Terms and conditions of delivery and payment
§1 Scope of application
- These terms of sale apply only to entrepreneurs, legal entities governed by public and law within the meaning of §310 paragraph 1 BGB. Those contradictory terms or the deviating terms of customers from our terms of sale, we only recognize hereto when we acknowledge explicitly and in writing.
- These terms of sale also apply to future business with customer insofar as a legal transaction of similar nature is concerned.
- Individual agreements reached in an individual case with the Buyer (including collateral agreements, supplements, and amendments) shall in all cases have precedence over these terms of sale.
§2 Offer and contract completion
If an order is to be considered an offer pursuant to §145 of the German Civil Code (BGB), we can accept it within two weeks. The published price and price condition valid on the delivery day. Lubmann GmbH can register a minimum price of 100 € per order. Deliveries with a lower order value can be billed at this price.
$3 Forwarded documents
We reserve all our property and copyrights on any documents, also in electronic form, such as calculations, drawing etc., provided to the customer in connection with the placing of an order. These documents may not be made accessible to a third party unless we grant our explicit permission in written form to the purchase. In the event of our not accepting the customer’s offer within the period specified in §2, these documents must be returned to us immediately.
§4 Price and payment
- Payments are quoted in euros plus statutory value-added-tax. Subject to agreements to contrary will the payments by cheque or bill of exchange not be accepted.
- Unless otherwise agreed in writing, our prices are ex works and do not include packaging and the respective amount of applicable value-added tax. Packaging costs will be billed separately and there is no obligation on us to take back the packaging materials.
- Payment of the purchase price must be made exclusively to the account stated overleaf. The deduction of any discount is only permissible in the event of a special agreement in writing.
- Unless otherwise agreed, the purchase price is to be paid within 10 days of receiving delivery. The default interest rate shall be 8% above the respective base rate p.a. (see appendix 1) We reserve the right to assert claims for higher damages caused by delay. The assertion of any claims for damages in this respect is excluded.
- Unless a fixed price agreement is made, adequate price changes due to changed costs of wages, material and distribution for deliveries taking effect 3 months or more after the conclusion of the contract shall remain reserved.
§5 The rights of offsetting or retention and force majeure
- The purchaser shall be entitled to exercise a general lien in so far as his counterclaim is based upon the same contractual relationship.
- No party should be responsible for delays in their performance due to force majeure. The parties are released from their obligation to perform for the duration of force majeure. This also applies to a party, when it already in delay at the time the force majeure occurs. The notion of force majeure includes unforeseeable events, which are beyond the parties’ reasonable control. The aforementioned legal consequence occurs regardless of the existence of the conditions of force majeure, if the parties or their agents are affected by nature disasters, attacks by third parties on a party’s IT system despite compliance with protective measures in the context of normal care, armed conflicts, terrorist attacks and other significant security risks (reference point: travel warnings from the Federal Foreign Office), embargo measures or restrictions on payment transactions are prevented from performing their services. The aforementioned legal consequence also occurs regardless of whether the conditions of force majeure exist if the parties or their vicarious agents are prevented from performing their services by strikes or lockouts in their own plants or the works of suppliers. In cases where the service is dependent on the issue of an export license and / or other official approvals, the parties are also exempted from their obligation to perform if a required approval should not be granted or revoked through no fault of their own.
§6 Delivery period
- Delivery time is non-binding until the acceptance of orders, also subject to interim sales and calculating from receipt of the order, or at the earliest from final agreement on the execution of the order and the provision of any documents, permits and releases to be procured by the customer.
- The beginning of the delivery time specified by us presupposes the timely and proper fulfillment of the obligations of the customer. The plea of non-performance of the agreement remains reserved.
- The delivery time is complied with if the material supplied left the works or its readiness for delivery was notified before its expiry. Delivery time is subject to essential unforeseen processes in the manufacture and other obstacles, such as force majeure, transport delays or other operational disruptions.
- If the customer fails to accept the goods or if he culpably infringes any other duty to collaborate, we shall have the right to claim for damages incurred to us including additional expenditures, if applicable. Any further claims are reserved. If the aforesaid conditions are present, the risk of accidental loss or accidental deterioration of the object of purchase is devolved to the purchaser at the time when the default or acceptance of default of the proprietor take place.
- We are only liable for individual agreements made with the buyer in the individual case, in the event of damage due to a delay caused by us, the purchase is entitled to demand compensation for delay. The compensation shall be 0.5% for every full week of the delay, however, this shall, at the most, be 5% in total of that part of the overall delivery which cannot be used in due time or in accordance with the contract due to the delay. Any further claims are reserved.
- Any further legal claims and rights of the purchase due to delayed delivery remain unaffected.
§7 Transfer of risk upon Shipment
If the goods are sent to the purchase at the purchaser’s request, risk of accidental loss or accidental deterioration of the goods transfer to the purchase upon dispatch to the purchase, but no later than the point in time at which the respective goods leave the factory/warehouse. This applies regardless of whether shipment is made from the place or performance or regardless of who bears the freight costs.
§8 Reservation of proprietary rights
- We retain ownership of the delivered item until all receivables arising from the delivery contract have been paid in full. This also applies to all future deliveries, even if we do not constantly and expressly refer to this fact. We are entitled to take back the object of purchase if the purchaser acts in violation of the contract.
- The purchaser is obligated to handle the object of purchase with care until ownership has transferred to the purchaser. The purchaser agrees in particular to insure them adequately at his own cost at the original value against damaged by theft, fire and water. If maintenance and inspection work have to be carried out, the purchaser must do this at its own expense. As long as title has not been transferred, the customer is obliged to inform us without delay in writing, if the delivered goods are distrained or otherwise subjected to the intervention of any third party. As far as such third party is unable to reimburse us the court and out-of-court costs of a lawsuit according to §771 ZPO, the customer is liable for the loss occurred to us.
- The purchaser is entitled to resell the goods that are subject to retention of title within the ordinary course of business. The buyer’s claims against his accepter created by a resale of the goods subject to reservation of title shall be assigned by the buyer here and now to the seller up to the amount of final invoice agreed with us (including VAT). This transfer applies irrespective of whether the purchased goods are resold before or after processing. The purchaser remains authorized to collect the receivables even after assignment. Our authority to collect the receivables ourselves remains unaffected therefrom. However, the supplier will not enforce the debt collection providing the customer meets his payment liabilities to the supplier from the subsequent sale, is not in delay of payment and no application for opening of an insolvency process has been made, or there has been a notice to suspend payment issued.
- The processing or reworking of the goods by the customer shall always be on behalf and by order of us. In such a case, purchaser’s expectant right to the purchased article shall continue in respect of the transformed article. If the purchased item is processed with objects not belonging to us, we are obtaining ownership in the new item at a ratio of the objective value of our purchase item. The same is valid for the case of any mixture. If the mixing takes place in such a way that the object of the customer shall be regarded the main object, it shall be agreed that the customer extends to us proportionate shared ownership and shall keep the thus formed sole ownership or shared ownership on our behalf. To secure our claims against the purchaser, the purchaser also assigns to us any receivables from third parties that arise for the purchaser as a result of the incorporation of the conditional goods in real property; we hereby accept this assignment.
§9 Warranty, defect complaint, recourse, and manufacturer recourse
- Warranty claims of the customer necessitate that the customer has fulfilled his obligations according to §377 HGB (German commercial code, investigation and right to make a claim for defects).
- In the case of deliveries that can be proven to have wholly or partly unusable objects as a result of defects for which we are responsible, we will, at our discretion, under consideration of economically technical aspects, repair them free of charge, deliver new or reduce the sales price. The customer shall give us the time and the opportunity which may be needed for the supplementary performance, in particular he has to hand over the goods being object of complaint for inspection purposes. In case of a replacement delivery the buyer shall hand back the rejected goods according to the statutory provisions. As far as the complaint turns out to be justified, we bear the expenses required for the purpose of subsequent performance, provided that this does not result in a disproportionate burden for us. When selling a newly manufactured item, we also reimburse expenses incurred in the context of recourse claims in the supply chain. Claims for defects are subject to a time bar period of 24 months beginning with the delivery of the delivered goods unless applicable mandatory statutory law provides for a longer limitation period. The original limitation period continues for reworked delivery items; it will be extended by time when the delivery item cannot be used. The same applies to deliveries of replacement parts. Discernable transport damage must be reported to us immediately, any other shortages should be displayed within 8 days. We can refuse to fulfill claims for defects if we are not notified the defects in time. The same applies if we are not given the necessary time and opportunity to take all the measures that we deem necessary at our reasonable discretion. The purchaser has the right only in urgent cases that endanger the operational safety of the purchaser and to prevent disproportionate damage, whereby we must be informed immediately or if we are in default with the remedy of the deficiency and this persists even after a reasonable grace period to have the defect remedied itself or by a third party and to ask us to reimburse the costs to be borne in connection with the fulfillment of the defect claims, to withdraw from the contract or to cancel it. This right of withdrawal of the customer exists – taking into account the legal exceptional cases – also in other cases of failure of the supplementary performance by us. Further claims of the customer, in particular a claim for compensation for damage that has not arisen on the delivery item itself, are excluded. The regulated liability below remains unaffected. We can also refuse to fulfill claims for defects if the general technical information in our catalogs and printed matter has not been observed. Catalog and listed information are no guarantees. Our consent must be obtained before the goods are returned. Our consent must be obtained prior to any return of goods.
- Should the delivered goods have any defect existing on the time of delivery, the suppliers warranty covers amendments and replacements up on his choice under the condition that the customer has claimed in due time and form. The opportunity to carry out repairs within an appropriate period is always to be given to us. The above provision does not affect the rights of recourse in any way.
- Claims for defects will not exist if there is only an insignificant deviation from the agreed quality, if there is only an insignificant impairment of usability, if there is natural wear and tear or if the damage occurs after the transfer of risk due to incorrect or negligent handling, excessive stress, unsuitable equipment, defective construction work, unsuitable building ground or arise due to special external influences that are not required by the contract. If unprofessional maintenance work or modifications are performed by the customer or third parties, there is no claim for damages to this or the consequences thereof.
- Claims asserted by the purchaser on account of the expenditure required for rectification, in particular the cost of transportation, travelling, labor, and material, shall be ruled out in as much as such expenditure increases as a result of the object of delivery having been subsequently transported to a place other than the purchaser’s premises, unless such transportation complies with its intended use.
- The customer’s rights of recourse against us are only admissible if the customer has not entered into any agreements with his own customers going beyond the mandatory statutory claims based on defects. Furthermore, as for the scope of the purchaser’s right of recourse against the supplier, Paragraph 5 applies accordingly.
§10 Use restriction
Our standard products are neither designed, manufactured nor approved for use in the aviation and aerospace industries or in nuclear facilities as defined by the Federal German Atomic Energy Act. If these standard products are nevertheless installed in the areas mentioned, we reject any liability for any damage in the event of damage, unless we have given written consent in exceptional cases.
§11 Data protection
We are committed to complying with the legal and contractual data protection regulations when processing the data. This also includes state-of-the-art technical security measures and the obligation of employees to maintain data secrecy.
- This contract, as well as the entire legal relationship between the parties, is subject to the law of the Federal Republic of Germany, to the exclusion of UN purchase law (CISG).
- Place of fulfillment and sole court of jurisdiction for all disputes arising from this contract is our registered office in Duisburg, insofar as not otherwise agreed upon in the confirmation of order.