General Terms and Conditions of Licharz GmbH

1. General

(1) The following General Terms and Conditions (GTC) apply to business transactions with companies within the meaning of Sec. 14 of the Civil Code (Bürgerlliches Gesetzbuch, BGB). Deliveries and services of Licharz GmbH and our affiliated companies within the meaning of Sec. 15 et seqq. of the Stock Corporation Act (Aktiengesetz, AktG) (analogous) are carried out exclusively on the basis of these General Terms and Conditions. We do not recognise any terms and conditions that conflict with or deviate from our terms and conditions of sale unless we have expressly agreed to their validity. Our terms and conditions of sale also apply if we unconditionally deliver to the buyer in the knowledge of the buyer’s conflicting or deviating terms and conditions.
(2) Individual agreements made with the buyer in individual cases (including collateral agreements, supplements and amendments) take precedence over these GTC in any case. A written contract or our written confirmation is decisive for the content of such agreements subject to evidence to the contrary.
(3) Legally relevant declarations and notifications made by the buyer with regard to the contract (e.g. deadlines, notification of defects, withdrawal or reduction) must be submitted in writing, i.e. in written or text form (e.g. letter, e-mail, fax). This does not effect statutory formal regulations or other evidence, particularly if there is any doubt regarding the identification of the declarant.

2. Offer

(1) Our offer is subject to change and non-binding. This also applies if we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, computations), other product descriptions or documents – including in electronic form – to which we reserve property rights and copyrights.
(2) The ordering of the goods by the buyer is considered a binding offer of contract. Unless otherwise specified in the order, we are entitled to accept this offer of contract within 10 weeks after receipt by us.
(3) Acceptance can either be declared in writing in electronic form (e.g. by sending an order confirmation) or by delivering the goods to the buyer.

3. Prices

(1) Unless otherwise agreed in our order confirmation, our prices are EXW (Incoterms ® 2010) plus statutory VAT, excluding packaging. This will be invoiced separately.
(2) If, after conclusion of the contract, duties or charges that burden the movement of goods (e.g. customs duties, freight charges, taxes) increase, we will be entitled to make corresponding price adjustments if these changed costs were not foreseeable at the time the contract was concluded. The same applies in the event of wage increases and price changes of upstream suppliers that were unforeseeable at the time the contract was concluded and that come into force after the contract was concluded.
(3) Confirmation and calculation of semi-finished products is based on theoretical weights.

4. Payment

(1) Unless otherwise agreed in our order confirmation, our invoices are due within thirty (30) days net without deduction from the date of invoice.
(2) Payment by bill of exchange is only permitted on the basis of an express agreement. The acceptance of a bill of exchange or a cheque is only deemed as payment on account of performance. In the event of payment by cheque or bill of exchange, the customer must bear the bill of exchange and discount charges.
(3) The buyer is only entitled to a right to refuse performance according to Sec. 320 BGB and to rights of retention if the buyer’s claim has been established as final and absolute or is undisputed. If there are defects in the delivery, this will not effect the counter-rights of the buyer, particularly with regard to Sec. 9 of these GTC.

5. Delivery, delivery deadline, default of acceptance

1) Delivery is made ex warehouse, which is also the place of performance for the delivery and any supplementary performance. At the request and expense of the buyer, the goods will be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise stipulated, we are entitled to specify the type of shipment (particularly forwarding agents, dispatch routes, packaging) ourselves.
(2) Delivery times are stated in weekly dates and deemed to be fixed dates if this has been expressly agreed. All delivery obligations are subject to proper self-delivery. The delivery period will be deemed to have been complied with if, by the time it expires, readiness for dispatch has already been communicated or the delivery item has already left the warehouse. If design documents, models, samples or the like are necessary for carrying out the order, the delivery period will not commence until their complete and proper receipt by us. The delivery period will be extended if there are any unforeseen hindrances beyond our control, such as operational disruptions or delays in the delivery of essential materials, insofar as such hindrances demonstrably have a significant effect on delivering the delivery item. The delivery period will be extended according to the duration of such measures and hindrances. Should delays resulting from this exceed the period of six (6) weeks, both parties will be entitled to withdraw from the contract to the extent that the performance has been affected. Any further claims are excluded in this context.
(3) If the buyer is in default of acceptance or fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this we will charge lump-sum compensation in the amount of 0.5% of the invoice amount per calendar week, beginning with the delivery deadline or – in the absence of a delivery deadline – once
notification has been given that the goods are ready for dispatch, or 5% in the event of non-acceptance of the goods. Proof of higher damages and our statutory claims (particularly compensation for additional expenses,
reasonable compensation, termination) will remain unaffected by this; however, the lump sum is to be offset against any further monetary claims. The buyer remains entitled to prove that we have incurred no damages at all or significantly less damage than the aforementioned lump sum.

6. Scope of delivery

The scope of delivery is always established by our written order confirmation. We reserve the right to over-deliver or under-deliver up to 10% of the quantity ordered.

7. Transition of risk, acceptance

(1) Unless otherwise specified in the order confirmation, delivery is agreed EXW (Incoterms ® 2010). This also applies in the event that we carry out the transport.
(2) The risk of accidental loss and accidental deterioration of the goods passes to the buyer upon delivery. In the case of mail order purchases, however, the risk of accidental loss and accidental deterioration of the goods along with the risk of delay already passes with the delivery of the goods to the forwarding agent, carrier or the person or institution otherwise assigned to carry out the shipment. Insofar as acceptance has been agreed, this is decisive for the passing of risk. Moreover, all statutory regulations according to contract law for work and labour apply to acceptance accordingly. Default of acceptance by the buyer is equivalent to delivery or acceptance.

8. Retention of title

(1) The delivered goods remain our property until all – including future – claims have been paid in full, irrespective of the legal grounds. This also applies if individual or all our claims have been included in the current account and the account is balanced and confirmed.
(2) Goods subject to the retention of title can neither be pledged to third parties nor be assigned as collateral before full payment of the secured claims. The buyer must immediately inform us in text form if an application to open insolvency proceedings has been filed or insofar as the goods belonging to us are subject to third-party access (e.g. garnishments).
(3) The customer is entitled to resell the reserved goods in the ordinary course of business. However, this entitlement may be revoked in the event that the buyer fails to fulfil contractual obligations. In this case, particularly if there is default in payment, we will be entitled to take back the goods after issuing a reminder, and the buyer will be obliged to surrender them. Revocation is deemed to have been pronounced in the event that payments cease or an application for the opening of insolvency proceedings against the assets of the buyer is filed. (4) Neither our assertion of retention of title or seizure of the delivery items will be deemed a withdrawal from the contract unless this is declared by us in writing.
(5) In the event of resale, however, the buyer hereby assigns all claims in the amount of the purchase price agreed between us and the buyer, including value added tax, which accrue to the buyer from the resale, irrespective of whether the delivery items are resold without or after processing.
(6) In the event of the processing, intermixture or combination of our goods by the buyer, the retention of title extends to the resulting products at their full value, whereby we shall be deemed the manufacturer. If processing, intermixture or combination with third-party goods results in said third party still having rights to ownership, we shall acquire co-ownership of the processed, intermixed or combined goods in proportion to the calculated value. Furthermore, the same applies to the resulting product as to the goods subject to the retention of title.
(7) The buyer remains authorised to collect the claim until the authorisation to resell is revoked. This does not affect our right to collect the claims ourselves. We undertake to refrain from collecting the claims as long as the buyer meets all payment obligations to us, there is no faulty performance on the part of the buyer and we do not assert retention of title by exercising a right in accordance with Sec. (4). If this is the case, however, we will be entitled to demand that the buyer disclose the assigned claims and the corresponding debtors to us, provide all information required for collection, surrender the associated documents and notify the debtors (third parties) of the assignment. At the request of the buyer, we will release security rights at our discretion if and to the extent that their value exceeds our claims by 10%.

9. Warranty / liability

(1) The statutory provisions apply to the buyer’s rights in the event of material defects and defects of title (including incorrect and short deliveries along with improper assemby or defective assembly instructions) unless otherwise stipulated below. Claims resulting from supplier’s redress are excluded if the defective goods have been further processed by the buyer or another entrepreneur, such as by installation in another product.
(2) The basis of our liability for defects is primarily the agreement reached on the quality of the goods. All product descriptions which are the subject of the respective contract or which have been publicly announced by us (particularly in catalogues or on our Internet homepage) are deemed to be an agreement on the quality of the goods. Insofar as the quality has not been agreed, it is to be assessed according to the statutory regulation whether a defect is present or not (Sec. 434 (1)(2) and (1)(3) BGB). We accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(3) The buyer’s claims for defects presuppose that the buyer has fulfilled the statutory obligations to examine the goods and give notice of defects (Sec. 377, Sec. 381 of the Commercial Code (Handelsgesetzbuch, HGB)). Complaints about obvious defects will only be acknowledged if they are made promptly – no later than within fourteen days after the goods arrive – in writing (including text form), providing supporting documents, samples, packing slips, invoice number and invoice date; defects which are not recognisable during the inspection must be communicated in writing within the same period from when they are discovered. If the buyer fails to properly inspect and/or give notice of defects, we will not be liable for the defect that has not been reported or not in a timely manner or not properly.
(4) The buyer must give us the time and opportunity required for the supplementary performance owed, in particular to surrender the rejected goods for inspection purposes; rejected goods may only be returned with our express consent, however. In the case of replacement, the buyer must return the defective items to us according to the statutory provisions. Supplementary performance does not include the removal of the defective item or the re-installation if we were not originally obliged to install it.
(5) Warranty claims are limited to supplementary performance. If there
is indeed a defect, we will bear or reimburse the expenses necessary for the purpose of inspection and supplementary performance – in particular transport, travel, labour and material costs and any removal or installation costs – in accordance with the statutory provisions. Otherwise, we may demand that the buyer reimburse the costs incurred as a result of the unjustified request to remedy a defect (in particular inspection and transport costs), unless the lack of defectiveness could not be recognised by the buyer. In the event that the supplementary performance fails, the buyer will be entitled to demand reduced remuneration or to withdraw from the contract at the buyer’s discretion. Further claims due to defects or consequential damages, in particular for reimbursement of expenses or damages, only exist within the scope of what is stipulated by these General Terms and Conditions.
(6) Unless otherwise stated in these GTC, we are liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions. We are liable for damages – irrespective of the legal grounds – within the scope of culpable liability in the event of intent and gross negligence. In the event of ordinary negligence, we are only liable – subject to a milder standard of liability in accordance with statutory provisions (e.g. for diligence in our own affairs) – (i) for damages arising from loss of life, physical injury or damage to health or (ii) for damages arising from the non-insignificant breach of an essential contractual obligation (an obligation which must be fulfilled to allow the agreement to be carried out properly in the first place and which the contracting parties routinely rely on and have the right to rely on); in this case, our liability is limited to the compensation of foreseeable, typically occurring damage.
(7) The limitations of liability arising from the above provision also apply to breaches of duty by or in favour of persons where we bear culpable responsibility according to statutory provisions. They do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the buyer under the Product Liability Act.
(8) The buyer is only entitled to withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. The buyer’s free right of termination (in particular pursuant to Sec. 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences apply.

10. Statute of limitations

(1) Notwithstanding Sec. 438(1)(3) BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance is agreed upon, the limitation period starts with the acceptance.
(2) Special statutory provisions on the statute of limitations (in particular Sec. 438(1)(1), (3), Sec. 444, Sec. 445b BGB) remain unaffected.
(3) The aforementioned limitation periods also apply to contractual and non-contractual claims for damages by the buyer based on a material defect of the goods, unless the application of the regular statutory limitation period (Sec. 195, Sec. 199 BGB) would reduce the limitation period in the individual case. However, claims for damages by the buyer pursuant to Sec. 9(6)(2) and 9(6)(3)(i) of these GTC and pursuant to the Product Liability Act become time-barred exclusively according to the statutory limitation periods.

11. Place of fulfilment and court of jurisdiction

Unless otherwise specified in the order confirmation, the place of fulfilment is Buchholz. Insofar as it is legally permissible, the exclusive place of jurisdiction is Neuwied. However, we are also entitled to file claims against the buyer at the buyer’s place of general jurisdiction.

12. Applicable law

These GTC and the contractual relationship between us and the Buyer shall be governed exclusively by the material law of the Federal Republic of Germany to the exclusion of the Uniform Law for International Sales (ULIS) and the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).