I General Provisions

1. Conclusion of contract

Our deliveries are made exclusively based on the following conditions. The buyer’s purchasing conditions are hereby expressly contradicted. You do not oblige us even if we do not object again when the contract is concluded. Our general terms and conditions of sale, delivery and payment are deemed to have been accepted upon receipt of the goods at the latest. For non-merchants, these terms and conditions can only be changed by contractual agreement or extended to future transactions. These terms and conditions also apply to merchants for future follow-up transactions, with the proviso that we expressly reserve the right to make changes to future transactions. All our offers are subject to change and non-binding. Orders, price agreements and other agreements – especially insofar as they change these terms and conditions of sale – only become binding for us with our written confirmation.

2. Prices, payment conditions

The prices stated in our order confirmation or those in our price list valid at the time the contract was concluded apply. If the costs for materials, wages, auxiliary materials or statutory fees increase significantly in the period between conclusion of the contract and delivery for reasons for which we are not responsible, we are entitled to increase the agreed price by disclosing the original calculation as well as a specific explanation of the increase in the cost factors in accordance with the scope to compensate for the increase in costs. When dealing with non-merchants, we are only entitled to do this if there are more than four months between the conclusion of the contract and the delivery date. In this case, non-merchants are entitled to withdraw from the contract. Unless otherwise agreed, all payments must be made in cash without deductions within 30 days of the invoice date. Cash discounts are only permitted if expressly agreed. We only accept self-acceptances and discountable bills of exchange for payment purposes based on an express agreement. Credits for checks and bills of exchange are subject to receipt, less the applicable basic interest rate, any bank and collection fees, with the value date on the day on which we can dispose of the equivalent value. We are entitled to charge merchants interest of 5% if the payment deadline is exceeded. If the buyer defaults, we are entitled, subject to asserting further damages for default, to demand default interest of 2% above the respective base interest rate of the German Bundesbank – but at least 6%. The buyer reserves the right to provide proof of lesser damage. In the event of a culpable violation of these terms and conditions of sale, delivery and payment as well as incapacity on the part of the buyer, the claim affected by this violation will become due immediately. If, after conclusion of the contract, reasonable doubts arise about the buyer’s solvency that jeopardize our claim, we are entitled to only carry out outstanding deliveries against advance payment or security. After setting a reasonable grace period with a threat of rejection, we are entitled to withdraw from the contract after the deadline has expired without result or to demand compensation for non-performance. The buyer may only offset undisputed or legally established claims. Merchants are only entitled to assert a right of retention with regard to counterclaims that are based on the same contractual relationship. We are entitled to offset our claims against the buyer – regardless of the legal basis.

3. Retention of title

All goods delivered remain our property until all claims to which we are entitled against the buyer – regardless of the legal basis – arising from the business relationship have been fulfilled. This also applies to goods for whose delivery the buyer has expressly based his payment. For current invoices, the retention of title serves as security for our balance claim. The buyer may only sell the reserved goods in the ordinary course of business under his normal terms and conditions and only as long as he is not in default. He is only entitled to resell reserved goods on the condition that the claim from the resale is transferred to us. He is not entitled to dispose of the reserved goods in any other way, in particular to pledge them or assign them as security. The buyer hereby assigns to us the claims to which the buyer is entitled from the resale of the (possibly treated or processed) reserved goods or from any other legal reason relating to the reserved goods in the amount of the value of the reserved goods. They serve as security to the same extent as the reserved goods. If the value of the securities we hold exceeds our claim by more than 20%, we are obliged to release securities of our choice at the buyer’s request. The buyer is under no circumstances authorized to assign the claims to third parties. At our request, he is obliged to inform his customers of the assignment to us and to provide us with the information and documents necessary for collection. The goods delivered are processed for us without this giving rise to any obligations for us. If the buyer processes, combines or mixes the reserved goods with other items that do not belong to us, we are entitled to co-ownership of the new item as reserved property in the ratio of the invoice value of the processed reserved goods to the invoice value of the other processed goods. The buyer’s expectant right to the delivered item continues with the item. If the retention of title expires for any reason, the resulting claim will take its place. If the buyer defaults on payment or if circumstances arise after conclusion of the contract that jeopardize the satisfaction of our claim, we are entitled to withdraw from the contract. In this case, at our request, the goods must be returned to us immediately and an inventory list sent to us. The reclaiming of the goods by us is deemed to be a withdrawal from the contract. Under these conditions, we are entitled to sell the goods at auction or privately at our discretion and to offset the proceeds against the purchase price. In the event of seizure or seizure of the reserved goods or claims assigned to us by third parties, the buyer must point out our reserved ownership or the assignment and inform us immediately and hand over the documents necessary for an intervention. If the intervention was successful and the costs cannot be recovered by the third party, these will be borne by the buyer. The rights from § 46 KO exist in addition to the existing rights. The buyer waives the rights under § 50 of the settlement regulations.

4. Liability

We are liable
a) in commercial transactions and towards legal entities under public law or towards a special fund under public law, unrestricted for intent. We are also liable for gross negligence and for any culpable breach of essential contractual obligations. Liability is limited to the foreseeable damage that is typical for the contract; the limitation does not apply in the event of gross negligence on the part of our legal representatives or senior employees,

b) in non-commercial transactions for intent and gross negligence as well as any culpable violation of essential contractual obligations. In the event of a breach of essential contractual obligations, unless the breach is intentional or grossly negligent, liability is limited to the foreseeable damage that is typical for the contract.

5. Fulfillment and jurisdiction

The place of performance for all rights and obligations of both parties to the contract – with the exception of the buyer’s payment obligation – and the place of jurisdiction for contracts with registered traders, legal entities under public law or special funds under public law is Bochum. However, we are free to appeal to the court at the buyer’s general place of jurisdiction.

6. German law, partial ineffectiveness

The law of the Federal Republic of Germany. UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. The ineffectiveness of individual provisions of these conditions does not affect the effectiveness of the remaining provisions. The contracting parties undertake to replace the ineffective obligations with a regulation that comes closest to the intended result and which the parties would have agreed if they had known that this provision was ineffective.

II Execution of delivery

1. Delivery time

The specified delivery dates apply ex works. They are only approximate and, without prejudice to our rights arising from the buyer’s default, are postponed for the period during which the buyer is in default with his obligations under this or any other transaction. If a delivery date has been confirmed, it is deemed to have been met if and to the extent that we have dispatched the goods on time. If dispatch is not possible for us through no fault of our own or that of the supplier, or if the required shipping instructions, the agreed acceptance or the opening of a letter of credit are not given in a timely manner, the delivery deadline is deemed to have been met with the timely notification of readiness for dispatch. If we ourselves are in default, the buyer must give us a reasonable grace period. After this period has expired, the buyer can withdraw from the contract to the extent that the service is due and the goods have not been reported as ready for dispatch in their raw or finished state by the end of the deadline. Claims for damages due to non-performance due to slight negligence, unless this affects essential contractual obligations, are excluded.

2. Force majeure

Force majeure events that occur after the conclusion of the contract entitle us to postpone delivery for the duration of the hindrance – but for a maximum of 4 months – plus a reasonable start-up time. If the disability lasts more than 4 months, we are entitled to withdraw from the contract. Any advance services rendered must be reimbursed by us. Circumstances that make delivery significantly more difficult or impossible for us are to be treated as force majeure, such as: B, strike or lawful lockout, fire, machine breakdowns or operational disruptions in our or a supplier’s operations for which we are not responsible, including from the point of view of taking over, precautionary measures or averting fault, as well as unforeseeable shortages of raw materials or fuel. Our right of withdrawal according to sentence 1 does not apply in the event of delivery delays as a result of labor disputes. The buyer can request that we declare, by setting a reasonable deadline, whether we want to withdraw or deliver within a reasonable deadline. If we do not explain this in a timely manner, the buyer can withdraw from the contract.

3. Partial delivery, permanent contract, exceeding the contract

We are entitled to partial services to a reasonable extent. In the case of contracts with continuous delivery, call-offs and specifications for approximately equal monthly quantities must be given to us in a timely manner, otherwise, after a grace period has been set without success, we are entitled to divide and specify ourselves and to deliver the goods or, because of the part that was not released or specified in time, of the entire part that is still in arrears to withdraw from the conclusion and to demand compensation. If the contractual quantity is exceeded by the buyer’s individual calls, we are entitled, but not obliged, to deliver the excess. Unless a separate agreement is made, we will invoice any goods delivered in excess of the final delivery amount at the daily price valid at the time of the last delivery or the final price.

4. Acceptance

If special quality regulations have been agreed or the goods are going abroad, the buyer is obliged to inspect and accept the goods at the delivery factory within 5 working days of notification that they are ready for dispatch. The buyer bears the personnel acceptance costs, we bear the material acceptance costs. If the buyer does not accept the goods, does not accept them in a timely manner or does not accept them completely after notification that they are ready for dispatch, we are entitled to store the goods and charge our own or third-party storage costs incurred as a result or to deliver the goods at the buyer’s expense after setting a reasonable grace period to send this. The goods are then deemed to have been accepted upon dispatch or storage.

5. Packaging

If shipping has to be done on a reel, this will be invoiced and must also be paid for. Reels are not packaging within the meaning of the AWG. A return can be made after consultation without credit. The packaging is also weighed. The delivery in rings, without reel, is calculated gross for net if sold by weight.

6. Shipping and transfer of risk

Material reported ready for dispatch must be called up for dispatch immediately in accordance with the delivery instructions, otherwise we are entitled to store it at our discretion at the buyer’s expense and to invoice it as delivered ex works immediately after notification of readiness for dispatch. If pickup by truck is planned and the material is not picked up within 5 days of our notification of readiness for dispatch – corresponding to the agreed delivery date – we are entitled to dispatch the goods ourselves at our own discretion.
The legal regulations regarding delay in acceptance remain unaffected. When the goods are handed over to the freight forwarder, freight forwarder or freight forwarder, the risk – including confiscation in any case – even in the case of fob or cif transactions – is transferred to the buyer. Shipping routes, means of transport and protection are reserved to us at our discretion. Protective equipment, covered and special vehicles are charged separately.

7. Defects, delivery of non-conforming goods

If the purchase is a commercial transaction for both parties, the buyer must report any externally visible errors in writing or by fax within 8 days of receipt of the goods. Unless otherwise agreed, warranty claims that the buyer may have against us in this case due to or in connection with the delivery of the goods expire one year after delivery of the goods. For non-merchants, there is a notice period of 14 days from receipt of the goods in the event of obvious defects. Defects that are not detectable within this period must be reported in the aforementioned form after they are discovered and any treatment or processing must be stopped immediately (the statutory warranty obligation applies).
In the case of justified complaints, we are obliged, at our discretion, to repair the defect or to deliver fault-free goods by taking back the defective goods, or we or our vicarious agent are guilty of intent or gross negligence. In the event of delayed or omitted subsequent delivery or failure of subsequent improvement or defects in the subsequently delivered goods, the buyer is entitled to demand a reduction in the remuneration (reduction) or reversal of the contract (cancellation). Further claims for damages are excluded, except in the cases of sentence 1 of the previous paragraph, as well as in the event of fraudulent behavior and breaches of contractual obligations on our part that significantly jeopardize the purpose of the contract.
Defects in part of the delivery only give rise to a complaint about the entire delivery if it is not possible to reasonably separate defective and non-defective goods. Warranty claims cannot be asserted if the buyer does not give us the opportunity to convince ourselves that the complaint is justified. Claims under the Product Liability Act remain unaffected. The above provisions also apply to the delivery of goods other than those in accordance with the contract.

8. Refund

Properly delivered products will only be taken back by us in exceptional cases and to the extent possible, if they are in perfect condition and do not come from a contract production. We charge 25% of the value of the goods, but at least € 30,00 net.

9. Dimensions, weights, quality

Deviations from dimensions, weight and quality are permitted according to DIN EN regulations or applicable practice. The weights are determined by the weighmasters on our calibrated scales, which are constantly monitored, and are decisive for the calculation. When delivering in truckloads, the total weight is decisive for the calculation. Differences compared to the calculated individual weights must be distributed proportionately. Proof of weight is provided by presenting the weighing report.

III: Additional conditions for export transactions

1. Unless these conditions of sale or special agreements stipulate otherwise, the international trade clauses set out in the incoterms apply to our sales obligations in the form valid on the day of the order confirmation.

2. The prices specified in our order confirmation apply.
Our prices assume normal, unhindered transport conditions, for example when transporting by water unhindered shipping. The buyer is responsible for additional costs resulting from incomplete loading or hindrance to transport conditions.
Customs duties, consular costs, freight, insurance premiums and other additional costs, if they are included in the agreed price and increase after conclusion of the contract or if they arise new, will be borne by the buyer. The same applies to the additional costs that arise as a result of shipping being required via a transport route other than the intended one. Unless otherwise agreed, payment is due immediately upon receipt of the invoice without deductions.

3. In the event of transport damage, the buyer must immediately arrange for the facts of the case to be reported to the responsible authorities, otherwise claims against the transport carriers and insurers will no longer apply. These conditions apply to fob sales and mutatis mutandis to other sales, in particular for franco ship or cif port of reference.

Bochum, January 2024

T&Cs of LS+S Lifting Supply + Service GmbH