Terms and conditions of sale and delivery of Lucht LHZ Elektroheizung GmbH & Co. KG
Solely these conditions apply to all business transactions entered into with resellers or commercial customers
I. General provisions
With regard to the scope of the deliveries or services (hereinafter: deliveries), the written statements of both parties are authoritative. However, general terms and conditions of business of the buyer shall only apply insofar as the supplier or rendering party (hereinafter: supplier) has expressly consented to such conditions in writing.
The Supplier reserves its ownership and copyright utilisation rights without restrictions to cost estimates, drawings and other documents (hereinafter: documents). The documents may only be made available to third parties following prior approval by the supplier, and if the contract is not awarded to the supplier, are to be returned to the supplier on request. Sentences 1 and 2 apply accordingly to the buyer’s documents. However, these may be made available to third parties to whom the supplier has reliably transferred deliveries.
The buyer has the non-exclusive right to use standard software with the agreed performance features in an unaltered form on the agreed devices. The Buyer may make a back-up copy without an express agreement.
Partial deliveries shall be permissible insofar as they are acceptable for the buyer.
The supplier is entitled to assign its claims resulting from deliveries and services for financing purposes.
II. Prices and terms and conditions of payment
The prices are to be understood ex works. They exclude packaging but apply plus the respective, valid, statutory VAT.
If the supplier has assumed the set up or assembly, and in the absence of an agreement to the contrary, the buyer shall bear all the
necessary incidental costs in addition to the agreed remuneration such as travelling expenses, the cost of transporting the hand tools and the personal luggage as well as allowances.
Payments are to be made free of charges to the supplier’s paying agent. Payment and discount periods run from the invoice date. The day on which payment is received is authoritative in respect of complying with the period.
The buyer may only use claims to set off that are undisputed or have become res judicata.
If the buyer defaults in payment, all other claims shall immediately fall due for payment without the necessity of giving separate notice of default.
With regard to deliveries and services made and rendered on behalf of the buyer abroad, it is expressly agreed upon that all costs in respect of the supplier bringing legal action in the event of default in payment on the part of the buyer shall be borne by the buyer both in terms of court and out-of-court costs.
If the buyer defaults in payment, in such a case we shall be entitled to request default interest in the sum of 5 % above the respective base lending rate of the European Central Bank (ECB). In the case of purchase contracts entered into by companies, default interest in the sum of 8 % above the base lending rate of the ECB shall fall due for payment.
III. Reservation of title
The deliveries shall remain the property of the supplier up until all claims to which the supplier is entitled against the buyer have been settled irrespective on whichever legal grounds they arise. In the case of ongoing invoices, retention of ownership shall be deemed to be security for claims for payment on the part of the supplier.
The buyer is authorised to use and resell reserved goods during the ordinary course of business. The buyer hereby assigns at this point in time to the supplier all claims resulting from the resale. The supplier hereby accepts the assignment. This also applies to goods that have been processed or linked. If the buyer incorporates the claim resulting from the resale of a delivery item of the supplier in a mutual account with its customer, the buyer’s current account receivable is assigned in full. The supplier shall not disclose the assignment as long as the buyer honours its payment obligation. Where the supplier requests this in an individual case, the buyer is to disclose the names of its customers and notify these of the assignment. The buyer is authorised to collect the assigned claims resulting from the resale, whereby the supplier reserves the right to withdraw such a right at any time.
The reserved goods may only be pledged or offered as security following prior approval by the supplier. If the goods delivered by the supplier are processed by the buyer, the processing shall apply on behalf of the supplier as the manufacturer. In the case of processing, linking or mixing the supplied item with other items that are not the supplier’s property, the supplier shall acquire co-ownership of the new item in the proportion of the value of the object of sale (invoice end amount including VAT) to that of the other processed/linked/mixed items at the time of processing, linking or mixing. The buyer shall hold for the supplier in safe custody the sole ownership or co-ownership created in this manner. If the mixing or linking occurs in such a way that the item owned by the buyer is regarded as the principal item, it shall be deemed agreed that the buyer assigns co-ownership to the supplier and shall store the item for the supplier.
The supplier undertakes, at the buyer’s request, to release securities to which the supplier is entitled insofar as the realisable value of the supplier’s securities exceeds the claims that are to be secured by more than 20 %. The choice of securities that are to be released is incumbent upon the supplier.
IV. Periods for deliveries; default
Compliance with periods for deliveries is conditional on the timely receipt of all documents, necessary licenses and releases to be provided by the Supplier, in particular in respect of plans, as well as compliance with the agreed terms and conditions of payment and other obligations on the part of the Buyer. If these preconditions are not met in good time, the periods shall be extended accordingly. This does not apply if the Supplier is responsible for the delay.
If the failure to comply with the period is attributable to force majeure, e.g. mobilisation, war, unrest or similar events such as strikes or lockouts, the periods shall be extended appropriately.
If the supplier defaults, the Buyer may – where it plausibly states that it has sustained damage as a result – request compensation for each full week in which the delay applies in the sum of 0.5 %, in total however at most 5 %, of the price of the part of the deliveries that could not be expediently put into operation as a result of the delay.
Both the buyer’s claims for damages regarding a delay in the delivery and claims for damages instead of the performance, which extend beyond the limits stated in No. 3 are excluded in all cases of delayed delivery, including following expiry of a period that may have been set for the supplier in which to deliver. This does not apply insofar as liability applies on a mandatory basis in cases of intent, gross negligence or because of the loss of life, physical injury or detrimental effects on health. The buyer may only withdraw from the contract as part of the statutory provisions insofar as the delay in delivery is the supplier’s responsibility. The aforementioned regulations are not associated with a change in the burden of proof to the detriment of the buyer.
The buyer undertakes, at the supplier’s request, to state within a reasonable period whether or not it shall be withdrawing from the contract as a result of the delay or whether or not it insists on receiving the delivery.
If the shipping or provision are delayed at the buyer’s request by more than one month following of the readiness for dispatch, the buyer may charge warehouse fees for each month that commences in which the delay applies in the sum of 0.5 % of the price of the items of the deliveries, at most however in total 5 %. The parties reserve the right to furnish proof of higher or lower warehouse charges.
V. Passing of risk
Risk shall pass to the buyer, including in the case of freight-free delivery, as follows:
a) In the case of deliveries without set up or assembly when they have been rendered ready for dispatch or have been collected. At the buyer’s request and cost, the supplier shall insure deliveries against customary transport risks;
b) In the case of deliveries including set up or assembly on the day of the take-over in the own enterprise or, where agreed, following a fault-free trial operation.
If the shipping, provision, start or performance of the set up or assembly, the take-over in the own enterprise or the trial operation are delayed for reasons that are the buyer’s responsibility, or if the buyer defaults in acceptance for other reasons, the risk shall pass to the buyer.
VI. Set up and assembly
Where not agreed upon to the contrary in writing, the following provisions apply to the set up and assembly:
The buyer is to assume and make available the following at its own cost in good time:
a) All earth, construction and other subsidiary work that is outside the sector, including the necessary specialist and assistants, building materials and tools,
b) The daily commodities and materials required for the assembly and commissioning such as scaffolding, lifting devices and other devices, fuels and lubricants,
c) Energy and water at the place of use, including the connections, heating and lighting,
d) In the case of the assembly point for the storage of machine parts, apparatus, materials and tools etc. sufficiently large, suitable, dry and lockable rooms and appropriate working and leisure rooms for the assembly personnel, including sanitary systems in line with the circumstances. In other respects, the buyer is to adopt the measures to protect the property of the supplier and the assembly personnel at the construction site that the supplier would adopt to protect its own property,
e) Protective clothing and protective devices that are necessary due to the special circumstances that apply at the construction site.
Prior to the start of the assembly work, the buyer is to make available without request the necessary details about the electricity, gas and water lines that are hidden from view at the site and similar details as well as the necessary statics details.
Prior to the set up or assembly, the provisions and items required to commence the work must be located at the set up or assembly point, and sufficient progress must have been made in respect of all preliminary work prior to the set up so that work on the set up or assembly can commence as per agreement and can be performed without interruptions. Delivery paths and the set up and assembly point must be levelled and cleared.
If the set up, assembly or commissioning are delayed as a result of circumstances that are not the supplier’s responsibility, the buyer shall bear the costs appropriately that arise in respect of the waiting period and additional travelling required by the supplier or the assembly personnel.
The buyer is to provide the supplier with certification each week of the duration of the working hours of the assembly personnel and the end of the set up, assembly or commissioning without delay.
If the supplier requests the acceptance of the delivery following completion, the buyer is to perform this within two weeks. If this does not occur, the acceptance shall be deemed performed. The acceptance shall similarly be deemed performed if the delivery – where applicable following completion of an agreed test phase – has been put into use.
The Buyer may not refuse to receive deliveries as a result of insignificant defects.
VIII. Material defects
The supplier shall be liable for material defects as follows:
All parts or services are to be gratuitously subsequently improved at the supplier’s discretion, newly supplied or newly rendered that have a material defect within the period of limitation – without consideration given to the operating period provided the cause already applied at the time of the passing of risk.
Claims for material defects fall under the statute of limitations in 12 months. This does not apply provided the law in accordance with Sections 438(1) No. 2 (Building works and materials for building works), 479(1) (Recourse claim) and 634a(1) No. 2 (Building defects) BGB (German Civil Code) specify longer periods and in cases of the loss of life, physical injury or detrimental effects on health, in the case of intentional or gross negligent violation of an obligation on the part of the supplier and in the case of fraudulent concealment of a defect. This does not affect the statutory regulations about suspension of expiration of prescription, suspension and the new start of the periods.
The buyer is to notify the supplier in writing without delay of material defects.
In the case of notification of defects, the buyer may only hold back payments in an amount that is commensurate with the material defect in question. The buyer may only withhold payments if notification of defects has been given and there can be no doubts about the entitlement in that respect. If the notification of defects is not justified, the supplier shall be entitled to demand reimbursement from the buyer of the expenses incurred by the supplier.
First of all the supplier is to be given the opportunity to provide subsequent performance within a reasonable period.
If the subsequent performance fails, the buyer may, irrespective of possible claims for damages in accordance with Article XI, withdraw from the contract or reduce the remuneration.
Warranty claims shall not apply in the case of merely insignificant variations from the agreed quality, in the case of merely insignificant detrimental effects on usability, in the event of natural wear-and-tear and in the case of damage caused following the passing of risk as a result of faulty or negligent handling, excessive use, inappropriate operating resources, faulty construction work, unsuitable building foundation or due to special, external factors that are not foreseen in accordance with the contract and in the case of non-reproducible software errors. If the buyer or third parties make inappropriate alterations or perform maintenance work, similarly warranty claims shall not apply to these and the resulting consequences.
The buyer’s claims regarding the expenses required for the purpose of subsequent performance, in particular transport, travelling, work and material costs, are excluded insofar as the expenses increase because the subject matter of delivery has subsequently been brought to a location other than the buyer’s branch unless such bringing complies with its intended use.
The buyer shall only have recourse claims against the supplier in accordance with Section 478 BGB ((Recourse by the entrepreneur) to the extent that the buyer does not enter into any agreements with its customer which go beyond the extent of statutory claims for defects. Furthermore, in accordance with Section 478(2) BGB, No. 8 applies accordingly to the scope of the buyer’s recourse claims.
In other respects, Article XI (Other claims for damages) applies to claims for damages. Further-reaching or other claims of the buyer against the supplier and its vicarious agents regarding material defects other than those provided for in Article XIII are excluded.
IX. Commercial property rights and copyrights; defects in title
Where not agreed to the contrary, the supplier undertakes merely to provide the delivery in the country of the delivery location free of third-party commercial property rights and copyrights (hereinafter: property rights). Where a third party asserts justified claims against the buyer regarding the violation of property rights as a result of deliveries made by the supplier as per agreement, the supplier shall be liable to the buyer within the period determined in Article VIII, No. 2, as follows:
a) The supplier shall, at its discretion and cost, in respect of the affected deliveries either bring about a utilisation right, amend it such that the property right is not violated or exchange the deliveries. If the supplier is not able to do this under reasonable conditions, the buyer shall have recourse to the statutory withdrawal or reduction rights.
b) The supplier’s obligation to provide compensation for damages is based on Article XI.
c) The aforementioned obligations on the part of the supplier shall only apply if the buyer informs the supplier without delay in writing of the claims asserted by third parties, does not acknowledge a violation and the supplier is reserved the right to adopt any measures to ward off danger and enter into composition negotiations. If the buyer discontinues the use of the delivery to reduce damage or for other good cause, the buyer undertakes to draw the third party’s attention to the fact that the discontinuation of use is not associated with acknowledgement of a property right infringement.
The buyer’s claims shall be excluded provided it is responsible for the property right infringement.
The buyer’s claims shall be furthermore excluded provided the property right infringement is caused by special requirements of the buyer, non-foreseeable application by the buyer or as a result of the fact that the delivery is altered by the buyer or used in conjunction with products not delivered by the supplier.
In the event of property rights infringements, in other respects the provisions of Article VIII, Nos. 4, 5 and 9 apply accordingly to the buyer’s claims provided for in No. 1a).
In the case of other defects in title, the provisions of Article VIII apply accordingly. Further-reaching claims or claims of the buyer other than those provided for in this Article IX against the supplier and its vicarious agents regarding material defects are excluded.
X. Impossibility, contractual amendment
Where the delivery is impossible, the buyer shall be entitled to claim for damages unless the supplier is responsible for the impossibility. However, the buyer’s claim for damages shall be restricted to 10 % of the value of the part of the delivery that cannot be expediently put into operation as a result of the impossibility. This restriction shall not apply where in cases of intent, gross negligence or liability is mandatory as a result of the loss of life, physical injury or detrimental effects on health. This is not associated with a change of the burden of proof to the disadvantage of the buyer. This does not affect the buyer’s right to withdraw from the contract.
Where unforeseeable events within the meaning of Article IV, No. 2, considerably change the economic significance or the content of the delivery, or have a considerable effect on the supplier’s business enterprise, the contract shall be amended accordingly on a good faith basis. Where this is not economically acceptable, the supplier shall be entitled to withdraw from the contract. If the supplier intends to exercise such a right, the supplier is to notify the buyer of this after gaining knowledge of the scope of the event, including if an extension of the delivery period has initially been agreed upon with the buyer.
XI. Other claims for damages
The buyer’s claims for damages and reimbursement of expenses (hereinafter: claims for damages), irrespective on whichever legal grounds they are based, in particular regarding the violation of obligations resulting from the obligation and unlawful acts are excluded.
This does not apply where liability is obligatory, e.g. in accordance with the German Product Liability Act; in cases of intent; gross negligence; regarding the loss of life, physical injury or detrimental effects on health or regarding the violation of key contractual obligations. However, the claim for damages regarding the violation of key contractual obligations is limited to foreseeable damage that is typical in such contacts provided intent or gross negligence do not apply or liability applies as a result of the loss of life, physical injury or detrimental effects on health. The aforementioned regulations are not associated with a change in the burden of proof to the detriment of the buyer.
Where the buyer is entitled to claims for damages in accordance with this Article XI, these shall fall under the statute of limitations following
expiry of the limitation period in accordance with Article VIII, No. 2, which applies to claims for material defects. The statutory limitation requirements apply in the case of claims for damages in accordance with the
German Product Liability Act.
XII. Place of jurisdiction and applicable law
If the buyer is a merchant, the court with jurisdiction for the supplier’s registered office is deemed the sole place of jurisdiction in the case of any disputes resulting directly or indirectly from the contractual relationship. However, the supplier is also entitled to bring legal action at the court with jurisdiction for the buyer’s registered office.
German substantial law applies to the legal relations in conjunction with this contract by way of exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Law or CISG).
XIII. Binding force of the contract
In the event of the invalidity of individual provisions, the contract shall continue to have binding force in respect of its other parts.
This does not apply if adherence to the contract would constitute unacceptable hardship for any of the parties.