Terms and Conditions
§ 1 General Conditions
The following terms and conditions apply to all present and future business between the LMB-Factories GmbH und our customers and suppliers. Our clients' conditions, which may be contrary or deviant from ours, will not be accepted.
The invalidity of single regulations from below do not affect the validity of the remaining specifications.
Place of fulfillment and court of jurisdiction regarding the delivery and the payment is Wertheim am Main in Germany. In every case we have the right to take legal proceedings at the place of general jurisdiction of the client, too.
The laws of the Federal Republic of Germany apply to our legal relationships. The Regulations of the United Nations about contracts on the international sales of goods are excluded.
§ 2 Conclusion of the contract
The order is a binding quote. We can accept the quote within 4 weeks either by sending an order confirmation or by sending the customer the ordered goods within this time.
§ 3 Prices
Our prices are quoted ex works, excluding sending and packaging costs. The calculation of the value added tax will be effected based on the statutory provisions which are counting on the day of delivery, or on the day of performance. We reserve the right of changing prices, even without previous announcements.
§ 4 Payments
Bills have to be payed within 10 days with 2% cash discount or 30 days net. Initial orders from new customers must be paid in advance. The right of cash on delivery is reserved. Bills of exchange will be accepted only on the base of an explicit agreement and will be calculated on the expiration date of the invoice amount. The acceptance of bills of exchange occur only in account of performance. The same applies to checks until their cashing.
In the case of default of payment we will charge default interest.
A compensation through the customer is excluded, unless it is made on the base of indisputable or legally determined demands.
§ 5 Delivery Time
Delivery times will be agreed case by case. In order to be valid, the delivery times must be confirmed by us in a written form. The observance of the delivery times requires the timely receipt of all needed documents, approvals, permissions and information from the buyer, as well as his permission, which are necessary for the implementation of the order. The delivery time is beginning only with the fulfillment of this preconditions.
In the case of our default on delivery commitment, there will arise the entitlements regarding § 326 BGB for the customer. This entitlements are limited on the possibility of our compensation only in case of gross negligence or premeditation.
If it will turn out that the observance of the agreed delivery time is not possible due to circumstances in our firm or at our suppliers, for which we cannot be made responsible, for example fire, water and storm damages, strikes, lockouts, any other unexpected loss of manpower, energy and production material, traffic disruption and so on, there will take place an appropriate extension of the delivery time, not longer than 4 weeks after the expiration of the original delivery time. If the obstruction lasts even longer, both parties have the right to withdraw from the contract.
§ 6 Shipment
If not otherwise agreed, we will implement the shipment in that way, which seems for us as the more reasonable one. All shipments will take place at the risk of the buyer and can be ensured by us on his behalf. For breakages that may take place during the shipment, we cannot take over any warranty.
§ 7 Notification of defects
We must be informed in written form within a week after receiving the goods about incomplete and incorrect deliveries as well as complaints about recognizable deficiencies. If the deficits and failures are not recognizable, these have to be reported to us in written form directly after detection, or at latest until the end of the period of limitation.
The delivery is considered as approved, if the notification about the deficits and failures are not made on time.
§ 8 Warranty
In the case of justified and timely claims, we will choose if we will mend the deficient goods or deliver replacement as soon as possible, as far as the replaced goods can be acquired at the conditions of the contract. We have the right to appoint a third party in order to remove the deficiencies. At a failure of the subsequent improvement or replacement delivery, the statuary provisions are effective.
Our liability, also in the case of consequential damages, is limited on the invoice value of the rejected goods we delivered.
The liability limitation is not valid as far as we, our legal representatives or assistants are faced with legitimate reproaches regarding predetermination or gross negligence, or we are liable according to §463 BGB.
Our recommendations, no matter if they were communicated verbally, in a written form, or in the context of practical instructions, rely on our own experiences and tests and can therefore only be seen as standard values and not as a confirmation.
Our products are the subject of a continuous development. Therefore we reserve the right of changing the design, the configuration and the properties of the products.
The warranty period starts with the transfer of risk and amounts 12 month for the industrial sector and 24 month for private consumers.
§ 9 Reshipment
Reshipments of our delivered goods are only permitted with our previous approval. For the handling of the reshipment we reserve the right to take a corresponding deduction from the refunding, as far as the value of the rework is essentially not questioned.
§ 10 Packaging
If we are not obligated by the Regulation of Packaging of taking back the packaging, the customer has to pay the costs of the reshipment of the used packaging material, as far as there are not existing other special agreements with the customer.
§ 11 Disclaimer
Claims for damages of the buyer against us and our assistants, which arise from culpability at conclusion of contract, positive violation of contract and unlawful act are excluded, as far as there is no premeditation or gross negligence. .The amount of the claims for damages are limited to the typically occurring damages.
§ 12 Reservation of proprietary rights
We reserve us the ownership of our delivered goods until their entire buying prize has been payed respectively until the possibly handed over checks and/or bills of exchange have been cashed, as well as until all arisen and future claims are balanced, including the interest and costs arisen from the business relations between us and the buyer and his allied companies.
The reserved property is considered on open accounts as security for our balance claim.
The processing of the delivered goods in accordance with §§ 947-950 BGB are regarded to be performed in our mandate, however without cost to us, with the consequence that we will become the owner of this semi-finished and finished product on this way. As far as a connection or a mixture with foreign goods will take place, we will become partial co-owners in the same proportion, which is represented by our delivered goods. The buyer stores the completely or incompletely manufactured semi-finished or finished products, made out of our sent goods, on our behalf. The new thing which arises by processing will be in effect, in the specified extent, a provisional good in the purpose of this provision. The buyer is allowed to sell the provisional good only in the context of the usual business traffic. He is not allowed to pawn the provisional goods, to transfer them as a security, or to dispose thereof in any other way. He must inform us immediately in the case of impairment of our rights, such as an imminent or already executed garnishment, the application for insolvency or the initiation of insolvency or composition proceedings. In the case of default or suspension of payment by the buyer, we are entitled to request the handing over of the provisional goods. Costs arising for us due to interventions against third parties shall be assumed by the buyer.
In the case of selling the reserved goods the proceeds shall take their place. The buyer transfers furthermore to us the occurred purchasing price demand on the occasion of selling the provisional goods, namely in the case of a combination or a mixture with external goods in the specific proportion, in which our goods are represented in the total amount of sold goods. The names of the buying price debtors must be disclosed to us at our request, and according to this regulation, the cessioned demands must be named in an exactly number-corresponding way, the cessions must be indicated to the respective debtor, as well.
The buyer is obliged to keep the provisional goods ensured at all times against the usual risks and to attest us this insurance on our demand. The buyer assigns thereby his possible insurance claims against us.
If the worth of the assurance given to us tops the guilt of the buyer with more than 20 % in the books, than we are obliged, at the request of the buyer, to release the assurance which was made available to us. We choose the assurance that is to be released.
If in the case of a shipment to a foreign customer the effectiveness of the above named reservation of the property rights depends on an additional measure that must be taken (such as Registration or the like), then the buyer has to arrange this measure on his costs. If in the buyer's country the reservation of the property rights is not accepted in any case, then the buyer is obligated to provide us a corresponding security interest regarding the delivered goods.
§ 13 Export clause
With the exception of the commerce between the member states of the European Community, the export transactions require our written consent.
§ 14 Offer
Offers are for us non-binding and have to be submitted free of charge.
All offers which are destined for us are limited on 12 weeks, as far as there are not explicitly named other time limits.
§ 15 Prices
The price declared within the order is binding and incudes the free shipment to the destination address. The packaging costs will only than be compensated, when an explicit agreement has been made thereof. The legal value added tax has to be declared separately.
§ 16 Payment, prohibition of assignment
Payment occurs on the basis of regular commercial invoice, which must contain our order number and the order date, with reservation of later accounting control
within 10 days with 3% cash discount
or within 45 days after receipt of the invoice net, optional per check or per transaction.
The supplier can assign his claim against us only with our consent.
§ 17 Delivery time, default of delivery
The date and the period of delivery which are declared in our order are mandatory and fixed and are to be understood as the time of arrival at the destination address.
In the case of default of delivery we are entitled to demand a lump sum for the delay damage, amounting 1 % of the delivery value per completed week, however not more than 10 %. Further statutory claims are reserved.
§ 18 Drawings, Drafts, Samples
Drawings, drafts, samples etc., which we leaved to the supplier with the purpose of submitting the quotation or processing an order, remain our property and their usage for other purposes is not allowed, as well as their replication. Making this drawings, drafts and samples accessible to third parties is also not allowed.
§ 19 Orders
The supplier is liable to us for the loss and the damage of ordered items. The materials ordered by us are processed on behalf of the Adolf Fenz GmbH and remain on each step of the processing event our property. If the ordered items are processed together with other items, we will get co-owners of the newly manufactured item.
Ordered materials, our joint ownership, goods payed by us in advance as well as tools, which where payed by us in whole or in part, are to be insured by the supplier, kept separately and also designated as property of the Adolf Fenz GmbH.
§ 20 Investigation of deficiencies
We are exempted from the obligation of the immediate notice of defects by § 377 HGB. This exemption is not valid for exposed deficiencies. In this case our notice of defects will be in time, when we will raise it within a time limit of 10 days after receiving the goods.
§ 21 Liability
As far as our clients rise liability claims against us, especially regarding the product liability law, we are entitled to take recourse against our supplier in that extent, in which the supplier is responsible for the one or more occurred damages. This damage comprises also the costs of a preventive recall program. The supplier will furthermore insure himself against all risks regarding the product liability, including the risk of recall programs in an appropriate extent and will show us the insurance policy on request.
§ 22 Warranty of the supplier
The consignments and the performances must comply in each case with the valid safety and accident prevention instructions, furthermore with the required approvals, with the DIN standards as well as with the VDE and VDI standards. The supplier is liable for each mistake. We are entitled to all legal claims under warranty in full. Independently of this, we are entitled to demand from the supplier at our choice the removal of defects or compensation delivery. In this case the supplier has to bear the expenses which are necessary for the removal of defects or the compensation delivery. The right of compensation remains reserved.
Wertheim, in December 2013