General Terms and Conditions of Sale and Delivery of ZS-Handling GmbH
1.1 The offers and contracts of ZS-Handling GmbH (hereinafter “ZSH”) regarding the development, manufacturing, customization and delivery of ZSH products and other services that are provided by ZSH are based solely on the following General Terms and Conditions of Sale and Delivery.
1.2 General and other terms and conditions of business of the respective customer only apply if and to the extent that their validity is explicitly recognised in writing by ZSH.
2. CONCLUSION OF CONTRACT
2.1 The contract with the respective customer does not enter into force until the issuing of a written order confirmation by ZSH or a delivery of the respective ZSH product by ZSH initiated by the customer. Any prior declarations by the customer, in particular letters of confirmation, are merely deemed to be an offer to conclude a contract.
2.2 Unless otherwise agreed in writing, all offers, the documents forming part of the offers such as illustrations, drawings and performance information, price lists and other documents of ZSH are not legally binding. The descriptions in the written order confirmation from ZSH are exclusively decisive for the definition of the quality and condition of a ZSH product or a service to be provided by ZSH.
2.3 ZSH reserves the right to make changes to the ZSH products in the course of technical progress. Unless otherwise agreed, ZSH reserves the ownership rights and copyrights to all cost estimates, drawings and other documents. Such documents may not be made accessible to third parties. Drawings and other documents forming parts of offers are to be returned immediately at the request of ZSH.
3. SUBJECT OF THE CONTRACT, OBLIGATIONS of the PARTIES
3.1 The respective specific subject of contract is set forth in the customer’s order and the respective corresponding order confirmation by ZSH. The services of ZSH can include in particular:
3.1.1 Supply of standardised ZSH products that do not require any individual customization for the respective customer (hereinafter “Standard ZSH Products”).
3.1.2 Manufacturing and supply of standardised ZSH products that are individually customized for the respective customer requirements (hereinafter “Adapted ZSH Products”).
3.1.3 Development, manufacturing and delivery of individual products and solutions (hereinafter “Individual ZSH Products”).
3.1.4 Installation and putting intooperation of Standard, Adapted or Individual ZSH Products (hereinafter “ZSH Installation”).
3.2 In case of Adapted and Individual ZSH Products, the customer shall provide ZSH at the latest at the time of its order with the necessary product requirements in a format corresponding to the industry standard. The customer is entitled to change and adapt the product requirements at any time up until the delivery of the Adapted or Individual ZSH Product intended for the customer. Any change and adaptation requires written consent from ZSH to be valid. ZSH will inform the customer about the possible change in the remuneration and the manufacturing, delivery and installation deadlines and obtain the consent from the customer regarding the adaptation of the remuneration and of the deadlines. Additional effort and additional costs that are associated with the changes and adaptations of the customer will be invoiced to the customer. If the customer should not agree to the changes, ZSH is not obligated to carry out the changes to the product specifications. ZSH is entitled to invoice the costs for checking the feasibility of the customer’s change requirements to the customer.
3.3 In the event of delivery of Adapted and Individual ZSH Products, ZSH, together with the customer, will carry out a run-off test of the corresponding ZSH product after delivery and installation (if applicable).
3.4 If a ZSH Installation is ordered, the customer is obligated to perform certain cooperation obligations. These include: free access for ZSH employees to the areas concerned, provision of an even, surfaced floor and assurance of a certain floor load-bearing capacity, provision of necessary conveyor equipment and transportation aids (e.g. forklift trucks), provision of an electricity and internet connection and, if applicable, special work clothing and personal protective equipment (e.g. cleanroom clothing, laser protection goggles). The parties will agree on further obligations of cooperation within the course of the order process.
If the customer fails to meet its obligations of cooperation, ZSH is entitled to terminate the contract after the expiry of an appropriate period set by ZSH to meet these obligations of cooperation. In addition, ZSH is entitled to invoice the customer for any additional expenses incurred by ZSH (e.g. if it has to travel out again).
4. REMUNERATION, ADAPTATION OF REMUNERATION, COMPENSATION IN CASE OF TERMINATION
4.1 Unless otherwise agreed in writing, the remuneration is net ex works exclusive of statutory sales tax. The remuneration is to be paid without any deductions. Any special payments associated with the payment of the remuneration (e.g. bank fees, currency exchange fees, etc.) are to be paid by the customer. The currency is Euros. The taking back and disposal of packaging is to be agreed separately.
4.2 The remuneration for ZSH Installation is based on the assumption that the information provided by the customer within the course of the order, in particular regarding the nature, quality and condition of the place of installation, is correct and that all collaboration obligations to be met by the customer and named in the order confirmation are properly met (e.g. regarding the provision of the necessary line connections for ZSH products). If the information from the customer should be incorrect or the obligations of cooperation have not been properly fulfilled by the customer and if higher costs are incurred as a result during the ZSH Installation, ZSH is entitled to invoice the customer for these costs separately.
4.3 If the customer makes use of its right of termination pursuant to Section 649 of the German Civil Code ("Bürgerliches Gesetzbuch"), ZSH can, instead of the claims arising from Section 649 of the German Civil Code ("Bürgerliches Gesetzbuch"), invoice the services provided up to the termination and also demand as compensation for the other expenses and the loss of profits, a flat rate of 10% of the remuneration of the services not yet carried out. The customer’s right to prove that the amount to which ZSH is entitled pursuant to Section 649 of the German Civil Code ("Bürgerliches Gesetzbuch") is considerably lower than the above lump sum, remains unaffected.
5. TERMS AND CONDITIONS OF PAYMENT
5.1 Unless otherwise agreed, the agreed remuneration for the development, manufacturing, delivery and installation of ZSH products will be invoiced as follows:
5.1.1. 30% of the entire remuneration (delivery and installation, if applicable, development and manufacturing): on order confirmation from ZSH;
5.1.2. 60% of the entire remuneration on written confirmation from ZSH (email is sufficient) that the ZSH product is ready for delivery;
5.1.3. 10% of the entire remuneration on delivery of Standard ZSH Products or after the run of the acceptance test in the case of Adapted and Individual ZSH Products).
The parties can agree a different regulation within the framework of the respective order. Unless otherwise agreed, ZSH is entitled to issue the invoice in electronic form.
5.2 The respective remuneration parts described in Clause 5.1 are each to be paid without any deduction within 14 days after receipt of the invoice.
5.3 In the event of arrears in payment, arrears interest of 9 percentage points above the respective base rate of interest will be owed.
5.4 The compliance of contractually agreed development, manufacturing and delivery deadlines requires, in particular, the fulfilment of the contractually agreed obligations of cooperation or advance performance and of the other contractual obligations of the respective customer (in particular: preparation of the place of installation of the ZSH products; provision of necessary line connections). If the customer is in arrears with the performance of its obligations of cooperation or advance performance or of its other contractual obligations, in particular payment obligations from prior contractual relationships, ZSH can exercise its right to refuse performance.
5.5 With the delivery of Standard ZSH Products, an offsetting or retention on the part of the customer is only permitted due to undisputed or legally established counterclaims of the customer.
6.1 The ZSH products will be delivered EXW (Incoterms 2010). In the event of import into non-EU countries, the customer takes over the organisation of the import.
6.2 Delivery will be done after full payment of the first and second instalment of the total invoice (clauses 5.1.1 and 5.1.2).
6.3 All deadlines named by ZSH, in particular delivery and installation deadlines, are only binding if they have explicitly become the content of the contract that has come into effect with the customer. The expiry of the binding deadlines entitles the customer to file the statutory rights to which it is entitled, subject to the corresponding restrictions in these General Terms and Conditions of Sale and Delivery, but only after the expiry of an appropriate period for remedy set by it to no avail.
6.4 Contractually agreed delivery and installation deadlines are extended appropriately in the event of force majeure (e.g. all kinds of disruptions to operations, difficulties in the procurement of material and energy, transport delays, strikes, lawful lock-outs, shortage of labour, energy or raw materials, difficulties in the procurement of necessary regulatory permits, regulatory measures or the lack of, or incorrect or untimely delivery by suppliers) and all other obstacles that are not the responsibility of ZSH that have a fundamental influence on the material contractual obligations of ZSH.
6.5 If the dispatch of the ZSH products is delayed at the request of the respective customer, ZSH can invoice, from the point in time when the goods are ready for dispatch, the costs resulting from the storage, but in the case of storage at ZSH at least 0.5% of the invoice amount for each commenced storage period of four weeks.
6.6 ZSH is entitled to make partial deliveries if the partial delivery can be used by the customer within the course of the designated contractual purpose, the delivery of the remaining goods is ensured and the customer does not incur any considerable additional effort or additional costs as a result.
6.7 The customer ensures that the ZSH products ordered by it are not subject to any import restrictions in its country.
7. TRANSFER OF RISK
7.1 The risk is transferred to the customer at the latest with the dispatch of the ZSH products by ZSH (in case of ordered ZSH Installation, as well) and irrespective of whether ZSH takes over the sending itself or commissions a third party with it or makes use of the services of a third party.
7.2 If the delivery is delayed at the customer’s request, the risk is transferred to the customer from the date when the readiness of dispatch is notified.
7.3 Any deliveries will only be insured by ZSH against theft, breakage, transport, fire and water damage or other insurable risks at the explicit, written request from the customer and at the latter’s cost.
8. RETENTION OF TITLE, NON-ASSIGNMENT
8.1 ZSH reserves title to the delivered ZSH products until full receipt of the contractually agreed payments on claims of ZSH arising from the underlying contract (delivery and any installation of ZSH products) and any business relationships with the customer preceding this contract regarding similar ZSH products, including statutory claims. The customer is obligated to label the ZSH products not yet owned by it accordingly.
8.2 The customer may use the ZSH products under retention of title and resell them in ordinary business transactions if the customer is not in arrears with payment. However, the customer may not pledge the ZSH products under retention of title, or transfer them as collateral. The remuneration claims by the customer against its customers arising from a resale of the ZSH products under retention of title and the claims of the customer with regard to the ZSH products that arise from other legal grounds against its customers or third parties (in particular receivables from unlawful action and claims to insurance services) including all balance receivables from current accounts are already now assigned by the customer in full as collateral to ZSH.
8.3 The customer may collect these receivables assigned to ZSH for its account in its own name for ZSH, as long ZSH does not revoke this authorisation. The right of ZSH to collect these receivables itself remains unaffected; however, ZSH will not assert the claims itself and will not revoke the authorisation to collect, as long the customer meets its payment obligations properly.
8.4 If, however, the customer acts in a manner contrary to contract, in particular if it has fallen into arrears with the payment of a remuneration receivable, ZSH can request from the customer that it notifies the assigned receivables and the respective debtors to ZSH, notifies the respective debtors of the assignment and hands over to ZSH all documents and provides all information that ZSH requires to assert the claims.
8.5 A processing or transformation of the ZSH products under retention of title by the customer is always carried out for ZSH. If the ZSH products under retention of title are processed with other items that do not belong to ZSH, ZSH acquires co-ownership of the new item in the ratio of the value of the ZSH product (final invoice amount including the sales tax) to the other processed items at the time of processing. Apart from that, the same applies for the new item resulting from the processing as for the ZSH products under retention of title.
If the ZSH products under retention of title are inseparably combined or mixed with other items not belonging to ZSH, ZSH acquires co-ownership of the new item in the ratio of the value of the ZSH products under retention of title (final invoice amount including sales tax) to the other combined or mixed items at the time of combination or mixing. If ZSH products are combined or mixed so that the customer’s item is to be seen as the main item, the customer and ZSH are already in agreement now that the customer will transfer proportionate co-ownership of this item to ZSH.
8.6 If, in the case of conduct by the customer in breach of contract, in particular with arrears in payment, ZSH withdraws from the contract, ZSH is entitled to take back the ZSH products not yet owned by the customer at the customer’s cost and/or to demand compensation from the customer. This does not affect other claims of ZSH.
8.7 The customer must notify ZSH immediately in writing of any attachments, confiscations or the conducting of enforcement measures. The costs of asserting and enforcing the claims of ZSH with regard to the ZSH products not yet owned by the customer will be borne by the customer.
8.8 If the value of the existing securities exceeds the receivables of ZSH towards the customer from the underlying contract and any business relationships preceding this contract regarding similar products between ZSH and the customer by more than 20%, ZSH is obligated at the customer’s request, to release corresponding securities at the free discretion of ZSH.
9.1 The subject of the contract is solely the ZSH product and the ZSH service with the properties and features and the designed purpose pursuant to the individual contractual agreement and the product description forming the basis for the individual contract with the customer.
9.2 Other or further properties and/or features and/or an additional designated purpose are only deemed to be agreed if they are explicitly confirmed by ZSH in writing. Unless otherwise explicitly agreed by contract between ZSH and the customer, the attached product description and the individual contractually agreed quality do not constitute any assumption of a guarantee with regard to quality or durability pursuant to Section 443 of the German Civil Code ("Bürgerliches Gesetzbuch").
9.3 In the case of warranty, free-of-charge subsequent fulfilment (subsequent improvement or new delivery) will be done at the choice of ZSH. ZSH is entitled to carry out the warranty, where possible, by means of remote access to the corresponding ZSH product. ZSH is also entitled to carry out any subsequent fulfilment services by local contractors.
9.4 If the subsequent fulfilment fails definitively within an appropriate period for remedy, the customer can demand the proportionate reduction of the remuneration (reduction) or withdrawal from the contract. Parts removed from the sold and transferred ZSH product in the event of warranty automatically become the property of ZSH, which the contractual parties already agree upon when the contract is concluded.
9.5 ZSH is entitled to refuse the subsequent fulfilment in its entirety if it only entails disproportionate costs or is impossible for other reasons. Further rights of the customer remain unaffected.
9.6 Except in the case of wilful intent and gross negligence on the part of ZSH, the warranty period is one year and commences with the delivery to the customer or another delivery addressee named by it; if an acceptance test is required (Adapted and Individual ZSH Products), from the time of the acceptance test.
9.7 The warranty lapses for defects and damage that are due to circumstances that occurred after the transfer of risk and are not the responsibility of ZSH. The same applies for the event of a delay in acceptance.
9.8 Warranty is excluded if obvious defects are not reprimanded immediately, with discernible defects, however, at the latest within 14 days after delivery of the ZSH product, in writing, indicating the order number and attaching a test or error record.
10.1 In the event of wilful intent and gross negligence, ZSH's liability is unlimited.
10.2 In the case of slight negligence, ZSH is only liable
a) for damages resulting from injury to life, body or health,
b) for damages arising from the breach of a material contractual obligation (i.e. an obligation whose fulfilment makes the proper execution of the contract possible in the first place and in whose compliance the contractual partner regularly trusts and may trust); in this case, however, liability is restricted to the compensation of the typical, foreseeable damage.
Limitations in liability resulting from the clause above do not apply if ZSH has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. The same applies for claims of the customer according to the German Product Liability Act ("Produkthaftungsgesetz").
Further liability on the part of ZSH is excluded.
10.3 In the course of manufacturing of Adapted and Individual ZSH Products according to customer drawings, samples and other instructions of the customer, ZSH does not assume any guarantee or liability for the functional capability, to the extent as the lack of such functional capability is not the fault of ZSH.
11. PROTECTIVE RIGHTS AND INFRINGEMENT OF PROTECTIVE RIGHTS
11.1 All existing registered and non-registered protective rights to and know-how about ZSH products and ZSH services remain with ZSH. This also applies for any protective rights and know-how that arise during the development and manufacturing of Adapted and Individual ZSH Products. The customer is not entitled to use any drawings or information provided to it that relate to registered and non-registered protective rights and know-how of ZSH for purposes outside of this contract (e.g. own production of parts and accessories).
11.2 If, after the valid conclusion of this contract between ZSH and the customer, claims due to infringement of protective rights are asserted against the customer by third parties and if the usage of ZSH products is impaired or prohibited as a result, ZSH will change or replace the ZSH products at its own discretion within an appropriate period of time so that they no longer infringe the protective rights of third parties but nevertheless correspond to the contractually agreed quality. ZSH is entitled to rescind the contract concluded with the customer instead of the aforementioned procedure and to take back the ZSH products in return for reimbursement of the remuneration paid by the customer after deduction of an appropriate usage fee for the time during which the customer had the contractual products in its possession.
11.3 If claims are raised against the customer by third parties due to an alleged infringement of protective rights by ZSH products, the customer must leave the decision regarding the conducting of resulting disputes solely to ZSH. In particular, the customer may not conclude any settlement or make other concessions without prior written consent from ZSH. ZSH bears all the costs for any legal dispute that may become necessary.
11.4 A liability on the part of ZSH due to infringements of protective rights lapses if ZSH products were used in a form not authorised by ZSH.
11.5 In the case of delivery of Adapted and Individual ZSH Products that were manufactured according to customer specification, the customer guarantees that these customer specifications do not infringe any protective rights of third parties. If claims are asserted against ZSH in this regard by third parties, the customer is obligated to indemnify ZSH against claims of third parties due to breaches of protective rights insofar as these claims of third parties are attributable to the customer specifications.
The customer is obligated to treat all information that is provided or becomes known to it in connection with the contract (in particular regarding the performance, quality or construction) with regard to the ZSH products as confidential.
13. OTHER PROVISIONS
13.1 In cases of doubt, the provisions of these General Terms and Conditions of Sale and Delivery remain binding in their other parts even if individual provisions are legally invalid. The parties undertake to replace invalid provisions by provisions that come as close as possible to the intended commercial outcome. The same applies for any gaps in the contract that may exist.
13.2 Amendments or supplements to these General Terms and Conditions of Sale and Delivery as well as confirmed orders must be made in writing. This also applies for any changes to this written form clause.
13.3 The contract concluded between the parties is governed solely by the law of the Federal Republic of Germany under the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
13.4 In the event of disputes relating to the contract concluded between the parties, Regensburg Regional Court is solely responsible. Irrespective of this, ZSH is entitled to file a lawsuit at the customer’s venue.
13.5 Instead of by the ordinary courts and at its own discretion, ZSH is entitled to have disputes that arise from or in connection with the contract, including all questions relating to its existence, validity or termination decided by arbitration proceedings in Paris pursuant to the arbitration court regulations of the International Chamber of Commerce (“ICC”). The court of arbitration is to consist of 3 arbitration judges. The language of the arbitration proceedings is English. In the event of the customer intending to file a lawsuit, ZSH is obligated at the customer’s request to make a choice regarding the contacting of the arbitration court within an appropriate period set by the customer. If ZSH does not make any decision within the appropriate period set by the customer, or if ZSH decides against contacting the court of arbitration, the right of ZSH to call upon the court of arbitration expires.