General terms and conditions
Lampert Werktechnik GmbH
I. Validity of the conditions
- 1. the deliveries, services and offers of the company LAMPERT WERKTECHNIK GmbH (hereinafter referred to as LAMPERT), are made exclusively on the basis of these terms and conditions. These shall also apply to all future business relations, even if they are not expressly agreed again.
- 2. counter-confirmations by the purchaser with reference to his terms and conditions of business or purchase are hereby expressly rejected, irrespective of at what time and in what form the purchaser has brought his terms and conditions of purchase to the attention of LAMPERT. The terms and conditions of delivery of LAMPERT shall apply exclusively as agreed. Ancillary agreements are only effective if LAMPERT confirms them in writing.
II.offer and conclusion of contract
- 1. offers from LAMPERT are subject to change without notice and are non-binding. Unless other agreements have been confirmed in writing by LAMPERT, the prices apply ex warehouse or ex works plus statutory value-added tax.
- Conclusions and agreements, as well as transactions brokered by our representatives, shall only become binding upon our written order confirmation.
- 3. the prices do not include the cost of packing. This will be charged separately and cannot be returned.
- The prices are ex works plus the applicable value added tax.
- 5. LAMPERT is entitled to make price changes if price increases due to raw material, wage, energy and other surcharges occur between conclusion and delivery.
III. deliveries and services
- 1.Delivery dates or deadlines are only binding if they have been confirmed in writing by LAMPERT. If the delivery does not take place within an agreed period of time, the customer shall only be entitled to withdraw from the contract after a reasonable period of grace set by him in writing has not been observed.
- 2. the delivery period shall be deemed to have been met if the operational consignment has been dispatched, made available for collection or collected within the agreed delivery or performance period. If delivery is delayed for reasons for which the customer is responsible, the deadline shall be deemed to have been met upon notification of readiness for dispatch within the agreed period.
- 3. even in the case of bindingly agreed delivery dates, LAMPERT is not responsible for delays due to force majeure and events that make delivery significantly more difficult or impossible – these include in particular strikes, lockouts, official orders, shortages of raw materials or energy, traffic disruptions, fire damage or similar at LAMPERT or its suppliers. They entitle LAMPERT to postpone the delivery or service for the duration of the impediment plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part that has not yet been fulfilled.
- 4. if the delivery time is extended or if LAMPERT is released from its obligation, the customer cannot derive any claims for damages from this.
- 5. LAMPERT is entitled to make partial deliveries, insofar as they are reasonable for the customer.
- 6. compliance with the delivery period shall be subject to the timely receipt of all documents to be provided by the Purchaser, necessary approvals, releases, the timely clarification and approval of plans, compliance with the agreed terms of payment and other obligations. If these prerequisites are not fulfilled in time, the delivery period will be extended appropriately; this does not apply if LAMPERT is responsible for the delay.
- If the dispatch or delivery is delayed at the request of the Purchaser, the Purchaser may be charged storage costs in the amount of 0.5 % of the invoice amount for each month or part thereof, beginning one month after notification of readiness for dispatch; the storage costs shall be limited to 5 %, unless higher charges can be proven.
IV. Acceptance, transfer of risk
- 1. the notification of readiness for collection and dispatch of the ordered goods is equivalent to delivery. If the customer does not accept the goods, LAMPERT is entitled to set a grace period for acceptance of 10 days, with the declaration that delivery will be refused after this period has expired. After the unsuccessful expiration of the deadline, LAMPERT is entitled to withdraw from the purchase contract by means of a written declaration or to demand damages for non-performance. The provision and setting of a grace period shall not be required if the Purchaser seriously and finally refuses acceptance or is obviously not willing or able to pay the purchase price even if a grace period is granted.
- 2. if the seller demands compensation for damages, this shall amount to 15% of the agreed purchase price. The amount of damages is to be set higher or lower if LAMPERT proves higher damages or the purchaser proves lower damages.
- The shipment of the goods is always at the risk of the customer, even if carriage paid delivery has been agreed. The risk shall pass to the Purchaser as soon as the consignment has been handed over to the person carrying out the transport or has left the Seller’s warehouse for the purpose of shipment. Packing and shipping are carried out with the utmost care and at the discretion of LAMPERT.
- 4. at the request and expense of the purchaser, LAMPERT will insure the shipment against breakage, transport and fire damage.
- 5. if shipment becomes impossible through no fault of LAMPERT, the risk passes to the customer upon notification that the goods are ready for shipment.
V. Retention of title
- 1. the delivery of the goods is subject to retention of title with the following extensions:
- 2. until all claims (including all current account balance claims) to which LAMPERT is entitled against the purchaser now or in the future, irrespective of their legal basis, have been satisfied, the purchaser will grant LAMPERT the following securities, which it will release at its discretion upon request, insofar as their value exceeds the claims by more than 20% on a sustained basis.
- 3. the goods remain the property of the seller. Processing or transformation shall always be carried out for the seller as manufacturer, but without any obligation for him. If the (co-) ownership of the Seller expires due to combination, it is already now agreed that the (co-) ownership of the Purchaser in the unified item shall pass to the Seller pro rata (invoice value). The Purchaser shall store the (co-)ownership of the Seller free of charge. Goods to which the seller is entitled to (co-) ownership are hereinafter referred to as reserved goods.
- 4. the customer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledges or transfers of ownership by way of security are not permitted. The purchaser hereby assigns to LAMPERT by way of security all claims arising from the resale or any other legal reason (insurance, tort) with respect to the goods subject to retention of title (including all current account balance claims). LAMPERT revocably authorizes him to collect the claims assigned to LAMPERT for its account in his own name. This authorization to collect may be revoked if the customer does not properly meet its payment obligations.
- 5. in the event of access by third parties to the goods subject to retention of title, the purchaser will point out LAMPERT’s ownership and notify LAMPERT immediately.
- 1. payments are due and to be made according to the agreed payment term.
- 2. we expressly reserve the right to accept bills of exchange and checks. If checks or bills of exchange are accepted by us, they shall only be accepted on account of payment. We do not guarantee timely presentation or protest. Discount charges are to be reimbursed to us.
- 3. if, in connection with the payment of the purchase price by the customer, a liability on the basis of a bill of exchange is established by us, the reservation of title as well as the claim from deliveries of goods on which it is based shall not expire before the bill of exchange has been honored by the customer as drawee.
- 4. despite any provisions of the customer to the contrary, LAMPERT is entitled to set off payments first against its older debts. If costs and interest have already been incurred, LAMPERT is entitled to offset the payment first against the costs, then against the interest, and finally against the principal claim.
- 5. a payment is not deemed to have been made until LAMPERT can dispose of the amount. In the case of checks, payment shall be deemed made only when the check is cashed.
- 6. if the customer does not meet his payment obligations, in particular if he does not honor a check or stops his payments, or if LAMPERT becomes aware of other circumstances that call into question the creditworthiness of the customer, LAMPERT is entitled to call due the entire remaining debt, even if checks have been accepted or the debt has been deferred or if installment payments have been agreed. In this case, LAMPERT is also entitled to demand advance payments or the provision of security.
- 7. the customer is only entitled to set-off, retention or reduction if the counterclaims have been legally established or acknowledged in writing.
- 8. payments may only be made directly to LAMPERT. Representatives are not authorized to accept payments without a written power of attorney.
VII. design changes
- LAMPERT reserves the right to make design changes at any time. However, LAMPERT is not obligated to make such changes even to products that have already been delivered.
LAMPERT is liable for defects, which also include the absence of warranted characteristics, as follows:
- 1. all parts or services that become unusable or whose usability has been significantly impaired within the limitation period – regardless of the operating time – calculated from the day of the transfer of risk, due to a circumstance that occurred before the transfer of risk, in particular due to defective design, poor materials, or defective workmanship, are to be repaired, replaced, or provided again free of charge at LAMPERT’s discretion. The discovery of such defects must be reported to LAMPERT in writing without delay. Claims for material defects are always subject to a limitation period of 12 months. This shall not apply insofar as the law pursuant to. §§438 para. 1, no. 2, 475 II, 479 para. 1 and 634 (a) par. 1 No. 2 BGB prescribes mandatory longer periods.
- 2. the customer shall comply with the contractual obligations incumbent upon him, in particular the agreed terms of payment. If a notice of defect is asserted, payments by the Purchaser may be withheld to an extent that is in reasonable proportion to the defects that have occurred. If, however, the contract is part of the operation of his trade, the Purchaser may withhold payments only if a notice of defect is asserted about the justification of which there can be no doubt.
- 3. the purchaser must give LAMPERT at least two opportunities to remedy the defect within a reasonable period of time, unless the nature of the item or the defect or other circumstances indicate otherwise. If he refuses to do so, LAMPERT is released from its obligation to notify defects.
- 4. claims of the customer for expenses incurred for the purpose of supplementary performance, in particular transport, labor and material costs, shall be excluded to the extent that expenses are increased because the subject matter of the supplementary delivery was subsequently brought to a place other than the customer’s place of business, unless such transfer is in accordance with its intended use.
- If the subsequent performance fails, the Purchaser may – without prejudice to any claims for damages pursuant to Art. IX, clause 1, sentence 2 – withdraw from the contract or reduce the remuneration.
- (6) The remedy of defects shall not apply to insignificant deviations from the agreed quality, only insignificant impairments of usability, only natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials or due to external influences such as e.g. chemical, electro-chemical or electrical processes which are not assumed under the contract and in the case of non-reproducible software errors. If the customer or a third party has made improper changes, processing or repairs to the item, there shall also be no claims for defects for these and the resulting consequences.
- 7. claims under a right of recourse by the customer against LAMPERT in accordance with §§ 478 ff BGB are excluded. Compensation for any recourse claims by the customer was taken into account accordingly in the pricing. The parties consider this compensation through a lump-sum discount to be appropriate.
- 8. further claims or claims other than those regulated in Art. III against LAMPERT and its vicarious agents are excluded, in particular a claim for compensation for damage that has not occurred to the delivery item itself. This shall not apply insofar as liability is mandatory pursuant to Art. IX, clause 1, sentence 2, liability is mandatory.
- (9) Clauses 1 to 8 shall apply mutatis mutandis to such claims of the Purchaser for repair, replacement delivery or damages which have arisen as a result of suggestions or advice given within the scope of the contract or as a result of a breach of ancillary contractual obligations.
- (1) Claims for damages by the Purchaser, irrespective of the legal grounds, in particular for breach of obligations arising from the contractual relationship and from tort, shall be excluded. This shall not apply in cases of mandatory liability, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, body or health, or breach of a condition which goes to the root of the contract. However, damages for breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, unless caused by intent or gross negligence or based on liability for injury of life, body or health. The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.
- (2) Insofar as the Purchaser is entitled to claims for damages under this Article, such claims shall become time-barred upon expiry of the limitation period applicable to claims for material defects pursuant to Art. VIII, item 1. However, claims for damages of the OP shall be excluded from the above provision insofar as the CO is liable for them without limitation pursuant to Art. IX, item 1; such (excluded) claims for damages shall become statute-barred in accordance with the statutory provisions.”.
X. Impossibility, adjustment of the contract
- 1. if it becomes impossible for LAMPERT or the purchaser to provide the delivery or service for which he is responsible, the general principles of law apply with the following proviso: if the impossibility is due to the fault of LAMPERT, the purchaser is entitled to demand compensation for damages. However, the Purchaser’s claim for damages shall be limited to 10 % of the value of that part of the delivery or service which cannot be put to the intended use due to the impossibility. Claims for damages on the part of the customer exceeding the aforementioned amount of 10 % are excluded. This shall not apply insofar as liability is mandatory pursuant to Art. IX, clause 1, sentence 2, liability is mandatory. The right of the customer to withdraw from the contract remains unaffected.
- 2. if unforeseeable events within the meaning of Art. III, clause 3 significantly change the economic significance or the content of the delivery or have a significant effect on LAMPERT’s operations, the contract will be adjusted appropriately insofar as this is in good faith. If this is not economically justifiable, LAMPERT has the right to withdraw from the contract. If LAMPERT intends to exercise this right of rescission, it must inform the customer of this immediately after realizing the consequences of the outcome, even if an extension of the delivery time was initially agreed with the customer.
XI. Applicable law and place of jurisdiction
- 1. German law applies to these terms and conditions and to the entire legal relationship between LAMPERT and the purchaser.
- (2) Insofar as the customer is a fully qualified merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Schweinfurt shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
XII. Data storage
- The purchaser is informed that LAMPERT data, insofar as necessary for business or permissible within the framework of the Federal Data Protection Act, will be stored and processed by computer.
XIII Partial nullity
- If any provision in this Agreement or any provision under any other agreement is or becomes invalid, the validity of all other provisions or agreements shall not be affected thereby. This shall not apply if adherence to the contract would represent an unreasonable hardship for one party.
Lampert Werktechnik GmbH