaser's right to rescind the contract shall be unaffected.
Where events within the meaning of Article IV No. 2 (a) to (c) substantially change the commercial importance or the contents of the Supplies or substantially affect the Supplier's business, the contract shall be amended taking into account the principles of reasonableness and good faith. To the extent that this is not justifiable for commercial reasons, the Supplier shall have the right to rescind the contract. The same applies if the required export permits are not granted or cannot be used. If the Supplier intends to exercise its right to rescind the contract, it shall notify the Purchaser accordingly without undue delay after having become aware of the repercussions of the event; this shall apply even where an extension of the delivery period has previously been agreed with the Purchaser.
Article XII: Other Claims for Damages
Unless otherwise provided for in these GTCs, the Purchaser has no claim for damages based on any legal grounds whatsoever, including infringement of duties arising in connection with the contract or tort.
This does not apply if liability is based on:
a) the German Product Liability Act ("Produkthaftungsgesetz");
c) gross negligence on the part of the owners, legal representatives or executives;
e) failure to comply with a guarantee which has been granted;
f) negligent injury to life, limb or health; or
g) negligent breach of a fundamental contractual condition ("wesentliche Vertragspflichten”).
However, claims for damages arising from a breach of a fundamental contractual condition shall be limited to the foreseeable damage which is typical vis-à-vis the type of contract in question, provided that none of the other cases listed above applies.
The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.
Article XIII: Venue and Applicable law
If the Purchaser is a businessman, the sole venue for all disputes arising directly or indirectly out of the contract shall be the Supplier's place of business. However, the Supplier may also bring an action at the Purchaser's place of business.
This contract and its interpretation shall be governed by German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Article XIV: Severability Clause
The legal invalidity of one or more provisions of this Agreement shall in no way affect the validity of the remaining provisions. This shall not apply if it would be unreasonably onerous for one of the parties to be obligated to continue the contract.