General Terms and Conditions
General Terms and Conditions
I. Scope of application
II. Offers
III. Delivery
IV. Prices
V. Payment
VI. Reservation of title
VII. Claims for defects and damages of the buyer
VIII. Impossibility – Contract adjustment
IX. Warranty
X. Ownership of rights
XI. Liability
XII. Miscellaneous
XIII. Place of performance / Place of jurisdiction
XIV. Severability clause
I. Scope of application
1.The following General Terms and Conditions of Sale and delivery apply to all contracts, deliveries and other services provided by ZVK GmbH to non-consumers within the meaning of Section 310 (1) German Civil Code (BGB).
2.The General Terms and Conditions of Sale shall apply exclusively; any terms and conditions asserted by the buyer, which are contrary to (or deviate from) those of ZVK GmbH are not recognised unless ZVK GmbH has expressly agreed to their validity in writing.
3.The contractual basis adheres to the following order:
the special terms and conditions of contract, the following General Terms and Conditions, the general terms of delivery for products and services of the electrical industry and, in addition, the laws of the Federal Republic of Germany.
4.Within the framework of an ongoing business relationship with the buyer, ZVK GmbH General Terms and Conditions of Sale also form part of the contract, if there is no express reference to inclusion in the individual case.
5.ZVK GmbH General Terms and Conditions of Sale shall also apply to all
future business with the buyer.
II. Offers
1.All offers made by ZVK GmbH, irrespective of the form in which they are made available to the buyer, are, unless otherwise agreed in writing, non-binding and are subject to the ability of those suppliers of ZVK GmbH to deliver.
2.Customer's orders are considered accepted if they are either confirmed in writing by ZVK GmbH or delivered immediately, or within the agreed period, or made available for collection by the buyer.
3.Verbal ancillary agreements or assurances by employees or agents of ZVK GmbH, which extend beyond the written purchase contract, shall only be deemed effective if they have been confirmed in writing by ZVK GmbH.
4.We reserve the right to make any changes and/or extensions to the scope of delivery or services that prove necessary during the execution of the respective order.
5.ZVK GmbH reserves the right of ownership and copyright to illustrations, drawings, calculations and other documents which the buyer receives in the course of the business relationship with ZVK GmbH.
6.Services of ZVK GmbH that go beyond the obligations as a seller, such as the assumption of planning and consulting services incumbent on the buyer vis-à-vis third parties, shall require special agreement and are only accepted against payment.
7.The dimensions and weights stated in the offer are approximate. Deviations customary in the trade, as well as deviations due to manufacturing or raw materials within the scope of the standard tolerances customary in the industry, shall be permitted.
III. Delivery
1.Should the buyer be obligated to cooperate (submission of drawings, specification of data, provision of material, payment of a deposit or security or similar), agreed delivery periods shall commence at the earliest upon provision of the service owed by the buyer. Delivery dates shall be postponed accordingly, taking into account the readiness for delivery of ZVK GmbH at the new delivery date.
2.In the event of the impossibility of delivery due to force majeure, Section 1 shall apply accordingly.
3.Unless otherwise agreed, ZVK GmbH shall be entitled to make partial deliveries. In this case, in the event of a partial delay or the impossibility of delivery, the buyer shall be entitled to compensation for damages owing to non-fulfilment of the entire obligation or withdrawal from the entire contract only if he can prove that partial fulfilment of the contract is of no interest to him.
4.Deviations from the ordered delivery quantity of up to plus/minus 10 %, as well as excess/shortfall lengths customary in the trade are to be accepted by the buyer.
5.If the buyer does not accept the delivery, he must nevertheless make the payments associated with the delivery, as if the delivery had been made. The same applies if the delivery is to be made on call and the buyer does not call the delivery or agreed partial delivery within the contractually agreed period.
6.The buyer shall be obligated to compensate ZVK GmbH for the damage caused by the delay, including any additional expenses.
7.Should the buyer not comply with his obligation to accept or call off the goods within a reasonable period of time set by ZVK GmbH, even subsequent to a written request, ZVK GmbH shall be entitled to refuse the performance the contract and to claim damages in place of performance. The delivery obligation of ZVK GmbH with respect to the delivery not yet accepted shall lapse. The same shall apply to the (partial) deliveries not yet called off, as well as to any (partial) deliveries that may only be called off in the future.
8.The choice of dispatch route and the means of transport shall be made at the discretion of ZVK GmbH. At the buyer's request, the consignment shall be insured against transport damage at the buyer's expense. Any amounts advanced by ZVK GmbH for insurance, packaging, freight costs, postage, etc. shall be invoiced separately and are due immediately net cash.
9.The risk shall pass to the buyer upon dispatch of the goods from the storage location or upon notification of their readiness for dispatch on the agreed delivery date.
10.Statutory regulations shall apply to packaging in general. Drum deliveries shall be made exclusively using disposable drums. These shall become the property of the buyer and shall not be taken back by ZVK.
11.The minimum order value is EUR 250,-- net. For orders below this amount, ZVK GmbH reserves the right to charge a minimum quantity surcharge of EUR 25,-- net.
IV. Prices
1.The prices of the goods are stated “ex-works”, including loading, but excluding the costs of the shipping packaging. Any necessary cable and line cuts in the case of those ready-made cables provided are also not included. These shall be invoiced separately in each case.
2.With regard to the determination of price, ZVK GmbH refers to the currently valid price list, which is already available to the buyer or which he can request from ZVK GmbH.
3.Services, as well as repair work outside our company and in our workshops, shall require a prior written agreement. Invoicing shall be based on the actual time and material expenditure. The cost of materials shall be invoiced against verifiable proof and for small items by an additional flat rate.
4.The prices for goods and services are net prices. They do not include value-added tax. This is shown separately on the invoice and added at the rate applicable at the time of invoicing.
5.ZVK GmbH reserves the right to change its prices appropriately if, after conclusion of the contract, cost reductions or cost increases occur, in particular, owing to wage settlements or increases in material prices. These shall be proven vis-a-vis the buyer upon request.
V. Payment
1.Invoices of ZVK GmbH are due 30 days after the date of issue. The deduction of any discount shall require a special written agreement.
2.Invoices for services and other performances within the meaning of Section IV.3 are payable within 14 days from the date of invoice without deduction.
3.If the buyer is in default with the fulfilment of his payment obligations, if he is subject to court-ordered seizure, or if his financial circumstances deteriorate significantly, ZVK GmbH shall be obliged to make further deliveries only against advance payment. If the buyer is not in a position to make an advance payment, ZVK GmbH may withdraw from the contract after setting a deadline and issuing a threat of refusal.
4.In the event of late payment, ZVK GmbH shall be entitled to charge interest at 8% above the interest rate of the European Central Bank.
5.The buyer may only assert a right of retention with respect to a claim for payment with defences based on the same contractual relationship as this claim for payment. He shall only be entitled to offsetting if the counter-claim is undisputed or has been legally established.
6.The buyer's claims vis-a-vis ZVK GmbH can only be assigned or pledged to third-parties with the prior written consent of ZVK GmbH.
VI. Reservation of title
1.ZVK GmbH reserves the right of ownership to the goods delivered by it until the buyer fulfils all claims which have arisen or will arise in the future within the framework of the mutual business relationship, in particular, until he has settled any existing current account balance. In the case of cheques and bills of exchange, payment shall only be deemed to have been made when they have been properly honoured.
2.The buyer shall be obligated to store the reserved goods separately and professionally for the duration of the reservation of title. He is further obligated to notify ZVK GmbH immediately of any actual or legal seizures by third-parties of the goods subject to retention of title or assigned claims and to send a seizure notice and an affidavit of the identity of the seized items with the goods subject to retention of title. Damage to (or loss of) the goods subject to retention of title must be reported to ZVK GmbH without delay.
3.If the goods subject to retention of title are processed by the buyer into a new movable item, the processing shall be carried out for ZVK GmbH. In the event of processing together with goods not belonging to ZVK GmbH, ZVK GmbH shall acquire co-ownership of the new object in the ratio of the value of the reserved goods to the other goods at the time of processing. If the reserved goods are combined, mixed or blended with goods not belonging to ZVK GmbH in accordance with Section 947,948 German Civil Code (BGB), ZVK GmbH shall become co-owner in accordance with the statutory provisions. If the buyer acquires sole ownership by combining, mixing or blending, he hereby assigns co-ownership to ZVK GmbH in proportion to the goods subject to retention of title to the other goods at the time of combining, mixing or blending. In such cases, the buyer shall store, free of charge, the item owned or co-owned by ZVK GmbH, which is also deemed to be a conditional commodity within the meaning of the above conditions.
4.The buyer may only sell the goods in the ordinary course of business and hereby assigns to ZVK GmbH any claims against its customers arising from the resale; the latter hereby accepts the assignment. A sale to customers who exclude the possibility of assignment or make it dependent on their approval is prohibited. Any impairment of the rights of ZVK GmbH by way of transfer of ownership – in the form of security transfer or pledge – is prohibited. If the goods subject to retention of title are sold together with other objects not belonging to ZVK GmbH, ZVK GmbH shall be entitled to the buyer's claims against its customers in the amount of the value of the goods subject to retention of title. In addition to ZVK GmbH, the buyer shall be authorised to collect the assigned claims. Upon request, the buyer shall notify his customer of the assignment.
5.In the event that the buyer does not properly fulfil his payment obligations in accordance with Section 326 German Civil Code (BGB), or if he suspends payments, or is subject to bankruptcy proceedings, judicial or extra-judicial composition proceedings, the buyer's authorisation to resell the goods owned or co-owned by ZVK GmbH, as well as the authorisation to collect assigned claims and his right to possess the goods subject to retention of title, shall lapse.
6.At the request of ZVK GmbH, the buyer shall be obligated to release securities of his choice if the value of the securities exceeds the claims to be secured by 15%.
VII. Claims for defects and damages of the buyer
1.The buyer's claims for defects presuppose that the buyer has duly fulfilled his obligation to examine the goods and made a complaint in accordance with Section 377 German Commercial Code (HGB).
2.Only the product description of ZVK GmbH shall be decisive for the agreed quality in the sense of Section 434 (1) 1 German Civil Code (BGB). Public statements, recommendations or advertising statements do not constitute a contractual description of quality.
3.In the event of a defect in the delivery or service for which ZVK GmbH is responsible, ZVK GmbH shall be entitled to choose whether to remedy the defect or provide a replacement delivery. It shall be obligated to bear the necessary expenses for this, in particular, transport, travel, labour and material costs, provided that these are not increased by the fact that the delivery or service has been taken to a place other than the place of performance.
4.The buyer shall grant ZVK GmbH the time and opportunity necessary to remedy the defect at its reasonable discretion. If he refuses to do so, ZVK GmbH shall be released from its liability for defects.
5.If ZVK GmbH is not prepared (or not in a position) to remedy said defect / make a replacement delivery, or if remedying said defect / replacement delivery is delayed beyond a reasonable period of time for reasons for which ZVK GmbH is not responsible, or if the remedy of said defect / replacement delivery fails in any other way, the buyer shall be entitled, at its discretion, to withdraw from the contract or to reduce the payment amount.
6.Unless otherwise stated below, any further claims of the buyer shall be excluded, regardless of the legal grounds. ZVK GmbH shall, therefore, not be liable for damages that have not occurred to the delivery item itself; in particular, ZVK GmbH shall not be liable for lost profits or other financial losses of the buyer.
7.This exemption from liability as per Section 6 shall not apply if the cause of damage is attributable to intent or gross negligence. Furthermore, it shall not apply if ZVK GmbH is obligated to pay damages owing to the absence of a warranted characteristic. Furthermore, it shall not apply if ZVK GmbH is held liable for damages due to a breach of duty for which it is responsible as a result of injury to life, body or health of the buyer. Insofar as ZVK GmbH is obligated to pay damages due to a breach of its cardinal obligations or another essential contractual obligation, its obligation to pay damages shall be limited to the foreseeable damage typical for the contract.
8.Claims for defects and compensation for damages shall generally be subject to a limitation period of one year. If, however, the delivered goods have been used for a construction in accordance with their normal use and the goods have caused its defectiveness, the period of limitation shall be five years, unless the delivered goods have been used for the construction on the basis of a contract in which Part B of the German Construction Contract Procedures (VOB/B) has been included in its entirety. In this case, the shorter limitation periods of the VOB/B shall apply. The limitation periods shall commence upon delivery of the goods, in the case of services in the sense of Section IV.3 upon acceptance, alternatively upon final refusal of acceptance by the buyer. Should ZVK GmbH have fraudulently concealed a defect, the statutory limitation periods shall apply instead of the above-mentioned periods. However, if ZVK GmbH is charged with intent, if claims in tort, claims according to the Product Liability Act or due to injury to life, body or health of the buyer are asserted, the statutory limitation provisions shall apply.
VIII. Impossibility – Contract adjustment
1.Should ZVK GmbH initially be unable to deliver or perform, it shall be liable in accordance with the statutory provisions.
2.If it proves impossible for ZVK GmbH to deliver or perform, the general principles of law shall apply with the following proviso: If said impossibility is due to the culpability of ZVK GmbH, the buyer shall be entitled to assert a claim for damages. However, the buyer's claim for damages shall be limited to the foreseeable damage typical for the contract. The right of the buyer to withdraw from the contract shall remain unaffected.
3.Should unforeseen events substantially change the economic significance or content of the delivery or service, or should they have a considerable effect on the operations of ZVK GmbH, the contract shall be adjusted appropriately, provided such an adjustment is in good faith. Should the adjustment not be economically justifiable, ZVK GmbH shall have the right to withdraw from the contract. Should ZVK GmbH wish to exercise this right of withdrawal, it shall notify the buyer without delay after becoming aware of the consequences of the event, even if an extension of the delivery time was agreed with the buyer.
IX. Warranty
1.ZVK GmbH guarantees that the contractual products comply with the specifications described in the production description and are free from manufacturing and material defects. An insignificant reduction in value or suitability shall not be considered.
2.Warranty claims vis-a-vis ZVK GmbH shall only be available to the buyer and shall not be transferable.
X. Ownership of rights
1.The buyer shall be obligated to inform ZVK GmbH without delay if claims are asserted against him because products (or parts thereof) delivered by ZVK GmbH allegedly infringe an industrial property right or property rights or any other rights of third-parties. In such cases, ZVK GmbH reserves the right to support the buyer in defending itself against such claims and, where necessary, to indemnify the buyer with regard to the costs of legal action, but only if the legal action is carried out exclusively in consultation (or in accordance) with the instructions of ZVK GmbH. This includes the selection of legal and procedural representatives, wherever they may be.
XI. Liability
1.In the event of damage not caused intentionally or by way of gross negligence on the part of ZVK GmbH or its vicarious agents, claims for damages due to fault prior to (or upon conclusion of) the contract, due to a violation of contractual or statutory ancillary obligations, as well as other claims for damages arising from non-contractual liability, shall be excluded, regardless of their legal nature. In particular, in this case, all claims for compensation for damages that have not occurred to the delivery item itself, consequential damages and loss of profit shall hereby be expressly excluded.
2.Any further liability for damages than otherwise provided for in the above Sections shall be excluded – irrespective of the legal nature of the claim.
3.Provisions as per Section 2 shall not apply to claims according to Section 1 (4) Product Liability Act.
4.Insofar as the liability of ZVK GmbH is excluded or limited, this shall also apply to the personal liability of the employees, workers, staff, representatives or vicarious agents of ZVK GmbH.
XII. Miscellaneous
1.The assignment or pledging of the buyer's claims vis-a-vis ZVK GmbH shall require the written consent of ZVK GmbH, in order to be effective.
2.If, during production according to plans or other information provided by the buyer, industrial property rights of third-parties are infringed, the buyer shall hereby indemnify ZVK GmbH from any and all claims of third parties in this regard. In the case of special designs of ZVK GmbH, the passing on (or proprietary use) of all design details by the buyer shall only be permitted with the written consent of ZVK GmbH.
3.The exercising of a right of retention by the buyer on the basis of claims from another contractual relationship is excluded.
4.The buyer may not offset any claims against claims arising from the contract unless the buyer's counter-claims have been recognised by ZVK GmbH or have been legally established.
XIII. Place of performance / Place of jurisdiction
1.The place of performance for those mutual obligations arising from the business relationship shall be the registered office of ZVK GmbH.
2.The place of jurisdiction for disputes arising from the business relationship shall be the registered office of ZVK GmbH. ZVK GmbH shall also be entitled, at its discretion, to bring legal action against the buyer at the buyer's registered office.
3.The law applicable in the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
XIV. Severability clause
1.Should individual provisions of these General Terms and Conditions of Sale and Delivery be (or become) invalid or impracticable, the remaining provisions shall remain effective.
2.The parties undertake to replace the invalid or unenforceable provision from the beginning of its invalidity or lack of enforceability by a provision which comes as close as possible to the invalid or unenforceable provision in all respects.