General Terms & Conditions of Purchase
of Zenergy Power GmbH, October 2009 version
1. Validity
The legal relationship between the Supplier and Zenergy Power GmbH, hereinafter referred to as “Zenergy Power”, is based on these Terms and Conditions. Zenergy Power does not recognize any of the Supplier’s terms and conditions which differ from its own.
Other General Terms and Conditions of Business shall not apply, even if Zenergy Power has not expressly contradicted them on an individual occasion.
Amendments and supplements shall be recorded in writing and shall not be considered to apply until Zenergy Power has consented to them in writing.
2. Quotations
In its quotations the Supplier shall adhere precisely to Zenergy Power’s enquiry with reference to the quantity and quality of the goods and shall expressly draw Zenergy Power’s attention to any deviation from the enquiry. Otherwise the information stated in the enquiry shall apply.
3. Orders / Contract conclusion
3.1 Orders and agreements shall only be binding upon Zenergy Power, if they have been issued in writing by Zenergy Power or confirmed in writing after being made verbally or by telephone.
3.2 The Supplier shall confirm the order immediately, no later than 14 days from receipt. Otherwise Zenergy Power shall be entitled to cancel the order at the expense of the Supplier. Belated declarations of acceptance on the part of the Supplier will be considered as new quotations, which will not lead to conclusion of a contract without clear written confirmation from Zenergy Power.
3.3 No rights may be asserted against Zenergy Power deriving from verbal, telephone and electronic pledges, reports, consultations etc. – irrespective of whether they were given before or after conclusion of the contract. Such verbal and electronic statements shall only be binding upon Zenergy Power if they have been confirmed in writing or if Zenergy Power has confirmed that it will waive the requirement for recording in writing.
3.4 Zenergy Power may, as long as the Supplier has not fulfilled, or only partly fulfilled his obligation, demand changes to the order, to a reasonable extent, as regards design, performance or time of delivery. The effects of this (e.g. additional or reduced costs; delivery times) are to be settled by mutual agreement..
3.5 The Supplier may only subcontract orders, if Zenergy Power has given its prior consent in writing.
3.6 Delivery schedules on the basis of existing overall schedules shall be binding for the first 3 months’ phase. Quantities relating to a later time shall only serve as information for the purpose of calculating material requirements. Delivery schedules shall then become binding, if the Supplier has not objected within 2 weeks of receiving them at the latest.
4. Prices
The agreed prices are fixed prices plus statutory Value Added Tax and exclude additional claims, whatever their nature. They shall include all expenditure in connection with the supplies and services to be provided by the Supplier.
5. Delivery, Packaging
5.1 The delivery times included in the order are binding. Delivery is to be made free ex works to the receiving office specified by Zenergy Power. Zenergy Power is to be advised of shipment in good time by telephone or in writing. The advice shall include information on the number of items, dimensions and weight of the goods.
5.2 Zenergy Power shall also be advised beforehand in writing of any specific requirements for handling the goods.
5.3 The place of performance shall be the receiving office specified by Zenergy Power in each instance.
5.4 The Supplier shall be obliged to advise Zenergy Power immediately if it falls behind with the delivery, in full or in part, stating the reasons. Zenergy Power must be advised of foreseeable delays in delivery as soon as the Supplier becomes aware of them.
5.5 If the agreed delivery time cannot be met due to a circumstance for which the Supplier is responsible, the latter shall be liable to Zenergy Power for compensation of losses caused by delay. Acceptance of the delayed delivery or service shall not imply any waiver of further claims arising from the delay.
If any respite period set by Zenergy Power expires without action, Zenergy Power may withdraw from the contract. This will not affect any claims for compensation.
If a delivery date is expressly referred to in the contract as being subject to a contractual penalty, a contractual penalty of 0.5 % of the order value, but to a maximum of 5 %, shall be payable per week commenced after the delivery date, with allowance for any more extensive compensation claim.
5.6 Unless expressly agreed otherwise, partial shipments are not permitted. Partial shipments will not be recognized as performance. If partial shipments do take place Zenergy Power shall have the right to cancel the remaining order quantity.
5.7 Premature deliveries may be rejected at the Supplier’s expense.
5.8 The goods to be supplied are to be packed in compliance with any specifications made by Zenergy Power and in conformity with any packaging regulations applying at the place of performance and otherwise in accordance with normal commercial practice and with due care. The Supplier shall comply with the regulations of the relevant carrier, haulage contractor or forwarding agent. The Supplier shall be liable for damage attributable to defective packaging.
The Supplier’s obligation to take back the packaging is based on the statutory provisions or otherwise requires a separate agreement.
5.9 Force majeur, industrial disputes, government measures or other unavoidable events shall release Zenergy Power from the obligation to take delivery of the item supplied for the duration of the disruption.
6. Formal acceptance, transfer of risk
6.1 If the order includes installation or assembly of the supplied item, a formal acceptance of delivery will be required. This may only be given after a test phase has been successfully completed in accordance with separate conditions from Zenergy Power. If no such conditions have been agreed, the item supplied is considered to have been accepted with the supplier’s certificate of operational readiness to be signed by Zenergy Power.
6.2 Payments by Zenergy Power do not imply that the supplied item has been finally accepted by Zenergy Power.
6.3 Transfer of risk shall take place upon delivery of the supplied item at the agreed receiving office, or upon formal acceptance of delivery – insofar as this is required.
7. Payments, invoicing
7.1 Invoices are to be submitted to Zenergy Power separately for each order, in duplicate, together with all the associated documents and information after the delivery has taken place in the appropriate form. The invoices shall in particular contain the order number, invoice number, VAT ID, delivery date, place of delivery, unit and total price and description of the goods in terms of type and quantity. If certificates concerning material inspection have been agreed, these will constitute an integral part of the delivery and are to be remitted together with the consignment.
7.2 Unless agreed otherwise in writing, Zenergy Power shall pay the purchase price within 14 days, counting from delivery and receipt of invoice, with a 3 % discount, or within 30 days from receipt of invoice net, or net on a later payment date agreed by the Supplier. The period allowed for payment shall not commence until the invoice has been received in proper form, but not before receipt and technical inspection of the ordered goods or formal acceptance of the service provided. The date of the receipt stamp shall be considered as the date of invoice receipt. If early deliveries are accepted the payment schedule will be based on the original delivery date.
7.3 In the event of defective performance Zenergy Power shall have the right to withhold payment until proper performance has been accomplished. Zenergy Power does not accept or recognize default interest or restrictions in the right to reject performance, right of retention and right of set-off. Payments do not affect the right of objection, guarantee and warranty claims against the Supplier.
7.4 Invoices that do not meet the specifications set out in 7.1, in particular if the order number is missing, may be rejected electronically or in writing by Zenergy Power. In such a case the period applied for the discount does not commence until an invoice meeting the requirements set out in 7.1 has been received.
7.5 The Supplier does not have the right to raise the defence of uncertainty pursuant to §321 BGB (German Civil Code).
8. Guarantee/Liability
Zenergy Power shall enjoy full statutory guarantee rights for defects, without restriction, unless settled otherwise in these Terms and Conditions.
8.1 Guarantee in the event of material defects
The Supplier warrants that the goods he has supplied are free of defects and correspond to the latest state of the art.
If the purchased item should have a defect for which the Supplier is responsible, Zenergy Power shall have the right, at its discretion, to order the Supplier to rectify the defect or to supply a replacement. The Supplier shall bear all the costs incurred through subsequent fulfilment. The statutory period of limitation shall begin again for the replaced or repaired items and services.
If there is risk in delay, for example if there is imminent risk of production stoppage, Zenergy Power shall be entitled to rectify the defect itself at the expense of the Supplier.
8.2 Guarantee in the event of legal defects
The Supplier warrants that he is in full ownership of all the items covered by the purchase agreements and that no other third party rights can be raised against them.
It is the Supplier’s responsibility to ensure that there is no infringement of third party proprietary rights (rights to production). If the use of the supplied item should infringe third party proprietary rights, the Supplier shall release Zenergy Power from all claims upon the first written request.
The Supplier’s obligation of indemnification relates to all expenditure inevitably accruing to Zenergy Power from or in connection with a claim by a third party.
The Supplier shall on request notify Zenergy Power of all proprietary rights of which he is aware or becomes aware, which he refers to in connection with the items supplied or to be supplied.
8.3 No infringement of legal norms
The Supplier warrants that the exercise of the individual purchase contracts will not give rise to any violation of the law, in particular with reference to the observance of laws, ordinances or other regulations of an official authority.
8.4 Environmental sustainability
The Supplier undertakes to use environmentally friendly products and processes in his provision of goods and services and also in the event of third party supplies or deliveries, as far as technically possible and financially viable. The Supplier is responsible for ensuring that the products supplied and their packaging material are environmentally friendly and for all consequential losses arising from violation of statutory waste disposal obligations.
8.5 Statute of limitations
Claims by Zenergy Power under guarantees against defects shall fall under the statute of limitations after 36 months from transfer of the risk. If the law should provide a longer period of statute limitation for the relevant service, the statutory regulation shall apply.
9. Notice of defects
Zenergy Power shall check the item supplied for quality and completeness upon receipt to the extent agreed, or to the extent reasonably and technically possible. An objection period of 7 days from receipt of the goods shall apply for objection to obvious defects. For other cases the Supplier shall waive the objection of delay in reporting of defects.
A notice of defects by Zenergy Power shall interrupt the guarantee period in respect of the defective part of the delivery. After repair/replacement of the defective part the guarantee period shall begin again for that part.
10. Spare parts
The Supplier shall be obliged to process orders for spare and expendable parts for the duration of normal technical use, but at least 10 years from the last delivery on appropriate conditions.
The guarantee provisions laid down in No. 8 of these General Terms and Conditions of Purchase shall apply to spare parts.
11. Product liability
If a claim is made against Zenergy Power arising from non-contractual product liability or because of violation of official safety regulations, the Supplier shall be obliged to compensate the ensuing loss, insofar as this is attributable to the defective nature of the products supplied by the Supplier.
The Supplier shall be liable for measures that Zenergy Power takes for the prevention of losses (e.g. special inspections, warnings, recalls), insofar as the loss on which this measure is based is attributable to the Supplier.
The Supplier shall be given the opportunity to investigate the cause of loss in this respect.
The Supplier shall be obliged to take out insurance against all risks arising from product liability including recall measures, with a minimum cover of € 3 million per loss event and to present the insurance policy to Zenergy Power for inspection on request.
12. Quality and documentation
At the request of Zenergy Power the Supplier shall provide information on the composition of the supply item, if this is necessary to meet official requirements in Germany and abroad.
If Zenergy Power asks for initial samples or patterns, the Supplier may not commence production of the supply item until he has received the relevant approval in writing from Zenergy Power.
The Supplier shall supply technical documentation, in particular directions for use and maintenance instructions, training material, technical data sheets, material declarations, disposal regulations, product safety sheets etc., upon delivery of the goods, in both German and English.
13. Reservation of ownership, supply, tools
If Zenergy Power makes parts available for the Supplier, it shall retain ownership to those parts. Processing or remodelling by the Supplier is undertaken on behalf of Zenergy Power. If the goods under Zenergy Power’s reservation of ownership are processed with other items not belonging to Zenergy Power, Zenergy Power shall acquire co-ownership to the new item proportional to the value of Zenergy Power’s item compared to the other processed items at the time of processing.
If the item supplied by Zenergy Power is mixed irreversibly with items not belonging to it, Zenergy Power shall acquire co-ownership of the new item proportional to the value of the item subject to retention of title compared to the other mixed items at the time of mixture. If the mixture occurs in such a way that the supplier’s item is to be regarded as the main item, the agreement applies that the Supplier shall transfer proportional co-ownership to Zenergy Power; the Supplier shall preserve sole or part ownership for Zenergy Power. Zenergy Power expressly retains title to production instruments supplied, such as models, samples, tools, drawings and the like, which Zenergy Power has made available to the Supplier. The Supplier is obliged to use the production instruments supplied exclusively for the production of the goods ordered by Zenergy Power. The Supplier is obliged to insure the production instruments supplied on a new for old basis at his own expense against fire and theft. The Supplier is obliged to carry out any maintenance and inspection work in due time at his own expense. He shall notify Zenergy Power immediately of any breakdowns. If he culpably neglects to do so, this will not affect compensation claims.
14. Technical documents
Technical documents made available to the Supplier shall remain the property of Zenergy Power. On completion of the order these documents are to be returned to the principal without being asked for.
15. Confidentiality
The Supplier is obliged to observe strict confidentiality in respect of all reproductions, drawings, calculations and other documents and information received. They may only be disclosed to third parties with the express consent of Zenergy Power. The obligation of confidentiality shall continue to apply even after completion of this contract.
The Supplier may only refer to his business relationship with Zenergy Power in his advertising, if Zenergy Power has stated its agreement beforehand in writing.
In the event of disclosure to third parties, they are to be placed under the same obligation pursuant to this rule.
16. Further provisions
This agreement shall replace all preceding agreements made by the parties for the present contractual purpose on an earlier occasion, either verbally or in writing; preceding agreements shall become invalid with the integration of these General Terms and Conditions of Purchase.
The rights arising from this relationship may not be assigned by any contractual party without the written consent of the relevant other party.
Each party shall bear their costs arising in connection with the performance of this contract themselves.
If the Supplier should suspend payments or if an application is made for the opening of insolvency proceedings or equivalent judicial proceedings in respect of his assets, Zenergy Power shall have the right to withdraw from the contract, without prejudice to other claims.
If a provision of this condition and the other agreements made should be or become inoperative, this shall not affect the validity of the contract in other respects. The contracting parties shall be obliged to replace the inoperative conditions by a rule which matches them as closely as possible in terms of their financial outcome.
17. Legal domicile; Election of jurisdiction
The Law of the Federal Republic of Germany shall apply, unless otherwise agreed.
The application of the UN Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.
Zenergy Power shall have the right to elect the legal domicile.
Opening hours for acceptance of goods:
Mon - Thurs 7:30 to 12:00 and 13:00 to 15:30, Fri. 7:30 to 14:00.
Consignment address, unless agreed otherwise:
Zenergy Power GmbH, Heisenbergstraße 16, D-53359 Rheinbach
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