General Terms and Conditions of Sale of LIOP-TEC GmbH
(Version: May 2012)
1.1. All deliveries, services and offers provided by LIOP-TEC GmbH (hereinafter referred to as "Seller") shall be offered solely on the basis of these General Terms and Conditions of Sale. These are part of all contracts that the Seller concludes with its contract partners (hereinafter referred to as "Client") regarding supplies or services offered by the Seller. They also apply to all future deliveries, services or offers provided by the Seller to the Client, even if these General Terms and Conditions of Sale are not specifically agreed again.
1.2. Deviating agreements and business terms and conditions are only binding if confirmed in writing by the Seller. Terms and conditions of the Client or third parties shall not apply, even if the Seller does not expressly object to their validity in each individual case. Even if the Seller refers to a letter which includes terms and conditions of the Client or a third party or refers to such, this does not constitute any agreement to the applicability of such terms and conditions.
2. Offer and Conclusion of Contract
2.1. All offers made by the Seller are subject to confirmation and non-binding, provided they have not been expressly designated as binding or contain a specific term of acceptance. Orders or contracts by clients may be accepted by the Seller within fourteen days after receipt.
2.2. The legal relationship between the Seller and the Client is exclusively governed by the written purchase contract, including these General Terms and Conditions of Sale. This describes all agreements between the contract parties with regard to the subject-matter of the contract in full. Verbal promises by the Seller prior to the conclusion of this agreement are legally non-binding and oral agreements between the contract parties will be replaced by the written contract, provided that the terms of the contract do not stipulate that the prevailing conditions continue to apply.
2.3. Additions and amendments to agreements made, including these General Terms and Conditions of Sale, are only valid in writing. With the exception of managing directors or authorised representatives, the Seller's employees are not entitled to make deviating oral agreements. Transmission by telefax shall suffice to fulfil the written form, but other telecommunication media, in particular e-mail, will not satisfy such requirement.
2.4. Information by the Seller on the object of delivery or service (e.g. weights, measurements, utility values, capacity, tolerances and specifications) and its representations of the same (for example drawings and illustrations) shall be deemed approximate, insofar as the suitability for the contractually intended purpose does not require an exact agreement. They are no guaranteed material features but descriptions or definitions of the delivery or service. Deviations considered trade customary and deviations made due to legal regulations or representing technical improvements and the replacement of components by equivalent parts are permitted, provided they do not affect the suitability for the contractually intended purpose.
2.5. The Seller reserves the ownership or copyright to all offers and cost estimates made by itself as well as the drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and auxiliary means made available to the Client. The Client shall not make these items or their content available to third parties or publish them nor shall the Client use or make copies either itself or through third parties without express permission by the Seller. At the request of the Seller, the Client must return these items in full to the Seller and destroy any copies should these no longer be required by the Client in the ordinary course of business or if negotiations do not result in a contract.
3. Prices and Payment
3.1. Prices are valid for the scope of services and delivery listed in the order confirmation. Any additional or special services are charged separately. Prices are shown in Euro ex works plus packaging, statutory VAT, custom duties for export deliveries and fees and other public charges.
3.2. Insofar as the agreed prices are based on the list prices of the Seller and the scheduled delivery date is more than four months after the date of conclusion of the contract, the list prices of the Seller current at the time of delivery shall apply (in each case minus an agreed percentage or fixed discount).
3.3. Invoices are payable within ten days without any deduction, unless otherwise agreed in writing. Decisive for the date of payment is the receipt by the Seller. Checks shall only be valid as payments after being cashed. If the Client does not pay by the due date, the outstanding amounts shall bear interest from the due date.
3.4. Offsetting with counterclaims by the Client or withholding of payments due to such claims shall only be admissible where the counterclaims are undisputed or legally effective.
3.5. The Seller shall be entitled to perform or provide any outstanding deliveries or services only against advance payment or deposits, if, after conclusion of the contract, it becomes aware of circumstances which significantly reduce the creditworthiness of the Client and by which the payment by the Client of the Seller's outstanding demands from the relevant contractual relationships (including those from other individual orders to which the same framework contract applies) is at risk.
4. Delivery and Delivery Period
4.1. Deliveries are made ex works.
4.2. Deadlines and dates proposed by the Seller for deliveries and services are always only approximate, unless a fixed deadline or a fixed date is approved or agreed. If shipment is agreed upon, delivery periods and dates refer to the time of delivery to the carrier, freight forwarder or other third parties assigned with the transport.
4.3. The Seller may - without prejudice to its rights in case of default by the Client - demand an extension of delivery and performance deadlines or a postponement of delivery and service supply dates equivalent to the period in which the Client does not fulfil its contractual obligations towards the Seller.
4.4. The Seller is not liable for inability to deliver or for delays in delivery caused by force majeure or other events, which were not foreseeable at the time of concluding the contract and which the Seller is not responsible for (such as disruptions in operations of any kind, difficulties in obtaining materials or energy, transport delays, strikes, legal lockouts, lack of labour, energy or raw materials, difficulties in obtaining necessary regulatory approvals, regulatory actions or failed, wrong or late delivery by suppliers). If such events significantly complicate the provision of the delivery or service by the Seller or make it impossible, and where the impediment is not of a temporary nature, the Seller is entitled to rescind the contract. In the event of temporary hindrances, the delivery or service performance deadlines are extended or the delivery or performance dates are rescheduled by a period equivalent to the period of hindrances plus a reasonable start-up period. Insofar as the acceptance of the delivery or service performance by the Client is unreasonable due to the delay, it may cancel the contract through immediate written notice to the Seller.
4.5. The Seller is entitled to make partial deliveries if
a. the partial delivery can be used by the Client as part of the contractual intended use,
b. the delivery of the remaining ordered goods is ensured and
c. the Client does not incur any significant additional effort or costs (unless the Seller agrees to assume these costs).
4.6. If the Seller is in default of providing a delivery or service or is unable to make such provision of delivery or supply for whichever reason, then the Seller's liability for compensation is limited as per number 8 of these General Terms and Conditions of Sale.
5. Place of Performance, Shipping, Packaging, Passing of Risk, Acceptance
5.1. The place of performance for obligations arising from the contractual relationship is Radevormwald, unless otherwise agreed. If the Seller is also to perform an installation, the place of performance shall be the location at which the installation is to be provided.
5.2. The shipping and packaging are subject to the reasonable discretion of the Seller.
5.3. The risk will be transferred to the Client no later than when the delivery item is passed on to the carrier, shipper or another third party assigned with the shipment (whereby the commencement of the loading process is decisive). This shall also apply when partial deliveries are carried out or where the Seller took on additional services (such as shipping or installation). If dispatch or delivery is delayed due to circumstances caused on the Client's side, the risk shall be passed to the Client from the day the delivery item is ready for dispatch and where the Seller has notified the Client of such.
5.4. Storage costs after the transfer of risks are borne by the Client. When stored by the Seller, the storage shall be charged at 0.25% of the invoice amount of the delivery items to be stored per full week. The assertion and prove of additional or lower storage costs are reserved.
5.5. The shipment will only be insured by the Seller against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Client and at their expense.
5.6. Insofar as an acceptance is required, the goods shall be deemed accepted if
a. the delivery and the installation, provided that the later is owed by the Seller, have been completed,
b. the Seller has made the Client aware of the deemed acceptance as per point 5.6. and asked them for acceptance,
c. since the delivery or installation twelve working days have passed or the Client started using the goods (for example operated the delivered system) and six working days passed since the delivery or installation in this case,
d. the Client has failed to declare acceptance within this period for any reason other than a defect notified to the Seller, which makes the use of the goods impossible or substantially impaired.
5.7. In addition, the statutory regulations, in particular sections 377 et seq. of the German Commercial Code (HGB) apply.
6. Warranty, Defects as to Quality
6.1. The warranty period is one year from delivery except for optics where the warranty period is three months from delivery. If acceptance is required, the warranty period is one year from accetance except for optics where the warranty period is three months from acceptance.
6.2. The delivered objects must be immediately thoroughly examined after delivery to the Client or the third party designated by the Client. They shall be deemed approved if the Seller does not receive a written notice of defects, submitted as per point 2, regarding obvious defects or other defects which became apparent during an immediate, thorough investigation, within seven working days after receipt of the delivery item or otherwise within seven working days after discovery of the defect or any time before, in which the defect became apparent to the Client during normal use of the delivery item without further investigation. At the request of the Seller, the rejected delivery item is to be returned carriage paid to the Seller. In the event of justifiable notices of defect, the Seller shall reimburse the costs of the cheapest shipping method paid. This does not apply if the costs increase should the delivery item be located at a place other than the location for the intended use.
6.3. In case of material defects of the delivered goods, the Seller shall be obliged and entitled to carry out repairs or replacement deliveries at its discretion within a reasonable period of time. In case of failure, i.e. the impossibility, unacceptability, refusal or unreasonable delay of the repair or replacement delivery, the Client may cancel the contract or reduce the purchase price accordingly.
6.4. In the event that the Seller is to bear the blame for a defect, the Client may claim damages as per the conditions under point 8.
6.5. In the event of defects in components from other manufacturers, which the Seller cannot eliminate due to licensing or factual reasons, the Seller shall at its own discretion either claim warranty rights against the manufacturers and suppliers on the Client's account or assign these rights to the Client. Warranty claims against the Seller in the event of such defects under the other conditions and in accordance with these General Terms and Conditions of Sale shall only be valid if the legal enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or is futile due to reasons such as insolvency. During the duration of the legal dispute, the limitation of the respective warranty claims of the Client against the Seller shall be suspended.
6.6. The warranty ceases to apply if the Client modifies the delivery item itself or through third parties without prior consent of the Seller and the rectification of the defect is thus made impossible or unreasonably difficult. In any case the Client shall bear the additional costs of the rectification of defects resulting from the modification.
6.7. A supply of used goods agreed separately with the Client takes place under the exclusion of any warranty for material defects.
7. Intellectual Property
7.1. In accordance with this point 7, the Seller shall be responsible for the delivery item not to be covered by industrial property rights or copyrights of third parties. Each contract party will notify the other party in writing without delay if claims are made against them due to the violation of such rights.
7.2. In the event that the delivery item infringes an industrial property right or copyright of a third party, the Seller shall at its discretion and costs modify the delivery item or replace it in a way that no more rights of third parties are infringed upon, still ensuring that the delivery item continues to meet the contractually agreed functions, or giving the Client the right of use by concluding a license agreement. Should the Seller not succeed within a reasonable period of time, the Client shall be entitled to withdraw from the contract or to reduce the purchase price accordingly. Any claims for damages by the Client are subject to the restrictions of point 8 of these General Terms and Conditions of Sale.
7.3. In the event of infringements by the Seller through the products delivered by third-party manufacturers, the Seller shall at its own discretion make their claims against the manufacturers and sub-suppliers in the name of the Client or cede them to the Client. Claims made against the Seller shall only be valid in these cases in accordance with this section 7 if the legal enforcement of the aforementioned claims against the manufacturers and sub-suppliers was unsuccessful or is futile due to reasons such as insolvency.
8. Liability for damages in the event of defaults
8.1. The liability of the Seller for damages, irrespective of the legal basis, in particular due to impossibility, delay, poor or erroneous delivery, breach of contract, infringement of obligations in contract negotiations and tort, is restricted in accordance with this point 8, insofar as it is subject to fault.
8.2. The Seller is not liable for simple negligence of its bodies, legal representatives, employees or other agents, insofar as it is not a breach of contractual obligations. Essential contractual obligations constitute the obligation of timely delivery and installation of the delivery item free of significant defects as well as the consulting, protection and care obligations, which shall enable the contractual use of the delivery item by the Client or which serve to protect life and limb of the Client's personnel or the protection of its property against significant damage.
8.3. Where the Seller pursuant to point 8.2. is in principle liable for damages, then such liability is limited to damages that the Seller has foreseen in the contract as a possible consequence of a breach of contract or which it should have foreseen by applying due diligence. Indirect or consequential damages that result from defects in the delivery item are also only eligible for replacement insofar as such damages are typically expected from proper use of the delivery item.
8.4. In case of liability for simple negligence, the liability of the Seller to pay for material damage and resulting further financial losses are limited to an amount of EUR 3,000,000 per liability claim (corresponding to the current amount insured through Seller’s product liability insurance or liability insurance), even in the case of a violation of contractual obligations.
8.5. The above liability exclusions and limitations apply to the same extent for the benefit of the bodies, legal representatives, employees and other agents of the Seller.
8.6. Insofar as the Seller offers technical information or advice and where such information or advice is part of the services owed under the contract, then this is provided free of charge and without any liability.
8.7. The limitations of this point 8 shall not apply to the Seller's liability for deliberate actions, for guaranteed material features, injury to life, limb or health or under the Product Liability Act.
9. Retention of Title
9.1. The delivered goods shall remain the Seller's property subject to retention until full payment and settlement of all claims arising from the business relationship and the claims related to the purchased goods yet to be incurred.
9.2. The Client shall only be entitled to resell, use or install the goods subject to retention in the normal ordinary course of business. In addition, the Client is not entitled to any other disposition over the purchase item, especially pledging or assignment as security. The Seller shall authorize the Client, revocable at all times, to collect debts arising from the further use of the purchase item. The Seller shall not exercise its own right to collect, as long as the Client meets its payment obligations.
9.3. With suspension of payment, filing or commencement of insolvency proceedings, the right to resell, use or install the goods subject to retention and the collection authorization in relation to the assigned claims shall lapse.
10. Final Provisions
10.1. The place of jurisdiction for any disputes arising from the business relationship between the Seller and the Client is, depending on the amount in dispute, either the District Court Remscheid or the Regional Court of Cologne. The same applies to lawsuits against the Seller. Mandatory statutory provisions on exclusive jurisdiction remain unaffected by this provision.
10.2. The business relationships are subject to the Law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) adopted on the 11th of April 1980 does not apply.
10.3. If the contract or these General Terms and Conditions of Sale contain loopholes, then the legally effective provisions which the contracting partners would have agreed upon with respect to the commercial aims of the contract and the scope of these General Terms and Conditions of Sale if they had been aware of the loopholes shall apply to fill these loopholes.
10.4. Note: The Client acknowledges that the Seller stores data from the contract in accordance with Section 28 of the German Federal Data Protection Act for the purpose of data processing, and reserves the right to pass on the data to third parties, insofar as required for the fulfilment of the contract (such as insurances).