General Terms of Sale and Delivery
of the Lerbs stock corporation
1. General
1.1 The following sales and delivery conditions apply exclusively for all deliveries and other services; they apply only for companies in the sense of § 310 par. 1 in conjunction with § 14 Civil Code.
1.2 Different conditions by the buyer that are not clearly accepted by the seller are not binding, even if the seller does not clearly dispute them.
1.3 Inclusion and explanation of these sales and delivery terms are regulated the same as the completion and explanation of legal transactions with the buyer, exclusively within the law of the Federal Republic of Germany. The use of the uniform law regarding the finalization of international sales contracts regarding movable articles in accordance with UN-purchasing laws is excluded.
1.4 The ineffectiveness of particular regulations of this contract or of some of its parts leaves the effectiveness of the other regulations unaffected. The parties of the contract are obligated by good faith to replace the ineffective regulations with effective ones amounting to their economic success, as long as that will not cause a significant change to the content of the contract; the same holds true for a legal situation that needs to be regulated, but which is not specifically regulated yet.
1.5 Place of performance for all obligations resulting directly or indirectly from this contractual condition, including the duty of payment, is the court with competence for the seller’s headquarters, as long as the buyer is a merchant. The seller is also entitled to sue in a court with competence for the buyer’s headquarters or one of his branches.
2. Offers, Extent of Service and Signing of a Contract
2.1 Contract offers made by the seller are non-binding.
2.2 Decisive for the scope of the contractually owed services is the seller’s order confirmation only.
2.3 The seller reserves the right to change the construction, the material selection, the specification and the design of the ordered items even after the order confirmation has been sent, as long as these changes neither contradict the order confirmation nor the buyer’s specifications. In addition to this, the buyer will agree to further change suggestions as long as they are reasonable for the buyer.
2.4 Partial deliveries are permissible as long as they are reasonable for the buyer.
2.5 The documents forming the basis of the offer or the order confirmation, like illustrations, drawings, measurements and weight data are considered estimates as long as they are not specifically declared binding.
2.6 The seller reserves the right of ownership and the copyright of all drawings and other documentations made available to the buyer. These documents may not be otherwise used in any way without the seller’s consent; they especially may not be copied or made available to third parties. Upon request, they must be returned to the seller immediately.
3. Prices
3.1 All prices indicated in the seller’s offer are considered net in EURO ex stock, excluding shipping and handling charges, any extra expenses and turnover taxes.
3.2 Relevant for the calculation of the prices are weights, item positions and quantities determined by the seller. For orders / deliveries with a value less than EURO 35,00 the seller reserves the right to add a minimum quantity surcharge.
3.3 Possibly occurring expenses for packaging, transport, insurance and commissioning are calculated separately by the seller, just as the turnover tax in the respective statutory amount.
3.4 If a contract comprises a delivery / service four months after signing the contract and if during this time increases in costs occur, the seller is entitled to require higher prices within the same settings.
4. Delivery and Service Times
4.1 Deadlines and target dates indicated by the seller are only binding if they have been specifically declared binding.
4.2 The course of the time period indicated by the seller begins with the date of the written acceptance declaration or confirmation by the seller, but not before determination of all commercial or technical details, authorizations and clearances, formation of all required conditions as well as receipt of all payments due by the buyer to the seller.
4.3 The considered time periods are extended in a suitable manner, if the contract is changed or supplemented, or if the seller does not fulfil his participation duties on time.
4.4 Higher powers and other extraordinary circumstances, particularly labour disputes and control measures, no matter if they occur at the seller’s or his suppliers’ headquarters, release the seller entirely from the delivery / service duty for the duration of the circumstances and their consequences. A possibly agreed penalty is not forfeited under these circumstances.
4.5 Possible claims for restitution on the part of the buyer due to delayed delivery / service or due to non-delivery / non-service are limited to the amount respective to the delivery / service based on the offer and invoice amount. This is not the case for responsibilities for injuries of life, body or health. For all other than the latter, Figure 10 is relevant.
5. Acceptance
5.1 The buyer must accept the delivery / service immediately, at the latest 8 working days after request by the seller.
5.2 If the buyer does not accept the delivery / service, the seller is entitled to withdraw from the contract after another time period of 8 working days and to demand restitution due to non-fulfilment, by choice either repayment of accrued damages or – without verification of damages – 10 % of the agreed price, unless the buyer proves that no or minimal damage has occurred.
6. Payment
6.1 All payments must be effected by the buyer to the seller within 14 days of invoice receipt with a discount of 2 % or at the latest within 30 days of the respective invoice without discount. This applies also in cases of interim invoices.
6.2 The seller is entitled to charge 8 % interest on late payments above the respective discount of the European Central Bank per year, plus possible provisions and expenses. The enforcement of verifiable higher damages remains reserved.
6.3 If circumstances arise making evident that the buyer is insolvent or not credit worthy after signing the contract (e.g. delayed payment, untimely redemption of securities or checks, insufficient information), the seller is entitled to immediately demand all open payments and to refuse all deliveries / services he is obligated to, until the buyer’s own services or claims due – even from possible other transactions within a continuous business – are fulfilled or new securities for it are provided.
7. Concession / Retention / Compensation
7.1 Compensation and retention are exempt, unless the compensation claim is determined to be undisputed and legal.
7.2 The buyer is not entitled to transfer claims against the seller to third parties without written agreement of the seller.
7.3 The buyer is not entitled to apply retention rights – caused by possible counter claims from other transactions – against the seller; Figure 7.2 applies respectively.
8. Place of Performance / Transition of Risk
8.1 Place of performance for deliveries and services is the seller’s headquarters. For that Figure 10 (warranty) is valid respectively.
8.2 The risk for all deliveries and services performed by the seller is transferred to the buyer at the latest at the time the goods leave the depot or the business floor. Possible returns are at the risk of the client.
8.3 If the acceptance of delivery / service of the seller is delayed for reasons held by the buyer, the risk is transferred to the buyer at the latest on the 7th working day after request, in accordance with Figure 5.1.
8.4 If the seller delivers to countries within the European Union, the buyer must immediately provide the seller with his VAT-number as well as all other information required for such dealings (e.g. confirmation of transport and final destination).
9. Conditional Sale
9.1 The seller retains the right of ownership of the delivered and / or installed items (reservation goods) until payment in full has been received. The buyer must keep the reservation goods in a proper state. He is obligated to separate storage, tagging and to sufficiently insure the reservation goods. Upon first request by the seller, he must transfer all possible insurance claims to the seller.
9.2 The buyer is entitled to resell, process, mix or connect reservation goods as well as to then transfer the reservation goods, as long as this occurs within a proper business transaction. Mortgaging the reservation goods or putting them up for collateral by the buyer is not permissible. The buyer may transfer ownership of the reservation goods to his buyers only after all requirements by the seller have been met.
9.3 In case of garnishments and seizure or other writs by third parties the buyer must inform the seller immediately and must provide all information and documents which are required for preserving his rights. The property of the seller must be pointed out to the executory officers and third parties.
9.4 The buyer will take care of possible processing or alterations of the reservation goods for the seller. In case of connecting or mixing the reservation goods with other goods that are not owned by the seller, the seller gains co-ownership of the new item to the total value of the new item equalling the invoice value of the reservation goods. In the sense of these items, the new item resulting from the process is considered reservation goods as well.
9.5 As a security measure the buyer transfers all claims and other rights in connection with the resale as well as possible insurance claims to the seller in advance. In the case of exporting the goods, the buyer also transfers to the seller all claims that arise or will arise in connection with domestic or foreign banks, particularly the claims for collection contracts, letters of credit or confirmations of letters of credit as well as securities and guarantees. In case the reservation goods are sold by the buyer along with other goods not owned by the seller, whether without processing or after processing, the claims in the amount of the invoice value are considered transferred to the seller.
9.6 Despite such transfer, the buyer is still entitled and obligated to invoke claims resulting from the resale, as long as the seller does not revoke such authorization. The buyer must transfer the obtained payments immediately to the seller in the amount of the claims due to the seller.
9.7 The seller is obligated to clear the reservation goods as well as the transferred claims, as soon as his claims against the buyer are satisfied. Upon request, the seller is obligated to clear either the goods or the claims – his choice – if and when the realizable value of the reservation goods plus the transferred claims exceed an amount of 20 % of the secured claims against the buyer (for overdue payments, utilization and other expenses). The value of the reservation goods is measured by wholesale prices. For the assessment of the securities value (realizable value), the so determined value is to be reduced by a discount of 25 % as well as another annual discount of 50 % for every year after the purchase. The realizable value of the transferred claims is determined at 75 % of its face value. Claims that have not been transferred to the seller (e.g. during transfer bans) or debited with third party rights, are not credited.
9.8 If the seller, despite of reminders, does not comply with his obligations on maturity, the seller is entitled to utilize the reservation goods with a reasonable additional respite and simultaneous thread of the utilization.
10. Warranty
10.1 If the purchase is a commercial act for both parties, the buyer has to examine the goods immediately after receipt as long as it is possible during the proper course of business, and if a defect is discovered, he must notify the seller at once. If the buyer omits such notification, the goods are considered approved, unless it appears to be a defect that was not identifiable during examination. However, §§ 377 ff. of the Code of Commercial Law are applicable.
10.2 Deficit claims are limited to subsequent performances. Failing to carry out these gives the buyer the right to choose between a reduction in payment or a cancellation of the contract.
10.3 Further claims by the buyer, as long as they are not the result of a warranty takeover, are exempt. This does not apply in cases of intention, gross negligence or violation of significant contractual obligations by the seller as well as the liability for damages to legal assets of life, body and health.
10.4 Objections to partial deliveries do not entitle the client to reject the fulfilment of the whole contract.
10.5 Deficit claims lapse one year after delivery of the purchased items.
10.6 Used items are delivered by the seller without any guarantee.
11. Redemption of goods
11.1 Returns are accepted within 14 days of the delivery as long as the goods are unused and in the original packing as well as sent to us free of charge on presentation of a copy of the invoice or the delivery note. Principally returns will be only accepted after prior notice and agreement.
11.2 In case of a redemption a handling fee according to the expenditure will be deducted. It amounts to 15% of the credit note, however EUR 10.00 at the minimum, plus statutory VAT.
11.3 Not returnable or exchangeable are: measuring tools, non-catalogue articles, other special procurements, preset electric tools, custom-made articles, labelled or marked articles, parts which already have been fitted, accumulators, batteries, and products with limited storage life.
12. Liability
12.1 Buyer’s claims of compensation for negligent behaviour are exempt, as long as the subject is not a violation of contractual obligations. Contractually significant are the obligations to a timely, defect free delivery and installation, as well as consultation, safety and maintenance obligations that enable the client to utilize the delivered items or ensure the safety of life and limb of the client’s personnel or third parties or the protection of the client’s property from significant damages.
12.2 If objects are handed over to the seller for custody, the safekeeping occurs at the risk and the expense of the buyer. As long as nothing different has been agreed, the buyer is obligated to reimburse the seller for storage with the customary imbursement amounts for a storage keeper.
13. Data Security
The seller is permitted to store electronically all data about the buyer and about the particular contracts that are required for the business relation. The seller may use this data for his own purposes.