General Terms and Conditions of Sale and Delivery (GT&C)

GT&C for products and services of the electrical industry (“Green Terms and Conditions of Delivery” – here in after referred to as GL) for use in business transactions with entrepreneurs; non-binding recommendation of terms and conditions by ZVEI e. V.; Status: January 2022; the superscript numbers in the texts number the sentences of sections, insofar as they are referred to in the further text.

Article I: General Provisions

  1. 1These GT&C shall apply exclusively to the legal relationship between the Supplier and the Purchaser in connection with the Supplier’s deliveries and/or services (hereinafter referred to as “Deliveries”). 2The Purchaser’s general terms and conditions shall only apply insofar as the Supplier has expressly agreed to them in writing. 3The scope of the Deliveries shall be determined by the mutually agreed written declarations.
  2. 1The supplier reserves unrestricted ownership rights and copyrights of use and exploitation for cost estimates, drawings, and other documents (hereinafter referred to as documents). 2The 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, must be returned to the supplier immediately upon request. 3Sentences 1 and 2 shall apply mutatis mutandis to the purchaser’s documents; however, these may be made accessible to third parties to whom the supplier has permissibly transferred deliveries.
  3. 1The purchaser has the non-exclusive right to use standard software and firmware with the agreed performance characteristics in unmodified form on the agreed devices. 2The purchaser may make a backup copy of the standard software without express agreement.
  4. Partial deliveries are permissible insofar as they are reasonable for the customer.
  5. The term “claims for damages” in these GTC also includes claims for reimbursement of futile expenses.

Article II: Prices, Terms of Payment, and Offsetting

  1. Prices are ex works, excluding packaging and plus the applicable statutory sales tax.
  2. If the supplier has undertaken installation or assembly and unless otherwise agreed, the purchaser shall bear all necessary ancillary costs such as travel and transport costs and allowances in addition to the agreed remuneration.
  3. Payments shall be made free of charge to the supplier’s paying agent.
  4. The customer may only offset claims that are undisputed or have been legally established.

Article III: Retention of title

  1. The items delivered (reserved goods) for which the purchase price is due immediately or for which a payment period of up to and including 30 days after delivery, delivery with installation/assembly, or receipt of invoice has been agreed with regard to the due date of the purchase price remain the property of the supplier until full payment has been made.
  2. 1In all other cases, the items delivered (reserved goods) shall remain the property of the supplier until all claims against the customer arising from the business relationship have been satisfied. 2If 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 interests at the request of the customer; the supplier shall have the choice between different security interests when releasing them.
  3. During the period of retention of title, the customer is prohibited from pledging or transferring ownership by way of security, and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its customer or makes the reservation that ownership is only transferred to the customer once the latter has fulfilled its payment obligations.
  4. 1If the customer resells goods subject to retention of title, he hereby assigns to the supplier, by way of security and without the need for further special declarations, his future claims against his customers arising from the resale, including all ancillary rights, such as any balance claims. 2If the goods subject to retention of title are resold together with other items without an individual price having been agreed for the goods subject to retention of title, the customer shall assign to the supplier that part of the total price claim which corresponds to the price of the goods subject to retention of title invoiced by the supplier.
  5. a) 1The purchaser is permitted to process the goods subject to retention of title or to mix or combine them with other items. 2Processing shall be carried out on behalf of the supplier. 3The purchaser shall store the new item created in this way for the supplier with the care of a prudent businessman. 4The new item shall be deemed to be goods subject to retention of title. 5. b) 1The supplier and the customer hereby agree that, in the event of combination or mixing with other items not belonging to the supplier, the supplier shall in any case be entitled to co-ownership of the new item in proportion to the ratio of the value of the combined or mixed goods subject to retention of title to the value of the remaining goods at the time of combination or mixing. 2The new item shall be deemed goods subject to retention of title in this respect. 5 c) 1The provision on the assignment of claims under No. 4 shall also apply to the new item. 2However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined or mixed goods subject to retention of title invoiced by the supplier. 5 d) If the customer combines the goods subject to retention of title with real estate or movable property, he shall, without the need for further special declarations, also assign to the supplier, by way of security, his claim to remuneration for the combination, together with all ancillary rights, in the amount of the ratio of the value of the combined goods subject to retention of title to the other combined goods at the time of combination.
  6. 1Until further notice, the customer is authorized to collect assigned claims from the resale. 2If there is an important reason, in particular in the event of default in payment, suspension of payments, the opening of insolvency proceedings, bill protest, or justified indications of over-indebtedness or imminent insolvency on the part of the customer, the supplier is entitled to revoke the customer’s collection authorization. 3In addition, after giving prior warning and observing a reasonable period of notice, the supplier may disclose the assignment for security purposes, realize the assigned claims, and demand that the customer disclose the assignment for security purposes to the customer.
  7. 1In the event of seizures, confiscations, or other dispositions or interventions by third parties, the customer must notify the supplier immediately. 2If a legitimate interest is substantiated, the customer must immediately provide the supplier with the information necessary to assert its rights against the customer and hand over the necessary documents. 3In the event of breaches of duty by the customer, in particular in the event of default in payment, the supplier shall be entitled, after the unsuccessful expiry of a reasonable period of grace set for the customer, to withdraw from the contract in addition to taking back the goods; the statutory provisions on the dispensability of setting a period of grace shall remain unaffected. 2The customer shall be obliged to surrender the goods. 3The taking back or 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.
  8. 1In the event of breaches of duty by the purchaser, in particular in the event of default in payment, the supplier shall be entitled, after the unsuccessful expiry of a reasonable period of time set for the purchaser to perform, to withdraw from the contract in addition to taking back the goods; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. 2The purchaser shall be obliged to surrender the goods. 3The taking back or 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.

Article IV: Delivery deadlines; Delays

  1. 1Compliance with delivery deadlines requires the timely receipt of all documents to be supplied by the customer, necessary approvals and releases, in particular plans, as well as compliance with the agreed terms of payment and other obligations by the customer. 2If these conditions are not met in good time, the deadlines shall be extended accordingly; this shall not apply if the supplier is responsible for the delay.
  2. Is the failure to meet deadlines attributable to 2 a) force majeure, e.g., mobilization, war, acts of terrorism, riots, or similar events (e.g., strikes, lockouts), 2 b) virus and other attacks by third parties on the supplier’s IT system, insofar as these occurred despite the usual care taken in protective measures, 2 c) obstacles due to German, US, and other applicable national, EU, or international foreign trade regulations or due to other circumstances for which the supplier is not responsible, or 2 d) late or improper delivery to the supplier, the deadlines shall be extended accordingly.
  3. If the supplier is in default, the purchaser may—provided that he can prove that he has incurred damage as a result—demand compensation for each completed week of default of 0.5%, but not more than a total of 5% of the price for that part of the deliveries which could not be used for its intended purpose due to the delay.
  4. 1Claims for damages by the customer due to delayed delivery as well as claims for damages in lieu of performance that exceed the limits specified in No. 3 are excluded in all cases of delayed delivery, even after expiry of a delivery deadline set for the supplier. 2This shall not apply in cases of intent, gross negligence, or injury to life, limb, or health. 3The customer may only withdraw from the contract within the framework of the statutory provisions if the supplier is responsible for the delay in delivery. 4The above provisions do not imply a change in the burden of proof to the detriment of the customer.
  5. At the supplier’s request, the customer is obliged to declare within a reasonable period of time whether it will withdraw from the contract due to the delay in delivery or insist on delivery.
  6. 1If shipment or delivery is delayed at the request of the customer 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 delivery items for each additional month or part thereof, up to a maximum of 5% in total. 2The parties are free to provide evidence of higher or lower storage costs.

Article V: Transfer of risk

  1. The risk shall also pass to the purchaser in the case of carriage paid delivery as follows: 1 a) in the case of delivery without installation or assembly, when it has been dispatched or collected; at the request and expense of the purchaser, the delivery shall be insured by the supplier against the usual transport risks; 1 b) in the case of delivery with installation or assembly, on the day of acceptance into the customer’s own business or, if agreed, after successful trial operation.
  2. If shipment, delivery, commencement, installation or assembly, acceptance into own operation, or trial operation is delayed for reasons for which the customer is responsible, or if the customer is in default of acceptance for other reasons, the risk shall pass to the customer.

Article VI: Installation and assembly

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

  1. The customer shall bear the costs and provide in good time: 1 a) all earthworks, construction work, and other ancillary work not specific to the industry, including the necessary skilled and unskilled labor, building materials, and tools; 1 b) the items and materials required for assembly and commissioning, such as scaffolding, hoists, and other equipment, fuels, and lubricants; 1 c) energy and water at the place of use, including connections, heating, and lighting; 1 d) sufficiently large, suitable, dry, and lockable rooms at the installation site for storing machine parts, equipment, materials, tools, etc., and appropriate work and recreation rooms for the installation personnel, including sanitary facilities appropriate to the circumstances; In addition, the customer shall take the measures necessary to protect the supplier’s property and the assembly personnel on the construction site that he would take to protect his own property; 1 e) Protective clothing and protective devices required due to special circumstances at the assembly site.
  2. Before the start of installation work, the customer must provide the necessary information about the location of concealed electrical, gas, water pipes, or similar installations, as well as the required structural data, without being asked.
  3. 1Before installation or assembly begins, all items and materials required for the work must be available at the installation or assembly site, and all preparatory work must be sufficiently advanced so that installation or assembly can begin as agreed and be carried out without interruption. 2Access routes and the installation or assembly site must be leveled 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 reasonable costs for waiting time and any additional travel required by the supplier or the assembly personnel.
  5. The customer shall certify to the supplier on a weekly basis the duration of the working hours of the assembly personnel and the completion of the installation, assembly, or commissioning without delay.
  6. 1If the supplier demands acceptance of the delivery after completion, the purchaser must do so within two weeks. 2Acceptance shall be deemed to have taken place if the purchaser allows the two-week period to elapse or if the delivery has been put into use, if applicable after completion of an agreed test phase.

Article VII: Acceptance

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

Article VIII: Material defects

The supplier shall be liable for material defects as follows:

  1. 1Deliveries shall be free from material defects if, at the time of transfer of risk, they meet the subjective requirements, objective requirements, and assembly requirements of § 434 BGB (German Civil Code). 2If there is a quality agreement between the parties, the question of whether the deliveries meet the objective requirements shall be determined exclusively by this quality agreement. 3Sentence 2 shall not apply if the last contract in the supply chain is a consumer goods purchase.
  2. All parts or services that exhibit a material defect shall be repaired, replaced, or re-performed free of charge at the supplier’s discretion, provided that the cause of the defect already existed at the time of transfer of risk.
  3. 1Claims for subsequent performance shall become time-barred 12 months after the start of the statutory limitation period; the same shall apply to withdrawal and reduction. 2This period shall not apply if the law prescribes longer periods in accordance with Sections 438 (1) No. 2 (buildings and items for buildings) and 634a (1) No. 2 (construction defects) of the German Civil Code (BGB), in cases of intent, fraudulent concealment of the defect, or failure to comply with a quality guarantee. 3Claims for reimbursement of expenses by the customer pursuant to Section 445a BGB (recourse by the seller) shall also become time-barred 12 months after the start of the statutory limitation period, provided that the last contract in the supply chain is not a consumer goods purchase.
  4. 1The statutory provisions on suspension of expiry, suspension and restart of the periods remain unaffected. 2The suspension of expiry pursuant to Section 445b (2) BGB shall in any case end no later than five years after the date on which the supplier delivered the item to the seller. 3This shall not apply if the last contract in the supply chain is a consumer goods purchase or in the cases listed in No. 3, sentence 2.
  5. The purchaser must submit any complaints in writing without delay.
  6. 1In the event of claims for defects, payments by the purchaser may be withheld to an extent that is reasonable in relation to the material defects that have occurred. 2The purchaser shall have no right of retention if his claims for defects are time-barred. 3If the complaint about defects was unjustified, the supplier is entitled to demand reimbursement from the customer for the expenses incurred.
  7. The supplier shall be given the opportunity to remedy the defect within a reasonable period of time.
  8. If the subsequent performance fails, the customer may—without prejudice to any claims for damages pursuant to No. 12—withdraw from the contract or reduce the remuneration.
  9. 1Claims for defects shall not exist in particular in the case of only insignificant deviations from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground, or due to special external influences not assumed under the contract, as well as in the case of non-reproducible software errors. 2If the customer or third parties carry out improper modifications, installation/removal or repair work, no claims for defects shall exist for these and the resulting consequences.
  10. 1Claims by the customer for expenses incurred for the purpose of subsequent performance are excluded insofar as the expenses increase because the object of delivery has subsequently been moved to a location other than the customer’s place of business, unless the move is in accordance with its intended use. 2This applies accordingly to claims for reimbursement of expenses by the customer in accordance with § 445a BGB (recourse of the seller), provided that the last contract in the supply chain is not a purchase of consumer goods.
  11. Recourse claims by the purchaser against the supplier pursuant to § 445a BGB (recourse by the seller) shall only exist insofar as the purchaser has not entered into any agreements with its customer that go beyond the statutory claims for defects.
  12. 1Claims for damages by the customer due to a material defect are excluded. 2This does not apply in the event of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, limb, or health, and intentional or grossly negligent breach of duty by the supplier. 3The above provisions do not imply a change in the burden of proof to the detriment of the customer. 4Further claims by the customer for material defects or claims other than those regulated in this Art. VIII are excluded.

Article IX: Industrial Property Rights and Copyrights; Legal Defects

  1. 1Unless otherwise agreed, the supplier is obliged to deliver the goods in the country of delivery without infringing any industrial property rights or copyrights of third parties (hereinafter referred to as “property rights”). 2If a third party asserts justified claims against the purchaser due to the infringement of property rights by deliveries made by the supplier and used in accordance with the contract, the supplier shall be liable to the purchaser within the period specified in Art. VIII No. 3 and in accordance with No. 4 as follows: 1 a) 1At its discretion and at its expense, the supplier shall either obtain a right of use for the deliveries in question, modify them so that the property right is not infringed, or replace them. 2If this is not possible for the supplier under reasonable conditions, the purchaser shall be entitled to the statutory rights of withdrawal or reduction. 1 b) The supplier’s obligation to pay damages shall be governed by Art. XII. 1 c) 1The above obligations of the supplier shall only apply if the customer immediately notifies the supplier in writing of the claims asserted by the third party, does not acknowledge any infringement, and reserves all defense measures and settlement negotiations for the supplier. 2If the customer ceases to use the delivery for reasons of mitigation of damages or other important reasons, it shall be obliged to inform the third party that the cessation of use does not constitute an acknowledgment of an infringement of property rights.
  2. Claims by the customer are excluded if he is responsible for the infringement of property rights.
  3. Claims by the customer are also excluded if the infringement of property rights is caused by special specifications of the customer, by an application that could not be foreseen by the supplier, or by the fact that the delivery has been modified by the customer or used in conjunction with products not supplied by the supplier.
  4. In the event of infringements of property rights, the provisions of Art. VIII Nos. 6, 7, 10, and 11 shall apply mutatis mutandis to the claims of the customer as set out in No. 1a).
  5. In the event of other legal defects, the provisions of Art. VIII shall apply accordingly.
  6. Any further claims or claims other than those regulated in this Art. IX by the purchaser against the supplier and its vicarious agents due to a defect of title are excluded.

Article X: Reservation of performance

  1. The fulfillment of the contract is subject to the proviso that there are no obstacles due to German, US, or other applicable national, EU, or international foreign trade regulations, as well as no embargoes or other sanctions.
  2. The customer is obliged to provide all information and documents required for export, transport, or import.

Article XI: Impossibility; Contract Adjustment

  1. 1If delivery is impossible, the customer is entitled to claim damages unless the supplier is not responsible for the impossibility. 2However, the customer’s claim for damages is limited to 10% of the value of that part of the delivery which cannot be used for its intended purpose due to the impossibility. 3This limitation shall not apply in cases of intent, gross negligence, or injury to life, limb, or health; this shall not imply a change in the burden of proof to the detriment of the customer. 4The customer’s right to withdraw from the contract remains unaffected.
  2. 1If events within the meaning of Art. IV No. 2 a) to c) significantly change the economic significance or content of the delivery or have a significant impact on the supplier’s operations, the contract shall be adjusted appropriately in good faith. 2If this is not economically reasonable, the supplier shall be entitled to withdraw from the contract. 3The same shall apply if necessary export licenses are not granted or cannot be used. If the supplier wishes to exercise this right of withdrawal, it must notify the customer immediately after becoming aware of the significance of the event, even if an extension of the delivery period had initially been agreed with the customer.

Article XII: Other claims for damages

  1. Unless otherwise stipulated in these General Terms and Conditions, claims for damages by the customer, regardless of their legal basis, in particular due to breach of obligations arising from the contractual relationship and from tort, are excluded.
  2. 1This shall not apply in cases of liability as follows: 2 a) under the Product Liability Act, 2 b) in cases of intent, 2 c) in cases of gross negligence on the part of owners, legal representatives, or executive employees, 2 d) in cases of fraudulent intent, 2 e) in the event of non-compliance with an assumed guarantee, 2 f) due to culpable injury to life, limb, or health, or 2 g) due to culpable breach of essential contractual obligations. 2However, claims for damages for breach of essential contractual obligations are limited to foreseeable damage typical for this type of contract, unless one of the other cases mentioned above applies.
  3. The above provisions do not imply a change in the burden of proof to the detriment of the customer.

Article XIII: Jurisdiction and applicable law

  1. 1If the customer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of the supplier. 2However, the supplier shall also be entitled to bring legal action at the customer’s place of business.
  2. This contract, including its interpretation, is governed by German law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

Article XIV: Legality of the treaty

1Even if individual provisions of this agreement are legally invalid, the remaining provisions shall remain binding. 2This shall not apply if adherence to the agreement would constitute an unreasonable hardship for one of the parties.