General terms and conditions
A. General conditions
I. Conclusion of contract
1. these terms and conditions of sale and delivery shall apply to all - including future - contracts, deliveries and other services, including consulting services, information and the like, unless they are amended or excluded with our express written consent. The Buyer's terms and conditions of purchase are hereby expressly rejected. They shall not be recognized even if we do not expressly object to them again after receipt by us. Our terms and conditions shall be deemed accepted at the latest upon acceptance of our delivery or service. 2.
2. our offers are generally subject to change. We reserve the right to change the promised performance, the time of performance and the price in any case. A binding force of contract conclusions and other agreements, in particular verbal subsidiary agreements and assurances, shall only arise through our written confirmation.
(3) The information, drawings, illustrations, technical data, descriptions of weights, dimensions and services contained in brochures, catalogs, circulars, advertisements, price lists or in the documents belonging to the offer, to which we reserve the right of ownership and copyright, are non-binding unless they are expressly designated as binding in the order confirmation.
4. the buyer shall be liable for ensuring that the rights of third parties are not infringed by the use of samples, drawings, etc. sent in and may be held liable for any disadvantages incurred as a result.
2. our offers are generally subject to change. We reserve the right to change the promised performance, the time of performance and the price in any case. A binding force of contract conclusions and other agreements, in particular verbal subsidiary agreements and assurances, shall only arise through our written confirmation.
(3) The information, drawings, illustrations, technical data, descriptions of weights, dimensions and services contained in brochures, catalogs, circulars, advertisements, price lists or in the documents belonging to the offer, to which we reserve the right of ownership and copyright, are non-binding unless they are expressly designated as binding in the order confirmation.
4. the buyer shall be liable for ensuring that the rights of third parties are not infringed by the use of samples, drawings, etc. sent in and may be held liable for any disadvantages incurred as a result.
II. prices
1. all prices quoted are ex works, plus packaging, transport and value added tax at the legally valid rate.
If our offered prices change (e.g. due to official measures) or if freight, taxes, duties or fees are introduced or increased after conclusion of the contract, we shall be entitled - even in the case of freight-free and/or duty-paid delivery - to adjust the price accordingly, unless we are responsible for the increase or the Buyer is a non-merchant and delivery to him takes place within four months after conclusion of the contract.
If our offered prices change (e.g. due to official measures) or if freight, taxes, duties or fees are introduced or increased after conclusion of the contract, we shall be entitled - even in the case of freight-free and/or duty-paid delivery - to adjust the price accordingly, unless we are responsible for the increase or the Buyer is a non-merchant and delivery to him takes place within four months after conclusion of the contract.
III. terms of payment
(1) Payment of the purchase price shall be made to us within the agreed period - in the absence of any other agreement - within 14 days of the invoice date without deduction.
2. in the event of default of payment by the purchaser, we shall charge interest at the rate of 6 % above the respective discount rate of the Deutsche Bundesbank. Default in payment shall be determined in accordance with the statutory provisions. Default shall also be deemed to exist if the contractual payment date is exceeded, insofar as this is determined in accordance with the calendar. We reserve the right to claim further damages. 3.
3. all our claims shall become due immediately if the terms of payment are not complied with or if, after conclusion of the contract, we become aware of circumstances which, according to our due commercial discretion, are suitable to reduce the creditworthiness of the purchaser. We shall then also be entitled to make outstanding deliveries only against advance payment or concurrent payment. We may also prohibit the resale of the delivered goods and demand their return or the transfer of indirect possession of the delivered goods at the Buyer's expense and revoke the collection reduction pursuant to Clause IV 5. In the aforementioned cases, we shall be entitled, after setting a deadline, to enter the Buyer's premises, to take away goods already delivered and to realize them in the best possible way by private sale to offset the outstanding purchase price claim less any costs incurred.
2. in the event of default of payment by the purchaser, we shall charge interest at the rate of 6 % above the respective discount rate of the Deutsche Bundesbank. Default in payment shall be determined in accordance with the statutory provisions. Default shall also be deemed to exist if the contractual payment date is exceeded, insofar as this is determined in accordance with the calendar. We reserve the right to claim further damages. 3.
3. all our claims shall become due immediately if the terms of payment are not complied with or if, after conclusion of the contract, we become aware of circumstances which, according to our due commercial discretion, are suitable to reduce the creditworthiness of the purchaser. We shall then also be entitled to make outstanding deliveries only against advance payment or concurrent payment. We may also prohibit the resale of the delivered goods and demand their return or the transfer of indirect possession of the delivered goods at the Buyer's expense and revoke the collection reduction pursuant to Clause IV 5. In the aforementioned cases, we shall be entitled, after setting a deadline, to enter the Buyer's premises, to take away goods already delivered and to realize them in the best possible way by private sale to offset the outstanding purchase price claim less any costs incurred.
IV. securities
(1) All goods delivered (reserved goods) shall remain our property until all claims have been fulfilled, irrespective of the legal grounds, including claims arising in the future or conditional claims, also from contracts concluded with the buyer at the same time or later. This shall also apply if payments are made on specially designated claims. The purchaser undertakes to treat the goods subject to retention of title with care, to maintain them and to inform us immediately in the event of seizure, damage or loss of the goods as well as change of ownership and change of residence.
2. treatment and processing of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code) without any obligation on our part. The processed goods shall be deemed to be goods subject to retention of title within the meaning of item 1. If the goods subject to retention of title are processed, combined and/or mixed with other goods by the Buyer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our ownership expires due to combination or mixing, the buyer shall transfer to us already now the ownership rights to which he is entitled in the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall hold them in custody for us free of charge. The co-ownership rights arising hereunder shall be deemed to be goods subject to retention of title within the meaning of Clause 1. 3.
3. the buyer may sell the reservation commodity only in the usual course of business to his normal trading conditions and as long as he is not in the delay, provided that the demands from the far sale in accordance with the Ziff. 4 to 5 on us transfer. An ordinary course of business within the meaning of these terms and conditions shall not be deemed to exist if, in the event of sale by the Buyer or other dispositions in favor of third parties, the assignability of its claims to third parties is excluded. He shall not be entitled to dispose of the goods subject to retention of title in any other way.
4. the buyer's claims from the resale of the reserved goods, which also includes the fulfillment of a contract for work and services or a contract for work and materials, are hereby assigned to us. They shall serve as security to the same extent as the reserved goods. If the reserved goods are sold by the buyer together with other goods not sold by us, the assignment of the claims from the resale shall only apply to the amount of the resale values of the respective reserved goods sold as stated in our invoices. In the event of the sale of goods in which we have co-ownership shares pursuant to item 1, the assignment of the claims shall apply in the amount of the co-ownership shares. 5.
(5) The Buyer shall be entitled to collect claims arising from the resale until revoked by us, which shall be admissible at any time. The Buyer shall not be entitled to assign the claims - including the sale of claims to "factoring banks" - unless he finally obtains the equivalent value of the claim. At our request, he shall be obliged to inform his customers immediately of the assignment to us - unless we do so ourselves - and to provide us with the information and documents required for collection.
6. rights arising from the retention of title and all special forms thereof stipulated in these terms and conditions shall apply until full release also from contingent liabilities which we have entered into in the interest of the purchaser.
(7) The Buyer may not dispose of or permit the disposal of the reserved goods in a manner that does not comply with the above conditions.
(8) If the value of the goods delivered under retention of title and serving as security exceeds our total claim (secured claims) by more than 20%, we shall be obliged to release securities of our choice at the customer's request.
2. treatment and processing of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code) without any obligation on our part. The processed goods shall be deemed to be goods subject to retention of title within the meaning of item 1. If the goods subject to retention of title are processed, combined and/or mixed with other goods by the Buyer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our ownership expires due to combination or mixing, the buyer shall transfer to us already now the ownership rights to which he is entitled in the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall hold them in custody for us free of charge. The co-ownership rights arising hereunder shall be deemed to be goods subject to retention of title within the meaning of Clause 1. 3.
3. the buyer may sell the reservation commodity only in the usual course of business to his normal trading conditions and as long as he is not in the delay, provided that the demands from the far sale in accordance with the Ziff. 4 to 5 on us transfer. An ordinary course of business within the meaning of these terms and conditions shall not be deemed to exist if, in the event of sale by the Buyer or other dispositions in favor of third parties, the assignability of its claims to third parties is excluded. He shall not be entitled to dispose of the goods subject to retention of title in any other way.
4. the buyer's claims from the resale of the reserved goods, which also includes the fulfillment of a contract for work and services or a contract for work and materials, are hereby assigned to us. They shall serve as security to the same extent as the reserved goods. If the reserved goods are sold by the buyer together with other goods not sold by us, the assignment of the claims from the resale shall only apply to the amount of the resale values of the respective reserved goods sold as stated in our invoices. In the event of the sale of goods in which we have co-ownership shares pursuant to item 1, the assignment of the claims shall apply in the amount of the co-ownership shares. 5.
(5) The Buyer shall be entitled to collect claims arising from the resale until revoked by us, which shall be admissible at any time. The Buyer shall not be entitled to assign the claims - including the sale of claims to "factoring banks" - unless he finally obtains the equivalent value of the claim. At our request, he shall be obliged to inform his customers immediately of the assignment to us - unless we do so ourselves - and to provide us with the information and documents required for collection.
6. rights arising from the retention of title and all special forms thereof stipulated in these terms and conditions shall apply until full release also from contingent liabilities which we have entered into in the interest of the purchaser.
(7) The Buyer may not dispose of or permit the disposal of the reserved goods in a manner that does not comply with the above conditions.
(8) If the value of the goods delivered under retention of title and serving as security exceeds our total claim (secured claims) by more than 20%, we shall be obliged to release securities of our choice at the customer's request.
V. Place of performance, place of jurisdiction and applicable law
Place of performance for both parties to the contract shall be Dresden.
2. place of jurisdiction is - if the buyer is a registered trader or §§ 38 para. 1 ZPO is fulfilled - Dresden. We can also sue the buyer at his place of jurisdiction. 3.
(3) The German law applicable at our place of business shall apply. The Uniform Laws on the International Sale of Goods shall not apply.
B. Execution of Delivery I. Force majeure and other delivery conditions
1. events of force majeure entitle us to postpone delivery for the duration of the impediment plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the part of the delivery not yet fulfilled. Force majeure shall include strikes, lockouts, mobilization, war, blockades, export and import bans, shortages of raw materials and energy, fire, traffic blocks, disruptions to operations or transport and other circumstances for which we are not responsible, irrespective of whether they occur at our premises, those of our suppliers or those of a subcontractor. 2.
2. the purchaser may demand a declaration from us as to whether we intend to deliver or withdraw within a reasonable period of time. If we do not make such a declaration within a reasonable period of time, the Buyer may, for his part, withdraw from the part of the delivery not yet fulfilled. 3.
3. a declaration made to us by our supplier or sub-supplier concerning circumstances occurring at his premises in accordance with clause 1 shall be deemed sufficient evidence that we are prevented from making delivery.
II Delivery Periods, Delivery Dates
(1) All our deliveries and delivery dates are subject to complete self-delivery, unless we are responsible for the delay or non-delivery. We do not assume any liability for punctual transport.
2. delivery periods shall commence on the date of our order confirmation, delivery periods and dates shall refer to the time of dispatch ex works or ex warehouse. They shall be deemed to have been met upon notification of readiness for dispatch if the goods cannot be dispatched on time through no fault of our own.
3. after the occurrence of a delay in delivery, the purchaser shall only be entitled to withdraw from the contract due to culpable non-compliance with the delivery period if he has granted us a reasonable period of grace by registered letter to no avail. A grace period of at least 8 weeks shall be deemed reasonable.
III Shipment, Transfer of Risk, Partial Delivery, Continuous Delivery
(1) We shall determine the route and means of dispatch as well as the forwarding agent or carrier, unless otherwise agreed in writing.
2. goods reported ready for dispatch in accordance with the contract must be called off immediately, otherwise we shall be entitled to dispatch them at our discretion at the expense and risk of the purchaser or to store them at our discretion and to invoice them immediately.
3. the means of transport and protection as well as the route of dispatch are at our choice to the exclusion of any liability.
4. with the handing over of the material to a forwarding agent or carrier, at the latest, however, when the material leaves the warehouse or the delivery plant, the risk shall pass to the Buyer, even in the case of carriage paid delivery or a seizure of the material in all transactions.
(5) We are entitled to make partial deliveries to a reasonable extent, provided that an individual agreement does not contradict this. Excess and short deliveries of the concluded quantity are permissible up to 10%. 6.
(6) In the case of contracts with continuous delivery, call-off orders and special allocations for approximately the same monthly quantities shall be placed with us. If call-offs or special allocations are not made in good time, we shall be entitled, after setting a grace period to no avail, to allocate and deliver the goods ourselves or to withdraw from the part of the contract still in arrears and to claim damages.
2. place of jurisdiction is - if the buyer is a registered trader or §§ 38 para. 1 ZPO is fulfilled - Dresden. We can also sue the buyer at his place of jurisdiction. 3.
(3) The German law applicable at our place of business shall apply. The Uniform Laws on the International Sale of Goods shall not apply.
B. Execution of Delivery I. Force majeure and other delivery conditions
1. events of force majeure entitle us to postpone delivery for the duration of the impediment plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the part of the delivery not yet fulfilled. Force majeure shall include strikes, lockouts, mobilization, war, blockades, export and import bans, shortages of raw materials and energy, fire, traffic blocks, disruptions to operations or transport and other circumstances for which we are not responsible, irrespective of whether they occur at our premises, those of our suppliers or those of a subcontractor. 2.
2. the purchaser may demand a declaration from us as to whether we intend to deliver or withdraw within a reasonable period of time. If we do not make such a declaration within a reasonable period of time, the Buyer may, for his part, withdraw from the part of the delivery not yet fulfilled. 3.
3. a declaration made to us by our supplier or sub-supplier concerning circumstances occurring at his premises in accordance with clause 1 shall be deemed sufficient evidence that we are prevented from making delivery.
II Delivery Periods, Delivery Dates
(1) All our deliveries and delivery dates are subject to complete self-delivery, unless we are responsible for the delay or non-delivery. We do not assume any liability for punctual transport.
2. delivery periods shall commence on the date of our order confirmation, delivery periods and dates shall refer to the time of dispatch ex works or ex warehouse. They shall be deemed to have been met upon notification of readiness for dispatch if the goods cannot be dispatched on time through no fault of our own.
3. after the occurrence of a delay in delivery, the purchaser shall only be entitled to withdraw from the contract due to culpable non-compliance with the delivery period if he has granted us a reasonable period of grace by registered letter to no avail. A grace period of at least 8 weeks shall be deemed reasonable.
III Shipment, Transfer of Risk, Partial Delivery, Continuous Delivery
(1) We shall determine the route and means of dispatch as well as the forwarding agent or carrier, unless otherwise agreed in writing.
2. goods reported ready for dispatch in accordance with the contract must be called off immediately, otherwise we shall be entitled to dispatch them at our discretion at the expense and risk of the purchaser or to store them at our discretion and to invoice them immediately.
3. the means of transport and protection as well as the route of dispatch are at our choice to the exclusion of any liability.
4. with the handing over of the material to a forwarding agent or carrier, at the latest, however, when the material leaves the warehouse or the delivery plant, the risk shall pass to the Buyer, even in the case of carriage paid delivery or a seizure of the material in all transactions.
(5) We are entitled to make partial deliveries to a reasonable extent, provided that an individual agreement does not contradict this. Excess and short deliveries of the concluded quantity are permissible up to 10%. 6.
(6) In the case of contracts with continuous delivery, call-off orders and special allocations for approximately the same monthly quantities shall be placed with us. If call-offs or special allocations are not made in good time, we shall be entitled, after setting a grace period to no avail, to allocate and deliver the goods ourselves or to withdraw from the part of the contract still in arrears and to claim damages.
IV. Notice of defects and warranty
1. the time of the transfer of risk is decisive for the contractual condition of the goods.
(2) After performance of an agreed acceptance of the goods by the Purchaser, the notification of defects which can be detected during the agreed type of acceptance shall be excluded.
3. the buyer has to check the goods immediately after receipt with the thoroughness reasonable for him under the given circumstances, the defects ascertainable here are to be reprimanded in writing within a preclusion period of two weeks.
(4) In the event of a justified complaint, we shall, at our discretion, repair free of charge or replace against return of the defective goods all those parts which are proven to become unusable or considerably impaired in their usability within the warranty period as a result of a circumstance occurring prior to the transfer of risk, or reimburse the reduced value.
(5) If we culpably fail to meet our obligation to deliver a replacement or to remedy a defect several times in due time or in accordance with the contract, the Buyer shall have the right to reduce the remuneration or, at his option, to rescind the contract. The number of attempts to remedy the defect to be accepted shall depend on the nature of the individual case, taking into account the principle of good faith. 6.
(6) If the purchaser does not immediately give us time and opportunity to convince ourselves of the defect or to comply with our warranty, in particular if the purchaser does not immediately make available the rejected goods or samples thereof upon request, all claims based on defects shall lapse.
(7) The Buyer's right to assert warranty claims shall expire one month after our written rejection of the notice of defect, at the latest - even in the case of non-merchants - six months after delivery.
(8) Claims for compensation for damage which has not occurred to the goods themselves (consequential harm caused by a defect) shall be excluded in accordance with C. I. above. In the event of a defect in warranted characteristics, we shall only be liable to the extent that the purpose of the warranty was to protect the purchaser against the consequential damage caused by the defect.
(9) The above provisions shall also apply in the case of delivery of goods other than those specified in the contract.
C. Miscellaneous
I. General Limitation of Liability
1. claims not expressly granted in these terms and conditions, in particular claims for damages arising from impossibility, delay, breach of ancillary contractual obligations, culpa in contrahendo, tort - also insofar as such claims are in connection with the purchaser's warranty rights - shall be excluded insofar as the damage was not caused by intentional or grossly negligent conduct.
(2) All claims against us, irrespective of their legal basis, shall become statute-barred at the latest 6 months after the transfer of risk to the Buyer, unless the statutory limitation period is shorter.
II: Partial invalidity
Should individual terms and conditions be invalid in whole or in part, the remaining terms and conditions shall remain valid. Invalid terms and conditions shall be replaced by provisions that come as close as possible to the economic purpose of the contract while reasonably safeguarding the interests of both parties. III. Data Protection The Buyer is informed that personal data will be stored by Lehmann GmbH (§ 26 BDSchG).
(2) After performance of an agreed acceptance of the goods by the Purchaser, the notification of defects which can be detected during the agreed type of acceptance shall be excluded.
3. the buyer has to check the goods immediately after receipt with the thoroughness reasonable for him under the given circumstances, the defects ascertainable here are to be reprimanded in writing within a preclusion period of two weeks.
(4) In the event of a justified complaint, we shall, at our discretion, repair free of charge or replace against return of the defective goods all those parts which are proven to become unusable or considerably impaired in their usability within the warranty period as a result of a circumstance occurring prior to the transfer of risk, or reimburse the reduced value.
(5) If we culpably fail to meet our obligation to deliver a replacement or to remedy a defect several times in due time or in accordance with the contract, the Buyer shall have the right to reduce the remuneration or, at his option, to rescind the contract. The number of attempts to remedy the defect to be accepted shall depend on the nature of the individual case, taking into account the principle of good faith. 6.
(6) If the purchaser does not immediately give us time and opportunity to convince ourselves of the defect or to comply with our warranty, in particular if the purchaser does not immediately make available the rejected goods or samples thereof upon request, all claims based on defects shall lapse.
(7) The Buyer's right to assert warranty claims shall expire one month after our written rejection of the notice of defect, at the latest - even in the case of non-merchants - six months after delivery.
(8) Claims for compensation for damage which has not occurred to the goods themselves (consequential harm caused by a defect) shall be excluded in accordance with C. I. above. In the event of a defect in warranted characteristics, we shall only be liable to the extent that the purpose of the warranty was to protect the purchaser against the consequential damage caused by the defect.
(9) The above provisions shall also apply in the case of delivery of goods other than those specified in the contract.
C. Miscellaneous
I. General Limitation of Liability
1. claims not expressly granted in these terms and conditions, in particular claims for damages arising from impossibility, delay, breach of ancillary contractual obligations, culpa in contrahendo, tort - also insofar as such claims are in connection with the purchaser's warranty rights - shall be excluded insofar as the damage was not caused by intentional or grossly negligent conduct.
(2) All claims against us, irrespective of their legal basis, shall become statute-barred at the latest 6 months after the transfer of risk to the Buyer, unless the statutory limitation period is shorter.
II: Partial invalidity
Should individual terms and conditions be invalid in whole or in part, the remaining terms and conditions shall remain valid. Invalid terms and conditions shall be replaced by provisions that come as close as possible to the economic purpose of the contract while reasonably safeguarding the interests of both parties. III. Data Protection The Buyer is informed that personal data will be stored by Lehmann GmbH (§ 26 BDSchG).
