Section 1 Validity of the "General Terms of Sale and Delivery"
The following General Terms of Sale and Delivery shall be applicable to all deliveries and performance of the CONTRACTOR. Deviating provisions, especially purchasing terms of the CUSTOMER, shall only become a component of the contract if this is expressly stipulated in writing.
Section 2 Formation of the contract / offer
I. Orders and supply agreements and also any special undertakings must be confirmed in writing by the CONTRACTOR. This requirement of the written form itself can only be waived on the basis of written agreements.
II. Offers by the contractor are subject to alteration without notice.
Section 3 Prices / payment
I. The deliveries and performance shall be effected at the prices and on the terms of the written confirmation of order. The prices indicated therein are binding.
II. The prices are expressed ex the contractor's domicile and warehouse. The rate of value added tax valid at the time of invoicing shall be levied on the prices.
III. Delivery and return shall in all cases be effected at the customer's risk; this shall also be applicable if the contractor assumes the shipment costs or the shipment.
IV. All invoices - unless otherwise agreed in writing - shall fall due for payment immediately and without deduction.
V. In the case of belated payment, a reasonable rate of default interest shall fall due, at least, however, the customary bank interest. The contractor can in any event demand interest at a rate of 5 % p.a. over the discount rate of the European Central Bank or a reference interest rate replacing this discount rate. If the contractor decides to accept bills, then this shall only be effected by way of provisional performance and not in lieu of performance. The contractor shall be entitled to revoke the deferral created by the acceptance of the bill at any time and to demand immediate payment. If bills are accepted, the bank discount and collection charges shall be levied from the due date of the invoice and shall be payable immediately in cash.
VI. The retention of payments or the set-off against any counter-claims disputed by the contractor is not permissible.
VII. Incoming payments shall, taking account of all due invoices at the time of the receipt of payment - irrespective of the individual invoice date - be allocated and set off as following: services, software licences, goods, miscellaneous. The customer cannot deviate from this regulation by unilateral declaration, unless it previously raised objection in writing to specific deliveries and/or performance and invokes the said objection in the deviation declaration.
Section 4 Delivery periods
I. Agreed delivery dates or performance dates are non-binding, un-less otherwise expressly stipulated in the written confirmation of order.
II. The delivery period shall commence with the dispatch of the confirmation of order, however not before the furnishing of the documents, articles, permits and releases which are to be obtained by the customer and not before the receipt of an agreed payment on account.
III. The delivery period has been met if the subject-matter of the delivery has left the works by its expiry or the readiness for shipment has been advised.
IV. The delivery period shall be extended in an appropriate manner in the case of measures within the scope of industrial disputes, especially strikes and lock-outs, and also upon the occurrence of unforeseen impediments which are outside the contractor's will, provided such impediments are proven to have a considerable influence on the completion or delivery of the subject-matter of the delivery. This shall also be applicable if the circumstances occur at subcontractors' premises. The contractor shall also not be responsible for the afore-mentioned circumstances if they occur once default has already taken place. The contractor shall inform the customer as soon as pos-sible of the start and end of such impediments in important cases. Compensation for default is excluded in the case of delays to delivery of less than 2 months. Furthermore, or if compensation must be paid for compulsory reasons, the following shall be applicable:
V. If the customer suffers a loss due to a delay which has arisen due to the contractor's own fault, then the customer shall be entitled to the exclusion of further claims to demand compensation for the default. It shall amount for every full week of the default to ½ per cent, in total, however, 5 per cent at the most, of the value of that part of the overall delivery which cannot be used in due time or in accordance with the contract on account of the delay.
VI. If shipment is delayed at the customer's request, then it shall be charged, commencing one week after the notification of the readiness for shipment, the costs incurred by the storage, in the case of storage at the contractor's works at least, however, ½ per cent of the invoice sum for every month.
The contractor is, however, entitled, after setting a reasonable dead-line which is not met, to dispose of the subject-matter of the delivery in another manner and to effect delivery to the customer with a reasonable extended delivery period.
VII. The meeting of the delivery period presupposes the performance of the customer's contractual obligations.
Section 5 Passing of risk and acceptance
I. Risk shall pass to the customer with the dispatch of the delivery items at the latest, namely also if part deliveries are effected or the contractor has assumed other services, e.g. the shipment costs or transport and installation. At the customer's express request, the shipment shall be insured at its expense by the contractor against theft, breakage, transport, fire and water damage as well as against other insurable risks.
II. If shipment is delayed due to circumstances for which the customer is responsible, then risk shall pass to the customer from the day of the readiness for shipment. The contractor is, however, obliged to activate the insurance at the customer's request and expense that the latter requests.
III. Delivered articles are, even if they have slight defects, to be accepted by the customer without prejudice to the rights arising from Section 10.
IV. Part deliveries are permissible.
Section 6 Refusal to take delivery / official acceptance refusal
I. If the customer refuses to officially accept the subject-matter of the contract arising from the delivery or performance, then the contractor can set it a reasonable period to take delivery or effect official acceptance. If the customer has not taken delivery of or officially accepted the subject-matter of the contract within the period granted to it, then the contractor shall be entitled to withdraw from the contract or to demand damages due to breach of contract. The contractor can in any event, even without proof of the actually incurred loss and without prejudice to the possibility of asserting a higher actually incurred loss, demand 20 per cent of the agreed price as damages.
II. If official acceptance is agreed or compulsory, the contractor shall in any event be entitled to request official acceptance if there are no longer any fundamental defects and if the correct functioning and operation of the system is guaranteed. Fundamental defects as defined by the confirmation of order are such defects which call into question or impede the commencement of the operation of the system. In this case, the contractor must suggest several possible official acceptance dates to the customer. The suggestion must be received by the customer two weeks at the latest before the proposed dates. If none of these suggested official acceptance dates is accepted by the customer at least two days before such a date and if the customer also does not suggest another date which lies within a period of four weeks since the receipt of the contractor's suggestion, then the system shall be regarded to be officially accepted after the expiry of the aforementioned four weeks.
Section 7 Reservation of title
I. All deliveries and performance shall be effected subject to reservation of title. Supplied goods shall remain the contractor's property until payment in full of the purchase price and of all other claims of the contractor against the customer from the ongoing business relation-ship.
II. If goods are processed or exploited by the customer, then the processing shall be effected for the contractor, and the contractor shall thus be regarded to be the manufacturer as defined by Article 950 of the German Civil Code and shall acquire title to the intermediate or finished product. In the case of processing with other articles which do not belong to the customer, the contractor shall acquire co-ownership of the new article in proportion to the value of the goods supplied by it to the value of the third-party articles at the time of processing.
III. The customer is entitled to resell supplied goods and to relicense rights within the scope of the concluded agreement, which may be revoked at any time, within the ordinary course of its business. The customer already now assigns to the contractor by way of security all claims in connection with the resale and the business relations with its purchasers along with ancillary rights in the amount of the value of the respectively supplied goods. The contractor is irrevocably authorised and obliged to disclose the assigned claims at any time.
IV. The contractor is authorised, but not obliged, to insure the subject-matter of the delivery at the customer's expense against theft, breakage, fire, water and other damage, unless the customer proves that it has taken out such insurance itself.
V. The customer may neither pledge the subject-matter of the delivery nor assign it by way of security. In the case of attachments and seizure or other dispositions by third parties, it must inform the contractor accordingly without delay.
VI. In the case of conduct contrary to the contract by the customer, especially in the case of default in payment, the contractor shall be entitled to take back the goods after issuing a warning and the customer shall be obliged to surrender the said goods.
VII. The assertion of the reservation of title and also the attachment of the subject-matter of the delivery by the contractor shall not be regarded to be a withdrawal from the contract, unless the Hire-Purchase Act is applicable.
Section 8 Performance
The deliveries and performance of the contractor shall be regarded to be executed with the notification of the readiness for shipment of the goods.
Section 9 Claim for damages
I. Claims for damages against the contractor and against its vicarious agents and vicarious agents with respect to tortious liability, irrespective of the cause in law (whether such cause arises from consultancy, positive breach of contract or tort), especially also for direct and consequential losses, are excluded, unless it can be proved that the contractor acted with intent or gross negligence or it is a case of the infringement of cardinal obligations or if compulsory liability is applicable from the guarantee of characteristics. Liability shall in any event and irrespective of the cause in law be restricted to 50 % of the overall value of the order, in which respect any contractual penalties are also to be taken into account when determining the liability.
II. In so far as claims for damages exist against the contractor, its vicarious agents or vicarious agents with respect to tortious liability, these claims shall become statute-barred within one year from delivery.
Section 10 Liability for defects to the delivery
For defects to the delivery, which also includes the lack of expressly guaranteed characteristics, the contractor shall be liable to the exclusion of further claims, notwithstanding Section 9, as following:
I. All those parts are to be repaired or supplied anew free of charge at the contractor's duly exercised option which prove to be unusable or considerably impeded in their usability due to a circumstance occurring before the passing of risk - especially due to faulty construction, poor materials or defective design - within 6 months (in the case of multi-shift operations within 3 months) since initial operation. The contractor must be notified of the ascertainment of such defects without delay in writing. Replaced parts shall become the contractor's property. If the shipment, installation or initial operation is delayed through no fault of the contractor, then the liability shall expire 12 months at the latest after the passing of risk. The contractor's liability for essential third-party products shall be restricted to the assignment of the liability claims to which it is entitled against the contractor of the third-party product.
II. The customer's right to assert claims from defects shall become statute-barred in all cases, from the time of the complaint in due time, in 6 months, at the earliest, however, with the expiry of the warranty period.
III. No warranty shall be assumed for defects which have arisen due to the following reasons:
Unsuitable or improper use, faulty assembly or initial operation by the customer or third parties, natural wear and tear, faulty or negligent treatment, unsuitable operating materials, replacement materials, faulty construction work, unsuitable foundation ground, chemical, electrochemical or electrical influences, unless they are due to fault on the part of the contractor.
Furthermore, no warranty shall be assumed for wearing damage to such parts which are denoted as or regarded to be wearing parts in the product documentation or according to the state of the art.
IV. After agreement with the contractor, the customer must give the contractor the necessary time and opportunity to carry out all repairs and substitute deliveries which seem necessary to the contractor at its due discretion; otherwise the contractor shall be released from the liability for defects. Only in urgent cases of the endangerment to the operating safety and to avert disproportionately greater losses, in which instances the contractor is to be informed immediately, or if the contractor is in default with the rectification of the defect, does the customer have the right to rectify the defect itself or to have it rectified by third parties and to demand reimbursement of the necessary expenses from the contractor. Even in this case, the customer must heed the principles of the appropriateness of the means and is obliged to keep the costs as low as possible.
V. Of the costs directly incurred by the repair or substitute delivery the contractor shall bear - provided the complaint proves to be justified. Packing and transport costs for the replaced and defective parts will be charged to the final customer. Defective goods must be returned to us free of charge. The receipt of shipments on basis freight collect will be rejected, or costs will be charged to customer.
In other respects, the customer shall bear the costs.
VI. The warranty period for the replacement part and the repair shall be three months; it shall, however, run at least until the expiry of the original warranty period for the subject-matter of the delivery. The period of the liability for defects to the subject-matter of the delivery shall be extended by the duration of the interruption to operations caused by the repair work.
VII. Any improper alterations or repair work undertaken by the customer or third parties without the contractor's prior consent shall result in the cancellation of the liability for the thus resulting consequences. In these cases, the contractor's warranty obligation shall cease to be applicable in full, unless the customer proves that the alterations or repair work cannot be the cause of the defect.
VIII. Further claims of the customer, especially a claim to the repara-tion of losses which have not been suffered by the subject-matter of the delivery itself, are excluded. This exclusion of liability shall not be applicable in the case of intent or gross negligence by the proprietor or executives, in the case of the infringement of cardinal obligations and in the cases in which according to the Product Liability Act liability is applicable regarding defects to the subject-matter of the delivery for personal injury or material damage to privately used articles. It shall also not be applicable if characteristics are lacking which are expressly guaranteed if the purpose of the guarantee was indeed to safeguard the customer against losses which have not been suffered by the subject-matter of the delivery itself.
IX. The customer shall grant the contractor the necessary time and opportunity to rectify any defects. If the customer refuses to do this, then the contractor shall be released from the warranty.
Section 11 Place of performance and place of jurisdiction
Place of performance for deliveries and performance and also place of jurisdiction for all liabilities and disputes arising from the contractual relationship is the contractor's head office or - at the contractor's option - the place of the contractor's branch establishment responsi-ble for the delivery/performance. The contractor is also entitled to raise an action at the customer's head office. The law of the Federal Republic of Germany shall be applicable to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The contractual language is German.
Section 12 Requirement of the written form
Ancillary agreements shall in principle only be effective if they are made in writing. Amendments and/or supplements must be made in wirting. This shall also apply to the waiver of the requirement of the written form itself.
Section 13 Severability clause
I. If a provision of these terms is or becomes ineffective, or if they should contain a gap, then the legal effectiveness of the remaining provisions shall not thus be affected.
II. In place of the ineffective provision an effective provision shall then be regarded to be stipulated which is closest to what the parties intended. The same shall be applicable in the case of a gap.
LINTEC GmbH & Co. KG
Buxtehude | 04.03.2016