GENERAL TERMS AND CONDITIONS OF BUSINESS AND DELIVERY
of Hans Lingl Anlagenbau und Verfahrenstechnik GmbH & Co. KG, Nordstraße 2, D-86381 Krumbach
1. The terms and conditions below apply exclusively to all quotes provided by us and to all contracts entered into with us.
2. Terms and conditions of purchase or contradictory terms and conditions of the purchaser shall only apply if we confirm this in writing.
II. Formation of a contract
1. All of our quotes and offers are without obligation, in particular those in catalogues, sales documentation or on the internet. In legal terms they shall be considered as an invitation to make an offer.
2. Orders shall be accepted once they have been confirmed by us in writing or are executed by us without delay following order receipt.
3. In case of doubt the subject matter of the contract shall be based upon our order confirmation, or if this is not issued it shall be based upon our delivery note.
4. Statements on dimensions, weight and performance as well as illustrations and designs shall be deemed to be approximate unless they have been designated as binding by us.
5. We reserve the title to and the copyright in cost estimates, construction designs and other documentation without restriction; these may not be made accessible to third parties without our consent and must be returned without delay in the event that no contract is formed.
6. We will not carry out soil investigations related to the substructures of buildings. All statements on foundations and prices related to these are based on a soil bearing capacity of 2 kg/cm² and on ground which is capable of being dug.
7. The design or shape remain subject to change during the delivery period, provided that these are insignificant changes to the service and are reasonable for the purchaser.
8. Additional agreements or agreements on alterations, including with our representatives, field sales staff or other appointees, must be expressly confirmed by us in writing in order to be effective.
1. Delivery periods shall only commence once all design details have been clarified in full. Compliance with the delivery periods is conditional upon the fulfilment of the contractual conditions by the purchaser; this applies in particular to the payment of any agreed advance payment and timely submission of required documentation.
2. Delays in delivery based on force majeure or on events for which we are not at fault and which significantly hamper the delivery or make it impossible for a time, including in particular strikes, lockout, official orders, transportation disruptions, etc., including when these occur at our suppliers or sub-suppliers, shall extend the agreed period to a reasonable extent. If the obstacle to delivery lasts for longer than 3 months, then both parties to the contract shall be entitled to withdraw from the contract in whole or in part. Claims for damages shall be excluded. The same applies if we do not receive supplies from our own supplier or if these are not received on time, without us being culpable in this event.
3. Partial deliveries and services shall be permitted to a reasonable extent.
4. We shall endeavour to meet the agreed delivery periods. If we culpably do not meet delivery periods then the purchaser shall be under an obligation to set a reasonable grace period for us. The purchaser may withdraw from the contract once this grace period has expired. Point VII applies accordingly to claims for damages for delay and for damage on account of non-performance.
5. If shipping is delayed on grounds for which the purchaser is responsible, then a storage fee of 0.5% of the invoice amount may be charged for each month or part thereof, up to a maximum of 5% of the invoice amount. The right to assert a claim for greater damage is not excluded through this. The purchaser is entitled to provide evidence that no or considerably less damage was suffered.
6. If the purchaser culpably refuses to fulfil the contract, we shall be entitled to demand damages amounting to 20% of the total amount of the order exclusive of VAT. The right to assert a claim for greater damage is not excluded through this. The purchaser is entitled to provide evidence that no or considerably less damage was suffered.
IV. Prices and payment terms
1. Prices are strictly net ex works, including loading and exclusive of VAT at the applicable statutory amount.
2. The purchaser shall be responsible for paying all customs duties, taxes and other levies incurred as a result of our deliveries and services in the purchaser’s country.
3. If the period between formation of the contract and the start of order execution is more than 4 months, then we reserve the right to increase our prices to a reasonable extent if there are any cost increases following formation of the contract, in particular increases in the costs of materials and raw materials or in personnel, manufacturing and transportation costs. We shall provide evidence of these to the purchaser upon request.
4. The purchaser may only offset its own claims against claims which are undisputed by us or which have been determined in law.
5. Any assertion of a right of retention based on counter-claims which are disputed or which have not been determined in law is excluded, unless these claims are based upon the same contractual relationship.
6. Bills of exchange shall only be accepted on account of payment and following special agreement, and only subject to eligibility for discount and immediate payment in cash of the bank’s discount charges.
7. Payments may only be made to us. Claims against us may not be assigned.
V. Transportation, transfer of risk and acceptance
1. With deliveries of goods, including those cases where the goods are to delivered carriage free, risk shall be transferred once the goods leave our factory or once the purchaser is in default of acceptance. This also applies to partial deliveries. If the shipment is delayed on grounds for which the purchaser is responsible, then risk shall be transferred to the purchaser following notification of the readiness for shipment. The same applies accordingly if the goods are delivered from a factory belonging to third parties appointed by us.
2. Notification of any potential transportation damage must be provided to the carrier by the recipient prior to payment for the freight and before the goods are accepted. The recipient must notify the freight forwarder within 1 week following delivery of any damage to or shortages of the goods which are not discernible externally upon acceptance.
3. If acceptance of deliverables is delayed on grounds for which the purchaser is responsible, then acceptance shall be deemed to have been provided if a reasonable period set by us for completion of the acceptance process by the purchaser has expired without result, however, no later than 3 months following the delivery.
4.In the event that the machinery / plant supplied by us is capable of producing saleable goods following commissioning then the purchaser is under an obligation to confirm this to us in writing. This confirmation does not represent an acceptance in those cases where one is required.
VI. Notification of defects and liability for defects
1. Specifications related to features, e.g. regarding dimensions, weight and other technical specifications are only descriptions of the features and do not result in the assumption of a guarantee. The purchaser must verify whether the goods are suitable for its purposes under its own responsibility.
2. The goods supplied by us must be inspected by the purchaser carefully without delay following receipt in relation to quantity, defects and features. They shall be deemed to have been accepted unless we are notified of identifiable complaints in writing without delay, and no later than within 1 week following receipt of the goods, or following detection as relevant if a complaint arises later. This shall not apply if acceptance is expressly agreed. If the purchaser determines that the goods contain a defect then it may not dispose of it, i.e. it may not be shared, resold or processed further.
3. In the event that the goods delivered or the deliverables provided are defective we shall be entitled to provide the supplementary delivery at our discretion by either rectifying the defects or by delivering a perfect item. With this we may at our discretion require the defective goods to be returned to us at our expense for alteration or replacement with subsequent return to the purchaser, or require the purchaser to keep the defective goods available so that we may alter or replace the goods there ourselves or via an individual appointed by us. The purchaser is entitled to claim this option if shipment of the goods to us is unreasonable for it. We shall be responsible for paying the expenditure required for the purposes of supplementary performance (in particular transportation, carriage, labour and material costs). This does not apply to increased expenditure incurred as a result of the fact that the goods are shipped to a different location than the purchaser’s registered location or commercial branch, unless this is in accordance with the intended use of the goods.
4. In the event of a failure (i.e. impossibility), serious and conclusive refusal, unreasonable delay or a futile attempt to effect subsequent performance, the purchaser shall be entitled at its discretion to a reduction in the purchase price or to withdraw from the contract. A delay is unreasonable if the contractor does not effect the subsequent performance within a reasonable set period. Withdrawal is not permitted if the item to which the liability for defects relates is construction work.
5. If a defect is based upon our fault or fault which can be attributed to us, the purchaser may claim damages or compensation under the conditions set out in point VII.
6. The limitation period for claims for defects is 12 months. In the event of a defect in the cases covered by Section 438 sub-section 1 No. 2 of the German Civil Code BGB (buildings and components for buildings) or Section 634a sub-section 1 No. 2 BGB (buildings and planning or monitoring services for buildings) the limitation period shall be five years. If the claim for defect is dependent upon fault then the limitation period shall apply in accordance with point VII. No. 4.
7. Any delivery of used goods agreed with the purchaser in an individual case shall be made with all claims for defects excluded.
VII. General liability
1. In the event of a breach of obligation then, subject to any further contractual or statutory conditions for liability, we shall only be liable to pay damages or compensation if there is wilful intent or gross negligence. This shall not apply if the breach of obligation relates to a cardinal contractual obligation (contractual obligation the breach of which places achievement of the contractual purpose at risk and which the parties to the contract can normally expect to be met) or a guarantee or leads to liability for harm as a result of injury to life, limb or health or to the extent that we are liable under the German Product Liability Act.
2. In the event of liability on account of negligent breach of a cardinal contractual obligation, liability shall be limited to damage or loss typical for the contract which was foreseeable at the time of formation of the contract.
3. The preceding liability disclaimers and limitations apply to the same extent to the benefit of our corporate bodies, legal representatives, employees, vicarious agents and other appointees.
4. The limitation period for all claims for damages and compensation against us based on any legal grounds whatsoever is 12 months, unless we are liable for wilful intent or gross negligence or are liable for harm as a result of injury to life, limb or health or are liable under the German Product Liability Act.
VIII. Retention of title
1. The retention of title regulation agreed below is for the purposes of securing all of our existing, current and future claims against the purchaser from the business relationship in place with the purchaser (including balance claims from any current account relationship which may have been agreed).
2. As goods subject to retention of title, the goods delivered shall remain our property until all secured claims have been paid in full.
3. If the purchaser is in default of payment, we shall be entitled to demand that the goods are returned without withdrawal beforehand on our part.
4. The purchaser will hold the goods subject to retention of title for us in safekeeping free of charge.
5. The purchaser shall be entitled to resell or to process the goods subject to retention of title in the ordinary course of business. However, it hereby assigns all claims to which it is entitled from the sale or processing to the value of the goods subject to retention of title with all ancillary rights to us and authorises us to collect these claims. We hereby accept the assignment.
6. The processing or alteration of the goods subject to the retention of title shall be deemed to have been completed for us. To this extent we shall be considered to be the manufacturer for the purposes of Section 950 BGB.
7. The value of the goods subject to the retention of title shall be the amount of our invoice. If the goods subject to retention of title which have been resold are co-owned by the purchaser, the assignment of the claim shall cover the amount which corresponds with the purchaser’s share in the co-ownership.
8. If goods are processed with other goods which do not belong to us we shall acquire co-ownership in the new item created at the proportionate value of the goods subject to the retention of title to the value of the other goods at the time of processing. If the goods subject to retention of title are combined, mixed or merged with goods which do not belong to us for the purposes of Sections 947 and 948 BGB then we shall become co-owners in accordance with the statutory provisions. If the purchaser acquires sole ownership as a result of combining, mixing or merging the goods, then it hereby grants us co-ownership in these in proportion to the value of the goods subject to the retention of title to the other goods at the time of combining, mixing or merging.
9. If the goods subject to retention of title are integrated by the purchaser as an essential component in property, a ship construction or aircraft belonging to the purchaser, then the purchaser hereby assigns to us the claim arising from the sale of the property, from real property rights, the ship, the ship construction or the aircraft to the value of the goods subject to retention of title.
10. The purchaser is not entitled to mortgage the goods subject to retention of title or to assign them as collateral.
11. The purchaser shall remain entitled to collect the assigned claims until this is revoked. We shall not exercise our right to collect claims for as long as the purchaser meets its payment obligations towards us. Upon request the purchaser shall be under an obligation to name the debtor of the assigned claim to us and to notify this individual of the assignment, without prejudice to our right to notify the debtor of the assignment ourselves.
12. The right to sell, process, mix or merge the items delivered subject to retention of title or to combine them with other items or otherwise to exploit them shall cease in the event of default of payment, discontinuation of payments, a request to open insolvency proceedings in relation to the assets of the purchaser or if a request of this type is rejected.
13. The purchaser must notify us in writing without delay in the event of garnishment or other interventions by third parties so that we are able to institute legal proceedings in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to reimburse us for the court and out-of-court costs of legal proceedings in accordance with Section 771 ZPO the customer shall be liable to us for the loss incurred.
14. At the purchaser’s request we undertake to release the collateral to which we are entitled provided that its estimated value exceeds the amount of the secured claims by more than 50%.
IX. Use of software
1. If software is included within the scope of delivery, the purchaser shall be granted a non-exclusive right to use the software supplied, including its documentation. It will be provided for use on the delivery item for which it is intended. Any use of the software on more than one system is prohibited.
2. The purchaser may only copy, edit or compile the software or convert the object code into the source code within the scope permitted by statute (Section 69a of the German Copyright Act – UrhG). The purchaser undertakes not to remove or to modify manufacturer information, in particular copyright notices, without our express consent.
3. We retain all other rights to the software and the documentation exclusively, including any copies thereof. No sub-licences may be granted.
X. Final provisions
1. The place of fulfilment for both parties and for all reciprocal business relations is Krumbach.
2. The exclusive place of jurisdiction for legal disputes with traders, legal entities and special funds under public law shall be the court responsible for the district where we maintain our head office. However, we shall also be entitled to institute legal proceedings at the head office of the purchaser or at other competent courts based on domestic or foreign law. Mandatory statutory provisions regarding exclusive places of jurisdiction shall remain unaffected by this.
3. The legal relationship with the purchaser is subject to German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods – CISG).
4. In the event that one or more terms and conditions are ineffective in whole or in part then this shall not affect the validity of the remaining terms and conditions. Any effective reasonable part contained in the ineffective terms and conditions should be retained.
5. Our terms and conditions of assembly shall also apply if we are providing assembly services, either in addition to the supply of goods or on their own; these can be sent to the purchaser upon request.