Terms and conditions - licht & harmonie Glastüren GmbH

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General Terms and Conditions of Delivery and Payment
of licht & harmonie Glastüren GmbH
I.
Validity
1. These General Terms and Conditions of Delivery and Payment (hereinafter referred to as “GTCP”) shall apply to all our consultations, offers, sales, deliveries and services. They are an integral part of all contracts which we conclude with our contractual partners (hereinafter referred to as “Customer”) for the deliveries and services offered by us. They shall also apply to all our future deliveries, services or offers to the Customer, even if these are not separately agreed again.

2. Our ALB shall apply exclusively. We hereby expressly object to any terms and conditions of the customer or third parties that conflict with or deviate from these terms and conditions. They shall not become part of the contract even if we carry out our delivery or service in the knowledge of conflicting conditions. Even if we refer to a letter which contains or refers to the terms and conditions of the customer or a third party, this shall not constitute an agreement to the validity of those terms and conditions.

3. These ALB shall only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.

II.
Offer and conclusion of contract
1. Our offers are always subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. This shall also apply if we have provided the customer with catalogs, technical documentation (e.g. drawings, plans, calculations, computations), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.

2. We may accept orders or commissions from the customer which are deemed to be a binding contractual offer within 14 days of receipt. Acceptance can be declared by us either by means of order confirmation in writing or in text form (in particular by e-mail) or by delivery of the goods to the customer.

3. The contract concluded by order confirmation in written or text form, including these GTCS, shall be solely authoritative for the legal relationship between us and the customer. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Any verbal promises made prior to the conclusion of this contract shall not be legally binding and verbal agreements between the contracting parties shall be replaced by the written contract unless it is expressly stated in each case that they shall continue to be binding.

4. Additions and amendments to the agreements made, including these GTCS, must be made in writing or text form in order to be effective. With the exception of managing directors or authorized signatories, our employees are not entitled to make verbal agreements deviating from the agreement in written or text form.

5. Our information on the object of the delivery or service (e.g. dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components by equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.

III.
Prices and payments
1. Our prices shall apply to the scope of services and deliveries listed in the order confirmation. Additional or special services will be charged separately. The prices are quoted in Euro ex works plus packaging and unloading costs when using a truck-mounted forklift, the applicable statutory value-added tax, customs duties in the case of export deliveries, as well as fees and other charges.

2. Loaned transport racks will be invoiced to the customer at the daily price if they are not returned to us carriage paid within 21 working days after delivery to the customer. Daily rates for rental transport racks will be provided to the customer upon request.

3. Invoice amounts are to be paid within 30 days without any deduction, unless otherwise agreed in writing.

4. Upon expiry of the aforementioned payment period, the customer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default.

5. The customer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery and claims of the customer arising from the same contractual relationship, the customer’s counter rights shall remain unaffected.

6. We shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, we become aware of circumstances which are likely to substantially reduce the creditworthiness of the customer and which jeopardize payment of our outstanding claims by the customer under the respective contractual relationship (including under other individual orders to which the same framework agreement applies).

IV.
Delivery and delivery time
1. Deliveries shall be made carriage paid (CPT Incoterms 2020) unless otherwise agreed.

2. Deadlines and dates for deliveries and services promised by us are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarder, carrier or other third party entrusted with the transport.

3. We may – without prejudice to our rights arising from default on the part of the customer – demand from the customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the customer fails to meet its contractual obligations towards us.

4. We shall not be liable for impossibility of delivery or for delays in delivery insofar as these have been caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the failure to deliver, incorrect delivery or late delivery by upstream suppliers) for which we are not responsible. If such events make it considerably more difficult or impossible for us to deliver or perform and the hindrance is not only of temporary duration, we shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by giving us immediate written notice.

5. We shall only be entitled to make partial deliveries if
– the partial delivery is usable for the customer within the scope of the contractual purpose;
– the delivery of the remaining ordered goods is ensured
and
– the customer does not incur significant additional expenses or costs as a result (unless we agree to bear these costs).

6. If we are in default with a delivery or service or if a delivery or service becomes impossible for us, for whatever reason, our liability for damages shall be limited in accordance with Section VIII of these General Terms and Conditions.

V.
Place of performance, shipment, packaging,
Transfer of risk
1. The place of performance for all obligations arising from the contractual relationship is our factory in 33397 Rietberg, Germany, unless otherwise specified.

2. The method of shipment and the packaging shall be at our discretion.

3. The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss or accidental deterioration of the goods and the risk of delay shall pass to the customer as soon as the goods are handed over to the carrier, freight forwarder or other third party designated to carry out the shipment (in which case the start of the loading process shall be decisive). If the shipment or the handover is delayed as a result of a circumstance the cause of which lies with the customer, the risk shall pass to the customer from the day on which the delivery item is ready for shipment and we have notified the customer of this.

4. If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs).

5. With regard to delivery, the customer shall be obliged to provide suitable access routes or roads and a solid, load-bearing subsoil and a suitable unloading point. If the delivery cannot take place for reasons for which we are not responsible and if a new delivery is necessary or if the unloading is delayed for more than 1.5 hours per vehicle, any costs arising from this and from any return transports shall be borne by the customer.

6. The consignment of goods will only be insured by us against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at the customer’s expense.

VI.
Industrial property rights
1. In accordance with this Section VI, we warrant that the goods delivered by us are free of industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.

2. In the event that the goods delivered by us infringe an industrial property right or copyright of a third party, we shall, at our discretion and at our expense, modify or replace the goods in such a way that the rights of third parties are no longer infringed, but the goods continue to fulfill the contractually agreed functions, or procure the right of use for the customer by concluding a license agreement with the third party. If we do not succeed in doing so within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages on the part of the customer shall be subject to the limitations set forth in Section VIII of these ALB.

3. In the event of infringements of rights by products of other manufacturers supplied by us, we shall, at our discretion, assert our claims against the manufacturers and upstream suppliers for the account of the customer or assign them to the customer. In such cases, claims against us shall only exist in accordance with this Section VI if the legal enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, e.g. due to insolvency.

4. If we have to deliver according to information, drawings, models, samples or use of parts provided by the customer, the customer shall be liable for ensuring that industrial property rights of third parties are not infringed thereby. We shall inform the customer of any third party rights known to us. The customer shall indemnify us against all claims of third parties and pay compensation for any damage incurred by us as a result of claims made by third parties due to the above circumstances. Furthermore, the customer shall reimburse us for any costs incurred in this case, for example in connection with legal defense. If we are prohibited from manufacturing or delivering the goods by a third party invoking an industrial property right to which it is entitled, we shall be entitled to cease manufacturing.

VII.
Warranty and material defects
1. The statutory provisions shall apply to the customer’s rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below.

2. The delivered goods shall be inspected carefully immediately after delivery to the customer or to the third party designated by the customer. With regard to obvious defects or other defects which would have been recognizable in the course of an immediate, careful examination, the goods shall be deemed to have been approved by the customer if we do not receive a written notice of defect within 7 working days after delivery. With regard to other defects, the goods shall be deemed to have been approved by the customer if the notice of defect is not received by us within 7 working days after the time at which the defect became apparent; however, if the defect was already apparent at an earlier time during normal use, this earlier time shall be decisive for the beginning of the period for giving notice of defects.

3. In the event of material defects in the delivered goods, we shall first be obliged and entitled to rectify the defect or to make a replacement delivery at our discretion within a reasonable period of time. In the event of failure, i.e. impossibility and unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the customer may withdraw from the contract or reasonably reduce the purchase price.

4. The customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor the re-installation if we were not originally obliged to install the item.

5. If a defect is due to our fault, the customer may claim damages under the conditions set out in Clause VIII.

6. The warranty shall not apply if the customer modifies the goods or has them modified by third parties without our consent and the rectification of the defect becomes impossible or unreasonably difficult as a result. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.

7. We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.

8. The warranty period is one year from delivery. This shall not apply insofar as a longer period is prescribed by law in accordance with Section 438 (1) No. 2 of the German Civil Code (BGB) or in accordance with Section 479 (1) of the German Civil Code (BGB), or in the case of claims for damages by the customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by us or our vicarious agents, which shall in each case be time-barred in accordance with the statutory provisions.

VIII.
Liability for damages due to fault
1. Our liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this Clause VIII, insofar as fault is involved in each case.

2. We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver the goods on time, to ensure that they are free from defects of title and material defects which impair their functionality or usability to a more than insignificant extent, as well as advisory, protective and custodial obligations which are intended to enable the customer to use the delivery item in accordance with the contract or which are intended to protect the life, limb or health of the customer’s personnel or to protect the customer’s property from significant damage.

3. Insofar as we are liable on the merits for damages in accordance with Section VIII, Paragraph 2, this liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time the contract was concluded or which we should have foreseen if we had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be eligible for compensation insofar as such damage is typically to be expected when the delivery item is used for its intended purpose.

4. The above exclusions and limitations of liability shall apply to the same extent in favor of our corporate bodies, legal representatives, employees and other vicarious agents.
5. Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be done free of charge and to the exclusion of any liability.

6. The limitations of this Clause VIII shall not apply to our liability and the liability of the persons named in Clause 5 for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.

IX.
Retention of title
1. The goods delivered by us shall remain our property (reserved goods) by way of security until all our present and future claims against the customer arising from the delivery contract and the business relationship existing with the customer (including balance claims arising from a current account relationship limited to this business relationship) have been satisfied in full.

2. The customer shall store the reserved goods for us free of charge.

3. The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of all secured claims. If third parties gain access to the goods subject to retention of title, in particular by way of seizure, the customer shall immediately notify them of our ownership and inform us thereof in order to enable us to enforce our ownership rights. If the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable for these.

4. In the event of conduct by the customer in breach of contract, in particular in the event of default in payment, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand surrender of the reserved goods on the basis of the reservation of title (case of realization). The demand for surrender does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the surrender of the reserved goods and to reserve the right of withdrawal.

5. The customer shall be entitled to process and/or sell the goods subject to retention of title in the ordinary course of business until the case of realization arises. If the reserved goods are processed by the customer, it is agreed that the processing shall be carried out in our name and for our account as manufacturer and that we shall acquire direct ownership or – if the processing is carried out on materials of several owners or the value of the processed item is higher than the value of the reserved goods – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur on our part, the customer shall already now transfer its future ownership or – in the aforementioned ratio – co-ownership of the newly created item to us as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, we shall, insofar as the main item belongs to us, transfer to the customer pro rata co-ownership of the uniform item in the ratio specified in sentence 1.

6. In the event of resale of the goods subject to retention of title, the customer hereby assigns to us by way of security the claim against the purchaser arising therefrom – if the customer has co-ownership of the goods subject to retention of title in proportion to the co-ownership share. The same shall apply to other claims which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. We revocably authorize the customer to collect claims assigned to us in his own name as long as the customer meets his payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, we may demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtor (third party) of the assignment. We shall only be entitled to revoke the direct debit authorization upon the occurrence of the realization event.

7. We shall release the goods subject to retention of title as well as the items or claims replacing them at the customer’s request at our discretion if their realizable value exceeds the amount of the secured claim by more than 10%.

X.
Final Provisions
1. The place of jurisdiction for all disputes arising from the business relationship between us and the customer shall be, at our discretion, our registered office in 33397 Rietberg or the registered office of the customer. In these cases, however, our registered office in 33397 Rietberg shall be the exclusive place of jurisdiction for any actions brought against us. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.

2. These ALB and the contractual relationship between us and the customer shall be governed by the laws of the Federal Republic of Germany, excluding the conflict of law and conflict of law rules of private international law and the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG).

3. Insofar as the contract or these GTC contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these GTC if they had been aware of the loophole.
(Status 03/2021)