General Terms and Conditions of Delivery and Payment of ILA-Langner GmbH & Co. KG
Section 1 General – Scope
(1) The sales conditions of ILA-Langner GmbH & Co. KG, Eschenburg, shall apply exclusively. We do not recognize any terms and conditions of the customer that conflict with or deviate from our sales conditions unless we have expressly agreed to their validity in writing. Our sales conditions shall also apply if, with knowledge of conflicting or deviating terms and conditions of the customer, we carry out delivery to the customer without reservation.
(2) All agreements made between us and the customer for the purpose of performing this contract are recorded in writing in this contract.
(3) Our sales conditions shall apply only to entrepreneurs within the meaning of Section 310 (1) BGB.
Section 2 Offer – Offer Documents
(1) If the order qualifies as an offer pursuant to Section 145 BGB, we may accept it within two weeks. Our offer is subject to change unless otherwise stated in the order confirmation.
(2) A guarantee of specific characteristics exists only if expressly included in the contract. In particular, with regard to the continuous development and improvement of our products, we reserve the right to make deviations. Reference to DIN standards includes the more detailed description of the goods, but not a guarantee of characteristics.
(3) We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to written documents designated as “confidential”. The customer requires our express written consent before passing them on to third parties.
Section 3 Prices – Terms of Payment
(1) Unless otherwise stated in the order confirmation, our prices are “ex works”. They do not include 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, after conclusion of the contract, cost reductions or increases occur, in particular due to collective wage agreements or changes in material prices. We will provide evidence of these to the customer upon request.
(3) Statutory VAT is not included in our prices; it will be shown separately in the invoice at the statutory rate applicable on the day of invoicing.
(4) The deduction of a cash discount requires a special written agreement or express approval in the order confirmation or invoice of ILA-Langner GmbH & Co. KG.
(5) Unless otherwise stated in the order confirmation, the purchase price is due net (without deduction) within 30 days from the invoice date. The statutory rules regarding the consequences of default in payment shall apply.
(6) The customer shall only be entitled to rights of set-off if its counterclaims have been legally established, are undisputed or have been recognized by us. In addition, the customer shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
Section 4 Delivery Time
(1) The commencement of the delivery period stated by us requires that all technical questions have been clarified.
(2) Compliance with our delivery obligation further requires the timely and proper performance of the customer’s obligations. The defense of non-performance of contract remains reserved.
(3) If the customer is in default of acceptance or culpably breaches 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 subsection (3) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the time when 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 contract of sale is a fixed-date transaction within the meaning of Section 286 (2) no. 4 BGB or Section 376 HGB. We shall also be liable in accordance with the statutory provisions if, as a result of delay in delivery for which we are responsible, the customer is entitled to assert that its interest in further performance of the contract has ceased to exist.
(6) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery is based on 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 attributable to us. Insofar as the delay in delivery is based on 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, liability for damages shall be limited to the foreseeable, typically occurring damage.
(8) Otherwise, in the event of delay in delivery, we shall be liable for each completed week of delay by way of lump-sum compensation for delay in the amount of 3% of the delivery value, but not more than 15% of the delivery value.
(9) Further statutory claims and rights of the customer remain reserved.
(10) Partial deliveries are also permissible without express agreement.
Section 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 return of packaging.
(3) If the customer so wishes, we will cover the delivery by transport insurance; the costs incurred in this respect shall be borne by the customer.
Section 6 Liability for Defects
(1) The customer’s claims for defects require that the customer has duly complied with its duties of inspection and notification of defects owed under Section 377 HGB.
(2) If there is a defect in the purchased item, the customer shall be entitled, at its option, to subsequent performance either in the form of remedying the defect or delivery of a new item free of defects. In the event of remedy of defects or replacement delivery, we shall be obliged to bear all expenses required for the purpose of subsequent performance, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.
(3) If subsequent performance fails, the customer shall be entitled, at its option, to withdraw from the contract or demand a reduction in price.
(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. Unless we are accused of intentional breach of contract, 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 too, however, liability for damages shall be limited to the foreseeable, typically occurring damage. A material contractual obligation exists if the breach of duty relates to an obligation on the performance of which the customer relied and was entitled to rely.
(6) Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(7) Unless otherwise provided 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 supplier recourse pursuant to Sections 478, 479 BGB remains unaffected; it is five years, calculated from delivery of the defective item.
Section 7 Overall Liability
(1) Any further liability for damages beyond that provided for in Section 6 is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, due to other breaches of duty or due to tort claims for compensation for property damage pursuant to Section 823 BGB.
(2) The limitation pursuant to subsection (1) shall also apply insofar as the customer, instead of a claim for compensation for damage, demands compensation for futile expenses instead of performance.
(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, workers, staff, representatives and vicarious agents.
Section 8 Retention of Title Security
(1) We reserve title to the purchased item until receipt of all payments arising from the business relationship with the customer. In the event of breach of contract by the customer, in particular default in payment, we shall be entitled to take back the purchased item. The taking back of the purchased item by us constitutes withdrawal from the contract. After taking back the purchased item, we shall be entitled to realize it; the proceeds of realization shall be credited against the customer’s liabilities minus reasonable realization costs.
(2) The customer is obliged to treat the purchased item with care; in particular, it is obliged, at its own expense, to insure it adequately at replacement value against fire, water and theft damage. If maintenance and inspection work is required, the customer must carry it out in good time at its own expense.
(3) In the event of attachments or other interventions by third parties, the customer must notify us in writing without delay so that we can bring an action pursuant to Section 771 ZPO. If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to Section 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer is entitled to resell the purchased item in the ordinary course of business; however, it hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to it from the resale against its customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the customer meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of settlement or insolvency proceedings has been filed and no suspension of payments exists. If this is the case, however, we may demand that the customer disclose to us the assigned claims and their debtors, provide all information required for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
(5) The processing or transformation of the purchased item by the customer shall always be carried out on our behalf. If the purchased item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. The same shall otherwise apply to the item resulting from processing as to the purchased item delivered subject to reservation of title.
(6) If the purchased item 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 purchased item (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 is agreed that the customer transfers proportional co-ownership to us. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
(7) The customer also assigns to us, as security for our claims against it, those claims which arise against a third party through the combination of the purchased item with real property.
(8) We undertake to release the securities to which we are entitled at the customer’s request insofar as 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.
Section 9 Place of Jurisdiction – Place of Performance – Severability Clause
(1) If the customer is a merchant, Eschenburg shall be the place of jurisdiction; however, we are also entitled to sue the customer at the court of its place of residence.
(2) The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.
(3) Unless otherwise stated in the order confirmation, the place of performance is Eschenburg.
(4) In addition to the foregoing provisions, the conditions 188 A according to VDMA, the BGB and the HGB shall apply in the order set out below.
(5) The invalidity of individual provisions shall not affect the validity of the remaining provisions. The parties undertake to agree effective provisions in place of the invalid provisions that come as close as possible in economic terms to the invalid provisions.
(6) Deviations from the contractual provisions and collateral agreements must be made in writing. This also applies to any waiver of the written-form requirement.