Terms of business L&K GmbH
I. Scope of Applicability
1. These General Terms and Conditions for Deliveries, Sales and Payments apply exclusively for all deliveries and other performances by L&K GmbH; any contradicting or deviating terms and conditions of the Buyer are not recognized by us unless we have expressly agreed with their applicability in writing. Even if we have knowledge of contrary or deviating terms and conditions of the Buyer, the present Terms and Conditions shall also apply even if we execute deliveries to the Buyer without reservation in knowledge of contrary or deviating terms and conditions of the Buyer.
2. The present Terms and Conditions shall also apply for all future deliveries and services to the Buyer even if their applicability has not been expressly agreed once again in the event of delayed deliveries or even if no reference is made to their applicability.
II. Conclusion of a Contract
1. Our offers are subject to change without notice and are non-committal unless expressly agreed otherwise by the Parties. Orders transmitted by the Buyer telephonically, by e-mail, telefax or letter constitute a binding offer. A contract shall only materialize by the order confirmation transmitted telephonically, by e-mail, telefax or letter or shall materialize upon delivery of the ordered goods.
2. All agreements which are reached by us and the Buyer for the execution of the present contract are to be confirmed in writing.
III. Delivery Period
1. Delivery periods and delivery dates shall be based on the agreements reached between the contracting parties; the dates of delivery indicated by us are considered as only approximate agreed upon; bind delivery dates shall at all events require our separate written confirmation.
2. Delivery and service delays attributable to force majeure or to exceptional occurrences not attributable to us and which impede delivery significantly (e.g. operational disruptions, strikes, lockouts. official directives, lack of transport facilities, and energy supply difficulties, etc.,) shall release us from compliance with the agreed delivery dates and shall entitle us to postpone delivery for the duration of the impediment plus a reasonable start-up period. Both contracting parties shall be entitled to withdraw from the contract in the aforesaid case. This shall also apply in the event of a force majeure occurrence during a delivery delay period. The Buyer shall not be entitled to derive any compensation claims from a force majeure occurrence. We shall only be able to invoke a justification for a delivery or performance delay if we immediately inform the Buyer about the impediments which have occurred.
3. We shall be entitled to make part-deliveries and perform part-services at any time unless a part-delivery or part-service is not of interest for the Buyer.
4. Special items can only be delivered as long as the relevant stocks last. If the particular stock item is exhausted, we shall be released from our delivery obligation and shall be able to withdraw from the contract. In the aforesaid case, the customer shall be immediately informed about the non-availability of the goods in question. Any counter-performances are to be refunded immediately. The same shall apply if goods cannot be delivered for reasons not attributable to us.
IV. Transfer of Risk and Acceptance
1. Goods shall be loaded and transported at the risk of the recipient unless otherwise agreed when the contract was concluded. Insurance cover against transport damages shall always be charged to the Buyer. If goods are damaged or lost during their transportation, the Buyer shall immediately arrange for a fact-finding report to be issued by the forwarder.
2. If formal acceptance of deliveries or services has to be made, this must be immediately carried out at the time of acceptance, or alternatively after our notification, by means of the customer’s willingness to accept. The Buyer may not refuse acceptance in the event of an immaterial defect.
3. If the Buyer refuses to accept ordered goods as a result of gross negligence or wilful intent on his/its part, we may set a written period of grace of eight days together with a declaration that we will refuse to perform the contract at the end of the said period. After an abortive end of the period of grace, we shall be entitled to withdraw from the contract by means of a written declaration or to demand compensation for non-performance thereof. No period of grace shall be required if the debtor seriously and conclusively rejects our performance or if special circumstances are prevailing which justify the enforcement of a damage compensation claim taking due account of the interests of both parties.
4. The compensation claim to be enforced in the cases referred to under Section 3 shall amount to 15 % of the agreed purchase price (profit margin). The enforcement of a higher or lower damage by us or the Buyer shall not be excluded as a result.
V. Prices and Payment
1. The prices specified by us are Euro-prices and are expressly subject to change. Statutory value-added tax is not included in our prices. It is charged separately in the invoice in the statutory amount on the invoice date.
2. In the case of freight-free delivery, any increases in freight rate shall be for the account of the Buyer.
3. Unless otherwise agreed, our invoices are payable 30 days after the invoice date, net. Payments made by the Buyer shall initially be credited to the oldest debt amount due. In case of delayed payment of one invoice by the Buyer all further invoices become immediately due. We are entitled to retire on our depts to a third party. We are also entitled to invoice for partial deliveries and - services. If costs and interest have been incurred, we shall be entitled to credit payments to costs first of all, then to interest and finally to the main performance on our part.
4. Any counterclaims may only be offset by the Buyer if they are undisputed, legally valid or recognized by us. In addition, the Buyer shall only be entitled to exercise a retention right to the extent that the counterclaim is based on the same contractual relationship.
5. If it is known after the conclusion of the contract that the Buyer is in an unfavourable financial position or that his financial circumstances have deteriorated as a result of which settlement of our claim is endangered, we shall be entitled to demand security for the counter-performance within a reasonable period of time and to withdraw from the contract after charging the expenses incurred by us.
6. L&K is entitled to assign receivables against customers seated in Germany and other countries which belongs to the EU, for refinancing purposes to the abcfinance GmbH, Kamekestr. 2-8 in 50672 Cologne, GERMANY. The buyer will be communicated at the conclusion of the contract whether the demand can be ceased. In the case, payments with guiltfree action can only be given to the abcfinance GmbH. The bank connection will be communicated to the buyer at the contract's conclusion. It is the material right of the Federal Republic of Germany. The UN agreement over contracts concerning the international purchase of goods (CISG) as well as foreign country rights cannot be applied.
VI. Reservation of Title
1. We shall reserve ownership of the purchased goods pending all payments in connection with the business relationships with the Buyer.
2. The Buyer is obliged to treat the purchased goods with care.
3. In the event of pledges or any other interventions by third parties, the Buyer shall inform us in writing without delay so that we are able to institute proceedings in accordance with Section 717 of the German Code of Civil Procedures (ZPO). If the third party is not in a position to refund the judicial or extrajudicial costs of a third party to us under Section 717 ZPO, the Buyer shall be liable for any loss incurred by us.
4. The Buyer shall be entitled to resell the purchased goods in the ordinary course of business. He/it shall, however, hereby assign all claims to us equivalent to the final invoice amount (including value-added tax) accruing to him/it against his/its customers or third parties in connection with the aforesaid resale regardless of whether the purchased goods have been resold with or without processing. The Buyer shall also be entitled to collect the aforesaid claim even after an assignment of the goods. Our authority to collect the claim ourselves shall not be affected thereby. We shall, however, undertake to collect the claim as long as the Buyer is failing to comply with his/its payment obligations in connection with the proceeds received, as long as he/it is not in payment arrears and in particular as long as no application has been made for the opening of bankruptcy or settlement or insolvency proceedings or as long as payments are not discontinued. If this is the case, however, we shall be entitled to insist that the Buyer informs us of the assigned claims and third respective debtors and provides us with all information required for collection purpose and provides us with the relevant documents and notifies the assignment to the relevant debtors (third parties).
5. The processing or conversion of the purchased goods by the Buyer shall always be made n our behalf but with no obligations or commitments on our part.
6. If the purchased goods are processed with other goods not belonging to us, we shall acquire the co-ownership of the new chattel in the ratio of the valued of the purchased goods to the other processed goods at the time of processing. The goods arising from the aforesaid processing shall also apply in the same way as for the purchased goods delivered with reservation. If the purchased goods are inseparably intermingled with other goods not belonging to us, we shall acquire a co-ownership of the new goods in the relationship of the value of the purchased goods to the intermingled goods at the time of their intermingling. If the intermingling process is carried out in such a way that the chattel of the Buyer is to be regarded as the main item, it is hereby agreed that the Buyer shall assign his/its co-ownership right to us. The Buyer shall keep the sole ownership or co-ownership goods for us free of charge.
7. We hereby undertake to release all acquired securities at the request of the Buyer if the realizable value of our securities exceeds the claims to be secured by more than 10 %. The selection of the securities to be released shall be at our discretion.
8. In case of any non-contractual behaviour on the part of the Buyer - especially payment delay - we shall be entitled to enter the areas of the Buyer in order to enforce our reservation of title and to collect the reserved goods. For the asserting of the reservation of title a resignation of contract is not necessary, exceptional the Buyer is consumer in sense of & 13 BGB.
1. The Customer is obliged to examine the goods for any transport damages immediately upon receipt thereof and to notify these to the supplier (forwarder/carrier).
2. The warranty rights of the Buyer presuppose that that the aforesaid has complied with his/its examination and reprimand obligations in an orderly and proper manner due in accordance with Sectionb 377 of the German Commercial Code (HGB). Apparent defects are to be notified in writing within two weeks.
3. If the purchased goods are defective for a reason attributable to us, we shall be entitled to rectify the damage or to make a replacement delivery at our option. In the event of a damage rectification, we shall be obliged to bear all the expenses necessary for rectifying the defect, including transport, travelling, working and material costs unless the aforesaid are increased by the fact that the purchased object was brought to a location other than the place of performance.
4. Features and qualities of purchased goods or those damages which are occurred after the transfer of risk as a result of improper handling, storage or use are not technical defects. Quality assurances and other assurances must be made in writing. Measurements, weight details and quality features, etc., illustrations and any other technical information, including information included in brochures/literature, offers, order confirmations and invoices do not constitute quality assurances and are subject to change.
5. We shall be liable in accordance with the relevant legal regulations if the Buyer enforces compensation claims which are attributable to wilful intent or gross negligence, including wilful intent or gross negligence or wilful intent on the part of our representatives or vicarious agents as well as for damage, of injury of life, of the body or of the health, we, our legal representatives or vicarious agents are responsible for. Unless we are charged with a wilful breach of the contract, the compensation liability shall be limited to foreseeable and typically occurring damages.
6. We shall be liable in accordance with the relevant German legal regulations if we culpably breach a major contractual obligation. In this case, the compensation liability shall be limited the foreseeable and typically occurring damages.
7. Compensation liability is excluded in other respects. We shall, in particular, not be liable for damages which were not incurred at the place of delivery.
8. The cogent provisions of the German Product Liability Act shall remain unaffected.
VIII. Applicable Law, Legal Venue and Partial Invalidity
1. The laws of the Federal Republic shall apply for the present Terms and Conditions of Business and all legal relationships between us and the Buyer. The provisions of the UN Convention on Contracts for the International Sale of Goods (UN-Kaufrecht) shall not apply.
2. The buyer shall bear all fees, costs and expenses incurred in connection to any legal proceedings successfully instituted against it outside of Germany.
3. If the Buyer is a registered trader, a legal person under public law or a public law fund, Frankfurt am Main shall be the exclusive legal venue for all disputes directly or indirectly arising from the contractual relationship - also for cheque and actions on a bill of exchange. The same is valid, if the Buyer does not have a general area of jurisdiction in Germany or the domicile or usual stay is unkown at the time of preferment. In addition, we are entitled to sue the Buyer at its general area of jurisdiction
4. If a provision in the present Terms and Conditions of Business, or a provision as part of any other agreement, is or becomes invalid, the validity of all other provisions or agreements shall not be affected thereby.
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