GTCT of MGL Licht GmbH in accordance with the general terms and conditions of delivery for products and services of the electrical industry for use in business transactions with businesses
I. General provisions
- These GTD apply exclusively for the legal relations between supplier and purchaser in connection with the deliveries and services from the supplier (hereafter: Deliveries). General terms and conditions of trade of the purchaser apply only to the extent to which the supplier has explicitly agreed to them in writing. The mutual congruent written declarations are decisive for the scope of the Deliveries.
- The supplier reserves the ownership and copyright rights of use of quotes, drawings and other documents (hereafter: Documents) without limitation. The Documents may be made available to third parties only after prior consent from the supplier and must be returned to the same immediately on request if the order is not placed with the supplier. Clauses 1 and 2 apply accordingly for Documents of the purchaser; these may however be made available to such third parties as the supplier has admissibly entrusted with Deliveries.
- The purchaser has the non-exclusive right to the use of standard software and firmware with the agreed performance features in unchanged form on the agreed devices. The purchaser is permitted to make a backup copy of the standard software without explicit agreement.
- Partial deliveries are permissible as long as they are acceptable to the purchaser.
- The term “damage compensation claims” in these GTD also covers compensation claims for wasted expenditure.
II. Prices, terms of payment and offsetting
- The prices are ex works excluding packaging plus the respective applicable statutory sales tax.
- If the supplier has undertaken the installation or assembly and unless otherwise agreed the purchaser shall cover all necessary additional costs such as travel and transport costs as well as accommodation in addition to the agreed payment.
- Payments must be made free to the paying agent of the supplier.
- The purchaser can offset only against such claims as are undisputed or legally binding.
III. Retention of title
- The objects of the Deliveries (reserved goods) remain the property of the supplier until fulfilment of all claims to which the same is entitled against the purchaser from the business relationship. If the value of all security rights to which the supplier is entitled exceeds the sum of all the secured claims by more than 20 % then the supplier will release a corresponding portion of the security rights; the supplier is entitled to choose between various security rights for release.
- Whilst the retention of title exists the purchaser is prohibited from pledging or transferring as security and permitted to resell only to retailers in the ordinary course of business and only on condition that the retailer receive payment from the customer of the same or stipulate the condition that ownership transfers to the customer only once the payment obligations of the same have been fulfilled.
- If the purchaser resells the reserved goods then as security the same now assigns to the supplier the future claims from the resale to customers of the purchaser with all subsidiary rights – including any balance claims – with no need for further special declarations. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods then the purchaser assigns to the supplier that portion of the total asking price which corresponds to the price of the reserved goods invoiced by the supplier.
- a. The purchaser is permitted to process the reserved goods or to mix or combine them with other items. The processing takes place for the supplier. The purchaser shall keep the new item created for the supplier with the care of a prudent business operator. The new item is deemed to be reserved goods.
b. The supplier and purchaser agree now in the case of combining or mixing with other items that do not belong to the supplier that the supplier always has joint ownership of the new item amounting to the proportion arising from the ratio of the value of the combined or mixed reserved goods to the value of the remaining goods at the time of combining or mixing. The new item is considered to be reserved goods to this extent.
c. The provision concerning the assignment of claims in accordance with no. 3 also applies for the new item. However the assignment applies only up to the amount that corresponds to the value of the processed, combined or mixed goods invoiced by the supplier.
d. If the purchaser combines the reserved goods with properties or movable items then with no need for further special declarations the purchaser also assigns to the supplier as security the claim to which the purchaser is entitled in payment for the combination with all subsidiary rights to the amount of the ratio of the value of the combined reserved goods to the value of the remaining goods at the time of combining.
- Until further notice the purchaser is authorised to collect assigned claims from resale. The supplier is entitled to revoke the collection authority of the purchaser if good cause exists and particularly in the case of default in payment, cessation of payment, opening of insolvency proceedings, bill or protest or justified indications of excessive debt or impending insolvency of the customer. After prior warning and compliance with a reasonable deadline the supplier can disclose the security assignment, exploit the assigned claims and demand that the purchaser disclose the security assignment to the customer.
- The purchaser must inform the supplier immediately in the case of distraints, seizures or other dispositions or interventions by third parties. If a legitimate interest is substantiated then the purchaser must immediately provide the supplier with the information required to assert the rights of the same against the customers and issue the necessary Documents.
- In the event of breaches of duty by the purchaser and particularly in the case of default of payment the supplier is also entitled to withdrawal in addition to repossession after unsuccessful expiry of a performance deadline set for the purchaser; the statutory provisions concerning the dispensability of setting a deadline remain unaffected. The purchaser is obliged to surrender the goods. No withdrawal from the contract lies in the repossession or the assertion of the retention of title or seizure of the reserved goods by the supplier unless the supplier has explicitly declared it.
IV. Deadlines for deliveries; default
- Compliance with deadlines for deliveries requires timely receipt of all Documents, required permits and approvals and particularly plans to be provided by the purchaser as well as compliance with the agreed terms and conditions of payment and other obligations by the purchaser. If these conditions are not fulfilled in time then the deadlines shall be reasonably extended; this does not apply if the supplier is responsible for the delay.
- If non-compliance with the deadlines is due to a) force majeure e.g. mobilisation, war, acts of terrorism, riot or similar events (e.g. strike, lockout), b) virus and other attacks of third parties on the IT system of the supplier if such have occurred despite compliance with the usual care in protective measures, c) obstacles due to German, US American and other applicable national, EU or international regulations of foreign trade legislation or due to other circumstances for which the supplier is not responsible or d) delivery not on time or incorrectly to the supplier then the deadlines shall be reasonably extended.
- If the supplier falls into default then the purchaser may – as long as the purchaser substantiates that damage has been incurred by the same – demand compensation of 0.5 % for every full week of delay but a maximum of 5 % of the price for the portion of the deliveries that it was not possible to use appropriately because of the delay.
- Both damage compensation claims of the purchaser due to delayed delivery and damage compensation claims in lieu of performance which go beyond the limits stated in no. 3 are excluded in all cases of delayed delivery even after expiry of a delivery deadline set for the supplier. This does not apply if there is liability in cases of intent, gross negligence or due to injury to life, body or health. Within the scope of the statutory provisions the purchaser may withdraw from the contract only if the delay to the delivery is the fault of the supplier. No change in the onus of proof to the detriment of the purchaser is associated with the above provisions.
- The purchaser is obliged on request of the supplier to declare within a reasonable period whether the purchaser is withdrawing from the contract due to the delay in delivery or insisting on the delivery.
- If dispatch or delivery are delayed at the request of the purchaser by more than one month after notification of readiness for dispatch then the purchaser may be charged storage fees amounting to 0.5% of the price of the delivery items for every additional month or part thereof but a maximum of 5% in total. The right to prove higher or lower storage costs is not affected.
V. Transfer of risk
- The risk is transferred to the purchaser as follows including in the case of delivery carriage paid: a) when it is dispatched or collected in the case of delivery without installation or assembly – on request and at the expense of the purchaser the supplier will insure the delivery against the usual transport risks; b) on the day of acceptance in own plant or if agreed then after successful test operation in the case of delivery with installation or assembly.
- If the dispatch, delivery, start, execution of installation or assembly, acceptance in own plant or test operation is delayed due to reasons for which the purchaser is responsible or if the purchaser falls into default of acceptance for other reasons then the risk is transferred to the purchaser.
VI. Installation and assembly
The following provisions apply for the installation and assembly unless otherwise agreed in writing:
- The purchaser must cover the costs of and provide the following in good time: a) all earth, construction and other ancillary works outside the industry including the specialists and assistants, construction materials and tools required for these, b) the consumer items and materials required for installation and commissioning such as scaffolding, lifting gear and other technical equipment, fuels and lubricants, c) energy and water at the place of use including connections, heating and lighting, d) sufficiently large, suitable, dry and lockable rooms on the installation site for storage of machine parts, equipment, materials, tools etc. and appropriate work and recreation rooms for the installation personnel including sanitary facilities appropriate to the circumstances; the purchaser must moreover take such measures to protect the property of the supplier and the installation personnel on the construction site as the purchaser would take to protect own property, e) protective clothing and protective devices that are required due to special circumstances on the installation site. Before the start of the installation work and without request the purchaser must provide the necessary information about the location of concealed power, gas and water lines or similar facilities as well as the required static information.
- Before the start of installation or assembly the provisions and items required for commencement of the work must be present at the installation or assembly location and all preliminary work must have progressed sufficiently before the start of development such that the installation or assembly can be started and executed without interruption. Access roads and the installation or assembly place must be levelled and cleared.
- If the installation, assembly or commissioning are delayed by circumstances for which the supplier is not responsible then the purchaser must cover the costs of the supplier or installation personnel for waiting time and additional travel required to a reasonable extent.
- The purchaser must certify the duration of the working time of the installation personnel weekly and completion of the installation, assembly or commissioning immediately to the supplier.
- If the supplier requests acceptance of the delivery after completion then the purchaser must effect this within two weeks. It is equivalent to acceptance if the purchaser allows the two-week deadline to expire or – if applicable after an agreed test period – the delivery has been taken into use.
The purchaser is not permitted to refuse acceptance of deliveries due to minor defects.
VIII. Material defects
The supplier is liable as follows for material defects:
- All parts or services that display a material defect must be repaired, resupplied or provided anew free of charge at the choice of the supplier if the cause existed already at the time of the transfer of risk.
- Claims for subsequent performance expire in 12 months from the start of the statutory limitation period; the same applies for rescission and reduction. This deadline does not apply if the law in accordance with §§ 438 par. 1 no. 2 (buildings and items for buildings), 479 par. 1 (right of recourse) and 634a par. 1 no. 2 (construction defects) of the German civil code (BGB) prescribes longer periods, in the case of intent, malicious concealment of the defect and non-compliance with a quality guarantee. The statutory provisions concerning expiry suspension, suspension and recommencement of the periods remain unaffected.
- Notifications of defects by the purchaser must be made immediately in writing.
- In the case of notifications of defects payments of the purchaser may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The purchaser may withhold payments only if a notification of defects is asserted concerning the justification of which there can be no doubt. No right of retention exists for the purchaser if the defect claims of the same have expired. If the notification of defects is unjustified then the supplier is entitled to demand compensation from the purchaser for the expenses incurred by the supplier.
- The supplier must be granted the opportunity for subsequent performance within a reasonable period.
- If the subsequent performance fails then the purchaser may – regardless of any damage compensation claims in accordance with no. 10 – withdraw from the contract or reduce the payment.
- Claims for defects do not apply in the case of only minor deviation from the agreed quality, in the case of only minor impairment of usability, in the case of natural wear or damage that occurs after the transfer of risk as a result of incorrect or careless handling, excessive load, inappropriate operating equipment, defective construction work, unsuitable construction ground or particular external influences that are not preconditions under the contract and in the case of non-reproducible software faults. If modifications or repair works are performed incorrectly by the purchaser or by third parties then there are no defect claims for these and the resulting consequences.
- The purchaser is obliged to check the received goods immediately for any deviations in quality or quantity; § 377 German commercial code (HGB) otherwise remains unaffected.
- Recourse claims of the purchaser against the supplier in accordance with § 478 German civil code (BGB) (recourse of the operator) and § 445 a German civil code (BGB) (recourse of the seller) apply only to the extent to which the purchaser has made no agreements with the customer of the same above and beyond the statutory claims for defects.
In the event that the item which was defective on transfer of risk in accordance with its nature and intended use has been installed in another object or affixed to another object the supplier owes compensation for the expense of removal of the defective and installation or affixing of the improved or supplied item (removal and installation costs) only in accordance with the following conditions:
Only such removal and installation costs as concern the removal and installation or affixing of identical products which have been developed on the basis of standard market conditions and proven to the supplier by submission of appropriate documents at least in textual form are required. Claims above and beyond the required removal and installation costs and especially costs of consequential damages due to defects such as loss of profits including calculated profit markup, operating failure costs or additional costs for replacement procurement are not removal and installation costs and therefore also not eligible for compensation. If the expenses claimed are disproportionate in the individual case especially in relation to the purchase price of the items in defect-free condition taking into account the significance of the contractual non-compliance then the supplier is entitled to refuse compensation for the expenses. The supplier must be informed immediately in the event of occurrence of a guarantee claim.
- Damage compensation claims of the purchaser due to a material defect are excluded. This does not apply in the case of malicious concealment of the defect, in the case of non-compliance with a quality guarantee, in the case of injury to life, body, health and in the case of a deliberate or grossly negligent breach of duty by the supplier and even in the case of § 439 par. 3 BGB. No change in the onus of proof to the detriment of the purchaser is associated with the above provisions. Further claims of the purchaser or claims of the purchaser other than those governed by this art. VIII due to a material defect are excluded.
IX. Commercial property rights and copyrights; defects of title
- Unless otherwise agreed the supplier is obliged to provide the delivery free of commercial property rights and copyrights (hereafter: Property Rights) only in the state of the delivery location. If a third party makes justified claims against the purchaser due to infringement of Property Rights by deliveries made by the supplier and used in accordance with the contract then the supplier is liable to the purchaser as follows within the period specified in art. VIII no. 2: a) For the deliveries concerned the supplier will obtain a right of use at the expense of the same, amend them such that the Property Right is not infringed or replace them. If this is not possible for the supplier under reasonable conditions then the purchaser is entitled to the statutory rights of rescission or reduction. b) The obligation of the supplier to pay damage compensation is based upon art. XII. c) The aforementioned obligations of the supplier apply only if the purchaser immediately informs the supplier in writing of the claims asserted by the third party, does not recognise an infringement and all defensive measures and settlement negotiations remain open to the supplier. If the purchaser ceases to use the delivery due to damage mitigation or other important reasons then the purchaser is obliged to advise the third party that the cessation of use is associated with no acceptance of a Property Right infringement.
- Claims of the purchaser are excluded if the same is responsible for the Property Right infringement.
- Claims of the purchaser are furthermore excluded if the Property Right infringement is caused by special requirements of the purchaser, by an application that was not foreseeable by the supplier or by the fact that the delivery is changed by the purchaser or used together with products not supplied by the supplier.
- In the case of Property Right infringements the provisions of art. VIII nos. 4, 5 and 9 moreover apply accordingly for the claims of the purchaser governed by no. 1a).
- If other defects of title exist then the provisions of this art. VIII apply accordingly.
- Further claims of the purchaser or claims of the purchaser other than those governed by this art. IX against the supplier and the vicarious agents of the same due to a defect of title are excluded.
X. Reservation of implementation
- The contractual performance is subject to the condition that it is impeded by no obstacles due to German, US American and other applicable national, EU or international regulations of foreign trade legislation and no embargos or other sanctions.
- The purchaser is obliged to produce all information and Documents required for the export, transfer or import.
XI. Impossibility, contract amendment
- If the delivery is impossible then the purchaser is entitled to demand damage compensation unless the supplier is not responsible for the impossibility. However the damage compensation of the purchaser is limited to 10% of the value of the respective portion of the delivery that cannot be used appropriately because of the impossibility. This does not apply if there is liability in cases of intent, gross negligence or due to injury to life, body or health; no change in the onus of proof to the detriment of the purchaser is associated with this. The right of the purchaser to withdraw from the contract remains unaffected.
- If events in accordance with art. IV no. 2 a) to c) significantly alter the economic significance or content of the delivery or have a significant effect on the business of the supplier then the contract will be amended appropriately in accordance with the requirements of good faith. If this is economically unjustifiable then the supplier has the right to withdraw from the contract. The same applies if required export licences are not issued or not usable. If the supplier wishes to exercise this right to withdraw then the same must notify the purchaser of this immediately after becoming aware of the scope of the event and even if an extension of the delivery period was initially agreed with the purchaser.
XII. Other damage compensation claims
- Unless specified otherwise in these GTCT damage compensation claims of the purchaser regardless of legal grounds and particularly due to breaches of duty from the obligation relationship and from unlawful acts are excluded.
- This does not apply if there is liability as follows: a) under the German product liability act, b) in case of intent, c) in case of gross negligence of owners, legal representatives or senior staff, d) in case of malice, e) in case of non-compliance with an accepted guarantee, f) due to culpable injury to life, body or health or g) due to culpable breach of essential contractual obligations. The damage compensation entitlement for breach of essential contractual obligations is limited however to the foreseeable damages that are typical of the contract unless another of the aforementioned cases exists.
- No change in the onus of proof to the detriment of the purchaser is associated with the above provisions.
XIII. Place of jurisdiction and applicable law
- The registered office of the supplier is the sole place of jurisdiction in the case of all disputes arising directly or indirectly from the contractual relationship if the purchaser is a trader. The supplier is however also entitled to take legal proceedings at the registered office of the purchaser.
- This contract including its interpretation is subject to German law to the exclusion of the United Nations convention on contracts for the international sale of goods (CISG).
XIV. Binding nature of the contract
Even in the case of legal invalidity of individual provisions the contract remains binding in its remaining parts. This does not apply if adherence to the contract would represent unreasonable hardship for one party.