Only the following terms shall apply to deliveries from the supplier in the respective version that is valid at the time of the buyer placing the order or, as the case may be, in any case in the version last communicated to the buyer in text form as a framework agreement, including to future contracts of the same kind, without the need for us to make reference to them again in each individual case. Terms which are contrary to, supplementary to or which deviate from the supplier’s terms do not apply unless the supplier has explicitly consented in writing to the application of such terms. The following terms also apply where the supplier, while being aware of terms of the ordering party which are contrary to, supplementary to or which deviate from the supplier’s terms, executes delivery to the ordering party without reservation.
1. The offers of the supplier are subject to change without prior notice and non-binding. This also applies if the supplier has left catalogues, technical documentation (e.g., drawings, plans, computations, calculations, references to DIN standards), other product descriptions or documents – including in electronic form – with the buyer.
2. The ordering of goods by the buyer constitutes a binding contractual offer. Unless otherwise arising from the order, the supplier is entitled to accept this contractual offer within 4 weeks of it being received by the supplier.
3. The acceptance can be declared either in writing (e.g. by means of an order confirmation) or by the delivery of the goods to the buyer.
4. Protective devices will be delivered with the order where this is stipulated by law or expressly agreed.
5. The provisions of the VDE (the German Association for Electrical, Electronic & Information Technologies) shall apply to all deliveries or services insofar as these provisions come into consideration in respect of the safety of the deliveries or services. Deviations are permitted provided that the same level of safety is guaranteed by the alternate means.
6. The supplier reserves the unlimited rights of ownership and copyrights to cost quotations, cost estimates, drawings and other documents; these may only be made available to third parties with the prior consent of the supplier. Drawings and other documents belonging to offers must be returned upon request and without undue delay if the order is not placed with the vendor. Sentences 1 and 2 apply mutatis mutandis to documents of the ordering party; such documents can however be made available to third parties to whom the supplier has permissibly assigned the delivery or service.
1. Unless otherwise agreed in the individual case, the supplier’s prices that are current at the respective time of the conclusion of the contract apply in the offer, namely as ex works prices, excluding packing, but plus the statutory VAT to be added. On all sales by delivery to a destination within Germany with a (net) value of up to 1,000 EUR, the ordering party must pay a flat shipping rate and the costs of any transport insurance that the ordering party wishes to have; on orders with a (net) value of more than 1,000 EUR, the supplier shall bear the costs of transport, with the ordering party bearing the costs of any transport insurance that the ordering party wishes to have. For sales by delivery to a destination outside of Germany, the bearing of costs shall be determined by agreement (EXW or DAP Incoterms as respectively amended).
2. Where the supplier has taken on the assembly or installation and nothing to the contrary is agreed, the ordering party shall bear, in addition to the agreed remuneration, all necessary ancillary costs such as travel expenses, costs for the transport of tools and personal luggage as well as subsistence allowances and the other costs listed under point VIII B.
3. Unless otherwise agreed, the purchase price is due and must be paid within 14 days with a 2% discount and within 30 days net of the date of invoicing and delivery or, as the case may be, from the date of the goods being accepted. The supplier is however entitled at all times, including within the context of an ongoing business relationship, to only carry out a delivery, be it wholly or in part, in return for payment in advance. Such a proviso will be declared by the supplier at the latest by way of the order confirmation.
4. The buyer is in arrears upon the foregoing deadline for payment expiring. During the payment default, interest shall be charged on the purchase price at the respectively applicable statutory rate of interest for late payment. The supplier reserves the right to assert a more extensive claim for damages caused by a payment default. The right to claim default interest from the due date in commercial transactions between traders as set down in section 353 of the German Commercial Code remains unaffected.
5. The buyer is only entitled to rights of set-off or of retention to the extent that the buyer’s claim has been determined with final and binding legal force or is uncontested. In the event of defects in the delivery, the opposing rights of the buyer shall remain, in particular pursuant to IX and XI.
6. If it becomes apparent following the conclusion of the contract (e.g. due to an application for the opening of insolvency proceedings) that the supplier’s claim to the purchase price is being jeopardised by the buyer’s inability to perform, the supplier shall be entitled under the statutory provisions to refuse to render performance and to withdraw – where applicable after setting a deadline – from the contract (section 321 of the German Civil Code). Withdrawal can be immediately declared in respect of contracts concerning the manufacture of non-fungible goods (custom-made products); the statutory regulations regarding the dispensability of the setting of a deadline remain unaffected.
1. The goods remain the property of the supplier until each and every present and future claim that the supplier is entitled to enforce from the business relationship vis-à-vis the ordering party have been settled. The ordering party is obligated to treat the goods with care and, in particular, to adequately insure them, at its own cost, against damage from fire, water and theft at their value as new. Necessary maintenance work and inspections must be conducted by the ordering party at its own cost. The ordering party must inform the supplier without undue delay of any pledges, applications for the opening of insolvency proceedings and accessing by third parties. Until the secured claims have been paid in full, goods whose title yet to pass to the buyer are not permitted to be either pledged to third parties or be assigned as collateral security.
2. The ordering party is entitled – until this entitlement is revoked in accordance with this point – to sell on the goods in the ordinary source of business, however the ordering party hereby assigns to the supplier all claims accruing to the ordering party from the resale of the goods or product vis-à-vis their buyers or vis-à-vis third parties, whereby such claims shall be assigned at the amount of the final invoice (including VAT) representing the supplier’s claim or, as the case may be, at the amount of any share of co-ownership under point 3. The supplier accepts the assignment. The ordering party’s duties named in point 1 shall also apply in consideration of the assigned claim. The ordering party remains authorised, in addition to the supplier, to collect this claim even after the assignment. This does not affect the right of the supplier to personally collect the claim. However, the supplier undertakes not to collect the claim whilst the ordering party is not in arrears with payments, has not, in particular, made an application for the opening of insolvency proceedings and the supplier has not enforced the retention of title by exercising a right under point 5 and 6. If, however, this is the case, then the supplier can demand that the ordering party makes known the claims assigned to the supplier and their debtors, provides all the details necessary for the collection, hands over the associated documents and notifies the debtors (third parties) of the assignment. In addition, the supplier is in this case entitled to revoke the ordering party’s right to the further disposal and processing of those goods that are still subject to retention of title.
3. If the purchase object becomes inseparably mixed, processed or combined with materials from another company than the supplier, the ordering party shall acquire the co-ownership of the new item at the ratio of the value of the goods to the other mixed materials at the time of the mixing. Where the mixing, processing or combining is performed in such a way that the item of the ordering party is to be regarded as the main item, it is deemed to be agreed that the ordering party will transfer proportional ownership to the supplier. The ordering party shall preserve on behalf of the supplier the sole or co-ownership created in this way for the supplier.
4. If the realisable value of the supplier’s collateral securities exceeds the claim that is to be secured by more than 20%, the supplier shall, at the request of the ordering party, release collateral securities of the supplier’s own choosing.
5. The taking back of goods and/or the enforcement of the retention of title due to a payment default constitutes a withdrawal from the contract unless the supplier has expressly decided to the contrary.
6. In the case of other breaches of the ordering party’s duties than a payment default, especially in the event of the purchase object being placed at risk due to a failure on the part of the ordering party to fulfil its duties, the supplier shall also be entitled to recall the purchase object without withdrawing from the contract. The ordering party is obligated to surrender the purchase object.
1. The delivery deadline will be individually agreed or, as the case may be, specified by the supplier at the time of accepting the order. Compliance with the deadline is subject to the timely receipt of all documents which are to be delivered by the ordering party, necessary permits, clearances, the timely clarification and approval of the plans, compliance with the agreed terms of payment and any other obligations. The deadline will be extended accordingly if these conditions are not met in a timely manner.
2. The deadline is deemed to have been complied with
a) for a delivery without assembly or installation: If the consignment of goods that are ready to be placed into operation has been shipped or collected within the agreed deadline for delivery and performance. In the event that the delivery is delayed due to reasons for which the ordering party is responsible, the deadline is deemed to have been complied with once the readiness for shipment is reported within the agreed time;
b) for a delivery with assembly or installation: As soon as the assembly or installation occurs within the agreed time.
a).Where the supplier is unable to meet binding delivery deadlines due to reasons for which the supplier is not responsible (unavailability of performance), the ordering party shall be informed of this without undue delay. Unavailability of performance exists, for example, in the event of a non-timely self-delivery by the component supplier to the supplier if the supplier has concluded a congruent covering transaction, in the event of other disruptions in the supply chain, e.g. due to force majeure, or if the supplier is not obligated to undertake the procurement in the individual case.
b) Whether the supplier is in default in delivery shall be determined on the basis of the statutory provisions. However, a reminder is required to be sent by the ordering party in any event. If the supplier fails to deliver in a timely manner, the ordering party can demand compensation for every completed week of the delay at 0.5% for each week, though no more in total than 5% of the price for that part of the delayed delivery that could not be placed into useful operation because of the delay. The supplier reserves the right to demonstrate that the ordering party has not suffered any damage at all or has suffered that only damage of a significantly lesser extent than the flat sum named above.
c).The rights of the ordering party under point XI of these General Terms and Conditions and the statutory rights of the supplier, in particular in the event of an exclusion of the duty of performance (e.g. due to the impossibility or unreasonableness of the performance and/or of the subsequent performance to rectify the default), remain unaffected.
d) The ordering party is obligated, at the request of the supplier, to declare within a reasonable period of time whether the ordering party intends to withdraw from the contract due to the delay in performance or is insisting upon performance.
e) If the dispatch or end delivery is delayed at the request of the ordering party by more than one month from the agreed date of dispatch, collection or notification of the readiness for shipment, the ordering party can be charged for each commenced month a storage fee of 0.5% of the price of the items in the deliveries, though no more than 5% in total. The parties to the contract remain free to demonstrate the costs of storage are a higher or lower amount.
The risk shall pass to the ordering party, even if a freight-free delivery has been agreed,
a) in the case of a delivery if the consignment of goods that are ready to be placed into operation has been shipped or collected. Goods will be packed with the greatest care. Goods will be shipped according to the supplier’s best judgement. At the request and at the cost of the ordering party, the consignment will be insured by the supplier against breakage, transport and fire damage. In the case of a sale by delivery however, the risk of the accidental loss or the accidental deterioration of the goods as well as the risk of delay passes at the point of time at which the goods are delivered to the forwarding agent, freight carrier or to any other person specified to deliver the goods.
b) If the dispatch or end delivery is delayed at the request of the ordering party or due to reasons for which the ordering party is responsible, the risk shall pass to the ordering party for the period of the delay; the supplier is however obligated, at the request and at the cost of the ordering party, to procure the insurance policies demanded by the ordering party.
1. In the event that it is agreed that the supplier will take over the assembly and installation, the following terms shall apply to all types of assembly and installation, unless otherwise agreed in writing:
a) The ordering party must also assume at his expense and provide in good time:
aa) auxiliary workers such as handymen as well as, where necessary, bricklayers, carpenters, locksmiths, crane operators and any other specialist workers with the tools required by such workers in the necessary quantity;
bb) all earthworks, concreting, construction work, breaking work, scaffolding, plastering, painting and any other ancillary work lying outside of our industry, including the necessary work materials for such works;
cc) the equipment and materials needed for the installation and placing into operation, such as scaffolding timbers, wedges, underlays, cement, plaster and sealants, lubricants, fuels, etc; in addition, scaffolds, hoisting devices and other apparatuses;
dd) operating personnel and water, including the necessary connections right up to the point of use, heating and general lighting;
ee) – at the installation site for purpose of storing machine parts, appliances, materials, tools, etc. – areas that are of sufficient size, are of appropriate quality and are dry and lockable as well as appropriate work and leisure spaces for the installation personnel, including sanitary facilities of an appropriate nature based on the circumstances; in addition to this, the ordering party must take the same steps to protect the supplier’s property and the installation personnel at the construction site as it would take to protect its own property;
ff) protective clothing and protective devices that are necessary due to the particular circumstances present at the installation site and are not commonplace in the industry of the company accepting the order.
b) Prior to the start of the installation work, the ordering party must make available, without being prompted to do so, the necessary information regarding the location of concealed power lines, gas and water pipes or similar systems as well as the necessary details regarding the building structure.
c) Prior to the start of the assembly or installation, the supply parts needed for the commencement of the work must be in situ and all bricklaying, carpentry and any other preparatory work before the start of assemblage must be advanced enough to allow the assembly or installation to be immediately started upon the arrival of the assembly or installation personnel and to be performed without the need for stoppages. In particular, the access routes and the place of assembly or installation must be levelled and cleared at ground level, the foundation masonry set and dry, the foundation walls erected and backfilled, - in the case of an interior assembly – the wall and ceiling plastering fully finished and, specifically, the doors and windows in place.
d) If the assembly, installation or placing into operation is delayed by circumstances for which the supplier is not responsible, the ordering party must bear the costs to a reasonable extent of the waiting time and of additional journeys that have to be made by the supplier or the installation personnel.
e) The ordering party must provide to the assembly or installation personnel each week written confirmation of the hours that have, to the best of the ordering party’s knowledge, been worked. Furthermore, the ordering party is obligated to hand over to the assemblyor installation personnel, without undue delay, written confirmation that the assembly or installation is finished.
f) The supplier shall not be liable for work performed by its assembly or installation personnel and by any other vicarious agents where such work is not connected to the delivery and the assembly or installation or where such work is performed at the instigation of the ordering party. Point XI remains unaffected by this.
2. The specifications named under 1a) – 1e) must also be complied with in the event that third parties take over the assembly and installation for the ordering party.
In the event that the supplier has taken on the assembly or installation on the basis of a separate individually charged fee, the following terms shall also apply in addition to the terms under A.:
1. The ordering party shall pay the supplier the rates agreed at the time of the placing of the order for the hours worked and supplements for overtime, night work, work performed on Sundays and public holidays, for work under difficult conditions as well as for planning and monitoring. A journey to conduct preparatory work, time spent in transit and the providing of feedback reports are deemed to constitute working time.
2. Furthermore, the following costs will be remunerated separately:
a) Travel expenses, costs for the transport of tools and of personal luggage;
b) The subsistence allowance for the working time and also for rest days and public holidays.
1. The ordering party may not refuse to accept deliveries because of minor defects.
2. The supplier is entitled to perform partial deliveries if
- the partial delivery is usable for the ordering party within the context of the intended purpose as agreed in the contract,
- the delivery of the rest of the ordered goods is guaranteed and
- no significant added expenditure of time and effort or additional costs will be incurred by the ordering party as a result (unless the supplier declares its willingness to assume such costs).
For defects that are required in respect of the transfer of risk, the supplier shall bear liability as follows, although in this respect the ordering party’s claims due to defects are subject to the proviso that ordering party has fulfilled its statutory obligations to inspect the goods and provide notification about defects (sections 377, 381 of the German Commercial Code).
1. In the case of goods intended for incorporation or for any other further processing, an inspection must take place in all cases directly prior to the processing. In any case, obvious defects must be notified to the supplier in writing without undue delay after taking receipt of the delivery or, in the case of hidden defects, without undue delay after their discovery. If the ordering party fails to conduct the due inspection and/or notification of defects, the liability of the supplier for the defect of which the supplier was not informed or was not informed in a timely manner or was not informed in the due manner is excluded under the statutory provisions. This shall also apply in the case of goods intended to be incorporated, mounted or installed if the defect resulting from a breach of one of these obligations only became evident after the respective processing; in this case, no claims shall exist on the part of the ordering party, in particular, for the compensation of the corresponding costs (“disassembly and reassembly costs”). This shall also apply in the event of recourse by the ordering party under sections 478, 479 of the German Civil Code.
2. The supplier shall undertake, at its own choosing, subsequent performance, generally by performing subsequent remedial work or, in the event that subsequent remedial work would be unreasonable for the supplier, by delivering a defect-free item. The supplier shall be granted reasonable time and opportunity to perform the subsequent work, with the goods over which an objection has been raised needing to be handed over the supplier for the purpose of inspection in particular. If this opportunity is denied to the supplier, then the supplier shall be released from the performance of subsequent work and from further claims due to defects. The performance of subsequent work does not include either the disassembly, removal or deinstallation of the defective item or the incorporation, mounting or installation of a defect-free item if the supplier was not originally obligated to render these services; the ordering party’s claims for the compensation of the corresponding costs (“disassembly and reassembly costs”) shall remain unaffected.
3. If no subsequent work is performed within the deadline set, the ordering party is entitled to demand compensation in lieu of performance and/or withdrawal or a reduction in the purchase price. There is no requirement to set a deadline if the supplier has definitively refused to perform subsequent work or if at least three attempts to perform subsequent work have been unsuccessful. Any other warranty claims than those named above are excluded subject to point XI.
4. Claims for defects shall not exist in the event of an insignificant deviation from the agreed nature of the item, nor in the event of an insignificant impairment of the useability, nor in the event of natural wear and tear or damage resulting after the passing of risk as a consequence of faulty or shoddy operating equipment or damage resulting due to particular external influences that have not been provided for under the contract. There are likewise no claims for defects for any improper modifications or repair works carried out by the ordering party or by third parties and for the consequences of such.
5. Claims of the ordering party due to expenses required for the purpose of performing subsequent work, in particular transportation, travel, labour and material costs as well as disassembly and reassembly costs where applicable, shall be borne or, as the case may be, reimbursed by the supplier in accordance with the statutory regulation and these General Terms and Conditions if a defect actually exists. The supplier can otherwise demand that the ordering party reimburses the costs incurred due to the unjustified demand for the remedying of a defect if the ordering party knew or could have recognised that no actual defect is present.
6. The ordering party’s claims for recourse against the supplier in accordance with section 478 of the German Civil Code shall only exist insofar as the contract between the ordering party and the ordering party’s customer is governed by a legal system that provides in law for such a claim for recourse and insofar as the ordering party has not made any agreements with its customer which extend beyond the statutory claims for defects. Point IX 4. applies mutatis mutandis to the scope of the ordering party’s claims for recourse against the supplier.
7. Where individual delivered items are directly resold by the ordering party to the consumer within the meaning of section 13 of the German Civil Code, the ordering party can enforce claims for defects against the supplier under the following conditions:
- If, in the event of a material defect, the consumer demands a form of subsequent work that the ordering party can refuse to provide under section 439 (4) of the German Civil Code, the ordering party must make use of this right of refusal. Should the ordering party fail to do so, then the ordering party must bear the incurred additional costs.
- If the consumer justifiably demands a new delivery or, as the case may be, compensation in lieu of full performance or the consumer justifiably withdraws from the contract, then the ordering party is obligated to demand that the benefits derived by the consumer are given back.
- If the ordering party makes use of its right of recourse vis-à-vis the supplier and has received the goods back from the consumer, then the ordering party must provide thesupplier with the opportunity to review the claimed defect. This shall occur by the goods being sent upon request to the supplier for inspection.
- If the ordering party performs subsequent remedial work on the basis of a justifiable claim for defects, then compensation shall be achieved by the supplier remunerating the expense in accordance with the supplier’s conditions for the processing of guarantee cases.
8. Claims for defects on the part of the ordering party become statute-barred after 12 months from the time of handover. In the case of a sale by delivery, the deadline begins to run from the time at which the goods are handed over to the forwarding agent, freight carrier or any other person or agency specified to deliver the goods. This shall not apply where longer deadlines are prescribed by law in accordance with section 438 (1) no. 2 (buildings and things used for buildings) and section 634a (1) no. 2 (building defects), sections 438 (1) no. 1 (surrender claims in rem), (3), 444 (fraudulent concealment or giving of a guarantee), 445b (recourse claim) of the German Civil Code as well as in cases involving injury to life, limb or health, where there is an intentional or grossly negligent breach of duty by the supplier and under the German Act on Liability for Defective Products. The statutory regulations concerning the suspension of, the suspension of the expiry of and the recommencement of the deadlines remain unaffected.
1. If the supplier refuses performance because performance was already impossible at the time of the contract being concluded or it required an expenditure of time and effort that is grossly disproportionate to the ordering party’s interest in performance, the supplier shall be liable to compensate the ordering party in lieu of performance even if the supplier is not responsible for the delay. This does not apply if the supplier was neither aware of nor should have been aware of the impossibility of the delivery. The ordering party’s claim for damages is limited to 10% of the value of that part of the delivery that cannot be placed into useful operation because the delivery was impossible.
2. If the impossibility to render performance or the disproportionate expenditure of time and effort to render performance only arises after the contract has been concluded, the supplier shall be liable to pay compensation unless the occurrence was not foreseeable or avoidable.
3. The liability to pay compensation in lieu of performance is excluded subject to point XI of these terms.
1. The ordering party’s claims for damages and for the reimbursement of expenses (hereinafter: claims to damages) irrespective of their legal grounds, in particular those due to a breach of duties arising from obligations and from a tort, are excluded.
2. This shall not apply where liability is mandated in law, under the German Act on Defective Products, in cases of intent, cases of gross negligence, due to injury to life, limb or heath, if a defect has been fraudulently concealed or a guarantee has been given as to the nature of the item or due to the breach of substantive contractual obligations. Substantive contractual obligations are obligations whose performance makes the due execution of the contract possible in the first place and upon whose compliance the contractual partner may and does regularly rely.
3. The claim to damages for the breach of substantive contractual obligations is however limited to that damage which is foreseeable and typical for this type of contract unless there is wilful intent or gross negligence or unless liability has been assumed due to injury to life, limb or health. The preceding provision does not entail any change in the burden of proof to the detriment of the ordering party.
4. The limitations of liability arising from point 2 also apply vis-à-vis third parties and also in the event of breaches of duty by persons (including to their benefit) for whose culpability we are accountable under statutory provisions.
1. Where the ordering party is a registered trader, the exclusive place of jurisdiction for all disputes directly or indirectly arising from the contractual relationship shall be, at the choosing of the supplier, the court having jurisdiction in the location of the registered head office or branch office of the supplier.
2. The contractual relationships shall be governed by German law without giving effect to international uniform law, in particular to the UN Convention on Contracts for the International Sale of Goods.
In the event of the legal ineffectiveness of an individual point, the contract shall remain binding in all its other parts. This shall not apply if upholding the contract would constitute an unreasonable hardship for one party.
As of: October 2023
Note: The German Terms and Conditions [Allgemeine Lieferbedingungen für Erzeugnisse und Leistungen der Elektroindustrie der INOTEC Sicherheitstechnik GmbH] shall prevail where doubt exists over the interpretation of these terms and conditions.