General Conditions of Purchase, Delivery and Payment (hereinafter referred to as General Terms and Conditions) of ADL Analoge & Digital Leistungselektronik GmbH (hereinafter referred to as ADL GmbH or supplier)
1. Area of Application
1.1 The following General Terms and Conditions shall apply to all deliveries and services of ADL GmbH made or provided to companies and legal entities under public law, hereinafter referred to as orderer. They shall also apply to all future business dealings of ADL GmbH with the orderer.
1.2 ADL GmbH does not acknowledge general terms and conditions of the orderer that deviate from these General Terms and Conditions. The General Terms and Conditions of ADL GmbH shall also be applicable if the latter makes delivery to the orderer without reservation despite being aware of conflicting or deviating terms and conditions of the orderer.
1.3 The General Terms and Conditions valid at the time of contract conclusion and published on the homepage of ADL GmbH shall be applicable. The General Terms and Conditions published there shall have precedence over possible other versions, for instance on company paper, delivery notes etc.
2. Offer, Order, Order Acceptance
2.1 All offers of ADL GmbH shall be subject to change and non-binding. Depictions of products, especially in publications, advertising materials and on the Internet, shall not represent an offer or a promise of certain attributes, but rather a non-binding invitation directed at the customer to place an order.
2.2 Offers, which ADL GmbH explicitly submits as binding, can only be accepted within 3 months following submission of the offer. The prescribed period of time shall begin as soon as the offer is forwarded, not as soon as it is received. The orderer's declaration of acceptance must be received by ADL GmbH within the prescribed period of time.
2.3 Acceptance of an order by telephone shall not represent a binding acceptance by ADL GmbH. The acceptance shall result exclusively from order confirmation in text form or written form or from shipment of the ordered goods.
2.4 If contracts are concluded verbally or by telephone subject to a written confirmation, the contents of the confirmation letter shall be decisive unless the recipient raises an objection without delay.
3. Delivery Time and Delay in Delivery
3.1 Dates of delivery indicated by ADL GmbH or the orderer shall be non-binding unless they have been expressly confirmed by ADL GmbH as a "binding delivery date". The date of delivery shall be complied with if the goods have been handed over to the shipping company until this point in time.
3.2 Compliance with delivery periods shall be subject to the timely receipt of all documents, permissions and approvals to be submitted by the orderer, as well as to compliance with the agreed terms of payment and other obligations by the orderer. Partial deliveries shall be admissible as far as they are not unreasonable for the orderer.
3.3 In the event of contract amendments added at a later point in time, which the orderer has brought about and / or for which ADL GmbH is not respon-sible and which have an impact on the delivery time, the delivery period shall be extended appropriately unless this matter has been agreed otherwise.
3.4 Business and operational disruptions of ADL GmbH and his sub-suppliers, which were unavoidable despite reasonable care, as well as industrial disputes, statutory and official bans on delivery and force majeure situations shall entitle ADL GmbH to appropriately extend the delivery period.
3.5 If ADL GmbH comes in default of delivery, the orderer may demand a total of no more than 5 % of the price for that part of the deliveries, which could not be put into appropriate operation because of the delay.
3.6 Both claims for damages of the orderer because of delayed delivery and claims for damages instead of performance that go beyond the limits mentioned in 3.4, shall be ruled out in all cases of delayed delivery, even after expiry of a deadline set to ADL GmbH to make delivery. This shall not apply to cases where compulsory liability is in place as a result of wilful misconduct, gross negligence or because of injury to life, body or health.
3.7 Upon request of ADL GmbH, the orderer shall be under an obligation to declare within an appropriate period of time whether he wishes to withdraw from the contract because of the delay in delivery or insist on the delivery.
4. Passing of the Risk – Shipment – Insurance
4.1 The risk shall be passed on from ADL GmbH to the orderer once the packaged goods are singled out and made ready for collection "at the plant" at the agreed time of delivery. Otherwise, it shall be passed on to the orderer as soon as a notification saying that the goods have been singled out and made ready for collection is received.
4.2 In case of shipment on request of the contractual partner, § 447 BGB (German Civil Code) shall apply. The risk shall be passed on to the orderer as soon as the goods are forwarded by ADL GmbH even in cases where carriage-paid delivery has been agreed. If the shipment is delayed because of circumstances for which the orderer is responsible, the risk shall already be passed on to him as soon as the goods are ready for shipment. Costs resulting from the delay shall be borne by the orderer.
4.3 ADL GmbH shall not be under an obligation to insure the goods. The costs of insurance shall always be borne by the orderer. Shipment of the goods by ADL GmbH shall take place for the account of and at the risk of the orderer. Shipment costs and freight charges shall be borne by the orderer. ADL GmbH shall be free to choose the shipping company and the means of shipment.
4.4 As far as import, export and/or transit permits are required for shipment to the orderer or the destination of the shipment, the orderer shall obtain these permits at his own expense and make them available to ADL GmbH as far as they are required for the shipment.
4.5 If the financial circumstances of the orderer deteriorate essentially following conclusion of the contract, for instance if insolvency proceedings are opened against his assets or if such a deterioration of financial circumstances becomes known only following conclusion of the contract, ADL GmbH does not need to make delivery until the orderer effects payment or provides adequate security for the supplier's purchase price claim.
4.6 Unless explicitly agreed otherwise, ADL GmbH shall be entitled to demand cash on delivery or make delivery only against prepayment.
5. Prices and Payment
5.1 Prices shall be ex works exclusive of packaging, shipment and freight, plus the statutory value-added tax, which is applicable from time to time.
5.2 Costs for the set-up, assembly and initial operation of devices shall be charged on a time and material basis.
5.3 Payments to ADL GmbH shall be made without deductions and free of transaction charges exclusively in EURO.
5.4 In case of a purchase price in foreign currency, the orderer shall bear the risk of deterioration of this currency's exchange rate against the EURO for the period from conclusion of the contract until receipt of the respective amount by ADL GmbH.
5.5 The net purchase price (without deductions) shall be due immediately after receipt of the invoice. Without a reminder being required, delay in payment shall result 30 days after receipt of the invoice. If the orderer is in delay of payment, interest of 8 % above the base lending rate will be charged until the payment is effected.
5.6 Bills of exchange and cheques shall be accepted only on account of performance and never instead of performance. Upon issue of the bill of exchange or cheque, ownership of the bill of exchange or cheque shall also pass on to the supplier.
5.7 The orderer may only set off undisputed or finally established claims towards ADL GmbH. Only in such cases a right of retention can be exercised. The commercial right of retention pursuant to § 369 HGB (German Commercial Code) shall be ruled out.
5.8 If the payment of receivables is delayed, the supplier shall be entitled to demand immediate payment of all receivables.
6. Reservation of Proprietary Rights
6.1 The subsequently agreed reservation of proprietary rights serves to secure all existing, current and future receivables of ADL GmbH against the orderer, that arise out of the existing delivery relationship between the contractual partners (including balance claims arising out of a current account relationship that is limited to this delivery relationship).
6.2 Goods delivered by ADL GmbH to the orderer shall remain property of the seller until complete payment of all secured receivables has been made. These goods as well as goods coming under the reservation of proprietary rights under this clause in replacement of the aforementioned goods shall hereinafter be referred to as goods subject to retention of title.
6.3 The orderer shall store the goods subject to retention of title for ADL GmbH free of charge.
6.4 The orderer shall be entitled to process and sell the goods subject to retention of title within his ordinary course of business until occurrence of the exploitation / commercialisation case pursuant to paragraph 6.9. Pledging as collateral and transfer by way of security shall be inadmissible.
6.5 If the goods subject to retention of title are pro-cessed by the orderer, it shall be agreed that the processing activity is carried out in the name and for the account of ADL GmbH as the manufacturer, and that the supplier acquires immediate ownership or – if the processing is based on materials from several owners or if the value of the processed object is higher than the value of the goods subject to retention of title – co-ownership of the newly created object according to the proportion between the value of the goods subject to retention of title and the value of the newly created object. In the event that no such acquisition of ownership results in favour of ADL GmbH, the orderer already hereby transfers his future ownership or – in the aforementioned proportion – co-ownership of the newly created object as security collateral to ADL GmbH. If the goods subject to retention of title are connected or inseparably mixed with other objects into one single object and if one of the other objects is to be considered as the main object, the orderer, - provided that the main object belongs to him - shall transfer proportional co-ownership of the single object to ADL GmbH according to the proportion mentioned in Sentence 1.
6.6 In the event that the goods subject to retention of title are resold, the orderer already hereby cedes the resulting receivable against the acquirer – or, in case of co-ownership of ADL GmbH of the goods subject to retention of title, a proportionate share in line with the co-ownership share – to ADL GmbH. The same shall apply to other receivables replacing the goods subject to retention of title or arising otherwise in respect of the goods subject to retention of title such as insurance claims or claims on the grounds of an impermissible act in case of loss or destruction. ADL GmbH authorises the orderer on a revocable basis to collect the receivables ceded to ADL GmbH; in his own name. ADL GmbH may revoke this collection authorisation only in the event of exploitation / commercialisation.
6.7 If third parties take hold of the goods subject to retention of title, especially through attachment, the orderer will notify them of the ownership of ADL GmbH without delay and inform ADL GmbH about any such development, thus enabling him to enforce his rights of ownership. If the third party is unable to reimburse ADL GmbH the legal charges and out-of-court expenses, which ADL GmbH incurs in this context, the orderer shall be liable to ADL GmbH in this respect.
6.8 Upon request, the ADL GmbH shall release the goods subject to retention of title as well as objects or receivables replacing the goods subject to retention of title at his own choice, as far as their value exceeds the amount of the secured receivables by more than 50%.
6.9 If ADL GmbH withdraws from the contract in the event that the orderer behaves contrary to the contract – especially in case of delayed payment – (exploitation / commercialisation case), he shall be entitled to demand handover of the goods subject to retention of title.
6.10 Should the above regulations on the extended and comprehensive reservation of proprietary rights be ineffective in whole or in part, a simple reservation of proprietary rights shall apply on a complementary basis, according to which ADL GmbH reserves ownership of the respective specific delivery until complete payment for this specific delivery has been made.
7. Defects and Liability:
7.1 The defect-related rights of the orderer shall require that the latter has properly met his examination and defect notification obligation pursuant to § 377 HGB (German Commercial Code).
7.2 As far as a defect of the purchased item is in place, ADL GmbH shall be entitled at her choice to either subsequent performance in the form of defect removal or to the delivery of a new, defect-free object. Subsequent performance shall always take place for the sake of good will and without the acknowledgement of a legal obligation.
7.3 In the event of subsequent performance, ADL GmbH shall bear the necessary expenses only up to the amount of the purchase price.
7.4 If the subsequent performance fails, the orderer shall be entitled at his choice to either withdraw from the contract or demand a reduction of the purchase price. The right to claim damages shall remain unaffected.
7.5 Withdrawal and claims for damages by the customer shall require the setting of a period of grace for subsequent performance.
7.6 ADL GmbH shall be liable in line with the statutory provisions if the orderer asserts claims for damages on the basis of wilful misconduct or gross negligence including wilful misconduct or gross negligence of representatives or auxiliary persons of ADL GmbH.
7.7 Unless the supplier is blamed for a wilful breach of contract, ADL GmbH shall be liable in line with the statutory provisions if it culpably infringes an essential contractual obligation. An essential contractual obligation shall be in place if the breach of duty relates to a duty, on the fulfilment of which the orderer relied and was entitled to rely.
7.8 In this event however, the liability for damages shall be limited to the foreseeable damage that may typically occur within this context.
7.9 As far as the customer is entitled to compensation for the damage instead of performance, the liability even within the framework of section 4 shall be limited to the foreseeable damage that may typically occur within this context.
7.10 Liability on the grounds of culpable injury to life, body or health shall remain unaffected; this shall also apply to the compulsory liability under the Product Liability Act.
7.11 Unless regulated otherwise above, any liability shall be ruled out.
7.12 The period of limitation for warranty claims and claims for damages shall be 12 months, starting from the passing of risk and with the exclusion of claims on the grounds of culpable injury to life, body and health, on the basis of wilful misconduct or gross negligence, as well as of the statutory claims under the Product Liability Act.
7.13 Warranty claims shall not be in place in the event of only minor deviations from the agreed characteristics, in the event of only minor impairment of the serviceability, in the event of natural wear and tear or in case of damage having occurred after the passing of risk as a result of incorrect or negligent handling, excessive exposure, inadequate operating equipment or because of particular external influences that were not foreseen under the terms of the contract, as well as in case of irreproducible software errors. If the orderer or third parties make improper changes or carry out improper maintenance work, no warranty claims shall be in place either in respect of such changes or work as well as of all consequences resulting from such changes or work.
7.14 Claims of the orderer because of the expenses required for the purpose of subsequent performance, especially transport, infrastructure, labour and material costs, shall be ruled out as far as the expenses increase because the delivery item has been subsequently taken to a place other than the orderer's branch establishment, unless this transfer corresponds to the item's intended use.
7.15 Rights of recourse of the orderer against ADL GmbH pursuant to § 478 BGB / German Civil Code (recourse of the contractor) shall only be in place insofar as the orderer has not reached agreements with his customer that go beyond the statutory warranty claims. To the extent of the orderer's right of recourse against the supplier pursuant to § 478 Section 2 BGB, paragraph 7.12 shall apply correspondingly. The period of limitation in the event of a delivery recourse pursuant to §§ 478, 479 BGB shall remain unaffected.
8. Withdrawal by ADL GmbH
8.1 In addition to the statutory rights of withdrawal, ADL GmbH shall also be entitled to withdraw from the contract for the following reasons:
- If the orderer is in default of acceptance of the goods, and acceptance does not result even after the setting of a 14-day period of grace. In the event of a final and serious refusal by the orderer to accept the goods, the setting of a period of grace shall not be required;
- If it turns out that the orderer provided incorrect information with respect to his creditworthiness and if this information is of major significance to the assessment of his creditworthiness;
- If it turns out contrary to the assumption having existed before conclusion of the contract that the orderer is not creditworthy. A lack of creditworthiness may be assumed in the event of a bill of exchange or cheque protest, in cases where the orderer ceases payment or if a compulsory enforcement attempt against the orderer has turned out to be unsuccessful. In this context, it shall nor be required that such events relate to relationships between the supplier and the orderer;
- If statutory export restrictions are in place.
9. Forfeiture of the Orderer's Claims, Offsetting and Retention
9.1 Claims of the orderer against ADL GmbH shall expire if the former does not assert these claims against ADL GmbH in writing within 3 months after the claim became due. If ADL GmbH rejects claims of the orderer, which the latter has asserted in good time, these claims shall expire unless the orderer asserts these claims by legal proceedings within 3 months after the rejection of ADL GmbH. The same procedure shall apply correspondingly to claims of the supplier against the orderer.
9.2 This shall not apply in cases of compulsory liability. Paragraph 9.2 shall apply correspondingly.
ADL GmbH points out that the goods are subject to export control regulations. Their export is admissible only with approval from the responsible European authorities, the Federal Office of Economics and Export Control, Eschborn/Taunus, and the Bureau of Export Administration, Washington. Furthermore, the national export control provisions and international embargo regulations are to be complied with as far as the export of all goods is concerned. The supplier points out that any violation of these provisions constitutes a punishable act. The orderer shall obtain the necessary permits at his own expense.
11. Arbitration Agreement
11.1 To contracts with orderers, whose registered office is not located in an EU member state or in Switzerland, the following arbitration agreement shall apply:
11.2 All disputes arising out of or related to the present contract shall be finally settled in accordance with the code of arbitration of the International Chamber of Commerce by one or several arbitrators appointed in compliance with this code.
11.3 The place of the arbitration proceedings shall be Darmstadt in the Federal Republic of Germany.
11.4 The number of arbitrators shall be 3 (in words: three).
11.5 The applicable substantive law shall be the law of the Federal Republic of Germany to the exclusion of any applicability of the UN Convention on Contracts for the International Sale of Goods (CISG).
11.6. The language of the arbitration proceedings shall be German.
12. Contractual Language
12.1 These General Terms and Conditions have been drawn up in German. An English translation is made available only for purposes of better understanding. Should the English version differ from the German version, this German version shall have precedence.
12.2 The contractual language between ADL GmbH and the orderer shall be German. An English translation is made available only for purposes of better understanding. Should the English version differ from the German version, this German version shall have precedence.
13.1 ADL GmbH reserves his commercialisation rights in terms of property and copyright law to cost estimates, drawings and other documents (hereinafter referred to as documents) without restriction. The documents may be made accessible to third parties only following prior consent from the supplier and shall be sent back to the supplier without delay upon request.
14. Applicable Law, Place of Jurisdiction and Binding Character of the Contract
14.1 Exclusively the law of the Federal Republic of Germany shall apply. Any applicability of the Uniform Law on the International Sale of Goods and the UN Convention on Contracts for the International Sale of Goods (CISG) shall be ruled out. The place of jurisdiction for all disputes arising out of this contract shall be Darmstadt. However, ADL GmbH shall also be entitled to take legal action at the place of the orderer's registered office.
14.2 If the sales contract is concluded and implemented in the framework of commercial transactions within the EU and if the purchaser does not present his value-added tax identification number to ADL GmbH together with his order, ADL GmbH shall be entitled to charge and demand the respective German value-added tax in addition to the agreed purchase price.
14.3 Even if individual provisions of the contract turn out to be legally ineffective, all other parts of the contract shall remain binding.
14.4 The legal ineffectiveness of one or several provisions of these terms of sale shall not affect the legal effectiveness of the remaining provisions.
14.5 The parties agree, in case of 14.3, to find instead of a legally ineffective provision, a binding provision that comes closest to the.