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§ 1 Application of conditions

(1) Deliveries, services and offers by Lüning Ladenbau GmbH (hereinafter known as “company”) are carried out exclusively in line with these conditions. They are also deemed to be valid for all future business relationships, even if they are not expressly agreed on every occasion. (2) These conditions are assumed to be accepted latest upon acceptance of goods or service. Assertions to the contrary by buyer/client with reference to his business and purchase conditions are hereby rejected. In particular silence, unreserved performance of an order and reference to correspondence containing divergent business conditions should not be regarded as acknowledgement or agreement, and this also applies to future transactions. (3) In this respect the only definitive outline of legal relationships between company and client is the written contract in combination with these general sales, delivery and payment conditions. The contract details all agreements between the parties to the contract to its contents. Verbal agreements by the company before conclusion of this contract are not legally binding, and any verbal agreements are superseded by the written contract itself, if they do not expressly specify their continuing nature.

§ 2 Offer and contract conclusion

(1) Business offers by the company are without engagement and non-binding. In order to be legal, declarations of acceptance and all orders must be confirmed by the company in writing or by telex as outlined in the completeness clause of § 1 point 3. (2) The features of the contract object are described only in offers by the company, its order confirmations and associated documentation, but this does not constitute a guarantee in the sense of § 443 BGB.

§ 3 Prices

Provided not otherwise stated, the company adheres to the prices quoted in its offers for 30 days from the date thereof. Otherwise the prices plus legally-levied VAT stated in company order confirmation are definitive, and additional deliveries and services are invoiced separately. Unless agreed otherwise, prices are calculated FOB warehouse (place) and include standard packaging. 

§ 4 Delivery, delivery and performance periods, self-supply reservation 

(1) If client orders components from a specific firm, the company has the right to deliver adequate goods of the same value from another firm – provided this does not constitute severe difficulties for the client. (2) Delays cannot be laid at the door of the company, if client does not fulfil his duty to cooperate fully and in a timely fashion, especially if he does not provide for official approvals, implementation plans, contract object specification documentation, clarification of all technical details and payments. Thus 100% contract clarity is an absolute condition. (3) If after contract conclusion there are signs that client performance capacity is in jeopardy, for example through delayed/terminated payments and application for initiation of bankruptcy proceedings, the company is entitled to refuse performance and, after setting unfulfilled deadlines for lodging security, to withdraw from the contract and/or demand compensation. This does not apply if such action already affects the right to select insolvency administrator (§ 103 InsO). (4) Delivery deadlines given by the company in confirmation are only ever approximate, unless a fixed time or deadline is expressly agreed. (5) In the case of divisible deliveries the company is also entitled to make partial deliveries and to advance delivery, and if appropriate pre-advice is given pointing to a concrete delivery date. This entitlement exists if it is reasonable for the client, which is the case with partial deliveries when the partial delivery can be used by the client in the context of contractual purposes, where delivery of the remainder of the order is definite and it does not involve the client in additional costs (unless they are assumed by the company) or significant additional outlay; this applies to advance delivery, as long as cost and outlay as described above do not preclude it. (6) Client can only impose an additional delivery deadline on the company, where the agreed delivery date is exceeded by more than two weeks, and it should be reasonable and amount to at least two weeks. If the additional delivery deadline passes without result the client may withdraw from the contract. (7) The company is not liable for impossibility of delivery or delayed delivery, when this is caused by force majeure or other events unforeseeable at the time of contract conclusion (e.g. operational disruptions, problems with material and energy supplies, transportation delays, strikes, lock-outs, shortage of workers and raw materials, difficulties in obtaining requisite approvals, official measures, suppliers missing deliveries, under-supplying or falsely/ belatedly making delivery) that are not the fault of the company. Provided the result of these events is that delivery or service by the company is either considerable difficulty or impossibility of performing and that the respective impediment is not merely temporary in nature, the company is entitled to withdraw from the contract. In the case of impediments merely temporary in nature delivery dates are postponed/deferred to match period of impediment plus an appropriate mobilisation period. If as a result of delayed delivery/service the client can no longer be expected to take delivery, he may withdraw from the contract by giving immediate written notice to the company. (8) Any compensation claim against the company for dereliction of duty is excluded in line with the regulations of § 7. (9) In the case of returns for reasons of goodwill the respective rulings apply as stated in the company’s contract confirmation, which is available to the client at contract conclusion.

§ 5 Passing of risk

(1) Risk passes to the client as soon as delivery is entrusted to the person carrying out transportation or leaves company warehouse for delivery purposes. If client is responsible for delivery delay, risk passes to him upon readiness for delivery and respective notice to him. (2) This also applies in the case of partial delivery as covered in § 4 point 4.

§ 6 Client rights in case of defects

(1) Products are delivered free of manufacture and material defects. The deadline for exercising defect claims (guarantee period) on sales amounts to one year from delivery or acceptance of products, while legal provisions apply to service contracts. (2) The agreed features of the contract object claimed by the company are stated solely in contractual agreements with the client and not taken from other advertising statements, brochures, consultations or similar. This does not concern acceptance of a guarantee, e.g. in the sense of § 443 BGB. Only specific feature agreements are binding on the company, and they do not exempt the client from personal checks. (3) The company is liable for defects in line with regulations in § 7 as follows: a) Upon passing of risk client is obliged immediately to check the contract object carefully and if necessary to carry out random tests. Any defects should immediately be notified in writing with specific details, and at the latest within 8 days from receipt, otherwise they are deemed accepted. Until company inspection the purchase object or deliverable is to be stored properly and only returned upon express company request. Returns should be made freight prepaid by the client, but if the complaint turns out to be justified, the company refunds client the cost of the cheapest freight return option: this does not apply, if the costs are increased because the object is located in a place other than that of its intended regular use. b) Any defects initially not discernible even upon close investigation should immediately upon discovery be similarly claimed against the company. c) Client should allow the company an opportunity to inspect and test the defective contract object. d) The company is not liable in cases of improper use and treatment of contract object. Further guarantee claims are invalidated by damage or destruction caused to the contract object through improper treatment or storage following risk assumption. Advice and guidelines on the contract object provided by the company are to be observed to prevent guarantee claims of all types being invalidated.e) Defects are dealt with by the company selecting repair or replacement delivery within an appropriate time-frame, and the client should allow sufficient time and opportunity for defects to be addressed. If this is refused, guarantee claims of all types are invalidated. If rectification measures fail repeatedly (at least twice), client may withdraw from contract or demand compensation. Any further claims against the company or agents for whatever legal reason are excluded in line with provisions of § 7. f) Should any defects be identified in custom-made products, there is no guarantee attaching to products following client specifications, calculations or construction documentation.

§ 7 Exclusion and limitation of liability

(1) Irrespective of legal justification this § 7 limits company liability for compensation stemming particularly from impossibility, delay, defective and false delivery, contract violation, dereliction of duty during contract negotiations and illegitimate treatment, if this involves culpability. (2) The company is not liable in the case of simple negligence on the part of its officers, legal representatives, employees or other agents, provided major contractual obligations have not been violated. Major contractual obligations are those the client properly depends on and are essential to proper fulfilment of the contract, so for instance they encompass basically defect-free delivery objects and those protecting life and limb of client employees and his property against significant damage. (3) If on the merit of a claim the company is liable for compensation in line with § 7 point 2, this liability is limited to damages that the company predicted or should have predicted as possible consequences of contract violation, if proper normal care had been exercised. In addition indirect damage and consequences of defects in the goods/delivery objects are subject to compensation only if caused through proper use and typically encountered. (4) Liability stemming from assumption of procurement risk only applies to the company in the context of § 4 point 6, if procurement risk assumption was specifically covered by written agreement. (5) The above-mentioned liability exclusions and limitations are similarly applicable to officers, legal representatives, employees or other agents of the company. (6) If the company gives technical information or functions as a consultant, where such information and consultation do not belong to the range of services contractually agreed, such activities should be regarded as free of charge and involving no liability. (7) Limitations to this § 7 do not apply to company liability for wilful conduct, for guaranteed features, by reason of harm to life/body/health or in line with product liability legislation.

§ 8 Retention of title

(1) Until all present and future obligations of the client towards the company under the business relationship have been met (including balances receivable on current account), the company requires lodgement of the following collateral items, which it may choose to release at its discretion, provided collateral value exceeds receivables by over 20% on a permanent basis: The goods remain property of the company and should always be treated with appropriate care, and any conversion or remodelling is carried out in favour of the company as manufacturer, but carries no obligation. If the company’s (joint) ownership expires by association, it is agreed in advance that client’s ownership of the unitary item reverts to the company in proportion to its value (for accounting purposes). Client preserves the company’s (joint) ownership without remuneration. (2) Goods involving the company’s (joint) ownership are hereinafter referred to as reservation items. Client is entitled to re-work reservation items and sell them on in the normal course of business, provided he is not in arrears, but assignment and other means of encumbrance are not permitted. The client makes advance collateral arrangements with the company and pledges the full extent of receivables from sale or other legal disposal (insurance, improper handling) of the reservation items (including all balances receivable on current account). The company authorises client irrevocably to collect in his own name receivables assigned to it for company account. This power is subject to revocation only if client is no longer able to meet payment obligations in a proper way. Client should then immediately provide the company with all information and documentation necessary for collection of the receivables as well as inform other parties (if not already done) of the company assignment. (3) If others are granted access to the reservation items, especially assigned ones, client is to highlight company ownership and immediately inform the company for purposes of ownership enforcement. (4) The client bears responsibility if the third party is unable to reimburse the company for associated court or other costs. Contract violation by the client, especially payment delay, entitles the company to withdraw from the contract and demand return of the reservation items. (5) Client hereby irrevocably authorises the company to access his premises with a view to collecting the reservation items following withdrawal from contract. During collection of the goods their condition is to be recorded in the form of an inventory with a copy for the client.

§ 9 Default in acceptance

If in the end client is not prepared to fulfil the contract, the company is entitled to calculate 25 % of order amount and demand compensation, and it retains the right to demand further compensation (e.g. refund of expenses already incurred). The client retains the right of proving that damage is actually less.

§ 10 Applicable law, place of jurisdiction, partial invalidation

(1) German Federal Law applies to these business conditions and to all legal relationships between company and client, but the provisions of the UN Convention on Contracts for the International Sale of Goods are not applicable. (2) If client is a merchant, legal public entity or public legally incorporated special fund, the exclusive place of jurisdiction for contract relationship matters involving direct or indirect disputes is the company’s domicile. This condition does not affect legal provisions on exclusivity of jurisdiction. (3) If any provision of these business conditions or connected with other agreements should be or become unenforceable, the validity of all other conditions or agreements continues unchanged.