AGB's
General Terms and Conditions of Delivery
for products and services of the electrical industry
(“Green Delivery Conditions” – GL)
for use in business transactions with entrepreneurs
As of June 2013 – Terms and Conditions
I. General Provisions
1. These General Terms and Conditions (GTC) govern the relationship between the supplier and the customer in connection with the supplier's deliveries and/or services (hereinafter referred to as "deliveries"). The customer's general terms and conditions apply only to the extent that the supplier has expressly agreed to them in writing. The scope of the deliveries is determined by the mutually agreed written declarations.
2. The supplier retains all proprietary and copyright exploitation rights to cost estimates, drawings, and other documents (hereinafter referred to as "documents"). These documents may only be made available to third parties with the supplier's prior consent and must be returned to the supplier immediately upon request if the order is not placed with the supplier. Sentences 1 and 2 apply accordingly to documents of the customer; however, these may be made available to third parties to whom the supplier has legitimately subcontracted deliveries.
3. The customer has the non-exclusive right to use the standard software and firmware with the agreed features in unmodified form on the agreed devices. The customer may create a backup copy of the standard software without express agreement.
4. Partial deliveries are permitted insofar as they are reasonable for the customer.
5. The term “claims for damages” in these General Terms and Conditions also includes claims for reimbursement of wasted expenses.
II. Prices, terms of payment and offsetting
1. Prices are ex-works, excluding packaging and applicable VAT.
2. If the supplier has undertaken the installation or assembly and nothing else has been agreed, the customer shall bear, in addition to the agreed remuneration, all necessary incidental costs such as travel and transport costs as well as allowances.
3. Payments are to be made free of charge to the supplier's payment office.
4. The customer may only offset claims that are undisputed or have been legally established.
III. Retention of Title
1. The delivered goods (goods subject to retention of title) remain the property of the supplier until all claims against the customer arising from the business relationship have been satisfied. If the value of all security rights to which the supplier is entitled exceeds the amount of all secured claims by more than 10%, the supplier will release a corresponding portion of the security rights at the customer's request; the supplier has the right to choose which security rights to release.
2. During the period of retention of title, the customer is prohibited from pledging or assigning the goods as security, and resale is only permitted to resellers in the ordinary course of business and only on the condition that the reseller receives payment from his customer or stipulates that title to the goods will only pass to the customer once he has fulfilled his payment obligations.
3. In the event of attachments, seizures or other dispositions or interventions by third parties, the customer must notify the supplier immediately.
4. In the event of a breach of contract by the customer, particularly in the case of default in payment, the supplier is entitled, after the unsuccessful expiry of a reasonable period granted to the customer for performance, not only to take back the goods but also to withdraw from the contract; the statutory provisions regarding the dispensability of setting a deadline remain unaffected. The customer is obligated to surrender the goods. The taking back of the goods, the assertion of the retention of title, or the seizure of the goods subject to retention of title by the supplier does not constitute a withdrawal from the contract, unless the supplier has expressly declared this.
IV. Delivery deadlines; delay
1. Adherence to delivery deadlines is contingent upon the timely receipt of all documents, necessary permits and approvals to be provided by the customer, in particular plans, as well as the customer's compliance with the agreed payment terms and other obligations. If these conditions are not met in a timely manner, the deadlines shall be extended accordingly; this does not apply if the supplier is responsible for the delay.
1. If the failure to meet deadlines is due to force majeure, e.g., mobilization, war, riot, or similar events, e.g., strike, lockout, the deadlines shall be extended appropriately. The same applies in the event of late or improper delivery by the supplier. 3. If the supplier is in default, the purchaser may – provided he credibly demonstrates that he has incurred damages as a result – claim compensation for each completed week of delay amounting to 0.5%, but not exceeding a total of 5% of the price for that part of the deliveries that could not be put into operation as intended due to the delay.
2. Claims for damages by the customer due to delayed delivery, as well as claims for damages in lieu of performance exceeding the limits specified in clause 3, are excluded in all cases of delayed delivery, even after the expiry of any delivery deadline set for the supplier. This does not apply in cases of intent, gross negligence, or liability for injury to life, body, or health. The customer may only withdraw from the contract in accordance with statutory provisions if the delay in delivery is attributable to the supplier. The aforementioned provisions do not entail any shift in the burden of proof to the detriment of the customer.
3. The customer is obliged, at the supplier's request and within a reasonable period, to declare whether he is withdrawing from the contract due to the delay in delivery or whether he insists on delivery.
4. If shipment or delivery is delayed at the customer's request by more than one month after notification of readiness for shipment, the customer may be charged storage fees of 0.5% of the price of the goods for each additional month or part thereof, up to a maximum of 5% in total. The parties remain free to prove higher or lower storage costs.
V. Transfer of Risk
1. Even in the case of carriage-free delivery, the risk passes to the buyer as follows:
a. For deliveries without installation or assembly, once they have been dispatched or collected. At the buyer's request and expense, the supplier will insure deliveries against standard transport risks;
b. in the case of deliveries involving installation or assembly on the day of acceptance into own operation or, if agreed, after successful trial operation.
2. If the dispatch, delivery, commencement, execution of the installation or assembly, commissioning or trial operation is delayed for reasons attributable to the customer, or if the customer is in default of acceptance for other reasons, the risk passes to the customer.
VI. Setup and Assembly
Unless otherwise agreed in writing, the following provisions apply to the installation and assembly:
1. The purchaser shall, at his own expense, provide and deliver in a timely manner:
a. all earthworks, construction work and other ancillary work not related to the industry, including the necessary skilled and unskilled workers, building materials and tools,
b. the necessary equipment and materials for assembly and commissioning, such as scaffolding, lifting equipment and other devices, fuels and lubricants,
c. Energy and water at the point of use, including connections, heating and lighting,
d. at the assembly site, sufficiently large, suitable, dry and lockable rooms for storing machine parts, equipment, materials, tools, etc., and adequate work and break rooms for the assembly personnel, including sanitary facilities appropriate to the circumstances; furthermore, the customer shall take the same measures to protect the property of the supplier and the assembly personnel on the construction site as he would take to protect his own property.
e. Protective clothing and protective equipment required due to special circumstances at the assembly site.
2. Before the start of the assembly work, the customer shall provide, without being asked, the necessary information about the location of concealed power, gas, water lines or similar installations as well as the required static information.
3. Before the start of installation or assembly, all necessary equipment and materials must be present at the installation or assembly site, and all preparatory work must be sufficiently advanced to allow installation or assembly to begin as agreed and proceed without interruption. Access routes and the installation or assembly site must be level and clear.
4. If the installation, assembly or commissioning is delayed due to circumstances beyond the supplier's control, the customer shall bear the costs for waiting time and any additional travel required by the supplier or the assembly personnel to a reasonable extent.
5. The customer shall certify to the supplier weekly the working hours of the assembly personnel and immediately upon completion of the installation, assembly or commissioning.
6. If the supplier requests acceptance of the delivery upon completion, the customer must carry out the acceptance within two weeks. If this does not occur, acceptance is deemed to have taken place. Acceptance is also deemed to have taken place if the delivery has been put into use – possibly after completion of an agreed test phase.
VII. Receipt
The customer may refuse acceptance of deliveries due to insignificant defects.
Do not deny defects.
VIII. Material Defects
The supplier is liable for material defects as follows:
1. The supplier shall, at its option, repair, replace or re-perform free of charge any parts or services which have a material defect, provided that the cause of the defect was already present at the time of the transfer of risk.
2. Claims for subsequent performance become statute-barred 12 months from the statutory commencement of the limitation period; the same applies to rescission and price reduction. This period does not apply insofar as the law prescribes longer periods in accordance with Sections 438 Paragraph 1 No. 2 (buildings and items for buildings), 479 Paragraph 1 (right of recourse) and 634a Paragraph 1 No. 2 (construction defects) of the German Civil Code (BGB) in cases of intent, fraudulent concealment of the defect, or breach of a warranty of quality. The statutory provisions regarding suspension, interruption, and recommencement of limitation periods remain unaffected.
3. Any complaints from the customer must be made in writing without delay.
4. In the event of a complaint regarding defects, the customer may withhold payments to an extent that is proportionate to the defects. The customer may only withhold payments if a complaint regarding defects is made and its validity is beyond doubt. The customer has no right to withhold payment if their claims for defects are time-barred. If the complaint regarding defects was unjustified, the supplier is entitled to demand reimbursement from the customer for any expenses incurred.
5. The supplier must be given the opportunity to remedy the defect within a reasonable period.
6. If the subsequent performance fails, the customer may – without prejudice to any claims for damages pursuant to clause 10 – withdraw from the contract or reduce the remuneration.
7. Claims for defects do not exist in the case of only minor deviations from the agreed quality, only minor impairment of usability, natural wear and tear, or damage that occurs after the transfer of risk as a result of faulty or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground, or due to special external influences not stipulated in the contract, as well as in the case of non-reproducible software errors. If the customer or third parties carry out improper modifications or repairs, no claims for defects exist for these modifications or repairs or for the resulting consequences.
8. Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded to the extent that the expenses increase because the object of the delivery has subsequently been moved to a location other than the customer's place of business, unless the relocation corresponds to its intended use.
9. The purchaser's recourse claims against the supplier pursuant to Section 478 of the German Civil Code (BGB) (recourse of the entrepreneur) exist only to the extent that the purchaser has not entered into any agreements with its own customer that extend beyond the statutory warranty claims. Furthermore, Clause 8 applies accordingly to the scope of the purchaser's recourse claim against the supplier pursuant to Section 478 Paragraph 2 of the German Civil Code (BGB).
10. Claims for damages by the purchaser due to a defect are excluded. This does not apply in cases of fraudulent concealment of the defect, breach of a warranty of quality, injury to life, body, health, or freedom, or in cases of intentional or grossly negligent breach of duty by the supplier. The aforementioned provisions do not entail any shift in the burden of proof to the detriment of the purchaser. Further claims by the purchaser due to a defect, or claims other than those regulated in this Article VIII, are excluded.
IX. Industrial property rights and copyrights; legal defects
1. Unless otherwise agreed, the supplier is obligated to deliver the goods free from third-party industrial property rights and copyrights (hereinafter referred to as "intellectual property rights") only in the country of the place of delivery. If a third party asserts justified claims against the customer due to the infringement of intellectual property rights by deliveries provided by the supplier and used in accordance with the contract, the supplier shall be liable to the customer within the period specified in Article VIII, Section 2, as follows:
a. The supplier shall, at its own discretion and expense, either obtain a right of use for the deliveries in question, modify them so that the intellectual property right is not infringed, or replace them. If this is not possible for the supplier under reasonable conditions, the purchaser shall be entitled to the statutory rights of withdrawal or price reduction. b) The supplier's obligation to pay damages is governed by Article XI.
b. The supplier's aforementioned obligations only apply if the purchaser immediately notifies the supplier in writing of any claims asserted by a third party, does not acknowledge any infringement, and reserves all rights to defend against such claims and to conduct settlement negotiations. If the purchaser discontinues use of the delivery for reasons of damage mitigation or other important reasons, the purchaser is obligated to inform the third party that the discontinuation of use does not constitute an acknowledgment of any infringement of intellectual property rights.
2. Claims by the customer are excluded to the extent that he is responsible for the infringement of intellectual property rights.
3. Claims of the customer are further excluded insofar as the infringement of intellectual property rights is caused by special requirements of the customer, 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.
4. In the event of infringements of intellectual property rights, the provisions of Article VIII, Nos. 4, 5 and 9 shall apply accordingly to the claims of the Customer regulated in No. 1 a).
5. In the event of other legal defects, the provisions of Article VIII shall apply accordingly.
6. Any further or other claims of the Purchaser against the Supplier and its agents due to a defect of title, other than those regulated in this Article IX, are excluded.
X. Impossibility; Contract Adjustment
1. If delivery is impossible, the buyer is entitled to claim damages, unless the supplier is not responsible for the impossibility. However, the buyer's claim for damages is limited to 10% of the value of that part of the delivery which cannot be put into operation as intended due to the impossibility. This limitation does not apply in cases of intent, gross negligence, or liability for injury to life, body, or health; this does not entail a shift in the burden of proof to the detriment of the buyer. The buyer's right to withdraw from the contract remains unaffected.
2. If unforeseen events within the meaning of Article IV, Section 2 significantly alter the economic significance or content of the delivery or have a significant impact on the supplier's operations, the contract will be appropriately adjusted in accordance with the principles of good faith. If such an adjustment is not economically feasible, the supplier has the right to withdraw from the contract. If the supplier intends to exercise this right of withdrawal, they must inform the customer immediately upon becoming aware of the extent of the event, even if an extension of the delivery period had initially been agreed upon with the customer.
XI. Other claims for damages; statute of limitations
1. Claims for damages by the customer, regardless of the legal basis, in particular for breach of obligations arising from the contractual relationship and from tort, are excluded.
2. This does not apply to the extent that liability is mandatory, e.g., under the Product Liability Act, in cases of intent, gross negligence, injury to life, body, or health, or breach of essential contractual obligations. However, the claim for damages for breach of essential contractual obligations is limited to the foreseeable damage typical for this type of contract, unless the breach was intentional or grossly negligent, or involves injury to life, body, or health. The aforementioned provisions do not entail any shift in the burden of proof to the detriment of the customer.
3. To the extent that the customer is entitled to claims for damages, these shall become time-barred upon expiry of the limitation period applicable under Article VIII, Section 2. The same applies to claims by the customer in connection with measures to avert damages (e.g., product recalls). For claims for damages under the Product Liability Act, the statutory limitation periods shall apply.
XII. Jurisdiction and applicable law
1. If the customer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the supplier's place of business. However, the supplier is also entitled to bring legal action at the customer's place of business.
2. The legal relations relating to this contract shall be governed by German substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIII. Binding Nature of the Contract
Even if individual provisions are legally invalid, the contract remains binding in its remaining parts. This does not apply if upholding the contract would constitute an unreasonable hardship for one party.