§ 1 General – Scope
(1) Our terms and conditions apply exclusively; we do not recognise differing terms or deviating from our terms by the customer, unless we have expressly agreed in writing. These terms and conditions shall apply without reservation even if we have knowledge of conflicting terms or deviating from our terms and conditions by the customer.
(2) All agreements made between us and the customer for the purpose of execution of this agreement, are stipulated in writing in this agreement.
(3) Our terms and conditions apply to all contracts with companies, legal entities of public law and public special assets, for delivery and miscellaneous services, including contracts for services and the delivery of non-fungible goods.
(4) Our terms and conditions also apply to all future dealings with the customer.
§ 2 Offer
(1) Our offer is subject to change without notice and is only binding on us through written order confirmation and on such terms as are in the order confirmation.
(2) Drawings, illustrations and printed matter only provide approximate information, unless they are expressly designated as binding. The mentioned weights and measures are averages. The mentioned specifications are neither assured nor guaranteed.
(3) We reserve ownership and copyright to illustrations, drawings, calculations and other documents; they may be made accessible to third parties only with our prior consent. Should the order not be placed, the documents shall be automatically returned to us free of charge.
(4) The values given in the proposal are within the customary industry tolerance. The order confirmation is exclusively authoritative for the scope of activity; all parts and services not explicitly specified in this are - where required - to be performed by the client. Only those characteristics that are explicitly stated in the order confirmation as guaranteed will be guaranteed.
(5) For cancellation by the customer of orders placed but not yet in the implementation phase, 2% of
the order amount will be paid as a cancelation penalty. The customer has the right to prove lower expenses. Similarly, we can prove our legitimate claims.
§ 3 Prices - Terms of Payment
(1) Unless otherwise stated in the order confirmation, our prices are "ex works," packing excluded; these will be listed separately on the invoice. All additional costs are to be borne by the customer. Customs duties, consular costs, freight, insurance premiums and other additional costs are borne by the customer.
VAT is not included in our prices; it shall be shown separately at the statutory rate on the invoice on the day of invoicing.
Deduction of a cash discount requires a specific written agreement. An arranged cash discount always relates only to the invoice value, excluding freight, and requires the full balance of all due obligations by the purchaser at the time of the discount. Insofar as nothing is otherwise agreed, cash discount periods shall begin from the invoice date.
(4) Unless the order confirmation states otherwise, the following terms of payment apply: 1/3 deposit upon receipt of order confirmation; 1/3 upon readiness for shipment, at the latest on delivery; the rest within 30 days after delivery, but no later than 6 weeks after readiness for shipment. Accessories and assembly costs together with daily wage statements are due upon completion and receipt of the invoice.
(5) If the customer defaults on payment, we are entitled to charge interest amounting to 8% above the base rate. If we are in the position to prove higher damages caused by default, we are entitled to obtain those damages. However, the customer is entitled to prove to us that, as a result of late payment, no or significantly minor damages occurred.
(6) The payment shall be deemed complete only when the full invoiced amount is credited to our account; only cheques are accepted for payment.
(7) The customer has rights of off-set only if his counterclaims have been legally established, are uncontested or accepted by us. Furthermore, he is only entitled to exercise a right of retention insofar as a counterclaim is based on the same contractual relationship.
(8) Insofar as the customer is entitled to claims against us based on the contractual relationship, their assignment to third parties requires our consent.
(9) We reserve the right to change our prices accordingly if, after conclusion of the contract, cost reductions or increases occur, in particular due to labour contracts or material price increases. We will provide the customer with proof of these upon request.
(10) Non-estimated operations are calculated on the basis of certified wage hours, inclusive of any possible daily allowances and freight expenses certified by the purchaser or his agent. Materials used are invoiced at current market prices.
(11) If it becomes apparent the after conclusion of the contract that our payment claim is jeopardised by deficient customer liquidity or if the customer has a significant amount in default of payment, or if circumstances which show a substantial degradation of the customer's solvency, we are entitled to the rights under § 321 BGB. We are then entitled to make due all claims not yet due within the current business relationship.
§ 4 Delivery time
(1) Our delivery obligation is subject to correct and timely self-delivery, unless the incorrect or late self-delivery is faulted by us.
(2) Information about delivery times is approximate. The delivery period begins with the dispatch of the order confirmation, but only after the fulfilment of all the technical and commercial requirements laid down in the order confirmation by the customer. The beginning of the delivery time requires the clarification of all technical questions. If a specific delivery date is named in the order confirmation, it will be considered under the condition through which all technical issues are cleared, with the participation of the customer. Compliance with our delivery obligation is in any case subject to the timely and proper fulfilment of the obligation of the customer. The agreed delivery period is adhered to if the delivery is made within the period specified and this is communicated to the customer.
(3) Any unforeseen events such as force majeure, strikes, operation stoppages, etc. extend the delivery period. We will immediately inform the customer of such obstacles. If through the above circumstances the delivery or service is made impossible, we are released from our obligation to deliver, by notification of the customer.
(4) If the delivery is delayed, the customer can set a reasonable time extension and rescind after unsuccessful expiry of the contract, as the contract has not yet been fulfilled.
We are also liable in accordance with legal regulations if the delay in delivery has been caused by a breach of contract that we are wilfully or grossly negligently responsible for. Our representatives or agents’ responsibility shall be attributed to us. If the delay in delivery does not occur due to a breach of contract that we are wilfully responsible for, our liability is limited to a typical damage of the sort in question.
(6) We are also liable under the statutory provisions, insofar as the delivery delay is due to a culpable violation of an essential contractual obligation. In this case, however, liability for damages is limited to foreseeable ones, typically occurring damage.
(7) We have only to step in for the delays of our agents, with only our suppliers, but not their suppliers, as it applies to our representatives.
(8) If the customer unjustifiably withdraws from a placed order, we can without prejudice to the assertion of a higher actual damage, claim 10% of the contract price for the costs incurred for processing the order and for lost profit. The customer reserves the right to prove lower damages.
(2) If the customer, in delay of acceptance or culpably violates other cooperation obligations, we are entitled to demand damages in this respect, including any additional expenses. Further claims remain reserved. If the requirements are met, the risk of accidental loss or accidental deterioration of the goods is transferred to the customer at the time in which he/she is in delay of acceptance or payment.
§ 5 Transfer of Risk - Packaging
(1) The risk is transferred with the dispatch of the goods from the delivering factory to the customer. If the dispatch is delayed due to the conduct of the customer, the risk shall pass to the customer upon notification of readiness for shipment. The transport risk is borne by the customer, if we have chosen a conventional and careful mode of transportation.
(2) Transportation and all other packaging are not returnable; except for pallets. The customer is obliged to provide for disposal of the packaging at his own expense.
(3) If the customer wishes, we will cover the delivery with a transport insurance; this cost shall be borne by the customer.
§ 6 Liability and limitation
(1) The warranty rights of the customer are set out in a sales contract so that the buyer properly fulfils his inspection and return obligation in accordance with § 377 HGB. Material defects should be immediately reported in writing, no later than 7 days after the date of delivery. The contracting partner is obliged to provide us with a detailed written description of the alleged shortcomings. Material defects that cannot be detected even with the most careful examination within this period, - having ceased forthwith and treated - immediately after their discovery, at the latest before the expiry of the contractual or statutory time - are to be reported in writing.
(2) In a justified and timely complaint, taking into account the interests of the customer, we can remove the defect or deliver a defect-free product (subsequent performance) at our discretion. If we remedy the defect, we are hereby contractually bound to bear all expenditures necessary, in particular transport, labour and material costs, unless these are made higher by the object of sale having been transported to another place that is not the place of fulfilment.
(3) Should we fail or decline the substitution, the customer can withdraw from the contract or reduce the purchase price by the expiry of a reasonable period. If the defect is minor, product is already sold, processed or transformed the goods, the customer may only reduce the purchase price. If there is a work contract, the customer is obligated to the aforesaid conditions to set a reasonable period to remedy the defect. After the expiry of this period, he may also invoke the rights to withdrawal or reduction claims.
(4) We are liable in accordance with legal regulations, insofar as the customer claims for damages arising from intention or gross negligence by our managing representatives of agents. Insofar as the customer does not assert any wilful breach of contract on our part, our liability is limited to the foreseeable conclusion of the contract to a typical damage of the sort in question.
(5) These restrictions do not apply to culpable violation of substantial contractual obligations, if the purpose of the contract is at risk of failing at culpably caused damage to life, limb and health and even if and as far as we, have taken over the guarantee for the quality of the sold goods, as well as in cases of mandatory liability under the product liability Act. The rules on the burden of proof remain unaffected.
(6) Unless otherwise regulated above, our liability for defects and consequential damages is excluded; in particular, we are not liable for lost profits or other financial losses.
(7) The product is compatible with the agreement, if they do not or deviates only slightly at the time of transfer of risk from the agreed specification. Contents of the specification and any expressly agreed purpose are not a guarantee; the provision of a guarantee requires a written agreement.
(8) Unless otherwise agreed, contractual claims incurred by the purchaser against us and in connection with the delivery of the goods are valid for 1 year after transfer of risk. For goods that are used in accordance with their usual purpose for a building and have caused its defectiveness, contractual claims of the purchaser is time-barred within 3 years. This does not affect our liability for intentional and grossly negligent violations culpably affecting damage to life, body and health as well as the limitation of recourse in case of delivery recourse under §§ 478, 479 BGB.
§ 7 Joint liability
(1) Further liability for damages as provided in § 6 - regardless of the legal nature of the asserted claim - are excluded. This is in particular valid for indemnity claims due to faults on the occasion of the contract conclusion, due to other violations of duty, or due to tortuous claims for replacement of damage in accordance with § 823 of the German Civil Code (BGB).
(2) Insofar as our liability for damages is excluded or limited, this shall also apply to the personal liability for damages of our salaried employees, wage earners, staff, representatives and agents.
(3) The validity of claims between us and the customer shall be governed by paragraph § 6. 8, unless the claims of product liability conflict in accordance with § 823 BGB.
§ 8 Retention of title
(1) We reserve the ownership of the objective of the contract up to pending receipt of all payments from the business relationship with the customer. This captures all claims, regardless of the legal reason, including future and conditional claims, also from simultaneous or subsequent contracts in the context of the business relations. This also applies if payments are made on specifically designated claims. With current accounts, the retained title provides security for our balance claim.
(2) In breach of contract, especially late payment, we are entitled to take back the subject matter of the contract. If we withdraw, we cannot cancel the contract, unless we have expressly stated this in writing. We are entitled to dispose of the contractual object to its use. The realisation proceeds to the
liability of the customer - minus reasonable utilisation costs - to be counted.
(3) The customer is obliged to treat the subject matter with care. In particular, he is obliged to insure them at his own expense against fire, water and theft at replacement value. If maintenance and inspection work is required, the customer must perform this promptly and expertly at his own expense, unless it has been agreed with us, through a separate maintenance contract.
(4) The buyer may with regard to the objective of the contract, to which we have not reserved property rights, neither pawn nor transfer for security. In the event of distrain orders or other interventions by third parties, the customer has to notify us in writing forthwith, so that we are able to bring suit in accordance with § 771 ZPO (code of civil procedure). If the third party is unable to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO (Code of Civil Procedure), the customer is liable for the loss incurred.
(5) The purchaser is entitled to the reserved goods for sale in the ordinary course of business; he assigns to us all claims in the amount of the invoice total (including VAT) of our claim, which accrue from the resale against his customers or third parties, regardless of whether the contract has been resold without or after processing. We have already accepted this assignment. The customer is authorised to receive these amounts on our behalf. This is without prejudice to our right to collect such receivables ourselves. However, we are hereby contractually bound not to collect such receivables if the customer is not in default of payment of the received proceeds, is not in default of payment in general and no petition for the initiation of insolvency proceedings are made or inability to pay is given. If this is the case, we can demand that the customer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and inform the debtors (third parties) of the assignment.
(6) The processing or restructuring of the object of the contract by the customer is always done for us. If the objective of the contract is processed with others that do not belong to us, we are co-owners of the new objective at the ratio of the object of the contract at the time of processing (final invoiced amount, including VAT)
to the other processed objects. The same provisions concerning retention of title shall apply to the new object of the contract that you have modified or processed.
(7) If the object of the contract is inseparably mixed with other objects that do not belong to us, we are co-owners of the new object at the ratio of the object of sale’s value at the time of mixing (final invoiced amount, including VAT) to the other mixed objects. If the mixing is done in a way that makes the customer’s object the main purpose of the new object, it is hereby agreed that the customer makes us co-owner on a pro-rata basis. The customer is in possession of the thus evolved sole or co-ownership on our behalf.
(8) The customer also assigns to us the claims for securing our claims against him, through the connection to the objective of the contract grown from a basis against a third party.
(9) We are hereby contractually bound to release the securities we are entitled to in so far as that the realisable value of our securities exceeds the value of the secured receivables by more than 10 %. The selection of the securities to be released is at our discretion.
§ 9 Force Majeure
If we are prevented from fulfilling our obligations by the occurrence of unforeseen circumstances, from which we cannot avoid our responsibilities in spite of the circumstances of the case - no matter whether this occurs in our factory or at the factory of our subcontractors - such as breakdowns, delays in the delivery of essential raw and building materials, we will extend the delivery to a reasonable extent, insofar as the delivery or performance is not impossible. If the delivery or performance is impossible due to the above mentioned circumstances, we are released from the delivery obligation. The same applies in the event of strikes and lockouts.
§ 10 Applicable Laws, Place of Jurisdiction, Place of Performance
(1) The contract is subject to the laws of the Federal Republic of Germany.
(2) Unless otherwise stated in the purchase order, the place of fulfilment is our registered Schwabach office.
(3) If the customer is a merchant, our registered office Schwabach is the jurisdiction; however, we are entitled to sue the customer at his local court.
§ 11 Severability
If any provision of these terms and conditions are or become invalid; this shall not affect the validity of the remaining provisions or agreements. In case of erroneous determination occurs, an effective agreement is made for the economic purpose of the defective provision.
© 2018 by LK Metallwaren GmbH