General Terms of Delivery

General Terms of Delivery for Products and Services of the Electrical Industry (“Green Terms of Delivery” – GL)

Article I: General provisions

1. For the legal relations between supplier and purchaser in connection with the deliveries and/or services of the supplier (hereinafter: Deliveries) only these GL apply. General terms and conditions of the customer 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. On estimates, drawings and other documents (hereinafter referred to as: Documents), the supplier reserves his ownership and copyright exploitation rights without restriction. The documents may only be made accessible to third parties with the prior consent of the supplier and, if the order is not placed with the supplier, they must be returned to the supplier immediately upon request. Sentences 1 and 2 apply accordingly to documents of the purchaser; however, these may be made available to third parties to whom the supplier has legitimately transferred deliveries.

3. For standard software and firmware, the customer has the non-exclusive right to use the agreed features in unaltered form on the agreed devices. The customer may create a backup copy of the standard software without explicit agreement.

4. Partial deliveries are permissible insofar as they are reasonable for the purchaser.

5. The term “claims for damages” in these GL also covers claims for reimbursement of futile expenses.

Article II: Prices, terms of payment and offsetting

1. The prices are ex works exclusive of packaging plus applicable VAT.

2. If the supplier has taken over the installation or assembly and if nothing else has been agreed, the customer shall pay all necessary ancillary costs, such as travel and transport costs as well as trips, in addition to the agreed remuneration.

3. Payments are to be made free to the paying agent of the supplier.

4. The customer can only set off such claims that are undisputed or legally binding.

Article III: Retention of title

1. The objects of the deliveries (reserved goods) remain the property of the supplier until the fulfilment of all claims against the customer arising from the business relation. Insofar as the value of all security interests 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 security rights at the request of the ordering party; the supplier is entitled to choose between different security interests.

2. During the existence of the retention of title, the purchaser is prohibited from pledging or transferring security and the 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 that the ownership passes to the customer first, if they have fulfilled his payment obligations.

3. If the purchaser resells the goods subject to retention of title, they hereby assign to the supplier their future claims from the resale against their customers with all ancillary rights – including any balance claims – without any further special explanations. If the goods subject to retention of title are resold together with other objects without a single price having been agreed for the reserved goods, the customer assigns to the supplier the part of the total price claim which corresponds to the price of the reserved goods invoiced by the supplier.

4. a) The customer is allowed to process the reserved goods or to mix or combine with other objects. Processing takes place for the supplier. The customer keeps the resulting new thing for the supplier with the care of a proper businessman. The new item is regarded as reserved goods.

b) The supplier and purchaser already agree that if the goods are combined or mixed with other items not belonging to the supplier, the supplier shall, in any case, have co-ownership of the new item in proportion to the share resulting from the relationship between the value of the goods or mixed retained goods to the value of the remaining goods at the time of connection or mixing results. The new item is considered as reserved goods.

c) The regulation on the assignment of claims according to No. 3 also applies to the new item. However, the assignment shall only apply up to the amount corresponding to the value invoiced by the Supplier for the processed, combined or mixed reserved goods.

d) If the purchaser combines the reserved goods with land or movable property, he shall, without further special declarations, also assign his claim, which he is entitled to as remuneration for the connection, with all ancillary rights to the amount of the value of the connected reserved goods to the other connected goods at the time of the connection to the supplier.

5. Until further notice, the purchaser is entitled to collect assigned claims from the resale. In the event of good cause, in particular default of payment, cessation of payments, and opening of insolvency proceedings, bill protest or justified indications of over-indebtedness or impending insolvency of the customer, the supplier is entitled to revoke the direct debit authorization of the customer. In addition, the supplier may, upon prior warning and subject to a reasonable period of notice, disclose the assignment of security, use the assigned claims and demand the disclosure of the assignment by the purchaser to the customer.

6. In the case of pledging, seizures or other dispositions or interventions by third parties, the purchaser must inform the supplier immediately. If a legitimate interest can be substantiated, the purchaser must immediately provide the supplier with the information required to assert their rights against the customer and hand over the necessary documents.

7. In case of breach of duty of the customer, in particular default in payment, the supplier is entitled to resignation after unsuccessful expiry of a reasonable deadline set for the purchaser in addition to the return; the statutory provisions on the dispensability of setting a deadline remain unaffected. The customer is obliged to deliver. The withdrawal or assertion of the retention of title or the pledging of the reservation goods by the supplier does not constitute a withdrawal from the contract, unless the supplier has expressly stated this.

Article IV: Deadlines for deliveries; delay

1. The observance of delivery deadlines presupposes the punctual receipt of all documents to be supplied by the customer, necessary approvals and releases, in particular of plans, as well as the adherence to the agreed terms of payment and other obligations by the customer. If these conditions are not fulfilled in time, the deadlines will be extended accordingly; this does not apply if the supplier is responsible for the delay.

2. Failure to meet the deadlines is due to

a) force majeure, e.g. mobilization, war, acts of terror, riots, or similar events (e.g. strike, lockout),

b) Viruses and other attacks by third parties on the IT system of the supplier, insofar as these were carried out despite the usual care taken in protective measures,

c) obstacles due to German, US and other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which the supplier is not responsible, or

d) Failure to deliver to the supplier on time or on a regular basis, the deadlines shall be extended appropriately.

3. If the supplier is in delay, the customer can – if they prove that they have suffered a loss – a compensation for each completed week of default of 0.5%, but not more than 5% of the price of the part of the deliveries which could not be used appropriately due the delay.

4. Purchaser’s claims for damages resulting from the delay of the delivery, as well as claims for damages in excess of the limits mentioned in no. 3 are excluded in all cases of delayed delivery, even after the expiry of a delivery period set for the supplier. This does not apply in cases of intent, gross negligence or injury to life, limb or health. The customer can only withdraw from the contract within the scope of the statutory provisions insofar as the delay in the delivery is the responsibility of the supplier.
A change in the burden of proof to the detriment of the customer is not connected with the above regulations.

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 the delivery.

6. If shipping or delivery is delayed by more than one month after notification of readiness for despatch at the request of the purchaser, the purchaser may be charged storage fees amounting to 0.5% of the price of the goods for each additional month started, up to a maximum of 5%. The proof of higher or lower storage costs remains to the contracting parties.

Article V: Transfer of Risk

1. The risk also passes to the purchaser in the case of freight-free delivery as follows:

a) in the case of delivery without erection or assembly, if it has been brought for shipment or has been picked up. At the request and expense of the customer, the delivery is insured by the supplier against the usual transport risks;

b) on delivery with installation or assembly on the day of acceptance in own operation or, if agreed, after successful trial operation.

2. If the dispatch, the delivery, the beginning, the implementation of the installation or assembly, the takeover in own operating or trial operation for reasons for which the purchaser is responsible or if the purchaser is in default of acceptance for any other reason, the risk goes to the Orderer over.

Article VI: Installation and assembly
Unless otherwise agreed in writing, the following provisions apply to installation and assembly:

1. The customer has to take over at his expense and to provide in time:

a) all ancillary, construction and other external activities, including the necessary specialists and auxiliary personnel, building materials and tools,

b) the commodities and materials required for assembly and 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) at the installation site for the storage of the machine parts, equipment, materials, tools, etc. of sufficient size, suitable, dry and lockable rooms and working and recreation rooms adequate for the installation personnel, including the circumstances of appropriate sanitary facilities; moreover, in order to protect the possession of the supplier and the installation personnel on site, the customer must take the measures which he would take to protect his own property,

e) Protective clothing and protective equipment required as a result of special circumstances of the installation site.

2. Before the start of the assembly work, the customer must provide the necessary information on the position of concealed power, gas, water pipes or similar systems, as well as the required static information without being asked.

3. Before commencing erection or assembly, the equipment and objects required to commence the work must be at the installation or assembly point and all preparatory work must be sufficiently advanced prior to the commencement of construction so that the erection or installation can commence as agreed and be carried out uninterrupted. Access routes and the installation or assembly site must be levelled and cleared.

4. If the installation, assembly or commissioning is delayed due to circumstances for which the supplier is not responsible, the customer shall bear the costs of waiting time and any additional travel required by the supplier or assembly personnel to an appropriate extent.

5. The Purchaser has to certify the supplier of the duration of the working time of the assembly personnel as well as 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 make it within two weeks. Acceptance shall be the same if the customer allows the two-week period to elapse or if the delivery – possibly after the conclusion of an agreed test phase – has been put into use.

Article VII: Commissioning

The customer may not refuse to accept deliveries due to insignificant defects.

Article VII: Defects
For material defects, the supplier is liable 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 their cause existed already at the time of the transfer of risk.

2. Claims for supplementary performance become statute-barred after 12 months from the beginning of the statutory limitation period; the same applies to withdrawal and reduction. This deadline does not apply if the law stipulates longer periods pursuant to §§ 438 (1) no. 2 (buildings and property for buildings), 479 (1) (right of recourse) and 634a (1) no. 2 (building defects) BGB, fraudulent concealment of the defect or failure to comply with a quality guarantee. The legal regulations regarding expiration inhibition, inhibition and new beginning of the deadlines remain untouched.

3. Complaints by the customer must be made immediately and in writing.

4. In the case of complaints, payments of the customer 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, over whose authority no doubt can exist. A right of retention of the purchaser does not exist if his warranty claims are time-barred. If the notice of defect is wrongly made, the supplier is entitled to demand compensation for expenses incurred by the customer.

5. The supplier is to be granted the opportunity of supplementary performance within a reasonable period.

6. If the supplementary performance fails, the customer may – without prejudice to any claims for damages according to No. 10 – withdraw from the contract or reduce the remuneration.

7. Claims for defects do not exist with insignificant deviation from the agreed quality, with only insignificant impairment of usability, natural wear or damage after the transfer of risk as a result of faulty or negligent handling, excessive use, unsuitable equipment, defective construction, unsuitable ground or due to special external influences, which are not required under the contract, as well as non-reproducible software errors. If changes or repairs are carried out improperly by the purchaser or by third parties, there are 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 increase because the object of the delivery has subsequently been moved to a location other than the purchaser’s branch unless the shipment complies with its intended use.

9. Claims for recourse of the Purchaser against the supplier in accordance with §478 BGB (recourse of the entrepreneur) exist only to the extent that the purchaser has not made any agreements with his purchaser beyond the legal claims for defects.
No. 8 §478 (2) BGB also applies accordingly to the scope of the purchaser’s recourse claim against the supplier.

10. Claims for damages of the customer due to a material defect are excluded. This shall not apply to fraudulent concealment of the defect, failure to comply with a quality guarantee, injury to life, limb or health and intentional or grossly negligent breach of duty by the supplier. A change in the burden of proof to the detriment of the customer is not connected with the above regulations. Further claims or claims of the customer other than those regulated in this Art. VIII due to a material defect are excluded.

Article IX: Industrial property rights and copyrights; defects in title

1. Unless otherwise agreed, the supplier is obliged to deliver only in the country of the place of delivery free from industrial property rights and copyrights of third parties (hereinafter: Property rights). If a third party raises justified claims against the customer due to the infringement of property rights by deliveries made by the supplier and used in accordance with the contract, the supplier is liable to the customer within the period specified in Art. VIII No. 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 possible for the supplier on reasonable terms, the Purchaser shall be entitled to the statutory right of withdrawal or reduction.

b) The Supplier’s obligation to pay damages is governed by Art. XII.

c) The aforementioned obligations of the supplier exist only if the customer informs the supplier of the claims asserted by the third party immediately in writing, does not acknowledge an infringement and reserves the supplier all defensive measures and settlement negotiations. If the purchaser ceases to use the delivery for reasons of mitigation or other important reasons, he is obliged to inform the third party that the cessation of use does not constitute an acknowledgement of an infringement of property rights.

2. Claims of the purchaser are excluded insofar as he 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 special requirements of the purchaser, by an application not foreseeable 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 Nos. 4, 5 and 9 shall apply mutatis mutandis to the purchaser’s claims regulated in No. 1a).

5. In case of other legal defects, the provisions of Art. VIII shall apply accordingly.

6. Further claims or other claims of the Purchaser against the Supplier and its vicarious agents as regulated in this Art. IX are excluded due to a legal defect.

Article X: Fulfilment of title

1. The fulfilment of the contract is subject to the proviso that there are no impediments arising from German, US and other applicable national, EU or international regulations of foreign trade law as well as no embargos or other sanctions.

2. The customer is obliged to provide all information and documents required for export, shipment or import.

Article XI: Impossibility; contract adjustment

1. Should the delivery be deemed impossible, the purchaser is entitled to demand compensation, unless the supplier is not responsible for the impossibility. However, the claim for damages of the purchaser is limited to 10% of the value of the part of the delivery which cannot be used expediently due to the impossibility. This limitation does not apply in cases of wilful misconduct, gross negligence or injury to life, limb or health; a change in the burden of proof to the detriment of the customer is not connected with this. The right of the customer to withdraw from the contract remains unaffected.

2. Insofar as events within the meaning of Art. IV No. 2 a) to c) substantially change the economic significance or the content of the delivery or have a significant effect on 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. The same applies if required export licenses are not issued or cannot be used. If they wish 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.

Article XII: Other claims for damages

1. Unless otherwise stipulated in these Terms and Conditions, claims for damages of the Purchaser shall be excluded, irrespective of the legal grounds, in particular for breach of obligations arising from the contractual relationship and from tortious acts.

2. This does not apply if the following is adhered to:

a) according to the product liability law,

b) in case of intent,

c) in case of gross negligence of owners, legal representatives or executives,

d) in case of malice,

e) in case of failure to comply with an accepted warranty;

f) for culpable injury to life, body or health, or

g) for culpable 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 another of the aforementioned cases exists.

3. A change in the burden of proof to the detriment of the customer is not connected with the above regulations.

Article XIII: Jurisdiction and applicable law

1. The sole place of jurisdiction, if the customer is a merchant, 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 customer’s registered office.

2. This Agreement, including its interpretation, is governed by German law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

Article XIV: Binding nature of the contract

The contract remains binding even in the case of 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.

Version: 01/10/2013

Supplementary clause: Extended retention of title

4.
a) The customer is allowed to process the reserved goods or to mix or combine with other objects. Processing takes place for the supplier. The customer keeps the resulting new thing for the supplier with the care of a proper businessman. The new item is regarded as reserved goods.

b) The supplier and purchaser already agree that in case of combination or mixing with other objects not belonging to the supplier, the supplier will in any case: Co-ownership of the new item in the amount of the share resulting from the ratio of the value of the combined or mixed reserved goods to the value of the other goods at the time of joining or mixing. The new item is considered as reserved goods.