General Terms and Conditions of Lm-therm Elektrotechnik AG, Sulzbachstraße 15, 94501 Aldersbach
1 General; Scope of Validity
(1) These General Terms and Conditions shall apply to all of our business relationships with our customers (”Purchasers”). The General Terms and Conditions shall only apply if the Purchaser is an entrepreneur (§ 14 German Civil Code [BGB]), a legal person under public law or a separate fund under public law.
(2) The General Terms and Conditions particularly apply to contracts of sale and/or delivery agreements concerning movable objects (“goods“), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 German Civil Code [BGB]). Unless otherwise agreed, the version of the General Terms and Conditions valid at the time the Purchaser places the order or at all events the version of which he was last notified shall also apply as a frame agreement for similar contracts in future, without our having to indicate this again in each individual case.
(3) Our General Terms and Conditions shall apply exclusively. Any deviating, opposing or supplementary General Terms and Conditions of the Purchaser shall only become part of the contract if and to the extent that we have expressly consented to their validity. This consent requirement shall apply in all cases. It shall also apply, for example, if we are aware of the General Terms and Conditions of the Purchaser, and carry out the delivery to the Purchaser without reservation.
(4) Any individual agreements made with the Purchaser in each case (including ancillary agreements, amendments and modifications) shall always have priority over the present General Terms and Conditions. A written contract or our written confirmation shall be decisive regarding the content of such agreements, subject to proof of the contrary.
(5) Any legally relevant declarations and notices which are to be made to us by the Purchaser after the contract has been concluded (e.g. setting of time limits, notice of defects, declaration of rescission or reduction), must be made in writing in order to become effective.
(6) References to the validity of statutory provisions shall only be significant with regard to clarification. The statutory provisions shall therefore also be valid without any such clarification as far as they have not been directly amended in or expressly excluded from these General Terms and Conditions.
2 Conclusion of the Contract
(1) Our offers shall be non-binding and subject to confirmation. This shall also apply if we have made available to the Purchaser any catalogues, technical documentation (e.g. drawings, plans, calculations, cost-calculations, references to DIN norms), other product descriptions or data – including those in electronic form – with regard to which we reserve ownership and copyright.
(2) The ordering of goods by the Purchaser shall be deemed a binding offer of contract. Should nothing else result from the order, we shall be entitled to accept this offer of contract within five working days of our receiving it.
(3) The acceptance can either be declared in writing (e.g. by way of an order confirmation or an invoice being issued) or by delivering the goods to the Purchaser.
(4) Our order confirmation alone is decisive for the scope of the performance owed by contract. We reserve the right to variations customary to the trade within the bounds of what can be deemed reasonably acceptable for the Purchaser.
(5) We shall also reserve the right to make changes to the construction, choice of material, specification and design, even after order confirmation has been sent, if these changes are not inconsistent with either the order confirmation or the Purchaser’s specification. The Purchaser shall also agree to changes which we may suggest which go beyond this if they can be deemed reasonably acceptable for the Purchaser.
3 Delivery Time and Delivery Delay
(1) The delivery time shall be agreed individually or indicated by us upon acceptance of the order. If nothing has been agreed, the delivery times are non-binding.
(2) Should we not be able to comply with binding delivery times for reasons beyond our control (non-availability of the performance), we shall inform the Purchaser of this immediately and, at the same time, inform him of the estimated new delivery time. If the performance is still not available by the new delivery time, we shall be entitled to withdraw from the contract entirely or in part; we shall immediately reimburse any consideration already rendered by the Purchaser. What shall particularly apply as the non-availability of the performance in this sense is the situation where we do not receive a delivery from our supplier on time, if we have concluded a matching covering transaction, neither we nor our supplier are at fault, or we are not obliged to supply in certain cases.
(3) The event of our delivery delay shall be dictated by the statutory provisions. A reminder by the Purchaser shall be necessary in all cases. If we fall behind with our delivery, the Purchaser shall be entitled to demand a lump sum compensation for the damage caused by the delay. The lump sum for the damage shall be 0.5% of the net price (delivery value) for each completed calendar week, but no more than a total of 5% of the delivery value of the goods delivered late. We shall reserve the right to prove that the Purchaser incurred no loss at all or only a considerably smaller loss than the lump sum above.
(4) The rights of the Purchaser according to § 8 of these General Terms and Conditions and our legal rights shall remain unaffected, particularly in the case of an exclusion of liability (e.g. due to the performance and/or supplementary performance being impossible or unreasonable).
4 Delivery, Passing of Risk, Acceptance, Delayed Acceptance
(1) The delivery shall be made ex warehouse, which is also the place of performance for the delivery and any supplementary performance. The goods shall be shipped to a different destination (sale by delivery to a place other than the place of performance) at the request and expense of the Purchaser. Unless otherwise agreed, we shall be entitled to determine the type of shipment ourselves (particularly transport company, shipping route, packaging).
(2) The risk of accidental loss and accidental deterioration of the goods shall be passed to the Purchaser no later than the time of delivery. However, in the case of the sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall be passed to the forwarder, the carrier or any other person or institution specified to carry out the shipment as soon as the goods are dispatched. As far as acceptance has been agreed, this acceptance shall be decisive for the passing of risk. Likewise for the rest, the statutory provisions of the law on contracts for work and services shall apply accordingly with regard to an agreed acceptance. If the Purchaser has delayed acceptance, this will be considered to be delivery or acceptance.
(3) If the Purchaser has delayed acceptance, fails to take co-operative action, or if our delivery is delayed for other reasons for which the Purchaser is responsible, we shall be entitled to demand replacement for the damage resulting from this, including additional expenses (e.g. warehousing costs).
The right to prove a more substantial loss, and our statutory claims (particularly reimbursement of additional expenses, adequate compensation, termination) shall remain unaffected; the lump sum, however, shall be offset against any further monetary claims. The Purchaser shall be permitted to furnish evidence to show that no loss at all was incurred by us or only a considerably smaller loss than the lump sum above.
(5) Partial deliveries shall be admissible.
5 Prices and Terms of Payment
(1) Unless otherwise agreed in individual cases, our current prices at the time the contract was concluded shall apply. These are charged ex warehouse, plus statutory VAT.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4(1)), the Purchaser shall bear the transport costs ex warehouse and the costs of any transport insurance which may be desired by the Purchaser. Any customs duties, fees, taxes and other public dues shall be borne by the Purchaser.
(3) The purchase price shall be due and payable in full within 30 days of invoicing and delivery or acceptance of the goods. However, we shall be entitled at all times to only make full or partial delivery in return for advance payment. This shall also apply in the context of an ongoing business relationship. Furthermore, in the case of projects we are also entitled to demand part-payments corresponding to the progress of the project. We shall declare such a condition accordingly no later than the time at which the order is confirmed.
(4) The Purchaser shall fall into arrears upon expiry of the above payment period. During the period in arrears, the purchase price shall be interest-bearing at the statutory interest rate on payments in arrears applicable in each case. We shall reserve the right to assert any further damage caused by the delay. With regard to traders, our claim to commercial maturity interest (§ 353 German Commercial Code [HGB]) shall remain unaffected.
(5) The Purchaser shall only be entitled to rights of set-off or retention if his claim has been declared final and absolute or is uncontested. In the case of defects in the delivery, the Purchaser’s counter-rights shall remain unaffected, particularly those in accordance with § 7(6) clause 2 of these General Terms and Conditions.
(6) If, after the contract has been concluded, it becomes apparent that our claim to the purchase price is at risk due to the Purchaser’s lack of capacity to perform (e.g. by a petition for insolvency proceedings to be opened), we shall be entitled to refuse performance according to the statutory provisions regarding a refused performance and – after setting a deadline if necessary – to withdraw from the contract (§ 321 German Civil Code [BGB]). Regarding contracts for the production of non-substitutable items (single-item productions), we may declare the withdrawal at once; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
(7) In the case of Make-to-Order, we shall be entitled to procure the material for the entire order and to manufacture the entire order volume immediately. Therefore, changes the Purchaser may desire after placing the order can no longer be taken into account unless this has been expressly agreed.
(8) If we take into account changes requested by the Purchaser, the Purchaser will be invoiced for the additional costs incurred by this.
6 Reservation of title
(1) We shall reserve the title to the goods sold until all of our present and future claims from the purchase agreement and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to a reservation of title must not be pledged or conveyed as a security to third parties until the secured claims have been paid in full. The Purchaser shall notify us in writing immediately if a petition is filed to open insolvency proceedings or if third parties access (e.g. attachments) any goods belonging to us.
(3) If the Purchaser acts in breach of contract, particularly in cases of non-payment of the due purchase price, we shall be entitled under the statutory provisions to withdraw from the contract and to demand that the goods be surrendered on the grounds of the reservation of title and the withdrawal. If the Purchaser does not pay the due purchase price, we may only assert these rights if we have previously given the Purchaser a suitable time limit for payment to no avail, or if such a time limit can be dispensed with under the statutory provisions.
(4) The Purchaser shall be entitled to resell and/or process the goods subject to a reservation of title in the ordinary course of business until revoked according to c) below. In this case, the following provisions shall apply in addition.
a) The reservation of title shall extend to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we shall be deemed the manufacturer. If the title to goods of third parties remains after their processing, mixing or combination, we shall acquire joint ownership proportionate to the invoice values of the processed, mixed or combined goods. For the rest, regarding the resulting product, the same shall apply as for the goods delivered under a reservation of title.
b) By way of precaution, the Purchaser shall already assign any claims towards third parties arising from the resale of the goods or the product now, either in total or to the amount of any co-ownership share we may have in accordance with the above section. We shall accept the assignment. The obligations of the Purchaser mentioned in (2) shall also apply regarding the assigned claims.
c) In addition to us, the Purchaser shall likewise remain entitled to collect the claim. We shall not collect the claim as long as the Purchaser meets his payment obligations towards us, there is no lack of his capacity to perform, and we do not assert reservation of title by exercising a right according to (3). If this is the case, however, we may demand that the Purchaser inform us of the assigned claims and their debtors, provide all the information necessary for their collection, submit the pertinent documents and inform the debtors (third parties) of the assignment. Furthermore, we shall be entitled in this case to revoke the Purchaser’s power to resell and process the goods subject to reservation of title.
d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities at our discretion at the Purchaser’s request.
7 Purchaser’s Claims for Defects
(1) Unless otherwise stipulated in the following, the statutory provisions shall apply regarding the rights of the Purchaser in the case of material defects and defects of title (including wrong and short delivery and improper assembly or inadequate assembly instructions). The statutory special provisions for final deliveries of goods to consumers (recourse of the supplier according to §§ 478, 479 German Civil Code [BGB]) shall remain unaffected in all cases.
(2) Our liability for defects shall primarily be based on the agreement made as to the quality of the goods. The product descriptions (including those by the manufacturer) given to the Purchaser before he placed the order or which were included in the contract in the same way as these General Terms and Conditions and which were designated as such shall apply as an agreement as to the quality of the goods.
(3) To the extent that the quality was not agreed, an evaluation shall be made according to the statutory regulations as to whether or not there is a defect (§ 434(1) clauses 2 and 3 German Civil Code [BGB]). However, we shall not assume any liability for public statements by the manufacturer or other third parties (e.g. advertising messages).
(4) The Purchaser’s claims for defects imply that he has complied with his statutory obligation to inspect for and give notification of defects (§§ 377, 381 German Commercial Code [HGB]). If a defect is ascertained during the inspection or later, we shall be notified of this immediately in writing. Notification shall be deemed immediate if it is made within two weeks, whereby it is sufficient for the notification to be sent in due time for the time limit to be considered met. Irrespective of this obligation to inspect for and give notification of defects, the Purchaser shall communicate any obvious defects in writing (including wrong and short delivery) within two weeks of delivery, whereby it is also sufficient here for the notification to be sent in due time for the time limit to be considered met. If the Purchaser omits to make a proper inspection and/or give notification of defects, our liability shall be excluded regarding the defect of which no notification was given.
(5) If the item delivered is defective, we can first choose whether to provide a supplementary performance by remedying the defect (rectification of the defect ) or by delivering a flawless object (replacement delivery). Our right to refuse supplementary performance under the statutory provisions shall remain unaffected.
(6) We shall be entitled to make the supplementary performance we owe dependent on the Purchaser paying the due purchase price. However, the Purchaser shall be entitled to retain part of the purchase price in suitable proportion to the defect.
(7) The Purchaser shall give us the time and opportunity necessary to render the supplementary performance owed, and shall particularly surrender to us the rejected goods for the purposes of inspection. In the case of a replacement delivery, the Purchaser shall return the defective item to us in accordance with the statutory provisions. The supplementary performance does not include either the disassembly of the defective item or the re-installation if we were not originally obliged to install the item.
(8) If the supplementary performance has failed or a time limit to be set by the Purchaser to complete the supplementary performance has expired to no avail or is superfluous according to the statutory provisions, the Purchaser may withdraw from the purchase agreement or reduce the purchase price. However, there shall be no right to withdraw from the contract in the case of an insignificant defect.
(9) In the case of defects, the Purchaser shall also only have a claim to compensation for damages or replacement of futile expenses according to § 8, and this shall be excluded for the rest. (10) Claims for defects shall not apply if there is only negligible deviation from the quality agreed, only negligible impairment of viability, natural wear and tear as with damage occurring after the passing of risk as a result of incorrect or careless treatment, excessive wear, unsuitable operating resources or because of special external influences which were not assumed according to the agreement. If improper maintenance work or changes are performed by the Purchaser or third parties, there shall likewise be no claims for defects that can be asserted for these or for the consequences resulting from them.
8 Other Liability
(1) To the extent that nothing else results from these General Terms and Conditions including the following provisions, we shall be liable in the case of a breach of contractual and extra-contractual obligations according to the statutory provisions.
(2) We shall be liable for damages – irrespective of the legal basis – in the context of negligent liability in the case of intent and gross negligence. In the case of simple negligence, subject to a more lenient criterion of liability, we shall only be liable according to statutory provisions (e.g. regarding diligence in our own business)
a) for damages caused by injury to life, limb or health,
b) for damages caused the serious breach of an essential contractual obligation (obligation which has to be fulfilled for the proper performance of the contract to be possible at all, and in the compliance with which the contractual parties generally trust and may trust); in this case, however, our liability is limited to the compensation of foreseeable damages which typically occur.
(3) The liability limitations resulting from (2) shall also apply in the case of breaches of obligation by or in favour of persons for whose fault we are responsible according to statutory provisions. They shall not apply if we have concealed a defect fraudulently or granted a guarantee for the quality of the goods, or for claims of the Purchaser according to the product liability act [ProdHaftG].
(4) The Purchaser can only withdraw from or terminate the contract due to a breach of obligation which does not consist of a defect if we are responsible for the breach of obligation. An unrestricted right of termination on the part of the Purchaser (particularly according to §§ 651 and 649, German Civil Code [BGB]) shall be excluded. For the rest, the statutory requirements and legal consequences shall apply.
9 Limitation Period
(1) Deviating from § 438(1) no. 3 German Civil Code [BGB], the general limitation period for claims from material defects and defects of title shall be one year from delivery. If taking delivery has been agreed, the limitation period shall commence upon taking delivery.
(2) The above limitation periods of the sale of goods shall also apply to contractual and extra-contractual damage claims of the Purchaser which are based upon a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 German Civil Code [BGB]) would lead to a shorter limitation period in individual cases. However, according to § 8(2) clause 1 and clause 2(a) and according to the product liability act [ProdHaftG], damage claims of the Purchaser fall under the statute of limitations exclusively according to the statutory limitation periods.
10 Choice of Law and Place of Jurisdiction
(1) The law of the Federal Republic of Germany with the exclusion of international uniform law, and the CISG in particular, shall apply with regard to these General Terms and Conditions and the contractual relationship between us and the Purchaser.
(2) In the case of dispute over the interpretation of these General Terms and Conditions, the German version shall be definitive.
(3) If the Purchaser is a trader in terms of the German Commercial Code, a legal person under public law or a separate fund under public law, the exclusive – and also international – place of jurisdiction for all direct or indirect disputes arising from the contractual relationship shall be our registered office in Passau. The same shall apply if the Purchaser is an entrepreneur in terms of § 14 of the German Civil Code [BGB]. However, we shall also be entitled in all cases to take action at the place of performance of the delivery commitment according to these General Terms and Conditions or an individual agreement which takes precedence, or at the general place of jurisdiction of the Purchaser. Statutory provisions which take precedence, particularly in the case of exclusive jurisdiction, shall remain unaffected.
(4) The agreement remains effective even if individual items in its other parts are legally invalid. The invalid items are replaced by the statutory provisions as far as these exist.
Status: November 2016