General Conditions of Sale of J. Lindemann GmbH | As of July 2015
I. Validity / Offers
1. These general conditions of sale apply to all current and future contracts and other services. We are under no obligation to accept the conditions of the purchaser, even where we do not expressly object to these again after we have received them.
2. Our offers are not binding. Agreements, especially oral ancillary agreements, promises, guarantees and other assurances given by our sales staff are only binding with our written confirmation.
3. Documents belonging to the offer such as drawings, illustrations, technical data, references to standards and statements in advertising material are not indications of quality, assurances of properties or guarantees, provided they are not expressly characterized as such.
4. Deviations of the delivered goods from offers, samples, test or previous deliveries are permitted subject to currently valid DIN/EN norms or other relevant technical standards.
II. Prices
1. Our prices are in EURO, unless otherwise agreed, and apply ex our works excluding packaging and plus VAT in each case. They are calculated using the prices valid on the day of delivery.
III. Payment and settlement
1. Our invoices are due within 30 days net, starting from the invoice date. Payment must be made within this period so that we receive the amount required to settle the invoice not later than the due date. The purchaser shall be considered in default 10 days at the latest after our payment demand is due without the necessity for a reminder.
2. Invoices for assembly, repairs, moulds, devices, tools and tool manufacturing costs are due immediately without deductions in each case.
3. Counterclaims which are disputed by us or not legally ascertained do not entitle the purchaser to withhold or offset payment.
4. Where the payment deadline is exceeded or on default at the latest, we are entitled to charge interest at the respective bank rates for overdraft facilities, or at least interest at the rate of 8 percentage points above the base rate. We reserve the right to assert claims for further damages.
5. Should it become apparent after conclusion of the contract that our payment claim is at risk due to a lack of solvency on the part of the purchaser, we shall be entitled to exercise the rights contained in Section 321 of the German Civil Code (BGB) (plea of uncertainty). We shall also be entitled to demand payment of any claims from the ongoing business relationship with the purchaser not barred by a statute of limitations and to revoke collection authorisation in accordance with Clause V/5. In case of default of payment, we are also entitled to demand return of the goods after a reasonable period of grace and to prohibit the resale and processing of delivered goods. Repossession does not constitute withdrawal from the contract. The purchaser can avoid all these legal consequences through payment or a security deposit equivalent to the value of our endangered payment claim. The provisions of the Insolvency Act (Insolvenzordnung) remain unaffected by the above.
6. An agreed cash discount always relates exclusively to the invoice value of the goods excluding freight and requires full settlement of all due liabilities of the purchaser at the time of the discount. Tooling costs shall be payable net without deductions in each case.
IV. Delivery deadlines
1. Delivery deadlines and dates are considered as complied with if the delivery item has left our warehouse up to their expiry.
2. Delivery deadlines shall be extended to a reasonable extent due to measures relating to labour disputes, especially strikes and lockouts, and in the event of unforeseen circumstances that are beyond our control, provided such obstacles can be demonstrated to have a considerable influence on the production or delivery of the delivery item. This also applies if the circumstances occur at suppliers. We shall notify the purchaser of such circumstances without delay. These regulations shall apply correspondingly to delivery dates.
V. Retention of title
1. All delivered goods remain our property (reserved goods) until all claims arising from the business relationship are fulfilled, regardless of the legal grounds and including future or conditional claims.
2. Treatment and processing of the reserved goods are realized for us as the manufacturer pursuant to Section 950 of the German Civil Code (BGB) without any obligation on our part. The processed goods are considered reserved goods pursuant to Clause V/1. Where the reserved goods are processed, combined or mixed with other goods by the purchaser, we are entitled to co-ownership of the new item proportionate to the invoice value of the reserved goods relative to the invoice value of the other goods used. Should our ownership lapse due to combining or mixing, the purchaser shall transfer ownership rights to the new item or product to us with immediate effect to the amount of the invoice value of the reserved goods and shall retain custody of them on our behalf at no charge. The resulting co-ownership rights constitute reserved goods pursuant to Clause V/1.
3. The purchaser may only sell the reserved goods in the ordinary course of business under its normal trading terms and conditions and as long as he is not in arrears, subject to the condition that the claims from the resale pursuant to Clause V/4 to V/6 are transferred to us. The purchaser is not entitled to dispose of the reserved goods in any other way.
4. The purchaser’s claims from the resale of the reserved goods are hereby assigned to us. They shall serve as collateral to the same extent as the reserved goods. If the goods are sold by the purchaser together with other goods not sold by us, the assignment of the claim from the resale applies only to the amount of the resale value of the respective reserved goods sold. In the case of the sale of goods to which we have co-ownership pursuant to Clause V/2, the assignment of the claim corresponds to the level of the share of co-ownership.
5. The purchaser is entitled to collect claims from the resale up until our revocation, said revocation being permissible at any time. We shall only exercise the right of revocation in the cases referred to in Clause III/4. The purchaser is obliged at our request to inform his customers immediately of the assignment to us – unless we do this ourselves – and to provide us with the information and documents necessary for collection.
6. The purchaser must notify us immediately of an attachment or any other interference by third parties.
7. If the value of existing securities exceeds the secured claims by more than 50 per cent, we are obliged insofar to release securities at our discretion at the purchaser’s request.
VI. Performance of deliveries
1. By transferring the goods to a forwarder or carrier, but at the latest when they leave the warehouse or, in the case of drop shipping transactions, the supplying plant, the risk is transferred to the purchaser in all transactions, including those which are prepaid and free house deliveries. Duty and costs of unloading shall be borne by the purchaser. We shall only arrange insurance on the instruction and at the expense of the purchaser.
2. We are entitled to partial deliveries to a reasonable extent. In the case of non-stock goods made to order, excess and short deliveries are permitted up to 10% of the contracted quantity.
3. Bundle length pursuant to agreement (e.g. 25 m or 50 m bundles – packed in PE bags if requested). Short lengths are technically unavoidable and are appropriately marked and included in the delivery (max. 30% of delivery quantity). Manufacture is realised under technical delivery conditions.
4. Dimensional tolerances of our silicone products are determined and produced pursuant to DIN ISO 3302-1 E2. DIN ISO 3302-1 E3 applies to foam products. These tolerances apply, unless a special tolerance has been explicitly agreed with the customer and this has been confirmed in the order confirmation.
5. In the case of call orders (make-and-hold orders), we are entitled to manufacture the entire order quantity completely or have the entire order quantity manufactured completely. Any requests for changes can no longer be considered after placing the order, unless this has been expressly agreed. Call-off dates and quantities can only be met within the scope of our delivery or production possibilities, unless firm agreements have been made. If the goods are not retrieved in accordance with the contract, we are entitled to charge them as delivered after a reasonable grace period has elapsed.
VII. Liability for defects
1. On receipt of immediate and justified notice of defects, we are, at our discretion, entitled to remedy the defect or provide an item free of defects (subsequent performance). Should we fail in this respect or refuse subsequent performance, the purchaser may reduce the purchase price or withdraw from the contract after the setting and fruitless expiry of a reasonable period of time. Where the defect is inconsiderable, the purchaser may only reduce the purchase price.
2. We shall only bear expenses associated with remedying insofar as they are reasonable in each individual case, particularly in relation to the purchase price of the goods. Our company is only liable in the context of their value. We do not accept any liability for expenses arising from the fact that the goods sold have been transported to a location other than the registered office or place of business/subsidiary of the purchaser.
3. Where the purchaser gives us no opportunity to ascertain for ourselves whether a defect exists and, in particular, fails to make the goods or samples which are the subject of the complaint available on request, he is not entitled to claim that the goods are defective.
4. Further claims are excluded pursuant to Clause VIII. This applies in particular to claims for compensation for damage which has not occurred to the goods themselves (consequential damage).
VIII. General limitation of liability and statute of limitations
1. Due to breach of contractual and non-contractual obligations, in particular due to impossibility, delay, culpability in the initiation of the contract and tort, we shall only be liable in cases of intent and gross negligence, limited to the typical contractual damage foreseeable at the time of conclusion of the contract.
2. These restrictions do not apply in the case of culpable violation of essential contractual obligations, if the fulfillment of the contract is at risk, in cases of mandatory liability under the Product Liability Law, for loss of life, limb or health and also not when and insofar as we have fraudulently concealed defects in the goods or guaranteed their absence. The rules governing the burden of proof remain unaffected.
3. Unless otherwise agreed, contractual claims made by the purchaser against us on the occasion of or in connection with the delivery of the goods lapse one year after delivery of the goods. This deadline also applies to goods that have been used in accordance with their usual purpose for a building and whose defectiveness is our fault, unless such use has been agreed in writing. The period of limitation shall not commence anew in cases of subsequent performance.
IX. Copyrights
1. We reserve ownership and copyright to cost estimates, drafts, drawings and other documents. They may only be made accessible to third parties in agreement with us. Drawings and other documents related to offers must be returned on request.
2. Insofar as we have delivered items according to drawings, models, samples or other documents handed over by the purchaser, the purchaser assumes the guarantee that the intellectual property rights of third parties will not be violated. Should a third party prohibit us in particular from the manufacture and supply of such items by invoking property rights, we are entitled to suspend any further activities and to claim damages if the purchaser is at fault without any obligation on our part to examine the legal situation. The purchaser also undertakes to indemnify us immediately from all third-party claims related thereto.
X. Test parts, moulds, tools
1. If the purchaser has to contribute parts to facilitate execution of the order, these shall be delivered free production plant on time, free of charge and free of defects in the agreed quantity, or otherwise with a reasonable additional quantity to cover potential rejects. Failing to do so, the purchaser shall bear any resulting costs and other consequences.
2. The production of test parts including the costs for moulds and tools is borne by the purchaser.
3. Property rights to moulds, tools and other devices that are required for the production of ordered parts shall be governed by the agreements concluded. We pledge to keep such devices in readiness for at least two years after their last use.
4. With respect to tools, moulds and other production devices provided by the purchaser, our liability shall be limited to the same diligence and care as exercised in our own affairs. Costs for maintenance and care shall be borne by the purchaser, unless otherwise agreed separately. Our obligation to retain devices ends two years at the latest after the last production using the mould or tool, regardless of the ownership rights of the purchaser.
XI. Place of performance and jurisdiction, applicable law
1. The place of performance for our delivery is the registered business address of our company, unless otherwise agreed. The place of jurisdiction for merchants is Helmstedt. We can also take legal action against the purchaser in his place of jurisdiction.
In addition to these conditions, all legal relationships between us and the purchaser are governed by German law including the provisions of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG).