General Terms and Conditions
General Terms and Conditions of Sale and Supply
Adolf Nissen Elektrobau GmbH + Co. KG
1. Scope of validity
The following terms and conditions alone apply to all business transactions undertaken with us. Alternative conditions of purchase or agreements shall be considered to be contractually binding only with our prior written acceptance. The following terms and conditions shall be effective in the version valid at the time of contract conclusion. Please note that these terms and conditions apply solely to transactions with entrepreneurs as defined in Arts. 14 and 310 of the German Civil Code (BGB).
2. Offers and orders
All information and details related to our products and services are provided exclusively based on the knowledge available to us at this time. They are not intended to represent any assurance or guarantee that our products have particular features. All our offers are non-binding, particularly with regard to price, delivery periods and availability. Details of dimensions and weights together with images of products are provided for purposes of general guidance only and are non-binding. Our offers are invitations to place orders. A contract will come into effect only after we confirm acceptance of a client’s order in writing or alternative text form.
Orders placed orally together with any ancillary agreements with our agents or personnel will become binding only after the issue of a written confirmation by us.
Small-scale orders with a value of up to €50.00 net will attract a handling fee of €15.00.
4. Released documentation
We retain ownership in and copyright of any offer documents, technical plans and other documentation made available to clients. These may not be made available to unauthorised third parties. Any plans or other documents relating to offers must be returned to us on demand without delay or if the corresponding order is not placed with us.
5. Prices and terms of payment
Unless otherwise specified, our prices are quoted net, in Euro; VAT is not included. Prices are quoted for delivery FCA Incoterms 2010, excluding packaging and customs duties and are based on the costs calculated at time of offer. We reserve the right to amend our prices as a result of the need to cover pay rises or increases in material costs. The prices invoiced shall be those valid on the date of dispatch or provision of the service.
Unless otherwise agreed, our invoices are to be paid in full within 30 days of the invoice date. We offer a 2% discount on invoice amounts paid within 14 days of the invoice date.
Excluded from this are invoices for repair work; we can provide no discount on these and they are payable immediately. Payment of such invoices shall be considered to be overdue if they are not paid within 14 days of the invoice date.
In addition, if an earlier payment is still outstanding, no discount will be granted.
Clients shall be considered to be in arrears of payment even without dispatch of a reminder if they fail to pay within 30 days – or in the case of invoices for repair work – within 14 days of the invoice date or date of receipt of the invoice. In such cases, we reserve the right, without prejudice to further claims, to charge interest at 8% over the base rate on the outstanding amount. We also reserve the right to claim further compensation for any additional losses arising as a result of failure to pay.
In the case of all transactions, clients explicitly agree that in cases of failure to pay any legal costs arising in connection with collection procedures – judicial and extrajudicial – shall be met by the client.
Payment by cheque shall only be considered to have been received when the cheque is honoured. In the case of payment by bank transfer, the date of payment shall be the date on which the payment is credited to our nominated account. We may require part payments in advance for larger orders or for work completed.
Payments made to field force personnel shall only be considered to have been met on presentation of an appropriately receipted invoice.
We reserve the right to demand payment on delivery or payment in advance in the case of new clients, special circumstances and small-scale orders.
Clients may only off-set payments against claims that are undisputed by us or are legally binding. Clients who are merchants as defined in the German Commercial Code (HGB) do not have the right of retention or set-off of payments.
If we are made aware of a significant deterioration in a client’s financial position or a client is in default of payment, we reserve the right to demand immediate payment of all outstanding invoice amounts even if these should not yet be due. In addition, we reserve the right to withdraw from a contract relating to newly placed orders or demand payment in advance or provision of suitable securities before effecting delivery.
If the terms of payment above are modified to the benefit of the client, the client shall be liable for any related credit costs or other payments.
6. Delivery dates
Binding delivery dates and deadlines must be explicitly agreed between the parties and specified in writing. In cases in which delivery dates are non-binding or approximate, we shall strive to the best of our abilities to meet these. Deadlines for delivery or the provision of services will be initiated on the receipt of our order confirmation. Deadlines terminate on the date on which consignments leave our works. Alternatively, they shall terminate in cases in which we are unable to deliver on the date on which we notify the client that the consignment is ready for dispatch. Agreed delivery dates shall be valid only if the client meets all obligations in good time. We reserve the right to supply part consignments only within the agreed deadline periods or should any of the following intervene, thus making the extension of delivery deadlines necessary.
Force majeure, labour disputes, riots, authority measures, natural disasters, war or mobilisation, embargos, disruptions of operations that are not our fault, lack of energy or raw materials, strikes, lockouts, diseases (including epidemics and pandemics) or other unforeseeable, inevitable and serious occurences will release the contracting partners from their duty to perform for the duration of the disturbance and to the extent of their effect. This clause applies even in cases where the events occur at a time when the relevant party is already in default due to delay. To the extent which may reasonably be expected, the contractual partners shall be under obligation in accordance with the principle of good faith to supply immediately all necessary information and to adapt their obligations to the altered conditions.
Clients do not have the right to claim for damages in cases of delayed delivery, even if delivery is not effected within a period of grace granted by the client. This shall not apply in cases in which failure to deliver is attributable to wilful intent or gross negligence on our part.
If a client is in default of acceptance or wilfully fails to comply with the duty to cooperate, we reserve the right to demand payment of corresponding compensation and of any additional expenses incurred. We reserve the right to make further claims.
All consignments will be shipped FCA Incoterms 2010 and for the account of the client. We shall decide at own discretion, without assuming liability, the most cost-effective form of shipment. Clients shall themselves be liable for any insurance cover required.
If a shipment is delayed at the request of a client or due to the fault of a client, the consignment will be stored at the client’s risk and expense.
8. Transfer of risk
All consignments are shipped at the risk of the client. The risk is transferred to the client as soon as the consignment is released into the care of the carrier or haulier or at the latest when it leaves our works or warehouse.
9. Retention of title
Until all our outstanding claims are met in full, irrespective of the legal reason for the delay, we shall retain title to supplied consignments even if the purchase price for specific claims has been paid. For clients with a running account, retention of title represents our security for payment of the balance receivable. Treatment or processing of a consignment by a client shall exclude the acquisition of ownership per Art. 950 of the German Civil Code (BGB) without binding us. For our security, we shall retain title to reserved parts of processed consignments up to the value of the outstanding payment. We reserve the right at any time to demand the return of goods subject to retention of title – irrespective of other of our rights, including the right to withdraw from the contract – from clients who punctually fail to meet obligations towards us. Clients shall bear the risk of loss or deterioration of goods subject to retention of title during the period in which we retain the title, particularly if they fail to return the goods after we have demanded this.
If consignments are combined by the client with goods that do not belong to us, we shall retain title in the new product in the proportion of that value that it represents as part of the new product at the time of processing. In the case of processing of the new product, the same shall apply as in the case of consignments to which we retain the title of ownership. We shall continue to retain the title of ownership in this new product as outlined above.
Clients herewith agree to transfer any claims arising from the sale of goods subject to retention of title irrespective of whether these are sold before or after processing and are sold to one or more purchasers. Claims are to be assigned to us to the value of the goods actually sold to which we retain the title.
If goods are sold together with other goods to which we do not hold title before or after processing, only first-ranking part of any payment due to us for the value of goods subject to retention of title shall be considered have been met. Assuming clients intend to comply with their contractual obligations towards us, they may sell goods subject to retention of title only in the ordinary course of business. Clients do not have the right to pawn goods subject to retention of title or to use these as security. Clients have the right of sale and resale of goods subject to retention of title only in as far as they transfer the resulting claims to us in accordance with the stipulations above. Clients have no right to use goods subject to retention of title for other purposes. On demand, clients are to inform their purchasers of the assignment of claims to us for purposes of payment, to provide us with the information that will enable us to assert our rights and to release any necessary documentation to us. We retain at all times the right to notify third party debtors of the assignment of such claims to us.
If clients themselves collect claims owing to us, they are required to hold the corresponding payments in trust for us as the rightful creditor and to supply these to us.
We reserve the right to assign our claims arising from the supply of consignments and provision of services for financing purposes.
Clients must inform us without delay of the seizure of goods by third parties or of other actions that threaten our rights. In this case, clients must inform the third party that we retain title to the goods. If goods subject to retention of title are pawned or used as security, we will pursue the matter through the courts.
Any claim made with regard to our retention of title is not to be considered as withdrawal from the contract. We shall retain the right to demand the return of our property and retain our rights as stipulated in the contract of sale, specifically our right to demand compensation for damages and lost profit.
Assuming material defects do not result from modifications or repairs undertaken by clients without our approval, we will assume liability as follows:
a) We shall provide warranty cover for all parts that prove to have been demonstrably defective or unserviceable prior to the transfer of risk, specifically as a result of inappropriate or incorrect design, use of poor material or incorrect implementation. This warranty shall have a duration of 12 months from the date of transfer of risk; we shall have the right at our own discretion to rectify the defect or supply a replacement assuming that the client has complied with their obligations with regard to allowing inspection and submitting a complaint as required by Art. 377 of the German Commercial Code (HGB). We shall retain ownership of replaced parts. This shall not apply in cases in which the defect is attributable to wilful intent or gross negligence on our part, in cases of physical injury, damage to health or loss of life, in cases in which we have provided a warranty of freedom from defects, there is a procurement risk as defined in Art. 276 of the German Civil Code (BGB) or other legal liability provisions apply.
b) Please note that used products are sold without warranty cover of any kind.
c) If the defect is caused by a third party product, our liability shall be limited to the warranty claims assigned to us against the supplier of the third party product.
d) We shall not be liable for the consequences of defects unless these are attributable to wilful intent or gross negligence on our part or the part of our agents. We shall be liable for actions on the part of our personnel even in connection with contracts only to the extent specified in Art. 831 German Civil Code.
e) Clients do not have the right to claim compensation for damages that are not directly related to the supplied goods, specifically claims arising in connection with accidents, damage to property or interruption of operations. We will not assume liability for damage arising as a result of inappropriate or negligent handling of products by the client or third parties.
f) Goods are to be returned to us free of charge. We will assume the costs of freight or customs duties and reimburse the client for these should inspection show that the complaint is justified and is covered by our warranty.
Clients have the right to withdraw from contracts if we finally prove unable to provide the contractual performance required of us prior to the transfer of risk. Clients may also withdraw from contracts if we are unable to supply the required quantity for a part delivery in the case of an order for identical products and the client has a justified interest in rejecting any such part delivery. If this is not the case, the client may reduce the required counter-performance accordingly.
If we are unable to meet a written and agreed delivery deadline for reasons that are within our control, clients are first required to grant us a period of grace; they may stipulate that they will refuse deliveries that are supplied after the given new deadline. If we still prove unable to meet our obligations by the new deadline, the client has the right to withdraw from the contract.
If failure to supply occurs during the period of grace or as a result of actions on the part of the client, the client shall remain obligated to provide the agreed counter-performance.
Excluded are, even assuming these are subject to statutory provisions, all other claims by clients, particularly claims relating to change, cancellation or reduction and claims for damages of any kind.
Should unforeseen force majeure events (as specified in section 6 Delivery dates) intervene that are of economic relevance or have a major influence on the nature of the contractual performance or our business operations, and it is subsequently determined that performance, as defined, has become impossible, the contract is to be appropriately modified.
Should this prove to be not economically viable, we reserve the right to withdraw in whole or part from the contract. Clients will not have the right to claim for compensation in the case of such a withdrawal from the contract.
If we take advantage of our right to withdraw from a contract, we will inform the client of this as soon as we are aware of the consequences of withdrawal even in circumstances in which the delivery deadline has been extended.
The value of returned goods will only be credited to the account of a client if the goods are returned within four weeks of delivery, and we have agreed in advance to accept the return. Freight and any handling costs are to be assumed by the client.
We will be liable for any consequences of willful wilful intent and gross negligence on our part. We shall also be liable for the consequences of our wilful failure to comply with contractual obligations. In the event of a breach of material contractual duties due to ordinary negligence on our part, we shall be liable only for the typically foreseeable losses under the given contract. We retain liability for culpable injury to life, limb or health. We also retain our mandatory liability in accordance with the German Product Liability Law, assuming the products in question have been used in accordance with the manufacturer’s instructions. Clients have no further claims to compensation for damages.
14. Place of performance and jurisdiction
If the contract relates to a reciprocal business transaction (the client has the characteristics specified in Art. 38, para 1 of the German Code of Civil Procedure, ZPO), the place of performance for all deliveries and payments shall be Tönning. The same shall apply to contracts concluded with legal entities under public law and special funds under public law.
Husum district court shall be the place of jurisdiction for all disputes arising from a contractual relationship, assuming that the client is one of the natural and legal entities cited above. We reserve the right to file a suit at the place of general jurisdiction of the client.
If the client does not have the characteristics specified in Art. 38, para 1 of the German Code of Civil Procedure, ZPO (is a small trader or non-merchant), the place of jurisdiction shall be Husum if and insofar as the client who is the subject of the suit transfers their domicile or usual place of residence after conclusion of the contract to a location outside the area of jurisdiction of the ZPO or the domicile or usual place of residence of the client is unknown at the time of filing of the suit, or the claim is asserted in the form of an order for payment (Art. 688 ff. German Code of Civil Procedure, ZPO).
The laws of the Federal Republic of Germany shall apply to all business contacts and legal relationships between clients and us; the stipulations of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. Inasmuch as trade terms have been agreed in accordance with International Commercial Terms the parties agree on Incoterms 2010.
15. Data protection
The data supplied by our business partners will be protected in accordance with the stipulations of valid data protection legislation and will be used solely for the processing of business transactions. Personal data, such as email addresses, will be collected only to the extent required for technical purposes and will be used and retained only to respond to enquiries and for the performance of contracts. This data will be released to third parties, such as commissioned shippers, only when this is essential for the completion of the corresponding transaction. Data will not be sold to third parties. If a business partnership is terminated or is inactive for more than three years, the corresponding data stored in our computer system will be deleted. We will not in any way restrict the right of our business partners to be informed of the nature and extent of personal data on them we hold nor their right to withdraw their consent to our use of this data.
16. Rental transactions
Our general rental terms apply to our rental transactions. We will be happy to supply our terms on request.
17. Validity of contracts
If certain provisions of contracts prove to be legally invalid, this shall not influence the validity of the remaining provisions. This shall not apply if adherence to the contract would constitute undue hardship for either party.
Insofar as these do not contradict the General Terms and Conditions of Sale and Supply herein specified, the “General Terms of Delivery for Products and Services of the Electrical Engineering Industry” shall also apply.