General Terms and Conditions of Sale and Delivery of LöSi Getriebe-Steuerungen-Hydraulik GmbH
§ 1 General information
(1) Deliveries and services are provided exclusively on the basis of the respective order confirmation, any special agreements in writing and in addition to the following conditions. Conditions to the contrary, in particular purchasing conditions, do not apply unless LöSi has expressly agreed to their validity in writing.
(2) Offers by LöSi are subject to confirmation. A contract is concluded with the order confirmation from LöSi in text form.
(3) These Terms and Conditions of Sale and Delivery shall only apply to companies within the meaning of § 310 para. 1 BGB (German Civil Code).
(4) The customer is obliged to provide LöSi with correct and complete specification data and to check the order confirmation for correct reproduction of the data provided.
(5) Information on the object of delivery and service (for example in catalogues, product information, electronic media or labels) is based on LöSi's general experience and knowledge and only represents guide values or markings. Neither the product information nor expressly agreed performance features/purposes of use release the purchaser from testing or checking the technical and legal suitability for the intended purpose of use of the product, in particular with regard to the protective rights situation.
(6) Information on the quality and possible uses of LöSi products does not contain any guarantees, in particular not according to §§ 443, 444, 639 BGB, unless these are expressly designated as such in writing.
(7) LöSi's project planning support is always provided only within the framework of the overall system specified by the Purchaser. LöSi accepts no responsibility for this, even if LöSi offers and delivers goods with integrated functional safety.
(8) We reserve the right to make changes to technical data and designs in the interest of technical progress.
(9) LöSi reserves ownership rights and copyrights to samples, illustrations, drawings, calculations and similar information of a physical and intangible nature - also in electronic form. This also applies to such documents and information that are designated as "confidential". The passing on to third parties requires the prior written consent of LöSi.
(10) These terms and conditions shall also apply to all future deliveries and services until new terms and conditions of sale and delivery of LöSi apply.
§ 2 Prices and terms of payment
(1) Unless otherwise agreed in writing, the prices quoted by us are ex works or distribution centre. They do not include packaging, freight, postage, insurance and the statutory value added tax.
(2) Unless otherwise agreed in writing, payments are to be made freely to LöSi's account or in cash within 30 days of the invoice date without any deductions.
(3) Cheques and bills of exchange shall not be deemed payment until they have been honoured, whereby we reserve the right to accept bills of exchange.
(4) If we become aware of a significant deterioration in the financial circumstances of the customer after our order confirmation has been sent, our claims shall become due immediately. In addition, we are entitled to carry out outstanding deliveries and services only against advance payment, even deviating from the order confirmation, and to withdraw from the contract after a reasonable period of grace, unless the customer provides security. The same applies in the event of non-compliance with the terms of payment, even if their non-compliance concerns other orders from the mutual business relationship.
(5) The Purchaser shall only be entitled to offsetting rights if its counterclaims are undisputed or have been finally and conclusively determined by LöSi. He is entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 3 Delivery time
(1) Delivery and performance shall take place within the calendar week confirmed in text form, if applicable, but not before clarification of all execution details. The customer must fulfil all obligations incumbent upon him in good time, e.g. the payment of a down payment. If this is not the case, the delivery period shall be extended accordingly. This shall not apply if LöSi is responsible for the delay.
(2) The delivery period shall be further extended appropriately in the event of unforeseen obstacles for which LöSi is not responsible, irrespective of whether they occur at LöSi or its suppliers, e.g. cases of force majeure, industrial disputes, import and export restrictions, official approval procedures and other delays through no fault of LöSi in the completion of delivery parts, operational disruptions, rejects, delays in the delivery of essential parts and raw materials, insofar as such obstacles are demonstrably of decisive influence on the completion or delivery of the ordered goods. Such obstacles are also not the responsibility of LöSi if they arise during an already existing delay. LöSi shall notify the Customer immediately of the beginning and end of such circumstances.
(3) The Purchaser may only withdraw from the contract within the framework of statutory provisions due to delays in delivery if LöSi is responsible for these.
(4) If LöSi is in default and the Purchaser suffers damage due to delay as a result, he is entitled to demand a lump-sum compensation for the delay. It shall amount to 0.5% for each completed week of delay, but not more than a total of 5% of the price for that part of the delivery and service which could not be put into appropriate operation due to the delay. Further claims due to delay in delivery are determined exclusively according to § 7 of these conditions.
(5) If the customer is in default of acceptance or culpably violates any other obligation to cooperate, LöSi is entitled to claim compensation for the damage incurred in this respect, including any additional expenses. We reserve the right to assert further claims.
§ 4 Transfer of risk, acceptance
(1) The risk passes to the customer when the goods are handed over to the forwarding agent or carrier, but at the latest when they leave the factory or warehouse. This shall also apply if carriage paid delivery, delivery free works, etc. has been agreed. If acceptance is required, this shall be decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after LöSi's notification of readiness for acceptance. The customer may not refuse acceptance in the event of a minor defect.
(2) If dispatch or acceptance is delayed or does not take place due to circumstances for which LöSi is not responsible, the risk shall pass to the Customer on the day of readiness for dispatch or acceptance.
§ 5 Retention of title
(1) LöSi retains title to the delivered goods until receipt of all payments due to LöSi from the business relationship with the customer.
(2) If the customer is in default of payment, LöSi is entitled, after a reminder, to take up the goods in stock. LöSi may take possession of the goods again without first withdrawing from the contract. If these conditions are met, the customer already now permits LöSi to enter its business premises immediately during normal business hours and to take back possession of the goods. The same shall apply if the Purchaser submits a declaration in lieu of an oath of disclosure, if a warrant is issued for the submission of a declaration in lieu of an oath by the Purchaser or if the Purchaser files for the opening of insolvency proceedings against its assets.
(3) In the event of breach of contract by the customer, in particular default of payment, LöSi is entitled to withdraw from the contract. If goods are taken back as a result of withdrawal, LöSi is in principle only obliged to issue a credit note in the amount of the invoice value less the depreciation determined at its reasonable discretion as well as the take-back and dismantling costs, but at least more than 30% of the invoice value. LöSi will grant a higher credit note if the purchaser proves that the repossessed goods have a higher value.
(4) The customer is obliged to treat the goods with care; in particular he is obliged to insure them sufficiently at replacement value at his own expense against damage caused by fire, water and theft.
(5) In the event of seizure, confiscation or other dispositions or interventions by third parties on the reserved goods, the customer must inform LöSi immediately.
(6) The customer is entitled to resell the delivered goods in the ordinary course of business. The pledge, assignment as security or other disposal of the delivered goods is prohibited. If the purchaser sells the goods delivered by LöSi, irrespective of their condition, he hereby assigns to LöSi all claims arising from the sale up to the value of the goods against his customers with all ancillary rights until all claims arising from the mutual business relationship have been settled. The customer is authorized to collect these claims.
(7) The authorization to resell and collect claims can be revoked if the customer is in default of payment or if suffers any other significant deterioration in its financial circumstances or its creditworthiness. Upon request, the Customer is then obliged to inform his customers of the assignment, unless LöSi informs the customers of the Customer itself, and to provide LöSi with the information and documents necessary to assert its rights against the customers.
(8) Any processing or transformation of the delivered goods by the Customer shall always be carried out for LöSi. If the goods are processed with other items not belonging to LöSi in accordance with § 950 BGB, LöSi acquires co-ownership of the new item in the ratio of the value of the goods to the other processed items at the time of processing. In all other respects, the same shall apply to the object created by processing as to the goods delivered under reservation of title.
(9) Upon request of the customer, LöSi undertakes to release the securities to which LöSi is entitled insofar as their realisable value exceeds the claims to be secured by more than 10 %. The selection of the securities to be released is incumbent on LöSi.
§ 6 Claims for defects
(1) The Purchaser shall immediately notify LöSi in writing of any defects found.
(2) In the event of defects, the customer has a claim to subsequent performance, which LöSi may choose between remedying the defect or delivering defect-free goods or services. The customer must grant the necessary time and opportunity to carry out subsequent performance. Only in urgent cases where operational safety is at risk or to prevent disproportionately large damage, whereby LöSi must be notified immediately, shall the Purchaser be entitled to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from LöSi. Complained goods or parts are only to be returned freight paid upon our request and, if necessary, in good packaging and accompanied by a packing slip stating the order number.
(3) In the case of the removal of defects, LöSi is obliged to bear all expenses necessary for the purpose of the removal of the defect, in particular transport, travel, labour and material costs, provided these are not increased by the fact that the goods were taken to a place other than the place of performance, unless the removal corresponds to the intended use.
(4) In the event of failure of subsequent performance (§ 440 BGB), the customer has the right to reduce the purchase price or to withdraw from the contract.
(5) Damages which arise for the following reasons and for which we are not responsible in the absence of a breach of duty do not justify claims for liability for defects: unsuitable or improper use after the transfer of risk, in particular excessive stress, faulty assembly or installation, or incorrect use of the goods. Commissioning by the customer or third parties despite the existence of proper assembly instructions, natural wear and tear, faulty or negligent treatment, unsuitable equipment, replacement materials, defective construction work, failure to observe the operating instructions, unsuitable operating conditions, especially in the event of unfavourable chemical, physical, electromagnetic, electrochemical or electrical influences, weather or natural influences or too high or too low ambient temperatures.
(6) The limitation period for claims for defects is 2 years from the beginning of the statutory limitation period.
(7) Further claims are determined exclusively according to § 7 of these conditions.
§ 7 Liability for claims for damages and reimbursement of expenses
(1) In the event of intentional or grossly negligent breaches of duty and in any case of culpable injury to life, body or health, LöSi shall be liable without limitation for all damages resulting therefrom, unless otherwise provided by law.
(2) In the case of gross negligence of non-executive employees, LöSi's liability for material damage and financial loss is limited to the foreseeable damage typical for the contract.
(3) In cases of slight negligence, LöSi shall only be liable for damage to property and pecuniary loss in the event of breach of essential contractual obligations. Here too, LöSi's liability is limited to the foreseeable damage typical for the contract.
(4) A further liability for damages than regulated in the preceding paragraphs is excluded regardless of the legal nature of the asserted claim. This applies in particular to tortious acts according to §§ 823, 831 BGB; any unlimited liability according to the provisions of the German Product Liability Act remains unaffected.
(5) A limitation period of 18 months applies to all claims that are not subject to the limitation period due to a defect in the goods. It begins with knowledge of the damage and the person who caused it.
§ 8 Right of withdrawal
LöSi can withdraw from the contract in whole or in part by written declaration if the purchaser becomes insolvent, if the purchaser becomes over-indebted, if the purchaser stops payments or if insolvency proceedings have been filed against the assets of the purchaser. LöSi shall exercise its right of withdrawal until insolvency proceedings have been opened against the Customer's assets. If these conditions are met, the customer already now permits LöSi to enter its business premises during normal business hours and to take back possession of the goods.
§ 9 Export restrictions
The delivery and/or service contained in the order confirmation may be subject to export control regulations under German, European or US American law, e.g. due to their nature or intended use or final destination. Each order is therefore subject to the proviso that there is no prohibition of delivery/service according to these regulations or the necessary official approvals, approvals or permissions that LöSi requires to fulfil the contract.
§ 10 Place of performance, place of jurisdiction, applicable law
(1) Unless otherwise stated in the order confirmation, LöSi's registered office in Kaiserslautern is the place of performance.
(2) The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Kaiserslautern if our contractual partner is a merchant.
(3) German law shall apply exclusively, including for deliveries and services abroad. The validity of the United Nations law on the international sale of goods (CISG) is waived.