GENERAL TERMS AND CONDITIONS
OUR CONDITIONS OF SALE ONLY APPLY TO EMPLOYERS PURSUANT TO SECTION 310 PARA. 1 OF THE GERMAN CIVIL CODE [BGB]
§1 Area of application, form
(1) These General Terms and Conditions of Sale and Delivery („GTCs“) shall 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“), without regard to whether LECHNER manufactures these goods itself or procures them from its suppliers.
(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 http://www.mylechner.de.
(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. Their effectiveness shall be subject to the same text form that applies to the Customer‘s unilateral legal transactions towards LECHNER after conclusion of the agreement. Any communications via email or fax shall also be subject to text form.
§2 Conclusion of an agreement
(1) All quotations are subject to change and non-binding, including quantity, delivery time and price. 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 may only be accepted subject to change. 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 abinding 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 a written order confirmation or by delivery of the goods to the Customer.
(1) Unless otherwise agreed in individual cases, the prices shall apply in accordance with LECHNER‘S sheet of terms and pricing conditions valid at the time of conclusion of the agreement. Prices are in EURO ex works (INCOTERMS 2010), plus packaging and the respective statutory VAT, plus customs duties in the case of export deliveries and fees and other public charges.
(2) The purchase price shall be due at the time of collection 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 having 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 con-text 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.
(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 Deadlines, delivery times, service delays
(1) LECHNER shall begin execution of the Customer‘s order once the following cumulative conditions have been met: receipt of all documents required for the execution, receipt of the agreed payment or first instalment, clarification of all and any technical questions, timely and proper fulfilment of the customer's additional obligations and fulfilment of any other preconditions required for order execution.
(2) The right to object to an unfulfilled order remains reserved.
(3) 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.
(4) LECHNER shall be exempt from the obligation to deliver without being liable to the Customer if a timely and correct delivery by one of LECHNER‘s suppliers does not materialize, and LECHNER is not responsible for this, and if LECHNER has concluded a congruent covering transaction.
(5) 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.
(6) In the case of force majeure or other unforeseeable extraordinary and involuntary circumstances – e.g. warlike events, disasters, fires and other hindrances during production or delivery, strikes, lockouts, production or delivery failures, equipment failures, government intervention, disease, lack of raw materials, energy supply difficulties, etc., even if these circumstances concern upstream suppliers, the delivery time shall be appropriately extended, if LECHNER is unable to meet it obligations in due time. If the above-mentioned circumstances render the delivery or service impossible or unreasonable, LECHNER shall be released from its obligation to deliver. LECHNER shall inform the Customer as soon as possible of the start and end date of such hindrances. Should the delivery delays last for longer than one month, the Customer shall be entitled to withdraw from the contract, excluding any further claims. If the delivery time is extended or LECHNER is released from its delivery obligation, the Customer may not derive any claims for damages on this basis.
§5 Shipment of goods
(1) Deliveries and transfer of risk are ex works (Incoterms 2010), unless otherwise expressly agreed in writing between LECHNER and the Customer.
(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 suitable for onceonly 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 time.
(6) Customary changes to 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.
§6 Limitations of liability
(1) LECHNER shall be subject to fault-based liability – on whatever 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. or damage arising from injury to life, body or health; and
2. for damage resulting from a significant 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 § 6 (1) shall alsoapply 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.
§7 Customer claims
(1) The customer's warranty claims presuppose fulfilment of its legal duties of inspection and notification of defects (§§ 377, 381 of the HGB). In principle, it should be determined, depending on the circumstances of each case, whether or not the Customer has promptly fulfilled its legal duties of inspection and notification of defects. In any case, the deciding factor shall be LECHNER‘s receipt of the notice of defects. If the Customer fails to inspect the goods and/or to report any defects as required, the goods shall be deemed to have been accepted n any case.
(2) Unless defect claims are excluded in accordance with the preceding paragraphs, the statutory regulations shall apply, unless agreed otherwise in the following.
(3) 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.
(4) 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.
(5) 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.
(6) 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 § 6 and shall otherwise be excluded.
§8 Limitation period
(1) Deviating from § 438 para.1 no. 3 of the BGB, the general limitation period for claims arising from defects of quality and title is one year from delivery.
(2) 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 of the BGB) would result in a shorter period. However, any claims for damages on the part of the Customer in terms of § 6 (1) and under the German Product Liability Law shall only expire in terms of the legal 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.
(1) LECHNER shall reserve the title to the purchased goods up to the time of full payment of the purchase price and until all debts from the business relationship have been paid by the Customer. In the event that the Customer should act in breach of contract, 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. 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) The retained goods must not be pledged as security, transferred or otherwise encumbered with rights of third parties. Seizure or other interference shall be reported immediately. The Customer shall only be entitled to resell the goods or to combine or mix them with other mobile items in the ordinary course of its business operations. Further processing of the goods supplied to the Customer under retention of title shall always be carried out on behalf of LECHNER, excluding the provisions of
§ 670 of the BGB. Should LECHNER‘s property perish due to it being combined or mixed with other mobile items, the Customer hereby agrees in advance to procure joint ownership for LECHNER, taking into account the ratio of the respective values of the combined or mixed items.
(3) The Customer shall ensure that LECHNER‘S retention of title is maintained if possible, and herewith assigns to LECHNER the purchase price claim resulting from the resale of the items to its customers in full or for the amount attributable to the proportion of its ownership. LECHNER hereby accepts this assignment. 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 must name the buyers of the goods and submit the documents required to assert their rights to LECHNER.
(4) At the Customer‘s request, LECHNER undertakes to release the securities to which it is entitled 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.
(5) Moreover, we are entitled, within the context of del credere agreements, to transfer the retained title to third parties. In such a case, the above provisions shall be applicable with the appropriate restrictions.
(1) At maturity of LECHNER‘s claims or in the event of the Customer‘s insolvency or overindebtedness, LECHNER shall be entitled to claim payment of security for all due receivables under the business relationship.
(2) The Customer shall hold in safe custody for LECHNER all assets in which security interests exist in favour of LECHNER.
§12 Customer's default
(1) In the case of default of acceptance by the Customer, we shall be entitled to proceed in accordance with § 373 of the HGB and the provisions of the German Civil Code, 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) The Customer shall waive the plea of the statute of limitations against our demands for 30 years from delivery of the goods.
(3) If the Customer culpably fails to take possible and reasonable measures to settle all of our claims, it shall be obliged to pay a penalty to the amount of 0.3% of the order value per day, with a maximum amount of 4% of the order value. Any further claims for damages on the part of LECHNER shall remain unaffected. The contractual penalty shall be offset against the claims for damages.
§13 Applicable law, jurisdiction
(1) This agreement 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 and the exclusive place of jurisdiction for all disputes arising out of, or in connection with, this agreement is 91522 Ansbach, Germany. However, LECHNER shall be entitled to take legal action against the Customer at its place of residence or registered office.
Guarantees in the legal sense provided by our sales or field personnel shall be effective only after our written confirmation. The same applies to statements made after the conclusion of contract, whereby deadlines or material contractual obligations are changed or payment deferrals granted to our disadvantage.
§15 Severability Clause
Should any provisions of these GTCs or any provisions of other agreements be or become invalid, the validity of the remaining provisions or agreements shall not be affected thereby.
Effective: October 2017