General Terms and Conditions of Supply, Services and Payment
Hereinafter Terms and Conditions of Supply and Payment
Adels-Contact is member of the German electrical and electronic manufacturers' association (ZVEI) and supports the distribution and use of the conditions recommended by ZVEI. As regards the extended clause of reservation of title therefore the supplementary clause "extended reservation of title" - status May 2021 - of ZVEI shall apply to all contractual relations. Furthermore, the subsequent General Terms and Conditions of Adels-Contact shall be effective that have their origin in the conditions recommended by ZVEI (so-called "green terms of delivery").
1. General Provisions
1.1. For all contractual relations between the customer and the company Adels-Contact Elektrotechnische Fabrik GmbH & Co. KG - hereinafter "Contractor" - the Terms and Conditions set forth herein below shall apply exclusively. Any terms and conditions conflicting with or deviating from the Terms and Conditions of Supply and Payment shall not be recognized by Contractor unless the Contractor explicitly consents to the application thereof in writing. The Terms and Conditions of Supply and Payment of the Contractor shall apply even if the Contractor performs delivery to Customer without reservation notwithstanding his knowledge of terms and conditions of the Customer conflicting with or deviating from these Terms and Conditions.
1.2. The Contractor shall be entitled to withdraw from the Agreement in the event the customer disagrees with the Terms and Conditions of Supply and Payment. In such a case all claims on the part of the Customer shall be excluded.
1.3. The Customer shall undertake to inform the Contractor when it cannot be excluded that the products delivered by the Contractor to consumers are delivered in terms of § 13 BGB (German Civil Code) - also built into other products.
1.4. The Contractor reserves the unrestricted right to ownership and copyright exploitation rights in cost estimates, drawings and any other documents; they may only be made accessible to third parties given the prior written approval of the Contractor. Drawings and other documentation forming part of quotations shall be returned immediately to Contractor if the assignment is not placed. The aforementioned provision shall not apply if the listed documents are generally accessible.
2.1. Agreements shall only come into effect through an order confirmation of the Contractor transmitted in writing or electronically. Until then, the offers of the Contractor, especially but not limited to design, prices and deadlines, shall be subject to confirmation and not binding unless expressly defined as "binding". For the scope of the delivery or performance only the order confirmation shall be relevant.
2.2. The documents on which the offer of the Contractor is based like illustrations, drawings and weight indications are established with care but are only approximate unless they are expressly defined as "binding". Changes that only slightly modify or improve the performances shall be reserved as far as they can be reasonably expected from the Customer. The Contractor shall not be liable to the Customer for the suitability of goods and performances for an intended application presented by the Customer.
3. Customer's Obligation to cooperate
3.1. The Customer shall name a technically professional who will be available to the Contractor to supply any necessary information, and who will take the decisions that are necessary for realizing the order or obtain them without delay. The Contractor shall involve the contact person of the Customer wherever necessary for executing the order.
3.2. The Customer shall create all prerequisites necessary for a proper completion of the order. In particular, the Customer shall guarantee that all necessary cooperation of the Customer or his vicarious agents shall be rendered in time, in the necessary scope and free of charge for the Contractor.
3.3. The Customer shall be liable for delays or errors in the order execution if these result from performance data submitted by him, wrong or incomplete indications or any other circumstances for which he is responsible.
4. Supplies and Performance
4.1. Supply and/or performance times shall be deemed observed when the Contractor notifies the Customer about his readiness for dispatch within the agreed deadlines and/or coordinates a date with him for rendering the performance. Adequate part deliveries or part performances and customary or acceptable deviations from the order quantities are permissible unless the part delivery or part performance is of no avail to the Customer.
4.2. For supply and performance delays due to force majeure and to further events, which not only essentially complicate the delivery for the Contractor temporarily or make it impossible - this especially includes break- downs, strike, lockout, official instructions, shortage of raw materials, difficulties in the energy supply, mobilization, riots, etc, even if they occur at the suppliers of the Contractor or their subsuppliers - the Contractor shall not be liable, even for bindingly agreed deadlines and dates. They entitle the Contractor to respectively postpone the supply and/or performance by the duration of the interference plus an appropriate starting-up time or to withdraw from the Agreement completely or partially because of the not yet fulfilled part.
4.3. As far as the event of force majored takes more than three months, following the setting of an adequate period of grace the Customer shall be entitled to withdraw from the Agreement as regards the not yet fulfilled part. In the event the delivery period is extended or in the event the Contractor is released from his obligation, Customer shall not be entitled to any claims for damages. Contractor can only refer to the abovementioned circumstances if he immediately notifies the Customer.
4.4. Provided that the Contractor is responsible for the noncompliance of bindingly agreed deadlines and dates or if he is in delay Customer shall be entitled to a delay compensation amounting to 0.5% for every completed week of the delay; in total, however, a maximum of 5% of the invoice value of the supplies and performances affected by the delay.
4.5. Customer's claims for damages due to delayed supplies as well as claims for damages instead of performance exceeding the limits specified in No 4.4 above shall be excluded in all cases of delayed supplies even upon expiry of a time set to the Contractor to effect the supplies. This shall not apply in cases of mandatory liability based on intention, gross negligence, or due to injury of life, body or health. Cancellation of the Agreement by the Customer based on statute shall be limited to cases where Contractor is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Customer.
4.6. Customer shall declare within a reasonable period of time whether the Customer cancels the Agreement due to the delayed supplies and/or performances or insists on the supplies and/or performances to be carried out.
4.7. Contractor shall render his services according to state-of-the-art pursuant to the performance requirement. Specifications by the Customer need to be in writing and have to be made known to the Contractor before the conclusion of the Agreement. Orders shall be executed by observing the principles of proper execution of work through qualified employees or partners authorized by the Contractor. The selection of the appointed employees and partners shall be reserved to the Contractor.
4.8. Contractor shall be entitled to render the performance in adequate parts as long as this does not lead to unacceptable additional expenses for the Customer.
4.9. If dispatch or shipment is delayed at the Customer's request by more than one month after notice of the readiness for dispatch was given, the Customer may be charged, for every month commenced, storage charges amounting to 0,5% of the price of the items of the supplies; but in no case more than a total of 5%. The contractual parties may prove that higher or, as the case may be, lower storage costs have been incurred.
Customer undertakes to keep all illustrations, drawings, calculations and any other documents and information he received strictly confidential; they may only be disclosed to third parties with the express written consent of the Contractor. The obligation to secrecy shall remain effective after the termination of this Agreement. It shall not expire until and insofar the manufacturing knowledge contained in the illustrations, drawings, calculations and any other documents provided is in the public domain. Accordingly, Customer shall commit his employees to secrecy.
6. Prices, Shipment, Packing
6.1. Prices, fees as well as incidental expenses shall be calculated according to the written agreements. If there are none Contractor shall be entitled to calculate the list prices of the current price list resp. as per specific hourly rates valid at the day the performance is rendered. In the absence of specific prices for the relevant performance the generally accepted market price shall be deemed agreed. On principle, the prices and fees do not include incidental commuting expenses, travel expenses, packaging expenses, freight expenses and insurance. These costs are invoiced to the Customer separately and according to the principles pursuant to clause 6.2. All prices and fees are ex works excluding packaging plus the respectively valid legal turnover tax. If there is an accelerated or any different off-standard way of transportation at the request of Customer he shall bear any hereby arising additional costs.
6.2. Surcharges for opened packaging units are expressly reserved. To avoid surcharges, no discounts are granted for orders lower than the minimum order value of EURO 100.00 per order.
6.3. Shipment shall be effected at the risk of Customer. The risk of accidental destruction and accidental deterioration shall be passed to the forwarder with the delivery, to the Customer at the latest when leaving the plant. If the shipment is delayed for reasons the Contractor is not responsible for the passing of the risk shall be effected with the notification of the readiness to deliver.
6.4. The selection of the suitable and adequate transportation means and dispatch is incumbent on the Contractor.
6.5. Leasing pallets shall remain property of Contractor and have to be returned in impeccable condition with the next delivery. The return of equivalent or similar pallets shall be permitted. If the return is not effected within one month after delivery prime costs will be invoiced to the Customer. The Customer shall be entitled to return transport packages of our deliveries to the Contractor's registered office. The packages must be clean, free from impurities and sorted by substances. Otherwise the Contractor shall be entitled to charge the Customer for the additional costs incurred for the disposal.
7. Invoicing, Payment and Assignment of Claim
7.1. Invoices shall become due within 30 days after invoicing and delivery without deduction. If the performance within a contract of work and service has not yet been accepted at least half of the invoice shall be due for payment.
7.2. Agreed payment periods shall be deemed observed when the amount to be paid is available to the Contractor at the due date. Cheque or bills shall only be accepted on account of performance. There is no entitlement that the Contractor accepts the aforementioned payment means.
7.3. Customer shall only have a retention right as regards claims from the same contractual relationship that are uncontested or against which no legal recourse is possible. In the latter case, he may retain the payment of compensation with defects of parts of the delivery or performance only to the amount that corresponds to the invoice value of the defect delivery or performance.
7.4. If Customer delays payment Contractor shall be entitled to charge interest to the legal amount valid at the time.
7.5. In the event the solvency of Customer is doubted, especially in case of outstanding payment, suspension of payment, quest for a compromise settlement or a moratorium on the part of Customer, the whole claim of Contractor shall immediately become due. The same shall apply if insolvency procedures are opened over the assets of Customer or the opening was refused because of lack of assets. In this case, Contractor may demand advance payments or securities and revoke payment targets. After payment entry, Contractor shall completely bring about his performances towards Customers. The right for withdrawal from the Agreement shall not be affected.
7.6. An assignment of the claim or collection through third parties shall be permissible.
7.7. Customer shall only have the right to set-off claims that have become final or are uncontested.
8. Retention of Title
8.1. Until the fulfilment of all claims (including any balance claims from account current) which Contractor is entitled to for any cause in law against Customer now or in future, the Contractor shall be granted the following securities which he will release on demand at his discretion as far as their value sustainable exceeds the claims by more than 10%.
8.2. The goods shall remain property of Contractor. Processing or transformation is always executed for Contractor as manufacturer, however, without obligation for him. If the (co)property of Contractor lapses by connection, it is agreed now already that the (co)property of Contractor in the uniform matter passes to Customer ad valorem (invoice value). Customer keeps the (co)property of Contractor without charge. Goods in which Contractor is entitled in (co)property shall in the following be referred to as Reserved Goods.
8.3. Customer shall be entitled to process and sell the Reserved Goods in the ordinary course of his business dealings as long as he is not in arrears. Pledging or collateral assignments are inadmissible. The claims resulting from further sale or a further legal justification (insurance, unlawful act) with regard to the reserved goods (including any balance claims from account current) Customer now already assigns as security to the full extent to Contractor. Contractor shall revocably authorize him to collect the claims assigned to Contractor for him on his behalf. This authorization for collection can be revoked only when Customer does not properly fulfil his payment obligations.
8.4. On access of third parties to the reserved goods, especially pledging, Customer shall point out the property of Contractor and immediately inform him so that Contractor can enforce his property rights. As far as third parties are not able to reimburse Contractor for legal or extrajudicial costs generated in this connection, Customer shall be liable for this.
8.5. On behaviour of Customer contrary to the Agreement - in particular default in payment - Contractor shall be entitled to withdraw from the Agreement and to demand the reserved goods.
8.6. Furthermore, the provisions of the supplementary clause "Extended Clause of Retention of Title" of ZVEI shall be valid in the version dated June 2011.
Customer may not refuse the acceptance of deliveries due to minor defects.
10.1. All supplies and performances owed by Contractor shall be effected carefully and properly according to the resepective state-of-the-art technology as well as the relevant safety regulations. Warranty shall not be assumed for test products not yet released but used in the development stage of Customer, pre-series devices and/or prototypes or for services. Within these services, however, Contractor shall assume liability that he will work carefully and professionally.
10.2. After the successful acceptance with contracts for work and services, only an objection to the work due to concealed defects is possible. After having identified the defect it must be reprehended immediately, at the latest, however within three working days. If no complaint is effected within two weeks after the defect was identified the work shall be deemed approved by Customer. The complaint must detail the defects in writing.
10.3. In purchase agreements, the provisions of § 377 HGB (German Commercial Code) shall be applicable. A waiver by Customer is expressly objected.
10.4. Within justified complaints all those parts or performances have to be remedied, newly delivered or newly rendered free of charge at the discretion of Contractor that display a quality defect provided that its cause already existed at the time the risk was passed. The expiry of the fixed term for newly delivered goods or newly created works with appropriate use shall be twelve months after transfer of risk to Customer, when the latter is a merchant unless another period is stipulated by manadatory law. Towards users the legal provisions shall apply.
10.5. Contractor shall be granted the opportunity of subsequent performance within an adequate period of time.
10.6. Any claims of Customer because of expenses made necessary for the purpose of subsequent performance, especially costs for transportation, labour and material, shall be excluded if the expenses increase because the subject of the delivery was subsequently brought to another place than the registered seat of Customer unless such transportation is consistent with its intended use.
10.7. Any recourse claims of Customer against Contractor according to § 478 BGB (recourse of entrepreneur) shall exist only to the extent that his customer is a consumer and, Customer has not entered into any agreements with his customer going beyond the mandatory statutory claims. Item 10.6 shall apply mutatis mutandis to the scope of the Customer's recourse claim against Contractor pursuant to § 478 sect. 2 BGB (German Civil Code).
10.8. Liability for any damages shall be excluded to the extent they are not expressly determined in the aforementioned provisions, also to the extent they did not occur on the delivery item itself. Excluded from this shall be damages caused by intention or gross negligence of owner, executive or vicarious agents of Contractor or resulting from culpably infringement of relevant contractual duties. In the latter case, however, liability shall only be assumed for the typically occurring, predictable damage. Furthermore, the exclusion of liability shall not be applicable in cases in which with defects of the delivery item, liability is assumed for injuries to life, body or health or for damages of things caused by privately used items.
10.9. The claim for warranty expires when the result of the performance and/or execution or the delivery item of Contractor were modified. If the Customer refuses Contractor to view and inspect the objected defects, or if he rectifies them without prior approval of Contractor, the claim for warranty shall also expire unless Customer had to immediately act himself because of the risk of deterioration. The claim for warranty shall not refer to natural wear and tear and not to damages that arise after the risk has passed as a result of incorrect or careless treatment, overuse, unsuitable operating resources and due to electrical and/or mechanical influences going beyond the proper use.
10.10. Should there be a serial defect in exceptional cases, Contractor at his discretion shall replace or repair the affected items of this series. If the product of Contractor in this connection is built in another product, the contractual parties shall jointly agree if and to what extent the products have to be exchanged or repaired. In this case, Contractor shall replace Customer's justified costs upon prior coordination and written agreement with Customer. Customer may claim the regulation of this sub-section exclusively within the warranty period. Serial defects are defects in which the materials and components delivered by Contractor have a defect frequently that lies distinctively outside the usually expected values or the values indicated by Contractor. A series defect shall especially exist when the number of objected materials exceeds 8% of the quantity delivered within a period of three months.
11. Liability / Other Claims for Damages
11.1. Any further liability for damages other than those provided for in item 10 shall be excluded, regardless of the legal nature of the asserted claim. This shall, in particular, apply to claims for damages resulting from culpa in contrahendo, due to other breaches of obligations or due to claims in tort for the compensation of property damage in accordance with § 823 BGB (German Civil Code).
11.2. The limitations of Customer's claims pursuant to item 11.1 shall also apply if Customer does not require damages but performance, and instead of said performance asserts useless expenditure.
11.3. Insofar as the liability for damages towards Customer is excluded or limited, this shall also apply with respect to the personal liability for damage of employees, members of staff, co-operators, representatives and vicarious agents of Contractor.
11.4. The compensation of damages caused to Customer by the use of unreleased test products, pre-series devices and/or prototypes still in the development phase shall be excluded.
12. Withdrawal / Cancellation
12.1. If the delivery or performance is subsequently rendered impossible for reasons Contractor is responsible for Customer shall be entitled to withdraw from the Agreement. In the event of partial impossibility he shall be entitled to withdraw as regards the part of the contractual performance whose fulfilment has become impossible. If the partial fulfilment of the Agreement is no longer of interest to Customer he may withdraw from the Agreement as a whole. In such cases, Customer shall only be entitled to compensation in damages under the conditions stipulated in item 11.
12.2. In the event Contractor is not responsible for the impossibility of fulfilling the Agreement, the Agreement shall be adjusted by mutual consent as far as economically reasonable. Otherwise both contractual parties may withdraw from the Agreement fully or partially.
12.3. If the delivery or performance becomes subsequently impossible for reasons the Customer is responsible for; if he cancels the Agreement without a reason to cancel or without the right to cancel; or if Customer withdraws from the Agreement he shall replace Contractor any incurred expenses, costs and any other direct and indirect damages.
13. Quality Assurance
Contractor shall maintain a qualified environment and quality management system according to DIN EN ISO 14001:2015 and DIN EN ISO 9001:2015.
14. Product Liability
As far as the contractor is liable to pay compensation for a defect according to the provisions of the Product Liability Act, the extent of liability shall exclusively be subject to the regulations of this law. Any further liability shall expressly require a written agreement.
15. Construction Modifications, Illustrations and Descriptions
Contractor reserves the right to modify the construction at any time without prior notice; however, he is not obligated to carry out such modifications to products already delivered. The illustrations, dimensions, descriptions, technical details as well as packaging units indicated in the respective catalogs are not binding; Contractor expressly reserves the right for modifications.
16.1. For all documents, devices or suchlike handed over to Contractor for the purpose of delivery or performance Customer shall guarantee that copyrights of third parties are not violated hereby. Contractor shall point out rights of third parties known to him to Customer. Customer shall indemnify Contractor against any claims by third parties and any damages arising to him. In the event Contractor is forbidden to perform, manufacture or deliver by a third party under reference to a copyright belonging to him Contractor shall be entitled to stop work and demand replacement for his expenses - without examination of the legal situation. Any documents, devices and suchlike submitted to Contractor that did not lead to the order shall be returned on request against reimbursement of costs. Otherwise Contractor shall be entitled to destroy them three months after having placed the offer.
16.2. Contractor shall reserve property rights and copyrights on any samples, patterns, drawings, cost estimates, calculations and similar information in physical or incorporeal form - including electronic form. Such information may not be disclosed to third parties.
17. Industrial Property Rights; Deficiencies in Title
17.1. Unless otherwise agreed in writing, Contractor shall provide the supplies free from third parties' industrial property rights and copy-rights (hereinafter referred to as "IPR") with respect to the country of the place of destination only. If a third party asserts a justified claim against the Customer based on an infringement of an IPR with respect to the supplies made by Contractor and than used in conformity with the Agreement, Contractor shall be liable to Customer within the time period for warranty stipulated in item 10.4 as follows:
a) Contractor shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the supplies concerned or whether to modify the deliveries such that they no longer infringe the IPR or replace them. If this would be impossible for the Contractor under reasonable conditions, Customer may cancel the Agreement or reduce the remuneration pursuant to the applicable statutory provision;
b) The liability of Contractor to pay damages shall be governed by item 10 and/or 11;
c) The above obligations of Contractor shall only apply if the Customer immediately notifies Contractor of any such claim asserted by the third party in writing, does not concede the existence of an infringement and leaves any protective measures and settlement negotiations to the discretion of Contractor. If the Customer stops using the supplies in order to reduce the damage or for other good reason, he shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.
17.2. Claims of Customer shall be excluded if he is himself responsible for the infringement of an IPR.
17.3. Claims of the Customer shall also be excluded if the infringement of the IPR is caused by specifications made by the Customer, to a type of use not foreseeable by Contractor or to the deliveries being modified by the Customer or being used together with products not provided by Contractor.
17.4. In addition, with respect to claims by the Customer pursuant to item 17.1 a) above, items 10.5 and 10.7 shall apply mutatis mutandis in the event of an infringement of an IPR.
17.5. Where other deficiencies in title occur, item 10 shall apply mutatis mutandis.
17.6. Any other claims of the Customer against Contractor and its agents or any such claims exceeding the claims provided for in this item 17, based on a deficiency in title, shall be excluded.
18. Oligations ElektroG
18.1. Customer represents and guarantees that he will effect the disposal of the goods or devices after the end of their usage, at own cost and according to all applicable legal provisions and standards. He shall waive any claim against Contractor out of, and indemnify and hold harmless Contractor from any and all claims, also of third parties, in connection with § 10 sect. 2 of the German ElektroG (obligation of manufacturer to take back goods or devices).
18.2. In case Customer passes goods to commercial third parties and does not transfer by contract the obligation to effect the disposal and to reiterate such transfer of obligation to their further customers as well, Customer shall be obliged to take back and effect the disposal of the goods after end of their usage, at own cost and according to all applicable legal provisions and standards. All rights and claims of Contractor against Customer regarding said representations and guarantees, said transfer of obligations, said waivers, indemnifications and hold harmless obligations, shall not become time-barren under any statute of limitations of actions until two years after the definite end of usage of the respective goods or devices. The two year's term for suspension of the statute of limitation of action shall not begin earlier than with the receipt of a written information of Customer to Contractor regarding the end of usage of the goods or devices.
19. Transmission of Order
Contractor shall be entitled to pass on the order or relevant parts of the order to third parties without the prior written approval of Customer. Contractor shall be liable for the third party as for an own vicarious agent.
20. Data Protection
The contractual parties shall treat personal data of the other contractual party in accordance with the Federal Data Protection Law.
21. Transfer of Risk
Even where delivery has been agreed freight free, the risk shall pass to the Customer at the time when Contractor has arranged for supplies to be shipped or picked up by the carrier. At specific written request and, at the expense of Customer, the Contractor shall insure the supplies against the usual risks of transport.
22. Cessation of Payment, Insolvency
If a Customer ceases payment a provisional insolvency administrator shall be appointed, insolvency proceedings are opened up over his assets or if there are protests of a bill or protests of a cheque against him Contractor shall be entitled to withdraw fully or partially from the Agreement without this giving way to any claims against the Contractor. If Contractor withdraws from the Agreement the supplies and performances rendered so far shall be settled at contract prices.
23. Regulations on Export
Customer is herewith informed that the export of the supplied products, information, software and documents (jointly referred to as Products) according to the relevant valid export regulations of the Federal Republic of Germany, the European Union and/or the United States of America - eg on the basis of their nature or intended use or end destination- may be subject to authorization or excluded and violations may be prosecuted. Therefore Customer shall guarantee that all national or international relevant export regulations are strictly observed and that any necessary authorizations are obtained. In this regard Customer shall in particular check and ensure that
a) in the event the products may only be delivered with an authorization of the respective, in particular national authorities, for an arms-related, nuclear or weapon-related technical use and/or to a military recipient, this authorization is obtained in advance;
b) no companies or persons contained in the Denied Persons List (DPL) of the American Department of Trade and Industry are delivered with goods originating from the US, or software or technology from the US;
c) no company or persons contained in the Special Designated Nationals Lists and Blocked Persons List of the American Treasury Department or the Terrorist List of the EU are supplied with Products;
d) the relevant UN Resolutions, EG Directives and German Laws as well as lists of the respective German authorities are observed;
e) no persons are supplied who are listed on the Unverified List of the American Department of Trade and Industry.
Contractor shall label information, software and documentations in relation to obligations to obtain authorization pursuant to German and EU export control lists and U.S. Commerce Control List. In the event the aforementioned obligations are violated by the Customer he shall indemnify Contractor upon the initial request from any claims and compensate any damages which supplier or licensor of Contractor, third parties or governmental and/or international authorities and/or organisations claim towards the Contractor.
24. Contract Language, Correspondence
The contract language shall be German. Any correspondence and other documents shall be written in German. This shall also apply to all other documents. If the contractual partners in addition use another language, the German wording shall have priority.
25. Partial Invalidity
Should parts of these General Terms and Conditions of Delivery and Payment be or become invalid, the validity of the remaining provisions shall not be affected; the same shall apply to the filling of loopholes of these General Terms and Conditions of Delivery and Payment.
26. Place of Jurisdiction / Applicable Law
26.1. Exclusive place of jurisdiction shall be 51429 Bergisch Gladbach if the Customer is a merchant. However, Contractor shall reserve the right to assert his claims at any other permissible place of jurisdiction.
26.2. In addition, exclusively non-unified German law shall be applicable, notably the BGB / HGB. The provisions of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (UN Sales Convention) shall be excluded.
Bergisch Gladbach, the 12/01/2022
Elektrotechnische Fabrik GmbH & Co. KG