General Terms and Conditions
General Terms and Conditions of Business LEHNER Maschinenbau GmbH, Häuslesäcker 14, D-89198 Westerstetten (hereinafter referred to as “LEHNER”)
Last updated 01.01.2021
1. Area of applicability
1.1 LEHNER’s General Terms and Conditions of Business (hereinafter referred to as “GTCs”) apply exclusively in business dealings with companies as defined in Section 14 BGB [German Civil Code], legal entities under public law or special funds under public law.
1.2 The GTCs apply to all services provided by LEHNER, and especially to all contracts or agreements concluded with LEHNER. As part of ongoing business relationships, the GTCs shall also apply to future agreements without express arrangement.
1.3 Unless another arrangement is expressly agreed, LEHNER s GTCs apply exclusively. Other provisions, in particular, general terms and conditions of business , terms and conditions of purchase or terms and conditions of delivery of the customer shall not become a part of the agreement even where LEHNER does not expressly object to them.
2. Offer, Conclusion of contract
2.1 All offers from LEHNER are without obligation.
2.2 LEHNER shall be bound to its offers for two weeks unless the parties expressly agree on another period. The offer period commences on the day following the dispatch of the offer.
3. Delivery deadlines, Partial deliveries
3.1 The delivery deadlines or delivery dates specified by LEHNER are approximate unless the deadlines are expressly classified as binding in the contract. If shipping has been agreed, delivery dates and deadlines refer to the time of transfer to the forwarder, carrier, or other third party assigned to transport the goods.
3.2 If “delivery on call” has been agreed, the customer must grant LEHNER an appropriate deadline for delivery.
3.3 Compliance with the delivery deadlines or delivery dates is subject to correct and timely incoming deliveries to LEHNER unless LEHNER is responsible for the incorrect or delayed incoming delivery. Delays shall be communicated to the customer immediately
3.4 If a binding delivery deadline is missed, the legal consequences of delay shall be invoked solely where the customer has previously granted LEHNER an appropriate grace period in writing of at least two (2) weeks to no avail.
3.5 LEHNER is entitled to provide partial deliveries where • the partial delivery can be used by the customer within the scope of the contractual purpose, • delivery of the remaining ordered goods is assured, and • the customer does not incur any significant additional effort or additional costs as a result.
4. Hindrances to performance
4.1. Where, after the conclusion of a contract, its performance is prevented by the outbreak of war, the imposition of blockages, the entry into force of export or import bans or such similar measures by domestic and foreign authorities or hostile orders, shortage of raw materials, epidemics or other cases of force majeure, including such events occurring at upstream suppliers, LEHNER has the right to demand adaptation of the contract. Where adaptation is not possible or one party cannot reasonably be expected to accept it, the disadvantaged party may withdraw from the contract.
4.2. Any delays in delivery caused by force majeure or unforeseeable, serious events that are beyond LEHNER’s control – including, in particular, unrest, strike, official orders, transport disruptions in the country of origin, in transit or at the place of delivery/dispatch/performance, and import refusals due to EU regulations – shall extend the agreed deadline by the duration of the hindrance. The same shall apply if any such event has occurred at an upstream supplier. If such events render delivery or performance significantly more difficult and the hindrance is not merely of temporary duration, LEHNER is entitled to withdraw from the contract. If it is unreasonable for the contractual party to accept delivery or service due to the delay, it can withdraw from the contract by immediate written declaration to LEHNER.
4.3. In the event of non-supply or insufficient supply to LEHNER by its upstream suppliers, LEHNER shall be released from its delivery obligations in whole or in part. This only applies if it has made the necessary arrangements for the procurement of the goods to be delivered by it and has selected its upstream suppliers carefully. LEHNER shall inform the buyer immediately of the occurrence of any such event and the unavailability of the goods.
5. Transfer of risk, packaging and shipping
5.1. The goods shall be packaged at the customer’s expense in the usual commercial manner. The customer must ensure immediate unloading upon delivery. Delivered pallets and loan containers must be returned in usable condition carriage paid and emptied within one month or their value refunded.
5.2. Shipping is performed at the customer’s risk, even where delivery carriage paid has been agreed. LEHNER can arrange transport insurance at the customer’s request and expense to the level required by the customer.
5.3. If shipping is delayed for reasons for which the customer is responsible, the risk is transferred to the customer upon notification of the readiness for shipment, unless the parties have expressly agreed otherwise.
5.4. If “delivery free domicile” is agreed, this means that the delivery will be made without unloading and under the assumption that an approach road / yard will be accessible to a heavy truck trailer. If the delivery vehicle leaves the accessible approach road / yard at the customer’s instructions, the customer shall be liable for any damages.
6. Prices, Payment terms
6.1 Prices shall apply, subject to a different contractual arrangement by the parties, “ex works” and are quoted exclusive of the applicable statutory value added tax.
6.2 Transport, shipping, loading, packaging and freight costs are not included in the prices (item 5 of these GTCs) and shall be charged separately unless agreed otherwise in the contract between the parties.
6.3 In the case of deliveries within the European Union, the customer must prove its exemption from value added tax by providing its VAT ID number before the contractually agreed delivery deadline. In case of omission of a timely and complete notification, LEHNER shall be entitled to charge the applicable value added tax.
6.4 In the case of deliveries outside the EU, LEHNER shall be entitled to charge the statutory value-added tax where the customer does not provide proof of export within one month of the consignment being shipped.
6.5 The contract price is payable on receipt of invoice and within seven days without deductions, unless otherwise expressly agreed in the contract between the parties. Following expiry of the deadline specified in sentence 1, the customer shall be in default of payment without any requirement for payment reminders.
6.6. The customer shall provide LEHNER with a direct debit authorisation to effect payments via SEPA direct debit and shall undertake to take all necessary steps to cooperate to this end. If payments are made via SEPA direct debit, the invoice issued by LEHNER shall be deemed as prior notification. Notification shall be given no later than one day prior to the direct debit.
6.7 The customer shall be entitled to rights of offset or retention only where the claim is undisputed or recognised by declaratory judgement.
6.8 Claims against LEHNER may not be assigned unless the parties expressly agree to the contrary in writing.
6.9 Upon payment by cheque, receipt of the cheque at LEHNER’s premises shall not be deemed as payment, but rather its irrevocable encashment.
7. Contractual obligations of the customer
7.1 The customer is required to provide LEHNER with the information and data that LEHNER needs to fulfil its contractually owed services in a timely and complete manner.
7.2 Any delivery periods shall commence prior to the complete fulfilment of the obligations stated in item 7.1.
8. Liability for defects for used goods
The sale of used goods applies only upon exclusion of liability for defects.
9. Liability for defects for new goods
9.1 The period of liability for defects is one year from delivery or, if acceptance is necessary, from acceptance. This period does not apply to claims for damages asserted by the customer due to injury to life, limb or health or due to intentional or grossly negligent breaches of duty.
9.2. Claims for defects asserted by the customer require that the customer properly meet its inspection and notification obligations according to Section 377 HGB [German Commercial Code].
9.3 If the goods are defective, LEHNER can chose whether subsequent performance is carried out by correcting the defect (rectification) or by supplying a defect-free item (substitute delivery). In the event of rectification, the “Rectification conditions” set out in item 11 of these GTCs shall apply separately.
9.4 For the purposes of inspection and subsequent performance, LEHNER shall bear any costs, in particular transport, travel, labour and material costs, where the customer’s notification of defects is justified. If the customer’s notification of defects is found to be unjustified, we are entitled to reclaim the costs incurred thereby.
9.5 The customer may not assert any claims for defects if the goods only differ insignificantly from the agreed characteristics or only present an insignificant impairment of usability.
9.6 Claims for defects are excluded in case of natural wear of the goods or in case of damage arising from improper handling, excessive use, unsuitable equipment or due to specific external influences which are not assumed under the agreement or for which LEHNER is not responsible (e.g. repair services by third parties). This exclusion applies in particular if the customer makes any modifications to cables or connectors without LEHNER’s authorisation.
9.7 Claims for defects are excluded in cases where the customer or a third party from the customer’s domain of responsibility opens or modifies motors, thereby hampering or making impossible verification of the cause of the defect by LEHNER.
9.8 Claims by the customer for compensation for damages or restitution of frustrated expenses shall be entertained solely in accordance with item 9 and shall be otherwise excluded.
10.1 LEHNER shall be liable, including in case of damage due to breach of obligations during the contract negotiations, regardless of the legal grounds, in particular for damage not arising in the subject of contract itself, only in case of intent, culpable breach of major contractual obligations, gross negligence, culpable injury to life, limb or health, fraudulent concealment of defects, warranties of freedom from defects, and defects for which it is liable according to the Product Liability Act.
10.2 In the event of slight negligence, liability is restricted to damages that are reasonably foreseeable and typical for this type of contract.
10.3 Major contractual obligations according to items 9.1 and 9.2 are those whose fulfilment is essential for proper execution of the contract and on whose compliance the customer may ordinarily rely.
10.4 Further liability, regardless of grounds, shall be excluded.
11. Conditions of rectification
11.1 The following provisions shall apply to ensure smooth rectification by LEHNER in case of a defect arising during the warranty period.
11.2 Besides the cases set out in items 9.6 and 9.7, liability of LEHNER is excluded for defects due to improper use, non-compliance with service specifications and regulations or modifications to the goods without LEHNER’s approval. Normal wear and tear does not constitute a defect.
11.3 In the event of a defect in the goods, the customer is obliged to notify LEHNER of the nature and extent of the defect in written form (“notification of defect”). LEHNER shall then decide whether it will repair the defect or whether the customer may have the defect repaired a) by itself at its own request or b) by a certified workshop nominated by LEHNER, the costs of which shall be borne by LEHNER (“approval for repair”).
11.4 Any rectification by the customer without approval for repair is not permitted. The cost of same shall not be reimbursed except in cases provided for by law.
11.5 Rectification and notification of defect require the goods to be uniquely identifiable i.e. by quoting the serial number and, if possible, the year of construction.
11.6 After receiving the notification of defect, LEHNER shall immediately, within a deadline set by the customer, make a decision according to item 11.3 and communicate it to the customer.
11.7 If the customer repairs the defect, “LEHNER genuine spare parts” that are provided either by LEHNER or by a dealer must be used. If it becomes apparent that the defect is due to a component that is not a genuine spare part, LEHNER shall hence be absolved of liability.
11.8 If the customer or a third-party workshop repairs the defect, the hourly invoicing rates of the customer or workshop shall apply; however, these shall not exceed 42.00 euros plus value-added tax at the statutory rate. The customer or the workshop are obliged to comply with the usual time frames for the duration of the required rectification.
11.9 The customer is required to return the defective goods or defective parts of the goods at its own expense to LEHNER unless the parties agree otherwise.
12. Limitation period
12.1 Contrary to Section 438 subsection 1 (3) BGB [German Civil Code], the limitation period for claims relating to defects as to quality or title shall be one year from the date of handover or the customer’s default of acceptance, unless the parties have contractually agreed a longer term. Where acceptance is agreed, the limitation period commences with acceptance.
12.2 The existing limitation period also applies to contractual and non-contractual claims for damages by the customer in relation to a defect in the goods, unless the application of the statutory limitation period set out in Sections 195 and 199 BGB [German Civil Code] leads in individual cases to a shorter limitation period.
12.3 The limitation periods set out in the Product Liability Act remain unaffected.
13. Reservation of title
13.1 LEHNER reserves the title to the goods until full payment of all current and future claims from the agreement and any ongoing business relationship (“secured claims”) is received.
13.2 The goods subject to reservation of title may not be pledged to third parties or used as collateral until full payment of the secured claims has been made.
13.3 In case of third-party interventions concerning the goods, in particular in case of seizure, the customer must immediately notify LEHNER and enable the latter to lbring a third-party action against execution.
13.4 In the event of the customer’s conduct being contrary to the agreement and, in particular, with non-payment of the due purchase price, LEHNER shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or demand return of the goods under the terms of reservation of title.
13.5 Any demand for the return of goods shall not constitute a simultaneous declaration of withdrawal. Any such withdrawal on the part of LEHNER must be declared expressly and in writing.
13.6 If the customer fails to pay the due purchase price, LEHNER may only assert the rights set out in items 13.4 and 13.5 where an appropriate payment deadline has been previously set to no avail or any such setting of a payment deadline is unnecessary in accordance with the statutory provisions.
13.7 The customer is obliged to treat the goods with care during the period of reservation of title. The customer must provide proof of insurance to LEHNER at any time upon demand.
13.8 The customer shall be entitled to resell and/or process the goods subject to reservation of title in the ordinary course of business. The customer hereby assigns to LEHNER all claims from resale in the amount of the total invoice (including value-added tax).
13.9 The customer is entitled to recover the assigned claim (item 12.8) in its own name. LEHNER’s right to recovery remains unaffected. LEHNER undertakes not to recover the claim itself, provided that the customer meets its payment obligations arising from the collected revenues, does not default on payment and has not petitioned for the institution of insolvency proceedings.
13.10 The reservation of title extends to any products arising from the processing, commixtion or connection of the subject of contract at their full value. Should the ownership rights of third parties remain in case of processing, commixtion or connection with third-party goods, LEHNER shall acquire co-ownership in proportion to the invoice values of the processed, commixed or connected goods. Moreover, the same applies to the resulting product as for the goods supplied under reservation of title.
13.11 If the realisable value of the security exceedsthe claims of LEHNER by more than 10%, security as chosen by LEHNERshall be released at the customer’s request.
13.12 As long as LEHNER retains ownership of the goods, the latter must be adequately insured against the usual risks by the customer. The customer hereby assigns claims arising, in particular against the insurance company, to LEHNER in order to secure its claims up to the amount of its claims.
14. Final provisions
14.1 The place of performance shall be the place at which LEHNER renders its contracted services.
14.2 Where the customer is a merchant as defined in HGB [German Commercial Code], the sole place of jurisdiction for all disputes arising from the agreement shall be the court competent for Ulm. LEHNER shall be entitled to also bring an action against the customer in its place of general jurisdiction.
14.3 Should any clause in the agreement or GTCs be or become ineffective, this does not affect the validity of the agreement or the GTCs in other respects. In this case, a provision which comes closest to that intended by the contracting parties shall be deemed to be agreed.
14.4 German substantive law shall apply to the exclusion of the CISG and without giving effect to the principles of conflict of laws.