General terms and conditions
GENERAL TERMS AND CONDITIONS
for deliveries and services to ZETTL GmBH
We order on the basis of these General Terms and Conditions. However, the special terms and conditions of business depending on the type of deliveries/services shall apply with priority, insofar as they are listed in the order letter. Acceptance of our order by you shall be deemed to be acceptance of the aforementioned terms and conditions, waiving any conflicting terms and conditions of sale or delivery of your own. This shall also apply if we have not expressly objected to your conflicting terms and conditions. Other terms and conditions shall only be binding if they have been accepted by us in writing. In such cases, our aforementioned terms and conditions shall apply in addition. The written form required in these General Terms and Conditions and in the contract shall be sufficient for transmission by telecommunication, unless we expressly require a qualified electronic signature in accordance with the German Digital Signature Act.
The submission of offers is free of charge for us. No remuneration shall be granted for visits, cost estimates, preparation of planning documents and the like.
2.0 Order/Conclusion of Contract
2.1 Orders, contracts, agreements as well as supplements and amendments are only binding if we have issued or confirmed them in writing.
2.2 If an order is placed in advance by telephone, you undertake to carry out a check of your and our previous details immediately on receipt of our written order or confirmation and to notify us immediately of any discrepancies.
2.3 You may only subcontract the services/deliveries transferred to you in full with our prior consent. Complete subcontracting by subcontracting in parts is also subject to our consent.
2.4 All correspondence relating to the order must be sent to the address stated in the order letter and must contain all details required for processing (order no. and date, order no. and item no.).
3.0 Shipping instructions
3.1 The goods shall be shipped to the shipping address stated in our order or confirmation, unless we inform you in writing of a different address prior to shipment. Proof of dispatch must be provided to us in duplicate by means of a dispatch note/proof of delivery signed by the recipient. It must contain the following information:
- Order no. and date, order no. and item no.,
- Type, quantity, net and gross weight of the goods,
- the shipping address contained in the order and
- Details additionally requested by us in the order.
One copy shall accompany the goods; the other copy shall be sent to us by post.
3.2 We decline all responsibility for any delays in payment resulting from non-compliance with these provisions. Any additional costs incurred due to non-observance of the shipping addresses shall be borne by you. If, according to the agreement, the freight costs are to be borne by us, you undertake to choose the most favourable mode of dispatch; unless a specific mode of dispatch is expressly requested by us. Additional costs incurred due to an unfavourable choice of a more expensive mode of transport shall be borne by you.
3.3 Shipment shall be at your risk. The risk of any deterioration, including accidental loss, shall remain with you until delivery to the shipping address or place of use requested by us.
3.4 You are obliged to take back transport packaging at your expense unless we agree otherwise in individual cases. In the context of recurring deliveries, the return can also take place with one of the next deliveries.
4.0 Provision of materials
4.1 If we provide you with material, this may only be used for us in accordance with the order. All material remains our property. It must be stored separately and marked as our property. If necessary, you are obliged to inform third parties of our ownership. You shall bear the risk of accidental loss for the material provided by us. You are obliged to take out appropriate insurance in a reasonable amount.
4.2 Prior to the execution of your deliveries and services, you must check whether our provisions have been made properly, in particular on time. If this is not the case, you are obliged to set a period of grace and to specify once again the desired material supplies. At the same time, you must point out the consequences in terms of deadlines and other consequences if we exceed the grace period. If such a notice is missing or if the requested material supplies are not sufficiently specified, you shall in particular not be entitled to an extension of the deadline. Our rights remain unaffected.
4.3 If material provided by us is processed, combined or inseparably mixed with materials not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our material (purchase price plus VAT) to the processed, combined or mixed items at the time of processing, combining or mixing. If the combination or mixing is carried out in such a way that the supplier's item is to be regarded as the main item, it shall also be deemed agreed that the supplier transfers co-ownership to us on a pro rata basis insofar as the main item belongs to him; the supplier shall hold the co-ownership in safe custody for us. If the security rights to which we are entitled on the basis of this provision exceed the purchase price of all our goods subject to retention of title which have not yet been paid for by more than 10%, we shall be obliged to release the security rights at our discretion at your request.
4.4 We shall be liable for the provision of materials for intentional, grossly negligent or fraudulent conduct on our part, as well as for claims arising from the Product Liability Act and for damages due to culpable injury to life, limb and health. In all other respects, our liability is excluded.
5.1 The agreed prices are fixed prices.
5.2 Unless otherwise agreed in writing, the prices shall be free domicile including packaging, customs and insurance to the specified shipping address/place of use.
5.3 The invoice shall be submitted in triplicate immediately after the delivery/service has been performed, stating the order no. and the order no.. The statutory value added tax shall be shown separately on the invoice, if applicable.
6.0 Terms of payment
6.1 You allow us to deduct a discount of 3 % from all invoice amounts due to you (progress payments, final invoices) - after deduction of agreed security and justified retentions for defects and invoice corrections - if we pay by the 15th working day after receipt of your invoice. No interest on arrears can be claimed up to this payment deadline. The period runs from receipt of the invoice, but not before receipt of the goods or provision of the services and, if documentation and test certificates are part of the scope of services, not before they have been handed over to us in accordance with the contract. Late payments caused by incorrect delivery documents or incomplete invoice details shall nevertheless entitle us to deduct the respective discount.
6.2 We reserve the right to make payments by bank transfer, cash or cheques.
6.3 An assignment of claims against us is excluded. Exceptions require special agreements.
6.4 An extension or expansion of your retention of title is excluded.
6.5 Pursuant to Section 48 of the German Income Tax Act (Einkommenssteuergesetz), we are obliged to withhold a withholding tax of currently 15% from all remuneration to be paid and to pay this to the competent tax office for the account of the Contractor. The basis of assessment for the tax deduction is the remuneration plus VAT. We will not withhold tax if you submit to us, together with the invoice but no later than 14 days prior to the payment date, a valid exemption certificate pursuant to Section 48 b (1) sentence 1 of the German Income Tax Act (Einkommensteuergesetz) exempting us from the obligation to withhold tax.
7.0 Set-off, retention
7.1 You agree that we may in any case set off our claims against your claims, irrespective of the legal grounds on which they are based, even if the mutual claims are due for payment in different amounts. If the claims are due for payment on different dates, our claims shall become due for payment at the latest when our liability becomes due for payment and shall be settled on the value date. This shall also apply if payment in cash has been agreed by one party and payment in bills of exchange or other services on account of performance by the other party. If applicable, these agreements only refer to the balance.
7.2 Your right of retention to objects, documents and data of whatever kind which we have made available to you for the fulfilment of your delivery/service obligations is excluded, as is your right of retention due to disputed and not legally established counterclaims.
8.0 Deadlines, delay, force majeure
8.1 The dates agreed in writing are binding. The receipt of the goods or the performance of the services at the place of receipt or use specified by us or the timeliness of the successful acceptance shall be decisive for compliance with a date or the deadline.
8.2 If you realise that an agreed deadline cannot be met for any reason, you must inform us immediately in writing, stating the reasons and the duration of the expected delay.
8.3 No default in acceptance shall occur if the non-acceptance of the ordered deliveries/services is demonstrably due to mobilisation, war, riot, strike, lockout or the occurrence of other unforeseen obstacles (force majeure) which are beyond our control. If we are unable to take delivery even after a reasonable extension of the deadline for the aforementioned reasons, either party shall be entitled to rescind the contract; claims for damages by the supplier shall be excluded in this case.
8.4 In the event of earlier delivery than agreed, we reserve the right to return the goods at your expense. If no return is made in the case of early delivery/service, the goods shall be stored by us at your expense and risk until the delivery date. In the event of early delivery/service, we reserve the right to make payment only on the agreed due date.
9.0 Contract performance
9.1 You warrant that all items delivered by you and all services rendered by you comply with the latest state of the art, insofar as this does not contradict the recognised rules of technology, the relevant legal provisions and the regulations, guidelines and technical rules and regulations of authorities, trade associations and professional associations. You assume the quality or durability guarantee for the performance characteristics or quality specifications stated in our order or the contract components. If the performance characteristics or quality specifications do not clearly emerge from the order or the contractual components or if a delivery/service with the performance characteristics or qualities required by us is not possible at the agreed delivery dates, we must be consulted in any case.
9.2 If you have reservations about the type of execution requested by us, you must inform us immediately in writing. In the case of deliveries/services according to drawings, the dimensions entered on these drawings must be checked by you before commencement. Dimensional errors contained in the drawings, which cause changes in the production that has been started, do not entitle you to make subsequent claims of any kind.
9.3 As soon as we are able to do so within the scope of our normal processing, we will visually inspect the goods delivered by you for obvious or easily recognisable defects and give notice of them. However, we can usually only carry out an inspection for compliance with all our specifications for the order at a later date. Hidden defects shall be notified within two weeks after they become apparent.
10.0 Rights in the event of defects
10.1 Our rights in the event of defects in the deliveries/services shall be governed by the statutory provisions.
11.1 Liability shall be governed by the statutory provisions.
11.2 You shall be liable for all damage culpably caused to us, our employees or a third party by you, your employees, representatives or vicarious agents - irrespective of whether they are integrated into our operations during the work or not. Should a claim be made against us for such damage, you shall indemnify us against any claims and costs arising therefrom.
11.3 You shall be liable for all damage caused by you, your employees, representatives or vicarious agents as a result of a violation of legal provisions for the protection of the environment and occupational safety, in particular the provisions of the Immission Protection Acts, the Waste Oil Ordinance, the Water Resources Act, the Closed Substance Cycle and Waste Management Act, the Federal Soil Protection Act, the Environmental Liability Act and the Environmental Damage Act and the respective ordinances issued in this respect as well as the corresponding provisions of European law. You shall indemnify us against all claims of third parties which they may make against us on account of such a violation.
You undertake to take out and maintain until performance a public liability insurance (and, if applicable, planning liability) sufficient for the order. You will also take out adequate insurance against all risks arising from product liability and environmental liability. You will insure the risks existing in your company or in your activities against environmental damage within the meaning of the Environmental Damage Act by taking out environmental damage insurance in an appropriate amount. Upon request, you will submit the insurance policies to us.
13.0 Right of termination
We are entitled to terminate the contract in the event of cessation of your deliveries/services, application for the opening of insolvency proceedings as well as voluntary liquidation.
14.1 You undertake to treat as confidential all commercial or technical details which are not in the public domain and which become known to you through the business relationship and not to make them accessible to any third party. You shall oblige your sub-suppliers accordingly. The data and documents handed over by us in the course of the business cooperation must be kept strictly confidential.
14.2 Models, drawings, etc. produced at our expense or sent by us shall remain our property. They may not be reused, reproduced or made accessible to third parties. You shall be liable to us for all damages resulting from any infringement. Unless otherwise agreed, they must be returned to us free of charge together with the delivery/service.
14.3 The use of our enquiries and orders as well as other correspondence for advertising purposes is not permitted without our written consent.
14.4 In the event that individual contractual provisions are invalid, the validity of the remaining contractual provisions shall remain unaffected. In place of the invalid contractual provisions, the contractual partners undertake to replace them without delay by way of supplementary agreements with such an agreement that comes closest to the economic result of the invalid provision.
14.5 The place of performance and fulfilment is the place where your deliveries/services are used by us; if this place is not stated in our order, the shipping address. In all other cases, including for payments, the place of performance and fulfilment is the registered office of our company.
14.6 The sole place of jurisdiction shall be the seat of the court having jurisdiction for the appointing company.
14.7 German law shall apply to the exclusion of the conflict of laws provisions and to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).