I General Conditions
1. Conclusion of a contract
Our deliveries are made exclusively on the basis of the following conditions. The buyer’s purchasing conditions are hereby expressly rejected. They do not bind us even if we do not contradict them again when concluding the contract. Our general terms of sale, delivery and payment are deemed to have been accepted at the latest upon receipt of the goods. With regard to non-traders, these terms and conditions can only be changed by contractual agreement or extended to future transactions. These terms and conditions also apply to business people in the future, provided that we expressly reserve the right to make changes to future business. All our offers are subject to change and non-binding. Orders, price agreements and other agreements – especially insofar as they change these conditions of sale – only become binding for us after our written confirmation.
2. Prices, terms of payment
The prices stated in our order confirmation or our price list valid at the time the contract is concluded apply. Insofar as the costs for material, wages, auxiliary materials or statutory charges increase significantly in the period between the conclusion of the contract and delivery for reasons for which we are not responsible, we are entitled to the agreed price, disclosing the original calculation and specifying the increase in cost factors according to the scope the increase in costs to offset them. We are only entitled to do so in dealings with non-traders if there are more than four months between the conclusion of the contract and the delivery date. In this case, non-traders are entitled to withdraw from the contract. Unless otherwise agreed, all payments must be made in cash without any deductions within 30 days of the invoice date. A discount is only permitted if expressly agreed. We only accept self-acceptances and discountable bills of exchange on account of an express agreement. Credits for checks and bills of exchange are subject to receipt, minus the applicable base rate, any bank and collection charges, with the value date on the day on which we can dispose of the equivalent value. We are entitled to demand interest of 5% from merchants if the payment target is exceeded. In the event of default by the buyer, we are entitled, subject to the assertion of further damage caused by default, to charge default interest of 2% above the respective base rate of the German Federal Bank – but at least 6%. The buyer reserves the right to provide evidence of lesser damage. In the event of a culpable violation of these terms of sale, delivery and payment as well as inability for which the buyer is responsible, the claim affected by this violation shall become due immediately. If justified doubts about the solvency of the buyer arise after the conclusion of the contract, which endanger our claims, we are entitled to only carry out outstanding deliveries against advance payment or security. After setting a reasonable grace period with a threat of rejection, we are entitled to withdraw from the contract or to demand compensation for non-performance after the deadline has expired without result. The buyer may only offset undisputed or legally established claims. Merchants are only entitled to assert a right of retention with regard to counterclaims that are based on the same contractual relationship. We are entitled to offset our claims against the buyer – for whatever legal reason.
3. Retention of title strong,
All delivered goods remain our property until all claims to which we are entitled against the buyer from the business relationship have been fulfilled – regardless of the legal reason. This also applies to goods for which the buyer has expressly referred his payment to the delivery. In the case of a running invoice, the retention of title serves as security for our balance claim. The buyer may only sell the reserved goods in the ordinary course of business under his normal business conditions and only as long as he is not in default. He is only entitled to resell the goods subject to retention of title with the proviso that the claim from the resale is transferred to us. He is not authorized to dispose of the reserved goods in any other way, in particular to pledge them or assign them as security. The buyer hereby assigns to us the claims to which the buyer is entitled from the resale of the (possibly processed) reserved goods or from any other legal reason relating to the reserved goods in the amount of the value of the reserved goods. They serve as security to the same extent as the reserved goods. If the value of the securities existing for us exceeds our claim by more than 20%, we are obliged to release securities of our choice at the request of the buyer. Under no circumstances is the buyer authorized to assign claims to third parties. At our request, he is obliged to inform his customers of the assignment to us and to give us the information and documents required for collection. The processing of the delivered goods takes place for us without any obligations arising for us. If the buyer processes, combines or mixes the reserved goods with other items that do not belong to us, we are entitled to the co-ownership share in the new item as reserved ownership in the ratio of the invoice value of the processed reserved goods to the invoice value of the other processed goods. The expectant right of the buyer to the delivered item continues on the item. If the retention of title expires for any reason, the resulting claim takes its place. We are entitled to withdraw from the contract in the event of default in payment by the buyer or in the event of circumstances occurring after the conclusion of the contract which endanger the satisfaction of our claim. In this case, at our request, the goods are to be returned to us with an inventory list being sent immediately. Our reclamation of the goods is considered a withdrawal from the contract. Under these conditions, we are entitled, at our discretion, to sell the goods by auction or privately and to offset the proceeds against the purchase price. In the event of seizure or confiscation of the reserved goods or claims assigned to us by third parties, the buyer must point out our reserved property or the assignment and inform us immediately, handing over the documents necessary for an intervention. If the intervention was successful and its costs cannot be recovered by third parties, these shall be borne by the buyer. The rights from § 46 KO exist alongside the existing rights. The buyer waives the rights from § 50 of the settlement regulations.
4. Liability strong,
We are liable
a) in commercial transactions and towards legal persons under public law or towards a special fund under public law without restriction for intent. We are also liable for gross negligence and for any culpable breach of essential contractual obligations. The liability is limited to the contract-typical, foreseeable damage; the limitation does not apply in the event of gross negligence on the part of our legal representatives or senior employees,
b) in non-commercial transactions for willful intent and gross negligence as well as any culpable violation of essential contractual obligations. In the event of a breach of essential contractual obligations, unless the breach is intentional or grossly negligent, liability is limited to the foreseeable damage typical for the contract.
5. Place of performance and place of jurisdiction strong,
Place of performance for all rights and obligations of both parties to the contract – with the exception of the buyer’s obligation to pay – and place of jurisdiction for contracts with registered traders, legal entities under public law or special funds under public law is Essen. However, we are free to call the court at the buyer’s general place of jurisdiction.
6. German law, partial invalidity strong,
The law of the Federal Republic of Germany applies. UN sales law (CISG) is excluded. The ineffectiveness of individual regulations of these conditions does not affect the effectiveness of the remaining regulations. The contracting parties undertake to replace the ineffective obligations with a regulation that comes closest to the intended success and that the parties would have agreed if they had known the ineffectiveness of this provision.
II Execution of the delivery
1. Delivery time
The specified delivery dates apply ex works. They are only approximate and, without prejudice to our rights from default by the buyer, are postponed by the period during which the buyer is in default with his obligations from this or another contract. If a delivery date is bindingly promised, it is deemed to have been met if and to the extent that we have dispatched the goods on time. If it is not possible for us to send the goods through no fault of ours or that of the supplier, or if the required shipping instructions, the agreed acceptance or the opening of a letter of credit have not been given in time, the delivery deadline shall be deemed to have been met with the timely notification of readiness for dispatch. If we are in default ourselves, the buyer must set us a reasonable grace period. After this period has expired, the buyer can withdraw from the contract insofar as the service is due and the goods have not been reported in their raw or finished state as ready for dispatch by the deadline. Claims for damages due to non-performance due to slight negligence, provided this does not meet essential contractual obligations, are excluded.
2. Force majeure strong,
Events of force majeure occurring after the conclusion of the contract entitle us to postpone the delivery for the duration of the hindrance – but no longer than 4 months – plus a reasonable start-up time. If the hindrance lasts more than 4 months, we are entitled to withdraw from the contract. Any advance payments made are to be reimbursed by us. Such circumstances are to be equated with force majeure that make delivery significantly more difficult or impossible, such as B, strike or lawful lockout, fire, machine breakdowns or operational disruptions in our and in the operation of a supplier as well as unforeseeable shortages of raw materials or fuels for which we are not responsible from the point of view of takeover, precautionary or avoidance fault. Our right of withdrawal according to sentence 1 does not apply to delays in delivery due to labor disputes. The buyer can demand a declaration from us, setting a reasonable deadline, as to whether we want to withdraw or deliver within a reasonable period. If we do not make a declaration in due time, the buyer can withdraw from the contract.
3. Partial delivery, permanent contract, exceeding the contract strong,
We are entitled to partial services to a reasonable extent. In the case of contracts with continuous delivery, calls and specifications for approximately the same monthly quantities are to be given to us in good time, otherwise we are entitled, after setting an unsuccessful grace period, to classify and specify and deliver the goods ourselves or because of the not timely approved or specified part of the entire remaining part to withdraw from the deal and to claim damages. If the contract volume is exceeded by the individual calls of the buyer, we are entitled to deliver the excess, but not obliged. Unless a separate agreement has been made, we will charge goods delivered in excess of the final quantity at the current price applicable at the time of the last delivery or the final price.
4. Acceptance strong,
If special quality regulations have been agreed, or the goods are going abroad, the buyer is obliged to check and accept the goods at the delivery plant after notification of readiness for dispatch within 5 working days. The buyer bears the personal acceptance costs, we bear the material acceptance costs. If the buyer does not accept the goods after notification of readiness for dispatch, does not accept them in time or does not accept them completely, we are entitled to store the goods and to charge our own or external storage costs incurred as a result or to accept the goods after setting a reasonable grace period at the buyer’s expense to send this. The goods are then deemed to have been accepted when they are dispatched or stored.
5. Packing strong,
If the shipment has to be done on reel, this will be invoiced and must be paid for. Reels are not packaging in the sense of the AWG. A return can be made without crediting after consultation. The packaging is also weighed. The calculation of the delivery in coils, without reel, is gross for net if the goods are sold by weight.
6. Dispatch and passing of risk strong,
Ready for dispatch reported material must be called for dispatch immediately in accordance with the delivery instructions, otherwise we are immediately entitled to store it at our discretion at the expense of the buyer, as well as immediately after notification of readiness for dispatch as ex works to calculate delivered. If collection by truck is planned and the material is not collected within 5 days after our notification of readiness for dispatch – corresponding to the agreed delivery date – we are entitled to dispatch the goods ourselves at our own option.
The statutory regulations on default in acceptance remain unaffected. When the goods are handed over to the forwarding agent, carrier or shipper, the risk – including seizure in any case – also for fob or cif transactions – is transferred to the buyer. Dispatch routes, transport and means of protection are reserved to our choice. Protective equipment, covered and special wagons are charged separately.
7. Defects, delivery of non-contractual goods strong,
If the purchase is a commercial transaction for both parties, the buyer must report externally recognizable defects in writing or by fax within 8 days of receipt of the goods. Unless otherwise agreed, warranty claims, which the buyer in this case arise against us on the occasion of or in connection with the delivery of the goods, expire one year after delivery of the goods. For non-merchants, a notice period of 14 days from receipt of goods applies to obvious defects. Defects that are not recognizable within this period are to be reported in the aforementioned form after they are discovered and any processing or processing is immediately stopped (the statutory warranty obligation applies).
In the event of justified complaints, we are obliged, at our discretion, to repair the goods or to take back the defective goods to deliver fault-free goods, or we or our vicarious agents are guilty of willful intent or gross negligence. In the event of delayed or omitted subsequent delivery or failure of the subsequent improvement as well as defects in the subsequently delivered goods, the buyer is entitled to demand a reduction in the payment (reduction) or cancellation of the contract (conversion). Further claims for damages are excluded, except in the cases of sentence 1 of the preceding paragraph, as well as in the case of fraudulent intent and breaches of contractual obligations by us that significantly endanger the purpose of the contract.
Defects in a part of the delivery only entitle the customer to complain about the entire delivery if it is not reasonably possible to separate defective and non-defective goods. Warranty claims cannot be asserted if the buyer does not give us the opportunity to convince us of the justification of the complaint. Claims under the Product Liability Act remain unaffected. The above provisions also apply to the delivery of goods other than those in accordance with the contract.
Duly delivered products will only be taken back by us in exceptional cases and within the scope of the possibilities if they are in perfect condition and do not originate from a contract manufacturing. We charge 25% of the value of the goods, but at least € 30.- net.
9. Dimensions, weights, qualitystrong,
Deviations from dimensions, weight and quality are permitted according to DIN EN regulations or the applicable practice. The weights are determined by the weighing foremen on our calibrated scales, which are under constant control, and are decisive for the calculation. For delivery in wagon loads, the total weight is decisive for the calculation. Differences compared to the arithmetical individual weights are to be distributed proportionally between them. Proof of weight is provided by submitting the weighing report.
III: Additional conditions for export transactions
1.Unless these sales conditions or special agreements stipulate otherwise, the international trade clauses specified in incoterms apply to our sales obligations in the form valid on the day of the order confirmation.
2. The prices specified in our order confirmation apply.
Our prices are based on normal, unhindered transport conditions. e.g. unimpeded navigation ahead. The buyer bears any additional costs resulting from incomplete loading or hindrance to transport.
Customs duties, consulate costs, freight, insurance premiums and other ancillary costs are borne by the buyer if they are included in the agreed price and increase after the conclusion of the contract or if they arise again. The same applies to the additional costs that arise as a result of the fact that shipping was required on a different transport route than the one intended. Unless otherwise agreed, payment is due immediately upon receipt of the invoice without deduction.
3. In the event of damage in transit, the buyer must immediately arrange for the relevant authorities to take stock of the facts, as otherwise claims against the carriers and insurers will not apply. These conditions apply to fob sales and analogously to other sales, in particular for franco ship or cif reference port.
Essen, February 2015
Terms and Conditions of LS+S Lifting Supply + Service GmbH