General Terms and Conditions of Sale1. Scope; Deviating agreements
1.1 The following General Terms and Conditions of Sale ("GTC") apply to all purchase and delivery agreements concluded by us with our customers (hereinafter "Purchaser"), including any ancillary agreements, provided that the Purchaser is an entrepreneur and enters into the contract in pursuance of a commercial or self-employed professional activity within the meaning of Section 14 of the German Civil Code (“BGB”).
1.2 Deviating, conflicting or supplementary general terms and conditions of the Purchaser shall not become part of the contract even if we are aware of them, unless their validity is expressly agreed.
1.3 Unless the parties agree otherwise, the GTC shall also apply to future contractual relations between the parties.
2. Conclusion of Contract
2.1 Nuestras ofertas, incluidos los precios de venta indicados en nuestras listas de precios, son siempre sin compromiso. Los pedidos del cliente constituyen una oferta vinculante del cliente durante 14 días. El contrato queda perfeccionado con nuestra confirmación del pedido (también por correo electrónico) o con el suministro de los artículos pedidos.
2.1 Our offers, including the sales prices stated in our price lists, are always non-binding. Orders placed by the Purchaser constitute a binding offer to which the Purchaser is bound for 14 days. The contract is concluded by our order confirmation (also by e-mail) or by delivery of the ordered items by us.
2.2 Our order confirmation is decisive for the content of the contract. Orders for items listed in the sales catalogue shall not be confirmed separately. In the event of a delivery without a separate order confirmation, our delivery note shall deemed to be the order confirmation. Verbal declarations are always non-binding.
2.3 The Purchaser is obliged to accept and pay for an excess delivery in terms of quantity if he/she orders one or more custom-made products, provided that this excess delivery is in accordance with commercial practice and business circumstances and does not exceed the order volume by more than 5%.
3. Product documentation
Documents, illustrations, drawings, information on performance, weights and measurements in our catalogs, product sheets and on the website are made as accurately as possible, but only state approximate values and do not represent quality specifications of the goods, unless they are expressly stated to be binding. We reserve the right to make improvements and dimensional changes to the extent customary in the trade and reasonable for the Purchaser.
4. Prices, terms of payment and prohibition to offset
4.1 Deliveries shall be made on the basis of the agreed prices or the price lists applicable at the time the contract is concluded. Unless otherwise agreed, prices are net prices in euros "ex works" (Incoterms 2020) in Am Spakenberg 45, 21502 Geesthacht, Germany, without packing excluding statutory value-added tax and any other taxes and fees incurred for the execution of the order.
4.2 Unless otherwise agreed in writing by the parties, all invoices for deliveries (or other services) shall be paid within 14 days of the invoice date without deduction. The receipt of the money in our account shall be decisive for the timeliness of payment. Field staff is only entitled to receive payment against receipt. Upon fruitless expiry of this period, the Purchaser shall be in default of payment.
4.3 If the delivery is made by "cash on delivery" shipping service, the invoice amount is to be paid directly to the shipping service provider upon delivery. The costs of this service shall be borne by the Purchaser. With the order, the Purchaser declares his solvency and willingness to pay and undertakes to ensure payment of the invoice amount to the shipping service provider upon delivery. If the Purchaser violates its obligation and the shipping service provider does not hand over the delivery due to the lack of solvency or willingness to pay, the Purchaser shall be in default of acceptance.
4.4 In the event of default of the Purchaser, we demand interest of 9 percentage points above the respective base rate of the European Central Bank. The right to assert higher default damages remains reserved.
4.5 In the event of default or suspension of payment by the Purchaser, we may demand immediate payment of our total claim irrespectively the agreed due date. In these cases we are also entitled to carry out outstanding deliveries against advance payment or provision of security and, if the advance payment under security is not made within two weeks, to withdraw from the contract without setting a new deadline. Further claims remain unaffected.
4.6 The Purchaser must raise objections to our invoices no later than 10 days after receipt of the invoice. If the Purchaser fails to notify us in due time, the invoice in question shall be deemed approved. We are obliged to make special reference to this effect on our invoices.
4.7 Offsetting with Purchaser’s counterclaims or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed, ripe for a decision or legally established.
5. Delivery and consequences of delay in delivery
5.1 The specified delivery times and dates are only approximate, unless they have been expressly agreed as binding.
5.2 Deliveries are made ex works (Incoterms 2020) in Am Spakenberg 45, 21502 Geesthacht, Germany.
5.3 If the dispatch of the delivery is agreed with the Purchaser, we may freely choose the mode of dispatch insofar as this is customary in business and the costs correspond to the typically foreseeable costs. If the packaging or the delivered goods as such show transport damages, this must be reported immediately and in particular also to the transport company.
5.4 We are entitled to partial deliveries and partial services as is customary in the trade, unless the partial delivery or service is unreasonable for the Purchaser or is contractually excluded.
5.5 Insofar as the Purchaser has to set a reasonable grace period in order to assert rights against us, this grace period shall be at least two weeks.
5.6 In the event of delay in delivery or impossibility, we are liable for claims for damages in accordance with clauses 6 and 7. The damages for delay to be compensated by us in accordance with clauses 6 and 7 shall be limited to 0.5% of the value of the delayed delivery or partial delivery for each completed week, but not more than 5% of the value of the delayed (partial) delivery.
5.7 In cases of force majeure or other events not foreseeable at the time of the conclusion of the contract that we were unable to prevent despite reasonable care in the circumstances of the individual case, regardless of whether this occurs with us or with our suppliers or subcontractors (reservation of self-supply), such as pandemics, epidemics, operational disruptions, war, transport delays, measures in the context of industrial disputes, in particular lawful strikes and lockouts, these delivery periods/deadlines shall be extended by the duration of the hindrance and a reasonable start-up period. If the impediment is likely to be permanent, we shall be entitled to refuse delivery of the items in whole or in part. We will inform the Purchaser immediately of the non-availability of the service. If such hindrance prevents performance for more than four months, both parties may withdraw from the contract. In this case, the Purchaser shall not be entitled to any claims for damages against us. Any statutory rights of withdrawal shall remain unaffected.
6.1 We warrant the flawless manufacture of the goods delivered by us in accordance with the agreed technical delivery specifications. We do not assume any guarantees unless they are expressly agreed.
6.2 The Purchaser must carefully inspect the delivered goods immediately after their arrival at the place of destination, even if samples or specimens have been sent beforehand. Obvious defects must be reported to us in writing without delay, at the latest seven working days after delivery. Hidden defects must be reported to us in writing immediately, at the latest 7 working days after their discovery. If the defect was already recognisable to the Purchaser at an earlier point in time during normal use, this earlier point in time shall be decisive for the beginning of the period for notification of defects.
6.3 At our request, the rejected goods shall be returned to us carriage paid. In the event of a justified complaint, we shall reimburse the costs of the most favourable shipping route; this shall not apply if the costs increase because the goods are located at a place other than the place of the intended use.
6.4 In the event of a justified and timely notice of defect, we shall first provide subsequent performance by repair or replacement delivery ("Subsequent Performance") at our discretion. Subsequent Performance shall take place at the place of the original delivery; it shall be deemed to have failed after three unsuccessful attempts at the earliest. Replaced parts shall become our property.
6.5 Warranty claims shall not be considered for defects caused by unsuitable and improper use by the Purchaser or third parties, normal wear and tear, faulty or negligent handling. If the quality of the delivered items deviates only insignificantly from the agreed quality, the Purchaser shall only be entitled to reduce the purchase price. The warranty shall not apply if the Purchaser modified the delivered item or let it modify by a third party without our consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the Purchaser shall bear the additional costs of remedying the defect resulting from the modification.
6.6 The Purchaser shall only be entitled to claims for damages due to defects insofar as our liability is not excluded or limited in accordance with clause 7. Further claims or claims other than those regulated in this clause 6 due to a defect are excluded.
7. Liability, Limitation
7.1 We shall only be liable for gross negligence and intent as well as in the event of a breach of material contractual obligations, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the Purchaser may regularly rely ("Cardinal Obligation").
7.2 In the event of a slightly negligent breach of a Cardinal Obligation, our liability shall be limited to damage foreseeable at the time of conclusion of the contract and typical for the contract. We shall not be liable in the event of a slightly negligent breach of contractual obligations which are not Cardinal Obligations.
7.3 The above limitations or exclusions of liability shall not apply in the event of fraudulent concealment of defects, the assumption of a guarantee or a procurement risk, for liability based on the Product Liability Act and for bodily injury (injury to life, body or health). This does not imply a change in the burden of proof to the detriment of the Purchaser.
7.4 Insofar as our liability is limited or excluded, this shall apply to the same extent in favour of our executive bodies, legal representatives, employees and other vicarious agents.
7.5 With the exception of tort claims, claims for damages by the Purchaser for which liability is limited under this provision shall become statute-barred one year after the statutory commencement of the limitation period. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
8. Retention of title
8.1 The following retention of title serves to secure all of our existing current and future claims against the Purchaser from the ongoing business relationship existing between the parties, including all current account balance claims (hereinafter "Secured Claims").
8.2 All goods delivered by us remain our property until full payment of all Secured Claims. Goods and the goods taking their place covered by the retention of title according to the following provisions are hereinafter referred to as "Reserved Goods".
8.3 In the event of processing, combining and mixing of Reserved Goods by the Purchaser with goods of other origin to form a new item or a mixed asset, we are entitled to joint ownership thereto, in the ratio of the value of the Reserved Goods (final invoice amount including value-added tax) at the time of delivery to the value of the other processed, mixed or combined goods (final invoice amount including value-added tax) at the time of processing, combining or mixing. The co-ownership interest shall be deemed Reserved Goods pursuant to clause 8.2. In the event that no such acquisition of ownership should occur to us, the Purchaser hereby assigns its future ownership or – in the ratio mentioned above – its co-ownership to the newly created item or to the mixed asset to us as security in advance. We accept this assignment.
8.4 If the Reserved Goods are joined or inseparably mixed with other items to form a single item, and if one of the other items is to be considered the main item within the meaning of Section 947 BGB, the Purchaser hereby assigns to us in advance, insofar as the main item belongs to him, pro rata co-ownership of the single item in the ratio of the value of the Reserved Goods (final invoice amount including value-added tax) at the time of delivery to the value of the main item (final invoice amount including value-added tax). We accept this assignment. The co-ownership interest shall be deemed Reserved Goods pursuant to clause 8.2.
8.5 The Purchaser shall store the Reserved Goods for us free of costs. The Reserved Goods may neither be pledged to third parties nor assigned as security before full payment of the Secured Claims.
8.6 The Purchaser is obliged to treat the Reserved Goods with care.
8.7 In the event of seizure, confiscation or other dispositions or access by third parties to the Reserved Goods, the Purchaser undertakes immediately to disclose our ownership and to inform us in writing in order to enable us to enforce our property rights, in particular by bringing an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO). The Purchaser shall bear all judicial and extrajudicial costs that must be incurred for rectifying the access and the replacement of the Reserved Goods if they cannot be collected from third parties.
8.8 The Purchaser is entitled to sell the delivered Reserved Goods in the ordinary course of business, if it is ensured that his claims from the resale are transferred to us in accordance with clauses 8.9 to 8.11.
8.9 In the event of resale of the Reserved Goods, the Purchaser hereby assigns any resulting claim against the Purchaser to us as security, as well as those claims which take the place of the Reserved Goods or otherwise arise with respect to the Reserved Goods, such as insurance claims or tort claims from loss or destruction, including all current account balance claims. We accept this assignment.
8.10 If the Purchaser sells the Reserved Goods together with other goods not supplied by us, the assignment of the claim from the resale only applies in the amount of the value of our Reserved Goods (final invoice amount including value-added tax) at the time of delivery. In the event of the sale of goods in which we hold co-ownership in accordance with clause 8.3 or 8.4, the assignment of the claim applies in the amount of this co-ownership interest.
8.11 If there is a current account relationship between the Purchaser and its customer pursuant to Section 355 of the German Commercial Code (HGB), the claim assigned to us by the Purchaser in advance also relates to the acknowledged balance, and in the event of the insolvency of the Purchaser, to the then existing "causal" balance.
8.12 The Purchaser is revocably entitled to collect the claims resulting from the resale in accordance with clauses 8.9 to 8.10. We are only entitled to revoke the collection authorisation in accordance with clause 8.13.
8.13 If the Purchaser fails to fulfil its obligations under this Agreement with us, in particular if it is in default of payment, then
– we may prohibit the resale, the processing of the Reserved Goods as well as their mixing or combination with other goods;
– we may withdraw from this contract in accordance with the general rules of withdrawal of Section 323 BGB; in case of withdrawal, the right of the Purchaser to possession of the Reserved Goods lapses and we can demand the surrender of the Reserved Goods; we are entitled after consultation with the Purchaser to enter the business premises of the Purchaser and to take possession of the Reserved Goods at the expense of the Purchaser and, without prejudice to the payment and other obligations of the Purchaser, to recover them as best possible by way of private sale or by way of auction; the recovery proceeds will be credited to the Purchaser's liabilities after deduction of the costs incurred; we will pay out any remaining surplus to it;
– upon request, Purchaser shall inform us about the names of the obligors of the claims assigned to us so that we can disclose the assignment and collect the claims; all proceeds due to us from assignments must immediately be forwarded to us upon receipt if and as soon as our claims against the Purchaser are due;
– we are entitled to revoke the direct debit authorisation issued.
8.14 If the realisable value of the securities existing for us exceeds our claims by a total of more than 10%, we shall release securities of our choice at Purchaser‘s request.
9. Place of performance, applicable law and place of jurisdiction
9.1 The place of performance for all delivery and payment obligations is Geesthacht, unless otherwise stated in the order confirmation.
9.2 German law applies under the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
9.3 The place of jurisdiction for all disputes arising from or in connection with the business relationship between the parties is Hamburg, provided the Purchaser is a merchant or has no general place of jurisdiction in Germany. However, we reserve the right to sue the Purchaser at its general place of jurisdiction. Statutory provisions regarding exclusive jurisdiction shall remain unaffected.
10. Final Provisions
10.1 The legal relationship between the Purchaser and us shall be governed solely by the contract concluded in writing, including these GTC. This fully reflects all agreements between the contracting parties at the time of the conclusion of the contract. Oral or written agreements or conditions made prior to the conclusion of the contract as well as other pre-contractual correspondence and proposals shall be superseded by this contract unless it is expressly stated in each case that they shall continue to be binding.
10.2 Amendments and supplements to the contract, including this written form clause, must be made in writing to be effective. The same applies to ancillary and additional agreements.
10.3 Should a provision of the contract be or become invalid in whole or in part, the invalidity of this provision shall not affect the validity of all other provisions of this contract. The invalid provision shall be replaced by a legally valid provision which, from an economic point of view, comes as close as legally permissible to the regulatory purpose pursued by the invalid provision.
LEUCHTTURM GRUPPE GMBH & CO. KG
Am Spakenberg 45, 21502 Geesthacht, Germany
Limited partnership headquartered in Geesthacht (local court: Lübeck, HRA 006 GE)
LLC: Leuchtturm Gruppe Management GmbH (local court: Lübeck, HRB 282 GE)
Managing Directors: Kurt Stürken, Axel Stürken, Max Stürken, Philip Döbler