General Terms and Conditions of Business
General Terms and Conditions of Business
Valid at: 01/2021
§ 1 Scope, Form
(1) These General Terms and Conditions of Business (Ts and Cs) apply to all our business relationships with our customers (“Ordering Party”). The Ts and Cs only apply if the Ordering Party is an entrepreneur (in the sense of Section 14 BGB), a legal person under public law or a special fund under public law.
(2) The Ts and Cs apply in particular to contracts for the sale and supply of movable objects (“Goods”), regardless of whether we manufacture the Goods ourselves or procure them from suppliers, and to development and engineering services (“Services”). Unless otherwise agreed, the Ts and Cs apply in the version valid at the time of the order by the Ordering Party and in all cases in the version most recently shared with them in text form as a general agreement, including for future contracts of the same type, without our having to make reference to them in every individual case. The respective current version of the Ts and Cs can be viewed at www.ligenium.de.
(3) Our Ts and Cs shall apply exclusively. Where the Ordering Party has deviating, conflicting or supplementary general terms and conditions of business, these only form part of the contract if and to the extent that we have explicitly consented to their validity. This requirement for consent applies in all cases; including for example if, in full knowledge of the Ordering Party's terms and conditions, we carry out the delivery to the Ordering Party without reservation.
(4) Individual agreements made with the Ordering Party on a case-by-case basis, including side agreements, additions and amendments, at all times take priority over these Ts and Cs. A written contract or our written confirmation is definitive for the content of such agreements, subject to proof to the contrary.
(5) Legally relevant declarations and indications by the Ordering Party in relation to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be submitted in writing, i.e. in text form (e.g. letter, email, fax). Statutory provisions and further proofs, in particular in the case of doubt as to the authority of the declarer, shall remain unaffected.
§ 2 Formation of the Contract, Confidentiality
(1) Our quotations are non-binding and without obligation. This also applies in the case where we have provided the Ordering Party with catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents, including in electronic form, in which we reserve ownership rights and copyrights.
(2) The documentation provided must not be made accessible to third parties unless we have given the Ordering Party our explicit prior written consent to do so. The Ordering Party undertakes the obligation to all employees, representatives, contractors and vicarious agents to maintain confidentiality accordingly.
(3) Ordering of the Goods or Service by the Ordering Party shall be a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 14 days of receipt by us.
(4) Acceptance of the order can be either in writing (e.g. order confirmation) or through delivery of the Goods to the Ordering Party or performance of the Service.
§ 3 Delivery and Performance Time; Default on Delivery
(1) All information about dates and deadlines, including in the order confirmation, are non-binding. Any agreements on binding delivery and/or performance times (“Deadlines”) must be in writing.
(2) If we are unable to adhere to binding Deadlines for reasons that are outside our control (unavailability of the Service), we will notify the Ordering Party of this without delay and at the same time provide them with the expected new Deadline. If the Service is still unavailable within the new Deadline, we are entitled to withdraw from the contract in part or in full; we will repay any payment made in this respect by the Ordering Party without delay. Unavailability of the Service in this context in particular includes failure by our suppliers to deliver to us punctually where we have entered into a congruent covering transaction and neither we nor our suppliers are at fault, or we are not obligated for procurement in the individual case.
(3) Timely partial deliveries of appropriate quantity are permitted.
(4) Default on delivery shall take effect as determined in accordance with the statutory provisions. In all cases, however, an overdue notice is required from the Ordering Party. If we are in default on delivery, the Ordering Party can demand lump sum compensation for losses caused by the default. The lump sum for losses shall amount to 0.5% of the net price (delivery value) for each full calendar week of delay, up to a total of at most 5% of the delivery value of the Goods delivered late. We reserve the right to prove that the Ordering Party has suffered no loss at all or only a loss that is substantially smaller than the above lump sum.
(5) The rights of the Ordering Party as set out in section 8 of these Ts and Cs and our legal rights, in particular if the performance obligation is removed (e.g. owing to impossible or unreasonable nature of the performance and/or subsequent performance), remain unaffected.
§ 4 Delivery, Transfer of Risk, Acceptance, Default on Acceptance
(1) Delivery takes place ex warehouse, which is also the place of fulfilment for the delivery and any subsequent performance. The Goods shall be dispatched to another destination at the request and cost of the Ordering Party (sale by dispatch). Unless otherwise agreed, we are entitled to determine the nature of dispatch (in particular, transport company, dispatch route, packing) ourselves.
(2) The risk of accidental loss and of accidental deterioration of the Goods transfers to the Ordering Party at the latest at the time of handover. In the case of sale by dispatch, however, the risk of accidental loss and of accidental deterioration of the Goods and the risk of delay transfers at the point of handing over the Goods to the carrier, haulage contractor or person or establishment otherwise appointed to execute the dispatch. If acceptance has been agreed, this is definitive for the transfer of risk. In other respects, too, the statutory provisions on contracts for work and services apply accordingly to an agreed acceptance. If the Ordering Party is in default on acceptance, this is equivalent to handover or acceptance.
(3) If, at the request of the Ordering Party, handover takes place at a later date than the agreed delivery deadline, the risk transfers to the Ordering Party on the working day following the day on which notification that the Goods were ready for dispatch was issued.
§ 5 Prices and Payment Conditions
(1) Provided nothing is agreed to the contrary in the individual case, our current prices at the time the contract was entered into apply; these are ex warehouse without packing and plus statutory sales tax.
(2) The prices correspond to our cost situation at the time the contract was entered into. If our costs change by the day of the delivery or the performance of the Service, we reserve the right to adjust the prices provided that the deliveries and/or performance of Services are to take place as arranged more than four (4) months after the contract was entered into.
(3) In the event of sale by dispatch (section 4(1)), the Ordering Party shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Ordering Party. Any tariffs, charges, taxes and other public dues are payable by the Ordering Party.
(4) The purchase price is due and must be paid without deductions within 14 days of invoicing and delivery of the Goods or acceptance of the Service. However, we are entitled at any time, including in the context of an ongoing business relationship, to require advance payment before we carry out a delivery/service in whole or in part. Any such condition will be made clear at the latest with the order confirmation.
(5) When the above payment deadline expires, the Ordering Party will be in default. The purchase price is subject to interest during the default at the currently applicable statutory rate of interest. We reserve the right to assert claims for further losses as a consequence of the default. For contracts with businesspeople, our claim to commercial default interest remains unaffected.
(6) The Ordering Party is only due rights of offsetting or retention to the extent that their claim is legally established or undisputed. The opposing rights of the Ordering Party shall remain unaffected in the event of defects in the delivery.
(7) If, after entering into the contract, it becomes clear (e.g. through an application for the opening of insolvency proceedings) that our claim for the purchase price is at risk owing to the Ordering Party's inability to pay, we are entitled in accordance with the statutory provisions, to refuse performance and, if appropriate after setting a deadline, to withdraw from the contract. In the case of contracts for the manufacture of non-fungible items (custom-made items), we can announce the withdrawal immediately; the statutory regulations relating to lack of necessity to set a deadline remain unaffected.
§ 6 Retention of Title
(1) The retention of title agreed below secures all current, future or conditional claims that we have against the Ordering Party arising from the business relationship existing between the contractual partners.
(2) The Goods supplied by us remain our property until all secured claims have been paid in full. The Goods and the Goods covered by retention of title replacing them in accordance with the subsequent provisions shall be referred to below as “goods subject to retention of title”. The Ordering Party shall store the goods subject to retention of title for us without charge.
(3) The Ordering Party is entitled to process or sell the goods subject to retention of title in the course of ordinary business until a liquidation case is initiated. Pledging and assignment as security are not permitted.
(4) In the case of resale of the goods subject to retention of title, the Ordering Party shall hereby assign the resulting claims against the purchaser to us for the sake of security. In the event the vendor has co-ownership in the goods subject to retention of title, it is proportionally according to the ownership proportion. The same applies to any claims that replace the goods subject to retention of title or otherwise arise in respect of the goods subject to retention of title, such as insurance claims or claims resulting from unlawful acts in the case of loss or destruction. We authorize the Ordering Party, subject to revocation, to collect the claims assigned to us in their own name. We are only entitled to withdraw this authority in the case of liquidation.
(5) The right of retention extends to the products resulting from processing, mixing or combination of the Goods up to the full value thereof, whereby we are deemed to be the manufacturer. If, in the case of processing, mixing or combination with third-party goods, there is a right of retention on the part of the third party, we shall acquire co-ownership of the share corresponding to the ratio of the invoice value of the processed, mixed or combined goods. In other respects, the same conditions apply to the resulting product as to the goods subject to right of retention.
(6) If third parties have access to the goods subject to right of retention, in particular as a result of seizure, the Ordering Party shall notify them without delay of our ownership and inform them of this to enable us to exercise our rights of ownership. If the third party is not in a position to repay the legal or extra-judicial costs arising to us in this context, the Ordering Party is liable to us for these.
(7) If the realizable value of all our existing securities exceeds the existing claims by more than 10%, we will release securities of our choice at the request of the Ordering Party.
(8) If the Ordering Party behaves in breach of the contract, in particular by not paying the due purchase price, we are entitled, in accordance with the statutory provisions, to withdraw from the contract and to demand the return of the Goods on the basis of our retention of title and of the withdrawal (in the event of liquidation). If the Ordering Party fails to pay the due purchase price, we may only assert these rights if we have previously set a reasonable payment deadline for the Ordering Party or the setting of such a deadline is deemed unnecessary in accordance with the statutory provisions.
§ 7 Claims for defects by the Ordering Party
(1) Unless otherwise defined below, the statutory provisions on contracts for sale and work apply for the rights of the Ordering Party in respect of material defects and defects of title (including incorrect and reduced delivery and improper installation or missing or flawed installation instructions). In all cases, the statutory special provisions for final delivery of Goods to the consumer (supplier recourse as set out in Sections 478, 479 BGB) remain unaffected.
(2) The basis for our liability for defects is first and foremost the agreement made in respect of the quality of the Goods. The agreement made as to the quality of the Goods comprises all product descriptions that are the subject matter of the individual contract or that have been publicly disclosed by us, in particular in catalogues or on our internet site.
(3) To the extent that the quality has not been agreed, the statutory rule will be used to determine if a defect is present or not.
(4) The Ordering Party's claims for defects presuppose that they have fulfilled their legal obligation to inspect and give notice of defects (Sections 377, 381 of the German Commercial Code (HGB)). If a defect becomes apparent on delivery, inspection or at a later point in time, we must be notified of this in writing without delay. In all cases, obvious defects must be notified in writing within five working days of delivery and, in the case of inspection, hidden defects should be notified within the same deadline from the time of discovery. If the Ordering Party omits to carry out a proper inspection and/or notification of defects, we are not liable for the defect that has not been notified, not properly notified or not notified in a timely manner in accordance with the statutory provisions.
(5) If the supplied item is defective, we can first choose whether we wish to render subsequent performance by rectifying the defect (rework) or by supplying a non-defective item (replacement delivery). Our right to refuse subsequent performance under the statutory requirements remains unaffected.
(6) We are entitled to insist that the subsequent performance owed is dependent on the Ordering Party paying the due purchase price. However, the Ordering Party is entitled to withhold part of the purchase price that is reasonable in proportion to the defect.
(7) The Ordering Party must give us the necessary time and opportunity for the subsequent performance owed, in particular they must hand over the faulty goods for inspection purposes. In the event of replacement delivery, the Ordering Party must return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include either the removal of the defective item nor reinstallation if we were not originally obliged to carry out the installation.
(8) We shall bear the expenses, in particular the transport, road, labor and material costs but not removal and installation costs, for the purposes of inspection and subsequent performance if a defect is actually present. Otherwise, we can demand that the Ordering Party compensates the costs, in particular inspection and transport costs, arising from the unjustified request for the rectification of a defect, unless the lack of defect was not evident to the Ordering Party.
(9) If subsequent performance is unsuccessful or a reasonable period for the subsequent performance, to be set by the Ordering Party, elapses without success or is unnecessary in accordance with the statutory provisions, the Ordering Party may withdraw from the purchase contract or reduce the purchase price. In the event of an insignificant defect, there is no right to withdraw.
(10) Claims by the Ordering Party for compensation for loss or for reimbursement of expenses incurred in vain shall only apply subject to section 8, even in the event of defects, and are otherwise excluded.
§ 8 Other Liability
(1) Unless otherwise agreed in these Ts and Cs including the following provisions, we are liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(2) Regardless of the legal basis, we are liable for compensation in the context of fault-based liability in cases of malice or gross negligence. In cases of ordinary negligence, we are liable, subject to a reduced scope of liability in accordance with the statutory provisions (e.g. for the level of care we apply to our own interests), in the following situations only:
a) for damages resulting from injury to life, limb or health,
b) for damages from the not insignificant breach of a substantial contractual obligation (an obligation, the fulfilment of which is required to facilitate the proper execution of the contract and which the contractual partner regularly relies on and is entitled to rely on); in this case, however, our liability is limited to compensation for the foreseeable damage of the kind that typically occurs.
(3) The limitations on liability arising from (2) also apply in the case of breaches of obligation by or to the benefit of individuals whose culpability we are responsible for in accordance with the statutory provisions. They do not apply where we fraudulently conceal a defect or have provided a guarantee as to the quality of the Goods and for claims by the Ordering Party in accordance with the Product Liability Act (ProdHaftG).
(4) The Ordering Party can only withdraw or terminate the contract owing to a breach of obligation not relating to a defect if we are responsible for the breach of obligation. A free right of termination by the Ordering Party (in particular as set out in Sections 651, 649 BGB) is excluded. In other respects, the statutory requirements and legal consequences apply.
§ 9 STATUTE OF LIMITATIONS
(1) The general limitation period for claims arising from material defects and defects of title is one year from delivery. If an acceptance process is agreed, the period starts from the date of acceptance.
(2) However, if the Goods are a building or an item that has been used in a building in accordance with its usual manner of use and has resulted in its defective condition (construction material), the limitation period is five years from delivery. Further statutory special regulations relating to limitation (in particular Section 438(1) no. 1 and (3), and Sections 444, 479 BGB) remain unaffected.
(3) The above limitation periods under the law governing the sale of goods also apply to contractual and non-contractual compensation claims by the Ordering Party that are based on a defect in the Goods, unless the application of the usual statutory limitation (Sections 195, 199 BGB) would lead to a shorter statute of limitations in the individual case. However, claims by the Ordering Party for compensation as set out in section 8(2) sentences 1 and 2(a) and in accordance with the Product Liability Act shall expire solely in accordance with the statutory periods of limitation.
§ 10 CHOICE OF LAW AND JURISDICTION
(1) These Ts and Cs and the business relationship between us and the Ordering Party are governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular of the UN Convention on the International Sale of Goods.
(2) If the Ordering Party is a merchant in the sense of the German Commercial Code, a legal person under public law or a special fund under public law, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our place of business in Chemnitz. The same shall apply if the Ordering Party is an entrepreneur in the sense of Section 14 BGB. However, we are also entitled in all cases to institute legal proceedings at the place of fulfilment of the obligation to supply as set out in these Ts and Cs, in an overriding individual agreement, or at the general place of jurisdiction of the Ordering Party. Overriding statutory provisions, in particular relating to exclusive jurisdiction, remain unaffected.
(3) If a provision in these Ts and Cs or a further agreement based on these should be or become ineffective, this shall not affect the validity of the remaining terms and conditions. The contractual parties are obliged to replace the ineffective provisions with a regulation that comes as close as possible to the economic purpose thereof.