General Terms and Conditions –
Lüning Ladenbau GmbH

§ 1 Scope of Application

(1) All deliveries, services and offers of Lüning Ladenbau GmbH (hereinafter referred to as the “Company”) are made exclusively on the basis of these General Terms and Conditions. They form an integral part of all contracts concluded by the Company with its contractual partners (hereinafter referred to as the “Customer”). These Terms and Conditions shall also apply to all future business relationships, even if they are not expressly agreed again.

(2) At the latest upon acceptance of the goods or services, these Terms and Conditions shall be deemed accepted. Any counter-confirmations by the Customer or third parties referring to their own business or purchasing conditions are hereby rejected. In particular, silence, unconditional execution of an order or reference to correspondence containing deviating terms and conditions shall not constitute acceptance or consent, even for future contracts.

(3) The written contract, including these General Terms and Conditions, shall be solely authoritative for the legal relationship between the Company and the Customer. It fully reflects all agreements between the contracting parties concerning the subject matter of the contract. Verbal assurances made by the Company prior to the conclusion of the contract shall be legally non-binding, and verbal agreements shall be replaced by the written contract unless it is expressly stated therein that they shall continue to apply.

§ 2 Offer and Conclusion of Contract

(1) All offers of the Company are subject to change and non-binding. Declarations of acceptance and all orders require written or remote confirmation by the Company to become legally effective, in accordance with the completeness clause set out in § 1 para. 3.

(2) The quality and characteristics of the contractual object are exclusively defined in the Company’s offers, order confirmations and the associated documents, without constituting a guarantee within the meaning of § 443 of the German Civil Code (BGB).

§ 3 Prices and Payment

(1) Unless otherwise stated, the Company shall be bound by the prices contained in its offers for a period of 30 days from the date thereof. Otherwise, the prices stated in the Company’s order confirmation plus the applicable statutory value-added tax shall apply. Additional deliveries and services shall be invoiced separately. Unless otherwise agreed, prices are FOB warehouse (location), including standard packaging.

(2) The Customer may only offset counterclaims or withhold payments insofar as such counterclaims are undisputed, legally established or arise from the same order under which the respective delivery was made.

(3) The Company is entitled to perform outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, circumstances become known which are likely to significantly reduce the Customer’s creditworthiness and jeopardize the payment of the Company’s outstanding claims arising from the respective contractual relationship (including from other individual orders subject to the same framework agreement).

§ 4 Delivery, Delivery and Performance Periods, Force Majeure, Self-Supply Reservation

(1) If the Customer orders components from a specific manufacturer, the Company is entitled to deliver functionally equivalent products from another manufacturer, provided this does not result in significant disadvantages for the Customer.

(2) Delays shall not be attributable to the Company if the Customer fails to fulfill its cooperation obligations, in particular if it does not timely provide official approvals, execution plans, documentation for specification of the contractual object, clarification of all technical details and advance payments. Complete clarity of the order is a fundamental prerequisite.

(3) If, after conclusion of the contract, indications arise that the Customer’s ability to perform is at risk (e.g. payment default, cessation of payments, application for insolvency proceedings), the Company is entitled to refuse performance and, after an unsuccessful deadline for provision of security, to withdraw from the contract and/or claim damages. This shall not apply insofar as the administrator’s right of election under § 103 of the German Insolvency Code (InsO) is affected.

(4) Delivery periods confirmed by the Company are always approximate unless a fixed period or fixed date has been expressly agreed. If shipment is agreed, delivery periods and dates refer, unless otherwise expressly stated by the Company, to the time of handover to the carrier, freight forwarder or other third party commissioned with transport.

(5) The Company is entitled to make partial deliveries for divisible deliveries and, upon prior notification regarding a specific delivery date, also to make early deliveries, provided this is reasonable for the Customer;

• in the case of partial deliveries, this shall be deemed reasonable if the partial delivery can be used by the Customer in accordance with the contractual purpose, delivery of the remaining goods is ensured and no additional costs (unless borne by the Company) or significant additional effort are incurred;
• in the case of early delivery, if no such additional costs or effort arise.

(6) The Customer may only set a grace period for delivery once the agreed delivery date has been exceeded by more than two weeks. Such grace period must be reasonable and at least two weeks. After unsuccessful expiry, the Customer may withdraw from the contract.

(7) The Company shall not be liable for impossibility of delivery or delays caused by force majeure or other unforeseeable events at the time of contract conclusion (e.g. operational disruptions, difficulties in material or energy procurement, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary approvals, official measures, insufficient, incorrect or delayed supply by suppliers, epidemics and pandemics as classified at least as “moderate risk” by the Robert Koch Institute), for which the Company is not responsible. If such events significantly impede or render performance impossible and are not merely temporary, the Company is entitled to withdraw from the contract. In case of temporary impediments, delivery and performance periods shall be extended accordingly plus a reasonable start-up period. If acceptance becomes unreasonable for the Customer due to delay, the Customer may withdraw from the contract by immediate written notice.

(8) If goods are shipped by a transport company on behalf of the Customer and the Company is liable for exceeding a fixed delivery period or fixed delivery date attributable to the carrier commissioned by the Company, liability shall be limited to three times the freight costs pursuant to § 431 para. 3 of the German Commercial Code (HGB). Upon request, the Company shall assign any claims against the carrier to the Customer.

(9) Claims for damages against the Company due to breach of duty are limited in accordance with § 7 of these General Terms and Conditions.

(10) In cases of returns accepted as a gesture of goodwill, the provisions stated in the applicable order confirmations provided to the Customer at contract conclusion shall apply.

§ 5 Transfer of Risk

(1) If shipment is agreed and the Company has not assumed transport or installation, the risk shall pass to the Customer upon handover of the goods to the carrier, freight forwarder or other party commissioned with shipment (commencement of loading being decisive). If shipment or handover is delayed for reasons attributable to the Customer, the risk shall pass upon readiness for shipment and notification thereof.

(2) This shall also apply in the case of partial deliveries pursuant to § 4 para. 4.

(3) Storage costs after transfer of risk shall be borne by the Customer. In the event of storage by the seller, storage costs amount to 0.25% of the invoice amount of the stored goods per commenced week. The right to claim higher or lower storage costs remains reserved.

(4) The shipment shall only be insured by the Company against theft, breakage, transport, fire and water damage or other insurable risks at the express request and expense of the Customer.

§ 6 Warranty and Defects

(1) The products shall be delivered free from manufacturing and material defects; the limitation period for asserting claims for defects (warranty period) shall be one year from delivery or – insofar as acceptance is required – from acceptance of the delivered item; in the case of contracts for work and services, statutory provisions shall apply. The shortened limitation period shall not apply to claims for damages by the Customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents, which shall in each case be subject to the statutory limitation periods.

(2) The agreed quality owed by the Company with respect to the contractual item arises exclusively from the contractual agreements with the Customer and the production drawings agreed in this respect and not from other commercial statements, brochures, consultations or the like. This does not constitute the assumption of a guarantee, e.g. within the meaning of § 443 of the German Civil Code (BGB). Only expressly agreed quality specifications shall be binding on the Company. Such specifications shall not relieve the Customer of its own inspections.

(3) The Customer shall inspect the delivered item immediately after delivery/handover with due care and, where necessary, carry out spot checks. Obvious defects or other defects recognizable upon immediate and careful inspection shall be asserted in writing and with specific details without undue delay, but no later than within 8 working days after delivery; otherwise, they shall be deemed approved. Other defects shall be deemed approved if the notice of defect does not reach the Company within 8 working days after the time at which the defect became apparent; if the defect was already apparent at an earlier time during normal use, such earlier time shall be decisive for the commencement of the notice period. Until inspection by the Company, the delivered item shall be stored properly and returned only at the Company’s express request. Returns shall be made carriage paid by the Customer, whereby the Company shall reimburse the Customer for the costs of the most economical shipping method in the event of a justified notice of defect. In the event of a justified notice of defect, the Seller shall reimburse the costs of the most economical shipping method; this shall not apply insofar as the costs increase because the delivered item is located at a place other than the place of its intended use.

(4) The Customer shall give the Company the opportunity to inspect and examine the complained-of contractual item.

(5) The Company shall provide no warranty for improper use or handling of the contractual item. Warranty claims shall also lapse in the event of damage to or destruction of the contractual item due to improper handling or storage after the transfer of risk. Instructions and guidelines issued by the Company with respect to the item sold shall be complied with; otherwise, any warranty claims of any kind shall lapse.

(6) Defects shall be remedied, at the Company’s choice to be made within a reasonable period, by repair or replacement delivery. In the event of failure (i.e. impossibility, unreasonableness, refusal or unreasonable delay) of repair or replacement delivery, the Customer may withdraw from the contract or reduce the purchase price appropriately. A prerequisite for the remedy of defects is that the Customer grants the Company a reasonable period and provides the opportunity to remedy the defect.

(7) If a defect is based on fault on the part of the Company, the Customer may claim damages in accordance with the provisions of § 7 of these General Terms and Conditions.

(8) Any delivery of used items agreed with the Customer on a case-by-case basis shall be made to the exclusion of any warranty for defects.

(9) No warranty shall exist for custom-made products manufactured according to specifications, calculations or design documents provided by the Customer insofar as defects are based thereon.

§ 7 Exclusion and Limitation of Liability

(1) The Company’s liability for damages – irrespective of the legal basis – in particular arising from impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with this § 7 insofar as fault is relevant.

(2) The Company shall not be liable in cases of simple negligence on the part of its corporate bodies, legal representatives, employees or other vicarious agents, unless such negligence constitutes a breach of essential contractual obligations. Essential contractual obligations are the obligation to deliver and install the delivered item on time, its freedom from defects of title as well as from such material defects that impair its functionality or fitness for use more than insignificantly, as well as advisory, protective and custodial obligations intended to enable the Customer to use the delivered item in accordance with the contract or to protect the life or health of the Customer’s personnel or the Customer’s property from significant damage.

(3) Insofar as the Company is liable for damages in principle pursuant to § 7 para. 2, such liability shall be limited to damages which the Company foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen by exercising due care customary in trade. Indirect damages and consequential damages resulting from defects of the delivered item shall additionally only be compensable insofar as such damages are typically to be expected when the delivered item is used for its intended purpose. The foregoing provisions of para. 3 shall not apply in the event of intentional or grossly negligent conduct by members of the Company’s corporate bodies or senior executives.

(4) Any liability arising from the assumption of a procurement risk shall apply, within the scope of the provision set out in § 4 para. 6, only if the Company has expressly assumed such procurement risk by written agreement.

(5) The above exclusions and limitations of liability shall apply to the same extent in favor of the Company’s corporate bodies, legal representatives, employees and other vicarious agents.

(6) Insofar as the Company provides technical information or acts in an advisory capacity and such information or advice does not form part of the contractually agreed scope of performance owed by the Company, this shall be done free of charge and to the exclusion of any liability.

(7) The limitations set out in this § 7 shall not apply to the Company’s liability for intentional conduct, for guaranteed quality characteristics, for injury to life, body or health, or under the Product Liability Act.

§ 8 Retention of Title

(1) The retention of title serves to secure all present and future claims of the Company against the Customer arising from the business relationship existing between the contracting parties (including all balance claims from a current account).

(2) The delivered items/goods supplied by the Company to the Customer shall remain the property of the Company until full payment of all secured claims has been made. The goods, as well as any goods replacing them pursuant to the following provisions and covered by the retention of title, shall hereinafter be referred to as “goods subject to retention of title”.

(3) The Customer shall store the goods subject to retention of title for the Company free of charge.

(4) The Customer shall be entitled to process and resell the goods subject to retention of title in the ordinary course of business until the occurrence of the realization event (para. 9). Pledges and transfers by way of security shall be impermissible.

(5) If the Customer processes the goods subject to retention of title, it is agreed that such processing shall be carried out in the name and for the account of the Company as manufacturer and that the Company shall directly acquire ownership or – if processing is carried out using materials of several owners or the value of the processed item exceeds the value of the goods subject to retention of title – co-ownership (fractional ownership) in the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that no such acquisition of ownership by the Company should occur, the Customer hereby already assigns its future ownership or – in the ratio stated above – co-ownership in the newly created item to the Company by way of security. If the goods subject to retention of title are combined with other items to form a uniform item or are inseparably mixed and one of the items is to be regarded as the principal item such that either the Company or the Customer acquires sole ownership, the party owning the principal item shall transfer to the other party proportionate co-ownership in the uniform item in the ratio stated in sentence 1.

(6) In the event of resale of the goods subject to retention of title, the Customer hereby assigns to the Company, by way of security, all claims arising therefrom against the purchaser – in the case of the Company’s co-ownership of the goods subject to retention of title, proportionately in accordance with the co-ownership share. The same shall apply to other claims replacing the goods subject to retention of title or otherwise arising in relation to the goods subject to retention of title, such as insurance claims or claims in tort in the event of loss or destruction. The Company revocably authorizes the Customer to collect the claims assigned to the Company in its own name. The Company may revoke this collection authorization only in the event of realization.

(7) In the event of third-party access to the goods subject to retention of title, in particular seizures, the Customer shall immediately point out the Company’s ownership and immediately notify the Company so that the Company may enforce its ownership rights. Insofar as the third party is not in a position to reimburse the judicial or extrajudicial costs incurred by the Company in this connection, the Customer shall be liable to the Company for such costs.

(8) The Company shall release the goods subject to retention of title as well as the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 20%. The selection of the items to be released thereafter shall be at the Company’s discretion.

(9) Insofar as the Company withdraws from the contract due to the Customer’s breach of contract – in particular in the event of default in payment – (realization event), the Company shall be entitled to demand surrender of the goods subject to retention of title.

(10) The Customer hereby irrevocably permits the Company, for the purpose of collecting the goods subject to retention of title after withdrawal from the contract, to enter its business premises. Upon collection of the goods, the inventory shall be recorded and documented in the form of an inventory. A copy of the inventory list shall be handed over to the Customer.

§ 9 Default of Acceptance

If the Customer is definitively no longer willing to perform the contract, the Company shall be entitled to claim 25% of the order value as damages. The assertion of further damages (e.g. reimbursement of expenses already incurred) remains reserved. The Customer shall be entitled to prove that the damage is lower.

§ 10 Industrial Property Rights

(1) The Company regularly checks the offered goods for the existence of industrial property rights. The Customer shall also inform the Company (in particular in the case of goods custom-made on the Customer’s order or specifications) of any existing industrial property rights. Each contracting party shall immediately notify the other party in text form if claims are asserted against it due to the infringement of such rights.

(2) In the event that the goods infringe an industrial property right in a manner attributable to the Company, the Company shall, at its option, modify or replace the goods in such a way that no third-party rights are infringed any longer while the goods continue to perform the contractually intended function, or procure for the Customer a right of use by concluding a license agreement with the third party. If the Company does not succeed in doing so within a reasonable period, the Customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the Customer shall be subject to the limitations of § 7 of these GTC.

(3) If the infringement of industrial property rights is based on circumstances attributable to the Customer (e.g. failure to check and/or to notify the Company of the existence of an industrial property right in a custom-made product manufactured on the Customer’s order and specifications), the Customer undertakes to indemnify the Company against any payment claims asserted against the Company in this connection.

(4) In the event of infringements caused by goods of other manufacturers supplied by the Company, the Company shall, at its option, assert its claims against the manufacturer and upstream supplier for the Customer’s account or assign such claims to the Customer. Claims against the Company shall exist under this paragraph only if judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or, for example, appears futile due to insolvency.

§ 11 Governing Law, Place of Jurisdiction, Severability

(1) These General Terms and Conditions and the entire legal relationship between the Company and the Customer shall be governed by the laws of the Federal Republic of Germany. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

(2) Insofar as the Customer is a merchant, a legal entity under public law or a special fund under public law, or if the Customer has no general place of jurisdiction in the Federal Republic of Germany, the registered office of the Company shall be the place of jurisdiction for all disputes arising directly or indirectly from the business relationship. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected.

(3) Insofar as the contract or these General Terms and Conditions contain gaps, those legally effective provisions shall be deemed agreed upon to fill such gaps which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of the gap.

Version 2022