GENERAL TERMS AND CONDITIONS
of Lorch Schweißtechnik GmbH, Auenwald
§ 1 General Provisions
(1) All our deliveries, services and offers are based exclusively on the General Terms and Conditions (T&Cs) at hand. The T&Cs at hand represent an integral part of all contracts we conclude with our contractual partners (hereinafter also referred to as 'Customers') regarding the deliveries or services we offer.
(2) General Terms and Conditions of Customers shall only become an integral part of contract if and insofar as we expressly consented to their validity in writing. The requirement for our written consent shall apply in every instance, for example, even if we execute a delivery to customers without reservation and despite the knowledge of their general terms and conditions.
(3) Our T&Cs shall only apply if customers are entrepreneurs (in the meaning of to §14 BGB (German Civil Code)), a public legal entity or a special fund under public law.
(4) Individual agreements made with the Customer in particular cases (including ancillary agreements, supplements and modifications) shall always take precedence over the terms and conditions at hand. Subject to evidence to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
(5) Legally relevant declarations and notifications that we require from the Customer following conclusion of the contract (e.g. relating to deadlines, notification of defects, declaration of withdrawal or reduction) shall be made in writing to be effective.
§2 Offer and conclusion of contract
(1) All our offers are subject to confirmation and are non-binding unless they are explicitly declared as binding or contain a specific acceptance period. Orders or commissions shall be accepted within fourteen days of receipt by sending an order confirmation. Likewise, technical descriptions and other data in offers, brochures and other information are initially not binding.
(2) The subject of the contract is derived from the order and our order confirmation. Details shall result from the requirements specification, insofar as this is bindingly agreed with us in writing.
(3) Additions and amendments to the agreements made, including the Terms and Conditions, shall not be legally effective unless made in writing. With the exception of managing directors or authorized representatives, our employees are not entitled to make verbal agreements which deviate thereof. To comply with the written form requirement, the telecommunication based transmission by fax or e-mail shall be admissible.
(4) We expressly reserve the property right or copyright to all offers and estimates submitted by us, as well as to any drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and auxiliaries we have provided to a Customer without restriction. Without our express consent, the Customer may not make the aforementioned items either as such or the content thereof available to any third party, publish or use or reproduce them himself or have them used or reproduced by a third party. On request, the Customer must return to us such documents and tools in their entirety and, where applicable, destroy any copies made of them, if they are no longer needed by the Customer in the proper course of business or if negotiations do not result in the conclusion of a contract. This shall not apply for the storage of electronically provided data for the purpose of conventional data backup.
(5) The same shall apply if the order deviates from our previous offer. A contract comes into effect upon written confirmation of the order, at the latest however, when we commence with the delivery or the provisioning of the goods. The transmission by remote data transmission complies with the written form requirement pursuant to this paragraph. Disclosures within the meaning of para 1 as well as public statements made by us shall only become an integral part of the contract at hand if explicitly referred to in our order confirmation.
(6) In our confirmation, we are entitled to adapt specifications, varieties, quantities, schedules and deadlines to the actual possibilities. Such modifications shall be deemed to be agreed if the Customer does not object immediately upon receipt of the order confirmation, taking into account the interests of both contractual parties, if the modification is reasonable for the Customer and if reasonable acceptance of the modification can be assumed.
§3 Price and Payment
(1) Prices apply to the scope of service and delivery defined in the respective order confirmations. Additional or special services shall be calculated separately. Our prices are quoted in Euro plus packaging cost and VAT and are subject to customs duties for exports, fees and other public charges.
(2) Unless otherwise agreed in writing, invoice amounts shall be due and payable within 30 days of the invoice date without deduction. Payments shall only be deemed to have been made on time if they are credited to our account without reservation by the due date. Payment by cheque shall be precluded. If the Customer fails to effect payment by the due date, he will be in default without further reminders being required. Outstanding amounts shall be subject to interest in accordance with the statutory provisions; the assertion of higher interest and further damages caused by delay shall remain unaffected. We shall also be entitled to retain ownership of all deliveries or services until payment is received in full.
(3) A corresponding price adjustment shall remain reserved if the materials, operating materials, wage or salary costs underlying our calculation, change after conclusion of the contract.
(4) The offsetting by means of counter-claims of the Customer or the retention of payments due to such claims is, with the exception of the Customer's right of retention pursuant to §6 d) only permissible, insofar as such counter-claims are undisputed or legally binding.
(5) If, after conclusion of the contract, it becomes apparent that our payment claim is jeopardized by the customer's inability to perform, or if the customer is in default of payment of the purchase price from previous orders, we shall be entitled to refuse the provisioning of our service until the customer effects the payment or provides security in respect thereof. The Customer may not derive any rights from the legitimate refusal of service. If the payment or security is not submitted within 12 working days of a request to this effect, we are subsequently entitled to withdraw from the contract and claim damages in place of the service.
§4 Delivery and Delivery Time
(1) Deliveries shall be effected ex works from Auenwald, Germany. For the content and scope of our delivery and service obligation, our written order confirmation shall prevail, if applicable, in conjunction with a requirements specification, if such specification has been accepted by us in writing.
(2) Unless otherwise stated in the contract or the terms and conditions at hand, the terms and definitions of INCOTERMS 2010 shall apply.
(3) The Customer is entitled to demand changes to the subject of the contract, provided he accepts any exceeded costs and deadlines. In any event, a modification to the project shall only and only then be considered to be agreed, if a written amendment agreement was concluded by the contractual parties.
(4) We are only entitled to perform partial deliveries or to render partial services if they this is reasonable for the Customer and sufficient consideration is given to the Customer’s legitimate interests and provided the delivery of the outstanding goods is ensured and the Customer incurs no significant additional expenses or additional costs (unless we agree to bear such costs).
(5) The agreement of service deadlines or schedules takes place strictly subject to contractual cooperation of the Customer. Compliance with our service obligations assumes that the Customer's advance payments have been effected. As long as this is not the case, we shall be entitled to withhold our service. The Customer may not derive any rights from the legitimate withholding of service. The provisions of this paragraph shall apply in particular if the Customer is in default of payment of a previous service.
(6) We are not liable for impossibility of delivery or for delivery delays, insofar as these have been caused by force majeure or other events, which were not foreseeable at the time of concluding the contract (e.g. operating disruptions of all kinds, difficulties in material and energy procurement, transport delays, strikes, legal lockouts, workforce, energy or raw material shortages, difficulties in obtaining necessary regulatory approvals, regulatory action, or failure to deliver or incorrect or late delivery from suppliers) for which we do not bear the responsibility. We are entitled to withdraw from the contract if such events make the delivery or service considerably more difficult or impossible for us and if such hindrance is not only of temporary duration. We will immediately reimburse the Customer for any payments already effected. In the case of hindrances of a temporary duration, the delivery or service periods shall be extended or the delivery or service dates shall be postponed by the duration of the hindrance plus a reasonable start-up period. We shall notify Customers of such delivery difficulties immediately. If it is unreasonable for the Customer to accept the delivery or service due to the delay, he can withdraw from the contract by way of an immediate written declaration to us.
(7) The occurrence of a delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder is required by the Customer. In the event of default, the delay compensation for Customers shall be limited to 0.5% for each completed week of delay, provided that a Customer can credibly demonstrate that this has caused him damages, but not more than 5% in total of the price for the part of the delivery in question.
§ 8 para 2 shall remain unaffected by the foregoing. Moreover, Customers can set an appropriate extension of time in writing, which must amount to at least 15 working days. After fruitless expiry of this period, Customers shall be entitled to withdraw from the contract in writing. Damage compensation in place of performance is limited to the contract-typical foreseeable damage. The aforementioned regulations shall apply to partial deliveries and partial services accordingly.
(8) Claims of a Customer due to the exclusion of the obligation to performance and because of a performance hindrance upon conclusion of the contract shall be, with the exception of the cases stated in §8 (2), limited to the contractually foreseeable damage. The same shall apply if we only partially effect the service.
§5 Place of fulfilment, dispatch, packaging, transfer of risk and acceptance
(1) Unless otherwise stipulated, place of fulfilment for all obligations arising from the contractual relationship is the registered office of our company in Auenwald, Germany. In cases where we are also responsible for the commissioning, the place of fulfilment shall be at the place where the commissioning shall be performed. If acceptance is required, such acceptance shall be decisive for the transfer of risk. The acceptance shall be performed on the agreed date, alternatively following the notification of readiness for acceptance. The Customer may refuse acceptance only in the event of a major defect.
(2) The mode of dispatch and the packaging are subject to our reasonable discretion. The costs of dispatch and the packaging shall be borne by the Customer.
(3) For a net value of the goods below 50 Euro, we will charge a processing fee of 15 Euro plus postage and cost of dispatching.
(4) The risk shall transfer to the Customer at the latest upon the handover of the deliverable (whereby the commencement of the pre-loading process is decisive) to the freight forwarder, carrier or other third party responsible for the dispatch. This also applies if partial deliveries are made or if we have agreed to perform other services (dispatch or commissioning).
(5) In cases of delay of dispatch or acceptance due to circumstances beyond our control, the risk shall be transferred to the Customer on the day of notification of readiness for dispatch or acceptance. The same shall apply if the Customer is in default of acceptance.
(6) If the Customer becomes in default of request, acceptance or collection of the goods or if a delay of a shipment or a delivery is accountable to or requested by a Customer, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs), commencing with the expiry of the delivery period or, in the absence of a delivery period, with the notification of readiness for dispatch of the goods. The costs shall be chargeable regardless of whether the goods are stored on our premises or with a third party. The proof of higher damages and the assertion of further or other claims shall remain unaffected; the costs however, are to be offset against further monetary claims. The Customer shall be entitled to prove that we did not incur any damage at all or a substantially lower damage.
(7) Insofar as we are reimbursed by our insurance company, we shall transfer any insurance payment we receive under the existing insurance cover to the Customer. However, we are not obliged to conclude or maintain insurance cover. If the Customer so wishes in writing, we will verify whether and to what extent items made available by him and/or our goods are covered by existing liability insurance or at his own expense insure against the risks named by him in writing.
(8) We shall take out insurance for dispatch and transport.
(9) Transport and disposable packaging are not returnable.
§6 Material Defects
Our liability for material defects is agreed as follows:
a) At our discretion, those parts or services which show defects of quality shall be improved or remedied or a replacement delivery or a replacement performance of those parts or services shall occur at no cost insofar as the cause thereof existed already at the time of the transfer of risk.
b) Rectification claims shall be subject to a limitation period of 12 months from its legal commencement; the same shall apply to cancellation of the contract and price reductions. This deadline shall not apply:
- insofar as longer periods are stipulated under applicable law i.e., §438 para 1 no. 2 (buildings and objects for buildings) and §634a para 1 no. 2 (building defects) BGB (German Civil Code),
- in cases of intent,
- in cases of malicious non-disclosure of the defect, as well as
- failure to comply with a guarantee of quality.
Claims for reimbursement of expenses of the Customer pursuant to §445a BGB (German Civil Code)(recourse of the seller) shall also expire in 12 months from the statutory limitation period, provided that the last contract in the supply chain is not a consumer goods purchase. The statutory provisions regarding the suspension of the statute of limitations, suspension and recommencement of the deadlines remain unaffected.
c) The delivered goods must be thoroughly inspected immediately after delivery to the Customer or to a third party appointed by the Customer. Obvious defects and other defects that would have been apparent in an immediate, thorough inspection shall be deemed to be approved and accepted by the Customer, unless we receive a written notice within seven working days after delivery. With regard to other defects, the deliverables shall be deemed to be approved by the Customer, if the notice of defects does not reach us within seven working days after the point in time the defect was acknowledged; if the Customer was already aware of the defect under normal conditions of use at an earlier date, such earlier date shall be decisive for the commencement of the complaint period. The contested delivery item shall be sent back to us freight prepaid upon our request.
d) In the case of claims for defects, customer payments may be withheld only to an extent, which is appropriately proportionate to the occurred defects. Customers shall not have the right to retention, if a claim for defects have become statute-barred. If the notification of defects was unjustified, we shall be entitled to demand the reimbursement of expenses incurred by the Customer, unless the missing defect was not recognizable to the Customer.
e) We are obliged and entitled to rectify or replace delivered items with material defects within a reasonable period of time at our discretion. We shall bear the expenses required for the purpose of supplementary performance, in particular transport, travel, labour and material costs, insofar as these expenses do not increase as a result of the goods having been moved after delivery to a location other than the commercial branch of the Customer or we have to provide our services at this other location. Claims for reimbursement of expenses of the Customer pursuant to §445a BGB (German Civil Code)(recourse of the seller) are precluded, unless the last contract in the supply chain is a consumer goods purchase. Replaced parts will become our property. In the case of rectification, it is at our discretion to fulfil this at the Customer's site or to perform such rectification in one of our plants. If a rectification is performed in one of our plants, Customers are required to transport the defective goods to the plant named by us. If a defect actually exists, we shall bear the expenditures necessary for examination and supplementary performance or we shall reimburse expenditures in accordance with the statutory provisions
f) If the supplementary performance fails, the Customer shall be entitled - without prejudice to any claim of damages pursuant to §9 - to withdraw from the contract or reduce the remuneration. The setting of a deadline and the exercise of the right of withdrawal or reduction shall require a written statement respectively.
g) Claims for defects cannot be asserted for minor deviation from the agreed quality, for insignificant impairment of the usability, for natural wear and tear or damage after the transfer of risk due to faulty or negligent treatment, excessive use, unsuitable operating materials, poor construction, unsuitable foundation or for reasons which arise due to special external influences, which are not required under the contract, as well as non-reproducible software errors. In the event of improper modifications, installations/removals or maintenance by the Customer, we shall not assume responsibility for such modifications or maintenance or the ramifications thereof.
(h) Customary deviations of colour tones, dimensions, weights or quality shall not constitute defects of the delivery item.
i) Claims for reimbursement of expenses of the Customer pursuant to §445a BGB (German Civil Code)(recourse of the seller) only exist as far as the purchaser has not reached agreements beyond the legal claims for defects with his customers.
j) Claims for damages of the Customer due to a material defect are precluded unless otherwise stipulated in §8 para 2. The aforementioned regulations shall not involve modification of the burden of proof to the detriment of the Customer. Further claims or claims of the Customer other than those regulated in this paragraph due to a material defect shall be precluded.
§7 Industrial property rights and copyrights, defects of title
(1) Pursuant to §7, we guarantee that the delivered goods are free from any Industrial property rights or copyrights owned by any third party. Each Party to this contract will immediately notify the other Party in writing without delay if claims are asserted toward such Party on account of a breach of such rights.
(2) Any change of our goods and the attachment of foreign markings to our goods is prohibited.
(3) When executing an order (construction or similar) according to specifications, designs or instructions of the Customer, it is the sole responsibility of the customer to ensure his entitlement to unrestricted commercial use or utilisation of any protective rights contained in his specifications, designs or instructions. If third-party industrial property rights are violated by the order execution in accordance with specifications of the customer or if this violates a labelling obligation, the customer undertakes to exempt us from any claims for compensation, reimbursement and/or reimbursement of expenses incurred by third parties
§ 8 Liability for damage by cause
(1) Unless otherwise stipulated in these terms and conditions, claims for damages asserted by the customer, in particular due to breach of obligations arising from the contractual relationship and due to tortuous action shall be excluded regardless of their legal basis.
(2) This does not apply if one of the following liabilities apply:
- according to the product liability act,
- in cases of intent,
- in cases of gross negligence of owners, legal representatives or vicarious agents,
- in cases of fraudulent intent,
- when failing to comply with an accepted guarantee,
- due to culpable injury to life, limb or health, or
- due to infringement of essential contractual obligations.
The claim for damages for breach of essential contractual obligations, however, shall be limited to the contractually typical, foreseeable damage, unless another of the aforementioned cases exists.
(3) The aforementioned regulations shall not involve modification of the burden of proof to the detriment of the Customer.
§ 9 Retention of Title
(1) Ownership of goods delivered by us remains reserved until all our claims against the customer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. This also applies if claims are placed in an ongoing invoice and the balance is drawn and recognized. The Customer shall be obliged to treat the delivered goods with care and insure them in our favour against the usual risks (fire, water, storm, theft). The Customer shall be obliged to commission the necessary maintenance or inspections at his own expense.
(2) Until full payment and upon request, the Customer shall be permanently obliged to provide us with comprehensive information regarding the goods. Insofar as and as long as the retention of title exists, the Customer may neither centralise nor pledge the delivered goods without our written consent. The conclusion of financing contracts (e.g. leasing) which involves the transfer of our rights of retention require our prior written consent, unless the contract obligates the financing institution to pay the purchase price share to which we are entitled directly to us.
(3) The Customer is obliged to inform us immediately in writing if the goods are to be pledged by third parties or utilised in any other form, the goods are damaged or destroyed, the goods are lost or their owner changes or the customer's domestic business address or the location of the goods changes.
(4) In the event of breach of contract by the customer, in particular default of payment, we shall be entitled to withdraw from the contract and/or to take back and utilize the goods, if required by law, after setting a reasonable period of grace, and the customer is obliged to surrender at his own expense.
(5) In the event of pledges and other interventions by third parties, the customer must notify us in writing immediately and at its own expense and assist us in our intervention to protect our rights. The same applies if the customers assets deteriorate, in particular if an insolvency procedure has been filed over his assets. The Customer is liable in addition to the third party for the judicial and extra judicial costs of a third party objection action pursuant to §771 ZPO (German code of civil procedure).
(6) The application to commence insolvency proceedings over the assets of the Customer shall entitle us to withdraw from the contract and to demand the immediate return of the goods.
(7) The Customer is entitled to sell or process the goods during the course of normal business procedures. He carries out any processing for us without any obligations for us resulting therefrom. In the case of processing, combining or mixing the goods subject to retention of title with other goods, a co-ownership share in the new goods generally arises for processing in proportion to the value (= gross invoice value including ancillary costs and taxes) of the reserved goods to the value of the new goods, upon connection or mixing in the ratio of the value of the reserved goods to the value of the other goods. As soon as our property is dissolved due to mixing or connecting, the customer shall transfer to us the pro rata property rights.
(8) The Customer hereby assigns to us all claims arising from the resale against a customer or against third parties, including all ancillary rights and including any balance claims from the inclusion in current account conditions for security, as well as for all other claims arising from the business relationship. After the assignment, the customer is authorized to collect the claims which were assigned to us. We reserve the right to revoke the authorization for resale and confiscation and to collect the assigned claims ourselves if the customer does not properly fulfil his contractual obligations to us.
§ 10 Information according to the Consumer Dispute Settlement Act
We are not willing or obliged to participate in dispute resolution proceedings before a consumer arbitration board within the meaning of the Consumer Dispute Settlement Act.
§ 11 Final Provisions
(1) The rights of the Customer are not transferable.
(2) The relations between the Customer and ourselves are governed solely by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated April 11th, 1980 (CISG) shall not apply.
(3) The exclusive, also international place of jurisdiction for all disputes is our registered office Auenwald-Mittelbrüden, Germany; however, we are entitled to file a suit against the customer at his general place of jurisdiction. Statutory provisions in particular on exclusive jurisdictions shall remain unaffected.
(4) If individual provisions should be ineffective or the terms of delivery contain omissions, the effectiveness of the remaining provisions shall not be affected thereby. In place of the invalid provision, such valid provision shall be deemed agreed upon, which corresponds to the purpose and intent of the invalid provision. In the event of an omission, a provision shall be deemed agreed which corresponds, on the basis of the purpose and meaning of the Contract, to what the parties would have agreed, had the parties considered the matter at the outset.
Status as of December 2018