General Terms and Conditions of Sale, Delivery and Payment NEW Lift Steuerungsbau GmbH

In case of discrepancies, the German version shall prevail.

 

I. General – Written Form

1. These terms and conditions apply exclusively to entrepreneurs. Within the meaning of these terms, entrepreneurs are natural or legal persons or partnerships with legal capacity who act in the exercise of their commercial or independent professional activity.
2. Our terms and conditions of sale shall apply exclusively. We do not accept any conflicting or deviating conditions unless we have expressly agreed to their validity in writing. Our terms shall also apply if we carry out delivery to the customer without reservation despite being aware of conflicting or deviating conditions of the customer.
3. Reminders, deadlines, notices of defects, requests for subsequent performance or replacement delivery, as well as declarations of avoidance issued by the customer must be made in writing.

 

II. Prices – Consequences of Default – Set-off – Retention

1. Our prices are exclusive of freight and packaging. These will be invoiced separately. Value added tax is not included in our prices and will also be invoiced separately.
   If the customer requests express delivery, i.e. delivery on the next working day following the day of order, any additional costs incurred will be charged separately.
2. The customer shall automatically be in default of payment 14 days after delivery and receipt of the invoice if the purchase price has not been paid. Default interest shall amount to 8 percentage points above the base rate pursuant to § 247 German Civil Code (BGB), unless we can prove higher damages.
3. The customer shall only be entitled to set-off rights if their counterclaims have been legally established, are ready for decision, or are undisputed. The customer may only exercise a right of retention insofar as it is based on the same contractual relationship. If the customer is a merchant acting in the course of their business at the time of contract conclusion, rights of retention shall only exist for legally established, ready for decision, or undisputed claims.

 

III. Delivery – Transfer of Risk – Right of Retention

1. The commencement of any delivery period specified by us requires the fulfillment of the customer's contractual obligations. The delivery period begins upon dispatch of the order confirmation. Partial deliveries are permitted.
2. If we are in default of delivery following a written reminder from the customer, the customer may claim compensation for damages caused by the delay. In cases of slight negligence, this claim is limited to reasonably foreseeable, typical contractual damages.
   If the customer is aware that unusually high damages may arise from delayed delivery, they must inform us immediately and, if possible, prior to conclusion of the contract.
3. If we are in default, the customer may set a reasonable deadline in writing for performance. Setting a deadline is not required if we have seriously and definitively refused performance or if immediate assertion of rights is justified due to special circumstances. If delivery is not made within the set deadline, the customer is entitled to withdraw from the contract or claim damages instead of performance. The right of withdrawal without setting a deadline also applies if we have agreed on a fixed delivery date and the customer has linked their interest in performance to compliance with that date. In cases of slight negligence, claims for damages are limited to foreseeable damages.
4. Risk shall pass to the customer as soon as the goods have been handed over to the carrier or readiness for dispatch has been notified – even if the place of dispatch is not the place of performance. Insurance shall only be arranged upon request and at the customer’s expense.
5. If we are obliged to perform in advance, we may refuse delivery if, after conclusion of the contract and without our fault, it becomes known that our claim for payment is at risk due to the customer's financial situation. Our right to refuse performance shall cease if the purchase price is paid or appropriate security is provided.

 

IV. Warranty for Defects

1. If the delivered goods are defective, we shall initially have the right to choose between rectification (repair) and replacement delivery.
2. If subsequent performance fails, the customer may choose between a reduction in price and rescission of the contract. In the case of minor defects, the customer is only entitled to a price reduction.
3. The customer must notify us in writing of obvious defects no later than two weeks after receipt of the goods. Failing this, warranty claims shall be excluded. The burden of proof regarding the time of detection and recognizability of the defect lies with the customer.
   If the customer is a merchant acting in the course of their business, § 377 German Commercial Code (HGB) shall remain unaffected.
4. If the customer chooses rescission of the contract, they shall not be entitled to claim damages for the defect in addition.
5. If the customer claims damages instead, the goods shall remain with the customer if this is reasonable. Damages shall be limited to the difference between the purchase price and the value of the defective goods, unless we have fraudulently caused the breach of contract.
6. The warranty period is one year from delivery of the goods. After this period, claims for damages due to defects shall also become time-barred. If the goods are used in accordance with their usual purpose for a building and cause its defectiveness, the limitation period shall end two months after the customer has fulfilled the claims of their client, but no later than five years after delivery. Recourse claims of a customer who has sold the goods to a consumer remain unaffected pursuant to § 479 BGB. If VOB/B is agreed as the contractual basis, only its limitation periods shall apply. Liability for intent and gross negligence, as well as liability for injury to life, body or health, shall remain unaffected. Statutory limitation periods shall apply in these cases.
7. Public statements, in particular in advertising or labeling regarding certain properties of the goods, do not constitute a specification of quality. Only the manufacturer's product description defines the agreed quality.
8. The delivery of defective assembly instructions obliges us only to supply proper assembly instructions, unless the defect can no longer be remedied in this way.
9. Warranty does not apply to natural wear and tear, nor to damage occurring after transfer of risk due to improper or negligent handling, modifications or repairs carried out by the customer, excessive use, unsuitable operating materials, chemical, electromagnetic or electrical influences, or other fault of the customer.

 

V. Duty to Inform of Risks – Overall Liability

1. If the customer is aware or becomes aware that the intended use of the goods may result in an unusually high liability risk for us, they must inform us immediately and, if possible, prior to conclusion of the contract.
2. If we or our legal representatives or agents have acted with slight negligence and the cause of the damage is not the absence of a guaranteed characteristic, liability shall be limited to foreseeable damages.
3. If our liability is limited according to Section V (2), this shall also apply to all other claims, including claims arising from culpa in contrahendo, breach of ancillary obligations, and producer liability.
4. These limitations shall not apply to injury to life, body or health. Claims under §§ 1, 4 of the Product Liability Act and in cases of inability to perform shall also remain unaffected.

 

VI. Retention of Title

1. We retain title to the goods until receipt of all payments arising from the delivery contract, including claims for damages caused by default (in particular default interest and legal costs).
2. In the event of seizure or similar third-party interventions, the customer must notify us immediately in writing so that we can bring an action pursuant to § 771 German Code of Civil Procedure (ZPO). If such action is successful but enforcement of costs against the third party fails, the customer shall be liable for the resulting loss.
3. If the customer purchases the goods for commercial resale, they shall be entitled to resell the goods in the ordinary course of business or (typically within the framework of contracts for work and services) to combine them with real estate or buildings. However, the customer hereby assigns to us already at this point all claims in full arising from such resale or from such combination against their customers or third parties, irrespective of whether the goods are resold without or after such combination within the meaning of paragraph 4 or are combined with real estate/buildings. If, in addition to us, other suppliers with retention of title also have co-ownership in the resold or combined item, the customer shall assign the claims to us only in proportion to the ratio of the invoice value of our goods to the total invoice value of the other reserved goods. The assigned claims shall serve as security in place of the goods underlying the assignment. The customer shall remain authorized to collect these claims even after the assignment. Our right to collect the claims ourselves shall remain unaffected, subject to the provision below. As a general rule, we undertake not to collect the claims ourselves and not to disclose the assignment to the respective debtor of the customer. However, if the customer defaults on payment, becomes insolvent or if an application for the opening of insolvency proceedings is filed, we shall be entitled to revoke the authorization to collect, to notify the customer’s debtor of the assignment, and to collect the claims ourselves; in the case of mere default of payment, such revocation must be threatened one week in advance. In this case, the revocation shall be limited to claims arising from the resale (or combination) of those goods for which the customer is in default of payment. In the event of revocation of the authorization to collect, we may require the customer to disclose the assigned claims and their debtors, to provide all information necessary for collection, to hand over the relevant documents, and to notify the debtors (third parties) of the assignment.
4. If the goods are combined with other items not supplied by us in such a way that they become essential components of a single unified item, we shall acquire co-ownership of the new item in proportion to the value of the goods relative to the other items at the time of combination. If, in this context, an item belonging to the customer is to be regarded as the principal item, it shall be deemed agreed that the customer shall transfer to us proportionate co-ownership in accordance with the aforementioned value ratio. The customer shall hold such co-ownership on our behalf. With respect to our ownership of the new item, the customer shall have towards us the same rights (in particular regarding the anticipated acquisition of ownership and the right of resale) and obligations as applied to the goods delivered under retention of title. Paragraphs 1 to 3 shall apply accordingly and in full to our co-ownership share in the new item.
5. We undertake to release securities upon request to the extent that their realizable value exceeds the claims to be secured.

 

VII. Place of Jurisdiction – Applicable Law – Severability Clause

1. If the customer is a merchant, the place of jurisdiction shall be our registered office. However, we are entitled to bring an action against the customer at their place of residence or business.
2. The law of the Federal Republic of Germany shall apply exclusively. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
3. If the contract contains a gap or a provision is wholly or partially invalid, the remainder of the contract shall remain valid. The invalid provision shall be replaced by a valid provision that comes closest to the intended economic purpose, unless statutory provisions apply.