General terms and conditions

General terms and conditions of inVENTer GmbH

  • General Terms and Conditions of Sale and Delivery of inVENTer GmbH for contracts with entrepreneurs (valid as from 01.07.2015)

    1. General terms and conditions

    1.1. 

    These General Terms and Conditions of Sale and Delivery (hereinafter “GTCSD”) of InVENTer GmbH (hereinafter “Seller”) shall apply exclusively with respect to entrepreneurs [Unternehmer] within the meaning of sec. 14 of the German Civil Code [German acronym: BGB], i.e. to a natural person or legal entity acquiring the goods in the course of its commercial or independent professional activities (hereinafter “Purchaser”).

    1.2 

    These GTCSD shall apply exclusively to all contracts made between the Seller and the Purchaser for the supply of electrical and technical construction elements, and electrical, electronic and technical modules and components. No general terms and conditions of purchaser or other general terms and conditions of the Purchaser departing herefrom shall apply except where the Seller has expressly acknowledged them in writing. In particular, silence of the Seller with respect to such terms and conditions departing from the present GTCSD shall not be deemed any acknowledgment or consent to them, whether now or as to future contracts.

    2. Offer, formation of contract, scope of supply

    2.1 

    Offers by the Seller are without engagement and non-binding. Where on the basis of a non-binding offer, the Purchaser issues an order to purchase goods, the contract will not be deemed formed until such time as a written confirmation of the order (if the Purchaser wishes to receive one) is issued (even where the parties have an ongoing business relationship). In all other cases, the contract shall only be formed at such time as the goods are delivered. Where any confirmation of an order is issued, only that confirmation shall be deemed to govern with respect to the substance of the parties’ contract, in particular, as to the scope of supply and delivery date. 

    2.2 

    Where any order received by the Seller is not confirmed in writing or executed within 2 weeks of its receipt, the Purchaser shall be entitled to cancel the order, but shall not have any right to assert claims for compensatory damages against the Seller based thereon. 

    2.3 

    Prices and performance specifications as well as any other representations or warranties shall be binding on the Seller only where they are given by the Seller in writing or confirmed by the Seller in writing. The foregoing shall not apply if any agent expressly authorised by the Seller gives oral representations or warranties after the contract has been formed.

    2.4 

    The documents, drawings, weights, samples etc. attached to the Seller’s offer shall only be deemed controlling in an approximate sense. In particular, these shall neither constitute any warranty nor represent any assumption of a procurement risk, except where they are expressly stated in writing to be “legally warranted” or “procurement-risk assumed”. A reference to norms and other technical rules shall likewise constitute no indication of quality of the products of the Seller, except where this is expressly referenced as a “quality of the product”.

    2.5 

    The Seller shall merely bear a duty to furnish goods from its own stocks of goods (obligation to maintain stocks of goods on hand [Vorratsschuld]). The assumption of any procurement risk or of any warranty of quality or characteristics shall similarly not be found present solely as a result of our duty to supply an item of property which is identified only by type.

    2.6 

    Partial deliveries are permitted to the extent this is reasonable for the Purchaser.

    2.7 

    Any cost estimates, drawings and other documents furnished by the Seller shall remain the Seller’s property and subject to its copyright; they may not be disclosed to third parties without the Seller’s prior consent.

    3. Prices

    3.1 

    The prices are prices in euro, unless otherwise indicated, and are quoted net of VAT. VAT shall be separately invoiced at the rate in effect from time to time in accordance with the rules under tax law applicable from time to time.

    3.2 

    Unless other arrangements have been confirmed in writing, our prices are quoted ex works or warehouse of the Seller (EXW Incoterms 2010), exclusive of packaging and shipping costs.

    4. Terms of payment

    4.1 

    The terms of payment stated in each case shall apply to all payments. Unless otherwise specified, all payments shall be made no later than 20 days from the date of the invoice, without any deductions, free-of-charge to the Seller’s paying office. Payment deadlines shall be deemed met if the Seller is able to dispose of the sum within such period. The deduction of any cash discount shall require a separate written agreement. 

    4.2 

    The Seller accepts cheques and, where payment by bill of exchange has been agreed, bills of exchange. The Purchaser shall be obliged to immediately compensate the Seller for any discount and collection fees as well as interest. 

    4.3 

    The Purchaser shall have no right of retention of payments where the payment is not based on the same contractual relationship or any right of set-off against claims which are disputed or have not been adjudicated with res judicata effect. The Seller shall be entitled to avoid the exercise of any right of retention by demanding the furnishing of collateral.

    4.4 

    Where the Purchaser ceases to make payments, where over-indebtedness has occurred or where an application for the commencement of insolvency proceedings is made, or where the Purchaser is in default in respect of honouring bills of exchange or cheques which have fallen due, this shall cause the entirety of the Purchaser’s claims to fall due immediately.

    5. Retention of title

    5.1 

    The goods shall remain the property of the Seller until such time as all claims to which the Seller is entitled against the Purchaser have been satisfied (‘Retention of Title Goods’), even if payment for the individual item of goods has been made. The Purchaser may not pledge or assign the Retention of Title Goods by way of security.

    5.2 

    For purposes of any permissible resale in the course of the Seller’s business or any rental of the Retention of Title Goods, the Purchaser hereby assigns to the Seller already at this time such claims against its customers as may arise in future from resale or rental by way of security to the Purchaser until all of the Purchaser’s claims have been satisfied, without this requiring any subsequent special declaration by the Purchaser; this assignment shall also cover any balance claims arising in connection with existing current account relationships or upon termination of such relationships of the Purchaser with its customers. Where the Retention of Title Goods are resold or rented together with other items of property without any individual price having been agreed for the Retention of Title Goods, the Purchaser hereby assigns to the Seller that portion of the overall claim for the purchase price/overall claim for rent with priority over its remaining claims, corresponding to the value of the Retention of Title Goods invoiced by the Seller. Until further notice, the Purchaser shall be authorised to collect on the assigned claims from resale or rental; however, the Purchaser shall not be entitled to dispose of them in any other manner, e.g. by assignment. Upon request of the Seller, the Purchaser shall disclose the assignment to its customers and shall furnish such documents (e.g. invoices) and provide such information to the Seller as the Seller shall require in order to assert its rights against the customer. The Purchaser shall bear all of the costs of collection and any action required. Where the Purchaser receives bills of exchange based on the authorisation granted to it to collect on the assigned claims from resale, title to such papers, with the documented right of collection, shall pass by way of security to the Seller. The physical delivery of the bills of exchange shall be deemed substituted by the parties’ agreement that the Purchaser is accepting custody of the bills of exchange for the Seller and shall then deliver them in endorsed form to the Seller without delay. In the event that the equivalent value of the claim assigned by the Purchaser to the Seller should be received by the Purchaser or by the Purchaser’s bank in the form of cheques, the Purchaser shall be obliged to immediately give notice of receipt thereof and to remit the same amounts to the Seller. Title to the cheques shall pass to the Seller together with the documented rights therein as soon as the Purchaser receives them. The physical delivery of the bills of exchange shall be deemed substituted by the agreement that the Purchaser is accepting custody thereof for the Seller and the Purchaser shall then deliver them in endorsed form to the Seller without delay.

    5.3 

    Where the Purchaser processes the Retention of Title Goods, where it transforms them or combines them with other items of property, such processing, transformation or combination shall be deemed to be undertaken for the benefit of the Seller. The Seller shall become the direct owner of the item of property created by the processing, transformation or combination. Where, for legal reasons, this should not prove possible, the Seller and Purchaser hereby agree that the Seller shall become the owner of the new item of property at every moment of processing, transformation or combination. The Purchaser shall hold the new item of property in custody for the Seller with the care of a prudent merchant. The item of property created by processing, transformation or combination shall be deemed Retention of Title Goods. In the event of processing, transformation or combination with other items of property not belonging to the Seller, the Seller shall be entitled to co-ownership of the new item of property in a ratio corresponding to the ratio of the value of the Retention of Title Goods which is to be processed, transformed or combined, up to the value of the new item of property. In the event of any sale or rental of the new item of property, the Purchaser shall be deemed to hereby assign its claim against its customer arising out of the sale or rental, together with all ancillary rights, by way of security without this requiring any subsequent special declarations. However, the assignment shall only be deemed to apply in the amount corresponding to the value of the processed, transformed or combined Retention of Title Property invoiced by the Seller. The share of the claim assigned to the Seller shall rank higher in priority over the remaining claims.

    5.4 

    Where the value of the security interest exceeds the Seller’s claims against the Purchaser under their ongoing business relationship by more than 20% in the aggregate, the Seller shall be obliged, upon request of the Purchaser, to release such collateral to the Purchaser as it may select. 

    6. Delivery, delivery times, default of delivery

    6.1 

    Delivery times indicated shall be non-binding unless otherwise agreed in writing. In the case of delivery dates and periods which are non-binding or approximate (approx., roughly, etc.) the Seller shall endeavour to the best of its efforts to comply with these. Delivery periods which have been bindingly agreed in writing shall begin to run at such time as the Purchaser receives confirmation of its order, but not before all of the details of execution of the order have been resolved and all other prerequisites to be satisfied by the Purchaser have been met; the same shall apply mutatis mutandis with respect to delivery deadlines. The Seller is permitted to effect deliveries prior to the expiry of the delivery period.

    6.2 

    The delivery deadline or period will be deemed met if the goods leave the factory or warehouse within that period. Where the shipment or collection of the goods is delayed for reasons which are not the fault of the Seller, the period shall be deemed to have been complied with if notice of readiness to ship is given within the agreed period. 

    6.3

    Where, for reasons which are not the fault of the Seller, the Seller fails to receive the goods or services of its sub-suppliers which it requires in order to furnish the contract goods or services owed by the Seller, despite having obtained proper and sufficient cover with respect to quantity and quality in its agreement for the supply of goods or services with the Purchaser, or if it should fail to receive such goods or services in correct form or in a timely fashion, or where force majeure events of non-negligible duration (i.e. with a duration of more than 14 calendar days) occur, then the Seller shall timely inform the Purchaser thereof in writing or in electronic form. In such case, the Seller shall be entitled to defer the delivery by the duration of the event preventing it from effecting delivery or to resile in whole or in part from the portion of the contract which has not been performed, provided that the Seller has complied with its duty of information as set forth above and has not assumed the procurement risk. The following shall be deemed the equivalent of a force majeure event: strikes, lock-outs, regulatory interventions, power and raw material shortages, shipping bottlenecks without the culpability of the Seller, disturbances of operations not due to the Seller’s fault (e.g. as a result of fire, water and equipment damage) and all other disturbances and disruptions which, upon an objective view, were not caused by the fault of the Seller. 

    6.4 

    Where a binding agreement has been made as to a delivery date for the furnishing of goods and/or services or if a period for the furnishing of such goods and/or services has been agreed with binding effect and where, based on events such as those set out in sec. 6.3 above, this causes the agreed deadline for the delivery of the goods and services or the agreed period for the delivery of the goods and/or services to be exceeded, the Purchaser shall be entitled, after a reasonable grace period has elapsed to no avail, to resile from the portion of the agreement which has not yet been performed. In such case, the Purchaser shall have no further or other claims (in particular: it shall have no claims for compensatory damages) provided that the Seller has complied with its duty of information as set forth above. The provisions set out above in sec. 6.4, sentences 1 and 2, shall apply mutatis mutandis if, for reasons referenced in sec. 6.3, it is objectively unreasonable to expect the Purchaser to continue to adhere to the contract even in the absence of a contractual agreement envisaging a fixed date for delivery of the goods and/or services.

    6.5 

    Where the Purchaser bears fault for a delay in shipment or delivery of the goods, the Seller shall be entitled to invoice the Purchaser for the additional costs arising therefrom.

    7. Passage of the risk

    7.1 

    The risk of accidental destruction or of accidental deterioration of the goods shall pass to the customer at such time as the Seller or the commercial agent authorised by the Seller hands the contract goods over to the shipper, freight forwarder or other third party charged with shipping them. The foregoing shall apply even where partial deliveries are being made or the Seller has assumed responsibility for performing other services (e.g. shipping or installation).

    7.2 

    Where despatch is delayed due to facts and circumstances which are the fault of the Purchaser or where the despatch of the goods is being made at a later time than the agreed delivery date by request of the Purchaser, then the risk shall pass to the Purchaser for the duration of the delay from the date on which notification of readiness to ship is given; the Seller shall arrange for such insurance cover as the Purchaser demands, at the request and at the cost of the Purchaser.

    7.3 

    Absent any special request by the Purchaser, shipments will not be insured for theft, breakage, transport and fire damage. Where the Purchaser requests that insurance cover be taken out, it shall be taken out at the cost and expense of the Purchaser. The Purchaser shall render any acts of cooperation which may be necessary. 

    8. Claims for defects

    8.1 

    The Purchaser shall examine the goods immediately upon receipt thereof to the extent this is appropriate in the proper course of business and, if a defect is found, it shall notify the Seller thereof without delay. By negotiating on any potential claims for damages, the Seller shall not be deemed to waive the objection that the claim was not timely, that it was not justified on the merits or in other respects was legally insufficient.

    8.2 

    Where the Purchaser fails to furnish such notification, the goods shall be deemed approved except where the defect is one which was not recognisable upon inspection. In all further and other respects, the provisions of secs. 377 ff of the Commercial Code [German acronym: HGB] shall apply. 

    8.3 

    In addition, damage which was manifestly caused by shipping or other defects which are already apparent at the time of delivery must be confirmed at the time the delivery is accepted by signature on the appropriate freight document of the delivery company. The Purchaser shall take efforts to ensure that a corresponding confirmation is furnished.

    8.4 

    Subsequent performance shall be furnished at the Seller’s election by either eliminating the defect or delivering a non-defective item. Where subsequent performance fails, the Purchaser shall have the right, at its option, either to abate the price or to resile from the contract. The right to assert a claim for damages pursuant to clause 9 of these GTCSD shall remain unaffected hereby.

    8.5 

    Claims for defects shall be prescribed at the end of one year from the date the risk of loss passes pursuant to sec. 7 of these GTCSD. The foregoing shall not apply in cases covered by sec. 9.2 of these GTCSD. This shall likewise not apply in respect of goods which, in line with their usual manner of use, are utilised for constructing a building and have caused the defectiveness thereof. In such cases, the statutory limitations period shall apply.

    9. Liability

    9.1 

    The Seller shall bear no liability, in particular, for claims of the Purchaser for damages or compensation of expenses, irrespective of the legal grounds thereof, and/or in the event of a breach of duties arising out of the contract and from tort.

    9.2 

    The exclusion of liability set forth above shall not apply 

    - to intentional or grossly negligent breaches of duty and intentional or grossly negligent breaches of duty by legal representatives or vicarious agents;

    - to breaches of material duties under the contract; material duties of the contract are duties the performance of which are crucial to the contract and on which the Purchaser is entitled to rely; 

    - to cases of injury to life, limb and health, including by legal representatives or vicarious agents;

    - to cases of default where a fixed date for delivery and/or services was agreed;

    - where the Seller has assumed a warranty for the quality of the goods or for the successful outcome of the services, or has assumed a procurement risk;

    - to any liability under the Products Liability Act or other liability schemes which are compulsory by law.

    9.3 

    In the event that the Seller or its vicarious agent is guilty only of slight negligence and the case is not one covered by the foregoing sec. 9.2, lines 1, 3, 4, 5 and 6, the Seller shall also be liable for breaches of material duties of contract, but limited as to amount to such damages as were foreseeable at the time of contracting and are typical for the contract.

    9.4 

    The Seller disclaims any and all liability beyond the foregoing.

    9.5 

    The disclaimers/limitations on liability under the foregoing secs. 9.1 to 9.4 and 9.6 shall apply to the same extent in favour of the Seller’s executive and non-executive employees and other vicarious agents as well as to the Seller’s sub-contractors.

    9.6 

    To the extent the Purchaser is entitled to assert claims for damages pursuant to this sec. 9, such claims shall be deemed prescribed upon the expiry of the prescription period set forth in sec. 8.4 of these GTCSD which are stated as applicable to warranty claims. Sec. 9.2 of these GTCSD shall apply mutatis mutandis.

    9.7 

    No reversal of the burden of proof is associated with the provisions set forth above. 

    10. Prohibition on assignment

    The Purchaser may only assign claims against the Seller with the Seller’s prior written consent. This reservation of consent shall not apply in respect of claims for the purchase price and other money claims.

    11. Jurisdiction and venue and applicable law

    11.1 

    Where the Purchaser is a merchant [Kaufmann], exclusive jurisdiction and venue, including for cheque and bill of exchange proceedings, shall be vested in the courts at the location of the Seller’s registered office. The same rule on jurisdiction and venue shall apply where the Purchaser has no general domicile within the Federal Republic of Germany for purposes of jurisdiction and venue at the time legal proceedings are initiated. However, the Seller shall be entitled to assert a claim in any court with statutory jurisdiction.

    11.2 

    The laws of the Federal Republic of Germany, but excluding the UN CISG, shall apply.

    inVENTer GmbH – Ortsstraße 4a – 07751 Löberschütz

  • General Terms and Conditions of Sale and Delivery of inVENTer GmbH for contracts with entrepreneurs (valid as from 01.07.2015)

    1. Scope

    These General Terms and Conditions of Sale and Delivery (hereinafter “GTCSD”) of InVENTer GmbH (hereinafter “Seller”) shall apply exclusively with respect to consumers within the meaning of sec. 13 of the German Civil Code [German acronym: BGB], i.e. to natural persons who are not acquiring the goods primarily either in the exercise of their commercial or their independent professional activities (hereinafter “Purchaser”). These GTCSD shall apply to all contracts made between the Seller and the Purchaser for the supply of goods. Any terms and conditions of the Purchaser which the Seller does not expressly acknowledge shall be non-binding on the Seller, even if the Seller does not expressly object to them.

    2. Offer, formation of contract, qualities, advice

    2.1 

    Offers by the Seller are non-binding and shall merely represent an invitation to the Purchaser to submit an offer, except where the Seller has expressly designated its offer in writing as binding.

    2.2 

    A binding contract only arises by the Seller’s confirmation of the order or by its execution of the order; as a rule, this constitutes delivery of the goods. The Purchaser shall be bound by its offer for a period of seven days from the date of issuing it. Where the Seller does not accept the Purchaser’s offer, this shall be deemed a rejection of the Purchaser’s offer.

    2.3 

    Measures, weights, images, drawings and other documents forming a part of the Seller’s non-binding offers shall remain the property of the Seller.

    2.4 

    References to norms, to similar technical rules and technical data, descriptions and depictions of the contract goods in offers and brochures shall be deemed mere specifications of performance and not a depiction of the qualities warranted by the Seller.

    2.5 

    Information and advice with respect to the Seller’s products will be provided exclusively on the basis of the Seller’s prior experience. The values and data indicated in this respect should be regarded as average values and data. All representations regarding products (in particular the figures, drawings, measurement and performance specifications and other technical details contained in offers and printed material of the Seller) shall constitute average values which should be regarded as approximate.

    2.6 

    The qualities of test samples or models furnished shall only be incorporated into the parties’ contract as an integral element thereof if this has been expressly agreed in writing.

    3. Delivery

    3.1 

    Binding delivery dates and delivery periods must be agreed expressly and in writing. In the case of delivery dates and periods which are non-binding or approximate (e.g. approx., roughly, etc.), the Seller shall endeavour to the best of its abilities to comply with such deadlines and periods. 

    3.2 

    Delivery periods which have been bindingly agreed in writing shall begin to run at such time as the Purchaser receives the confirmation of its order, but not before all of the details of the execution of the order have been resolved and all other prerequisites to be satisfied by the Purchaser have been met; the same shall apply mutatis mutandis with respect to delivery deadlines. The Seller is permitted to effect deliveries prior to the expiry of the delivery period.

    3.3 

    Where the Seller is in default of delivery, the Purchaser may set a reasonable grace period and, following expiry thereof to no avail, may resile in whole or in part from the contract. Claims for damages due to delayed delivery or non-performance (irrespective of the grounds thereof) shall only lie pursuant to what is set out in sec. 5.

    4. Terms of payment

    4.1 

    Where no other written agreement with the Purchaser has been made in this respect, the purchase price must be paid net (without deductions) immediately upon receipt of the invoice by the Purchaser.

    4.2 

    The Purchaser shall be deemed in default of payment of the purchase price even absent a dunning notice by the Seller if the Purchaser fails to pay the purchase price within 30 days from the date of maturity and receipt of the invoice or has received an itemisation for payment which is the equivalent of an invoice, provided that the Seller has advised the Purchaser of these consequences in its invoice or itemisation for payment. Where the Purchaser is in default of payment, the Seller shall be entitled to demand interest at 5% over the respective base interest rate of the European Central Bank (ECB) beginning from the time in question. The Seller shall retain the right to furnish evidence of greater losses.

    4.3 

    The Purchaser shall only be entitled to exercise a right of set-off where its counterclaims have been adjudicated with res judicata effect, have been acknowledged by the Seller or are undisputed or where the counterclaims constitute costs for eliminating defects or additional costs of completion. The Purchaser shall only be entitled to exercise a right of retention where its counterclaim is based on the same purchase agreement.

    5. Liability

    5.1 

    The Seller shall bear no liability, in particular, for claims of the Purchaser for damages or compensation of expenses, irrespective of the legal grounds thereof, and/or in the event of a breach of duties arising out of the contract and from tort.

    5.2 

    The exclusion of liability set forth above shall not apply 

    - to intentional or grossly negligent breaches of duty and intentional or grossly negligent breaches of duty by legal representatives or vicarious agents;

    - to breaches of material duties under the contract; material duties of the contract are duties the performance of which are crucial to the contract and on which the Purchaser is entitled to rely; 

    - to cases of injury to life, limb and health, including by legal representatives or vicarious agents;

    - to cases of default where a fixed date for delivery and/or services was agreed;

    - where the Seller has assumed a warranty for the quality of the goods or for the successful outcome of the services, or has assumed a procurement risk;

    - to any liability under the Products Liability Act or other liability schemes which are compulsory by law.

    5.3 

    In the event that the Seller or its vicarious agent is guilty only of slight negligence and the case does not represent a case covered by the foregoing sec. 5.2, lines 1, 3, 4, 5 and 6, the Seller shall also be liable for breaches of material duties of contract, but limited as to amount to such damages as were foreseeable at the time of contracting and are typical for the contract.

    5.4 

    The Seller disclaims any and all liability beyond the foregoing. 

    5.5 

    The foregoing exclusions or restrictions of liability shall apply to the same extent in favour of the Seller’s executive and non-executive employees and other vicarious agents as well as to the Seller’s sub-contractors.

    5.6 

    No reversal of the burden of proof is associated with the provisions set forth above. 

    6. Retention of title

    6.1 

    The Seller retains title to the goods (Retention of Title Goods) until such time as complete payment for the respective goods has been made.

    6.2 

    The Purchaser shall notify the Seller of any interference by third parties, which shall, in particular, include measures of compulsory execution. The Purchaser shall reimburse the Seller for all losses and expenses arising from any culpable breach of this duty and arising from any necessary acts of intervention against interference by third parties.

    7. Applicable law

    With respect to all legal relations between the Purchaser and the Seller, the laws of the Federal Republic of Germany shall apply, but excluding application of the UN Convention on the International Sale of Goods.

    inVENTer GmbH – Ortsstraße 4a – 07751 Löberschütz

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