Terms and conditions B2B
for the Supply of Products and Services of the Electrical and Electronics Industry ("Grüne
Lieferbedingungen" – GL)
*for commercial transactions between businesses
Gisbert Schmahl, Werner Gröger
i_Park Tauberfranken 13
in the following named ’Supplier‘
Article I: General Provisions
1. Legal relations between Supplier and Purchaser in connection
with supplies and/or services of the Supplier (hereinafter referred to as "Supplies")
shall be solely governed by the present GL. The Purchaser's general terms and conditions
shall apply only if expressly accepted by the Supplier in writing. The scope of
delivery shall be determined by the congruent mutual written declarations.
2. The Supplier herewith reserves any industrial property
rights and/or copyrights pertaining to its cost estimates, drawings and other documents
(hereinafter referred to as "Documents"). The Documents shall not be made
accessible to third parties without the Supplier's prior consent and shall, upon
request, be returned without undue delay to the Supplier if the contract is not
awarded to the Supplier. Sentences 1 and 2 shall apply mutatis mutandis to the Purchaser's
Documents; these may, however, be made accessible to those third parties to whom
the Supplier has rightfully subcontracted Supplies.
3. The Purchaser has the non-exclusive right to use standard
software and firmware, provided that it remains
unchanged, is used within the agreed performance parameters, and on the agreed equipment.
Without express agreement the Purchaser may make one back-up copy of standard software.
4. Partial deliveries are allowed, unless they are unreasonable
to accept for the Purchaser.
5. The term „claim for damages" used in the present
GL also includes claims for indemni fication for useless expenditure.
Article II: Prices, Terms of Payment, and Set-Off
1. Prices are ex works and excluding packaging; value added
tax shall be added at the then applicable rate.
2. If the Supplier is also responsible for assembly or
erection and unless otherwise agreed, the Purchaser shall pay the agreed remuneration
and any incidental costs required, e. g. for traveling and transport as well as
3. Payments shall be made free Supplier's paying office.
4. The Purchaser may set off only those claims which are
undisputed or non- appealable.
* The original German text shall be the governing version.
Article III: Retention of Title
1. The items pertaining to the Supplies ("Retained
Goods") shall remain the Supplier's property until each and every claim the
Supplier has against the Purchaser on account of the business relationship has been
fulfilled. If the combined value of the Supplier's security interests exceeds the
value of all secured claims by more than 20 %, the Supplier shall release a corresponding
part of the security interest if so requested by the Purchaser; the Supplier shall
be entitled to choose which security interest it wishes to release.
2. For the duration of the retention of title, the Purchaser
may not pledge the Retained Goods or use them as security, and resale shall be possible
only for resellers in the ordinary course of their business and only on condition
that the reseller receives payment from its customer or makes the transfer of property
to the customer dependent upon the customer fulfilling its obligation to effect
3. Should Purchaser resell Retained Goods, it assigns to
the Supplier, already today, all claims it will have against its customers out of
the resale, including any collateral rights and all balance claims, as security,
without any subsequent declarations to this effect being necessary. If the Retained
Goods are sold on together with other items and no individual price has been agreed
with respect to the Retained Goods, Purchaser shall assign to the Supplier such
fraction of the total price claim as is attributable to the price of the Retained
Goods invoiced by Supplier.
4. (a) Purchaser
may process, amalgamate or combine Retained Goods with other items. Processing is
made for Supplier. Purchaser shall store the new item thus created for Supplier,
exercising the due care of a diligent business person. The new items are considered
as Retained Goods.
(b) Already today, Supplier and Purchaser agree that
if Retained Goods are combined or amalgamated with other items that are not the
property of Supplier, Supplier shall acquire co-ownership in the new item in proportion
of the value of the Retained Goods combined or amalgamated to the other items at
the time of combination or amalgamation. In this respect, the new items are considered
as Retained Goods.
(c) The provisions on the assignment of claims according
to No. 3 above shall also apply to the new item. The assignment, however, shall
only apply to the amount corresponding to the value invoiced by Supplier for the
Retained Goods that have been processed, combined or amalgamated.
(d) Where Purchaser combines Retained Goods with real
estate or movable goods, it shall, without any further declaration being necessary
to this effect, also assign to Supplier as security its claim to consideration for
the combination, including all collateral rights for the prorata amount of the value
the combined Retained Goods have on the other combined items at the time of the
5. Until further notice, Purchaser may collect assigned
claims relating to the resale. Supplier is entitled to withdraw Purchaser's permission
to collect funds for good reason, including, but not limited to delayed payment,
suspension of payments, start of insolvency proceedings, protest or justified indications
for overindebtedness or pending insolvency of Purchaser. In addition, Supplier may,
upon expiry of an adequate period of notice disclose the assignment, realize the
claims assigned and demand that Purchaser informs its customer of the assignment.
6. The Purchaser shall inform the Supplier forthwith of
any seizure or other act of intervention by third parties. If a reasonable interest
can be proven, Purchaser shall, without undue delay, provide Supplier with the information
and/or Documents necessary to assert the claims it has against its customers.
7. Where the Purchaser fails to fulfill its duties, fails
to make payment due, or otherwise violates its obligations the Supplier shall be
entitled to rescind the contract and take back the Retained Goods in the case of
continued failure following expiry of a reasonable remedy period set by the Supplier;
the statutory provisions providing that a remedy period is not needed shall be unaffected.
The Purchaser shall be obliged to return the Retained Goods. The fact that the Supplier
takes back Retained Goods and/or exercises the retention of title, or has the Retained
Goods seized, shall not be construed to constitute a rescission of the contract,
unless the Supplier so expressly declares.
Article IV: Time for Supplies; Delay
1. Times set for Supplies shall only be binding if all
Documents to be furnished by the Purchaser, necessary permits and approvals, especially
concerning plans, are received in time and if agreed terms of payment and other
obligations of the Purchaser are fufilled. If these conditions are not fulfilled
in time, times set shall be extended reasonably; this shall not apply if the Supplier
is responsible for the delay.
2. If non-observance of the times set is due to:
(a) force majeure, such as mobilization, war, terror
attacks, rebellion or similar events (e. g. strike or lockout);
(b) virus attacks or other attacks on the Supplier’s
IT systems occurring despite protective measures were in place that complied with
the principles of proper care;
(c) hindrances attributable to German, US or otherwise
applicable national, EU or international rules of foreign trade law or to other
circumstances for which Supplier is not responsible; or
(d) the fact that Supplier does not receive its own
supplies in due time or in due form such
times shall be extended accordingly.
3. If the Supplier is responsible for the delay (hereinafter
referred to as "Delay") and the Purchaser has demonstrably suffered a
loss therefrom, the Purchaser may claim a compensation as liquidated damages of
0.5 % for every completed week of Delay, but in no case more than a total of 5 %
of the price of that part of the Supplies which due to the Delay could not be put
to the intended use.
4. Purchaser's claims for damages due to delayed Supplies
as well as claims for damages in lieu of performance exceeding the limits speci
fied in No. 3 above are excluded in all cases of delayed Supplies, even upon expiry
of a time set to the Supplier to effect the Supplies. This shall not apply in cases
of liability based on intent, gross negligence, or due to loss of life, bodily injury
or damage to health. Rescission of the contract by the Purchaser based on statute
is limited to cases where the Supplier is responsible for the delay. The above provisions
do not imply a change in the burden of proof to the detriment of the Purchaser.
5. At the Supplier's request, the Purchaser shall declare
within a reasonable period of time whether it, due to the delayed Supplies, rescinds
the contract or insists on the delivery of the Supplies.
6. If dispatch or delivery, due to Purchaser's request,
is delayed by more than one month after noti fication of the readiness for dispatch
was given, the Purchaser may be charged, for every additional month commenced, storage
costs of 0.5 % of the price of the items of the Supplies, but in no case more than
a total of 5 %. The parties to the contract may prove that higher or, as the case
may be, lower storage costs have been incurred.
Article V: Passing of Risk
1. Even where delivery has been agreed freight free, the
risk shall pass to the Purchaser as follows:
(a) if the delivery does not include assembly or erection,
at the time when it is shipped or picked up by the carrier. Upon the Purchaser's
request, the Supplier shall insure the delivery against the usual risks of transport
at the Purchaser's expense;
(b) if the delivery includes assembly or erection,
at the day of taking over in the Purchaser's own works or, if so agreed, after a
successful trial run.
2. The risk shall pass to the Purchaser if dispatch, delivery,
the start or performance of assembly or erection, the taking over in the Purchaser's
own works, or the trial run is delayed for reasons for which the Purchaser is responsible
or if the Purchaser has otherwise failed to accept the Supplies.
Article VI: Assembly and Erection
agreed in written form, assembly and erection shall be subject to the following
1. Purchaser shall provide at its own expense and in due
(a) all earth and construction work and other ancillary
work outside the Supplier's scope, including the necessary skilled and unskilled
labor, construction materials and tools;
(b) the equipment and materials necessary for assembly
and commissioning such as scaffolds, lifting equipment and other devices as well
as fuels and lubricants;
(c) energy and water at the point of use including
connections, heating and lighting;
(d) suitable dry and lockable rooms of sufficient
size adjacent to the site for the storage of machine parts, apparatus, materials,
tools, etc. and adequate working and recreation rooms for the erection personnel,
including sanitary facilities as are appropriate in the specific circumstances;
furthermore, the Purchaser shall take all measures it would take for the protection
of its own possessions to protect the possessions of the Supplier and of the erection
personnel at the site;
(e) protective clothing and protective devices needed
due to particular conditions prevailing on the specific site.
2. Before the erection work starts, the Purchaser shall
unsolicitedly make available any information required concerning the location of
concealed electric power, gas and water lines or of similar installations as well
as the necessary structural data.
3. Prior to assembly or erection, the materials and equipment
necessary for the work to start must be available on the site of assembly or erection
and any preparatory work must have advanced to such a degree that assembly or erection
can be started as agreed and carried out without interruption. Access roads and
the site of assembly or erection must be level and clear.
4. If assembly, erection or commissioning is delayed due
to circumstances for which the Supplier is not responsible, the Purchaser shall
bear the reasonable costs incurred for idle times and any additional traveling expenditure
of the Supplier or the erection personnel.
5. The Purchaser shall attest to the hours worked by the
erection personnel towards the Supplier at weekly intervals and the Purchaser shall
immediately con firm in written form if assembly, erection or commissioning has
6. If, after completion, the Supplier demands acceptance
of the Supplies, the Purchaser shall comply therewith within a period of two weeks.
The same consequences as upon acceptance arise if and when the Purchaser lets the
two week period expire or the Supplies are put to use after completion of agreed
test phases, if any.
Article VII: Receiving Supplies
The Purchaser shall
not refuse to receive Supplies due to minor defects.
Article VIII: Defects as to Quality
The Supplier shall
be liable for defects as to quality ("Sachmängel", hereinafter referred
to as "Defects",) as follows:
1. Defective parts or defective services shall be, at the
Supplier's discretion, repaired, replaced or provided again free of charge, provided
that the reason for the Defect had already existed at the time when the risk passed.
2. Claims for repair or replacement are subject to a statute
of limitations of 12 months calculated from the start of the statutory statute of
limitations; the same shall apply mutatis mutandis in the case of rescission and
reduction. This shall not apply where longer periods are prescribed by law according
to Sec. 438 para. 1 No. 2 (buildings and things used for a building), Sec. 479 para.
1 (right of recourse), and Sec. 634a para. 1 No. 2 (defects of a building) German
Civil Code ("Buergerliches
Gesetzbuch"), in the case of intent, fraudulent concealment of the Defect or
non-compliance with guaranteed characteristics (“Beschaffenheitsgarantie"). The
legal provisions regarding suspension of the statute of limitations ("Ablaufhemmung",
"Hemmung") and recommencement of limitation periods shall be unaffected.
3. Notifications of Defect by the Purchaser shall be given
in written form without undue delay.
4. In the case of noti fication of a Defect, the Purchaser
may withhold payments to an amount that is in a reasonable proportion to the Defect.
The Purchaser, however, may withhold payments only if the subject-matter of the
noti fication of the Defect involved is justi fied and incontestable. The Purchaser
has no right to withhold payments to the extent that its claim of a Defect is time-barred.
Unjusti fied noti fications of Defect shall entitle the Supplier to demand reimbursement
of its expenses by the Purchaser.
5. The Supplier shall be given the opportunity to repair
or to replace the defective good ("Nacherfuellung") within a reasonable period of time.
6. If repair or replacement is unsuccessful, the Purchaser
is entitled to rescind the contract or reduce the remuneration; any claims for damages
the Purchaser may have according to No. 10 shall be unaffected.
7. There shall be no claims based on Defect in cases of
insignificant deviations from the agreed quality, of only minor impairment of usability,
of natural wear and tear, or damage arising after the passing of risk from faulty
or negligent handling, excessive strain, unsuitable equipment, defective civil works,
inappropriate foundation soil, or claims based on particular external influences
not assumed under the contract, or from non-reproducible software errors. Claims
based on defects attributable to improper modifications or repair work carried out
by the Purchaser or third parties and the consequences thereof are likewise excluded.
8. The Purchaser shall have no claim with respect to expenses
incurred in the course of supplementary performance, including costs of travel,
transport, labor, and material, to the extent that expenses are increased because
the subjectmatter of the Supplies has subsequently been brought to another location
than the Purchaser's branch office, unless doing so complies with the normal use
of the Supplies.
9. The Purchaser's right of recourse against the Supplier
pursuant to Sec. 478 BGB is limited to cases where the Purchaser has not concluded
an agreement with its customers exceeding the scope of the statutory provisions
governing claims based on Defects. Moreover, No. 8 above shall apply mutatis mutandis
to the scope of the right of recourse the Purchaser has against the Supplier pursuant
to Sec. 478 para. 2 BGB.
10. The Purchaser shall have no claim for damages based
on Defects. This shall not apply to the extent that a Defect has been fraudulently
concealed, the guaranteed characteristics are not complied with, in the case of
loss of life, bodily injury or damage to health, and/or intentionally or grossly
negligent breach of contract on the part of the Supplier. The above provisions do
not imply a change in the burden of proof to the detriment of the Purchaser. Any
other or additional claims of the Purchaser exceeding the claims provided for in
this Article VIII, based on a Defect, are excluded.
Article IX: Industrial Property Rights and Copyrights;
Defects in Title
1. Unless otherwise agreed, the Supplier shall provide
the Supplies free from third parties' industrial property rights and copyrights
(hereinafter referred to as "IPR") with respect to the country of the
place of delivery only. If a third party asserts a justified claim against the Purchaser
based on an infringement of an IPR by the Supplies made by the Supplier and used
in conformity with the contract, the Supplier shall be liable to the Purchaser within
the time period stipulated in Article VIII No. 2 as follows:
(a) The Supplier 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 Supplies such that they no longer infringe the IPR or replace
them. If this would be impossible for the Supplier under reasonable conditions,
the Purchaser may rescind the contract or reduce the remuneration pursuant to the
applicable statutory provisions;
(b) The Supplier's liability to pay damages is governed
by Article XII;
(c) The above obligations of the Supplier shall apply
only if the Purchaser
(i) immediately notifies the Supplier of any such claim asserted by the third party
in written form,
(ii) does not concede the existence of an infringement
(iii) leaves any protective measures and settlement negotiations to the Supplier's
discretion. If the Purchaser stops using the Supplies in order to reduce the damage
or for other good reason, it 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.
2. Claims of the Purchaser shall be excluded if it is responsible
for the infringement of an IPR.
3. Claims of the Purchaser are also excluded if the infringement
of the IPR is caused by specifications made by the Purchaser, by a type of use not
foreseeable by the Supplier or by the Supplies being modified by the Purchaser or
being used together with products not provided by the Supplier.
4. In addition, with respect to claims by the Purchaser
pursuant to No. 1 a) above, Article VIII Nos. 4, 5, and 9 shall apply mutatis mutandis
in the event of an infringement of an IPR.
5. Where other defects in title occur, Article VIII shall
apply mutatis mutandis.
6. Any other claims of the Purchaser against the Supplier
or its agents or any such claims exceeding the claims provided for in this Article
IX, based on a defect in title, are excluded.
Article X: Conditional Performance
1. The performance of this contract is conditional upon
that no hindrances attributable to German, US or otherwise applicable national,
EU or international rules of foreign trade law or any embargos or other sanctions
2. The Purchaser shall provide any information and Documents
required for export, transport and import purposes.
Article XI: Impossibility of Performance; Adaptation
1. To the extent that delivery is impossible, the Purchaser
is entitled to claim damages, unless the Supplier is not responsible for the impossibility.
The Purchaser's claim for damages is, however, limited to an amount of 10 % of the
value of the part of the Supplies which, owing to the impossibility, cannot be put
to the intended use. This limitation shall not apply in the case of liability based
on intent, gross negligence or loss of life, bodily injury or damage to health;
this does not imply a change in the burden of proof to the detriment of the Purchaser.
The Purchaser's right to rescind the contract shall be unaffected.
2. Where events within the meaning of Article IV No. 2
(a) to (c) substantially change the economic importance or the contents of the Supplies
or considerably affect the Supplier's business, the contract shall be adapted taking
into account the principles of reasonableness and good faith. To the extent this
is not justifiable for economic reasons, the Supplier shall have the right to rescind
the contract. The same applies if required export permits are not granted or cannot
be used. If the Supplier intends to exercise its right to rescind the contract,
it shall notify the Purchaser thereof without undue delay after having realized
the repercussions of the event; this shall also apply even where an extension of
the delivery period has previously been agreed with the Purchaser.
Article XII: Other Claims for Damages
1. Unless otherwise provided for in the present GL, the
Purchaser has no claim for damages based on whatever legal reason, including infringement
of duties arising in connection with the contract or tort.
2. This does not apply if liability is based on:
(a) the German Product Liability Act (“Produkthaftungsgesetz");
(c) gross negligence on the part of the owners, legal
representatives or executives;
(e) failure to comply with a guarantee granted;
(f) negligent injury to life, limb or health; or
(g) negligent breach of a fundamental condition of
contract (“wesentliche Vertragspflichten").
for damages arising from a breach of a fundamental condition of contract shall be
limited to the foreseeable damage which is intrinsic to the contract, provided that
no other of the above case applies.
3. The above provision does not imply a change in the burden
of proof to the detriment of the Purchaser.
Artikel XIII: Venue and Applicable law
1. If the Purchaser is a businessman, sole venue for all
disputes arising directly or indirectly out of the contract shall be the Supplier's
place of business. However, the Supplier may also bring an action at the Purchaser's
place of business.
2. This contract and its interpretation shall be governed
by German law, to the exclusion of the United Nations Convention on contracts for
the International Sale of Goods (CISG).
Article XIV: Severability Clause
The legal invalidity
of one or more provisions of this Agreement in no way affects the validity of the
remaining provisions. This shall not apply if it would be unreasonably onerous for
one of the parties to be obligated to continue the contract.
contact Quintex Gmbh under firstname.lastname@example.org.
© 2011 ZVEI - Zentralverband Elektrotechnik- und Elektronikindustrie e. V.,
9, 60528 Frankfurt am Main.
All rights reserved.
Gisbert Schmahl, Werner Gröger
i_Park Tauberfranken 13