Leuze electronic GmbH + Co. KG
| 1. |
General |
| 1.1 |
Our goods and services are provided exclusively on the basis of our Terms and Conditions of Sale and Delivery as set out below. The validity of any terms or conditions whatsoever applied by the buyer is excluded, even if we do not expressly countermand such terms or conditions and carry out the delivery. Amendments and additions by the buyer will only take effect with our express written confirmation. They will apply only to the transaction in respect of which they have been agreed.
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| 1.2 |
The following terms and condition will also apply to all future transactions with the buyer.
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| 2. |
Conclusion of the contract |
| 2.1 |
Information supplied prior to the placement of the purchase order and within the framework of the processing of the order, particularly relating to performance, consumption or other particulars, will only be binding if confirmed by us as such with the confirmation of order or in writing thereafter. Information contained in brochures and advertisements does not represent any guarantee of the condition of the goods or services supplied. Any individual verbal agreements made will remain in effect.
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| 2.2 |
Our quotations are without obligation. Following the placing of the purchase order by the buyer, the contract will come into existence through our written confirmation of order or, if no such confirmation is issued, through our delivery.
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| 2.3 |
We reserve title and copyright to cost estimates, drawings and other documents. These may not be made accessible to third parties. The buyer shall have the non-exclusive right to the use of standard software on the agreed machines and with the agreed performance characteristics in unchanged form. The buyer may make two copies (for security purposes) without an express agreement.
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| 2.4 |
Neither our field representatives nor our agents have any authority to give guarantees as to the condition or durability of our goods, or any other guarantees, or to reach agreements at variance with our Terms and Conditions of Business. Any such agreements require our written confirmation to be effective.
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| 3. |
Prices |
| 3.1 |
Unless otherwise agreed, our prices are ex our factory, excluding packaging (and duty unpaid in the case of exports).
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| 3.2 |
Turnover tax will be charged separately on the invoice at the rates in effect on the day of the delivery. |
| 3.3 |
If unforeseeable increases occur in materials prices, wage rates, transport costs, taxes or other levies between the concluding of the contract and the supply of the goods or service, we will be entitled to make a price adjustment corresponding to these factors if the delivery is not made within four months of the concluding of the contract. If the buyer makes changes following the concluding of the contract, we may adjust our prices in accordance with the additional costs caused by the said changes. |
| 3.4 |
In the event that the intended delivery date is postponed by more than three months, for reasons for which we are not responsible, we reserve the right to amend our price(s) in accordance with any changes in wage rates and material costs occurring between the confirmation of order and the actual delivery date.
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| 4. |
Packaging, markings |
| 4.1 |
Packaging for transport purposes is to be returned to our factory, free of charge to us. |
| 4.2 |
We will only take back packaging from sellers at our factory. |
| 4.3 |
If the buyer applies additional markings to our products or combines them with other products, he will have a duty to release us from all obligations if proceedings are taken against him by government authorities by reason of an infringement of the European Regulations on Markings.
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| 5. |
Part deliveries, dates, delays |
| 5.1 |
Part deliveries and services shall be permitted if these are reasonable for the buyer. |
| 5.2 |
Unless otherwise expressly agreed in writing, lead times and dates will not be binding. The lead time or date shall be considered to have been met if the shipment is made ready for dispatch within the specified lead time or by the specified date, if its readiness for dispatch has been notified to the buyer or if the shipment has been collected. We will only be under an obligation to execute and deliver an order if the buyer has made all the agreed payments. If payments, particularly agreed down-payments or cooperative obligations on the part of the buyer, are delayed or are not fulfilled on time, all our lead times will be extended accordingly. |
| 5.3 |
We will not be liable for delays to deliveries or the provision of services as the result of an act of God or by reason of unforeseeable events which make the delivery particularly difficult or impossible for us, even in the case of lead times and dates agreed as binding. The said delays will entitle us to postpone the delivery or provision of services by that period of time during which the obstacle exists, plus a reasonable startup period. This will also apply in cases of unforeseeable events which affect the operations of a subcontractor and for which neither he nor we are responsible. |
| 5.4 |
If lead times or dates, which are binding as per Clause 5.2, are exceeded by us, the buyer will be entitled to withdraw from the contract as a consequence of the delayed delivery or to claim compensatory damages if a reasonable additional period of grace, set by the buyer with a threat of refusal, expires without result. |
| 5.5 |
If a penalty for breach of contract is agreed, the right to reserve the said penalty is to be declared on acceptance. |
| 5.6 |
If so requested by us within a reasonable period of time, the buyer will have an obligation to declare whether he will withdraw from the contract due to the delayed delivery and/or demand compensatory damages instead of the execution of the order or will insist on the delivery being made. |
| 5.7 |
Claims by the buyer for compensatory damages due to a delayed delivery and similar claims instead of the execution of the order alike are excluded in every case of a delayed delivery, even after the expiry of a period of grace allowed to us for the delivery. Claims by the buyer in cases of malicious intent, gross negligence or a culpable injury to life or limb or harm to the health remain unaffected hereby, together with cases in which we have given a guarantee of the delivery time or for other reasons for which we are specifically liable under e.g. the Product Liability Act or the General Equality of Treatment Act. A change in the burden of proof to the disadvantage of the buyer is not associated herewith.
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| 6. |
Transfer of risk, acceptance |
| 6.1 |
In the case of deliveries, the risk shall pass to the buyer as soon as the consignment has been handed over to the person undertaking the transport thereof or it has left our depot for dispatch. If dispatch is delayed at the buyer‘s request or for reasons attributable to him, the risk will pass to the buyer on the notification of the readiness of the consignment for dispatch. |
| 6.2 |
As regards other services, the risk will pass to the buyer as soon as we inform him of their completion. Formal acceptance will only take place when this is agreed or if we expressly request it. |
| 6.3 |
In the case of purchasing contracts with an additional service involving a contract to manufacture, the transfer of risk will comply with Clause 6.1 in the case of delivered parts and Clause 6.2 in the case of the service. The provision laid down in Article 644 II of the Civil Code remains unaffected hereby.
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| 7. |
Notices of defects and guarantee |
| 7.1 |
The buyer must examine the goods immediately after delivery for defects and their guaranteed condition. Obvious defects in the consignment must be notified to us in writing without delay and, in any case, seven days at the latest after receipt of the consignment or within seven days of discovery in the case of concealed defects. Otherwise than this, the consignment shall be deemed to have been approved. |
| 7.2 |
The buyer must give us an opportunity to investigate the complaint, in particular by making damaged goods and their packaging available to us for inspection. If this is refused, we will be relieved of any liability for the defect. In cases where it is urgently required by reason of a threat to operating safety or to prevent unreasonably high losses, the buyer will be entitled to rectify the defect himself or to have it rectified by a third party and to demand repayment from us of the unavoidable costs incurred thereby. The same will apply in the event that we delay in rectifying the defect. In any case, the buyer is to notify us immediately. |
| 7.3 |
If, due to a defect, the buyer requests that the purchase order be subsequently fulfilled, we may choose whether we will ourselves rectify the defect or will supply faultless goods by way of replacement. Replaced goods are to be returned to us. If repairs or a replacement consignment is not possible, is refused or is not carried out by us or comes to nothing for other reasons attributable to us, within a reasonable period of grace determined by the buyer, he may choose whether to withdraw from the contract or to reduce the purchase price. |
| 7.4 |
We will bear the costs incurred by the repair or by the replacement consignment (subject to the complaint proving to be justified), together with the costs of the replacement part, including shipment, together with reasonable costs for removal and installation. Any other costs whatsoever incurred by the buyer are to be borne by him. This will also apply to any further expenses he may have incurred because the goods were subsequently transferred to a site other than the buyer‘s branch unless their transfer corresponds to prescribed use. Any unavoidable assembly and travel costs arising in conjunction with unjustified complaints of defects are to be borne by the buyer. |
| 7.5 |
We do not accept any liability for damage to, or defects in, the goods, which have arisen through improper use, negligent maintenance, natural wear, the processing of parts not complying with drawings or unusable parts whose dimensions exceed the specified tolerances, and the like, if we are not responsible therefor. |
| 7.6 |
Any further claims by the buyer, particularly for compensatory damages instead of the execution of the order and for the reimbursement of any other direct or indirect loss (including immediate or consequential loss) are excluded, irrespective of the legal grounds therefor. Claims by the buyer remain unaffected hereby if
a) we wilfully conceal a defective title or material defect, or have given a guarantee as to the durability or condition of the goods;
b) the loss is attributable to malicious intent or gross negligence by us, our legal representatives or vicarious agents or, at least, to a negligent breach of fundamental contractual obligations by these persons, wherein a fundamental contractual obligation always exists if the exception from liability relates to an obligation, the accomplishment of which alone makes it possible to properly execute the contract at all, and on whose accomplishment the buyer may rely as a matter of course;
c) a culpable breach of duty by us, our legal representatives or vicarious agents has led to a physical injury or harm to the health, or
d) we are specifically liable for other reasons, e.g. an infringement of the Product Liability Act or General Equal Treatment Act. In the case of negligence, however, our liability to pay damages shall be limited to the amount of the foreseeable loss typical of contracts. |
| 7.7 |
The provisions laid down in Clause 7.6 will apply analogously to direct claims by the buyer against our legal representatives or vicarious agents. |
| 7.8 |
All claims for defects by the buyer, including claims for compensatory damages as covered by Clauses 7.6 and 7.7, will be barred by the statute of limitations one year after the delivery of the goods to the buyer. As regards replacement parts and repairs, the period of limitation shall be twelve (12) months. This, however, will run at least until the expiry of the original period of limitation for the article supplied. The period of the warranty of fitness of the article supplied will be extended by the period of the operating stoppage caused by repair work. The provisions laid down in this Clause will not apply if the law according to Articles 438 Section 1, No. 1 (Buildings and Materials for Buildings) and 634 a) Section 1, No. 2 (Building Defects) of the Civil Code prescribes longer periods. |
| 7.9 |
If we provide a specimen or sample, the condition of the specimen or sample is not contractually guaranteed by this alone. |
| 7.10 |
Compliance with safety regulations of all kinds (VDE, TÜV, trade associations, etc.) is exclusively a matter for the buyer.
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| 8. |
Reservation of title |
| 8.1 |
Goods supplied by us will remain our property until the payment in full of all the debts arising out of the business relationship between us and the buyer (in so far as the buyer is a trader) or from the contractual relationship (in so far as the buyer is not a trader). |
| 8.2 |
The buyer will be entitled to resell and/or combine the reserved goods in the normal course of business, provided this is not at variance with what follows. |
| 8.3 |
The buyer hereby assigns all debts arising out of the resale of the reserved goods to us in the amount of the purchase price agreed with us, by way of security, and we accept this assignment. We will only agree to a resale if an effective assignment of debt can take place on the basis of the foregoing declaration of assignment. If the reserved goods are resold with other goods, irrespective of whether they have been combined with other goods or not, the prior assignment will only apply in respect of the amount of the invoice value of the reserved goods which are resold with the other goods. In the case of contracts for services or manufacturing operations, the fulfilment of which invalidates our reservation of title, the wage claim of the buyer shall hereby be assigned to us in the amount of the invoice value of the processed reserved goods. We accept this assignment. |
| 8.4 |
Until this is rescinded by us, the buyer shall be authorised to collect the debts previously assigned to us on our account and in our own name. The authorisation to collect debts will come to an end, even if it is not expressly rescinded by us, if the buyer fails to meet his obligations to us, if the conditions laid down in Clause 8.7 below arise, or if it is found that the collected amounts cannot be paid over to us. In the case of down payments on wage claims partially assigned to us, the buyer has a duty to clear the down payment, on that part of the claim not assigned to us, first. Between us and the buyer, that part amount not assigned to us shall always be deemed to have been paid off out of the down payments collected by the buyer. If so requested, the buyer will have a duty to provide us with written information as to the remaining goods subject to our rights to retention of title. He must provide us with the names of other parties having a claim to title, together with those liable for the debts assigned to us, and provide us with all the information necessary for the assigned debts to be collected, make the requisite documentation available to us and, at our request, notify the debtor of the assignment. The buyer is to make assignment notices available to us at all times. He is under an obligation to inform us without delay of any impairment of our rights to retention of title or other securities, particularly attachments. |
| 8.5 |
If the reserved goods are combined with (built into) other goods not belonging to us, we will acquire the resulting share of co-ownership of the new goods as a proportion of the order value of the reserved goods relative to the value of the other goods at the time they were combined. If the buyer acquires sole title to the new goods, the contracting parties hereby agree that the buyer will grant us co-ownership of the new goods as a proportion of the order value of the (combined) reserved goods relative to the value of the other goods. The buyer has a duty, if requested, to reveal the requisite documents to us at any time, so that we may determine our share of co-ownership. It is hereby agreed that the buyer will undertake the safekeeping of the goods in our co-ownership for us free of charge. |
| 8.6 |
In the case of payments by cheque or bill of exchange, our rights to retention of title and security will remain unaffected thereby and will continue until our liability arising out of the bill of exchange or cheque has ended. |
| 8.7 |
If the buyer behaves in any manner contrary to the terms of the contract whatsoever, particularly in delaying the payment of a debt arising out of the business relationship, or if the buyer is on the verge of insolvency with the result that his payments to us are threatened, or if he ceases to make payments, applies for insolvency proceedings or asks his creditors for an out-of-court settlement, we may, without prejudice to our other rights, demand the immediate return of our property or, if necessary, the assignment of the buyer‘s claim in respect of its return. The recovery of the purchased goods by us shall not constitute a withdrawal from the contract, unless Articles 358, 359 of the Civil Code apply and we do not offer to pay to the buyer the usual sales value of the goods at the time of their recovery. |
| 8.8 |
The recovery of the purchased goods or assertion of the reservation of title is not a precondition of our withdrawal from the contract. |
| 8.9 |
If so requested by the buyer, we undertake to release securities to which we are entitled to the extent that the value of our securities exceeds the value of the debts to be secured by more than 10%, the selection of the released securities to be at our discretion.
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| 9. |
Invoices and terms of payment |
| 9.1 |
Invoices will be issued on dispatch. If goods ready for delivery cannot be dispatched for reasons falling within the scope of the buyer‘s risk, the invoice will nevertheless be issued and be due for payment. |
| 9.2 |
Within the framework of an agreed credit arrangement, our invoices will be due for payment within 30 days at the latest without any deduction. Discounts will only be permitted by express agreement. Even in these cases, they will only be permitted if the buyer has paid all our outstanding invoices or settles them at the same time. |
| 9.3 |
If invoices are not paid within 30 days of receipt of invoice or 40 days at the latest after delivery, the buyer will fall into arrears of payment and we may enforce interest on arrears and reimbursement for any further losses incurred for the same reason. |
| 9.4 |
Bills of exchange will only be accepted by us on the strength of a special agreement. The acceptance of bills of exchange or cheques will only ever take place by way of fulfilment. |
| 9.5 |
The buyer may only set off undisputed or legally valid claims. The same applies to any retention as per Article 273 of the Civil Code in respect of debts which are not based on the same contractual relationship.
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| 10. |
Design changes |
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We expressly reserve the right to make design changes at any time but are not under any obligation to carry out such changes on products already delivered.
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| 11. |
Other claims for compensatory damages |
| 11.1 |
Any other claims for compensatory damages and expenditures which are not covered in the contract, including these conditions, (hereinafter referred to as ‚Claims for compensatory damages‘), are excluded, irrespective of the legal grounds therefor, in particular in respect of breaches of duty arising out of the contractual relationship and impermissible acts. |
| 11.2 |
Claims by the buyer for which we are specifically liable, e.g. as laid down in the Product Liability Act or the General Equality of Treatment Act, or in cases of malicious intent, gross negligence, injury to life or limb or harm to the health, or which are due to the culpable infringement of fundamental contractual obligations, remain unaffected hereby. A fundamental contractual obligation will always exist if it refers to the exemption from liability for an obligation the accomplishment of which alone makes possible the execution of the contract at all, and on the adherence to which the buyer may rely as a matter of course. A claim for compensatory damages for the infringement of fundamental contractual obligations, however, will be limited to foreseeable damages typical of a contract except in the event of malicious intent or there is a liability in respect of culpable injury to life or limb or harm to the health. A change to the burden of proof to the disadvantage of the buyer is not associated with the foregoing provisions.
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| 12. |
Applicable law, legal venue, partial effectiveness |
| 12.1 |
The law of the Federal Republic of Germany will apply exclusively, to the exclusion of the CISG. |
| 12.2 |
The place of fulfilment for all obligations and the legal venue shall be the registered office of our Company, subject to the buyer being a general merchant, a legal entity or a common fund under public law. International jurisdiction through German courts is agreed with foreign buyers. We will also be entitled to institute proceedings at the place of the buyer‘s registered office. The agreement on the legal venue will also apply to summary procedures on cheques and bills of exchange. |
