GENERAL TERMS AND CONDITIONS OF SALE, SUPPLY AND PAYMENT (for dealers inside Germany)
- 1. In order to ensure the appropriate use of our products by the end consumer our products shall only be sold through individual consultation in which the functionality of our products as well as the specific requirements of the end consumer is discussed. The below mentioned General Conditions of Sale, Supply and Payment (hereinafter referred to as “GCSSP”) only apply to commercial distributors (hereinafter referred to as “customer”). We expect that our customers shall only sell our products to end consumers after a detailed consultation.
- 2. We operate, supply and act in principle only on the basis of the below mentioned GCSSP unless expressly agreed to otherwise in writing.
- 3. Our GCSSPs apply exclusively to all the current and future business transactions with our customers even if no specific reference is made to our GCSSPs in subsequent contracts. Any opposing or GCSSPs of the customer at variance with our GCSSP shall not be acknowledged by us unless we would have expressly agreed to their applicability in writing. Any references made by our customers to their Terms and Conditions are herewith opposed. Our GCSSPs also apply if we make deliveries to our customers knowing that the Terms and Conditions of our customers oppose or are at variance with our GCSSPs and the supply is accepted without reservation by the customers; our GCSSPs shall be deemed as accepted once the customers accept the goods without reservation.
- 4. Our GCSSPs shall apply to all contracts, supplies and other deliverables including consultancy services to companies as defined by Section 310 (1) BGB (German Civil Code), i.e. persons or partnerships with legal capacity which enter into transactions in the exercise of a trade or independent professional activity. They shall not apply if the customer is an end consumer.
- 5. Written and oral orders as well as oral agreements or oral ancillary agreements are binding on us only if they have been confirmed by us in writing or through the sending of goods and are in accordance with the agreed arrangements. Furthermore, our offers are non-binding.
2. Product characteristics, samples and guarantees
- 1. Unless agreed to otherwise the characteristics of our goods are described in our product specifications.
- 2. Characteristics of samples shall only be binding if they are expressly agreed to as being characteristics of the goods.
- 3. Information regarding characteristics and durability and other information shall only be regarded as guarantees once they are agreed and designated as such.
3. Prices and payment terms
- 1. Unless otherwise agreed to in the order confirmation, our prices apply ex Tachov/Czech Republic. The purchase price excludes statutory value added tax as well as packaging, shipping and insurance costs as well as customs and other government duties.
- 2. Our supplies and services are in principle provided on the basis of the prices valid at the time of order placement. Should we change our prices or payment terms of the product supplied between the date of contract conclusion and the date of delivery we shall be entitled to apply the prices or payment terms valid on the date of delivery. In the event of a price increase, the purchaser shall be entitled to withdraw from the contract within 14 days after notification of a price increase.
- 3. Unless otherwise agreed to in the order confirmation, invoices shall be due for payment on receipt without deduction. A discount of 3% on the net value of the goods shall be granted if payment is made within ten days from date of invoice. If payment is made in advance or cash on delivery 3% may also be deducted. The aforementioned discounts may however only be deducted if all invoices due at the time of payment have been settled.
- 4. All payments shall always be first credited to interest and costs and thereafter to our oldest outstanding receivables even if the customer has stipulated otherwise.
- 5. If bills of exchange are accepted as payment based on an underlying express written agreement any discounting and bank charges shall be borne by the purchaser. We cannot guarantee timely presentation or protest.
- 6. If payment is made later than thirty days after due date and receipt of invoice or similar payment demand, the outstanding receivable shall attract interest of eight percentage points above the respectively applicable base interest rate (Section 247 BGB). If a higher interest rate can be charged for other legal grounds this shall be paid by the customer. At the same time, the assertion of further damages is not excluded.
- 7. We shall not be obligated to make further deliveries from current contracts prior to having received full payment of amounts due including interest and any costs incurred.
- 8. Offsetting and the assertion of retention rights shall only be possible against our receivables if the counterclaims are legally established, uncontested or recognised by us.
- 9. If price reductions have been granted by us in individual cases these shall not form a basis for being binding on future deliveries. This shall in particular apply if the customer which was granted a reduction in price misuses this reduction by reselling the goods significantly below the normal selling price.
4. Delivery and acceptance
- 1. The order confirmation shall be decisive for the scope of the supply and the delivery date. Unless agreed to otherwise in the order confirmation, delivery is agreed ex Tachov/Czech Republic whereby the delivery period stated by us shall only commence once all (technical) questions as well as the scope and financial modalities of the delivery have been clarified. The delivery date shall be the date of shipment ex works. Timely and proper fulfilment of obligations by the customer is required for adherence to our delivery obligation including the completion of the previous delivery. We reserve the right to objection for non-performance of contract.
- . 2. Should there be any justified reason to doubt the payment capacity or creditworthiness of the customer (which shall also in particular be indicated by a payment delay by the customer) we shall, without prejudice to our other rights, be entitled to demand collateral or payments in advance for outstanding payments and deliveries, demand immediate satisfaction of all claims from the business relationship, or to withdraw from contracts after setting an appropriate period of grace or to demand compensation for damages. We shall in particular be entitled to terminate a contract without notice if an application is made for the opening of insolvency proceedings over the assets of the customer.
- 3. We shall inform customers promptly should we not be able to adhere to the agreed delivery date for reasons beyond our control, in particular in the case of force majeure events, operational disruptions, strikes, lockouts, energy supply problems or if our suppliers should not deliver in time without the delay being our fault. At the same time, the delivery period shall extend by the duration of such measures and impediments including the associated contractual obligations. If it can be foreseen that the delivery cannot be made by us within a reasonable period of time, however, not more than four months after the original delivery date, both ourselves and customers shall be entitled to withdraw (in whole or in part) from the contract; any damage claims in this regard shall be excluded. Should the reasons for the impediment already be evident to us on contract conclusion we shall not be entitled to withdraw.
- 4. Should a customer enter into acceptance default or culpably violate other cooperation obligations, we shall be entitled to demand damage claims as well as reimbursement of any additional costs incurred therein. At the same time, the risk of incidental destruction or incidental deterioration of the purchase item shall, in this case, pass to the ordering party at that point in time in which same enters into acceptance or debtor default. We reserve the right to assert further claims.
- 5. Should we enter into default, customers may set us an appropriate period of grace of at least two weeks with the declaration that the customer shall reject acceptance of the good or service after this period. Should the delivery not be made within this period of grace, the customer shall be entitled to withdraw from the contract.
- 6. Our liability in accordance with the statutory provisions shall remain unaffected if the delivery delay is based on a culpable intentional or grossly negligent contractual violation by ourselves. The liability for compensation of damages is however limited to the expected damages sustained which are typical for this type of contract.
5. Shipping, shipping costs and insurance, passing of risk
- 1. Unless otherwise agreed to in the order confirmation, delivery is agreed “ex Tachov/Czech Republic”; in this regard all shipments shall be shipped at the risk of the customer. We shall be entitled to make partial deliveries. The transport costs shall be borne by the customer. Transport and all other packaging shall not be taken back with the exception of pallets. The customer is obligated to ensure disposal of the packaging at its own cost. If so desired by the customer, we shall cover the delivery with a transport insurance policy; any costs incurred therein shall be borne by the customer. We shall select the mode and type of shipment subject to special agreements. Customer requests shall, if possible, be taken into account without changing the place of performance and without the customer gaining a right to a certain type of shipment thereby. For invoices below EUR 200.00 we shall charge an additional flat rate of EUR 5.00 for packaging. For invoices below EUR 50.00 we shall charge a minimum volume surcharge of EUR 5.00.
- 2. Goods reported as ready for shipment must be collected promptly. If collection is not promptly executed, we shall be entitled to ship the goods at the cost and risk of the customer at our option or to warehouse same at our discretion and invoice such immediately. Risk shall pass when the ready for shipment goods are available.
- 3. The customer shall report any complaints regarding transport damages directly to the transport company, copy to us, within the special deadlines applicable for this purpose.
6. Liability for defects, returns
- 1. Any defect claims asserted by customers require that inspection and defect notification obligations pursuant to Section 377 HGB (German Commercial Code) are properly complied with. Any defects in the goods which can be determined during a proper inspection shall be reported to us within a period of two weeks after receipt of the goods; other defects shall be reported within two weeks after their discovery. Notification thereof must be in writing describing the nature and extent of the defect in detail. If the ordering party has accounted for it, we shall warrant that the goods sold by us are free of defects for a period of one year, in principle, from delivery of the goods. For defects in the sold goods we warrant – at our option – by way of subsequent improvement or replacement delivery (subsequent performance) within an appropriate period of time.
- 2. The aforementioned clause 6.1 sentence 2 et seqq. shall not apply if the complaints are based on improper installation or handling by the customer or if the goods are used in a manner contrary to the intended use or if the complaint relates to natural wear and tear. Should the customer change or repair the goods supplied by us or should the customer have changes or repairs carried out to the goods by third parties the warranty shall expire unless the customer can prove that the change or repair was not the cause for the complaint or contributed to same.
- 3. We shall bear the labour and material costs required for remedying defects in the context of defect warranties in the event of justified complaints. If we replace the materials delivered to the customer in the course of subsequent improvement/subsequent performance obligations, we shall acquire ownership of the replaced parts of the property.
- 4. If the defect underlying our warranty obligation cannot be remedied by (at least) three attempts at subsequent improvement within an appropriate period of time or if subsequent improvement is not possible for other reasons the customer may in principle, at its option, demand a decrease in the purchase price (reduction) or a reversal of the contract (withdrawal). We reserve the right to make changes to the construction and/or design which do not impede the functionality or the value of the item of supply; this shall not constitute grounds for defect notification. The customer may not withdraw from the contract (withdrawal) should an agreed characteristic only deviate marginally, or should there be deviations from characteristics with which the product was acquired which are, however, regarded as marginal in customary trade or have no effect as well as for minor defects which do not affect the agreed or normal use of the item of purchase but may, at best, enjoy a reduction in the purchase price if there is a warranty obligation on our part. If the aforementioned limitations are not present and if the customer elects to withdraw from the contract due to a defect in title or material defect after failed subsequent performance, the customer shall not, in addition, be entitled to claim for damages due to the defect or for cost reimbursements.
- 5. If the customer asserts damage claims after failed subsequent performance the goods shall remain at the customer if this can be reasonably expected of same. In addition, damage claims are, in all cases, limited to the difference between the purchase price and the value of the defective goods. The latter does not apply if we fraudulently caused the contractual violation. Clause 6 shall apply to damage claims. Any further claims asserted by the customer for defects are excluded.
- 6. Independently of the aforementioned prescription period, the service life of a wear and tear part shall arise from its wear and tear during use for the intended purpose (normal service life). This can be shorter than the period mentioned in clause 6.1. If it should become necessary to replace a wear and tear part after expiry of its normal service life, this shall not justify a defect claim.
7. Limitations of liability
- 1. Our liability is limited to the damages expected due to the nature of the goods and typical for this type of contract in the event of slightly negligent violations of material contractual obligations. Liability is on the whole excluded for slightly negligent violations of non-material contractual obligations even if these relate to pecuniary damages or lost profits. The same shall apply to liability regardless of culpability in the event of non-material contractual obligations. This also applies to slightly negligent violations of obligations by our statutory representatives or vicarious agents. Furthermore, our liability for the payment of damages, to the extent permitted in law and unless nothing else arises from the aforementioned, is limited to the invoice value of the quantity of goods directly involved in the event causing the damage.
- 2. Further, liability for compensation for damages is excluded. In this regard, we shall not be liable for damages which are not sustained on the item of supply directly.
- 3. The aforementioned limitations of liability shall not apply in the event of injury to life, body or health, in the event of intent or gross negligence as well as for claims pursuant to the German Product Liability Act (ProdHaftG).
- 4. Any damage claims shall prescribe within one year from the statutory start of the prescription period unless we are blamed for intent or gross negligence or if compulsory statutory provisions lead to the setting of another period.
8. Reservation of title
- 1. The goods delivered by us shall remain our property until all the claims due to us, including interest and any other costs, from the business transaction with the customer are paid. For current accounts, the goods subject to reservation of title shall serve as collateral for our balance claims. The customer is obligated to handle the goods with due care.
- 2. The customer is obligated to separately warehouse and identify the goods subject to reservation of title. The customer shall insure the goods subject to reservation of title at its own cost against fire, water damage, break-ins and theft. The insurance policy must be submitted to us for perusal on request. The customer shall assign the claims from the insurance policy to us in advance. At the same time, the assignment is herewith accepted by us.
- 3. The customer shall inform us promptly in the event of third party access to goods subject to reservation of title, such as in the case of a pledge. The customer shall inform us promptly of any change in the possession of the goods as well as any change in the residential or business premises.
- 4. The customer shall bear all the costs incurred in the suspension or avoidance of access and for the replacement of the goods delivered by us.
- 5. We shall be entitled to withdraw from the contract and demand return of the goods should the customer breach the contractual obligations in particular in the event of payment default or the violation of an obligation stipulated above.
- 6. The customer shall be granted a right to sell the goods subject to retention of title in the ordinary course of business as long as same is not in default with its payment obligations. Any pledging or transfer by way of security is not permitted. The customer assigns to us already at this point, by way of security, any receivables arising from the resale or other legal grounds (insurance, tort) to their full extent. We accept the assignment.
- 7. We authorise the customer to collect the assigned receivables for our account in its own name. We reserve the right to revoke this authorisation and to collect the receivable ourselves as soon as our customer does not properly comply with its payment obligations, or enters into payment default, as well as if insolvency proceedings or other forfeiture of assets are applied for or opened.
- 8. At our request, the customer shall disclose the assignment and provide us with the information and documents required for the collection of the receivables. We shall also be entitled to disclose the assignment to the customer’s debtors and demand payment from same.
- 9. In the event of payment default or insolvency applications by the customer or a creditor, without prejudice to all further rights, we shall be entitled to take back the goods subject to reservation of title, to gain direct possession of same ourselves or through authorised representatives irrespective of where they may be and to sell same elsewhere. The customer is obligated to return the goods subject to reservation of title to us and to provide the information and documents required for the assertion of our rights. The proceeds less all the costs and expenses associated with the sale (which we can invoice at 10% of the sales proceeds without further substantiation) shall be credited to the customer’s overall debt; any surplus shall be paid out. The customer is however entitled to prove to us that the costs and expenses for the sale of the goods subject to reservation of title are indeed lower than set out in the aforementioned.
- 10. We shall be obligated to release, at our option, the collateral due to us to the customer on request of same once the value of the collateral exceeds the unpaid receivables to be secured by more than 20%.
- 11. Should the country in which the item of supply is located not permit reservation of title, or only in limited form, we shall reserve other rights in the item of supply. The customer is obligated to cooperate in the measures required to be taken to realise the reservation of title (e.g. registrations) or other rights in place of the reservation of title and in the protection of these rights.
9. Prohibition of assignment
- The customer is not entitled to transfer or assign any rights or claims to third parties.
10. Place of performance, place of jurisdiction and applicable law
- The place of performance for all the obligations of both contractual parties shall be our head office in Kirchheim unter Teck unless otherwise agreed to in the order confirmation. The court competent for our registered offices in Kirchheim unter Teck in terms of location and subject matter shall be exclusively appealed to for all disputes arising from the contractual relationship. We shall however, at our option, also be entitled to institute legal proceedings against a customer at the court competent for its head office. Furthermore, the substantive law of the Federal Republic of Germany under exclusion of the conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods dated 11.04.1980 (CISG) shall apply even if the customer has its registered offices abroad. All the laws, ordinances and other legal norms cited to this point pertain to German law unless expressly stated otherwise.
11. Miscellaneous provisions
- 1. Should these GCSSPs be made available to the customer in languages other than the language in which the contract was concluded (contractual language) this shall only serve to facilitate comprehension. In the event of differences in interpretation the wording of the text in the contractual language shall be definitive.
- 2. Should a provision of these GCSSPs, or a provision of other agreements with the customer and ourselves, be invalid this shall not affect the validity of all the other provisions or agreements.
August 2012, LEKI Lenhart GmbH