General terms and conditions
The following conditions apply in respect of all deliveries and work performed by or on behalf of Johannes Lübbering GmbH, Lübbering Abrollsysteme e.K. and Luebbering (UK) Ltd.
Section 1 General application
Our deliveries and services are provided solely on the basis of the following terms and conditions; the general terms and conditions of the party contracting with us (hereinafter referred to as the contracting party) do form part of the contract, even if we have not expressly excluded these.
Section 2 Conclusion of contracts
- Our offers are subject to confirmation. An order placed by the contracting party constitutes a binding contractual offer from it.
- We are entitled to accept the offer to enter into the contract that is contained in the order of the contracting party within three weeks of receipt thereof. If we have not accepted the offer within this period, this constitutes a rejection of the offer to enter into the contract.
- The documentation enclosed with our offer, such images and technical drawings, are only approximate guides. They serve to describe and identify our offer but shall not form part of the contract. The contrary only applies, if we expressly describe the documentation included with the offer as binding. Unless something to the contrary has been expressly agreed, the images, drawings and any other documentation remain our property.
- An undertaking that the performance of our contractual obligations will have a certain quality or be suitable for a particular purpose as well as the furnishing of a guarantee is only binding if this is confirmed by us in writing.
Section 3 Confidentiality
- Each of the respective contracting parties undertakes to use all the documentation and information (including all samples, models and data) that it receives through the business relationship solely for the mutually intended purposes and to treat all such documentation and information with the same care as if it were its own and to keep them confidential, if the other contracting party describes them as confidential or has an obvious interest in keeping them secret.
- This obligation does not apply in respect of documentation and information that is generally known or that was already known to the recipient contracting party, without that party being obliged to keep it confidential, or that is thereafter received from a third party who is entitled to pass on the information, or that is developed by the recipient contracting party without making use of the confidential documentation or information of the other contracting party.
The recipient contracting party may also disclose such confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
Section 4 Prices and terms of payment
- Our prices are in euro excluding VAT, packaging, freight, postage and insurance unless the contrary has been agreed to in writing.
- If after the conclusion of the contract the costs are reduced or increased, in particular as result changes in the prices of materials, we reserve the right to adjust our prices accordingly. We will provide the contracting party with proof as to the nature and extent of a price increase on demand. If this adjustment results in the originally agreed price being increased by 20% or more, the contracting party is entitled to withdraw from the contract. This right must be exercised without undue delay after receiving notice of the increased price.
- We are entitled to demand that progress payments be made according to the value of the work that we have carried out.
- All amounts invoiced are due and payable, without deduction, within 10 days from date of invoice, unless something to the contrary has been agreed to in writing. Bills of exchange and cheques are not deemed to be payment in terms of the contract and are only accepted conditionally upon payment being made.
- While in default of payment, the contracting party is obliged to pay interest at a rate of 9 percentage points above the basic interest rate. We reserve the right to prove and claim damages in a higher amount in consequence of the failure to effect payment within the time agreed.
- The contracting party may only set off counterclaims that have been finally determined in law, are undisputed or have been admitted by us. A right of retention may only be exercised if the counterclaim arises from the same contractual relationship.
- If after the conclusion of the contract it becomes apparent that our right to payment is at risk due to the inability of the contracting party to render its performance, we are entitled to refuse to render our performance and to give the contracting party sufficient notice of having to effect payment against delivery or to provide security. If the contracting party refuses to do so or the notice period expires without being compliance, we are entitled to withdraw from the contract and claim damages.
Section 5 Delivery
- Our deliveries are EXW Herzebrock-Clarholz, Germany (Incoterms® 2010), unless something to the contrary has been agreed.
- In cases of force majeure or strikes, the estimated delivery date or deadline is extended by the duration of the delay caused by such circumstances. The same applies if the contracting party fails to fulfil any its obligations to cooperate in terms of the contract.
- If we fail to render our performance by the intended date or within the intended period, the contracting party must first give us notice in which it demands that we render our performance within a reasonable period specified by it. The contracting party may only withdraw from the contract once this period has expired. The requirement of such a notice for compliance only falls away if the contracting party has expressly made time of the essence and its interest in the continuation of the contract subject to our performance being punctual.
- We are only entitled to make partial deliveries if the contracting party can make use of the partial delivery within scope of the intended purpose of the contract, the delivery of the remaining goods is guaranteed and it is reasonable for the contracting party to take partial deliveries having regard to our respective interests.
Section 6 Passing of risk, default of acceptance
- In terms of the agreed delivery, EXW Herzebrock-Clarholz, Germany (Incoterms® 2010), the risk of destruction, damage or loss of the goods passes to the contracting party once the goods have been made available for collection at the factory in Herzebrock-Clarholz. At the request of the contracting party, we will load the goods at its expense and risk.
- To the extent required by the contracting party, we can arrange for transport insurance of the delivery; the contracting party determines the extent of the insurance and bears the costs thereof.
- In respect of work that we have performed, the risk passes to the contracting party upon acceptance thereof.
- If the contracting party is in default of acceptance or culpably breaches any of its other obligations to cooperate, we are entitled claim compensation for any damage that we have suffered in consequence thereof, including any additional costs incurred. If the contracting party is in default of acceptance for more than 3 days, we are entitled to dispatch the goods at the expense and risk of the contracting party. In the absence of a specific agreement, we will select the means of transport and the route.
Section 7 Acceptance
- The contracting party is obliged to accept the goods that have been duly manufactured in accordance with the contract.
- The work that we have performed is deemed to have been accepted 12 days after we have given notice of completion, unless the contracting party advises us in writing during this period that there are material defects in our work.
- The contracting party is only entitled to refuse acceptance insofar as the defects materially prevent the contractually intended use of the goods or, if no contractually intended use was specified, the normal use of the goods and not merely diminish their use to an insignificant degree. Insofar as the goods have defects that do not entitle the contracting party to refuse acceptance, acceptance is conditional upon the defects being remedied.
- Refusal of acceptance or conditional acceptance must be made in writing without undue delay, furnishing the details and a description of the defect.
- The use of items that we have serviced or repaired for purposes of production constitutes acceptance thereof.
Section 8 Warranty, service life guarantee
- The warranty period is one year from delivery or acceptance.
- Minor discrepancies between our contractual performance and the order confirmation in respect of colour, dimension and execution do not constitute defects that we are obliged to remedy. We reserve the right to make changes to the product due to technical progress, changes in the law or the replacement of components by equivalent parts. These changes do not constitute defects insofar as it is reasonable for the contracting party to accept them having regard to our interests, in particular that they do not affect the use the product for the contractually intended purpose.
- The contracting party is obliged to examine our delivery without undue delay for compliance with the contract. The contracting party is obliged to inform us in writing of any patent defects, which include short deliveries, without undue delay, failing which the validity of a claim in terms of the guarantee is excluded. We must be informed of any latent defects in writing within one week of the discovery of such defects. The contracting party bears the burden of proof in respect of all the requirements of a claim, in particular to establish the defect, when the defect was discovered and that notice of the defect was delivered within the prescribed period.
- To the extent that we have guaranteed a certain service life in respect of our products, such a guarantee expressly excludes parts that are subject to wear, such as bearings, axles, nuts, output socket gears or bits. If the relevant product discloses a defect within the relevant period and within the guaranteed maximum number of cycles, the contracting party is obliged to prove that the defect occurred within this period, the guaranteed number of cycles was not exceeded and it has not used the product improperly as well as having complied with our operating and maintenance instructions. The guarantee of a certain service life is not intended to indemnify the contracting party in respect of any damage other than that to the delivered item itself.
Claims in respect of defects that arise within the above-mentioned period can only be made during this period.
- In the event of a defect, we reserve the right to determine manner of our supplementary performance. We are obliged to bear all the necessary costs in respect of our supplementary performance, in particular the transport costs, route charges, labour and material costs, insofar as these have not been increased by our performance having been sent to a different location than the place of performance.
- Depending on the nature of the performance, the defect and the other circumstances, we must be granted the opportunity of several attempts of supplementary performance. If the supplementary performance eventually fails, the contracting party is entitled to withdraw from the contract or to claim a reduction of the purchase price.
- We are not responsible for material defects that occur as a result of the inappropriate or improper use, the incorrect installation or commissioning by the contracting party or third parties, normal wear and tear, erroneous or negligent treatment or storage, nor for the consequences of the contracting party or third parties effecting improper alterations or repair work without our consent. This also applies in respect of defects that only diminish the value or the fitness of the goods to an insignificant degree.
- All other warranty claims, in particular claims for damages, depend exclusively on terms of the following provisions.
Section 9 Limitation of liability
- Save as provided for herein below, all the other and further claims of the contracting party against us are excluded. This is applies in particular to claims for damages arising from breach contract or wrongful conduct. Our liability for any damage, other than that to the delivered, repaired or serviced item itself, is accordingly excluded. In particular, we are not liable for loss of profits or any other pecuniary damages suffered by the contracting party.
- The above limitations of liability do not apply in respect of intentional or grossly negligent breaches of duty by our legal representatives, employees or other agents as well as in respect of culpable breaches of material contractual obligations. In respect of culpable breaches of material contractual obligations, our liability is limited to the reasonably foreseeable contractual damages - except in cases in which the conduct of our legal representatives or executive staff members was intentional or grossly negligent.
- Furthermore, the limitation of liability does not apply in cases in which liability is imposed by the German product liability laws for personal injuries or damage to property in respect of defects in the delivered goods used for private purposes. It also does not apply in respect injuries to life, limb or health and defects in respect of a guaranteed quality, if and insofar as the purpose of the guarantee was to protect the contracting party against damages, other than the damage to the delivered goods themselves.
- To the extent that we are nevertheless liable for damages, such liability is limited to those damages that we were able to foresee, or ought to have foreseen, at the conclusion of the contract as a possible consequence. In cases of ordinary negligence, our liability for damage to property and any consequential losses in respect thereof is limited to an amount of 5,000,000 euro in respect of each claim. This amount constitutes the sum insured in respect of our liability for civil claims in terms the insurance cover that we have obtained. The contracting party is entitled at any time to demand that we furnish it with a copy of the currently applicable terms of our insurance policy.
- Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, staff members, legal representatives and agents.
- To the extent that we provide technical information or advice that does not form part of our contractual obligations, any liability howsoever arising is excluded in respect thereof.
Section 10 Reservation of ownership
- Our ownership of the delivered goods is reserved until all the obligations arising from the business relationship with the contracting party have been fulfilled.
- The contracting party is obliged to treat the goods subject to the reservation of ownership with care; in particular, it is obliged to have these insured for their replacement value at its own expense against loss or damage by fire, water or theft. To the extent that maintenance and inspection work is necessary, the contracting party must perform this on time and at its own expense.
- The contracting party is entitled to process and sell the goods subject to the reservation of ownership in the ordinary course of business, provided that it punctually complies with its contractual obligations to us.
- If the contracting party breaches its obligations, in particular if it is in default of payment, we are entitled to withdraw from the contract and recover the goods after a failure to comply with a notice giving the contracting party an adequate period for performance; the legal provisions dispensing with the necessity giving of a notice period in certain circumstances remain unaffected. The contracting party is obliged to return the goods. We are entitled to withdraw from the contract if insolvency proceedings are instituted in respect of the assets of the contracting party. This is must be disclosed to us without any undue delay.
- Any work on or processing of the goods subject to the reservation of ownership is performed by the contracting party on our behalf. If the goods subject to the reservation of ownership are processed or inseparably combined with other goods that we do not own, then we acquire joint ownership of the new goods proportionate to the invoice value of the goods subject to the reservation of ownership in relation to the other processed or combined items at the time of the processing or combination. If our goods are combined with other movable items to form a unified thing or are inseparably mixed and the other thing is regarded as the primary thing, the contracting party transfers joint ownership to us commensurate with our interest, insofar as the primary thing belongs to it. The contracting party retains ownership or joint ownership on our behalf. Furthermore, the same terms as in the case of the goods subject to the reservation of ownership apply in respect of things created by processing or combination or mixing.
- As security for our claims, the contracting party hereby assigns all its claims and rights in respect of the sale or rental, if authorised, of the goods in which to we have a proprietary interest. We hereby accept the assignment. The same applies in respect of other claims that arise in lieu or in respect the goods subject to the reservation of ownership, e.g. insurance claims.
- We hereby authorise the contracting party, until revoked, to enforce the claims assigned to us in its own name. The authorisation may only be revoked if the contracting party is in default of payment.
- In the event that a third party seeks to execute a court order by attaching the goods subject to the reservation of ownership, the rights assigned to us or any other security, the contracting party is obliged to inform us immediately and provide all the necessary documentation for us to intervene. This is also applies in respect of any other impairment of our rights.
- If the value of the existing securities exceeds the secured claims by more than 20% in total, we are obliged at the request of the contracting party to release securities of our choice to this extent.
Section 11 Device and development costs
- Devices required for fulfilment of the order that are produced by ourselves or on our behalf remain our property irrespective of whether the contractual partner has paid, wholly or in part, any associated costs.
- Our unrestricted copyright on the products/solutions developed by ourselves shall remain unaffected by the contractual partner’s bearing of, wholly or in part, any development costs.
- Clauses 1 and 2 shall apply unless explicitly agreed otherwise in writing.
Section 12 Amendments and the written form
Any amendments or additions to these contractual terms must be in writing to be valid; this requirement also applies in respect of a waiver of the written form. With the exception of our managing director and authorised signatories, our employees are not authorised to conclude oral agreements that deviate from these contractual terms or the concluded contract.
Section 13 Place of performance and payment, applicable law, jurisdiction
- Unless something to the contrary has been agreed, the place of performance and payment is our principal place of business.
- The laws of the Federal Republic of Germany apply exclusively to this contractual relationship to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
- The place of jurisdiction in respect of all disputes is the court that has jurisdiction over our principal place of business. We are also entitled to institute action in the court that has jurisdiction over the principal place of business of the contracting party.
Herzebrock-Clarholz, 02. Dezember 2013