1. Key terms and conditions
1.1 For all business transactions with the supplier or other contractors (hereafter referred to jointly as the “Supplier”), only the following terms and conditions of purchase apply, to the exclusion of any conflicting terms and conditions. In addition, any individually agreed framework or contractual terms and conditions apply and shall take precedence over these terms and conditions in the event of any conflict.
1.2 These terms and conditions of purchase also apply if the Supplier refers to their own terms and conditions when accepting contracts, or in their order confirmation, unless these have been expressly approved by us.
1.3 Our terms and conditions of purchase only apply to companies in accordance with section 14 BGB [Bürgerliches Gesetzbuch, German Civil Code].
2. Contracts/conclusion of a contract/amendments to a contract
2.1 Contracts to supply and contracts for services, as well as contracts for work (assignments, orders, delivery schedules and distributions, quantity contracts and just-in-time deliveries, hereafter referred to as “contracts”) and any amendments and additions thereto are only binding if they are issued or confirmed by us in writing.
2.2 In order for the contract to be accepted and valid, the Supplier must return the copy of the “Supplier Confirmation” supplied by us with a legally binding signature within one week of receiving the document.
2.3 Orders, distributions and just-in-time deliveries may also be sent by fax or other form of electronic data transmission. These are valid without a signature and do not require any further confirmation by the Supplier. The Supplier must provide written notification of any amendments and additions within three working days.
3.1 Unless any special agreements are concluded, prices must be understood as fixed prices including delivery ex works, including all packaging, insurance and all other delivery costs.
3.2 Quotations should only be sent to our purchasing department.
4.1 Agreed dates and deadlines are binding. The delivery dates (specific days) stated in our contracts refer to the date when goods arrive at the Rothenburg site or at the agreed delivery address.
4.2 If the Supplier falls behind schedule and a fixed delivery date has been agreed, from this date or otherwise following a warning we are entitled to apply a contractual penalty of 0.5% of the net order value per week or part thereof, up to a maximum of 5% of the net order value and/or the value of the delivery and/or to withdraw from the contract. The right to claim compensation remains unaffected. The contractual penalty paid will be offset against any compensation claim.
4.3 Partial and early deliveries are not permitted without our approval.
4.4 The place of fulfilment is the place to which the goods are to be delivered as stated in our contract.
4.5 The values determined by Neuberger when incoming goods are checked apply for all quantities, weights and dimensions.
4.6 Neuberger is entitled to use any software that is included in the product scope of delivery, including any documentation, to the extent permitted by law (sections 69a et seqq. UrhG [Urhebergesetz, German Copyright Act]) and in accordance with the agreed features and to the extent required for the contractual use of the product. Neuberger is authorised to create a back-up copy even without an explicit agreement.
4.7 At our request, the contractor will remove any outer, transport and sales packaging from the place of fulfilment or arrange for it to be removed by a third party.
5. Dispatch note/invoice
The details stated in our orders and delivery schedules apply. Invoices must be sent in triplicate to the address stated on them and must include the invoice and order number and any other references; they must not be included with the deliveries.
6.1 Payment for contracts will only be made if the delivery is received free of faults and defects, and for contracts for services or works, once the service has been rendered in accordance with the order and final acceptance has taken place, and following the subsequent submission of a corresponding invoice.
6.2 Unless otherwise agreed, payments will be made within ten days less a 3% early payment discount or within 30 days net.
6.3 The payment period starts when we receive the invoice and once the conditions in point 5 have been fulfilled. Invoices received prior to the conditions for payment being fulfilled will be returned to the Supplier.
6.4 The payment date is the issue date stated in the digital payment order created by us.
6.5 Receivables that we owe to the Supplier may only be assigned to third parties with our authorisation. Payments will only be made to the Supplier. The Supplier’s rights and obligations arising from contracts with us are not transferable unless expressly agreed by us in writing.
7. Claims for defects/liability for defects/defects process
7.1 The Supplier commits to comply fully with our specifications, in particular order documents for our contracts, thereby satisfying the agreed conditions for the supplied goods.
7.2 Deliveries made and services rendered by the Supplier must be made and rendered in accordance with generally accepted technical rules, including EN/DIN, VDE, VDI, CE, IEC, EMC, DVGW or other similar standards that may apply. In addition, deliveries made and services rendered by the Supplier must comply with all legal and official regulations on the day of delivery, including those protecting machinery and the environment, as well as all accident prevention regulations.
7.3 Goods are accepted subject to an inspection to ensure that they are free from defects, and in particular that they are also correct, complete and fit for purpose.
7.4 For all goods delivered or services rendered by the Supplier, our contractual and legal claims arising from defects expire after 36 months at the earliest, subject to any longer legal or contractual periods. This period begins from the date of delivery or after acceptance of the service or, if expressly agreed, from the manufacturing date clearly stated on the goods.
7.5 Our rights in relation to the Supplier in accordance with section 478 BGB remain unaffected. The right to claim reimbursement of expenses defined in section 478(2) expires three years after the goods have been delivered. The rights granted to us in relation to the Supplier in accordance with sections 437 and 478(2) BGB due to defects in a newly produced item sold to a consumer expire no earlier than six months after the point at which we have fulfilled the consumer's claims. This suspension of expiration ends no later than six years after the time when the Supplier delivered the item to us. Unless otherwise specified in separate agreements and contracts, the liability for defects shall be based on current legal regulations.
7.6 For any parts serviced or repaired within the period of limitation for our defect claims, the period of limitation re-starts at the point when the Supplier has fully met our claims for supplementary performance.
7.7 In urgent cases, or if the Supplier has not met their obligation for supplementary performance without delay, when new goods are delivered, and following prior agreement with the Supplier, we are entitled to remedy the defects ourselves or to arrange for defects to be remedied by a third party, or to procure a replacement from a third party. Any costs arising from this will be borne by the Supplier.
7.8 As a matter of principle, when returning any rejected goods we will deduct the costs from the value of the goods. Repaired and re-delivered goods fresh from the factory or replacements must be re-invoiced.
7.9 Goods rejected within the period of limitation for defect claims that have been installed in our products or are already with our customer or their end customer (failures in the field) will normally be removed by our service engineers or specialists without the Supplier’s prior agreement and returned to the Supplier, with a charge raised for the value of the goods. In addition, we are entitled to charge the Supplier any expenses arising for any such supplementary performance and to pass on to the Supplier any justified claims for costs of our customers directly connected to the rejected goods. Goods that have been repaired and suffer a failure in the field may not be returned to us. If the Supplier wishes to carry out supplementary performance for rejected goods that have failed in the field at our customer’s premises or at the end customer’s premises, this must be agreed with us.
7.10 The obligation to inspect the goods and give notice of any obvious defects is deemed to have been fulfilled by us if the notification of defects is issued in writing or via electronic data transmission within ten days of the goods being received or, if the defects are hidden, within ten days of them being discovered.
7.11 The Supplier guarantees the traceability of their deliveries and commits to provide us with all relevant information.
8.1 The Supplier is obliged to treat all business transactions and operational procedures that they or their employees become aware of while executing the contracts in relation to us as strictly confidential. The Supplier must expressly inform the employees it uses of their confidentiality obligations.
8.2 Documents (drawings, technical specifications, parts lists etc.), documentation and samples of any kind provided by us to the Supplier must be treated as strictly confidential, must only be used for contractual purposes, must be protected from misuse, and must be returned without having to be requested at the end of the contract with no right of retention.
8.3 Information acquired while executing contracts with us must not be used for any other purposes or passed to third parties. Any contraventions of this will entitle us to make compensation claims against the Supplier.
9. Product liability
If product liability claims are made against Neuberger, the Supplier is obliged to indemnify us against any such claims, provided and to the extent that the damage has been caused by a defect in a contractual object delivered by the Supplier. However, in cases of fault-based liability, this only applies if the Supplier is at fault. If the cause of the damage is the responsibility of the Supplier, they bear the burden of proof in this respect. In the abovementioned cases, the Supplier will cover all costs and expenses, including the costs of any legal action or product recall. In all other circumstances, statutory provisions apply.
10. Intellectual property rights
The Supplier is responsible for ensuring that their supplied goods or services, and their use by us, do not infringe any patents or other intellectual property rights of third parties. The Supplier shall indemnify us and our customers against all claims arising from the use of such intellectual property rights.
11. Force majeure
Force majeure, industrial disputes, operational interruptions that are not the fault of the operator, disturbances, official measures and other unavoiable circumstances shall entitle us – notwithstanding our other rights – to withdraw partially or fully from the contract, provided that the circumstances are not of negligible duration and that they result in a significant reduction in our requirement. The Supplier is obliged to inform us immediately of all circumstances that could impact their ability to meet the delivery schedule.
If there is a significant deterioration in the Supplier's commercial and financial circumstances, and in particular if an application is made for the opening of settlement or insolvency proceedings in relation to their assets, we shall be entitled to cancel the contract if the aforementioned circumstances jeopardise the execution of the contract. Accepting partial deliveries and services after one of the aforementioned circumstances has occurred does not affect the right to cancel the rest of the contract.
13. Severability clause
Contracts remain valid even if individual provisions prove to be invalid. The provision in question must then be interpreted in such a way that its original intended commercial and legal objectives are achieved as far as possible. This does not apply if adhering to the contract would result in unacceptable hardship for one of the parties.
14. General provisions
14.1 The place of jurisdiction is Ansbach, Germany and/or Zurich, Switzerland.
14.2 German law applies exclusively for the contractual relationship, without giving effect to the principles of conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
1. General – Scope of application
1.1 The following general delivery and payment conditions of the Supplier apply to all deliveries and services. No other terms and conditions of the purchaser will be recognised, unless we have expressly agreed to their validity in writing.
1.2 Our general delivery and payment conditions only apply for companies, legal persons under public law and public law entities with public funds.
1.3 Electronic data processing is used to conduct business relationships and to process business transactions. The customer agrees that the Supplier will gather and process the data required for this purpose and use it to conduct business relationships and process business transactions.
2.1 The Supplier’s quotation is non-binding. The order is only considered to have been accepted when it has been confirmed in writing by the Supplier. Any additions, amendments or ancillary agreements, whether communicated by wire transfer, by phone or verbally, must be confirmed in writing by the Supplier in order to be valid.
2.2 Documents relating to the quotation, such as illustrations, drawings and weight specifications, are only approximate unless they have been specifically identified as binding. The same applies to performance and consumption specifications. The Supplier retains ownership and copyright over cost estimates, drafts, drawings, calculations and other documentation; these must not be copied or made accessible to third parties.
2.3 We reserve the right to make design and construction modifications.
3. Prices and payment
3.1 Unless otherwise agreed, the prices are for delivery to the customer's location, provided that this is in Germany. For deliveries up to the net invoice value of EUR 250 within Germany, there will be an additional charge for packaging and carriage. For deliveries from Germany to an address abroad, the customer will bear the costs of shipping and transport insurance. Surcharges for express deliveries etc. of any kind are borne by the recipient. Our prices are net, i.e. the current statutory level of VAT is charged in addition.
3.2 Changes to the rate of sales tax shall entitle us to adjust our prices in accordance with the change made to sales tax.
3.3 Unless otherwise agreed, payment must be made in cash and in full to the Supplier's stated account within 14 days of the invoice date.
3.4 Payments to representatives without written collection authorisation are not permitted.
3.5 The customer's outstanding payments cannot be offset against other claims, unless they are undisputed or legally valid.
3.6 Where contracts have an agreed delivery period of more than four months from the conclusion of the contract, the Supplier reserves the right to increase prices in line with increases in wage costs or material prices. If the increase is more than 5% of the agreed price, the customer is entitled to cancel the contract.
4.1 If the customer does not meet their payment obligations, ceases their payments or does not honour a bill of exchange or cheque, or if the Supplier becomes aware of a significant deterioration in the customer’s financial circumstances that jeopardises their ability to pay the Supplier, the entire remaining debt shall become due, even if bills of exchange with a later maturity date are pending. If the entire remaining debt is not paid immediately, the customer shall lose their right to use the supplied goods. The Supplier is entitled to either reclaim the supplied goods without renouncing their claim until full payment has been made, or to withdraw from the contract. If the supplied goods are removed, all costs are to be borne by the customer. Following the cancellation of the contract, the customer shall compensate the Supplier for the use of the supplied goods, any reduction in value, even that for which it is not responsible, as well as any profits lost by the Supplier.
4.2 If the goods have not been accepted and a grace period has lapsed and the customer is still in default, the Supplier can withdraw from the contract without issuing a refusal of service warning and claim compensation of 15% of the order value. The customer is always at liberty to prove that minimal or no damages have been incurred by the Supplier. The Supplier also reserves the right to claim for higher damages.
5. Delivery date
5.1 The delivery period starts when our order confirmation is received by the customer, but not before the documents, authorisations and approvals to be procured by the customer have been provided and not before any agreed prepayment has been made.
5.2 The delivery period is considered to have been met if the supplied goods have left the factory or the notice that they are ready for dispatch has been issued before the end of the period.
5.3 The delivery period will be appropriately extended in the event of operational disruptions due to workplace disputes, particularly strikes or lockouts, and in the event of any unforeseen obstacles that are outside the Supplier’s control, such as other types of operational disruptions, rejected parts, delays in the delivery of essential raw and construction materials, and anything else that hinders the completion or delivery of the goods to be supplied. The same applies if these circumstances arise at any of the Supplier’s subcontractors. The above does not apply if these circumstances only arise when the Supplier is already in default.
5.4 Compensation for not meeting a binding, agreed deadline is limited to standard, foreseeable damages and shall only arise if we are responsible for the deadline not being met. In the event of ordinary negligence, claims for compensation of damages caused by delay are limited to 5% of the agreed order price.
5.5 In order for the delivery period to be complied with, the customer must also fulfil their contractual obligations.
5.6 In the event of any shipment delays or if any storage is required that is requested by the customer or is required for other reasons for which the customer is responsible, any costs incurred or appropriate costs will be charged.
6. Transfer of risk
6.1 Risk is transferred to the customer when the goods are handed over and when the goods are unloaded onto the ground or the delivery ramp at the customer's premises. If the customer has specified a delivery location in Germany, then the risk is transferred to the customer when the goods arrive at this location.
If the delivery location is outside Germany, then the risk is transferred to the customer when the goods are handed over to the courier or carrier.
6.2 If the shipment is delayed due to circumstances for which the Supplier is not responsible, the risk is transferred to the customer from the day that the shipment is ready for dispatch and this has been communicated to the customer.
7. Installation and after-sales services
7.1 Installation and after-sales services are charged separately unless otherwise agreed. Costs include, in particular, the travel expenses, accommodation allowance and hours worked for installation personnel including any statutory surcharges for overtime and any hours worked overnight, on Sundays and on public holidays. If work is delayed for reasons for which the Supplier is not responsible, the customer will bear all costs for waiting time and any further travel that is required.
7.2 Flat rates agreed for installation and after-sales services do not include surcharges for overtime and any hours worked overnight, on Sundays and on public holidays if these have been stipulated by the customer or are required for reasons for which the customer is responsible. An additional charge can be made in this case.
7.3 Installation and commissioning work must be carried out by the Supplier with the required trial operation and then inspected immediately. If there are any delays in the installation or commissioning procedure for which the Supplier is not responsible, the risk is transferred to the customer at this point.
8. Liability for defects
8.1 The Supplier’s liability is limited to its delivery or service and does not extend to the whole system.
8.2 For commercial sales with traders as per the HGB [Handelsgesetzbuch, German Commercial Code], section 377 HGB shall apply.
8.3 The limitation period for claims for defects is twelve months, unless a different limitation period is specified in section 438(1)(2) BGB or section 634a(1)(2) BGB.
8.4 Drawings, illustrations and specifications of weights and dimensions are only intended as a guide. They are not guaranteed characteristics unless other expressly agreed in writing.
8.5 No liability is assumed for damages that arise for the following reasons:
- Incorrect operation of the system due to a failure to observe the operating instructions;
- Incorrect installation or commissioning by the customer or a third party, or defects in the supply cables, provided that these were not installed by the Supplier;
- Effects caused by parts of third-party origin that were not procured by the Supplier;
- Damages caused by continued use despite the discovery of a defect.
8.6 In the event of a justifiable claim for defects, at its discretion the Supplier can either repair the defective item or provide a replacement to the customer in exchange for the rejected part.
8.7 Replaced parts become the property of the Supplier.
8.8 If the Supplier carries out any repairs, this does not constitute the acceptance of any obligation on their part to remedy the defect.
8.9 If repairs are carried out when there is no legal obligation to do so, there will be no warranty unless this has been agreed in writing.
8.10 Repairs or additional deliveries by the Supplier do not result in the customer's limitation period for warranty claims being either suspended or re-started.
8.11 Unless expressly agreed in writing, the Supplier cannot guarantee that the equipment it delivers complies with foreign regulations.
9.1 Unless otherwise agreed below, our liability for damages – particularly in the event of a fault in contractual negotiations, other breaches of obligation or fraudulent claims for compensation of property damage in accordance with section 823 BGB and immediate or subsequent damage, including lost profits – is limited to the amount covered by our liability insurance. We can provide details of the amount covered by our liability insurance on request.
9.2 In the event of ordinary negligence in the infringement of essential contractual obligations, which must be fulfilled in order for it to be actually possible to execute the contract and which the contractual partner can normally trust will be fulfilled (known as material contractual obligations), our liability for further claims is limited to the foreseeable damage that may typically occur under this type of contract.
9.3 Other than this, we are not liable for any immediate or subsequent damage, and especially not for lost profits, except in the event of malicious intent or gross negligence.
9.4 Points 9.1 to 9.3 do not apply in the event of malicious intent and gross negligence by us, a legal representative or a vicarious agent.
9.5 Our liability in accordance with the provisions of the Produkthaftungsgesetz [German Product Liability Act] remains unaffected by the provisions stated in points 9.1 to 9.3 above. Furthermore, points 9.1 to 9.3 above do not apply in the event of culpable injury to life, limb or health or in the event of a breach of warranty by us, our legal representative or a vicarious agent.
10. Supplier's right to cancellation
10.1 In the event of unforeseen events as per point 5.3, insofar as they have an economic impact and considerably alter the content of the service or have a significant impact on the Supplier’s business operations, and if it subsequently transpires that it is impossible for the contract to be carried out, either in full or to a significant extent, the contract will be amended appropriately. Where this is not possible or not economically feasible, the Supplier is entitled to withdraw from the contract in full or in part. The Supplier must inform the customer as soon as they become aware of the circumstances that will result in the cancellation.
10.2 The customer is not entitled to claim compensation in the event of this type of cancellation.
11. Reservation of title
11.1 Supplied items remain the property of the Supplier until full payment has been received. We retain ownership of the supplied goods until fulfilment of all claims – including those arising in the future – that we have against the customer as a result of the business relationship.
11.2 The customer can sell on or process the supplied goods as part of normal business transactions unless they have already assigned the claim against their contractual partner to a third party in advance, or have agreed a non-assignment clause. As security for the fulfilment of our claims as per points 11.1 to 11.5, the customer assigns to us all claims, including those that arise in future, in the amount of the final invoice amount including VAT arising from a subsequent sale of our goods with all ancillary rights up to the value of our goods. We hereby accept the customer's notice of assignment.
11.3 If goods subject to reservation of title are installed as significant components on the customer’s premises, the customer hereby assigns to the Supplier the claims arising from the sale of the premises or claims arising from property rights in the amount of the invoice value of the goods subject to reservation of title, including all ancillary rights.
11.4 If the goods subject to reservation of title are installed by the customer, or on their behalf as significant components on the premises of a third party, the customer hereby assigns to the Supplier all claims for payment against the third party or any party to whom it may apply, for the amount of the invoice value of the goods subject to reservation of title, including all ancillary rights.
11.5 If the goods subject to reservation of title are processed, linked or mixed with other goods by the customer, the Supplier has co-ownership of the new item proportionate to the invoice value of the goods subject to reservation of title in relation to the value of the other goods.
11.6 The Supplier's reservation of title is therefore conditional to the extent that when full payment of all its claims has been made, ownership of the goods subject to reservation of title immediately passes to the customer and the assigned claims are now theirs.
11.7 The Supplier is obliged to release the securities insofar as these securities exceed the value of the Supplier's claims to be secured by 10%.
11.8 The customer must neither pledge the supplied item nor use it as security. The customer shall notify the Supplier without delay in the event of seizure, confiscation or other orders by third parties. The customer shall bear the cost of interventions.
11.9 The Supplier is entitled to demand the return of goods subject to reservation of title if the customer does not meet their payment obligations. The enforcement of the reservation of title and seizure of the supplied goods by the Supplier do not constitute cancellation of the contract.
12. Place of fulfilment and jurisdiction
12.1 The place of fulfilment for all obligations arising from this contractual relationship is 91541 Rothenburg ob der Tauber, Germany.
12.2 Written notifications to the Supplier as stipulated in these delivery and payment conditions must be sent directly to the Supplier's registered office in 91541 Rothenburg ob der Tauber, Germany. Notifications sent to representatives are not valid.
12.3 If the customer is acting as a trader as per the HGB, a legal person under public law or a public law entity with public funds, then the place of jurisdiction is the location of the registered office of Neuberger Gebäudeautomation GmbH. However, the Supplier is also entitled to institute proceedings against this kind of customer at the customer’s general place of jurisdiction.
13. Applicable law
13.1 German law applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods and international private law.
14. Binding nature of the contract
14.1 The contract remains binding even if one or more of the provisions or clauses in the general delivery and payment conditions prove to be legally invalid. The omission created by the loss of the invalid provision shall be filled in all good faith and in accordance with the spirit of the contract.
Rothenburg ob der Tauber, July 2020
Neuberger Gebäudeautomation GmbH
Neuberger Gebäudeautomation AG