LIROS GmbH – General Term and Conditions
1. Scope of Application
Deliveries and services of LIROS GmbH, exept as otherwise agreed in writing, exclusively take place according to the following conditions of business. The manufacturer's licence conditions, enclosed with the contract products, will be referred to in addition. Deviating conditions of business of the customer are only effective if LIROS GmbH has confirmed them in writing. The same shall apply to changes and supplements to the present General Standard Terms and Conditions. Oral promises and ancillary agreements shall require the written confirmation of LIROS GmbH.
2. Deliveries and Services
2.1 The offers of LIROS GmbH are being free and not binding. A contract is only formed with the written order confirmation by LIROS GmbH, or at the latest, upon acceptance of the delivery by the customer.
2.2 LIROS GmbH is authorized to modify the initial customer's order by sending similar products, in so far as their functional efficiency shall not be affected.
2.3 The right to make partial deliveries and invoice them shall be reserved by LIROS GmbH.
2.4 Delivery dates that are agreed to be binding shall be deemed to have been met if the purchased goods are handed over to the carrier by the delivery, unless other explicit written agreements have been made.
2.5 Delivery dates are agreed upon on the basis of LIROS GmbH’s expected ability to perform with the proviso that there are no unforeseen circumstances or impediments, regardless of whether these occur on the part of LIROS GmbH or the manufacturer, such as force majeure, governmental measures, non-issuance of official approvals, industrial actions of all types, sabotage, raw materials shortages or delayed delivery of materials for which LIROS GmbH is not responsible. These types of occurrences extend the delivery period accordingly. This also applies if they occur while a shipment is already delayed. If the delivery by LIROS GmbH is delayed for more than eight weeks, the customer is entitled to rescind the contract fully or partially, with exclusion of any other claims, after expiry of an appropriate grace period that was set in writing. To the extent the delays in delivery last for longer than eight weeks, LIROS GmbH is entitled to either fully or partially rescind the contract, too.
2.6 If not otherwise agreed upon, LIROS GmbH is entitled but not obliged to insure the products meant to be dispatched against transport risks of all kind at the customer's expense. Any potential taking out of transport insurance or taking over of transport costs has no effect on the passing of risk.
3. Cancellation and Deferral of the Delivery Dates
3.1 If the customer cancels orders fully or partially, LIROS GmbH shall be entitled to claim damages without special evidence, according to the prices offered and the actual hours worked.
3.2 Agreements concerning the change of delivery dates require written form. If the customer refuses to accept ordered goods, LIROS GmbH shall be entitled to define a new delivery date in addition to a claim for payment.
4. Written and Verbal Technical Information
4.1 Technical information for LIROS GmbH products show, if nothing else has been agreed, a tolerance of at least +/- 10 percent. Such claims are inter alia for example breaking load, weight and diameter.
4.2 The technical information is non-binding and does not set the customer free from his duty to check if the products are suitable for the intended operation and purpose.
4.3 Color deviation, especially for products made from natural raw materials are unavoidable.
5. Acceptance and Transfer of Risk
5.1 The customer is obliged to inspect the delivered goods or rendered services immediately upon receipt for completeness, correctness and other faultlessness. If no admonition occurs within a period of eight days after receipt of delivery, the acceptance is considered to have taken place.
5.2 Minor defects which do not affect the product's ability to function do not entitle the customer to refuse the acceptance.
5.3 The risk shall pass to the customer, once the contracted goods have been transferred to the forwarder, to their representatives or to other persons who are entitled by LIROS GmbH, at the latest, however, with direct transfer of the contractual goods to the customer or through the representatives to the customer.
6. Prices and Payment Conditions
6.1 The prices and conditions of delivery and payment shall apply like stated in the order confirmation or respective applicable distributor price list.
6.2 Invoices shall be provided with delivery of the ordered items. Bank drafts and cheques will only be accepted on account of performance. If the invoice is not paid by the due date, LIROS GmbH shall be entitled without further warning, to a claim of 5% over the base rate as set out in the German Discount Rate Transition Act. The right to assert further damages shall be retained.
6.3 Notwithstanding any deviating provisions by the customer, LIROS GmbH shall be entitled to credit payments against the customer’s older debts first. If costs and interests have already been incurred due to the delay, LIROS GmbH shall be entitled to credit the payment first towards costs incurred, then towards the interests and finally towards the principal invoice amount.
6.4 Any offsetting or assertion of a right of retention on the part of the customer based on counter claims that are not acknowledged by LIROS GmbH or which are not res judicata shall be excluded.
6.5 If the customer fails to meet the payment date stated above without due cause, LIROS GmbH shall be entitled at any time to perform either services or deliveries against cash payment, advance payment or granting of securities. All outstanding receivables, including those for which LIROS GmbH accepted bills for collection or agreed to payment by instalments, will fall due immediately.
7. Retention of Title
7.1 The contractual goods shall remain property of LIROS GmbH until the fulfilment of all, including future claims of the supplier arising out of the business relationship with the customer.
7.2 The customer is revocably authorized to pass on the goods that are subject to retention of title in the normal course of business, but not to pledge these or provide them as any type of security. If third parties take hold of the goods subject to retention of title, the customer shall immediately notify such third party that these are the property of LIROS GmbH and inform LIROS GmbH thereof immediately. In case of resale of contracted goods to third parties, the customer is responsible for ensuring that the third party observes the rights of LIROS GmbH.
7.3 If the goods subject to retention of title are mixed or combined with goods not in the ownership of LIROS GmbH, LIROS GmbH shall acquire co-ownership in relation of the invoice value of the goods subject to retention of title to the other goods. Any alterations to and processing of the goods subject to retention of title is performed on behalf of LIROS GmbH as the manufacturer in terms of Section 950 BGB, without entailing any obligation for LIROS GmbH. LIROS GmbH obtains co-ownership in the processed goods in terms of the provision above.
7.4 In case of delayed payment or illiquidity on the part of the customer, LIROS GmbH is authorized to access the customer’s business premises to assert its right of retention relating to the goods subject to such title and take hold of those goods.
7.5 If LIROS GmbH secures goods at the customer’s or third party premises to assert its retention of title, this does not constitute contract rescission, provided that the customer is a merchant.
7.6 The customer assigns his claims in the amount of the respective invoice value resulting from passing on the goods subject to retention of title to LIROS GmbH in advance at the time the order is placed. The customer is authorised and obliged to collect these claims in the course of normal business. At LIROS GmbH’s request, the customer shall identify the assigned claims. In order to secure its payment claims, LIROS GmbH may disclose this assignment at any time.
7.7 If the value of the securities exceeds LIROS GmbH’s payment claims by more than 20%, LIROS GmbH shall release the part of the securities exceeding that value upon the customer’s request.
7.8 Objects that are delivered for test and presentation purposes, remain the property of LIROS GmbH. Use thereof is subject to a separate agreement with LIROS GmbH.
8.1 LIROS GmbH guarantees that the contract products are free from defects, including the absence of promised characteristics. The manufacturing of the contractual products takes place with the required duty of care.
8.2 LIROS GmbH guarantees that the contracted products are in the product information generally applicable described and in this framework in principle operational. The technical data and descriptions in the corresponding product information do not constitute warranties. Legal warranty of the presence of particular characteristics can only be assumed, if the respective functions are explicit confirmed by LIROS GmbH in writing. LIROS GmbH is unable to assume any liability, that the product features fulfill the customer's requirements or that they work together in the constellation of his choice. For products, which aren‘t produced by LIROS GmbH itself, but only sold, the manufacturer‘s agreements are relevant.
8.3 Defects and damage caused by the following reasons in particular are excluded from warranty: operational wear and tear and loss in value from normal use, improper use, operating errors and negligent behaviour on the part of the customer
8.4 These warranty claims against LIROS GmbH commence upon handover of the object and become time-barred within a period of 6 months. They are not transferable. Notwithstanding the aforesaid, LIROS GmbH passes any additional or further-reaching warranties or guarantees by the manufacturer on to the customer in full without entering into any obligation of its own in this respect.
8.5 In warranty cases, LIROS GmbH will, at its own discretion, deliver subsequent performance (rectification of defect or replacement). Defective products must be delivered free of charge to LIROS GmbH. Replaced parts become the property of LIROS GmbH. If LIROS GmbH refuses to rectify defects or fails to remove the defect within an adequate period of time, the customer is entitled to, at its own discretion, request either rescission of contract or appropriate reduction of the purchase price.
8.6 In cases of subsequent performance LIROS GmbH shall bear parts costs. All other costs associated with the delivery of replacement, particularly insurance, packaging, subsistence and accommodation as well as storage costs shall be borne by the customer.
8.7 If the examination of a notification of defects shows that no warranty case is present, LIROS GmbH is entitled to request reimbursement of its expenses. The cost of such investigation and repair shall be charged to the customer at the respective valid service rates of LIROS GmbH.
8.8 All further or different provisions provided in these claims by the customer, for whatever legal reason, are excluded to the extent that these provisions do not indicate otherwise.
9. Commercial Property Rights
9.1 LIROS GmbH does not assume any liability for the contractual products not infringing any industrial property rights or third party copyrights. The customer has to inform LIROS GmbH immediately about all claims on this account asserted against LIROS GmbH.
9.2 As far as the delivered goods were manufactured in accordance with the drafts or designations of the customer, the customer must release LIROS GmbH from any claims made by third parties on the basis of infringements of industrial property rights and copyright. Any legal costs must be paid in advance in an appropriate way.
10.1 LIROS GmbH‘s liability is restricted to damage typically reasonable and foreseeable on making contract and to the scope of such damage usual in comparable cases. LIROS GmbH shall not assume liability for consequential damages, profits foregone or other indirect damages of any kind whatsoever.
10.2 The responsibility of LIROS GmbH according to the product liability law and other mandatory statutory regulations shall remain unaffected by the above-mentioned liability restrictions. Personal liability of LIROS GmbH employees, that became active as fulfillment assistants of LIROS GmbH, is excluded.
10.3 The customer's claims for damages shall expire after six months from delivery or the complete rendering of the service.
11. General Provisions
11.1 Orders are processed with the help of automatic data processing. The customer hereby grants its explicit consent that all data required for processing the order that came to LIROS GmbH’s knowledge in the scope of the contractual relation may be processed and stored.
11.2 Should one or more provisions in these general terms and conditions of trade be invalid or should this be the case in the future, and/or the existence of loopholes in the wording of this contract, has no effect on the validity of the remaining provisions. An invalid provision will, in the form of a supplementary interpretation of the contract, be replaced with a provision which comes as close as possible to fulfilling the commercial purpose which was intended with the invalid provisions. This has analogous validity for the closing of any gaps in the provisions. The validity of the remaining conditions remains unaffected.
12 Place of Performance, Venue and Jurisdiction
12.1 The place of performance and jurisdiction for deliveries and payments (including actions due to checks and bills of exchange) and all disputes arising between LIROS GmbH and the customer, insofar as the customer is a merchant, legal person as defined in public law or special fund as defined in public law, shall be the seller's headquarters location.
12.2 The relations between the contractual parties will be regulated exclusively in accordance with the laws applying in the Federal Republic of Germany (particularily in accordance with the provisions of the German Civil Code – BGB – and the German Commercial Code – HGB) with exclusion of the Uniform UN convention on Contracts for the International Sale of Goods (CISG).