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) (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) All prices stated in the offer are calculated on the basis of the purchase prices at the time of preparation of the offer. Should LöSi receive a price increase announced at short notice by their suppliers, which has an impact on the existing orders, LöSi shall immediately notify the orderer and inform the orderer about the concrete increase. In such cases LöSi shall be entitled to adjust the prices to the orderer appropriately in accordance with the increase. The Customer has the right to cancel the orders which are affected by the price increase and whose implementation has not yet started.
(3) All prices for energy costs included in the offer are calculated on the basis of the purchase prices at the time of preparation of the offer. In the event of energy price increases of at least 10% occurring 4 months or more after the order confirmation, LöSi shall be entitled to demand an adjustment of the energy costs to the same extent and to assert the price increase against the orderer. The same applies to the reverse case, that energy price reductions of at least 10% occur from 4 months after the order confirmation. The party claiming the increase/decrease shall be obliged to prove the claimed increase/decrease.
(4) 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. 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.
(5) 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.
(6) 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. LöSi reserves the right to plead non-performance of the contract.
(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. (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. This shall also apply to all future deliveries, even if we do not always expressly refer to this.
(2) If the customer is in default of payment, LöSi is entitled, after a reminder, to take up the goods in stock.
(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) Warranty rights of the Purchaser require that the Purchaser has duly complied with its obligations to inspect the goods and to give notice of defects pursuant to § 377 HGB (German Commercial Code). 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. LöSi’s consent must be obtained prior to any return of the goods. The claim for reimbursement of expenses shall be excluded if the Purchaser was aware of the defect at the time of installation/application of the goods.
The claim for reimbursement of expenses for the installation and removal of the goods shall generally be limited to an amount of 10% of the value of the goods, unless the Purchaser proves that the amount of expenses was significantly higher in the individual case.
(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) There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of inappropriate or improper use after the passing of risk, in particular of excessive strain, faulty installation or commissioning by the Purchaser or third parties despite proper installation instructions. commissioning by the Purchaser or third parties despite the existence of proper assembly instructions, natural wear and tear, faulty or negligent handling, unsuitable operating materials, replacement materials, defective construction work, failure to observe the operating instructions, unsuitable operating conditions, in particular in the event of unfavorable chemical, physical, electromagnetic, electrochemical or electrical influences, weather or natural influences or ambient temperatures that are too high or too low.
(6) The limitation period for claims for defects is 2 years from the beginning of the statutory limitation period. The statutory limitation period shall apply to claims for damages in the event of intent and gross negligence as well as in the event of injury to life, limb and health which are based on an intentional or negligent breach of duty by the user.
(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. This shall not apply to claims pursuant to the aforementioned paragraph (1) and to claims under the Product Liability Act.
§ 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. The same shall apply if the contracting party moves its place of residence or habitual abode outside the scope of this law after conclusion of the contract or if its place of residence or habitual abode is not known at the time the action is brought.
(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. The validity of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is waived.
(4) Should individual provisions of these terms and conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The same applies to regulatory gaps.
Terms of service
The following terms and conditions shall apply to all services provided by us outside our warranty obligations on the equipment and parts supplied by us. We shall not recognize any terms and conditions of the customer that conflict with or deviate from our terms and conditions unless we have expressly agreed to their validity in writing.
The costs of our service interventions shall in any case be borne by the customer, irrespective of whether he can charge the costs to a third party. Invoicing to third parties who are not our clients will not be accepted.
2 Cost calculation
2.1 The cost calculation shall be made in accordance with the currently valid service price list.
2.2 The charging rates stated in the service price list do not include value added tax; the statutory value added tax shall be added in each case.
2.3 Terms of payment
Unless otherwise agreed in text form, payment for services shall be made within 30 days of the invoice date, free of any deductions, to LöSi’s account or in cash.
3 Content of the services
3.1 Services shall be provided by us only upon request of the Customer. Their execution is carried out by agreement.
3.2 Services shall generally be provided within normal business hours. At the request of the client, we perform services outside normal business hours, but at an additional cost.
3.3 Services shall be performed at the request of the Customer, otherwise depending on factual necessity, at the Customer’s premises – at the location of the service object – or at our premises. If the necessary work is to be carried out in our factory, the customer shall send the defective equipment or equipment parts to us. The costs of the outward and return shipment shall be borne by the customer.
3.4 Our service technicians are instructed to limit their services on the occasion of a service call to the reported fault or the object that is the subject of the requested service. Our service personnel are therefore neither obligated nor authorized to perform service work on other objects at the request of the customer without the consent of our service management. Exceptions to this rule are emergencies that cannot be postponed.
3.5 To the extent necessary, our service personnel shall provide the Customer with the necessary operating instructions or other technical information regarding the object in question or the services performed after completion of the service. The transfer can also be made by a reference to the digital retrievability of the information.
3.6 Our service personnel are not authorized to make binding legal declarations on behalf of LöSi. Obligatory agreements can only be made with our service management.
4 Cooperation of the client
4.1 The Customer must ensure that the service can be started on site as soon as our service personnel arrive and completed without delay. The accessibility of the equipment on which the services are to be performed must be guaranteed at all times. The working conditions must be such that work can be carried out in compliance with all safety regulations, in particular those relating to accident prevention. The Customer shall ensure that the service personnel receive the necessary access authorizations. Any necessary protective clothing shall be provided by the Client at the Client’s expense. If this is not possible, the client shall inform LöSi of the necessary protective clothing in good time beforehand. The necessary acquisition costs and additional expenses will be invoiced separately to the customer.
4.2 The Customer shall keep all technical equipment necessary for the performance of the service ready and in working order and shall make it available to the service personnel. The Customer shall provide all auxiliary and operating materials necessary for the operation of the equipment on which the services are performed. If this is necessary for the provision of the service, the Customer shall ensure that systems are taken out of operation for the duration of the provision of the service. This does not give rise to a claim for reimbursement against LöSi.
4.3 The Customer shall provide the specialist personnel required for the proper operation of the technical equipment.
4.4 If necessary, an interpreter shall be provided.
4.5 The Customer shall provide all of the cooperation obligations mentioned here free of charge. If the customer does not fulfill his obligations, we are entitled, but not obligated, to perform the actions incumbent upon the customer in his place at his expense.
5 Interruption of services
5.1 The Services shall generally be performed at once, without interruption. If this is not possible for reasons for which we or our service personnel are not responsible, the customer shall bear the resulting costs, in particular for additional outward and return journeys by the service personnel. This shall also apply if spare parts have to be procured whose necessity arises in the course of the performance of the service work and these are not immediately available. In all such cases, we will endeavor to complete the service as soon as possible, but against reimbursement of the additional costs.
5.2 We shall be entitled to interrupt an ongoing service at short notice if the service personnel deployed are urgently needed elsewhere (e.g. due to acute operational disruptions at another customer which must be remedied immediately). We shall bear the resulting additional costs to the exclusion of any claims for compensation by the customer due to the interruption. Interruption shall be limited to the minimum necessary.
6 Warranty and liability
6.1 The warranty period for the performed services is 12 months. Any defects in our services must be reported to us immediately after they are discovered. Any defect obligations of §377 HGB (German Commercial Code) shall apply analogously. We shall not be liable for any disadvantages and damages resulting from delayed notification of a defect in our performance.
6.2 In the event of justified complaints, we shall provide warranty by rectifying the defective service. The customer shall only be entitled to further warranty rights in the event of failed rectification of defects. The rectification of defects shall be deemed to have failed in particular if it is impossible, is refused by us, is not carried out within a reasonable period of time or if a reasonable number of attempts to rectify the defect are unsuccessful.
6.3 In case of intentional or grossly negligent breaches of duty as well as in any case of culpable injury to life, body or health LöSi shall be liable without limitation for all damages attributable thereto, unless otherwise provided by law. In the event of gross negligence on the part of non-executive employees, LöSi’s liability for property damage and financial loss shall be limited to the foreseeable damage typical for the contract. In case of slight negligence LöSi shall only be liable for property damage and financial loss in case of breach of essential contractual obligations. Here too, LöSi’s liability is limited to the foreseeable damage typical for the contract.
6.4 Any further liability for damages than regulated in the above paragraphs shall be 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.
7.1 After completion of the work, the Customer shall satisfy itself that it has been properly performed.
7.2 The service personnel shall submit the service instruction with the registered outward travel and working hours to the Customer for signature. With his signature, the Customer acknowledges the performance of the service in accordance with the issued service order. The time for the return trip will be entered by our service management after the service technician arrives. The signing of the service instruction, at the latest, however, with the recommissioning and use of the service object, is connected with the acceptance of the service.
7.3 If acceptance is delayed through no fault of our own, it shall be deemed to have taken place 10 days after our service management has given notice of the completion of the service by sending a copy of the service instructions with the work and travel times entered, unless the Customer objects within one week, stating reasons. The same applies in the event that, at the time of the service technician’s departure, no authorized signatory is
staff is present and therefore the service provided cannot be confirmed immediately by signature.
8 Final provisions
8.1 If our contractual partner is a merchant, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Kaiserslautern. The same shall apply if the contracting party moves its place of residence or habitual abode outside the scope of this law after conclusion of the contract or if its place of residence or habitual abode is not known at the time the action is brought.
8.2 German law shall apply exclusively, also for deliveries and services abroad. The validity of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is waived.
8.3 Should individual provisions of these Terms and Conditions be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. The same applies to regulatory gaps.
LöSi GmbH, Merkurstr. 52, 67663 Kaiserslautern, status: 12/2021