8:00 AM - 5:00 PM
General Terms & Conditions of Messrs.
Lietmann GmbH & Co. KG
Maschinen- und Sonderanlagenbau
The following General Terms & Conditions apply preferentially to all supplies and services (vis-à-vis non-consumers pursuant to § 310 German Civil Code); otherwise the provisions of the German Civil Code (BGB) and the German Commercial Code (HGB) shall apply. We do not accept opposing or other customer terms and conditions that differ from our own General Terms & Conditions, unless we have agreed to do so in writing. Our General Terms & Conditions shall apply even if we make a supply unconditionally to a customer, knowing that his business terms differ from ours, if he accepts such supply. These conditions apply to any future business transactions without having to be reasserted each time.
II. Signature of Contract and Scope of Supply
1. All offers we submit for supplies and services are without commitment. Contracts and any other agreements entered into are only valid after they have been confirmed in writing. Where our staff give verbal undertakings or assurances that are in excess of the written terms of agreement, they always require our confirmation in writing in order to be legally binding.
2. Illustrations, dimensions, weights, performance details or other documents forming part of the offer such as plans, drawings, technical data etc. expressly do not constitute assured properties, characteristics or warranties, unless we have entered into a separate, written agreement in relation thereto. We reserve the right to make changes to the design, the materials, specification and type of construction, even after having provided our order confirmation, if such changes are either technically necessary, not in any way disadvantageous for the customer, or if we would otherwise have to accept intolerable delays, cost increases etc., so that we shall be entitled to use equivalent other materials. However, any changes must be reasonably acceptable for the customer.
3. We shall retain the title and the copyright in any cost estimates, drawings and other documents, in particular planning documentation. These must not be disclosed to third parties.
4. Contracts are entered into subject to ourselves being supplied correctly and on time by our own suppliers. This only applies if we are not responsible for the non-delivery of a supply, especially if we have entered into a back-to-back supply agreement with our supplier. Whatever the circumstances, we undertake to notify clients of any non-availability without delay and to reimburse any corresponding payment on account immediately.
5. Partial shipment and provision of services in part shall be permitted.
III. Prices, Payment and Objections
1. Prices are agreed as prices in Euro; unless otherwise agreed, they are ex works prices, inclusive loading at the factory, but exclusive of packaging and, where appropriate, any value added tax at the rate applicable for the time being. Unless different terms have been agreed in writing, payment for each supply is due in cash, without any deductions and delay, after the date of the invoice.
2. Customers shall only be entitled to the right to withhold payments or to offset any counter-claims where these are either undisputed or have been legally established.
IV. Delivery Periods
1. The delivery period starts at the time at which all technical questions have been resolved jointly with the customer, on the basis of the information provided by the customer. The delivery date shall be deemed to have been met if the subject of the supply has left the factory before the expiry of the delivery period, or if notice of readiness for shipment has been given.
2. Customer requests for changes or additions will lead to the delivery period to be extended accordingly. The same applies in the event of unforeseen events for which we are not responsible, such as, for example, labour disputes or interruptions of operations. The same applies if such delays are suffered by a subcontractor.
3. Compliance with the agreed delivery period presupposes that the customer meets his contractual obligations.
4. In the event of a delivery delay for which we are responsible, the customer, having sent us a written reminder, must set a reasonable period of grace in which he must indicate that he will refuse to accept the subject of contract after this period of grace has expired. The customer shall only be entitled to withdraw from the contract by written notification after the period of grace has expired without success, to the extent we are responsible for breaching the contract; this shall be the assumption in the event of malicious or grossly negligent breach, and where the customer provides evidence to show that he is no longer interested in receiving the supply/service. In the event of withdrawal from the contract, he shall not be entitled to compensation. Whatever the case, our liability is limited to the foreseeable, typically incurred loss.
V. Passing of Risk
1. The risk attached to shipments always passes to the customer at the factory’s place of loading, even in the event of partial shipments, or in cases where we have undertaken to provide certain other services. Shipment is effected at the risk and cost of the customer. Choosing the transport route and the means of transportation is incumbent upon us.
2. Should shipment be delayed for reasons within the customer’s responsibility, the risk passes to the customer as from the date on which he has been notified of readiness of the supply for shipment. Notwithstanding his rights from Article VII., the customer is required to accept goods, even if they show insignificant defects.
VI. Retention of Title
Until all payments due in respect of any business transactions between Lietmann and the customer have been settled in full, the goods supplied shall remain Lietman’s property. Addition of new payment claims to a current account and acceptance of the balance shall not prejudice retention of title. Payments shall only be deemed made on receipt of any moneys by Lietmann.
Should goods supplied subject to retention of title be incorporated into products not in our ownership, we shall acquire joint ownership in the new product. Our part title shall be for the value of of our goods (amount of our invoice incl. VAT) as part of the total value of the newly produced goods at the time of their incorporation. In all other respects the conditions applicable to goods supplied subject to retention of title shall also apply to any product in which they are incorporated.
We undertake to release any sureties to which we are entitled on the customer’s request, subject to the realisable value of such sureties exceeding the amount of any claim to be secured by more than 15%. It is for us to select the surety to be released.
1. Goods supplied must by examined in accordance with the statutory provisions of § 377 HGB to verify completeness and to establish any shortcomings; obvious defects and defects that should be identifiable by proper inspection must be notified by the supplier without delay and, wherever possible, in writing, and in any case promptly after discovery. Any such notification must indicate the defective part, the nature of the damage and an accurate description of the defect. Breaches of these requirements will invalidate our guarantee obligations.
2. The customer shall bear any expenditure resulting from a need for additional performance, if this becomes necessary to provide the contractual services at another place than the agreed place of performance.
3. We shall be liable for defects in our supply as follows: At our discretion, we either effect a guarantee repair, or we make a replacement supply. Should a repair fail at least twice, the customer shall be entitled, as a matter of principle, to claim a reduction of the purchase price. Within the framework of the applicable statutory provisions, the customer may only withdraw from a supply contract if there is a significant defect, and if we are in breach of duty. In the event of withdrawal, payment of damages in addition is excluded. In the event of breach of duty, after a request to do so, the customer must, within a reasonable period of time, indicate in writing whether he is withdrawing from the contract on grounds of breach of duty, or whether he insists on supply. Should the customer claim compensation after a failed attempt to heal a breach, our liability shall be limited to the typically foreseeable contractual damage in cases of slight negligence by our representatives or agents, unless there is a breach of cardinal duties. We shall not be liable for slightly negligent breaches of minor contractual obligations. Construction services are excluded from withdrawal; this shall be without prejudice to any other rights.
4. We shall not be liable for damage caused by inappropriate or improper use. In the same way in which our limitation of liability does not apply to physical injuries, loss of life or health, our limitation of liability does not extend to claims under the Product Liability Statute.
5. Neither under nor oversupply shall constitute a defect, nor does incorrect supply. In such cases we are merely required to make a further, correct supply on request. In respect of major components bought-in, we may assign our claims against the suppliers of such products to the customer. In that event, we shall only become liable if our customer, having been notified of the supplier of a bought-in component, has been unable to make a successful liability claim against that supplier after reasonable attempts to do so. This applies in particular in cases in which the customer is suffering a defect due to a planning mistake for which we are not liable, but which does have an effect on our works.
6. If, in addition to ourselves, third parties that may or may not be legally connected with the customer are jointly with us responsible vis-à-vis the customer for shortcomings/defects, and if the customer chooses to make a claim solely against us, he now already assigns whatever claim he may have against such third parties to us.
7. The statute of limitation applicable to claims and rights in respect of supplies and services that do not constitute construction services is one year.
8. Any claim for damages must be legally made within a period of 3 months from the moment in time at which we have declined in writing to accept any liability.
VIII. Place of Jurisdiction and Place of Performance
The place of performance is Glandorf. The exclusive places of jurisdiction are the Local Court (Amtsgericht) at Iburg and the Regional Court (Landgericht) at Münster, if the customer is a registered merchant, a legal entity under public law or represents special public-law assets.
IX. Governing Law
German law shall prevail; the applicability of the UN Sales Convention (CISG) is expressly excluded.
Should any term or condition of these General Terms & Conditions be or become ineffective, the remaining terms and conditions shall not be affected.
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