General terms and conditions of delivery
for products and services of the electrical industry
("Green delivery conditions" - GL)
for application in commercial transactions with companies
- Status: June 2011 -
I. General provisions
- The legal relationships between supplier and purchaser in the context of the supplier's deliveries and/or services (referred to hereinafter as: deliveries) are subject solely to these general terms and conditions of delivery. The purchaser's general terms and conditions of business only apply if the supplier has given corresponding explicit written consent. The mutually corresponding written declarations are authoritative with regard to the scope of the deliveries.
- The supplier reserves unlimited ownership, copyrights and rights of use to cost estimates, drawings and other documents (referred to hereinafter as: documents). The documents may only be made accessible to third parties after obtaining the supplier's prior consent and must be returned to the supplier immediately at his request if the order is not placed with the supplier. Clauses 1 and 2 correspondingly apply to the purchaser's documents; however, these may be made accessible to those third parties to whom the supplier has permissibly outsourced deliveries.
- The purchaser has non-exclusive rights of use to standard software and firmware with the agreed performance characteristics in an unchanged form and on the agreed devices. The purchaser is permitted to generate a back-up copy of the standard software without express agreement.
- Partial deliveries are permissible, insofar as these are reasonably acceptable to the purchaser.
- The term "claims for compensation" as used in these general terms and conditions of delivery also covers compensation claims for expenditure made in vain.
II. Prices, conditions of payment and offset
- The prices quoted are ex works excluding packaging and are subject to the respective statutory rate of value added tax.
- If the supplier has agreed to undertake the erection or installation and where no other agreement exists, the purchaser shall bear not only the agreed remuneration but also all ancillary costs, such as travel, transport and release costs, as may be necessary.
- Payments shall be made free of transaction charges to the supplier's designated account.
- The purchaser may only offset claims that are undisputed or legally determined as final and absolute.
III. Retention of title
- The delivery items (conditional goods) remain the property of the supplier until satisfaction of all his claims against the purchaser arising from the business relationship. Insofar as the value of all collateral security to which the supplier is entitled exceeds the amount of all secured claims by more than 20%, the supplier shall release a corresponding part of the collateral security at the purchaser's request; the supplier is entitled to choose from the various items of collateral security for release.
- Whilst the retention of title applies, the purchaser is prohibited from pledging or transfer by way of security; resale is only permitted for resellers within the framework of normal business transactions and on condition that the reseller receives payment from his customers or makes the proviso that ownership shall not pass to the customer until he has fulfilled his payment obligations.
- If the purchaser should resell the conditional goods, he hereby assigns all his future claims against his customers, along with all subsidiary rights (including any claims relating to payment of the balance), that arise from the resale to the supplier by way of security without the need for any further special declarations. If the conditional goods should be resold together with other items without an individual price having been agreed for the conditional goods, the purchaser shall assign to the supplier the share of the overall price claim that corresponds to the price of the conditional goods as invoiced by the supplier.
a) The purchaser is permitted to process the conditional goods, or blend or combine these with other objects. This processing takes place on behalf of the supplier. The purchaser shall store the new item resulting from this processing for the supplier with the due care of a responsible businessman. The new item shall also become conditional goods.
b) The supplier and purchaser hereby agree that combining or blending the goods with other objects that do not belong to the supplier always results in the supplier gaining co-ownership over the new item proportional to the value of the conditional goods in comparison to the value of the other goods at the time of blending or combining these. The new item shall therefore become conditional goods to a proportionate degree.
c) The provision governing the assignment of claims according to No. 3 also applies to the new goods. However, this assignment of claims only applies to the amount invoiced by the supplier for the blended or combined conditional goods.
d) If the purchaser combines the conditional goods with plots of land or movable property, then he hereby also assigns to the supplier all of his claims that arise in the form of remuneration for the combined object, with all subsidiary rights, according to the proportionate value of the conditional goods in comparison to the value of the other goods at the time of combining these.
- Unless this authority is revoked, the purchaser is entitled to collect the assigned claims from the sale. If good reason exists, in particular with payment arrears, a cessation of payment, the initiation of insolvency proceedings, the protest of bills of exchange or substantiated indications of over-indebtedness or imminent insolvency on the part of the purchaser, the supplier is entitled to revoke the purchaser's collection powers. Moreover, provided he gives advance warning and observes an appropriate deadline, the supplier is entitled to disclose details of the assignment by way of security, realise the assigned claims and demand disclosure of the details of the security assignment by the purchaser in relation to the customer.
- In the event of seizure of the goods under distress, distraint or other forms of disposition or interference by third parties, the purchaser must inform the supplier without delay. If a legitimate interest is substantiated, the purchaser must immediately provide the supplier with the information necessary in order to assert his rights against the customer and hand over the necessary documents.
- If the purchaser infringes his contractual obligations, in particular through default of payment then, after an appropriate period of grace has expired in vain, the supplier is entitled not only to reclaim but also to withdraw from the contract; the statutory provisions relating to the dispensability of a deadline shall remain unaffected. The purchaser is obligated to surrender possession. If the reservation of title is withdrawn or enforced, or if the conditional goods are seized under distress by the supplier, this shall not constitute withdrawal from the contract unless this is expressly declared by the supplier.
IV. Delivery periods; default
- Compliance with delivery deadlines is conditional on punctual receipt of all documents to be provided by the purchaser, necessary permits and releases, including in particular plans and drawings, and on compliance with the agreed conditions of payment and other obligations on the part of the purchaser. If these conditions are not fulfilled on time, the deadlines shall extend accordingly; this shall not apply if the supplier is answerable for the delay.
- If failure to comply with the deadlines is caused by
a) Force Majeure, e.g. mobilisation, war, acts of terror, uprising or similar events (e.g. strikes or lock-outs),
b) Viruses and other attacks on the IT system of the supplier by third parties, insofar as these occur despite the requisite degree of caution and preventative security measures,
c) Impediments due to German, US American and other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which the supplier is not accountable, or
d) Unpunctual or incorrect deliveries to the supplier, the deadlines shall be extended accordingly.
- If the supplier is in default with delivery, the purchaser can demand compensation, insofar as the purchaser can show credibly that he has incurred corresponding damage, amounting to 0.5% for every completed week of delay but no more than 5% of the price for the part of the delivery that could not be commissioned for the intended purpose on account of the delay.
- Any compensation claims made by the purchaser on account of delayed delivery and any compensation claims in place of the service that exceed the limits cited in No. 3 are excluded in all cases of delayed delivery, even after expiry of any period of grace for delivery that has been granted to the supplier. This shall not apply in cases of liability for wilful intent, gross negligence or injuries to life, limb or health. The purchaser can only withdraw from the contract within the framework of the statutory provisions insofar as the supplier is answerable for the delayed delivery. The previous provisions are not associated with a change in the burden of proof to the detriment of the purchaser.
- At the supplier's request, the purchaser is obliged to declare within an appropriate period whether he intends to withdraw from the contract due to the delayed delivery or whether he insists on receiving the delivery.
- If shipment or delivery is delayed at the purchaser's request for more than one month after notification that the goods are ready for shipment, the purchaser can be charged for storage charges per month or part thereof amounting to 0.5% of the price for the items to be delivered, although no more than 5% in total. The parties are free to provide evidence of higher or lower storage costs.
V. Transfer of risk
- Risk passes to the purchaser as follows, also for freight-free delivery:
a) For deliveries without erection or assembly, on being made available for shipment or on collection. At the purchaser's request and cost, the supplier shall insure the delivery against normal transport risks;
b) For deliveries with erection or assembly, on the day of take-over into own operation, or after faultless trial operation, as agreed.
- If delays for which the purchaser is answerable are caused to the shipment, delivery, commencement, the erection or assembly procedure, take-over into own operation or trial operation, or if the purchaser is delayed in acceptance for any other reasons, the risk shall pass to the purchaser.
VI. Installation and assembly
The following provisions apply to the installation and assembly, insofar as no other written agreement exists:
- The purchaser is required to undertake or make the following available in good time and at his own cost:
a) All earthworks, construction and other ancillary works outside the supplier's industry, including the requisite specialist and auxiliary personnel, construction 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) Power and water at the place of use including the connections, heating and lighting,
d) Suitable, dry and lockable rooms of sufficient size adjacent to the assembly site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the assembly personnel, including sanitary facilities as are appropriate under the specific circumstances; furthermore, the purchaser shall implement all measures that he would implement for the protection of his own property in order to protect the property of the supplier and the assembly personnel on the site,
e) Protective clothing and protective equipment, which is necessary due to the circumstances specific to the assembly site. Prior to starting the assembly work, the purchaser must provide the requisite information regarding the position of concealed electricity, gas and water lines or similar systems, as well as the requisite structural information without request.
- Prior to starting the installation or assembly work, the provisions and items required for commencing the work shall be located at the place of installation or assembly, and all preliminary work must have progressed sufficiently - prior to starting the set-up work - that the installation or assembly can commence in accordance with agreement and can be performed without interruption. Access roads and the place of installation or assembly must be levelled and cleared.
- Should the installation, assembly or commissioning be delayed due to circumstances beyond supplier's control, the purchaser shall bear - to an appropriate extent - any expenses incurred due to waiting times, as well as any additionally required travel by supplier or the assembly staff.
- The purchaser shall promptly furnish the supplier with weekly documentation of the working hours of the assembly personnel, as well as a certificate of completion of installation, assembly or commissioning.
- If the supplier demands approval of the delivery following completion then the purchaser must undertake this within a period of two weeks. Tacit approval is granted if the purchaser allows the two-week period to lapse or if the delivery goods are put into use - where applicable after completion of an agreed test phase.
The purchaser may not refuse acceptance of deliveries for minor faults.
VIII. Material defects
The supplier is liable for material defects as follows:
- In the case of all parts or services showing material defects, the supplier shall repair these free of charge, or proceed with a replacement delivery or replacement provision of service at his own discretion insofar as the defect was already present with the transfer of risk.
- Claims for supplementary performance become time-barred within 12 months from the start of the statutory period of limitations; the same also applies to the right to withdraw or reduce the purchase price. This period does not apply insofar as the law per §§ 438 Section 1 No. 2 (Construction Work and Objects for Construction Work), 479 Section 1 (Right of Recourse) and 634a Section 1 No. 2 (Construction Defects), German Civil Code requires longer periods, or in cases of wilful acts, deceitful concealment of the defect, or with a failure to comply with guaranteed qualities. The legal regulations governing the suspension, inhibition and recommencement of the periods remain unaffected.
- Notices of defects from the purchaser must be submitted immediately in writing.
- In the case of notices of defects, the purchaser may withhold an appropriate portion of the payment relative to the material defects present. The purchaser may only withhold payment if a notice of defects has been asserted whose justification is without any doubt. The purchaser has no withholding rights if his claims for defects have fallen time barred. If notices of defects are unsubstantiated, the supplier is entitled to demand compensation from the purchaser for any expenditure incurred.
- The supplier shall be granted an opportunity for supplementary performance within an appropriate period of time.
- If the supplementary performance fails, the purchaser may withdraw from the contract or reduce payment without prejudicing any compensation claims pursuant to No. 10.
- No claims for defects can be asserted in the case of only minor deviation from the agreed property, only minor impairment of usability, natural wear or damage caused after the transfer of risk as a result or faulty or negligent handling, excessive loads, inappropriate operating equipment, defective construction work, unsuitable subsoil or on account of special outside influences that were not assumed under the contract, together with non-reproducible software errors. If the purchaser or a third party proceeds with inappropriate modifications or maintenance work, similarly no claims for defects can be asserted for any resulting consequences.
- Claims from the purchaser on account of expenditure incurred for the purpose of supplementary performance, including in particular transport, toll fees, labour and material costs are ruled out insofar as the expenditure is increased because the item that was delivered has been brought to another location than the purchaser's branch, unless such relocation corresponds to the respective intended use.
- The purchaser only has recourse against the supplier pursuant to § 478 German Civil Code (recourse of the entrepreneur) insofar as the purchaser has not reached any agreements with his purchasers above and beyond the statutory claims for defects. Furthermore, No. 8 also applies accordingly to the scope of the purchaser's recourse claim against the supplier per § 478 section 2 German Civil Code.
- Compensation claims on the part of the purchaser for material defects are ruled out. This does not apply to fraudulent concealment of the fault, failure to comply with warranted properties, injuries to life, limb and health, or with an infringement of obligation on the part of the supplier with wilful intent or gross negligence. The previous provisions are not associated with a change in the burden of proof to the detriment of the purchaser. Any claims on the part of the purchaser further to or other than those stipulated in this Section VIII for material defects are ruled out.
IX. Industrial property rights and copyrights; defects of title
- Unless otherwise agreed, the supplier is only obligated to fulfil the delivery in the country of the place of delivery, free of commercial property rights and copyrights of third parties (hereinafter: property rights). Insofar as a third party raises a justified claim against the purchaser due to the infringement of property rights on the part of the supplier, the supplier shall be liable to the purchaser during the period stipulated in Art. VIII No. 2 in accordance with the following:
a) At his own discretion and expense, the supplier shall either acquire the right to use the property rights with respect to the deliveries concerned, modify the respective deliveries so that they no longer infringe the property right, or replace them. If the supplier is unable to do so under appropriate conditions, the purchaser shall be entitled to exercise the statutory rights of cancellation or price reductions.
b) The obligation of the supplier to provide compensation for damages shall be determined according to Art. XII.
c) The aforementioned obligations of the supplier only arise if the purchaser informs the supplier in writing and immediately regarding the claims lodged by third parties, does not personally recognise an infringement and all forms of defence and settlement negotiations remain available to the supplier. If the purchaser ceases to use the delivery for mitigation purposes or for any other important reason then he is obligated to inform the third party that ceasing to use the product does not constitute recognition of the infringement of property rights.
- Claims on the part of the purchaser are excluded, insofar as he is culpable for the infringement of property rights.
- Claims on the part of the purchaser are also excluded insofar as the purchaser's specific specifications result in the property right infringement, or if the infringement of property rights is attributable to a use that could not be foreseen by the supplier, or is caused by the delivery being changed by the purchaser or put to use in conjunction with a product that was not supplied by the supplier.
- In the event of property rights being infringed, the claims of the purchaser regulated in No.1a) are also subject to the provisions of Art. VIII No. 4, 5 and 9 accordingly.
- If other defects of title exist then the provisions of Art. VIII shall apply accordingly.
- Any claims against the supplier and his vicarious agents on the part of the purchaser, further to or other than those stipulated in this Art. IX due to a defect of title, are excluded.
X. Place of fulfilment
- Contractual fulfilment is subject to the proviso that no impediments exist contrary to this, due to German, US American and other applicable national, EU or international regulations of foreign trade law, as well as any embargoes or other sanctions.
- The purchaser is obligated to supply all information and documents required in order to export, deliver or import the goods.
XI. Impossibility, contract amendment
- Insofar as the delivery is impossible, the purchaser is entitled to demand compensation unless the supplier is not answerable for the impossibility. However, the purchaser's compensation claim is limited to 10% of the value of that part of the delivery that cannot be commissioned for its intended purpose on account of the impossibility. This restriction does not apply in cases of liability due to wilful intent, gross negligence or injuries to life, limb or health; this is not associated with a change in the burden of proof to the detriment of the purchaser. The purchaser's right to withdraw from the contract remains unaffected.
- Insofar as events in accordance with section IV, No. 2 a) to c) considerably change the financial significance or the content of the delivery, or have a considerable influence on the supplier's operation, the contract shall be amended accordingly in compliance with the principles of good faith. If this is financially inappropriate, the supplier has the right to withdraw from the contract. The same applies if the requisite export permits are not issued or cannot be used. If the supplier intends to utilise this right of withdrawal, he shall inform the purchaser as soon as he becomes aware of the scope of the event, even if an extended delivery date had been initially agreed with the purchaser.
XII. Other compensation claims; period of limitations
- Unless otherwise stated in these terms and conditions of delivery, compensation claims by the purchaser are excluded for any legal reason whatsoever, particularly with a breach of duties arising from the contractual obligations or from unlawful acts.
- This shall not apply insofar as liability exists as follows:
a) according to the Product Liability Law,
b) in cases of wilful intent,
c) in cases of gross negligence on the part of owners, legal representatives or senior managers,
d) in cases of malice,
e) with a failure to adhere to an accepted guarantee,
f) due to culpable injury of life, limb or health, or
g) due to culpable infringement of significant contractual obligations. However, compensation claims for infringement of significant contractual obligations shall be limited to the predictable damage typical for the respective contract, insofar as none of the other aforementioned cases applies.
- The previous provisions are not associated with a change in the burden of proof to the detriment of the purchaser.
XIII. Place of jurisdiction and applicable law
- If the purchaser is a merchant, the sole place of jurisdiction for all disputes resulting directly or indirectly from the contractual relationships shall be the supplier's place of business. However, the supplier is also entitled to take legal action at the purchaser's place of business.
- This contract is subject to German law with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIV. Binding nature of the contract
Should individual provisions of the contract be legally invalid, the remainder of the contract shall still remain binding. This shall not apply if abiding by the contract would lead to unreasonable hardship for one of the parties.