General Terms and Conditions of Business
These General Terms and Conditions of Business apply to all supplies and services to business customers, unless otherwise expressly agreed in writing.
Alternative agreements, covenants, amendments and subsidiary agreements shall be in writing to be enforceable.
The customer (called the Customer in the following) authorizes the supplier/provider (called the Provider in the following) with waiver of notification, to process personal data pursuant to the provisions of the BDSG (the German Data Protection or Privacy Act) and as required for performance of the contractual relationship and to transmit same to those entities within the enterprise that are involved in the implementation of the contractual relationship.
2. Proposals, Scope of Services and Conclusion of Contracts
All proposals of the Provider are always subject to engagement.
The Customer is bound to its order for 4 weeks. Acceptance of the order is effective only if it is confirmed in written by the Provider within 4 weeks or is executed by way of an obligatory performance pursuant to the contract.
The confirmation of order is governing as to the scope of the contractual performances due.
The Provider reserves minor changes in construction, selection of materials, specification and model even after issuance of a confirmation of order, insofar as said changes do not conflict with the confirmation of order or the Customer specification.
Partial deliveries that the Provider can invoice are permissible, insofar as they are acceptable to the Customer taking into account its interests.
The Customer agrees to accept the delivery items without prejudice to its rights with respect to liability and warranty.
The documents such as depictions, drawings, dimensional and weight forming the basis of the proposal or the confirmation of order do not constitute characteristics of state, unless they are expressly described as such.
If a substantial change occurs in the economic circumstances of the Customer or to the existing information at the time of concluding the contract, the Provider may refuse delivery until the Customer has provided the proportional consideration or equivalent security.
3. Delivery Times, Acceptance of Delivery and Shipping
Duties to supply and perform are obligatory only if they are approved in writing by the Provider. They commence at the time of conclusion of the contract.
The delivery time shall be respected if the delivery item has left the factory by the time of its expiry or notification of its readiness for shipping has been issued.
The requisite for proper fulfilment of supplies and services by the Provider is that the Customer timely and completely complies with its duty to cooperate (i.e. production of the documents such as approvals etc., to be procured by it). The supply and service obligations of the Provider repose, as long as the Customer has not satisfied its contractual duty to cooperate. This does not apply if the Provider is responsible for the delay. Any extraordinary events occurring after conclusion of the contract such as any disruption in business or operations attributable to the Provider, strike, power or raw material shortages and changes in legislative provisions, regulations or official actions release the Provider from its supply and service obligations for the duration of the disruption and for a reasonable lead time.
The Provider is released from its performance if its rendering of said performance becomes impossible. If the rendering of the performance by the Provider is possible only under aggravated circumstances attributable to the Customer (e.g. because of breach of its duty to cooperate), the Customer agrees to eliminate any impairments or obstacles upon demand by the Provider. The Provider's duty to perform is in repose until said elimination. If the Customer does not comply with this obligation within a reasonable time, the Provider shall be entitled to withdraw from the contract. Further rights of the Provider shall remain unaffected hereby.
Customer claims for compensation of damages are in all events of delayed supply or service excluded to the extent governed by paragraph 8.
The Customer's right to withdraw from the contract in accordance with the provisions of law remain unaffected.
Insofar as the Customer is obliged to collect the goods, it is obliged to take receipt of the goods ordered by it within 14 days from acceptance of the notice of readiness. In the event of failure to take delivery, the Provider is entitled to avail himself of his rights under the law. If, in such event, the Provider demands compensation of damages, said damages shall be 15% of the agreed purchase price. The amount of damages shall be set higher or lower if the Provider proves a higher or the Customer proves a lower amount of damages.
If the Customer has ordered goods on-demand, the Customer - unless otherwise agreed - must take delivery of the ordered goods within a period of not more than 12 months from the date of order. If the goods are not called within said period the entire (residual) purchase price shall be come due and payable. If the remaining goods are not accepted within a period of 4 weeks after receipt of a notice of readiness for delivery, the Provider is entitled to put the goods in storage at the risk and expense of the Customer in a public warehouse or otherwise to safely store the goods. Enforceability of any further rights shall not be affected hereby.
Shipping shall be ex works at the expense and risk of the Customer. Transport, damage, theft and other insurance shall be contracted by the Provider only upon express request and at the expense of the Customer.
4. Prices and Payment Terms and Conditions
Prices are understood to be in euros and in the absence of separate agreement are ex works including packing and lading at the factory but exclusive of other shipping and transport costs. Packing will, if necessary, be billed separately by the Provider and shall not be returnable. Value added tax in the statutory fixed rate shall be added to the prices.
In the event of unforeseeable change in manufacturing costs beyond the control of the Provider, the Provider reserves the right to negotiate with the Customer a price other than the price stated in the confirmation of order.
In the event of Customer change requests the corresponding increase in costs shall be billed.
Unless otherwise agreed, the Provider's invoices shall be due and payable immediately upon receipt without discount. Remittances shall have the effect of discharging debt only when made to the credit of the indicated Provider business accounts. Compliance with the terms shall be governed by receipt of payment by the Provider. In the event of payment default by the Customer, the rights of the Provider shall be governed by the provisions of law. Default shall occur no later than 2 weeks after the date of payability and receipt of the invoice.
In the event of culpable breach of payment terms and with the reserve of assertion of further claims, interest at a rate of 8% above the base lending rate shall be assessed without prior notice. If the Provider should become aware of circumstances that justify uncertainty with respect to the creditworthiness of the Customer, particularly a worsening of creditworthiness or a petition for opening an insolvency proceedings, the Provider is obliged solely to provide matching performances or in consideration of a reasonable security payment. If the Customer does not make said security payment despite a 14-day grace period, the Provider is entitled to withdraw from the contract.
If the Provider, without being obligated to the Customer to do so, agrees to accept return of a supply, the Provider shall be entitled without specific documentation to a lump-sum payment of 15% of the net invoice amount of the returned goods plus V.A.T., unless the Customer proves lower damages or the Provider proves greater damages. The fees for the statutorily required calibration shall not be subject to reimbursement.
Checks and drafts shall be accepted by the Provider only in payment. Discount and note charges are at the expense of the Customer.
Offset with counter-demands is available only when same are undisputed or have been determined res judicata; they are otherwise excluded. The Customer may assert a lien only when its counter-claim is based on the same contractual relationship.
5. Retention of Title
The goods supplied by the Provider shall remain the property of the Provider until fulfilment of all demands vis-à-vis the Customer.
If the Customer acquires ownership of the goods supplied by the Provider through joinder, it agrees to acquiesce to separation and to transfer of the goods. If the separation is not possible, the equivalent partial value (invoice value) of the lost property reverts to the Provider. In this case, the Customer shall permit the Provider's co-ownership at no charge.
The Customer shall be permitted to resell or install the conditional goods in regular commerce, as long as he is not in default. Pledging or assignment as collateral of the conditional goods is prohibited. The Customer shall promptly inform the Provider of pledging or other final enforcement proceedings of third parties with respect to the conditional goods. The Customer shall bear the costs incurred by the Provider in connection with the enforcement of its property rights, if said costs cannot be obtained from the third party.
The Customer shall assign, by way of security with all subsidiary rights, all receivables vis-à-vis its customers that arise from the sale, installation or other utilization of the goods, to the Provider, up to complete satisfaction of the demands arising from the supply of goods, without the requirement of any subsequent special explanation by the Provider.
The Customer is authorized to collect all payables assigned to the Provider. The Provider is entitled to revoke the authorization, particularly when the Customer has not duly complied with its payment obligations. If the economic value of the assigned receivables exceeds a total of more than 10% of the Provider receivables arising from the business relationship, the Provider agrees, upon demand by the Customer, to discretionally release any security in excess thereof.
The Provider is entitled, upon conduct by the Customer in breach of the contract, particularly in payment default, to withdraw from the contract and to demand the goods therefrom.
6. Liability for Defects
The Provider is liable pursuant to the provisions of law for the presence of defects, unless otherwise laid down in the following.
The Provider is liable only if the Customer points out obvious defects promptly after delivery to the Customer. Concealed defects must be notified in writing to the Provider promptly upon discovery.
Claims for compensation of damages are excluded to the extent governed by paragraph 8.
The Provider reserves the choice of supplementary performance in the event of defect. Right of recourse against the Provider pursuant to § 478 Civil Code obtain only upon demonstration and to a maximum in the context of lawful warranty claims. The Provider assumes no warranty for any further agreements that the Customer may have made with its customers.
If the defect is based on the fact that the Provider has supplied a defective installation instruction and contradicts proper installation, the Provider is obligated in the context of supplementary performance only to supply installation instructions free of defects. In the event of obvious defects the Customer agrees to request information from the Provider prior to installation of the equipment.
The aforementioned warranty claims expire after one year from delivery of the item, unless Provider fraudulent intent is suspected. Paragraph 8 of these General Terms and Conditions of Business applies to claims for compensation of damages due to defect. The statute of limitations pursuant to § 479(1) German Civil Code remains unaffected.
7. Assumption of Risk
The risk of accidental breakdown and unforeseen deterioration of the goods reverts to the Customer upon transfer of the goods to the carrier, forwarding agent or the person or agency designated for shipping.
Transfer remains unaffected if the Customer is in default of taking receipt of the goods.
Compensation for damages and claims for compensation of costs of the Customer, regardless of the legal basis, are excluded, unless there is compulsory liability pursuant to the provisions of law, such as:
in accordance with the German Product Liability Act;
in the event of damages due to treat to life, limb or health, that result form a negligent breach of duty of the Provider or intentional or negligent breach of duty of a legal representative or servant of the Provider;
result from a negligent breach of duty of a legal representative or servant of the Provider;
in damages that are caused by the culpable breach of a substantial contractual obligation (a material contractual obligation) of the Provider or of its legal representative or servant; in this instance only for contract-typical and foreseeable damages, however;
in damages when and if the Provider has undertaken a guarantee with respect to the properties of an item or a service or has warranted a specific property, but solely for contract-typical and foreseeable or damages embraced by the purpose of the warranty of property, if the Provider is suspect of fraudulent intent.
Insofar as the Provider's liability is not excluded pursuant to paragraph 8.1, such liability is limited to contract-typical damages foreseeable at the time of concluding the contract. Insofar as the Provider's liability is excluded or limited, this likewise applies to staff, employees, representatives and servants of the Provider.
Insofar as claims for compensation of damages or claims for compensation for increased costs pursuant to paragraph 8.1 are not excluded, said claims expire within one year commencing with the occurrence of the claim or in the case of claims for compensation of damages due to defect at the time of taking receipt of the item. This does not apply if the Provider is suspect of intent or fraudulent intent.
The Provider retains ownership of drawings, sketches, cost estimates and its other documents accompanying its proposals and confirmations of orders. The Customer shall use said documents only for the intended purpose and shall not reproduce or disclose them to third parties without the approval of the Provider. Said documents and any copies thereof shall be returned to the Provider upon demand.
Tools and/or apparatuses fabricated by the Provider remain its property even if the costs therefore have been invoiced in whole or in part.
10. Jurisdiction, Applicable Law and Place of Performance
The laws of the Federal Republic of Germany are exclusively applicable to the contract. The UN Commercial Code is excluded.
If the Customer is a commercial entity, a legal person under public law or a special entity under public law, the jurisdiction of Saarbrucken shall apply to all disputes arising form this contract. The same applies if the Customer has no general place of jurisdiction in the country, moves its domicile or usual workplace after conclusion of the contract or if its domicile or usual workplace is unknown at the time of filing the complaint.
The place of performance is the Provider's main business location.
11. Salvatory Clause
Should individual provisions of this General Terms and Conditions of Business be or become unenforceable, the enforceability of the remaining provisions shall remain intact.
ZENNER International GmbH & Co. KG
PO Box 103343
D - 66033 Saarbrücken
D - 66121 Saarbrücken, GERMANY
Last Revision: 17.08.2006