1 General, scope of application
1.1 All - also future -
deliveries and services of Leser GmbH to the customers named in clause
1.2 are exclusively subject to these General Terms and Conditions of
Sale and Delivery. We do not recognise any terms and conditions of
purchase and/or payment of the customer which conflict with or deviate
from our terms and conditions, unless we have agreed to the validity of
the customer's terms and conditions in writing in the individual case.
1.2
Our Terms and Conditions of Sale and Delivery shall only apply to
customers who, at the time of conclusion of the contract, are acting in
the exercise of their commercial or independent professional activity
("Entrepreneurs") as well as to legal entities under public law or a
special fund under public law. They do not apply to natural persons who
conclude the contract for a purpose that cannot be attributed to their
commercial or self-employed professional activity ("consumers").
2 Conclusion and content of the contract, offers, reservation of right of modification
2.1
Our offers are subject to change. The contract shall be concluded by
our written order confirmation. When the customer places an order in our
online shop, the customer submits a binding offer to purchase. If we
subsequently send an automated confirmation of receipt, this does not
constitute acceptance of the customer's purchase offer. A purchase
contract for the goods shall only be concluded if we expressly declare
acceptance of the purchase offer or if we dispatch the goods to the
customer without prior express declaration of acceptance. Our written
order confirmation shall be decisive for the scope of delivery.
Supplements, amendments or ancillary agreements require our written
confirmation to be effective.
2.2 We reserve the right to make
changes to the design and materials compared to the product description
in the catalogue, provided that the use of the products assumed under
the contract is not significantly or adversely affected and the change
is reasonable for the customer.
2.3 Tolerances in quantities, weights, numbers and dimensions customary in the industry are expressly reserved.
2.4
Changes to the original order communicated verbally must be confirmed
to us again in writing by the customer without delay. Changes shall only
be deemed accepted by us if we confirm them in writing.
2.5 Samples, sketches, drafts, test prints and similar preliminary work initiated by the customer shall be charged.
2.6
The customer shall assume responsibility for ensuring that the rights
of third parties are not infringed by the use of the samples, artwork,
etc. submitted by him or produced according to his specifications. The
customer shall indemnify us in this respect against all claims raised by
the third party.
2.7 We reserve all property rights, copyrights and
industrial property rights (including the right to register these
rights) to samples, sketches, drafts, test prints and other documents
produced by us. They may neither be imitated nor reproduced nor made
accessible to third parties or competing companies unless a lack of
interest in secrecy is clearly recognisable.
2.8 Production tools,
clichés, moulds and similar items produced in connection with the
execution of the customer's order shall also remain our property, even
if the production costs have been invoiced in full or in part and paid
by the customer. We are not obliged to hand over these items to the
customer. Invoices for these items are furthermore payable immediately
without any deduction.
2.9 Production samples, proofs, press proofs,
etc. shall be checked by the customer without delay for their conformity
with the contract and confirmed accordingly. Any complaints must be
described in sufficiently concrete terms.
3 Prices, terms of payment
3.1 Unless otherwise stated, the prices
stated in our offers or in our online shop shall apply. In the absence
of a separate agreement on prices, our price list valid on the day of
the order confirmation shall apply. Our prices apply only to the
respective order and are not binding for subsequent orders and
deliveries.
3.2 Unless otherwise agreed, all prices are ex works or
ex warehouse at our registered office in 77933 Lahr (EXW Incoterms 2020)
plus packaging, shipping and insurance as well as VAT at the respective
statutory rate.
3.3 Payment of the invoice amount must be made
within 30 days of the invoice date without deduction. A discount of 2%
shall be granted for payment within 14 days of the invoice date.
However, invoices for the items referred to in Clause 2.8 are always
payable immediately without any deduction.
3.4 For orders in our
online shop, the payment methods that can be selected for the respective
customer are indicated. In the event of payment by credit card, the
purchase price shall be reserved on the customer's credit card at the
time of the order ("authorisation"). The actual charge to the customer's
credit card account will be made at the time we dispatch the goods to
the customer. In the case of payment by direct debit, the customer shall
bear the costs incurred in the event of a chargeback of a payment
transaction due to lack of funds in the account or due to incorrect bank
account details provided by the customer.
3.5 In the event of
default in payment, the statutory provisions shall apply (e.g. default
interest in the amount of nine percentage points p.a. above the
respective base interest rate). Our rights under clause 4.8 remain
unaffected.
3.6 The customer may only offset or assert a right of
retention with a counterclaim that is undisputed, ready for a decision
or legally established.
4 Delivery, acceptance and call-off deadlines, lack of capacity on the part of the customer
4.1
The delivery periods are based on the agreements made and relate to the
time of delivery ex works. In principle, the delivery period begins
with our order confirmation, but not before complete clarification of
all necessary details. The delivery period shall be deemed to have been
met if the circumstances giving rise to the transfer of risk in
accordance with Clause 5.1 have occurred before its expiry. An
appropriate extension of the delivery periods shall occur if the
customer fails to meet his obligations. We reserve the right to plead
non-performance of the contract.
4.2 In the case of call-off orders
without fixed acceptance dates, we may - unless otherwise agreed -
request binding acceptance dates three months after order confirmation.
In the absence of a special agreement, acceptance of the goods ordered
on call must take place in total within 12 months after our order
confirmation.
4.3 The following events shall cause an appropriate
extension of the delivery period - also within a delay and insofar as
they delay performance: circumstances of force majeure which only occur
after conclusion of the contract or which are unknown to us at the time
of conclusion of the contract through no fault of our own, other
extraordinary unavoidable events occurring after conclusion of the
contract through no fault of our own, strikes and lockouts which are
unforeseeable for us. This also applies if these circumstances occur at
the upstream supplier. We shall inform the customer of the beginning and
end of such hindrances as soon as possible. If the impediment lasts
longer than three months or it is determined that it will last longer
than three months, both the customer and we may withdraw from the
contract.
4.4 Irrespective of clause 4.3, we always reserve the right to correct and timely self-delivery.
4.5
If we are in default and allow a reasonable period of grace to elapse,
the customer may withdraw from the contract. Claims for damages by the
customer due to delay and/or non-fulfilment shall only exist in
accordance with Clause 7 of these General Terms and Conditions of Sale
and Delivery.
4.6 We are entitled to make partial deliveries to a reasonable extent.
4.7 If, after conclusion of the contract, it becomes apparent that our claim for payment is jeopardised by the customer's inability to perform, we shall be entitled to refuse our performance and actions preparatory to performance. The right to refuse performance shall not apply if payment is made or security is provided for it. We may set the customer a reasonable deadline for payment/providing security. After unsuccessful expiry, we shall be entitled to withdraw from the contract.
4.8 If the customer is in default with the acceptance of the delivery
items or the payment of the purchase price, we may withdraw from the
contract and/or claim damages instead of performance after the fruitless
expiry of a reasonable grace period required by law and set by us. When
asserting a claim for damages in lieu of performance, we may demand
compensation without proof in the amount of
a) 20% of the purchase price if the delivery item is a series or standard product or
b) 100% of the purchase price if the delivery item is a custom-made product according to the specific wishes of the customer.
4.9
The contracting parties shall be at liberty to prove higher or
substantially lower actual damages. In addition, we are entitled to
charge the customer for the necessary additional expenses, in particular
storage costs, in the event of default in acceptance. In the event of
storage on our own premises, the usual local storage costs shall be
charged.
4.10 Damage to the delivery or loss must be reported to us and to the carrier immediately after receipt of the delivery.
5 Transfer of risk, dispatch
5.1 The risk shall pass to the
customer as soon as the goods have left our works (EXW at our registered
office in D- 77933 Lahr in accordance with Incoterms 2020) and unless
otherwise stated in the order confirmation. If dispatch or collection is
delayed through no fault of ours, the risk shall pass to the customer
upon notification of readiness for dispatch.
5.2 Unless otherwise
agreed, we shall choose the mode of dispatch at our own discretion
without guarantee for the cheapest, fastest and safest mode of dispatch.
6 Customer's obligation to inspect, notification of defects, rights in the event of material defects
6.1
In the case of a purchase or a contract for the delivery of movable
goods to be manufactured or produced, which is a commercial transaction
for both parties, the customer must notify us in writing of defects of
any kind - with the exception of hidden defects - within eight working
days (Saturday does not count as a working day) of delivery; otherwise
the goods are deemed to have been approved. Hidden defects must be
notified in writing within eight working days (Saturday does not count
as a working day) after discovery; otherwise the goods shall be deemed
to have been approved also in view of these defects.
6.2 Furthermore,
material defect rights can only arise if the delivery item has a
material defect (including wrong delivery and short delivery) at the
time of transfer of risk. In this case, the customer may - subject to
clauses 6.3 to 6.5 - demand, at our discretion, the delivery of a
defect-free item (replacement delivery) or the rectification of the
defect (subsequent improvement) as subsequent performance. If we are not
prepared or not in a position to rectify/replace the defect, in
particular if this is delayed beyond a reasonable period of time for
reasons for which we are responsible, or if the replacement delivery or
rectification of the defect fails in any other way and if further
attempts at replacement delivery or rectification of the defect are
unreasonable for the customer, the customer shall be entitled, at his
discretion, to withdraw from the contract or to reduce the purchase
price.
6.3 No material defect rights shall arise in the event of
normal wear and tear, in particular on parts subject to wear and tear,
or if damage or malfunctions occur in the delivery item which are
attributable to unsuitable or improper use, faulty assembly or
commissioning by the customer or third parties, unusual operating
conditions and the like.
6.4 The limitation period for material
defect claims is - subject to sentence 2 - 12 months and begins on the
day of the transfer of risk. In the event of injury to life, limb or
health for which we are responsible and in cases of intent and gross
negligence, the limitation period for material defect claims shall be 24
months.
6.5 We shall only be liable for damages due to defectiveness of the delivery item within the limits specified in Clause 7.
6.6
It is expressly pointed out that tarnishing of gold and silver may
occur due to the material and does not constitute a material defect.
7 Limitation of liability
7.1 We shall be liable in accordance
with the provisions of the Product Liability Act as well as in cases of
culpable inability and culpable impossibility. Furthermore, we shall be
liable for damages in accordance with the statutory provisions in cases
of intent, gross negligence, assumption of a guarantee and in the event
of injury to life, limb or health for which we are responsible. If, in
addition, we violate a material contractual obligation with simple
negligence, i.e. obligations the fulfilment of which is a prerequisite
for the proper performance of the contract and the observance of which
the customer may regularly rely on, as well as obligations the violation
of which jeopardises the achievement of the purpose of the contract
(cardinal obligation), our obligation to pay compensation shall be
limited to the foreseeable damage typical for the contract; Section 4.4 -
Reservation of self-delivery - shall remain unaffected. In all other
cases of liability, claims for damages due to the breach of an
obligation arising from the contractual obligation as well as due to
tortious acts are excluded, so that we are not liable in this respect
for loss of profit or other financial losses of the customer.
7.2
Insofar as our liability for damages is excluded or limited, this shall
also apply with regard to the personal liability for damages of our
employees, representatives and vicarious agents.
8 Retention of title
8.1 The delivered goods shall remain our
property until full payment of all claims arising from our business
relationship - including future claims. If a current account agreement
has been made with the customer, the retention of title shall remain in
force until the recognised current account balance has been settled in
full. If the customer acts in breach of contract - in particular in the
event of default in payment - we shall be entitled to take back the
goods subject to retention of title. Our taking back of the goods
subject to retention of title shall constitute a withdrawal from the
contract. After taking back the goods subject to retention of title, we
shall be entitled to realise them; the realisation proceeds shall be
credited against the customer's liabilities - less reasonable
realisation costs.
8.2 The customer is obliged to treat the reserved
goods with care and to inform us immediately in the event of seizure,
confiscation, damage and loss; a breach of this obligation gives us the
right to withdraw from the contract. The customer shall bear all costs
which have to be incurred, in particular within the framework of a
third-party action, to lift a seizure and, if necessary, to recover the
delivery items, insofar as they cannot be confiscated by third parties.
The customer is obliged to insure the goods subject to retention of
title against loss and damage during the existence of the retention of
title and to notify us thereof in writing. If this is not done, we shall
be entitled to take out the insurance ourselves at the customer's
expense.
8.3 The customer may process the delivery items in the
ordinary and usual course of business and use them within the scope of
the provision of other contractual services to third parties, but may
neither pledge them nor assign them as security.
8.4 The customer
already now assigns to us the purchase price, remuneration for work or
other claims (including the recognised balance from a current account
agreement or, in the event of insolvency of the customer's business
partner, the then existing "causal balance") arising from the resale or
further processing or any other legal reason (e.g. in the event of an
insurance claim or a tortious act) with regard to the reserved goods in
the amount of the invoice value of the reserved goods; we accept the
assignment. We revocably authorise the customer to collect claims
assigned to us on our behalf in his own name. This authorisation to
collect may only be revoked if the customer does not duly meet his
payment obligations or has filed an application for the opening of
insolvency proceedings against his assets. At our request, the customer
shall in such a case provide the information on the assigned claims
required for collection, provide the relevant documents and notify the
debtor of the assignment. The assignment of receivables in accordance
with sentence 1 serves to secure all claims - including future claims -
arising from the business relationship with the customer.
8.5 The processing or transformation of the delivery items by the
customer is always carried out for us. If the delivery item is processed
with other items not belonging to us, we shall acquire co-ownership of
the new item in the ratio of the value of the delivery item to the other
processed items at the time of processing. In all other respects, the
same shall apply to the item created by processing as to the item
delivered under retention of title.
If the delivery item is combined
with other items not belonging to us to form a uniform item and if our
ownership thereby lapses, it is hereby agreed that the customer's
ownership of the uniform item shall pass to us on a pro rata basis (i.e.
in the ratio of the value of the delivery item to the other combined
items at the time of combination). The customer shall keep the
co-ownership of us free of charge. In all other respects, the same shall
apply to the item created by combination as to the item delivered
subject to retention of title.
8.6 If the realisable value of the
securities granted to us in accordance with the aforementioned
provisions exceeds our claims against the customer by more than 10%, not
only temporarily, we shall release securities to this extent at our own
discretion at the customer's request. The aforementioned cover limit of
110 % shall be increased by this amount of value added tax if we are
charged value added tax on the realisation of the collateral goods as a
result of a delivery made to us by the customer subject to value added
tax.
8.7 If the law of the country in which the delivery item is
located does not permit the agreement of a reservation of title or only
in a limited form, we may reserve other rights to the delivery item. The
customer is obliged to cooperate in all necessary measures (e.g.
registrations) to realise the reservation of title or the other rights
replacing the reservation of title and to protect these rights. 9.
9 Place of performance and jurisdiction
9.1 Unless otherwise
stated in the order confirmation, the place of performance for all
obligations arising from the contract shall be our registered office in
D- 77933 Lahr.
9.2 If the customer is a merchant within the meaning
of the German Commercial Code, a legal entity under public law or a
special fund under public law, the place of jurisdiction shall be our
registered office in D- 77933 Lahr. However, we are also entitled to
take legal action at the customer's place of business.
9.3 The law of
the Federal Republic of Germany shall apply to the legal relationship
between the parties. The UN Convention on Contracts for the
International Sale of Goods shall not apply
JL / MGU / Kap 4.2 / 31.12.2021