General Terms and Conditions of Delivery and Payment
§ 1 General – Scope of Application
(1) The Terms and Conditions of Sale of ILA-Langner GmbH & Co KG, Eschenburg, shall apply exclusively. We do not recognise any terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
(2) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
(3) Our Terms and Conditions of Sale shall only apply to entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB).
§ 2 Offer – Offer Documents
(1) If the order is to be qualified as an offer in accordance with § 145 BGB, we can accept this within 2 weeks. Our offer is subject to change unless otherwise stated in the order confirmation.
(2) A warranty of certain properties shall only exist if expressly included in the contract. We reserve the right to deviations, especially with regard to the continuous development and improvement of our products. A reference to DIN standards includes a more detailed description of the goods, but does not constitute a guarantee of properties.
(3) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents which are designated as “confidential”. The customer must obtain our express written consent before passing them on to third parties.
§ 3 Prices – Terms of Payment
(1) Unless otherwise stated in the order confirmation, our prices are “ex works”. They apply in particular excluding packaging, loading, transport, insurance, unloading, installation, assembly or commissioning. These and further services will be invoiced separately.
(2) We reserve the right to change our prices accordingly if cost reductions or cost increases occur after the conclusion of the contract, in particular due to collective wage agreements or changes in the price of materials. We will provide evidence of these to the customer on request.
(3) Statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
(4) The deduction of a discount requires a special, written agreement or the express admission on the order confirmation or the invoice of ILA-Langner GmbH & Co KG.
(5) Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 30 days of the invoice date. The statutory rules concerning the consequences of default in payment shall apply.
(6) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by us. Furthermore, he shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 4 Delivery time
(1) The start of the delivery time stated by us presupposes the clarification of all technical questions.
(2) Compliance with our delivery obligation further presupposes the timely and proper fulfilment of the customer’s obligation. We reserve the right to plead non-performance of the contract.
(3) If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims or rights remain reserved.
(4) If the conditions of Section (3), the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the time at which the customer is in default of acceptance or debtor’s delay.
(5) We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of Section 286 (2) No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that his interest in the further performance of the contract has ceased to exist.
(6) We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(7) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(8) Furthermore, in the event of a delay in delivery, we shall be liable for each completed week of delay within the framework of a lump-sum compensation for delay in the amount of 3% of the value of the delivery, but not more than 15% of the value of the delivery.
(9) Further legal claims and rights of the customer remain reserved.
(10) Partial deliveries are also permissible without express agreement.
§ 5 Transfer of Risk – Packaging costs
(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed. (2) Separate agreements shall apply to the taking back of packaging.
(3) If the customer so desires, we shall cover the delivery by transport insurance; the costs incurred in this respect shall be borne by the customer.
§ 6 Liability for Defects
(1) Claims for defects on the part of the customer presuppose that the customer has duly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
(2) If there is a defect in the object of sale, the customer is entitled to choose between subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the event of rectification of the defect or replacement delivery, we shall be obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the object of sale was taken to a place other than the place of performance.
(3) If the supplementary performance fails, the customer shall be entitled to demand withdrawal or reduction at his discretion.
(4) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(5) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, liability for damages shall also be limited to the foreseeable, typically occurring damage. An essential contractual obligation exists if the breach of duty relates to an obligation on the fulfilment of which the customer has relied and was entitled to rely.
(6) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(7) Unless otherwise stipulated above, liability is excluded.
(8) The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
(9) The limitation period in the case of a delivery recourse according to §§ 478, 479 German Civil Law (BGB) remains unaffected; it is five years, calculated from the delivery of the defective item.
§ 7 Joint and several liability
(1) Any further liability for damages than provided for in § 6 is excluded, irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for damage to property pursuant to § 823 German Civil Law (BGB).
(2) The limitation according to Section (1) shall also apply insofar as the customer demands compensation for useless expenditure instead of a claim for compensation for damage.
(3) 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
(1) We retain title to the object of sale until receipt of all payments arising from the business relationship with the customer. In the event of conduct by the customer in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. Our taking back of the object of sale shall constitute a withdrawal from the contract. After taking back the object of sale, we have the right to dispose of it; the proceeds of such disposal shall be credited against the customer’s liabilities – less reasonable costs of disposal. (2) The customer shall be obligated to treat the object of sale with care; in particular, it shall be obligated to sufficiently insure the object of sale at its own expense against damage by fire, water and theft at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
(3) In the event of seizures or other interventions by third parties, the customer must notify us in writing without delay so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of a lawsuit pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim accruing to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer shall remain authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. However, if this is the case, we may demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
(5) The processing or transformation of the object of sale by the customer shall always be carried out on our behalf. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the item created by processing as to the object of sale delivered subject to reservation of title.
(6) If the object of sale is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it shall be deemed to be agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
(7) The customer shall also assign to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a property.
(8) We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be incumbent upon us.
§ 9 Place of Jurisdiction – Place of Performance – Severability Clause
(1) If the customer is a merchant, the place of jurisdiction shall be Eschenburg; however, we shall also be entitled to sue the customer at the court of his place of residence.
(2) The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods shall not apply.
(3) Unless otherwise stated in the order confirmation, the place of performance shall be Eschenburg.
(4) In addition to the above provisions, the conditions 188 A according to VDMA, the BGB and the HGB shall apply in the following order. (4) Any invalidity of individual provisions shall affect the validity of the remaining provisions. The parties undertake to replace the invalid provisions with valid provisions which come as close as possible to the invalid provisions in economic terms.
(5) Deviations from the contractual provisions and ancillary agreements must be made in writing. This shall also apply to the waiver of the written form requirement.