General Terms and Conditions LHG Leipziger Handelsgesellschaft für Werkzeuge, Verbindungstechnik und Betriebsbedarf mbH
Current as of March 2018
Section A General Regulations
- Our deliveries are made and services provided exclusively in accordance with the following General Terms and Conditions (GTCs). If there are any contradictions within these GTCs, the regulations of the following sections concerning the individual types of services and contracts take precedence over the general regulations under this section.
- These GTCs also apply to all future transactions between the Contracting Parties without this requiring any special additional reference. They also apply if we do not explicitly refer to them in later contracts, particularly if we unconditionally make deliveries or provide services to the Contracting Partner in the knowledge of the Contracting Partner’s conflicting or deviating terms and conditions.
- We hereby reject the inclusion of the Contracting Partner’s terms and conditions. We do not accept the Contracting Partner’s conflicting or deviating terms and conditions, even if we unconditionally execute the contract.
- All prices quoted by us are in euros. When invoicing in a foreign currency, the purchaser bears the exchange rate risk until payment is received.
- Unless a different term of payment has been agreed upon, our invoices are due for payment upon receipt and without deduction. After the due date specified on the invoice has passed, the customer is in default in accordance with Section 286 II (2) of the German Civil Code (Bundesgesetzbuch, BGB).
- If we, our sales representatives or our vicarious agents provide product or application consultancy or advice, this is done so to the best of our knowledge and is only binding if the consultancy or advice is given in writing. Advice does not release the Contracting Partner from carrying out the Contracting Partners own tests and/or attempts to determine whether the products are suitable for their intended use. The Contracting Partner also bears the risk of determining suitability for use if advice is given.
- Regardless of the legal grounds, our liability for damages or wasted expenditure is excluded unless the damages or wasted expenditure:
- have been caused by us or one of our vicarious agents through a culpable breach of a material contractual duty; or
- are the result of a grossly negligent or intentional breach of duty by us or one of our vicarious agents.
- We are only liable for damages or wasted expenditure caused by advice or information that is not to be paid for separately in the event of an intentional or grossly negligent breach of duty, insofar as this breach of duty does not constitute a material defect of the goods delivered by us in accordance with Section 434 of the BGB.
- Insofar as liability exists due to the culpable breach of a material contractual duty not due to gross negligence or intent on our part or on the part of our vicarious agents, our liability for the compensation for damages is limited to foreseeable, typically occurring damages. In this case, we are not liable for any of the Contracting Partner’s lost profits or for unforeseeable indirect consequential damages. The above limitations of liability apply equally to damages caused by gross negligence or intent on the part of our employees or agents. We are not liable for indirect damages to the Contracting Partner caused by third parties asserting claims for contractual penalties.
- The limitations and exclusions of liability do not apply insofar as there is liability under product liability law or if claims are asserted on the basis of injury to life, limb or health.
- The Contracting Partner only has a right to offset or a right of retention on the basis of undisputed or legally established claims or on the basis of claims that are ready to be ruled upon. This does not apply if the right to offset or the right of retention is asserted on the basis of claims from the same contractual relationship.
- The place of performance and the exclusive place of jurisdiction for all claims between us and merchants or legal entities under public law or special funds under public law is Leipzig, Germany. However, we have the right to bring a legal action against a contractual partner at the contractual partner’s legal court of jurisdiction.
- The law of the Federal Republic of Germany applies exclusively to the legal relationship between us and the Contracting Partner. The application of regulations on the international sale of goods (UN Convention on Contracts for the International Sale of Goods, CISG) and German international private law is expressly excluded.
- Should any one of the above provisions be invalid, partially invalid, or excluded by special agreement, the validity of the remaining provisions shall remain unaffected by this.
Section B Purchase agreements and deliveries
- In addition to the General Terms and Conditions under Section A, the terms and conditions of this Section B apply to purchase agreements and contracts for labour and materials between us and our Contracting Partners.
- Our offers to the Contracting Partner are non-binding. Only the order is considered to be a binding offer. This offer is accepted at our discretion by sending an order confirmation or by unconditionally providing the goods or services ordered.
- Information concerning quality and durability, technical data and descriptions in our product information, advertising materials or technical data sheets as well as information provided by manufacturers or their assistants within the meaning of Section 434 I (3) of the BGB are not guarantees of quality or durability with respect to the goods to be delivered by us unless the information is agreed upon under an individual contract.
- The prices agreed on upon conclusion of the respective contract apply, with particular reference to the prices quoted in the order confirmation. If a price is not explicitly given, the prices in accordance with our price list that are valid at the time the contract is concluded shall apply. The weights and quantities that we determine are key for calculating prices if the Contracting Partner does not object to them immediately after receiving the goods. In addition to these prices, the value-added tax applicable on the day of delivery in the respective statutory amount as well as the costs for the necessary packaging and shipping shall be added.
- The delivery times given are guidelines only, unless a binding delivery date has been explicitly agreed to in writing. Delivery deadlines are generally given subject to the Contracting Partner’s contractual cooperation.
- We are entitled to partial deliveries and services within the agreed-upon delivery and service times if this is reasonable for the Contracting Partner.
- If the purchaser wants goods to be transported to a third location, this must be agreed to separately in addition to the payment of the extra transport costs when the order is confirmed. Shipment/transportation is at the Contracting Partner’s own risk.
- The delivered goods shall remain our property until the purchase price and all other current or future receivables to which we are entitled from the Contracting Partner on the basis of the business relationship have been paid in full. However, the Contracting Partner is entitled to resell the goods in the ordinary course of business.
- The Contracting Partner assigns to us all receivables from the resale of goods delivered by us, together with all ancillary rights, in the amount of 110% gross of the value of the delivered goods with priority over the remaining part of the Contracting Partner’s claims to ensure the fulfilment of all purchase price claims and any other current or future receivables to which we are entitled from the Contracting Partner on the basis of the business relationship. We hereby accept this assignment. Provided that the Contracting Partner meets the Contracting Partner’s payment obligations to us, the Contracting Partner is entitled to collect the assigned claims.
- If goods delivered by us are defective, we are only obliged to repair or deliver goods free of defects (supplementary performance) at our discretion. If we are not prepared or unable to carry out supplementary performance, particularly if this is delayed beyond any reasonable deadline for reasons for which we are responsible, or if supplementary performance fails in any other way, the customer is entitled to withdraw from the contract or to demand that the purchase price be reduced.
- With respect to the sale of goods, the inspection and reporting obligations under Section 377 of the German Commercial Code (Handelsgesetzbuch, HGB) shall apply.
- The Contracting Partner’s claims based on defects in goods delivered by us or due to faulty services provided by us, including claims for compensation for damages and claims for compensation for wasted expenditure, become time-barred one year from the statutory start of the limitation period.
- The recall of goods delivered by us that are free from defects is excluded. This shall particularly apply to individual customer-related goods. If, by exception, we agree to the recall of goods that are free from defects, the purchase price shall only be credited to the extent that we determine that they can be fully reused. Actual costs, at least 20% of the invoice amount, shall deducted for the costs of inspection, preparation, reworking and repackaging.
Section C Hire
- In addition to the General Terms and Conditions under Section A, the terms and conditions of this Section C apply to hiring contracts between us and our Contracting Partners.
- We are obliged to allow the Contracting Partner to hire out the agreed hire item or a functionally equivalent hire item for the agreed-upon period. The Contracting Partner is obliged to only use the hire item as intended and to observe relevant accident prevention and occupational safety regulations as well as road traffic regulations.
- On the day of the agreed-upon start of the hire period, we shall provide the hire item to the Contracting Partner at our contractual branch. Delivery of the hire item to another location can be regulated at the cost and risk of the Contracting Partner by separate agreement.
- The hire item must be collected by 12pm on the day the contract begins. If the Contracting Partner does not collect the hire item at the start of the contract, this has no impact on the existence of the hire contract, the hire period and the obligation to pay the agreed hire fee. In this case, we are entitled to hire out the hire item to somebody else after a waiting period of 24 hours. Revenue generated this way is to be offset against the Contracting Partner’s debt. Alternatively, we may terminate the contract without notice after the waiting period has passed.
- If a fixed hire period has been agreed upon and the Contracting Partner wants an extension, the request must be made to us in writing at least 3 working days before the hire period expires. The Contracting Partner is not entitled to an extension of the hire contract.
- A handover report is created and signed by both Parties when the hire item is handed over to the Contracting Partner and when the hire item is returned to us. Any damage or defects found, the handing over of operating instructions and user manuals, fill levels, mileage etc. are to be recorded in the report. The reports are binding. If a Party cites circumstances that are not listed in the report, said Party bears the burden of proof for the existence of such circumstances.
- The agreed-upon hire fee plus additional costs (assembly, mounting, induction) and statutory value-added tax is payable in advance and immediately after receipt of the invoice, unless otherwise explicitly agreed to in the contract.
- The hire fee is based on an average period of use of up to 8 hours per calendar day for the hire item. If the period of use is exceeded, the hire fee increases by 1/8 of the agreed daily rate for each additional hour of use. This adjustment can be contractually excluded or adjusted.
- If a deposit has been agreed on upon conclusion of the contract, this must be paid as a cash deposit no later than the date on which the hire item is acquired. We do not invest the deposit amount and this amount does not earn any interest. The deposit secures the fulfilment of all of the Contracting Partner’s contractual obligations. The deposit is to be paid back to the Contracting Partner after all obligations under the hire contract have been fulfilled.
- The Contracting Partner is obliged to return the hire item to us on the agreed-upon return date, between 7am to 4pm on Mondays to Thursdays and between 7am to 1pm on Fridays, clean, properly refuelled and in a ready-to-use condition. If the hire item is returned incomplete, the return is deemed to have not taken place until we have received all of the missing parts. If the hire item is unexpectedly returned or returned not cleaned or refuelled, the Contracting Partner must bear the costs of any cleaning, servicing or fuelling.
- If the Contracting Partner does not return the hire item to us before the end of the hire period, this has no impact on the existence of the hire contract, the hire period and the obligation to pay the agreed hire fee.
- If the Contracting Partner does not return the hire item on time, the Contracting Partner owes compensation in the amount of the agreed daily rate plus VAT for each additional day commenced. Section 546 a of the BGB applies.
- The Contracting Partner must treat the hire item with the due care of an ordinary businessperson. In particular, the Contracting Partner is obliged to:
- only use the hire item for the agreed purpose and in accordance with the operating instructions that accompany the hire item;
- only have it connected and operated/driven/used by a trained specialist with the relevant operating/driving licence, and to observe local grounding and safeguarding regulations;
- protect the hire item against overuse of any kind and to protect it against disadvantageous weather conditions, property damage and theft; and
- ensure appropriate and proper maintenance and care of the hire item, especially before commissioning and regularly during the operation of the hire item, to check the fill levels of the operating materials (oil, coolant, frost protection, etc.) and, if necessary, to fill up using the product specified in the maintenance and operating instructions. An oil change is required for a long-term hire in accordance with the operating instructions. Diesel engines must only be run using diesel fuel (operation with heating oil is expressly prohibited).
- The Contracting Partner is required to notify us of any damage, defects and malfunctions with respect to the hire item without undue delay. The Contracting Partner or third party is not entitled to independently carry out repairs on the hire item.
- Upon request, the Contracting Partner shall notify us of the current place of use or location of the hire item without undue delay. If a specific application or location has been agreed upon, the Contracting Partner is not entitled to move the hire item to another location without our written consent.
- The Contracting Partner shall ensure that the sign/label reflecting our ownership on the hire item can be seen at all times and is neither covered nor removed. Otherwise, the Contracting Partner shall notify us of this immediately. The Contracting Partner assumes the obligation to ensure public safety with respect to the hire contract and all accessories for the duration of the hire contract up to the date on which the hire item is returned. The police must be notified if the hire item is involved in an accident or is lost.
- In the event of a defect in the hire item, we are initially entitled to remedy it by repairing it or by delivering an equivalent replacement item. The Contracting Partner may only claim compensation for damages due to a defect if we are responsible for the defect, the defect significantly affects usability, and we have been given a reasonable period to remedy the defect, but this has passed to no avail. If the Contracting Partner is aware of a defect in the hire item when the contract is concluded, the Contracting Partner is only entitled to defect-related rights if the Contracting Partner reserves such rights on acceptance. If the Contracting Partner is not aware of the defect due to gross negligence, the Contracting Partner is only entitled to the defect-related rights if we fraudulently concealed the defect. If the hire item only shows a defect in the course of the hire period or if a measure is required to protect the hire item against an unforeseen danger, the Contracting Partner must notify us of this in writing immediately. The same shall apply if a third party claims a right to the item. If the Contracting Partner fails to provide such a notification, the Contracting Partner is obliged to compensate us for any resulting damage. Insofar as it is not possible for us to remedy the defect as a result of the failure to provide such a notification, the Contracting Partner is not entitled to any defect-related rights.
- We are entitled to terminate the hire contract for good cause without notice. In particular, good cause is present if the Contracting Partner significantly endangers the hire item by failing to provide the care to which the Contracting Partner is bound, leaves it with a third party without authorisation, moves it to a location without authorisation or moves it to a location other than that specified in the contract, or if the Contracting Partner is in default of the hire fee or the deposit. If good cause exists when a duty is breached under this hire contract, termination is only permitted after a reasonable deadline set to remedy the situation expires to no avail. Such a deadline is not required if it obviously shows no promise of success or if there are facts that suggest that we cannot be reasonably expected to continue the contract until the notice period has passed, taking into account all of the circumstances relating to the individual case and after weighing the interests of both Contracting Parties.
- The Contracting Partner is neither entitled to sub-hire the hire item nor to assign rights from this contract to a third party nor to grant third parties rights to the hire item of any kind.
- Should a third party assert rights to the hire item through attachment, seizure or similar procedures, the Contracting Partner is obliged to notify the third party of our position as owner and to notify us of the processes without undue delay.
Section D Repairs/Maintenance
- In addition to the General Terms and Conditions under Section A, the terms and conditions of this Section D apply to repair and maintenance orders.
- If the expected repair costs are more than 50% of the current manufacturer’s list price of the item to be repaired, the Contracting Partner shall be notified of this. The Contracting Partner can decide whether or not the Contracting Partner still wants the repair carried out. If the repair order is cancelled, the Contracting Partner is required to pay compensation corresponding to the previous expenditure and shall receive the unrepaired device in its current condition (possibly also disassembled).
- If, during the repair, it is found that other services or services different to those offered are required for the repair, we will notify the Contracting Partner and suggest an arrangement for compensation.
- Information about repair periods is based on estimates and is only binding if a fixed date for completion has been explicitly agreed. An agreed completion date will pass if changes in performance within the meaning of point 3 become necessary. If we feel hindered with respect to properly providing the service, we shall notify our Contracting Partner without undue delay. Execution periods will be extended if the hindrance is caused by a circumstance arising from the risk area of our Contracting Partner or by force majeure or other circumstances that we are unable to avoid. The completion date shall be postponed to an extent that corresponds to the duration of the hindrance.
- We shall notify our Contracting Partner when the repair has been completed. The Contracting Partner is obliged to collect the repaired item within a period of 1 day unless delivery of the repaired equipment has been agreed under an individual contract. Services must be formally accepted on collection. If the Contracting Partner is more than 3 days late with respect to acceptance or collection, we are entitled to store the contractual object at the Contracting Partner’s expense. The Contracting Partner bears the risk of accidental loss or deterioration during the delay.
- We generally carry out repairs on our premises. The Contracting Partner shall organise transportation to us and collection from us. If we provide transportation under an individual special agreement, this is done at the expense and risk of the Contracting Partner, even if transportation is provided using our vehicles.
- We do not insure items handed over by the Contracting Partner for repair/maintenance against fire, theft, transportation and storage damage, etc. These risks are to be covered by the Contracting Partner or are only covered by us through individual insurance at the Contracting Partner’s expense by written agreement on conclusion of the contract.
- If, by exception, it is explicitly agreed that repair and maintenance work is to be carried out on the Contracting Partner’s premises or where the object to be repaired is located, the Contracting Partner shall support us to the extent necessary and at the Contracting Partner’s own expense. If necessary, assistants and operating staff must be made available free of charge. The Contracting Partner shall ensure that repair work can start immediately after repair staff have arrived. Payment is made for repair staff downtime and waiting periods in addition to the agreed fee. The Contracting Partner shall observe relevant occupational safety regulations in order to protect the repair staff. The repair staff must be notified of any special safety regulations that must be observed.
- To the extent it can be reserved, ownership of installed spare parts and accessories shall remain with us until our invoice has been paid in full. The entrepreneurial lien to which we are entitled can also be asserted on the basis of claims from work previously carried out, earlier deliveries of spare parts and other services, insofar as they relate to the object of the repair, as well as undisputed or legally established claims from the business relationship with the Contracting Partner.
- The Contracting Partner is responsible for disposing of old parts and other items that can no longer be used. A separate contractual agreement can be made for professional disposal by us and the remuneration for this.
- Our liability as a result of defects is limited to errors within the context of the order placed. We are not liable for processed parts of the repair item being free from defects and being functional.
- Warranty claims become time-barred after one year, which starts on acceptance.
Section E Servicing, Checks, Regular Inspections
- In addition to the General Terms and Conditions under Section A, the terms and conditions of this Section E apply to the regular maintenance and inspection of equipment contractually specified in an inventory list.
- The object of the service contracts and the agreed-upon remuneration only include servicing, checks and regular inspections. Maintenance services, troubleshooting or repairs, including the materials required for this, are not part of the contract. Such services are to be commissioned separately and are billed separately.
- We shall bill for the agreed-upon remuneration after each regular inspection. The fee is due on receipt of invoice.
- The Contracting Partner shall receive a customer service report after each check has been completed. This is also used as proof of performance. Objections to the scope of the services provided must be made within 7 days of receipt.
- The Contracting Partner is obliged to check service and maintenance work immediately after completion and to report any defects without undue delay. The guarantee period for defects is 1 year. It starts on completion of the respective service.
- Service contracts are concluded for an indefinite period of time. Each Contracting Party may ordinarily terminate the contract with a deadline of 3 months to the end of the calendar year. Notice of termination must be made in writing.
- The Contracting Partner shall inform us immediately of any changes to the inventory lists concerning the items to be inspected, in any case before the next maintenance interval. New prices must be agreed upon on the basis of the changed maintenance list, taking into account previous contract prices.
- Services are carried out during our normal business hours. At the Contracting Partner’s request, work outside of these times can be agreed upon with night/weekend and/or public holiday surcharges.
- If services are to be carried out on the Contracting Partner’s premises, the Contracting Partner shall provide the equipment listed in the inventory list as well as all documents and technical equipment and tools required to provide the services, e.g. electricity and water, ready to use and available free of charge. The Contracting Partner shall ensure that our employees are aware of any special and/or operational occupational safety measures and other special safety regulations for the location where the service is being provided, and ensure that our employees are adequately equipped. With respect to systems where decommissioning is required as part of the service work, the customer shall ensure that the decommissioning takes place by the date given and shall specify a responsible contact for the duration of the contractual term.
- The Contracting Partner shall be notified of service appointments. If the Contracting Partner cannot make an appointment, the Contracting Partner shall notify us immediately, no later than 1 week before the appointment. If the Contracting Partner breaches this duty and the appointment can only be made after a waiting period, the Contracting Partner shall pay for any waiting periods in accordance with current hourly rates. If the appointment cannot take place, the Contracting Partner shall reimburse any travel expenses and hourly expenditure in accordance with current hourly rates. The Contracting Partner is at liberty to prove a lower amount of damage.
Section F Emergency Power Systems
- In addition to the General Terms and Conditions under Sections A, B and C, the terms and conditions of this Section F apply to the sale and hire of mobile electricity or emergency power systems.
- We always take out insurance to cover the smallest amount of damage to engines and generators. The surcharge for this insurance for the smallest amount of damage to engines and generators of up to €500, caused by a lack of oil or water or a short circuit, will be included on the hire invoice. In addition, the hirer is obliged to insure the hire item against theft, transport and external damage for the duration of the hire period, at the hirer’s expense and for our benefit. The hirer is required to provide the insurance certificate for inspection on request. The hirer hereby assigns to us any current and future claims from this insurance relationship.
- Our services do not include any protective equipment. Our Contracting Partner shall observe and comply with electrical lines, earthing, and regulations given by the respective trade associations and utility companies.
- The set-up, assembly and services in connection with the removal, installation or set-up of emergency power systems are not included in the agreed price and must be agreed separately. If we have explicitly assumed these services, the regulations of Items 9 and 10 in Section E apply accordingly. In particular, the Contracting Partner shall provide the following at the Contracting Partner’s own expense and on time: assistants, all necessary earthing, bedding, construction and scaffolding work including the necessary building materials, all connections, lines, piping, sufficiently large, dry and lockable rooms for storing machine parts, materials, tools and clothing for technicians or protective clothing as well as adequate work and break rooms for installation staff.
- Prices are ex works Leipzig. The Contracting Partner is responsible for packaging, shipping, preparing import documents, customs, etc.
- If an emergency power system is sold, we are entitled to issue an invoice for an advance payment in the amount of 1/3 of the agreed-upon remuneration on receipt of the order, an interim invoice for an addition 1/3 of the agreed-upon remuneration once ready for dispatch, and the remaining amount upon delivery.
- If it is agreed that we accept used machines as payment, the Contracting Partner agrees that the machines shall be in working order. In the event of a machine being acquired, an acquisition report must be drawn up in which the Contracting Partner shall list all the defects that the Contracting Partner is aware of.
- We have a copyright and exploitation right to cost estimates, drawings and other technical documents provided. The Contracting Partner is prohibited from reproducing these documents or making them accessible to third parties outside the scope of the contractual use of the equipment.
Section G External Service Providers
- In addition to the General Terms and Conditions under Section A, the terms and conditions of this Section G apply to other services offered by us, with particular reference to sharpening and grinding work, key services, calibrations, textile printing, laundry services, etc.
- Please note that we use third parties to fulfil these services.
In the event of discrepancies or differences in the interpretation of the various language versions of these General Terms and Conditions and other essential contractual documents (including technical descriptions and article information), the German version shall apply exclusively.