General Terms and Conditions

I. Scope
II. Offers
III. Delivery
IV. Prices
V. Payment
VI. Retention of Title
VII. Buyer’s Claims for Defects and Damages
VIII. Impossibility – Contract Adjustment
IX. Warranty
X. Ownership of Rights
XI. Liability
XII. Miscellaneous
XIII. Place of Performance / Jurisdiction
XIV. Severability Clause
 

I. Scope

1. Unless expressly agreed otherwise, the following Terms and Conditions of Sale and Delivery apply to all contracts, deliveries and other services provided by ZVK Technologies GmbH to non-consumers within the meaning of Section 310(1) of the German Civil Code (BGB).

2. The Terms and Conditions of Sale of ZVK Technologies GmbH shall apply exclusively. Any terms and conditions of the Buyer that conflict with or deviate from the purchasing conditions of ZVK Technologies GmbH shall not be recognised unless ZVK Technologies GmbH has expressly agreed to their validity in writing.

3. The contractual basis shall consist of the following, in this order:
the specific terms of the contract, these General Terms and Conditions, the General Conditions for the Supply of 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, the Terms and Conditions of Sale of ZVK Technologies GmbH shall also become part of the contract even if no express reference is made to their inclusion in the individual case.

5. The Terms and Conditions of Sale of ZVK Technologies GmbH shall also apply to all future transactions with the Buyer.

II. Offers

1. All offers submitted by ZVK Technologies GmbH, irrespective of the form in which they are made available to the Buyer, shall be non-binding unless otherwise agreed in writing and shall be subject to the ability of ZVK Technologies GmbH’s suppliers to deliver.

2. Customer orders shall be deemed accepted if they are either confirmed in writing by ZVK Technologies GmbH or delivered without undue delay or within the agreed period, or made available for collection by the Buyer.

3. Verbal ancillary agreements or assurances given by employees or vicarious agents of ZVK Technologies GmbH that go beyond the written purchase contract shall only be effective if confirmed in writing by ZVK Technologies GmbH.

4. ZVK Technologies GmbH reserves the right to make changes and/or additions to the scope of delivery or services if these prove necessary during execution of the respective order.

5. ZVK Technologies GmbH retains ownership rights and copyrights to illustrations, drawings, calculations and other documents received by the Buyer within the framework of the business relationship with ZVK Technologies GmbH.

6. Services provided by ZVK Technologies GmbH that go beyond its obligations as a seller, such as undertaking planning and consultancy services owed by the Buyer to third parties, require a separate agreement and shall only be provided against payment.

7. Dimensions and weights stated in the offer are approximate. Customary commercial deviations as well as deviations resulting from manufacturing processes or raw materials within standard industry tolerances are reserved.

III. Delivery

1. Where the Buyer is obliged to cooperate, for example by submitting drawings, providing data or materials, making an advance payment or providing security, agreed delivery periods shall commence no earlier than upon fulfilment of the Buyer’s corresponding obligation. Delivery dates shall be postponed accordingly, taking into account ZVK Technologies GmbH’s ability to deliver at the new delivery date.

2. In the event that delivery becomes impossible due to force majeure, Clause 1 shall apply accordingly.

3. Unless otherwise agreed, ZVK Technologies GmbH shall be entitled to make partial deliveries. In the event of delay or impossibility relating to a partial delivery, the Buyer shall only be entitled to claim damages for non-performance of the entire obligation or to withdraw from the entire contract if the Buyer can demonstrate that partial performance of the contract is of no interest to them.

4. The Buyer shall accept customary deviations from the ordered delivery quantity of up to plus/minus 10%, as well as customary overlengths or underlengths within the industry.

5. If the Buyer does not accept the delivery, the Buyer shall nevertheless make the payments dependent upon delivery as if delivery had taken place. The same shall apply if delivery is to be made on call and the Buyer fails to call off the delivery or an agreed partial delivery within the contractually agreed period.

6. The Buyer shall be obliged to compensate ZVK Technologies GmbH for any loss caused by delay, including any additional expenses incurred.

7. If, even after being requested in writing, the Buyer fails to fulfil its obligation to accept or call off the goods within a reasonable period set by ZVK Technologies GmbH, ZVK Technologies GmbH shall be entitled to refuse performance of the contract and claim damages in lieu of performance. ZVK Technologies GmbH’s obligation to deliver any goods not yet accepted shall cease. The same shall apply to deliveries not yet called off and to any future partial deliveries still to be called off.

8. The shipping route and means of transport shall be selected at the reasonable discretion of ZVK Technologies GmbH. At the Buyer’s request, the shipment shall be insured against transport damage at the Buyer’s expense. Amounts advanced by ZVK Technologies GmbH for insurance, packaging, freight, postage, etc. shall be invoiced separately and shall be payable immediately without deduction.

9. Risk shall pass to the Buyer when the goods are dispatched from the storage location or when notification is given that the goods are ready for dispatch on the agreed delivery date.

10. Packaging shall generally be subject to the applicable statutory provisions. Deliveries on drums shall be made exclusively on non-returnable drums. These shall become the property of the Buyer and shall not be taken back by ZVK Technologies GmbH.

11. The minimum net order value is EUR 500.00. For orders below this amount, ZVK Technologies GmbH reserves the right to charge a minimum-order surcharge of EUR 25.00 net.

IV. Prices

1. The prices of the goods apply “ex works”, including loading but excluding the cost of shipping packaging. Any cable cutting or conductor cutting that may be required for customer-supplied assembly cables is likewise not included and shall be invoiced separately.

2. With regard to price determination, ZVK Technologies GmbH refers to the price list applicable at the relevant time, which is already available to the Buyer or may be requested from ZVK Technologies GmbH.

3. Service work and repair work carried out outside our premises or in our workshops require prior written agreement. Charges shall be based on the actual time and materials required. Material expenses shall be charged upon proof of cost, with an additional flat-rate charge applying to small parts.

4. Prices for goods and services are net prices and do not include VAT. VAT shall be shown separately on the invoice and added at the rate applicable at the time of invoicing.

5. ZVK Technologies GmbH reserves the right to adjust its prices appropriately if, after conclusion of the contract, reductions or increases in costs occur, in particular as a result of collective wage agreements or increases in material prices. Evidence of such changes shall be provided to the Buyer upon request.

V. Payment

1. Invoices issued by ZVK Technologies GmbH shall be due 30 days after the date of issue. Any deduction of a cash discount requires a separate written agreement.

2. Invoices for services and other work within the meaning of Clause IV.3 shall be payable within 14 days from the invoice date without deduction.

3. If the Buyer defaults on its payment obligations, if attachments are levied against the Buyer or if there is a material deterioration in the Buyer’s financial circumstances, ZVK Technologies GmbH shall only be obliged to make further deliveries against advance payment. If the Buyer is unable to make an advance payment, ZVK Technologies GmbH may withdraw from the contract after setting an appropriate deadline and giving notice that performance will be refused.

4. In the event of late payment, ZVK Technologies GmbH shall be entitled to charge interest at a rate of 8% above the interest rate of the European Central Bank.

5. The Buyer may only exercise a right of retention against a payment claim on the basis of objections arising from the same contractual relationship as the payment claim. The Buyer shall only be entitled to set off claims where the counterclaim is undisputed or has been finally established by a court.

6. Claims of the Buyer against ZVK Technologies GmbH may only be assigned or pledged to third parties with the prior written consent of ZVK Technologies GmbH.

VI. Retention of Title

1. ZVK Technologies GmbH retains title to the goods supplied by it until the Buyer has fulfilled all claims arising or to arise in the future within the framework of the mutual business relationship, in particular until any existing current-account balance has been settled. In the case of payment by cheque or bill of exchange, payment shall only be deemed to have been made once the cheque or bill has been duly honoured.

2. For the duration of the retention of title, the Buyer shall be obliged to store the goods subject to retention of title separately and professionally. Furthermore, the Buyer shall immediately notify ZVK Technologies GmbH of any actual or legal access by third parties to the goods subject to retention of title or to assigned claims and shall provide ZVK Technologies GmbH with a seizure report and a sworn declaration confirming the identity of the seized items with the goods subject to retention of title. Any damage to or loss of the goods subject to retention of title shall be reported to ZVK Technologies GmbH immediately.

3. If the goods subject to retention of title are processed by the Buyer into a new movable item, such processing shall be carried out on behalf of ZVK Technologies GmbH. If the goods are processed together with goods not belonging to ZVK Technologies GmbH, ZVK Technologies GmbH shall acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title compared with the other goods at the time of processing. If the goods subject to retention of title are combined, mixed or blended with goods not belonging to ZVK Technologies GmbH in accordance with Sections 947 and 948 BGB, ZVK Technologies GmbH shall become a co-owner in accordance with the statutory provisions. If the Buyer acquires sole ownership through combination, mixing or blending, the Buyer hereby transfers co-ownership to ZVK Technologies GmbH in proportion to the value of the goods subject to retention of title compared with the other goods at the time of combination, mixing or blending. In such cases, the Buyer shall hold the item owned or co-owned by ZVK Technologies GmbH, which shall likewise be regarded as goods subject to retention of title within the meaning of the above provisions, free of charge on behalf of ZVK Technologies GmbH.

4. The Buyer may only sell the goods in the ordinary course of business and hereby assigns to ZVK Technologies GmbH all claims arising against its customers from such resale. ZVK Technologies GmbH hereby accepts this assignment. The sale of goods to customers who exclude the assignment of claims or make such assignment subject to their approval is prohibited. Any impairment of the rights of ZVK Technologies GmbH through transfer by way of security or pledging is prohibited. If the goods subject to retention of title are sold together with other items not belonging to ZVK Technologies GmbH, ZVK Technologies GmbH shall be entitled to the Buyer’s claims against its customers up to the value of the goods subject to retention of title. In addition to ZVK Technologies GmbH, the Buyer shall be authorised to collect the assigned claims. At the request of ZVK Technologies GmbH, the Buyer shall notify its customer of the assignment.

5. In the event that the Buyer fails to duly fulfil its payment obligations pursuant to Section 326 BGB, suspends payments, insolvency proceedings are opened, or judicial or extrajudicial composition proceedings are initiated, the Buyer’s authority to resell goods owned or co-owned by ZVK Technologies GmbH, its authority to collect assigned claims and its right to possession of the goods subject to retention of title shall cease.

6. At the request of ZVK Technologies GmbH, the Buyer shall be obliged, at ZVK Technologies GmbH’s discretion, to release securities insofar as the value of the securities exceeds the claims to be secured by 15%.

VII. Buyer’s Claims for Defects and Damages

1. The Buyer’s claims for defects are subject to the Buyer having duly fulfilled its obligations to inspect the goods and give notice of defects in accordance with Section 377 of the German Commercial Code (HGB).

2. For the purposes of the agreed quality within the meaning of Section 434(1), sentence 1 BGB, only the product description issued by ZVK Technologies GmbH shall be decisive. Public statements, promotional claims or advertising statements shall not constitute additional contractual specifications regarding product quality.

3. Where a defect in the delivery or service for which ZVK Technologies GmbH is responsible exists, ZVK Technologies GmbH shall, at its discretion, be entitled to remedy the defect or provide a replacement delivery. ZVK Technologies GmbH shall bear the expenses necessary for this purpose, in particular transport, travel, labour and material costs, unless such expenses are increased because the delivery or service has been moved to a location other than the place of performance.

4. The Buyer shall grant ZVK Technologies GmbH the time and opportunity reasonably required to remedy the defect. If the Buyer refuses to do so, ZVK Technologies GmbH shall be released from liability for defects.

5. If ZVK Technologies GmbH is unwilling or unable to remedy the defect or provide a replacement delivery, if such remedy or replacement is delayed beyond a reasonable period for reasons for which ZVK Technologies GmbH is not responsible, or if the remedy of the defect or replacement delivery otherwise fails, the Buyer shall, at its discretion, be entitled to withdraw from the contract or reduce the remuneration.

6. Unless otherwise provided below, any further claims by the Buyer, irrespective of their legal basis, are excluded. ZVK Technologies GmbH shall therefore not be liable for damage that has not occurred to the delivered item itself; in particular, ZVK Technologies GmbH shall not be liable for loss of profit or other financial losses suffered by the Buyer.

7. The exclusion of liability under Clause 6 shall not apply where the cause of the damage is based on intent or gross negligence. It shall also not apply where ZVK Technologies GmbH is liable for damages due to the absence of a warranted characteristic. Furthermore, it shall not apply where ZVK Technologies GmbH is liable for damages due to a breach of duty attributable to it resulting in injury to the life, body or health of the Buyer. Where ZVK Technologies GmbH is liable for damages due to the breach of a cardinal obligation or an essential contractual obligation, its liability shall be limited to damage that is typical for the contract and reasonably foreseeable.

8. Claims for defects and damages shall generally become time-barred after one year. However, if the goods supplied have been used for a building in accordance with their customary purpose and have caused the building to be defective, the limitation period shall be five years unless the supplied goods were used on the basis of a contract for the building into which Part B of the German Construction Contract Procedures (VOB/B) was incorporated in its entirety. In this case, the shorter limitation periods under the VOB/B shall apply. The limitation periods shall commence upon delivery of the goods or, in the case of services within the meaning of Clause IV.3, upon acceptance or, alternatively, upon the Buyer’s final refusal to accept the services. Where ZVK Technologies GmbH has fraudulently concealed a defect, the statutory limitation periods shall apply instead of the periods stipulated above. The limitation periods shall generally also apply to claims for damages and, in particular, to compensation for consequential damage arising from defects. However, where ZVK Technologies GmbH has acted intentionally or where claims are asserted in tort, under the German Product Liability Act or due to injury to the life, body or health of the Buyer, the statutory limitation provisions shall apply.

VIII. Impossibility – Contract Adjustment

1. If delivery or performance by ZVK Technologies GmbH is already impossible at the time the contract is concluded, ZVK Technologies GmbH shall be liable in accordance with the statutory provisions.

2. If delivery or performance by ZVK Technologies GmbH subsequently becomes impossible, the general principles of law shall apply subject to the following provision: If the impossibility is attributable to ZVK Technologies GmbH, the Buyer shall be entitled to claim damages. However, the Buyer’s claim for damages shall be limited to damage that is typical for the contract and reasonably foreseeable. The Buyer’s right to withdraw from the contract shall remain unaffected.

3. If unforeseen events substantially alter the economic significance or content of the delivery or service or have a substantial effect on the operations of ZVK Technologies GmbH, the contract shall be adjusted appropriately insofar as this is consistent with the principles of good faith. Where such an adjustment is not economically reasonable, ZVK Technologies GmbH shall be entitled to withdraw from the contract. If ZVK Technologies GmbH intends to exercise this right of withdrawal, it shall notify the Buyer immediately after becoming aware of the significance of the event, even if an extension of the delivery period had previously been agreed with the Buyer.

IX. Warranty

1. ZVK Technologies GmbH warrants that the contractual products comply with the specifications stated in the product description and are free from manufacturing and material defects. Any insignificant reduction in value or fitness for use shall be disregarded.

2. Warranty claims against ZVK Technologies GmbH shall only be available to the Buyer and may not be assigned.

X. Ownership of Rights

1. The Buyer shall immediately notify ZVK Technologies GmbH if claims are asserted against the Buyer on the grounds that products supplied by ZVK Technologies GmbH, or parts thereof, allegedly infringe industrial property rights, proprietary rights or any other third-party rights. In such cases, ZVK Technologies GmbH reserves the right to assist the Buyer in defending against such claims and, where applicable, to indemnify the Buyer in respect of the costs of legal proceedings, provided, however, that such legal proceedings are conducted exclusively in consultation with or in accordance with instructions issued by ZVK Technologies GmbH. This includes the selection of legal representatives and representatives in proceedings, irrespective of jurisdiction.

XI. Liability

1. In the event of damage not caused intentionally or through gross negligence by ZVK Technologies GmbH or its vicarious agents, claims for damages based on fault prior to or upon conclusion of the contract, breach of contractual or statutory ancillary obligations and any other claims for damages arising from non-contractual liability shall be excluded irrespective of their legal basis. In particular, all claims for compensation for damage not occurring to the delivered item itself, consequential damage arising from defects and loss of profit are expressly excluded in such cases.

2. Any liability for damages beyond that provided for in the above clauses shall be excluded irrespective of the legal nature of the claim.

3. The provision under Clause 2 shall not apply to claims pursuant to Sections 1 and 4 of the German Product Liability Act.

4. Insofar as the liability of ZVK Technologies GmbH is excluded or limited, this shall also apply to the personal liability of employees, workers, staff members, representatives or vicarious agents of ZVK Technologies GmbH.

XII. Miscellaneous

1. The assignment or pledging of claims of the Buyer against ZVK Technologies GmbH shall require the written approval of ZVK Technologies GmbH in order to be effective.

2. If third-party industrial property rights are infringed as a result of manufacture in accordance with plans or other specifications provided by the Buyer, the Buyer hereby indemnifies ZVK Technologies GmbH against all related claims by such third parties. In the case of custom designs by ZVK Technologies GmbH, the Buyer may only disclose or make its own use of any design information with the written consent of ZVK Technologies GmbH. 

3. The Buyer shall not be entitled to exercise a right of retention on the basis of claims arising from another contractual relationship.

4. The Buyer shall not be entitled to set off claims against claims arising from the contract unless the Buyer’s counterclaims have been acknowledged by ZVK Technologies GmbH or have been finally established by a court.

XIII. Place of Performance / Jurisdiction

1. The place of performance for the mutual obligations arising from the business relationship shall be the registered office of ZVK Technologies GmbH.

2. The place of jurisdiction for disputes arising from the business relationship shall be the registered office of ZVK Technologies GmbH. At its discretion, ZVK Technologies GmbH shall also be entitled to bring proceedings against the Buyer at the Buyer’s registered office.

3. The laws applicable in the Federal Republic of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

XIV. Severability Clause

1. Should any individual provision of these Terms and Conditions of Sale and Delivery be or become invalid or unenforceable, the remaining provisions shall remain valid and effective.

2. The parties undertake to replace the invalid or unenforceable provision, with effect from the commencement of its invalidity or unenforceability, with a provision that comes as close as possible in all respects to the invalid or unenforceable provision.