Terms of service
General Terms and Conditions of Delivery, Service and Sale (GTCS) of Mangelberger Elektrotechnik GmbH
§ 1 Validity of the ALB, written form
(1) For all business transactions between us and the buyer, principal or customer, hereinafter referred to as the customer, these General Terms and Conditions of Sale shall apply exclusively in addition to the individual contractual agreements with the customer. We do not recognise any other terms and conditions of the Customer - even in the case of unconditional performance or acceptance of payment - unless we expressly agree to their validity in writing. 2.
(2) These General Terms and Conditions of Sale shall only apply to business transactions with entrepreneurs within the meaning of § 14 BGB (German Civil Code).
3. these general terms and conditions of sale shall also apply to all future business relations without renewed inclusion until new general terms and conditions of sale are issued by us.
(4) All agreements made between us and the customer in the course of contract negotiations or for the purpose of executing this contract must be recorded in writing for reasons of evidence and confirmed by both parties.
5. subsidiary agreements, subsequent amendments to the contract and the assumption of a guarantee, in particular warranties of characteristics, or the assumption of a procurement risk must be made in writing, insofar as they are made by persons who are not authorised representatives.
§ 2 Consulting
(1) Our advice is product and service related and extends exclusively to the products supplied and services rendered by us. It does not extend to advice that is independent of the contract, i.e. such statements that are made without products being sold or services being rendered by us.
2. our consulting services are based on empirical values. Omitted statements do not constitute advice.
§ 3 Conclusion of contract
1 Our offers are subject to change, they are considered as an invitation to submit an offer. 2.
2 The first processing of an offer is usually free of charge. Further offers and design work are only free of charge insofar as the supply contract becomes and remains valid.
3. descriptions and illustrations of our goods and products in technical documents, catalogues, brochures, circulars, advertisements and price lists are not binding unless their inclusion in the contract has been expressly agreed; they do not exempt the customer from carrying out his own tests.
(4) In principle, the order placed by the customer constitutes the offer to conclude the contract. We can accept this offer within 4 weeks, unless a different acceptance period has been agreed. 5.
(5) The order must contain all details concerning the execution of the order. This applies to all deliveries, services, work and other performances by us. This includes in particular, but not limited to, information on all technical parameters and physical characteristics. Missing, incorrect or incomplete information shall be deemed to be expressly not agreed and shall not constitute any obligations on our part, neither in the sense of performance and warranty claims nor in the sense of claims for damages. 6.
If the order placed by the customer deviates from our quotation, the customer must indicate the deviations separately. 7.
7. we are entitled to obtain further information which serves the proper execution of the order.
(8) Orders shall be placed in writing or electronically (EDI); orders placed orally or by telephone shall be executed at the risk of the customer.
9. if the customer withdraws an order accepted by us, we are entitled to charge 10% of the delivery or service price for the costs incurred by the processing of the order and for the lost profit, without prejudice to the possibility of claiming higher actual damages. The customer reserves the right to prove a lower damage. 10.
10 Our services result from the order confirmation.
§ 4 Changes, deviations, partial deliveries
(1) A separate contractual agreement is required for any changes to the delivery item or service requested after conclusion of the contract.
In the event of missing or incorrect information, we reserve the right to make reasonable changes to the object of delivery or service. Disadvantages due to missing or incorrect information, in particular additional costs or damages, shall be borne by the customer. 3.
3 We reserve the right to make technical changes to the object of delivery or service that do not jeopardize the objective of the contract.
4. partial deliveries or services are permissible and can be invoiced separately.
§ 5 Time of delivery or performance
(1) If a delivery or performance period has been agreed, this shall commence with the dispatch of our order confirmation, but not before complete clarification of all details of the order, in particular the clarification of all technical questions, as well as the proper fulfilment of all obligations to cooperate on the part of the customer; the same shall apply accordingly to delivery or performance dates. We reserve the right to plead non-performance of the contract. 2.
In the event of mutually agreed changes to the subject matter of the order, delivery or service deadlines and delivery or service dates shall be agreed anew. This shall also apply if the subject matter of the order is renegotiated after conclusion of the contract without any change being made to the subject matter of the order.
Delivery or service deadlines and delivery or service dates are subject to defect-free and timely advance delivery as well as unforeseeable production disruptions. 4.
(4) The delivery period shall be deemed to have been complied with if, by the time of its expiry, the delivery item has left our works or has been handed over to the commissioned transport company at our works or we have given notice of its completion for collection.
5. we are entitled to provide the agreed delivery or service before the agreed time.
§ 6 Default of the customer
1. if the customer is in default of acceptance or if he does not accept the delivery item or service at the agreed delivery or acceptance date or at the expiry of the agreed delivery or service period due to a circumstance for which he is responsible, we are entitled to demand compensation for our additional expenses incurred as a result. We are also entitled to withdraw from the contract after setting a reasonable deadline and to claim damages for non-performance in the amount of 20% of the delivery value of the sales products and, in the case of custom-made products or construction services, 40% of the performance value, unless the customer proves that no damage has been incurred at all or that the damage is significantly lower than the lump sum. Furthermore, we are entitled to charge the customer storage costs in the amount of 0.5% for each month or part thereof, but no more than a total of 5% of the delivery or service price. The contracting parties are free to prove higher or lower storage costs. 2.
We shall also be entitled to determine a suitable place of storage at the customer's expense and risk and to insure the goods or services at the customer's expense.
§ 7 Place of performance, receipt and acceptance, transfer of risk, packaging
1) The place of performance for payments is our place of business. 2.
The customer may not refuse acceptance of the delivery due to insignificant defects. 3.
The customer shall be obliged to accept delivery as soon as he has been notified by us of the completion of the commissioned services and the service is also ready for acceptance. If the customer does not accept the service within a period of two weeks set by us after notification of completion, acceptance shall be deemed to have taken place. 4.
4. the risk of destruction, loss or damage of the delivery items or services shall pass to the customer upon notification of completion. If collection has been agreed, the risk shall pass to the customer upon notification of completion. If shipment has been agreed, the risk shall pass to the customer upon dispatch of the goods or their handover to the transport company. If installation and assembly have been agreed, the risk shall pass to the customer on the day of acceptance into the customer's own premises or, if agreed, after a faultless trial run. 5.
(5) In the case of shipment, we shall determine the type and scope of packaging unless otherwise agreed. Disposable packaging shall be disposed of by the customer. If the shipment is made in returnable packaging, this must be returned carriage paid within 30 days of receipt of the delivery. Returnable packaging may not be used for other purposes or to hold other items. They are only intended for the transport of the delivered goods. Labels may not be removed. The customer shall be responsible for any loss of or damage to the returnable packaging. 6.
In the event of damage to or loss of the goods in transit, the customer shall immediately arrange for an inventory to be taken and notify us thereof. Claims arising from any transport damage must be asserted by the customer with the carrier without delay.
§ 8 Obligations of the customer for switchgears
(1) In the case of deliveries of switchgear and control cabinets, the customer must check the screw connections on receipt and, if necessary, tighten any screws that have become loose.
The customer must ensure that the switchgear delivered by us is not exposed to an ambient temperature higher than 25°Celsius on a 24-hour average during operation. 3.
3. in order to obtain warranty claims, it is necessary . a) that all systems supplied by us are maintained by the customer in accordance with the relevant BGV-A3 (formerly BGV-A2/VBG4) regulations and that this can be proven by suitable records, insofar as maintenance by us is not the subject of the contract; b) the customer observes and complies with the installation, operating and maintenance instructions (FB 7/32/1/01.12) of our company.
§ 9 Force majeure
In cases of force majeure, our delivery and performance deadlines shall be extended by the duration of the disruption that has occurred. This also includes, but is not limited to, circumstances for which we are not responsible, such as war, fire damage, strikes, lock-outs, traffic disruptions, orders from higher authorities, interruptions of operations, or significant operational disruptions, such as material or energy shortages at our company, commissioned subcontractors or suppliers. This also applies if we were already in default when these circumstances occurred. We shall inform the customer immediately of the beginning and end of such hindrances. If the disruption is not only of a temporary nature, but has lasted for at least 6 weeks without interruption, both the customer and we shall be entitled to withdraw from the contract within the scope of the performance affected by the disruption.
§ 10 Obligation to examine and give notice of defects
(1) The customer is obliged to inspect the delivered goods immediately after delivery in accordance with § 377 HGB (German Commercial Code) and to notify us of any defects and damage detected both here and later immediately after their discovery. The provision of § 377 HGB shall apply accordingly to services and work performance. Notification of defects must be made in writing. 2.
The use of defective deliveries or services is not permitted. If a defect could not be discovered at the time of receipt of the goods or provision of the service, any further use of the delivery item or service must be discontinued immediately after discovery. 3.
The customer shall provide us with the goods for which a complaint has been made and shall grant us the time required to examine the defect for which a complaint has been made. In the event of unjustified complaints, we reserve the right to charge the customer for the inspection costs incurred. FB 7/28/2/02.12 Rev. 003 Page 2 of 3
4. the notice of defects does not release the customer from the compliance with his payment obligations.
§ 11 Erection, assembly, installation
If the scope of the order also includes assembly, erection or installation, the following provisions shall apply, unless otherwise agreed. 1:
1. the customer shall take over and provide in due time and at his own expense:
a) all earthwork, construction work and other ancillary work not related to the industry, including the skilled and unskilled labour, building materials and tools required for this purpose,
b) the commodities and materials required for assembly, installation and commissioning, such as scaffolding, lifting gear and other devices, fuels and lubricants,
c) energy and water at the point of use, including connections, heating and lighting,
d) at the assembly or installation site for the storage of machinery, plant and equipment parts, apparatus, materials, tools etc., sufficiently large, suitable, dry and lockable rooms and for the assembly or installation personnel adequate working and recreation rooms including sanitary facilities appropriate to the circumstances; in all other respects the customer must take the same measures to protect the property of Mangelberger and the assembly or installation personnel on the site as he would take to protect his own property,
e) protective clothing and protective devices which are necessary as a result of special circumstances at the assembly or installation site.
2. before the start of the assembly or installation work, the customer shall provide, without being requested to do so, the necessary information on the location of concealed electricity, gas or water lines or similar installations, as well as the required structural data.
Before the start of assembly, erection or installation, the materials and objects required for the commencement of the work must be available at the site of assembly, erection or installation and all preparatory work must have progressed to such an extent that assembly, erection or installation can be commenced as agreed and carried out without interruption. Access roads, assembly, erection or installation sites must be levelled and cleared. 4.
If the erection, assembly, installation or commissioning is delayed due to circumstances for which Mangelberger is not responsible, the customer must bear the costs for waiting time and any additional travel required by Mangelberger or the erection and installation personnel. 5.
5. the customer must immediately certify to Mangelberger on a weekly basis the duration of the working time of the assembly or installation personnel and the completion of the assembly, installation or commissioning.
6. if we demand acceptance of the delivery after completion, the customer must carry this out within two weeks. If this does not occur, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place if the delivery has been put into use after completion of an agreed test phase.
§ 12 Defect rights of the customer
(1) In the event of a material defect in our goods or services, we shall be entitled, at our discretion, to remedy the defect, make a replacement delivery or provide a new service within a reasonable period of time.
Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded insofar as the expenses are increased because the delivery item or service has subsequently been taken to a place other than the agreed place of performance, unless the transfer is in accordance with its intended use. 3.
(3) The same warranty conditions shall apply to replacements and repairs as to the originally delivered item.
4. claims for defects do not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage which occurs after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or which occurs as a result of special external influences which are not assumed under the contract, as well as in the case of non-reproducible software errors. If the customer or third parties carry out improper modifications or repair or maintenance work, no claims for defects shall be accepted for these and the resulting consequences.
§ 13 Defects of title, industrial property rights
(1) Orders based on drawings, sketches or other information provided to us shall be executed at the risk of the customer. If, as a result of the execution of such orders, we interfere with third party industrial property rights, the customer shall indemnify us against any claims of such holders of rights. Any further costs and damages shall be borne by the customer.
Our liability for any infringements of property rights in connection with the use of the goods or services or with the combination or use of the goods or services with other products is excluded. 3.
In the event of defects of title, we shall be entitled at our discretion: a) to procure the necessary licenses with respect to the infringed property rights b) or to remedy the defects of the delivery item or service by providing a delivery item or service that has been modified to an extent that is reasonable for the customer.
(4) Our liability for the infringement of third-party industrial property rights shall only extend to such industrial property rights which are registered and published in Germany. Claims of the customer are excluded if he is responsible for the infringement of the property rights.
We reserve all property rights and copyrights to the illustrations, drawings, calculations and other (technical) documents provided by us. Any disclosure to third parties requires our prior written consent. In the case of planning services provided by us, the customer acknowledges our intellectual authorship. 6.
The customer has the non-exclusive right to use standard software and firmware with the agreed performance features in unchanged form on the agreed equipment. The customer may make a backup copy of the standard software without express agreement.
§ 14 Liability
(1) We are liable for the obligations of the company only with the company's assets.
2. in case of simple negligence we are only liable in case of violation of an essential contractual obligation. In the case of gross negligence, we shall also be liable in the event of a breach of non-essential contractual obligations. In the aforementioned cases, liability is limited to the foreseeable damage typical for the contract. In the case of warranted characteristics, our liability is limited to the scope and amount of our product liability insurance. The scope of coverage corresponds to the non-binding recommendations for business liability insurance of the German Insurance Association. The amount of cover for the insured events covered by the insurance contract is 5 million euros per insurance year. 3.
3. claims for damages due to intentional breach of contractual obligations by us, claims for personal injury and claims arising from the product liability law are subject to the statutory provisions.
4. we shall be liable for tortious claims in accordance with the contractual liability. 5.
5. any further liability for damages other than in accordance with the above provisions shall be excluded.
(6) The customer's right of recourse against us shall only exist insofar as the customer has not entered into an agreement with its customer that goes beyond the statutory claims for defects and damages.
7. liability on our part is excluded insofar as the customer for his part has effectively limited his liability towards his purchaser.
(8) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, representatives, vicarious agents and assistants.
(9) Insofar as liability is excluded or limited in accordance with the above, the customer shall also be obliged to indemnify us against claims of third parties upon first request.
In all other respects, the statutory provisions shall apply. 11.
The customer is obligated to notify us immediately in writing of any claims asserted by third parties and to reserve all defensive measures and settlement negotiations for us.
§ 15 Limitation
The statute of limitations for claims and rights due to defects of our products, services and work performances as well as the resulting damages is 1 year. The commencement of the limitation period shall be governed by the statutory provisions. The above shortening of the period of limitation shall not apply insofar as the law prescribes longer periods in the cases of §§ 438 Para. 1 No. 2, 479 and 634 a Para. 1 No. 2 BGB.
2. the period of limitation according to the previous clause 1 does not apply in the case of intent, if we have fraudulently concealed the defect or have given a guarantee of quality, in the case of claims for damages due to personal injury or injury to the liberty of a person, in the case of claims under the Product Liability Act and in the case of a grossly negligent breach of duty.
3. subsequent performance measures shall neither suspend the limitation period applicable to the original performance nor shall they cause the limitation period to start anew.
§ 16 Acquisition and retention of title, lien
(1) We retain title to all contractual items until all claims to which we are entitled from the business relationship with the customer have been settled in full.
2. if our property is processed, combined or mixed with third-party property, we shall acquire ownership of the new item in accordance with the provisions of § 947 BGB (German Civil Code).
If processing, combining or mixing is carried out in such a way that the third party's performance is to be regarded as the main item, we shall acquire ownership in the ratio of the value of our performance to the third party's performance at the time of the processing, combining or mixing.
If we acquire ownership of an object through our performance, we shall retain ownership of this object until all existing claims from the business relationship with the customer have been settled. 5.
5. the customer is obliged to keep the goods subject to retention of title carefully and, if necessary, to carry out maintenance and repair work in good time at his own expense. The customer shall insure the reserved goods against loss and damage at his own expense. Any security claims arising in the event of damage shall be assigned to us. 6.
The customer shall be entitled to resell the goods which are (co-)owned by us in the ordinary course of business as long as he fulfils his obligations arising from the business relationship with us. In this case, the claim arising from the sale is deemed to have been assigned to us in the ratio in which the value of the Mangelberger performance secured by the retention of title stands to the total value of the goods sold. The customer remains entitled to collect this claim even after the assignment. Our authority to collect this claim ourselves remains unaffected. 7.
The customer's right to dispose of the goods subject to our retention of title and to collect the claims assigned to us shall expire as soon as he no longer meets his payment obligations and/or an application is made to open insolvency proceedings. In these aforementioned cases, as well as in the event of other conduct by the customer in breach of contract, we shall be entitled to take back the goods delivered under retention of title without a reminder. 8.
8. the customer shall inform us immediately if there are any risks to our reserved property, in particular in the event of insolvency, insolvency and enforcement measures. At our request, the customer shall provide all necessary information on the stock of goods (co-) owned by us and on the claims assigned to us, and shall inform his customers of the assignment. The customer shall support us in all measures necessary to protect our (co-)ownership and shall bear the resulting costs. 9.
(9) We shall be entitled to a right of lien on the customer's goods that have come into our possession on the basis of the contract on account of all claims arising from the contract. The lien may also be asserted on account of claims arising from earlier deliveries or services, insofar as these are connected with the object of delivery or service. FB 7/28/2/02.12 Rev. 003 Page 3 of 3 The right of lien shall apply to other claims arising from the business relationship insofar as these are undisputed or have been legally established. The §§ 1204 ff. BGB (German Civil Code) and § 50 para. 1 of the German Insolvency Code shall apply mutatis mutandis.
If the realisable value of the securities exceeds our claims by more than 15 %, we shall release securities of our own choice at the customer's request.
§ 17 Prices, remuneration, terms of payment
(1) All prices are in Euro plus the statutory value added tax at the time of invoicing.
(2) Unless otherwise agreed, our prices for deliveries are ex works. Incidental costs such as packaging, freight, shipping costs, customs, assembly, insurance and bank charges will be charged separately. We shall only insure the goods to be shipped at the request and expense of the customer. If we have undertaken the installation and assembly and unless otherwise agreed, the customer shall bear all necessary ancillary costs such as travel and transport costs in addition to the agreed remuneration. 3.
In the event that we also carry out planning work for a construction project, these services will be invoiced separately to the customer. Unless otherwise agreed, the remuneration shall be based on the applicable fee schedule for architects and engineers (HOAI) at the time of completion of the plans. 4.
We are entitled to change the agreed price appropriately if cost increases occur after the conclusion of the contract, in particular due to collective wage agreements or changes in the price of materials. We will prove the change in costs to the customer upon request. 5.
We are entitled to change the agreed price appropriately if changes occur before or during the execution of the order because the information and documents provided by the customer were incorrect or if the customer otherwise requests changes. 6.
(6) In the case of orders which take more than one month to complete, we shall be entitled to demand part payments from the customer amounting to 90% of the respective value, depending on the progress of the work.
7. invoices are due within 30 days net from date of invoice, unless otherwise agreed. They are to be paid without deductions. In the event of non-payment, the customer shall be in default on the due date without further reminder. Discounts and rebates shall only be granted upon separate agreement. Partial payments require a separate written agreement. 8.
8. settlement by bill of exchange requires a separate prior agreement. Discount charges and bill of exchange costs shall be borne by the customer. Invoice settlement by cheque or bill of exchange shall only be made on account of performance and shall only be deemed to be payment after unconditional crediting. 9.
(9) If we have several outstanding claims against the customer and if payments by the customer are not made in respect of a specific claim, we shall be entitled to specify which of the outstanding claims the payment was made in respect of.
(10) In the event of default in payment, deferral or partial payment, we shall be entitled to demand interest on arrears at the rate customary in banking, but at least 8 percentage points p.a. above the respective base interest rate, and to withhold further services until all due invoices have been settled. We reserve the right to prove higher damages.
11) By placing an order, the customer confirms his solvency and creditworthiness. In the event of reasonable doubt as to the customer's solvency or creditworthiness, e.g. if an application is made to open insolvency proceedings against the customer's assets, we shall be entitled to demand advance payment or suitable security for the service to be provided by the customer. If the customer is not prepared to pay in advance or to provide security, we shall be entitled to withdraw from these contracts after a reasonable period of grace and to claim damages for non-performance. 12.
The assignment of claims against us requires our consent. 13.
The customer shall only have a right of retention if the counterclaim is based on the same contractual relationship and has been acknowledged or legally established or if we have substantially breached our obligations arising from the same contractual relationship despite a written warning and have not offered adequate security. If a service provided by us is indisputably defective, the customer shall only be entitled to withhold payment to the extent that the amount withheld is in reasonable proportion to the defects and the anticipated costs of remedying the defects.
14) The payment dates shall also remain valid if delays in delivery occur through no fault of our own.
15. to the extent that value added tax is not included in our invoice for deliveries, in particular because we assume an "intra-community delivery" within the meaning of § 4 No. 1 b i. V. m. 6 a. on the basis of the information provided by the customer. In conjunction with § 6 a UStG and we are subsequently charged VAT (§ 6 a IV UStG), the customer is obliged to pay us the amount with which we are charged. This obligation exists irrespective of whether we have to subsequently pay VAT, import turnover tax or comparable taxes in Germany or abroad.
§ 18 Secrecy
(1) The customer undertakes to treat all aspects of the business relationship that are worthy of protection as confidential. In particular, he shall treat as a trade secret all commercial and technical details which are not in the public domain and which become known to him as a result of the business relationship. Information or aspects of the business relationship which were already publicly known at the time of disclosure as well as such information or aspects of the business relationship which were already demonstrably known to the contractual partner prior to disclosure by us shall not be subject to the duty of confidentiality. The customer shall ensure that its employees are also bound to secrecy accordingly. 2.
(2) Reproduction of the documents provided to the customer is only permissible within the scope of operational requirements and copyright provisions.
3. all documents, including planning documents, may not be made accessible to third parties, either in whole or in part, without our written consent, nor may they be used for purposes other than those for which they were provided to the customer.
4. even partial disclosure of the business relationship with us to third parties may only be made with our prior written consent; the customer shall also oblige the third parties to maintain secrecy within the framework of a similar agreement. 5. the customer may only disclose the business relationship with us to third parties with our prior written consent.
(5) The customer may only advertise the business relationship with us with our prior written consent.
(6) The customer shall be obliged to maintain secrecy even after the end of the business relationship.
7. in the case of planning services which are remunerated according to the HOAI and which the customer unlawfully makes accessible to third parties or passes on to third parties contrary to the conditions contained in clause 3 of this paragraph, the customer is obliged to pay us a contractual penalty for each culpable infringement which corresponds to three times the fee value which would have to be invoiced according to the HOAI. We reserve the right to claim further damages.
§ 19 Place of jurisdiction and applicable law
1) The place of jurisdiction is, at our discretion, our place of business or the place of jurisdiction of the customer.
2. the law of the Federal Republic of Germany is exclusively applicable for the business relations with the customer. The applicability of the CISG - "UN Convention on Contracts for the International Sale of Goods" is excluded. 3.
Should individual parts of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions. The contracting parties shall endeavour to replace the invalid clause by another clause which comes as close as possible to the economic purpose and legal meaning of the original wording.
§ 20 Contact details
Mangelberger Elektrotechnik GmbH Norisstraße 25, Industrial estate 3 D-91154 Roth