General Terms and Conditions of Sale and Delivery
I. General Provisions
1. The extent of the deliveries or performances (hereinafter "Deliveries") shall be based on the written statements of both parties. The present General Terms and Conditions of Sale and Delivery (hereinafter "Sales Conditions") are deemed to supplement said statements. Conditions made by the orderer contrary to or divergent from our Sales Conditions shall only apply if this has been expressly approved in writing. Our Sales Conditions also apply in full when we undertake delivery to the orderer without reservations despite having knowledge of conditions made by the orderer contrary thereto or divergent therefrom. The version of our Sales Conditions that was valid upon conclusion of the contract shall also apply to all future legal transactions with the orderer.
2. We reserve absolute property rights and author's rights to exploitation to cost estimates, drawings, illustrations, calculations and other documents (hereinafter "Documents"). Said Documents may only be made available to third parties with our prior consent and must be returned to us without delay should the contract not be awarded. Sentences 1 and 2 apply analogously to the orderer's documents. However, the orderer's documents may be made available to those third parties to which we have legitimately transferred deliveries.
3. The orderer has the non-exclusive usufructuary right to standard software with the agreed performance specifications in unaltered form on the agreed devices. The orderer may create two back-up copies absent express agreement.
4. Partial deliveries are permitted to the extent that such deliveries do not pose a hardship to the orderer.
II. Conclusion of the Contract
1. Offers are always subject to change without notice absent provisions to the contrary in individual contracts. We reserve the right to make reasonable technical changes or reasonable changes to shape, colour and other areas to the extent that such changes are not detrimental to usefulness.
2. We can accept orders, which are to be deemed as offers within the meaning of the law, within two weeks after receipt thereof. Their acceptance can be undertaken in writing or by delivery.
3. Orders made electronically will be confirmed by us in writing. The confirmation of receipt does not constitute a binding acceptance of the order. We reserve the right to combine the notification of acceptance with the confirmation of receipt.
4. The contract is concluded under the reservation that our suppliers make timely and proper delivery to us, but only in cases in which we are not responsible for the failure to deliver. This shall apply in particular to a transaction concluded with our supplier to congruently cover the aforementioned contract.
Should performance not be available at all or not available in a timely fashion, we will inform the orderer immediately and any consideration executed will be reimbursed without delay.
III. Prices and Payment Conditions
1. The prices are deemed to be ex works, excluding packaging, absent any express provisions to the contrary. Collateral performances are charged separately.
2. The statutory turnover tax is not included in our prices and is posted separately at the amount required by law.
3. If we have agreed to set-up or assembly and there are no agreements to the contrary, the orderer shall, in addition to the agreed compensation, bear all additional necessary ancillary costs such as travel expenses, costs of transportation of assets needed for the set-up or assembly, of transportation of personal luggage as well as of daily allowances paid to field staff.
4. Discounts must be set forth in special written agreements to be valid.
5. Payments must be made within the required deadline at the orderer's expense, with our receipt of payment being the decisive factor in determining the timeliness of said payment.
6. The orderer can only offset his claims with respect to us when said counterclaims have become res judicata, are uncontested or have been acknowledged by us. Rights of retention can only be exercised by the orderer when the orderer's counterclaim is based on the same legal relationship governed by an individual contract; rights of retention based on claims arising from a claim not made in connection with the contract in question.
IV. Reservation of Title
1. The objects of the Deliveries (reserved goods) remain our property until all contractual and statutory claims due to us with respect to the orderer arising from the overall business relationship have been satisfied. Should the value of all security interests due to us exceed the amount of all secured claims by more than 20%, we will, at the orderer's request, release an appropriate amount of the security interests at our option.
2. While the reservation of title exists, the orderer is prohibited from pledging said objects or transferring them by way of security and is only permitted to resell them to resellers in the normal course of business and only under the condition that the reseller obtains payment from his customers or makes the reservation that the title shall not pass to the customer until said customer has satisfied his obligation to make payment. In the event of a resale, however, the orderer hereby assigns all receivables due to him as a result of the resale with respect to his customers or third parties, such receivables to amount to the final billed amount of our receivable. The aforementioned shall apply regardless of whether the object purchased is resold following further processing or without such processing. We retain the right to collect the receivable ourselves; the orderer's right to undertake the collection shall remain in force even after the assignment. We promise to refrain from collecting the receivable for as long as the orderer satisfies his obligations to make payments to us, is not in arrears, has not suspended payments and no motion to open bankruptcy proceedings has been filed. In such cases, we are entitled to demand information about the orderer's debtors with respect to receivables assigned to us and to demand all information and documents needed for collection.
3. In the event of attachments, confiscations or other disposals or interventions by third parties, the orderer must immediately inform us and said third parties; the orderer is liable for the damages due to delay in performance.
4. Should the orderer culpably violate material contractual obligations, with particular reference to debt delinquency, we are entitled to take back the reserved goods in question following written warnings and the orderer is obligated to hand over said reserved goods. Our taking back said goods, enforcing our reservation of title thereto or attaching said goods does not constitute a termination of the contract unless we explicitly declare said termination.
V. Delivery Times and Delay
1. To comply with agreed delivery times, it is assumed that any and all documents, necessary permits and releases, especially plans and technical information, to be supplied by the orderer will be received in a timely fashion, and that the agreed payment conditions and other obligations incumbent on the orderer will be complied with by the orderer. Should these requirements not be met in due time, the delivery time shall be extended accordingly; this does not apply if we are responsible for the delay, the burden of proof for said responsibility to lie with the orderer.
2. Should the failure to comply with delivery times be caused by force majeure, including, but not limited to, mobilization, war, terrorist acts, natural disasters, riots or similar events, e.g., a strike or a lock-out, the delivery time shall be extended accordingly.
3. Should Delivery be delayed and the orderer proves that he has incurred a loss as a result, the orderer can demand compensation in the amount of 0.5 % for every complete week of delay, the total sum not to exceed 5 %, said amount to apply to the part of the Delivery that could not be put into useful operation due to the delay.
4. Claims for damages brought by the orderer in excess of the limits set forth in Number 3 are hereby excluded in all instances of delayed Delivery, to include the expiration of a grace period set by us. The aforementioned does not apply to the extent that liability is mandatory in cases of damages caused intentionally or by gross negligence; this shall not cause the burden of proof to change to the orderer's disadvantage. The orderer's right to rescind the contract if a grace period set by us expires without effect remains unaffected.
5. If shipping, delivery, assembly or set-up is delayed at the orderer's request by more than a month following notification that the Delivery is ready for dispatch, the orderer can be charged storage charges in the amount of 0.5 % of the price of the objects of the Delivery for each month begun, the total sum not to exceed 5 %. Proving greater or lesser storage costs is left to the discretion of the contract parties.
VI. Risk of Loss
1. The risk of accidental perishing and of accidental deterioration shall be transferred to the orderer upon the handing over of the object, or, for sales by delivery to a place other than the place of performance at the buyer's request, upon the surrender of the object to the freight forwarder, the freight carrier or to those persons or organizations designated to carry out the shipment. At the orderer's request and expense, deliveries are insured by us against customary transport risks.
2. For deliveries that include set-up or assembly at the orderer's place of business, the risk of loss shall be transferred upon the delivery being taken at the orderer's place of business, to be no later than the time when the assembly or set-up is completed. If agreed, the risk of loss shall not be transferred until a faultless test run has been performed.
3. Should the orderer not take delivery in due time, the risk shall be transferred to the orderer at the time default occurs. The aforementioned applies particularly to failures to make acceptance in due time in shipping or delivery, in commencing, performing the set-up or assembly, in taking delivery in the orderer's place of business or in the test run.
VII. Set-up and Assembly
The following provisions apply to set-up and assembly, absent any other written agreements:
1. The orderer must take delivery at his expense and must provide in a timely fashion:
a) all earthwork, construction work or other ancillary work not customary in the branch of business, to include all necessary expert workers, assistants, construction materials and tools,
b) the requisite objects and materials needed for assembly and initial start-up, including, but not limited to, scaffolding, hoisting equipment and other gear, fuel and lubricants.
c) power and water at the site of use, to include sockets, heating and illumination.
d) Sufficient large, suitable and dry lock-up facilities for storing machine parts, apparatuses, materials, tools, etc. at the assembly site as well as appropriate workrooms and break rooms for the assembly staff, including appropriate sanitary facilities. Furthermore, the orderer must take those measures to protect our property and the assembly staff at the work site that he would take to protect his own operation.
e) Protective clothing and protective gear that the special circumstances of the assembly site make necessary.
2. Prior to commencing the assembly work, the orderer must, without being requested to do so, provide the necessary information about the location of hidden power, gas and water lines as well as other installations in addition to the necessary static information. In the event that damages occur, the orderer is liable to us inter partes; the orderer must provide evidence that he is not at fault.
3. Prior to commencing the set-up or assembly, the materials and objects needed to begin work must be at the set-up or assembly site and all preparatory work done prior to erection must have progressed to the point that the set-up or assembly can be begun as agreed and can be carried out without any interruptions. Paths and ways leading up to the set-up and assembly site and said site must be suitably and reasonably prepared for any and all assembly and set-up activities.
4. Should delays occur in the set-up, assembly or initial start-up due to circumstances beyond our control, the orderer must, to an appropriate extent, bear the costs for the stand-by time and additional requisite travel, without any other additional requirements to be met.
5. The orderer must immediately confirm in writing the working hours of the assembly staff as well as the conclusion of the set-up, assembly or initial start-up.
6. Following completion, the orderer is obligated to accept the Delivery within two weeks. Should the orderer fail to carry out an official acceptance following completion, acceptance is deemed to take place within two weeks following completion. The acceptance is also deemed to be executed when the Delivery is put to use - if appropriate, upon the completion of an agreed test phase. Acceptance cannot be refused due to minor defects.
VIII. Liability for Defects, Warranty
1. Warranty claims brought by the orderer are contingent on the orderer reporting obvious defects within the two weeks following delivery and/or set-up or assembly, as the case may be. Should the nature of the Delivery only be ascertainable by means of special examinations (electrical analyses in particular), the deadline for giving notification of defects shall be extended by the amount of time needed in the proper course of business to perform said special examination, which must be initiated immediately, said amount not to exceed 20 business days. The duty to examine and object to defects pursuant to Art. 377 of the German Commercial Code (Handelsgesetzbuch) shall not be affected hereby.
2. The orderer is obligated to permit us to verify the object of delivery he has designated defective.
3. Should an object of delivery be defective, we have the option of eliminating the defect or delivering a defect-free object to meet our obligation. Defect rectifications will be sent ex head office, freight paid. Should the rectification fail, the orderer is entitled to reduce compensation (reduction) and to terminate the contract (rescission). The right of rescission is precluded in the event of solely minor contract violations, in particular in the event of minor defects. If the orderer rescinds the contract, he waives any broader claims for damages.
4. For newly manufactured objects, the period of limitation on claims for defects shall be one year. Warranties for deliveries of used objects are hereby excluded.
Should the warranty be executed by means of defect rectification, the period of limitation for the elimination of the defect and for those parts installed therefor shall expire upon the expiration of the period of limitation for the object purchased.
Warranties are excluded for defects arising from normal wear and tear, improper handling, overstraining, changes to products or similar influences.
5. The orderer bears the burden of proof with respect to any and all circumstances substantiating claims. Furthermore, the orderer bears the burden of proof with respect to the time at which the defect was discovered and with respect to the defect being present upon delivery and with respect to the defect not being obvious.
6. The nature of the goods is deemed to be solely the product description as well as the information provided in the offer or in our order confirmation, as the case may be. Public statements made by us or by our suppliers, in particular statements made in advertisements or in labelling items by means of certain characteristics, are not contractual statements as to the nature of the goods. In the event that the assembly or user manuals handed over are defective, the orderer only has a right to demand delivery of a defect-free assembly or user manual. Said claim does not exist if the defect in the assembly or user manual does not hinder proper assembly or use.
7. We do not assume any further guarantees within the meaning of the law absent any explicit agreements in individual contracts.
IX. Impossibility / Adaptation of Contract
1. If we are responsible for an impossibility, the orderer is entitled to demand damages. The orderer's claim for damages is limited to 10% of the value of that part of the Delivery that can not be put into useful operation due to said impossibility. Such limitation does not apply to the extent that liability is mandatory in cases of damages caused intentionally or by gross negligence. The aforementioned shall not cause the burden of proof to change to the orderer's disadvantage. The orderer's right to rescind the contract remains unaffected hereby.
2. Should unforeseen circumstances within the meaning of Paragraph V, Number 2 materially change the commercial significance or the content of the Delivery, the contract will be adapted appropriately in good faith. If this is not commercially justifiable, we are entitled to rescind the contract. The legal transaction will then be rolled back pursuant to legal statutes without the orderer having grounds for claims for damages. Upon learning of the scope of the event, we will immediately notify the orderer of our intention to exercise our right of rescission. The right of rescission remains in existence even in the event of an initial agreement with the orderer to extend the delivery time.
X. Industrial Property Rights and Copyrights
1. Should a third party bring legitimate claims against the orderer arising from the infringement of an industrial property right or copyright (hereinafter "Property Rights") by products delivered by us and used pursuant to the provisions of the contract, our liability to the orderer is as follows:
a) At our option, we will either obtain a license for the product, or modify the product so that the Property Right is no longer infringed or exchange the product. If the aforementioned is not possible under reasonable circumstances, we are entitled to take back the product under reimbursement of the purchase price, said price to be diminished by the savings accrued to the orderer due to prior use and/or by the advantages accrued due to prior use, as the case may be. Unless the contractual relationship or the nature of the Delivery give rise to a contrary result, the savings and/or benefit accrued from use shall be defined as a flat rate of 3% of the purchase price for each month begun during actual use, the total sum not to exceed the total price. The orderer remains entitled to prove lesser savings and lesser advantages.
b) The aforementioned obligation only exists if the orderer immediately informs us in writing of the claims brought by the third party, does not acknowledge an infringement of the Property Right and if we reserve the right to all defence measures and conciliation proceedings. Should the orderer suspend the use of the product in order to reduce damages or for other important reasons, he is obligated to inform the third party that the suspension of use does not constitute an acknowledgement of an infringement of the Property Right.
2. Claims brought by the orderer are excluded to the extent that he is responsible for the infringement of the Property Right.
3. Furthermore, claims brought by the orderer are excluded to the extent that the infringement of the Property Right is caused by the orderer's special requirements, by a use not foreseen by us or by the product being changed by the orderer or used together with products we have not delivered. If the orderer has special requirements, the orderer bears the risk of infringements of Property Rights; we do not have a duty to inform or advise. In the event of infringements of Property Rights due to use, the orderer bears the burden of proof that said use was foreseeable for us.
4. Any and all further claims against us are hereby excluded, whereas all other liability claims set forth herein shall remain as unaffected as the orderer's right to rescind the contract.
XI. Disposal of old electrical appliances
1. The customer is obliged to dispose of the objects supplied when they have finished using them, and to comply with the statutory regulations for their disposal. The customer shall bear the costs of disposal.
2. The customer releases Elabo from all obligations in accordance with § 10 section 2 of the Electrical Act, and in particular from the manufacturer's duty of recovery, as well as all associated claims by third parties.
3. Insofar as the customer passes on the supplied objects to any third party, he/she shall be obliged to require such a third party by contract to dispose of the objects in accordance with the statutory regulations on cessation of use, at the expense of the third party or of the customer.
The customer is to require third parties contractually, to impose a corresponding duty, should the object be passed on yet again.
4. Should the customer breach the requirements as set out in item 3, he/she shall be obliged to recover the goods in accordance with item 1, to dispose of them in compliance with the statutory regulations, and to release Funk-Elktrotechnik from any claims by third parties.
5. All claims arising from these provisions by Elabo against the customer shall lapse at the earliest 2 years after cessation of use; to that extent there is an expiry restriction. This shall not begin before receipt of written notification from the customer by Funk-Elktrotechnik relating to the cessation of use.
6. Any different agreement relating to the recovery and disposal of old electrical appliances by Funk-Elktrotechnik must be declared in writing by the customer. The scope of recovery will be limited to components that display all the following characteristics: the "Funk-Elktrotechnik" brand name on the old appliance, CE label, serial number sticker with serial number (must be still present on the old electrical appliance), the symbol of a dustbin with a cross through it and with a black bar below it. The scope of recovery only includes the old electrical appliances, without housings, without bench tops etc.
XII. Other Liability
If we are obligated by contract or by law to pay damages or compensate for expenses, we are only liable in cases of intent or gross negligence on our part, on the part of our managing employees or on the part of agents in the discharge of our obligations, or in which we are imputable for damage to life, limb or health. Strict liability pursuant to the Product Liability Act (Produkthaftungsgesetz) is not affected hereby. Liability for culpable violations of material contractual obligations is also unaffected thereby. In the latter instance, liability is limited to foreseeable damage customary in contracts, excepting those cases set forth in sentences 1 and 2. The aforementioned shall not cause the burden of proof to change to the orderer's disadvantage.
XIII. Place of Jurisdiction
The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Crailsheim.
German law applies to any and all claims; all other international agreements are excluded with respect hereto.
Should an individual provision hereof be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a provision that comes closest to the commercial impact of the invalid provision.