General terms and conditions
1. Scope
1.1. These terms of delivery apply to all contracts, deliveries and other services including advisory services. The purchaser’s terms of purchase are hereby excluded.
1.2. Special obligations within the framework of manufacturer-partnership agreements (distribution agreement guidelines) for “brown goods” that cover wholesaler and retailers of the same manufacturers take precedence over these terms and conditions.
1.3. Special conditions apply to the construction of switchgear systems, and these can be requested by the purchaser (customer) from the vendor at any time.
2. Quotation and conclusion of contract
2.1. Quotations remain non-binding; concluded contracts and other agreements are binding only after they have been confirmed in writing by the vendor.
2.2. Insofar as employees or commercial representatives make verbal subsidiary agreements or give assurances that go beyond the written contract, these must always be verbally confirmed by the vendor.
2.3. Verbal assurances given by persons who have unrestricted authority to represent the vendor or whose authority to represent the vendor cannot be restricted in dealings with third parties are unaffected by the foregoing provision.
2.4. Documents pertaining to the quotation, such as images, drawings, indications of weight and dimensions, are, unless agreed otherwise, to be taken as an approximate guide.
3. Terms of delivery, delay, impossibility of delivery
3.1. The expiry of set delivery deadlines and dates does not release the purchaser who wishes to withdraw from the contract or seek compensation for the non-delivery of goods from the obligation to set a reasonable grace period for the provision of the service and to give notice that he will decline the service after this deadline has elapsed. This does not apply where the vendor has expressly indicated in writing that the deadline or date is regarded as binding.
3.2. Partial deliveries are permissible to a reasonable extent.
3.3. The delivery deadline will be extended – also within a period of delay – in the event of force majeure and all unforeseen obstacles that occur after the contract was concluded and for which the vendor cannot be held responsible (particularly business disruptions, strikes, lockouts or disruption to traffic routes) insofar as it can be proved that such obstacles had a significant influence on the delivery of the item purchased. This also applies if these circumstances affect the vendor’s suppliers or sub-contractors. The vendor will inform the purchaser as soon as possible of the beginning and end of obstacles of this kind. The purchaser may request a declaration from the vendor as to whether he intends to deliver within a reasonable period of time or withdraw from the contract. If the vendor does not make such a declaration without delay, the purchaser may withdraw.
3.4. Delivery deadlines will be extended by the period of time that the purchaser is in arrears with his contractual obligations – including other contracts within an ongoing business relationship.
3.5. The vendor is not liable for any delay and failure (impossibility) of delivery insofar as no fault is attributable to him, his vicarious agents and suppliers. In all other respects, he is liable in accordance with legal provisions. If he is subsequently liable for damages, any claim for damages to which the purchaser is entitled in respect of slight negligence on the part of the vendor will be limited to damages foreseeable at the time of the conclusion the contract – insofar as the contract relates to the purchaser’s professional activities – and will be at most 10% of the value of that part of the total delivery that, as a result of the delay or non-delivery, could not be used in time or in accordance with the contract. Under no circumstances will the vendor be liable for delayed deliveries or failures to deliver (impossible deliveries) that are the fault of his suppliers.
3.6. The right of the purchaser to withdraw after the expiry of a grace period set by the vendor and not upheld by him is not affected.
4. Dispatch and transfer of risk
4.1. Dispatch routes and methods, unless otherwise agreed, are at the vendor’s discretion. Goods can be insured at the purchaser’s request and at his expense.
4.2. If dispatch is delayed at the request of or due to the fault of the purchaser, the goods may be stored at the purchaser’s expense and risk. In this case notice of readiness for dispatch will be equivalent to actual dispatch.
4.3. In all other cases, risk is transferred to the purchaser as soon as the goods are transferred to a carrier or freight company, at the latest when they leave the warehouse, even in the event that the delivery is made using the vendor’s lorry.
5. Packaging
5.1. Packaging is charged separately. If the packaging type and value are grounds for a return, and if the packaging together with all packaging materials is returned free of charge to the vendor within one month using the old reference, a refund will be granted in accordance with the conditions previously agreed. Light packaging, boxes, etc., will not be taken back.
5.2. In the event that transportation equipment is returned late to the vendor due to the fault of the purchaser, the purchaser will reimburse all costs incurred by the vendor. The following also applies in the case of business customers: cable drums that are the property of Kabeltrommel GmbH KG, Cologne (KTG), or of other third parties will be delivered for the account of and on behalf of these owners and in compliance with their conditions – particularly as per the applicable KTG conditions for the transfer of cable and wire drums. These conditions can be viewed at the vendor’s premises and can be sent on request. It should be noted that suppliers of cable drums charge rental on late returns, for which the purchaser is liable, insofar as they apply to him.
6. Prices and payment
6.1. All prices include VAT at the current statutory rate, excluding specialised trade and wholesale prices and prices with VAT indicated separately.
6.2. Unless expressly otherwise agreed, payment will be made within 30 days of the date of the invoice such that the sum agreed for the settlement of the invoice is at the vendor’s disposal at the latest by the due date.
6.3. Payments for repairs are due immediately without discount.
6.4. The vendor accepts discountable and properly taxed bills of exchange only in the event that a corresponding agreement exists. Funds credited against bills of exchange and cheques must be collected; they will be credited after the deduction of fees at the value on the day on which the vendor is able to access the equivalent amount.
6.5. Regardless of the term of any received and credited bills, the vendor’s claims are payable immediately if the conditions of payment have not been met or should facts become known that indicate that the purchaser is in financial difficulty. In the latter case, the vendor is entitled to make any further deliveries contingent upon prepayment or the provision of appropriate securities.
6.6. Should the purchaser be in arrears with payment or fail to pay a bill of exchange on the date due, the vendor is entitled to take back the goods, if necessary by entering the purchaser’s premises and removing them. The vendor may also prohibit the resale and disposal of the delivered goods. Repossession does not constitute withdrawal from the contract.
6.7. Any agreed discount will not apply where the purchaser is in arrears with payment for previous deliveries.
6.8. The offsetting of any counterclaims by the purchaser that are disputed by the vendor is not permitted. The assertion of a right of retention due to disputed claims or claims that are not legally established is excluded to the extent that these claims do not arise from the same contract. If a complaint in respect of defects is made, the purchaser may withhold payments to a value considered appropriate in relation to the defects that have occurred. Where the contract forms part of his commercial trade, however, the purchaser may withhold payment only if the defects notified in the claim are legitimate.
6.9. Payment may be made to an employee of the vendor only if the employee produces a valid power of attorney for the collection of payment.
7. Retention of ownership
7.1. The vendor retains ownership of the goods until the purchase price has been paid in full. Where the purchaser obtains goods from the vendor in the course of his commercial activities, the vendor retains ownership of the goods until all claims against the purchaser arising from the business relationship, including any future claims under contracts signed simultaneously or later, have been settled. This also applies if individual claims or all claims by the vendor have been added to an open account and the balance has been drawn and accepted. If, in connection with the payment of the purchase price by the purchaser, a liability on a bill of exchange on the part of the vendor is created, retention of ownership shall apply until the redemption of the bill of exchange by the purchaser as drawee.
7.2. If the retained goods have been combined with other goods by the purchaser, the vendor retains the right of co-ownership in the new object in proportion of the invoice value of the retained goods to the invoice value of the other goods and the processing value. If the vendor’s ownership is rendered void by the combining, mixing or processing, the purchaser shall transfer to the vendor all rights of ownership of the new object to which the vendor is entitled at the time of the conclusion of the contract at the value of the invoice for the retained goods and hold them in custody for the vendor free of charge. The resulting co-ownership rights are deemed to be retained goods within the meaning of 7.1.
7.3. The purchaser must inform the vendor immediately of any access by third parties to the retained goods and of any assigned claims. He may sell the retained goods only in the course of his usual commercial transactions under his normal business conditions providing he is not in arrears and providing that any claims resulting from the resale are transferred to the vendor in accordance with 7.4 to 7.6. He is not entitled to dispose of the retained goods in any other way.
7.4. The purchaser’s claims from the resale of the retained goods are assigned to the vendor from the outset. They may be used as a security to the same extent as the retained goods. If the retained goods are sold by the purchaser with other goods not supplied by the vendor, the claim resulting from the resale will be assigned in proportion of the invoice value of the vendor’s goods to the other goods sold. Where goods of which the vendor is the co-owner pursuant to 7.2. are sold, the vendor will be assigned a share proportionate to his co-ownership.
7.5. The purchaser is entitled to enforce claims arising from the resale unless the vendor revokes the authorisation to collect payment in the cases listed in 6.6. He is obliged to inform his customer immediately of the assignment to the vendor – unless the vendor does so himself – and to give him the information and documentation necessary for the collection of payment. The purchaser is not entitled to any further assignment of the claim whatsoever. The purchaser is entitled to assign by way of genuine factoring only on condition that this is indicated by naming the factoring bank together with the purchaser’s accounts held there and that the factoring proceeds exceed the value of the vendor’s secured claim. The vendor’s claim will fall due immediately upon credit of the factoring proceeds.
7.6. The vendor undertakes to release the securities to which he is entitled when their value exceeds the claims to be secured by more than 10% to the extent that they have not yet been settled.
8. Notice of defects and warranty
The vendor accepts liability for defects as follows:
8.1. The purchaser must examine the goods received for quantity, quality and assured characteristics immediately upon receipt. He must give written notice to the vendor of any obvious defects within two weeks.
8.2. Where a complaint is justified, the vendor will, at his discretion, make good the defect or replace the defective goods.
8.3. The purchaser must allow the vendor reasonable time and opportunity to rectify the defect, and in particular to make available the faulty item or a sample of it. The warranty will otherwise be rendered null and void.
8.4. If the vendor exceeds the reasonable grace period granted to him without rectifying the defect or supplying a replacement or if rectification or supply of a replacement is impossible, fails or is refused by the vendor, the purchaser is entitled to demand the cancellation of the contract (rescission) or a reduction in the purchase price (abatement) at his discretion.
8.5. If improper modifications and repairs are carried out by the purchaser or third parties, no liability for any consequences arising therefrom will result.
8.6. The warranty period for the rectification of defects is three months, and for replacement delivery and substitute performance six months. The warranty period will extend at least until the expiry of the original warranty period for the item supplied or for as long as and to the extent that the vendor himself is entitled to correspondingly longer warranty periods from his suppliers. The defect warranty period increases by the duration of the interruption to business necessary for the rectification, delivery of replacements or substitute performance for those parts that cannot be operated as intended because of the interruption.
9. General limitation of liability
9.1. The vendor’s liability is determined exclusively by the agreements set out in the previous paragraph. Claims for damages by the purchaser arising from fault in concluding the contract, breach of contractual subsidiary obligations and prohibited behaviour are excluded unless they are based on intentional acts or gross negligence by the vendor or by one of his agents. This limitation of liability applies accordingly to the purchaser. These claims expire six months after receipt of the goods by the purchaser.
9.2. Claims arising from the German Product Liability Act are unaffected by the foregoing provisions.
10. Repairs
10.1. If a binding estimate of costs is requested before repair work is carried out, this must be supplied. Insofar as there is an existing business relationship between the vendor and the purchaser to which these general terms and conditions apply, the cost of the estimate must be reimbursed if the repair is not commissioned.
10.2. The repair may be carried out either in his own or in another workshop at the vendor’s discretion.
10.3. The provisions in Sections 8 and 9 apply to the vendor’s warranty accordingly. Packaging and dispatch costs will be borne by the purchaser.
10.4. Invoices for repairs are payable immediately.
11. Place of performance, court of jurisdiction, applicable law
11.1. The place of performance and exclusive court of jurisdiction for delivery and payment (including actions on cheques and bills of exchange) as well as all disputes arising between the parties will be the vendor’s head office, insofar as the purchaser is a registered trader, a legal entity under public law or a special fund under public law.
11.2. The relationship between the contractual partners will be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the Hague and Vienna Conventions on the Sale of Goods.