General Terms and Conditions for Commercial Customers
General Terms and Conditions of Sale for Commercial Customers
§ 1 General, area of application
(1) All service offers of LIEKUP Vertriebs GmbH, Vahrenwalder Str. 269a, 30179 Hannover (hereinafter the Seller) are exclusively made to natural persons, legal entities or a partnership with legal capacity, which is exerting its commercial or independent business activities by ordering goods/services, and is subject to these General Terms and Conditions.
(2) All deliveries, services and offers of the Seller are made exclusively on the basis of these General Terms and Conditions. They are an integral part of all agreements which the seller concludes with its contract partners (hereinafter: the "Buyers”) about the services or deliveries it offers. The General Terms and Conditions apply in particular for contracts for the sale and/or delivery of moving objects (hereinafter also referred to as: the goods). These General Terms and Conditions are valid, as a framework agreement, for future agreements about sales and/or the delivery of moving objects with the same Buyer, without the Seller having to refer to them in each individual case. Individual agreements always have precedence over these General Terms and Conditions.
(3) Any terms and conditions of the Buyer or third parties shall not apply, even if the Seller has not explicitly rejected their application in an individual case. Even if the Seller refers to a letter which contains terms and conditions of the Buyer or a third party, or which refers to them, or if the Seller performs the delivery unconditionally, despite being aware of the Buyer's terms and conditions, this does not mean that their terms and conditions are valid.
(4) References to the validity of legal provisions are only intended as clarification. Even without a clarification of this kind, the legal provisions shall apply if they have not been directly modified or explicitly rejected by these General Terms and Conditions.
§ 2 Offer and control conclusion
(1) The presentation of the goods in the online shop of the Seller does not represent a binding contractual offer. All details provided by the Seller are non-binding and subject to change, unless they have been explicitly marked as binding or have a specified acceptance period. Orders or bookings by the Buyer are binding. The Seller reserves the right to decide whether to accept the offer or not. Provided nothing else is stated in the order or the booking, they can be accepted by the Seller within 7 days of receipt.
(2) The acceptance can be made either in writing, e.g. by an order confirmation, or by delivering the goods.
(3) With the exception of Managing Directors and authorised signatories, the employees of the Seller are not permitted to make verbal agreements which deviate from the written agreement, including these General Terms and Conditions.
(4) Details of the Seller about the subject matter of the delivery or service (e.g. weights, dimensions, practical values, capacity, tolerances and technical data) as well as depictions by the Seller itself (e.g. diagrams and figures) are only approximately representative, if the usability for the intended contractual purpose requires precise compliance. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Trade-standard deviations and deviations which occur due to legal regulations or which represent technical improvements, as well as the replacement of components with parts of equal value, are only permitted if they do not affect the usability for the intended contractual purpose.
§ 3 Prices and payment, right of retention/withdrawal
(1) The offered prices are quoted, if corresponding explicit details are lacking, excluding the respectively valid legal VAT rate, including packaging.
(2) If the delivery is only to be made more than four months after the conclusion of the contract, the valid list prices of the Seller upon delivery shall apply (minus any agreed percentage or fixed discount). If the list price increases by more than 10% compared to the price valid upon the conclusion of the contract, the Buyer is permitted to withdraw from the contract within one week of becoming aware of the price increase, by means of a written statement.
(3) The purchase price is due for payment within 14 days of the invoice date and delivery, or acceptance of the goods. Upon the expiry of the payment term the Buyer is deemed to be in default.
(4) The off-setting with counter claims of the Buyer or the withholding of payments due to claims of this kind is only permitted, if the counter claims are uncontested or have been legally established.
(5) If it is clear, after the conclusion of the contract, that the meeting of outstanding claims from the respective contractual relationship (including claims from other individual orders from the current business relationship, which appear to be a natural unit due to the context of time or subject-matter and apply to the same framework agreement) is endangered due to the inability of the Buyer to perform the contract, the Seller is permitted,
(a) To only execute or perform outstanding deliveries or services with a corresponding pre-payment or security,
(b) To withdraw from the contract if the Buyer does not make a payment or provide a security, at its discretion, within a suitable deadline concurrently with the service,
(c) To withdraw from contracts to manufacture unreasonable items (individual productions), if the Buyer does not pay or provide a security within a suitable deadline, at its discretion, without having to offer concurrent counter performance.
§ 4 Delivery, place of performance, dispatch/packaging, parts deliveries and transfer of risk
(1) Deliveries are made from the warehouse, which is also the place of performance. On request and at the expense of the Buyer, the goods will be sent to another destination (sale by dispatch).
(2) Provided nothing else has been agreed, the Seller is permitted to determine the type of delivery (esp. the transport company, the type of dispatch and the packaging) itself.
(3) The delivery is shall only be insured by the Seller, at the explicit request of the Buyer and at its expense, against theft, breakage, transportation or other insurable risks.
(4) The seller is only permitted to make partial deliveries, if
-The partial delivery can be used by the Buyer within the scope of the intended contractual purpose,
-The delivery of the rest of the ordered goods is guaranteed and
- The Buyer does not incur any considerable extra expense or additional costs as a result (unless the Seller declares its readiness to assume these costs).
(5) The risk of accidental loss and worsening of the goods is transferred to the Buyer at the latest upon the hand-over of the goods. In the event of a sale by dispatch, the risk of accidental loss and worsening of the goods, as well as the risk of a delay is transferred when the goods are handed to the freight forwarder, the haulier or any other person or institute entrusted with performing the dispatch. The transfer of risk also occurs if the Buyer is in default of acceptance.
§ 5 Delivery time, delivery delay, default of acceptance
(1) Deadlines and dates for deliveries and services announced by the Seller are only approximate, provided that a delivery is made at the latest 4 weeks after the announced deadline, unless a fixed deadline or date has been explicitly agreed or accepted. If dispatch has been agreed, the delivery deadlines and dates refer to the time of the hand-over to the freight forwarder, haulier or other third parties contracted with the transportation.
(2) The Seller can – regardless of its rights due to default by the Buyer – demand an extension of delivery and service deadlines or a postponement of delivery and service deadline by the amount of time the Buyer did not meet its contractual obligations to the Seller, in particular due to the Buyer not providing the documents (construction plans, specifications etc.), samples etc. which were required for the delivery.
(3) If the Seller cannot meet binding delivery deadlines for reasons which are not its fault (non-availability of the service), it shall notify the Buyer of this immediately and at the same time notify the Buyer of the estimated new delivery date. If a service is still not available within the new delivery deadline, the Seller is permitted to withdraw in full or partially from the contract; any counter service provided by the Buyer shall be refunded immediately. In this context a case of non-availability of the service is in particular the later self-delivery by the Seller’s sub-contractors, if a congruent hedging transaction was already in place upon the conclusion of the contract. The legal right of withdrawal as well as the legal provisions about the execution of the contract if the service obligation is excluded (e.g. the impossible nature or unreasonableness of the service and/or supplementary performance) remain unaffected by this. If the Buyer cannot be expected to accept the delivery or service due to a delay, it can withdraw from the contract by sending the Seller a written declaration.
(4) The start of the delivery default by the Seller is based on the legal provisions. In any case however, it is necessary for the Buyer to send a warning.
(5) The Seller is not liable for the inability to execute the delivery or for delivery delays, if they have been caused by force majeure or other events which were not foreseeable at the time the contract was concluded (e.g. natural disasters, strikes, lawful lockouts, lack of staff, energy or raw materials, difficulties in obtaining official licences, official measures, the incorrect or late delivery by suppliers and if a congruent hedging transaction was already in place upon the conclusion of the contract), which are not due to the Seller.
(6) If the Buyer is in default of acceptance or if, in the event of an unjustifiable item (individual production), it neglects to provide the required cooperation (Section 642 BGB [German Civil Code]), the Seller is permitted to demand compensation for additional expenses (e.g. storage costs) or suitable compensation. The Seller shall charge a flat-rate compensation rate of 0.25% of the invoice amount per new week, up to a maximum of 5%, starting at the end of the delivery period or – if there is no delivery period – upon a notification that the goods are ready for delivery, or if the Buyer neglects to provide the necessary cooperation, after an ineffective request to take the necessary action. Evidence of greater damage and the legal claims, in particular the right to termination, remain unaffected; the flat-rate fee is to be off-set against any further monetary claims. The Buyer is free to provide evidence, that the Seller did not incur any, or incurred much less damage, than the flat-rate fee charged.
§ 6 Warranty
(1) The statute of limitations for warranty claims due to material defects and defects of title is one year from delivery. This does not apply to claims for surrender to third parties (Section 438, paragraph 1, point 1, BGB) as well as for the compensation claims stated in Section 8, paragraphs 2 and 7; in this respect the legal statute of limitations shall apply.
(2) For the rights of the Buyer in the event of material damage or damage to title (including incorrect and short delivery as well as improper assembly or defective assembly instructions) the legal provisions shall apply, provided nothing else is specified below.
(3) The Seller assumes no liability for public statements by suppliers or other third parties (e.g. advertising statements).
(4) Defect claims of the Buyer require it to meet its legal obligations for inspection and notification of defects (Sections 377 and 381, BGB). If a defect is detected during the inspection or later, the Seller is to be notified immediately. Immediately means notifying the Seller within two weeks; to meet the deadline it is sufficient to send the notification on time. The notification has to be made in writing. Regardless of the afore-mentioned obligations for inspection and the notification of defects, the Buyer has to notify the Seller about clear defects (including incorrect or short delivery) within two weeks of delivery; to meet this deadline it is sufficient to send the notice of defect on time. The notification has to be made in writing. If the Buyer neglects to send the afore-mentioned notification of defects, the liability of the Seller for non-reported defects is ruled out.
(5) If the delivered item is defect, the Seller can initially choose whether it will make a supplementary performance by removing the defect (defect remedy) or by supplying a defect-free item (replacement delivery). The right of the Seller to reject the selected type of supplementary performance, based on the legal prerequisites, remains unaffected by this.
(6) The Seller is permitted to make the supplementary performance depends on the Buyer paying the due purchase price. The Buyer is, however, permitted to withhold a part of the purchase price which is suitable for the defect.
(7) The warranty becomes void if the Buyer makes changes or the subject matter of the delivery, or has a third party make the changes, without the approval of the Seller, thereby making the defect rectification impossible or making it unreasonably difficult. In any case the Buyer has to bear the extra costs incurred for the defect rectification due to the change.
(8) In urgent cases, e.g. in the event that the occupational safety is endangered or to prevent disproportionate damage, the Buyer has the right to remove the defect itself and to demand compensation from the Seller for the expenses necessary to do so. The Seller is to be notified immediately, where possible in advance, about any self-rectification measure of this kind. The right to self-help does not exist if the Seller would have been authorised to reject the supplementary performance in accordance with legal provisions.
(9) If the supplementary performance fails or if a deadline set by the Buyer for the supplementary performance expires without effect, or is superfluous according to legal provisions, the Buyer can withdraw from the purchase agreement or reduce the purchase price. There is no right of withdrawal, however, in the event of a negligible defect.
(10) In the event of defects to components of other manufacturers, which the Seller cannot remove for licence law or actual reasons, the Seller will, at its discretion, either assert its warranty claims against the manufacturer and the suppliers for the account of the Buyer, or assign the claims to the Buyer. Warranty claims against the Seller only exist in the event of claims of this kind based on other prerequisites and according to these General Terms and Conditions, if the legal assertion of the afore-mentioned claims against the manufacturer and supplier have been unsuccessful or have no prospect of success, for example due to insolvency. For the duration of the legal dispute, the statute of limitation for the warranty claims of the Seller against the Buyer shall be suspended.
(11) Claims of the Buyer for damages or compensation for expenses made in vain only exist in accordance with Section 8, otherwise they are ruled out.
(12) A delivery of used items agreed with the Buyer in an individual case is done without any warranty.
§ 7 Intellectual property rights
(1) In the event that the delivered item violates an intellectual property right or copyright of a third party, the Seller shall amend or exchange the item, at its discretion and expense, so that no more third party rights are violation, but the delivered item can still meet the contractually-agreed functions, or the Buyer can obtain the right of use by concluding a licence agreement. If the Seller is not able to do this despite a suitable deadline being set by the Buyer, the latter is permitted to withdraw from the contract or reduce the purchase price. Any compensation claims of the Buyer are subject to the restrictions in Section 8 of these General Terms and Conditions.
(2) In the event of legal violations by products of other manufacturers or suppliers which are delivered by the Seller, the Seller shall either, at its discretion, assert its claims against the manufacturer and/or supplier on the Buyer’s account, or assign the claims to the Buyer. In these cases, claims against the Seller only exist in accordance with this section (7), if the legal assertion of the afore-mentioned claims against the manufacturer and/or supplier have been unsuccessful or have no prospect of success, for example due to insolvency. For the duration of the legal dispute, the statute of limitation for the warranty claims of the Seller against the Buyer shall be suspended
§ 8 Other liability
(1) Provided nothing else arises from these General Terms and Conditions, including the following conditions, the Seller shall liable for a violation of contractual and non-contractual obligations in accordance with the applicable legal provisions.
(2) The Seller is liable for compensation in the event of intent and gross negligence – regardless of the legal grounds. In the event of ordinary negligence, the Seller is only liable for
a) Damage due to injury to life, limb or health,
b) Damage from the violation of a key contractual obligation. The key contract obligations include the obligation to provide on-time, defect-free delivery and installation as well as the consulting obligation, protection obligation and the duty to exercise proper care, which should allow the Buyer to use the delivered item as intended by the contract or are intended to protect the life or limb of the personnel of the Buyer, or third parties, or the Buyer's property from considerable damage.
(3) If the Seller is liable, on its merits, for compensation according to Section 8 (2), this liability is limited to the damage which the Seller could have anticipated as a possible consequence of a contract violation upon the conclusion of the contract or taking into account the conditions its was aware of would have had to be aware of, or which it would have had to foresee by applying the due care and diligence of a proper businessperson. Furthermore, indirect damage and consequential damage, which are due to defects to the delivered item, are only eligible for compensation, if this damage can typically be expected if the delivered item is used as intended.
(4) The liability limitations and disclaimers apply equally to the benefit of corporate bodies, legal representatives, employees and other vicarious agents of the Seller.
(5) If the Seller provides technical information or consultation, and this information or consulting is not part of the agreed contractual scope of services it is due to provide, this shall be done free-of-charge and excluding any liability.
(6) The restrictions of this section (8) do not apply, if the Seller fraudulently conceals a defect or has assumed a guarantee about the quality of the goods. The same applies to claims of the buyer according to the product liability law.
(7) The Buyer can only withdraw or terminate the contract due to a breach of duty, which does not consist of a defect, if the Seller has caused the breach of duty.
(8) The right of the buyer to free termination (in particular as per Sections 651 and 649 BGB) is excluded. In general the legal prerequisites and legal consequences apply.
§ 9 Retention of title
(1) Until the full payment of all current and future claims of the Seller from the purchase agreement and the on-going business relationship (secured claims) the Seller reserves the right to the ownership of the sold goods.
(2) Goods subject to the retention of title are not allowed to be pledged to third parties, or assigned for securities, before the full payment of the secured claims. The Buyer has to notify the Seller immediately in writing, if and to what extent third parties have access to goods which are the property of the Seller.
(3) If the Buyer behaves in a manner which does not conform to this contract, in particular in the event of the non-payment of the due purchase price, the Seller is permitted to withdraw from the contract in accordance with the legal provisions and/or to demand the goods back due to the retention of title. The claim for restitution does not include a notice of withdrawal; instead the Seller is permitted to merely demand the goods back and to reserve the right of withdrawal. If the Buyer does not pay the due purchase price, the Seller is only allowed to assert these rights, if the Buyer has been set a suitable deadline for payment, without effect, or if the setting of a deadline is superfluous according to legal provisions.
(4) The Buyer is authorised to use the goods subject to the retention of title in the regular course of business and to re-sell them. In this case the following supplementary conditions shall apply:
(a) If the delivered item has been processed or transformed, the right of retention also covers the newly created item, to the exclusion of Section 950, BGB. If the processing or transformation is done together with parts which are not the property of the Seller, the Seller then acquires corresponding part ownership based on the invoice value of the processed goods. The same shall apply in the event of the mixing or connection of the delivered item with third party goods.
(b) The Buyer hereby assigns any claims against third parties arising from the re-sale of the goods or the product, for safety reasons, to the Seller. The Seller accepts this assignment. The obligations of the Buyer specified in paragraph 2 also apply with regards to the assigned claims.
(c) The Buyer and the Seller are both entitled to collect the claim. The Seller is obliged not to collect the claim, if the Buyer has met its payment obligations to the Seller, is not in default of payment, if no application for the initiation of insolvency proceedings has been made and there is no other defect to its ability to perform. If this is, however, the case, the Seller can demand that the Buyer notifies the Seller of the assigned claims and its debtors, provides all the details necessary for receiving the claim, hands out the associated documents and notifies the debtor (third party) of the assignment.
(d) If the current value of the securities exceeds the claims of the Seller by more than 10%, the Seller shall, at the Buyer’s request and at its discretion, release securities.
§ 10 Data protection & advertising ban, credit check
(1) It is hereby pointed out that the data of the Buyer can be saved separately as inventory data and invoice data within the scope of the valid legal data protection provisions.
(2) The Buyer is aware that when placing an order it has the option to declare or reject its consent to be sent advertising materials. Furthermore it has the opportunity, at any time, to revoke this consent by phone call, letter, fax or e-mail. In the event of a revocation the Buyer’s data will be blocked for advertising materials and no more adverts will be sent.
(3) With the order the Buyer declares its consent for the Seller to use the data for a credit check (e.g. Schufa in Germany).
§ 11 Closing provisions
(1) The place of jurisdiction for any disputes arising from the business relationship between the Seller and the Buyer is the registered office of the Seller. Any compulsory legal provisions about an exclusive place of jurisdiction remain unaffected by this provision.
(2) The relationship between the Seller and the Buyer is subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated 11th April 1980 (CISG) does not apply.
(3) If the contract or these General Terms and Conditions contain loopholes, a legally valid provision shall be deemed to be agreed to fill these holes, which the contract partners would have agreed according to the commercial objective of the contract and the purpose of these general terms and conditions of delivery, if they had been aware of the loopholes.
Responsible parties as per § 10 MDStV [Interstate Agreement on Media Services]: Stefan Rühlicke