Terms and Conditions – L&K GmbH
I Scope of Applicability
1. These general terms and conditions for deliveries, sales and payment 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 to their applicability in writing. These terms and conditions shall also apply if we execute deliveries to the Buyer without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.
2. The present terms and conditions shall also apply for all future deliveries and services to the Buyer even without reference to their applicability or if for later deliveries their applicability has not been expressly agreed on once again.
II. Conclusion of Contract
1. Our offers are subject to change without notice and are non-committal unless expressly agreed otherwise by the parties. Orders placed by the Buyer via phone, e-mail, telefax or letter constitute a binding offer. A contract shall only come into effect by the order confirmation transmitted by phone, e-mail, telefax or letter or upon delivery of the ordered goods.
2. All agreements reached between us and the Buyer for the purpose of executing the present contract must be recorded 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 only deemed to be agreed as approximations; binding 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, 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 are entitled to make partial deliveries and render partial services at any time, unless the partial delivery or partial service is of no interest to the Buyer.
4. Special items can only be delivered as long as the relevant stocks last. If a 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 must immediately be informed about the non-availability of the goods in question. Any counter-performances are to be refunded immediately. The same applies 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 the Buyer’s part, we may set a written grace period of eight days together with a declaration that we will refuse to fulfil the contract at the end of the said period. After the unsuccessful expiry of this grace period we are entitled to withdraw from the contract by written declaration or to claim damages for non-performance. There is no need to set a deadline if the debtor seriously and definitively refuses performance or if there are special circumstances that justify the immediate assertion of the claim for damages after weighing up 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 quoted by us are euro prices unless expressly stated otherwise. The statutory value added tax is not included in our prices. It is shown separately on the invoice at the statutory rate on the day of invoicing.
2. In the case of carriage paid deliveries, increases in freight rates shall be borne by the Buyer.
3. Unless otherwise agreed, our invoices are payable 30 days after invoicing without deduction. If the customer is in default of payment of an invoice, all further invoices shall become due immediately. We are entitled to assign our invoice claims to third parties. In the case of partial deliveries and partial services, we are entitled to issue partial invoices for these. Payments by the customer shall first be offset against the oldest debt. If costs and interest have already been incurred, we shall be entitled to offset the payment first against the costs, then against the interest and finally against the principal performance.
4. Any counterclaims may only be offset by the Buyer if they are undisputed, legally valid or recognized by us. Furthermore, the customer is only authorized to exercise a right of retention to the extent that a counterclaim is based on the same contractual relationship.
5. If, after conclusion of the contract, we become aware that the customer is in an unfavourable financial situation or a deterioration of assets has occurred which jeopardises the claim for consideration, we shall be entitled to demand security for the consideration within a reasonable period of time and, in the event of refusal, to withdraw from the contract, taking into account the expenses incurred by us.
6. L&K GmbH is entitled to assign claims against customers located in Germany and EU countries for refinancing purposes to abcfinance GmbH, Kamekestr. 2-8 in 50672 Cologne, GERMANY. The Buyer will be informed upon conclusion of the contract whether the claim is assigned. In these cases, payments with debt-discharging effect can only be made to abcfinance. The Buyer will be informed of their bank details when the contract is concluded. 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 seizures or other interventions by third parties, the customer must inform us immediately in writing so that we can take legal action in accordance with § 717 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 is entitled to resell the purchased item in the proper course of business. However, the Buyer hereby assigns to us all claims in the equivalent amount of the final invoice (including VAT) of our claim, accruing to them from the resale against their 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 undertake, however, not to collect the claim as long as the Buyer fulfils his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of bankruptcy, composition or insolvency proceedings has been filed and payments have not been 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, provides us with all information required for collection purposes, 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 on 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 co-ownership of the new resulting goods in the ratio of the valued of the purchased goods to the other processed goods at the time of processing. In all other respects, the same shall apply to the goods created by processing as to the purchased goods delivered under reservation of title. If the purchased goods are inseparably mixed with other goods not belonging to us, we shall acquire co-ownership of the new resulting goods in the ratio of the value of the purchased goods to the other mixed goods at the time of mixing. If the mixing takes place in such a way that the Buyer’s goods are to be regarded as the main good, it is agreed that the Buyer shall transfer co-ownership to us on a pro rata basis. The Buyer shall keep the resulting sole ownership or co-ownership for us free of charge.
7. We undertake to release the securities accruing to us at the request of the Buyer to the extent that the realisable 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. If we assert our rights arising from retention of title in the event of breach of contract by the Buyer – in particular default of payment – we shall have the right to enter the Buyer’s premises in order to take possession of the goods subject to retention of title. For the asserting of the reservation of title a resignation of contract is not necessary, unless the Buyer is a consumer in sense of § 13 BGB (German Civil Code).
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 Buyer’s warranty rights presuppose that the Buyer has duly fulfilled their obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code). Obvious defects must be reported in writing within two weeks of delivery.
3. If the purchased goods are defective for a reason attributable to us, we shall be entitled to remedy the defect or make a replacement delivery at our discretion. 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, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.
4. Material defects do not include the quality of the delivery item or damage that occurs after the transfer of risk as a result of improper handling, storage or use. Quality assurances and other assurances must be made in writing. Measurements, weight details and quality features, etc., illustrations and any other technical information, including those in brochures, letters, offers, order confirmations and invoices do not constitute warranties of quality and are subject to change.
5. We shall be liable in accordance with the relevant legal regulations if the Buyer asserts claims for damages attributable to wilful intent or gross negligence, including wilful intent or gross negligence on the part of our representatives or vicarious agents, as well as for damages resulting from injury to life, limb or health for which we, our legal representatives or vicarious agents are responsible. Unless we are accused of wilful breach of contract, liability for damages shall be limited to foreseeable, 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 with any successful legal action against the Buyer outside 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 unknown at the time of preferment. In addition, we are entitled to sue the Buyer at their 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.
As of 22 September 2023