General Terms and Conditions of Sale

OUR TERMS AND CONDITIONS OF SALE ONLY APPLY TO ENTREPRENEURS PURSUANT TO § 310 (1) GERMAN CIVIL CODE (BGB)

 

Effective: April 2021

 

§ 1 Scope; form

(1) These General Terms and Conditions of Sale and Delivery ("GTCs") apply to all business relations between D. Lechner GmbH ("LECHNER") and its business partners receiving goods and other services from LECHNER ("Customers"). These GTCs shall apply in particular to agreements for the sale and/or delivery of mobile objects ("Goods"), as well as services (including measuring and assembly) without regard to whether LECHNER manufactures these goods itself or procures them from its suppliers or commissions third parties.

(2) These GTCs shall only apply to Customers which are entrepreneurs within the meaning of § 14 of the German Civil Code (BGB), legal entities subject to public law or special funds under public law.

(3) The GTCs shall also apply in their relevant applicable version as a framework agreement for future agreements with Customers, without LECHNER having to refer to these GTCs in each case; the current version of the GTCs is available at www.mylechner.de/agb.

(4) These conditions of sale shall apply exclusively. Any terms and conditions of the Customer or a third party shall not apply, even if LECHNER does not expressly object to their validity in any individual case. Even if LECHNER makes reference to a letter containing or referring to the Customer's or a third party's terms and conditions, this shall not constitute any agreement to the application of those terms.

(5) For the purpose of clarification, LECHNER points out that individual agreements with the Customer shall prevail over these GTCs. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative with regard to the content of such agreements.

(6) Legally relevant declarations and notifications by the Customer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. by letter, e-mail, fax). The statutory formal requirements and required additional evidence, in particular in case of doubt about the legitimacy of the party making the declaration, shall remain unaffected.

(7) References to the applicability of statutory provisions are made for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they have been directly amended or expressly excluded in these GTCs.

 

§ 2 Conclusion of an agreement

(1) All quotations are subject to change and non-binding, including quantities, delivery times and prices. This also applies to samples, models and specification of services of any kind included in the documents pertaining to the offer. These shall only be considered binding as approximate values customary in the trade if they were expressly indicated as binding in the order confirmation.

(2) Orders are subject to change even after we have accepted them. Commitments given with respect to quantities, delivery dates and prices shall only be considered legally binding after they have been confirmed in writing by LECHNER or if the order has been executed.

(3) Any orders submitted by the Customer shall constitute a binding contractual offer. Unless otherwise stated in the order, LECHNER shall be entitled to accept this offer within 14 days of receipt. Acceptance can be declared by means of a written order confirmation or delivery of the goods to the Customer.

 

§ 3 Prices and payment terms

(1) Unless otherwise agreed in individual cases, the prices shall apply in accordance with LECHNER'S sheet of terms and pricing conditions that is valid at the time of conclusion of the agreement. Prices are quoted in EUROS on the basis of delivery ex works (Incoterms 2020) from LECHNER's location in 91541 Rothenburg o.d.T., Erlbacher Straße 112, Germany, or from another named location, plus the applicable statutory value-added tax, and in the case of export deliveries plus customs duties as well as fees and other public charges.

(2) The purchase price shall be due and payable within 14 days of invoicing and delivery or acceptance of the goods, or at the time the goods are made available for collection or acceptance in accordance with the agreed delivery time at our company, and the Customer has been notified to collect the goods. LECHNER shall not grant the Customer any discounts, unless this is stipulated by individual agreement. LECHNER shall be entitled at any time, even within the context of an ongoing business relationship, to carry out a complete or partial delivery only against advance payment. An appropriate declaration of reservation shall be made by LECHNER during the confirmation of the order at the very latest. If it becomes apparent after conclusion of the contract (e.g. by filing for insolvency proceedings) that LECHNER's claim to the purchase price is jeopardised by the Customer's inability to pay, LECHNER is entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), LECHNER may declare its withdrawal immediately; the statutory regulations on the dispensability of setting a deadline shall remain unaffected.

(3) If the above payment period lapses, the Customer shall be in default without any additional reminder. The purchase price shall accrue interest at the applicable statutory default interest rate during the period of payment delay. LECHNER reserves the right to claim further damages. LECHNER's claim for commercial maturity interest (§ 353 of the German Commercial Code [HGB]) against traders remains unaffected.

(4) LECHNER is – insofar as such an assignment is not legally prohibited – entitled to assign its claims against the Customer to third parties.

 

§ 4 Deadlines, delivery times, service delays

(1) The delivery deadline shall be agreed individually or stated by LECHNER upon acceptance of the order. Delivery dates shall only be considered binding if they have been confirmed or agreed in writing by LECHNER. A fixed date shall only be considered valid if it has been expressly agreed.

(2) The right to object to an unfulfilled order remains reserved.

(3) If LECHNER is unable to meet binding delivery deadlines for reasons for which LECHNER is not responsible (non-availability of the service), LECHNER shall inform the Customer of this without delay and shall notify the Customer of the expected new delivery deadline. If the service is also not available before the new delivery deadline, LECHNER is entitled to withdraw from the contract in whole or in part, whereby LECHNER shall immediately refund any consideration already paid by the Customer. A case of non-availability of the performance in this sense is in particular non-timely independent deliveries by a supplier of LECHNER, provided that LECHNER has concluded a congruent hedging transaction, neither LECHNER nor the supplier is at fault or LECHNER is not obliged to complete the purchase in the individual case.

(4) Without prior notice and before expiry of a two-week period beginning with the expiry of the bindingly-confirmed delivery date, LECHNER shall not be deemed to be in default of delivery. Should LECHNER be in default of delivery, the Customer may request a lump sum payment in compensation for the damages caused by the delay. The lump-sum payment shall be equal to 0.5% of the net price (order value) for each completed calendar week of delay, however not exceeding 5% of the delayed goods' order value. LECHNER reserves the right to provide evidence that the Customer has incurred no damage or considerably less damage than the above lump sum.

(5) The rights of the Customer pursuant to § 7 of these GTCs and LECHNER's statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

 

§ 5 Shipment of the goods; transfer of risk and customary deviations in the delivery items

(1) Deliveries and the transfer of risk are ex works (Incoterms 2020), unless otherwise expressly agreed in writing between LECHNER and the Customer, from LECHNER's location in 91541 Rothenburg o.d.T., Erlbacher Straße 112, Germany or another named location. Insofar as acceptance has been agreed, this shall be decisive with regard to the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis with regard to an agreed acceptance. Handover or acceptance shall be deemed equivalent if the Customer is in default of acceptance.

(2) LECHNER shall be entitled to use subcontractors at its own expense without prior consultation with the Customer. The use of a subcontractor shall not acquit LECHNER of its contractual obligations. Any contractor shall be considered to be LECHNER's performing agent.

(3) The Customer shall be obliged to return any packaging materials that are not only suitable for one-time use ("Reusable transport packaging") to LECHNER at its own expense. LECHNER shall be entitled to charge an appropriate deposit for any reusable transport packaging.

(4) Under consideration of LECHNER's interests, partial deliveries shall be permitted , in a scope reasonable for the Customer, particularly if the partial delivery is usable by the Customer as part of the contractually intended purpose, delivery of the remaining ordered goods is ensured, and the Customer does not have to face considerable extra effort or expense thereby.

(5) The Customer shall confirm receipt of the goods, stating the date and providing an authorised signature.

(6) Customary deviations in the delivery items are reserved, provided that the Customer is not unreasonably affected thereby, the usability of the product is not affected, and the changes are necessary due to important operational requirements on the part of LECHNER.

(7) Where acceptance of the goods has been agreed, this shall be carried out immediately on the acceptance date, or alternatively upon receipt of our notification of readiness for acceptance. The Customer may not refuse acceptance of the goods due to insignificant defects, without prejudice to its rights pursuant to Section 6.

 

§ 6 Claims by the Customer relating to defects

(1) The statutory provisions shall apply to the Customer's rights in the event of material defects and defects of title (including incorrect and underdelivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse pursuant to §§ 478 BGB). Claims arising due to supplier recourse are excluded if the defective goods have been further processed by the Customer or another entrepreneur, e.g. by means of installation in another product.

(2) The Customer's warranty claims presuppose fulfilment of its legal duties of inspection and notification of defects (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before the processing. Should a defect become apparent during delivery, inspection or at any later time, LECHNER must be notified of this in writing without delay. In any case, LECHNER shall be notified of obvious defects in writing within ten (10) working days from delivery. For defects that were not recognisable upon inspection, the same deadline applies from the time of their discovery. If the Customer fails to properly inspect the goods and/or to notify LECHNER of the defect, LECHNER's liability for defects that were not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.  

(3) Unless defect claims are excluded in accordance with the preceding paragraphs, the statutory regulations shall apply, unless agreed otherwise in the following.

(4) If the delivered item is defective, LECHNER shall be obliged, at its own discretion, either to repair the goods or to deliver goods free from any defects.

(5) LECHNER shall be entitled to make the supplementary performance conditional upon the Customer paying the purchase price due. However, the Customer shall be entitled to retain a reasonable portion of the purchase price relative to the defective part of the delivery.

(6) The Customer shall allow LECHNER the necessary time and opportunity to carry out the supplementary performance and, in particular, to examine the defective goods. For this purpose, the Customer shall keep the goods in the custody of a diligent businessman in compliance with the storage instructions. If the goods have been used, a sample of the defective goods shall be kept and handed over to LECHNER. The supplementary performance does not include the removal of the defective item or its re-installation if LECHNER was not originally obliged to install it.

(7) Even in the case of defects, any claims for damages or compensation of futile expenses on the part of the Customer shall only exist in accordance with § 7 and shall otherwise be excluded.

 

§ 7 Subject matter of the agreement

(1) LECHNER shall be subject to fault-based liability – regardless of the legal grounds – in the case of intent and gross negligence. In the case of simple negligence, LECHNER shall only be liable subject to a less severe standard of liability in accordance with the legal regulations (e.g. for care of its own affairs)

1. for damage arising from injury to life, body or health; and

2. for damage resulting from a breach of material contractual obligations (an obligation, the proper fulfilment of which constitutes a condition sine qua non and upon the fulfilment of which the Customer regularly relies and may rely); in this case LECHNER's liability shall be limited to the reimbursement of the foreseeable, typically occurring damage.

(2) Limitations of liability resulting from § 7 (1) shall also apply to breaches of duty by or for the benefit of persons for whose fault LECHNER is responsible in accordance with the legal statutes. Beyond this, LECHNER shall not be liable for the faults of other persons. These limitations shall not apply if LECHNER has fraudulently concealed a defect, or provided a guarantee for the quality of the goods, or for claims under the German Product Liability Act.

(3) Due to a breach of duty that does not consist of a defect, the Customer is only entitled to withdraw from or terminate the contract if LECHNER is responsible for the breach of duty. The Customer shall not have a free right of termination (in particular in accordance with §§ 650, 648 BGB). In all other respects, the statutory requirements and legal consequences shall apply.

 

§ 8 Limitation period

(1) Deviating from § 438 (1) (3) of the German Civil Code (BGB), the general limitation period for claims arising from defects of quality and title is one (1) year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.

(2) If, however, the goods are a building structure or an item that has been used for a building structure in accordance with their customary manner of use, and have caused its defective nature (building material), the limitation period shall be five (5) years from delivery in accordance with the statutory provision (Section 438 (1) (2) BGB). Further special statutory provisions on limitation (in particular § 438 (1) (1), (3), §§ 444, 445b BGB) shall remain unaffected.

(3) This also applies to contractual and non-contractual claims for damages on the part of the Customer based on a defect in the goods, unless in an individual case, the application of the regular statutory limitation period (§§ 195, 199 BGB) would result in a shorter period. However, any claims for damages on the part of the Customer in terms of § 7 (1) sentence 1 and sentence 2 no. 1, and under the German Product Liability Law (Produkthaftungsgesetz) shall only expire in accordance with the statutory limitation periods.

 

§ 9 Rights of set-off or retention

(1) The Customer shall only assume any rights of set-off or retention insofar as its claims are undisputed or legally binding by court order. In the event of defective delivery, any counterclaims on the part of the Customer shall remain unaffected.

(2) The offsetting restrictions shall not apply in the event of the Customer's insolvency.

 

§ 10 Retention of title

(1) LECHNER shall retain title to the delivered goods until all – present and future – claims against the Customer arising from the purchase contract and the ongoing business relationship have been settled. In the event of a breach of the contract by the Customer, in particular in the event non-payment of the purchase price due, LECHNER shall be entitled to withdraw from the agreement under the statutory provisions and to demand return of the goods on the basis of retention of title and withdrawal from the agreement. Any demand for the return of goods shall not be deemed to include a simultaneous declaration of withdrawal; on the contrary, we shall be entitled to demand only the return of the goods and to reserve the right of withdrawal. If the Customer does not pay the purchase price due, LECHNER may assume these rights only after LECHNER has set the Customer an appropriate deadline for payment without result, or if setting such a deadline is waived in accordance with legal regulations.

(2) Provided that it is not in default of payment, the Customer may resell the delivered goods in the ordinary course of its business, combine them with other movable objects or mix them. The Customer shall ensure that LECHNER's retention of title continues to apply as far as possible, and hereby assigns to LECHNER all claims in the full amount, or in the amount in corresponding to its co-ownership share, to which it is entitled as a result of the resale of the items to third parties. LECHNER accepts this assignment. The obligations of the Customer mentioned in Section (4) shall also apply with regard to the assigned claims. After the assignment, the Customer shall be entitled to collect the receivables, provided that LECHNER confirms its agreement to this in writing. LECHNER shall reserve the right to collect the receivables itself if the Customer fails to meet its payment obligations and defaults on payment. At LECHNER's request, the Customer shall name the purchasers of the goods and hand over to LECHNER the documents required to assert its rights and inform the purchasers of the assignment.

(3) The retention of title extends to the products created by processing, mixing or combining LECHNER's goods at their full value, whereby LECHNER, to the exclusion of a claim by the Customer in accordance with § 670 BGB, is deemed to be the manufacturer. In the event of processing, mixing or combining of the goods with goods of third parties, whereby the latter's right of ownership remains, LECHNER shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.

(4) In the event of a resale of the goods on credit, the Customer shall reserve the right of ownership. The retained goods shall not be pledged as security, transferred or otherwise encumbered with rights of third parties. The Customer shall notify LECHNER immediately in writing of any access by third parties to the reserved goods or the assigned claims, and shall hand over the documents necessary for the intervention. Where, after successful intervention against the third party, the third party is not able to reimburse the court or out-of-court costs to which we are entitled following said third party's unsuccessful attempts at enforcement, the Customer shall be liable for these. The Customer shall also notify LECHNER immediately in writing if an application is made to open insolvency proceedings.

(5) At the Customer's request, LECHNER undertakes to release the existing securities, insofar as the realizable value of LECHNER's securities exceeds the claim to be secured by more than 10%; the choice of the securities to be released is at LECHNER's discretion.

(6) LECHNER is furthermore entitled to transfer the retained title to third parties within the framework of del credere agreements. In such a case, the above provisions shall be applicable with the appropriate restrictions.

 

 § 11 Customer's default

(1) In the event of default of acceptance on the part of the Customer, we shall be entitled to proceed in accordance with § 373 of the German Commercial Code (HGB) and the provisions of the German Civil Code (BGB), and, in particular, to have the goods auctioned in compliance with legal requirements or to utilise them otherwise at the expense of the Customer.

(2) If the Customer is in default of acceptance, fails to cooperate or if LECHNER's delivery is delayed for other reasons for which the Customer is responsible, LECHNER shall be entitled to claim compensation for the resulting damages including additional expenses (e.g. storage costs). For this purpose, LECHNER shall be entitled to demand lump-sum compensation for the damages it incurs due to the delay. The lump-sum compensation shall amount to 0.5 % of the net contract volume per completed calendar week, but not more than 5 % of the net contract volume, starting from the delivery deadline or – in the absence of a delivery deadline – from the time of the notification that the goods were ready for collection/acceptance. LECHNER reserves the right to prove higher damages and to assert statutory claims (in particular compensation for additional expenses, reasonable compensation, termination); the lump sum shall in any case be offset against further monetary claims. The Customer reserves the right to provide evidence that LECHNER has incurred no damage or considerably less damage than the above-mentioned lump sum.

 

 § 12 Applicable law; place of performance; place of jurisdiction

(1) These GTCs and the contractual relationship between LECHNER and the Customer shall be governed by the substantive laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(2) The place of performance for deliveries and payments shall be ex works (Incoterms 2020) from LECHNER's location in 91541 Rothenburg o.d.T., Erlbacher Straße 112, Germany.

(3) The exclusive – including international – place of jurisdiction for all disputes arising from or in connection with the agreement that refers to the GTCs is LECHNER's place of business in 91541 Rothenburg o.d.T., Germany. However, LECHNER is entitled to bring an action at the place of performance of the delivery obligation pursuant to these GTCs or an overriding separate agreement, or to bring an action against the Customer at the latter's registered office or place of business. Any overriding statutory provisions, in particular those governing exclusive jurisdictions, shall remain unaffected.

 

§ 13 Guarantees

Guarantees in the legal sense provided by LECHNER's sales or field staff require LECHNER's written confirmation to be effective. The same applies to statements made after the conclusion of contract, whereby deadlines or material contractual obligations are changed or payment deferrals granted to LECHNER's disadvantage.