General Terms and Conditions
I. General provisions
1. Concerning the legal relationships between the supplier and purchaser regarding the deliveries and/or services of the supplier (hereinafter referred to as the deliveries), these business terms and conditions shall apply exclusively. The general terms and conditions of the purchaser are only valid insofar as the supplier has expressly agreed to them in writing. The scope of deliveries shall be determined by the mutually agreed written declarations.
2. The supplier reserves the unrestricted rights of ownership and copyright in relation to cost estimates, drawings and other documents (hereinafter referred to as the documents). These documents may only be made accessible to third parties with the prior consent of the supplier. If the order has not been placed with the supplier, these documents must be returned to the supplier immediately upon request. Sections 1 and 2 above shall apply accordingly to documents of the purchaser. However, these may be made available to those third parties to whom the supplier has legitimately transferred deliveries.
3. For standard software and firmware, the purchaser has the non-exclusive right to use the agreed features in unaltered form on the agreed devices. The purchaser may create a backup copy of the standard software without an express agreement.
4. Partial deliveries are permissible insofar as they are reasonable for the purchaser.
5. The phrase "claim for damages" in these business terms also covers claims for reimbursement of futile expenses.
II. Prices, terms of payment and offsetting payments
1. The prices are ex works and do not include packaging or applicable VAT.
2. If the supplier is responsible for the installation or assembly, and if nothing else has been agreed, the purchase shall pay all necessary ancillary costs, such as travel, transport costs and trips, in addition to the agreed remuneration.
3. Payments shall be made free of charges to the paying agent of the supplier.
4. The purchaser can only offset such claims that have been undisputed or legally binding.
III. Retention of title
1. The objects of the deliveries (the reserved goods) remain the property of the supplier until the fulfilment of all claims against the customer 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 by more than 10%, the supplier shall, at the request of the purchaser, release a corresponding part of the security interests; the supplier is entitled to choose between different security interests.
2. While the retention of title exists, the purchaser is prohibited from pledging or transferring security. Resale is only permitted to resellers in the ordinary course of business and only on the condition that the reseller receives payment from their customer or makes the reservation so that the ownership passes to the customer first, if they have fulfilled their payment obligations.
3. In the case of seizures, confiscations or other dispositions or interventions by third parties, the purchaser must inform the supplier immediately.
4. In the event of breaches of duty by the purchaser, in particular in the case of a payment default, the supplier shall be entitled to withdraw from the contract and repossess the goods after the unsuccessful expiry of a reasonable deadline set for the purchaser. The legal provisions on the dispensability of setting a deadline remain unaffected. The purchaser shall be obliged to surrender the goods. The rescission or assertion of the retention of title or the seizure of the reserved goods by the supplier does not constitute a withdrawal from the contract, unless the supplier has expressly stated this.
IV. Deadlines for deliveries and delays
1. The observance of delivery deadlines assumes the punctual receipt of all documents to be supplied by the purchaser, the necessary approvals, in particular of plans, as well as the adherence to the agreed terms of payment and other obligations by the purchaser. If these conditions are not met punctually the deadlines will be extended accordingly; this shall not apply if the supplier is responsible for the delay.
2. If the deadlines cannot be met because of a force majeure (e.g. mobilizations, war, rebellion, strikes, lockouts, or similar) the deadlines shall be extended appropriately. The same applies in the event of late delivery or improper delivery to the supplier.
3. If the supplier is in default, the purchaser can – if he makes a credible case that he has suffered a loss – demand a compensation for each completed week of default of 0.5%, but not more than 5% of the price of the partial delivery, which could not be taken into appropriate operation because of the delay.
4. Claims for damages by the purchaser caused by delay of the delivery as well as claims for damages in excess of the limits mentioned in Section 3 are excluded in all cases of delayed delivery, even after expiry of a delivery period set for the supplier. This does not apply insofar as liability is mandatory, in cases of intent, gross negligence or injury to life, limb or health. The purchaser can only withdraw from the contract within the scope of the statutory provisions when the delay in the delivery is the responsibility of the supplier. A change in the burden of proof to the detriment of the purchaser is not connected with the preceding provisions.
5. The purchaser is obliged, at the request of the supplier, to declare within a reasonable period of time whether they shall withdraw from the contract due to the delay in delivery or demand the delivery.
6. If, at the request of the purchaser, the shipping or delivery is delayed by more than one month after notification of readiness for shipping, the purchaser may be charged storage fees amounting to 0.5% of the price of the goods (and up to a max. of 5%) for each additional month started. The proof of higher or lower storage costs remains to the contracting parties.
V. Transfer of risk
1. The risk passes to the purchaser, also in the case of freight-free delivery, as follows:
a) For deliveries without installation or assembly, when they have been sent for shipment or have been picked up. At the request and expense of the purchaser, deliveries can be insured by the supplier against the usual transport risks;
b) For deliveries with installation or assembly, on the day of acceptance on-site, if agreed upon, after a trouble-free test run.
2. If the shipment, delivery, start, implementation of the installation or assembly, takeover in own operation or test operations are delayed for reasons for which the purchaser is responsible or if the purchaser is in default of acceptance for any other reason, then the risk shall be transferred to the purchaser.
VI. Installation and assembly
Unless otherwise agreed in writing, the following provisions apply to the installation and assembly:
1. The purchaser must pay for and assume responsibility for the punctuality of:
a) All groundworks, construction and other external activities, including the necessary specialists and auxiliary personnel, building materials and tools,
b) The materials required for the assembling and initial commissioning, such as scaffolding, hoists and other equipment, fuels and lubricants,
c) Energy and water at the point of use, including connections, heating and lighting,
d) The on-site storage of the machine parts, equipment, materials, tools, etc., in sufficiently large, suitable, dry and lockable rooms. In addition, working and rest rooms adequate for the installation personnel, including the appropriate sanitary facilities. In order to protect the possessions of the supplier and the installation personnel on site, the purchaser must take the same measures that they would take to protect their own property,
e) Protective clothing and protective equipment, as required by any special circumstances at the installation site.
2. Before the start of the assembly work, the purchaser must provide (without being asked) the necessary information about the position of any concealed power, gas, water pipes, etc. as well as the relevant static information.
3. Before starting the installation or assembly work, the equipment and objects required to commence the work shall be at the installation or assembly site. In addition, all preparatory work prior to commencement of construction shall be so advanced so as to accommodate the installation or general conditions for supplying products and services of the electrical industry (the German "Green Terms of Delivery GL") for use in business transactions with companies: non-binding terms and conditions of the German electrical and electronic manufacturers' association (ZVEI).
4. If the installation, assembly or commissioning is delayed due to circumstances for which the supplier is not responsible, the purchaser shall bear the costs associated with waiting and any additional travel required by the supplier or assembly personnel to an appropriate extent.
5. The purchaser must certify a report to the supplier concerning the duration of the working time of the assembly personnel, the completion of the installation, assembly or commissioning without delay.
6. If the supplier demands the acceptance of the delivery after completion, the purchaser must carry out this process within two weeks. If this does not happen, the acceptance is still deemed to have taken place. The acceptance shall also be deemed to have taken place if the delivery has been put into usage – possibly after the conclusion of an agreed test phase.
The purchaser may not refuse to accept deliveries due to insignificant defects.
The supplier is liable for material defects as follows:
1. All parts or services shall be repaired, re-delivered or re-delivered free of charge at the discretion of the supplier, provided that the cause of the defect existed already at the time of the transfer of risk.
2. Claims for supplementary performance shall become statute-barred in 12 months from the statutory limitation period. The same applies to withdrawal and reduction. This period does not apply if the law (§§ 438 (1) Section 2 (Buildings and property for buildings), 479 (1) (Right of recourse) and 634a (1) Section 2 (Construction defects) of the German Civil Code) stipulates longer periods for fraudulent concealment of the defect or failure to comply with a quality guarantee. The legal regulations regarding expiration inhibition, inhibition and new beginning of deadlines remain unaffected.
3. Complaints by the purchaser must be made immediately and in writing.
4. In the case of complaints, payments from the purchaser may be retained to an extent that is in reasonable proportion to the material defects that have occurred. The purchaser can withhold payments only if a notice of defect is asserted whose authority cannot be doubted. A right of retention of the purchaser does not exist if their warranty claims have lapsed. If the notice of defect is made improperly, the supplier is entitled to demand compensation for expenses incurred by the purchaser.
5. The supplier shall be granted the opportunity of supplementary performance within a reasonable period.
6. If the supplementary performance fails, the purchaser may – without prejudice to any claims for damages according to Section 10 – withdraw from the contract or reduce the remuneration.
7. Claims for defects shall not be based on insignificant deviations from the agreed condition, on insignificant impairment of usability, on natural wear or damage after the transfer of risk as a result of faulty or negligent treatment, on excessive use, resulting from unsuitable equipment, inadequate construction, unsuitable foundation, or because of special external influences that are not stipulated in the contract, or which result from non-reproducible software errors. If changes or repairs have been carried out improperly by the purchaser or by third parties, there shall be no claims for defects for these and the resulting consequences.
8. Claims by the purchaser for the expenses required for the purpose of supplementary performance (in particular for transport, travel, labour and material costs) are excluded insofar as the expenses have increased because the object of the delivery has subsequently been moved to a location other than the purchaser's location, unless the shipment complies with its intended usage.
9. Claims for recourse of the purchaser against the supplier in accordance with § 478 of the German Civil Code (recourse for companies) shall exist only to the extent that the purchaser has not made any agreements with his purchaser beyond the legal claims for defects. Section 8 also applies to the scope of the purchaser's recourse claim against the supplier in accordance with § 478 (2) of the German Civil Code.
10. Claims for damages of the purchaser due to a material defect are excluded. This does not apply when there is fraudulent concealment of the defect, failure to comply with a guarantee of quality, injury to life, limb, health or freedom, or intentional or grossly negligent breach of duty by the supplier. A change in the burden of proof to the detriment of the purchaser is not connected with the preceding provisions. Further claims of the purchaser based on a material defect, other than those regulated in this Art. VIII, are excluded.
IX. Corporate property rights and copyrights; defects of title
1. Unless otherwise agreed, the supplier is obliged only to deliver free of industrial property rights and third-party copyrights (hereinafter: property rights) in the country of the delivery location. If a third party raises justified claims against the purchaser based on the infringement of property rights by deliveries made by the supplier and used in accordance with the contract, the supplier is liable to the purchaser within the period specified in Art. VIII Section 2 as follows:
a) The supplier shall, at their own expense, either obtain a right of use for the deliveries in question, modify them so that the property right is not violated, or exchange them. If this is not reasonably possible for the supplier, the purchaser shall be entitled to the statutory right of withdrawal or reduction.
b) The supplier's obligation to pay damages is regulated by Art. XI.
c) The above-mentioned obligations of the supplier exist only insofar as the purchaser notifies the supplier of the claims asserted by the third party in writing without delay, does not acknowledge an infringement, and reserves all defensive measures and settlement negotiations for the supplier. If the purchaser suspends the use of the delivery because of damage mitigation or other important reasons, he is obliged to inform the third party that the cessation of use does not entail the acknowledgment of an infringement of property rights.
2. Claims of the purchaser are excluded when the purchaser is responsible for the infringement of property rights.
3. Claims by the purchaser are also excluded if the infringement of property rights is caused by any special requirements of the purchaser, by an unforeseeable usage by the supplier, or by the purchaser changing the order or using it together with products not supplied by the supplier.
4. In the case of infringements of property rights, the provisions of Art. VIII Sections 4, 5 and 9 shall also apply to the purchaser's claims regulated in Section 1 above.
5. In case of other legal defects, the provisions of Art. VIII shall apply accordingly.
6. Further claims of legal defect by the purchaser against the supplier and its vicarious agents (beyond those regulated in this Art. IX) are excluded.
X. Impossibility; contract adjustment
1. If the delivery is impossible, the purchaser is entitled to demand compensation, unless the supplier is not responsible for the impossibility. However, the claim for damages made by the purchaser is limited to 10% of the value of that part of the delivery which cannot be put into proper operation due to the particular impossibility. This restriction does not apply when the liability is mandatory as in cases of intent, gross negligence or injury to life, limb or health; a change in the burden of proof to the detriment of the purchaser is not connected with this. The right of the purchaser to withdraw from the contract remains unaffected.
2. If unforeseeable events within the meaning of Art. IV Section 2 significantly change the economic meaning or the content of the delivery or significantly affect the supplier's business, the contract shall be adjusted appropriately in good faith. Insofar as this is not economically justifiable, the supplier has the right to withdraw from the contract. If the supplier wishes to make use of this right of withdrawal, they must notify the purchaser immediately after having realized the significance of the event, even if an extension of the delivery time was initially agreed with the purchaser.
XI. Other claims for damages; limitation periods
1. Claims for damages of the purchaser, for whatever legal reason, in particular due to breach of obligations and from tortious liability, are excluded.
2. This does not apply if the liability is mandatory (e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, limb or health, or breach of material contractual obligations). The claim for damages for the breach of essential contractual obligations, however, is limited to the contractually typical, foreseeable damage, unless there is intent, gross negligence or liability for injury to life, limb or health. A change in the burden of proof to the detriment of the purchaser is not connected with the preceding provisions.
3. Insofar as the purchaser is entitled to claims for damages, these shall become statute-barred upon expiration of the applicable limitation period, pursuant to Art. VIII Section 2. The same applies to claims of the purchaser in connection with measures for damage prevention (e.g. recall actions). In the case of claims for damages made pursuant to the Product Liability Act, the statutory limitation provisions shall apply.
XII. Jurisdiction and applicable laws
1. If the purchaser is a merchant, the sole place of jurisdiction is the registered office of the supplier for all disputes arising directly or indirectly from the contractual relationship. However, the supplier is also entitled to sue at the purchaser's registered office.
2. German substantive law shall apply to the legal relationship surrounding this contract, but excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIII. Binding nature of the contract
The contract remains binding even if there is legal ineffectiveness of individual provisions in its other parts. This does not apply if the adherence to the contract would constitute an unreasonable hardship for a party.
© 2005ZVEI - German Electrical and Electronic Manufacturers' Association, Stresemannallee 19, 60596 Frankfurt am Main, Germany. All rights reserved.
Cancellation and withdrawal
You have the right to withdraw from this contract within fourteen days without giving any reason. The cancellation period is fourteen days from the day on which you, or a third party named by you who is not the carrier, has taken possession of the goods.
To exercise your right of withdrawal, you must contact us at PRONOVA Analysentechnik GmbH & Co. KG, Bahnhofstrasse 30, 07639 Bad Klosterlausnitz, Germany. Phone number: 49 - 36601 934 906; Fax number: 49 - 36601 934 907, E-mail: email@example.com)
Please send us a clear statement (e.g. via a letter sent by post, fax or e-mail) about your decision to withdraw from this contract.
You may use the attached withdrawal form template, but this is not mandatory.
In order to maintain this withdrawal period, it is sufficient when you send the notification of the exercise of your right of withdrawal before the expiry of the withdrawal period.
Consequences of the withdrawal
If you withdraw from this contract, we shall promptly (within no more than 14 days from the date at which your withdrawal notice reached us) return all payments we have received from you, including delivery charges (except for the additional costs arising from your choosing a different delivery method than the standard delivery offered by us).
For this repayment, we shall use the same means of payment that you used in the original transaction, unless otherwise agreed with you. In no case will you be charged repayment fees.
We may refuse repayment until we have received the goods back or until you have provided proof that you have returned the goods, whichever arrives earlier.
You must return the goods to us immediately and in any event not later than fourteen days from the date on which you informed us of your withdrawal from this contract. The deadline is met if you send the goods before the end of this period of fourteen days.
You must bear the immediate costs of returning the goods.
You only have to pay for a possible loss in value of the goods, if this loss of value is due to any handling that was not necessary for the examination of the nature, characteristics and functioning of the goods.
Exclusion of the right of withdrawal
The right of withdrawal does not apply to contracts when:
The delivered goods are not prefabricated and for the manufacture of which a customized selection or provision by the consumer is authoritative, or when the goods are clearly customized to the personal needs of the consumer,
- The delivered goods can spoil quickly or expire quickly,
- The delivered goods are sealed and not suitable for return for reasons of health or hygiene, and if their seal has been removed after delivery,
- The delivered goods, due to their nature, have been inseparably mixed with other goods after delivery,
- The delivered goods include sound/video recordings or computer software in a sealed package, when the seal has been removed after delivery.