General Terms & Conditions
1. GENERAL
2. ESTIMATE OF COSTS
3. TRADE TERMS
4. SHIPMENT/DELIVERY
5. PROPERTY AND RISK
6. PRICES AND PAYMENT
7. INSURANCE
8. INCREASED COSTS
9. WARRANTY AND LIABILITY
10. CLAIMS ON DEFECTS
11. SERVICES
12. ACCEPTANCE
13. PATENTS, TRADEMARKS ETC.
14. FORCE MAJEURE
15. CUSTOMER'S DEFAULT
16. FURTHER ASSURANCE
17. RE / -EXPORT
18. APPLICABLE LAW AND PLACE OF JURISDICTION
19. WAIVER
20. MISCELLANEOUS
1. GENERAL
The GT&C apply to all contracts, in particular, sales, service and maintenance
contracts whereby they prevail any terms and conditions of Customer which have not
been expressly acknowledged in writing. Except as otherwise agreed upon the
contract is brought about our written confirmation of the order.
We reserve ownerships and copyrights on samples, costs estimates, drawings and
similar information in material and immaterial manner as well as in electronic form.
They may not be disclosed to third parties without our prior written consent.
We are obliged to disclose information and documents to third parties which are
named as confidential by the customer only with his consent.
2. ESTIMATE OF COSTS
Any estimate of costs is without obligation for us if not otherwise confirmed in writing.
Estimates of costs will be invoiced to Customer if they do not lead to an order.
3. TRADE TERMS
If goods are to be delivered upon trade terms (FAS, FOB etc.) to which the Incoterms
(2000 edition as amended from time to time) apply, then the provisions of the
Incoterms applicable to such trade term apply to the respective con-tracts insofar as
the same may be inconsistent with any term of the same.
4. SHIPMENT/DELIVERY
Partial shipment or delivery and/or transshipment shall be permitted. Each partial
shipment or delivery shall be deemed to be the subject matter of a separate contract to
the intent that failure or defects in such shipment or de-livery shall not entitle Customer
to treat such failure or defect as a repudiation of the contract as a whole. If the goods
are to be delivered under the contract FAS, FOB sea port or FOB airport, we will
decide the vessel or the aircraft for the shipment or delivery of the goods, unless
Customer, at its own responsibility, expressly nominates a liner or an aircraft. Any
dates quoted for delivery of the goods are considered as not binding. We shall not be
liable for any delay in delivery of the goods, unless time was of the essence and we
have delayed delivery intentionally without good cause, by gross negligence or under
violation of main contractual obligations. Time for delivery shall not be of the essence
unless previously agreed by us in writing. In the event that any necessary licence
cannot be obtained from the government of the importing or exporting country
respectively, the contract shall be null and void and of no effect.
5. PROPERTY AND RISK
Property in the goods shall not pass to Customer until the date on which all amounts
outstanding from Customer to us under any contract between the parties have been
unconditionally and fully paid. Unless property has passed to Customer, Customer
shall have possession of the goods as our fiduciary agent and bailee only and
Customer shall maintain the goods separately from its own property and that of any
third party, properly stored, protected and insured and identified as our property; we
shall be permitted to inspect the goods at any time and may re-possess the same if
Customer is in delay with any payment. Customer may sell the goods in the ordinary
course of its business but shall not otherwise (and shall not purport to) sell, mortgage,
incumber or part with possession of the goods nor allow any lien or encumbrance to
arise over the same. Customer herewith assigns to us for security purposes all of
Customer's receivables emanating from Customer's sale of goods under retention of
title, provided that Customer shall remain entitled to collect such assigned receivables
until we revoke this authorisation and further provided that we may disclose this
assignment to his customers at any time. We herewith accept this assignment. In the
event that the fair market value of the security obtained by us should exceed the
amounts assigned from Customer by 20% or more, we shall release the excess
security upon Customer's request. Notwithstanding that property in the goods may not
have passed to Customer, risk in the goods shall pass to Customer either as provided
by applicable Incoterms or (if Incoterms do not apply) upon delivery of the goods to
Customer or the carrier or other agent, whichever occurs first.
6. PRICES AND PAYMENT
Except as otherwise agreed upon prices are ex works including loading, but exclusive
of packaging and exclusive of the respective statutory VAT. Except as otherwise
agreed upon payment has been made without any deduction to our account according
to the confirmation of order.
The customer is entitled to withhold payments or to offset with counterclaims only
insofar as his counterclaims are undisputed or assessed in a legally binding
judgement.
In case payment shall be made by a letter of credit under the contract, Customer shall
establish, in favour of us, an irrevocable and confirmed letter of credit negotiable by
sight draft through a prime bank of good international repute satisfactory to us
immediately after conclusion of the contract with a validity period extending at least 20
days after the last day of the period of the respective shipment or delivery. Such LC
shall be in a form and upon terms satisfactory to us and shall expressly permit part
shipment and shall authorize reimbursement to us for such sums, if any, as may be
advanced by us for consular in-voices, inspection fees and other expenditures for the
account of Customer. Should payment under such letter of credit not be duly effected,
Customer shall, upon notice thereof from us, immediately make payment in cash to us
directly and unconditionally together with interest from such date of which such
payment became due under such LC until payment by Customer. All bank charges
outside Germany, including collection charges and stamp duties, if any, shall be for the
account of Customer, provided that confirming commissions shall be for the account of
Customer, regardless of being charged within or outside Germany. Customer
shall, in addition to the price of the goods or services specified on the face of the
contract, pay all taxes, duties and other fiscal dues of any kind levied in respect to
the sale of the goods or rendering of the services including (but not limited to)
VAT and customs duties. All payments under the contract shall be made by
Customer free and clear from any deduction and from any set-off or counterclaim
of any kind to which Customer might otherwise be entitled, unless recognized by
us or adjucated to Customer in a final court judgement. Time for payment under
the contract and/or for opening of any LC or for making any other arrangements
relating to the payment shall be of the essence of the contract. If we agree to
allow customer credit, we may at any time in our sole discretion limit or cancel the
credit of Customer and may likewise require payment of all or any part of the
price for the goods or services to be made in cash in advance of delivery or may
require guarantees or other security to be provided and any payment or security
so required shall be paid or furnished by Customer promptly upon such
requirement. We shall be under no liability to deliver the goods or render the
services unless Customer has complied with this condition and has discharged all
its other obligations to us under the contract or on any other account. In case of
delay in payment of any amount due to us, Customer shall pay interest from the
due date until payment at a rate of 8%-points over the basic interest rate of the
European Central Bank. We may set-off against any sums which may become
due from us to Customer, any sums which may become due from Customer
irrespective of the contract or any other account.
7. INSURANCE
If the contract is on a CIF or CIP basis, 110% of the contract price shall be
insured by Seller, unless other-wise agreed in writing.
8. INCREASED COSTS
If, after the conclusion of the contract, there shall be any increase in the amount
of any charges or payments for or of the nature of freight rates, surcharges,
taxes, cus-toms duties, export and import surcharges or other govern-mental
charges or insurance premiums which in any such case under the contract are
payable by us or if any new or additional charges or payments shall be incurred
by or im-posed on us with respect to the goods or services, then the amount of
such increase or such new or additional charges or payments shall be for the
account of Customer who shall promptly reimburse us with the amount of same.
9. WARRANTY AND LIABILITY
1. If the delivery goods cannot be used in accordance with the contract due to a
fault on the part of the Seller by having omitted or provided wrong proposals or
advice, or due to the violation of other contractual collateral obligations, in
particular instructions for the operation and maintenance of the delivered goods,
the provisions of Clause 9. and 10.2 shall apply analogously excluding any further
claims by the buyer.
2. The supplier is liable for damage which does not occur to the delivered object
itself - irrespective of any legal grounds whatsoever - only in cases of:
a. wilful intent,
b. gross negligence on the part of the owner or senior employee,
c. culpable harm to life, body and health,
d. for defects which were dishonestly concealed or where the supplier guaranteed
that they were not present,
e. for defects to the delivered object, as far as a liability exists in terms of the
Product Liability Act for damage to persons or material for privately used items.
3. The Supplier shall be liable for any culpable violation of significant contractual
obligations even for cases of gross negligence by non-managerial staff and
simple negligence ;i the latter is restricted to reasonably predictable damage in
terms of standard contract provisions.
Further claims are excluded.
10. CLAIMS
The supplier shall provide the following warranty for material defects and defects
of title under the exclusion of further claims - subject to Para 9:
1. At the Supplier's discretion, all those parts which could be proven to be
defective due to a circumstance which existed prior to the transfer of risk shall be
repaired or replaced free from fault and free of charge. The Supplier must be
notified immediately in writing on determination of such defects. Replaced parts
become the Supplier's property.
2. In order to carry out all improvements and replacement deliveries which the
Supplier deems necessary, the Customer - after concurring with the Supplier shall
give the Supplier the required amount of time as well as the opportunity;
otherwise, the Supplier is released from the liability of any consequences which
may arise. The customer is only entitled to remove the defect himself or allow it to
be removed by a third party and demand payment for the required expenditure in
urgent cases where operational safety is endangered or to prevent a
disproportionately high damage, whereby the Supplier must be notified
immediately.
3. As far as the complaint should prove to be valid, any costs incurred as a result
of the improvement or replacement delivery are for the Supplier's account; this
includes the cost of the replacement item as well as for the despatch. The
Supplier additionally carries the cost for the disassembly and installation as well
as costs for the possible provision of necessary technicians and temporary staff
including travel costs as far as there is no disproportionate financial burden on the
Supplier.
4. Within the framework of legal provisions, the Customer has a right to withdraw
from the contract if the Supplier - in accordance with legal exceptions - allows a
fruitless expiry of the deadline set for the improvement or replacement delivery as
a result of a material defect. In the event of an insignificant defect, the Customer
merely has a right to reduce the contract price. The right to reduce the contract
price is otherwise excluded.
Further claims are regulated in Para 9.2 of these conditions.
5. No warranty is assumed in particular in the following instances:
Unsuitable or unprofessional use, faulty assembly [installation] or commissioning on
the part of the Customer or a third party, normal wear and tear, faulty or negligent
treatment, improper maintenance, inappropriate means of operation, unsuitable
construction site, chemical, electro-chemical or electrical influences - as far as they are
not the Supplier's fault.
6. The Supplier does not assume any liability for any consequences arising out of an
unprofessional repair carried out by the Customer or a third party. The same applies if
modifications are made to the delivered goods without the Supplier's prior approval.
The disassembly of defect and/or the installation of newly delivered parts during the
guarantee period is free of charge and carried out by employees of
LIEDL LANA AG or authorized employees and at
the risk of LIEDL LANA AG. The Customer
can only assert claims for damages against LIEDL LANA AG in terms of material defects if
o the installation and commissioning of the delivered object was carried out by
personnel authorised by LIEDL LANA AG
o no repair work was carried out without the approval of LIEDL LANA AG.
o no spare parts were installed which are not original parts or parts approved by LIEDL LANA AG
o no independent modifications were carried out on the delivered object.
7. Should the use of the delivered object lead to an infringement of national industrial
property rights or copyrights the Supplier, at his expense, will provide the Customer
with the general right to the further use or modify the delivered object in a reasonable
manner so that an infringement of property rights no longer exists.
Should this not be possible in terms of reasonable economic conditions or within a
reasonable period of time, the Customer is entitled to withdraw from the contract. The
Supplier is also entitled to withdraw from the contract under the aforementioned
conditions.
Furthermore, the Supplier will release the Customer from undisputed or legally
determined claims related to the owners of the property rights.
8. Subject to Para 9.2, the Supplier's obligations mentioned in Para 10.7 are
conclusive in the event of infringements of property rights or copyrights. These only
exist if
o the Customer immediately notifies the Supplier of any asserted claims with regard to
infringements to property rights and/or copyright,
o the Customer supports the Supplier to a reasonable extent in warding off the
asserted claims or enables the Supplier to carry out the modification measures in
terms of Para 10.7,
o the right to carry out all defensive measures including out of court regulations
remains reserved for the Supplier,
o the defect of title is not caused by an instruction given by the Customer, and
o the infringement of a right is not caused by the Customer having independently
modified the delivered object or used it in a manner which is not in accordance with
the contract.
11. SERVICES
As regards the rendering of services such as repair, adjustment and/or maintenance,
we will carry through the same carefully in the necessary scope during our working
hours as specified in the "price list technical service" We reserve the decision as to
where the services will be rendered. Transportation costs, if any, are to the burden of
the Customer.
Our invoices will be based on the service reports to be signed by Customer at site or
the respective reports of our repair shop as the case may be. Parts, material and
travel/overnight expenses will be additionally invoiced on the basis of our actual price
list "technical service" .Invoices are payable at the day of maturity without deduction.
Our invoices will be based on the service reports to be signed on-site by the Customer or the respective reports of our repair shop as the case may be. Parts, material and travel/overnight expenses will be additionally invoiced on the basis of our current and periodically amended price list. Invoices are payable without deduction no later than 30 days after the due date.
12. ACCEPTANCE
Services having been rendered are principally subject to acceptance by Customer in
written form (signing of the service report and/or acceptance record). We can request
partial acceptance of demarcated and economically independent parts of the services.
In such a case, the last partial acceptance is deemed to be the final acceptance.
As soon as the contractual services or part of the same have been finalized, we will
present to Customer the respective service report and/or acceptance record
respectively. Customer undertakes to immediately, however, 1 week after receipt of
the document at the latest, declare the acceptance which may not be withheld in case
of defects which affect the entire functionality insignificantly only. Such deviations, if
any, will be recorded in the acceptance record and will be removed in the scope of
warranty. If the acceptance shows significant deviations from the performance owed,
Customer may refuse acceptance and may fix a reasonable time limit for us to recover
the contractual performance after which a new acceptance will take place. The
acceptance (partial acceptance) is deemed to have been declared if Customer does
not declare the same even after expiry of a reasonable grace period or refuses the
same without sufficient grounds.
13. PATENTS, TRADEMARKS ETC.
We shall not be responsible to Customer for any alleged infringement of patent, utility
model, design, trademark, copyright or any other industrial or intellectual property right
in connection with the goods or services unless we are guilty of intent, gross
negligence or the violation of main contractual obligations except that in any of such
events we shall exert our best efforts to obtain per-mission to use the goods from the
rights' owner or shall permit Customer to rescind the contract. Nothing herein
contained shall be construed as transferring any patent, utility model, trademark,
design or copyright in the merchandise; all such rights should expressly be reserved to
the true and lawful owners thereof.
1) To the extent that LIEDL LANA AG owns
intellectual property rights, including patents, utility models, trademarks, copyright,
design rights, know-how, trade secrets or other protective rights pertaining to the
contractual performances (products or services), or acquires such rights in the course
of executing the contract or licenses such rights from third parties for the purpose of
providing the contractual performances, such intellectual property rights shall remain
with MBO LIEDL LANA AG or the third party
licensor, and the customer shall acquire only the rights to use as contractually agreed.
2) LIEDL LANA AG assumes no liability
for the protectiability or the validity of the protective rights pertaining to the
contractual performances.
3) LIEDL LANA AG affirms that it has no
knowledge of third party rights pertaining to the contractual performances, but
assumes no responsibility that the contractual performances do not violate third
party protective rights.
14. FORCE MAJEURE
In the event that the performance by us or our obligations under the contract
is/are prevented by force majeure, directly or indirectly affecting our activities or
any other person, firm or corporation connected with the sale, manufacture,
supply, shipment, delivery or rendering ser-vices, including, but not limited to, act
of God, flood, typhoon, earthquake, tidal wave, landslide, fire, plague, epidemic,
quarantine, dispute, sabotage, explosion, accident or breakdown in whole or in
part of machinery, plant, transportation or loading facility, governmental request,
guidance, order of regulation, unavailability of transportation or loading facilities,
curtailment, shortage or failure in the supply of fuel, water, electric current, or
other public utility or raw material including crude oil, petroleum or petroleum
products, bankruptcy or insolvency of the manufacturer or supplier of goods or
services, by cutting, substantial change of the present international monetary
system or any other cause or circumstances whatsoever be under our reasonable
control, then we shall not be liable for loss or damage or failure or delay in
performing our obligations under the contract and may, at our option, extend the
time of shipment or rendering the services or cancel unconditionally and without
liability the unfulfilled portion of the contract to the extent so affected.
15. CUSTOMER'S DEFAULT
If Customer shall make default in or commit any breach of its obligations to us
under a contract or if Customer shall at any time become bankrupt or shall have a
receiving order or administration order made against him or shall enter into
composition with its creditors or shall become subject to a sequestration or if
Customer's firm is dissolved or, Customer being an incorporated body, if a
resolution of dissolution shall be passed (otherwise then for reconstruction or
amalgamation provided by us) or a resolution to split Customer's corporate entity
into several entities or if Customer shall be insolvent or shall be unable or be
deemed unable to meet its commitments promptly as and when due or if any
other event shall occur which, in our opinion, gives grounds for believing that
Customer's ability to perform his obligations under the contract may be impaired,
then and in any such event or the equivalent thereof in Customer's country of
domicile, we may (without prejudice to any other right or remedy which it might
have): (i) forthwith terminate the contract in whole or in part by notice in writing
after giving Customer an opportunity to remedy its default, unless the receiver in
bankruptcy should choose to fulfil the contract and/or (ii) suspend further
performances in whole or in part and/or (iii) forthwith demand immediate payment
of the contract price of the goods or services and all other sums which may be
outstanding to us on any account whereupon the same shall become immediately
due and payable and/or (iv) demand security by bank guarantee or otherwise for
payment of the contract price and/or (v) repossess any of the goods held by
Customer in which property has not yet passed to Customer and for this purpose
enter upon any premises of Customer.
16. FURTHER ASSURANCE
Customer shall, from time to time (and at our request), execute such further
assurances, instruments or documents and do or cause to be done any such
other acts and things (e.g., registration) as may be necessary, proper or advisable
under applicables laws and regulations to insure that property in, and
legal and beneficial ownership of the goods passes to Customer only in
accordance with the provisions of the contract.
17. RE-/EXPORT
Customer shall not, directly or indirectly, export, re-export, transship or make
available any products, including software, parts, technical information/data and
documents relating to the contract to any third parties outside Customer's country
in violation of any applicable export control laws, rules and regulations
promalgated and administrated by the competent government.
18. APPLICABLE LAW AND PLACE OF JURISDICTION
The GT&C shall be governed by and construed in all res-pects in accordance with
the laws of the Federal Republic of Germany. The United Nations Convention on
Contracts for the International Sale of Goods (CISG) shall not apply. Customer
submits to the exclusive jurisdiction of the courts at our business place but we
may institute proceedings in the courts of any other competent jurisdiction.
19. WAIVER
Failure or delay by us to enforce any of our rights against Customer shall not be
construed as a waiver of such rights. If we waive any of our rights in relation to
the breach of Customer of its obligations, such waiver (which must be in writing)
shall not be construed as a waiver of such rights in relation to any other breach.
20. MISCELLANEOUS
If any provision of these GT&C is held by any competent authority to be invalid or
unenforceable in whole or in part, the validity of the other provisions and the
remainder of the condition in question shall not be affected.
LIEDL LANA AKTIENGESELLSCHAFT
Robert Bosch Straße 5a
85221 Dachau
Germany
Fon: 0049-(0)8131-271170
Fax: 0049-(0)8131-2711720
info@liedl-lana.de
Vorsitzender des Aufsichtsrates:
Klaus-Peter Liedl
Vorstand:
Hans-Ulrich Blechschmidt, Franz-Peter Jahn
Handelsregister-Nr.: HRB 150386 AG München
Steuernummer: 115/120/50141
Ust-ID: DE 235 041 843
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