General terms and conditions of Lischka GmbH
General Terms and Conditions of Purchase of Lischka GmbH
1.1. Terms and conditions of the supplier deviating from or supplementing these General Terms and Conditions of Purchase are non-binding for the purchaser, even if the purchaser does not object or the supplier declares that he wishes to deliver only on his own terms.
1.2. If the purchaser has informed the supplier of the intended use oft he supplies or if this use is recongnizable for the supplier even without explicit notice, the supplier is obliged to inform the purchaser immediately if the deliveries are not suitable to fulfill this purpose.
1.3. The supplier is obliged to confirm the order in text form within a period of two weeks, unless the deliveries or services have meanwhile been provided. A late acceptance is considered a new offer and requires the acceptance of the customer.
1.4. Orders require a written form. Verbal orders, changes or additions to orders are only binding if they have been confirmed by the customer in a written form.
1.5. The transfer of orders to third parties without the consent of the purchaser is inadmissible and entitles the purchaser to withdraw completely or partially from the contract and to claim damages.
1.6. The supplier must provide all evidence (eg certificates of origin) which are required for the purchaser to obtain customs or other benefits.
2. Delivery date
2.1. Agreed delivery dates are binding. For the timeliness of deliveries without assembly or set-up, it depends on the receipt at the delivery address indicated by the customer, for the punctuality of deliveries with installation or assembly as well as of services on their acceptance.
2.2. Circumstances that jeopardize the adherence to agreed delivery dates are to be reported to the customer immediately in written form in order to clarify the further procedure. The right of the customer, if necessary to withdraw from the contract and to demand compensation for non-performance, remains unaffected.
2.3. The orderer can get a contractual penalty until payment of the last deliveries or services tob e rendered in the context of the order. The purchaser is further entitled to claim compensation for damage beyond the contractual penalty. The contractual penalty is to be credited against the damages.
3. Shipping and transfer of risk
3.1. Unless otherwise agreed, the shipping and packaging costs, customs duties, fees and other charges shall be borne by the supplier.
In the case of pricing ex works or ex warehouse oft he supplier, shipping is to be effected at the lowest possible cost, unless the purchaser has prescribed a specific mode of transport.
Additional costs due to a non-adherence to shipping or packaging regulations or to accelerated transport, which may be necessary to comply with a delivery date, shall be borne by the supplier.
With a free pricing receiver can still give instructions after conclusion of the contract.
If the supplier incurs additional costs as a result, the orderer will replace them if the orderer has been informed by the supplier stating the difference and still adheres to his instructions.
3.2. Each delivery must be accompanied by packing slips or delivering notes stating the contents, the order number and other order signs / informations.
The purchaser must be sent dispatch notices with the same information at the latest when dispatching.
If for a delivery the required shipping documents are not delivered on time due to the fault of the supplier or if the aforementioned information is missing in the shipping documents, the goods are stored at the expense and risk of the supplier until the arrival of the shipping documents or the complete information.
3.3. In the case of deliveries without installation or assembly, the risk passes with their receipt at the delivery address indicated by the orderer.
For deliveries with instalation or assembly and for services, the risk shall pass to the acceptance to be carried out at the place of installation.
Costs of insurance of the goods, in particular a forwarding insurance is not accepted by the purchaser, unless otherwise agreed.
Invoices are to be issued separately for each order / delivery and under specification of the order number as well as other order numbers to the address of the orderer, unless a different billing address is specified in the order.
Duplicate bills are to be marked as such.
The sales tax is to be shown separately in the invoice. Invalid invoices will be returned to the exhibitor.
Rechnungen sind für jede Bestellung/Lieferung gesondert und unter Angabe der Bestellnummer sowie sonstiger Bestellkennzeichen an die Adresse des Bestellers zu erteilen, sofern nicht in der Bestellung eine andere Rechnungsanschrift angegeben ist.
Rechnungsduplikate sind als solche zu kennzeichnen.
Die Umsatzsteuer ist in der Rechnung gesondert auszuweisen. Nicht ordnungsgemäß ausgestellte Rechnungen werden dem Aussteller zurückgesandt.
6.1. Payments are made on the terms agreed in the order or delivery contact.
Zahlungen erfolgen zu den in der Bestellung bzw. Liefervertrag vereinbarten Bedingungen.
6.2. Unless otherwise agreed, the payment period begins as soon as the delivery or service has been completed and the invoice has been duly issued.If the delivery or service is associated with assembly or commissioning, which the contractor must carry out, the period of payment commences upon acceptance of the service by the customer.
Insofar as the supplier has to provide material tests, test reports, quality documents and other documents, the completeness of the delivery and service also presupposes the receipt of these documents. The payment period does not start before the agreed delivery date.
6.3. Payments do not imply recognition of the supplies or services as being in accordance with the contract.
7. Assignment and pledging
The assignment or pledge of contractual claims is only effective with the written consent of the customer.The purchaser will not refuse this consent without a good cause / reason.
8.1. The supplier warrants that the supplies or services comply with agreed specifications, have warranted characteristics and are free from defects that cancel or reduce their value or suitability for normal or contracted use.
The supplier further warrants that the deliveries and services, unless otherwise agreed, comply with the recognized rules of technology, the relevant environmental protection regulations, accident prevention regulations and other health and safety regulations as well as the generally accepted safety and occupational health regulations in force in the Federal Republic of Germany.
8.2. The supplier must notify the purchaser in written form of any changes in the nature of the composition of the processed material or in the constructive execution in relation to similar deliveries or services previously provided to the purchaser prior to commencement of production or prior to performance of the services. The changes require the consent of the purchaser in a written form.
8.3. Complaints due to defective delivery, due to incorrect delivery or quantity errors, the purchaser can assert within 8 days of its discovery.Insofar as a matter subject to a complaint becomes apparent only when the goods or services are processed or put into use, the customer can still object within 8 days of its discovery.
Insofar as incoming inspections are agreed according to random sampling procedures, in the event of exceeding the agreed limit quality value, the purchaser is entitled to completely reject the delivery or to inspect it 100% at the supplier´s expense.
8.4. The warranty period comprises 2 years in normal deliveries.If the delivered item is installed in a building or if it has been provided for a building in accordance with its usual manner of use, the warranty period is 5 years.If the contract provides for longer warranty periods, this apply.
8.5. In the case of material defects, the purchaser may, at his discretion, assert the statutory warranty claims, in particular demand subsequent performance in the form of replacement delivery or rectification by the supplier – including at the place of use – which the supplier demands without delay and without any costs (in particular transport, travel, labor or material costs) for the purchaser.
8.6. If the supplier does not perform the supplementary performance within a reasonable period to be set by the purchaser, the purchaser is entitled to withdraw from the contract completey or partially or to demand a reduction in the purchase price or to have the defect rectified or redelivered at the supplier´s expense. Furthermore, he is entitled to demand damages instead of performance.
8.7. The choice of the customer for this warranty rights can be made at his discretion.
8.8. For rework, replacement orders or repair services the supplier guarantees in the same way as for the original deliveries or services.
8.9. Further statutory claims of the purchaser – in particular with regard to promised properties – remain unaffected.
9. Supplier recourse
9.1. The purchaser´s legally determined recourse claims within a supply chain (supplier recourse in accordance with §§ 445a, 445b, 478 from the Civil Code) are in addiction to the claims for defects without limitation to the purchaser.
In particular, the purchaser is entitled to demand exactly the type of supplementary performance (repair or replacement) from the supplier, which he owes his purchaser in individual cases.The legal right to vote (§ 439 Paragraph 1 from the Civil Code) is not restricted by this.
9.2. Before the order acknowledges or fulfills the defect claim asserted by his customer (including reimbursement of expenses according to §§ 445a Paragraph 1, 439 Paragraph 2 und 3 from the Civil Code), he will inform the supplier and ask for a written statement with a brief statement of the facts.
If a substantiated statement is not made within a reasonable period of time and if no mutually agreed solution is brought about, the defect claim actually granted by the orderer is deemed to be owed to his buyer. The supplier is responsible in this case to present a counter evidence.
9.3. The claims arising from the supplier recourse of the purchaser shall also apply if the defective goods have been ordered by the purchaser or another contractor, e. g. by incorporation into another product, was further processed.
10. Producer liability
10.1. If the supplier is responsible for any product damage, he shall indemnify the purchaser from claims of third parties insofar as the cause is set in his sphere of control and organization, and he himself is liable in the external relationship.
10.2. In the context of his indemnity obligation, the supplier shall reimburse expenses in accordance with §§ 683, 670 from the civil code, which arise from or in connection with a claim of third parties, including recalls carried out by the customer. As far as possible and reasonable, the customer will inform the supplier about the content and extent of the recall measures and give him the opportunity to comment. Further legal claims remain unaffected.
11. Industrial property rights
11.1. The supplier is liable for the fact that the deliveries or services – also with regard to their use – do not infringe any industrial property right of third parties.
11.2. The supplier grants the purchaser the non-exclusive, transferable and unlimited right to:
– use the supplies and services, to integrate and distribute them in other products
– use or to let use software and the associated documentation in connection with the installation, commissioning, testing and operation of the software
– sublicense the above right of use to affiliates, other distributors and end users
– use and copy any software for integration into other products, unless the parties have contractually agreed otherwise
For the liability, as far as nothing else is regulated in these conditions, the legal regulations apply.
13. Property of the customer
Models, samples, production facilities, tools, measuring and test equipment, materials provided, drawings, worksheets, print templates and other similar stuff provided by the orderer to the supplier, remain property of the purchaser.
They are kept free of charge by the supplier ina careful and business-minded manner, marked as the property of the purchaser and used by the supplier only to fulfill the deliveries and services to the purchaser.
They may be made accessible to third parties only after written agreement of the orderer (secrecy) and can, as far as not otherwise agreed in the individual case, be demanded by the customer at any time.
14. Spare parts
14.1. The supplier is obliged to deliver replacement parts for the period of the expected technical use, but at least for 10 years after delivery on reasonable terms.
14.2. If the supplier discontinues the production of the spare parts, the supplier is obligated to give the orderer the opportunity to place a final order and / or to hand over to him all equipment and documents required for the production of the replacement parts and to allow them to be used free of charge.
15. Inability to pay / Insolvency by the supplier
If the supplier stops his payments, if a provisional insolvency administrator is appointed or if insolvency proceedings are applied for or opened for the assets of the supplier, the customer is entitled to extraordinarily terminate the contract in whole or in part.
In this case the purchaser can claim the existing facilities / equipment or previous deliveries and services of the customer for the continuation of the work, against some reasonable compensation.
16. Jurisdiction, applicable law
Jurisdiction is – as far as permissible – the seat of the customer. The contract is exclusively subject to the German law – to the exclusion of the UN Sales Convention.
delivery terms and conditions of Lischka GmbH
1.1. For all our offers, confirmations, deliveries and services, the following conditions apply exclusively, even if they are not expressly agreed again. They are accepted by the customer when the order is placed, at the latest when the first delivery or service is accepted. Deviations from these terms and conditions are only effective if we confirm them by a written form.
1.2. Conflicting conditions of purchase of the customer are not part of the contract, even if Lischka does not expressly contradict them.
1.3. These conditions also apply to all future financial statements, agreements, deliveries, services and consultations. At the latest with the acceptance of the goods, these terms and conditions are considered accepted.
1.4. All agreements made between Lischka and the purchaser for the purpose of executing a service are only binding if they are laid down in writing or in text form.
2. Conclusion of the contract
2.1. Our offers are subject to change and valid for 1 month unless otherwise stated.
2.2. A contract is only concluded with our order confirmation in text form or by delivery or service.
3.1. Cost estimations, drawings and other documents (hereinafter referred to as „documents“) are subject to our absolute rights of ownership, copyrights and ancillary copyright. The documents may only be made accessible to third parties with our prior consent and must be immediately returned to us if the Lischka order is not placed.
3.2. The customer has the non-exclusive right to use standard software in the context of the contractual use of the agreed equipment. The customer may make a backup copy without express agreement.
3.3. The information contained in brochures, catalogs, circulars, advertisements and price lists or in the documents belonging to the offer, drawings, illustrations, technical data, weight descriptions, dimensional descriptions and performance specifications are not binding, unless they are expressly described as binding in the order confirmation.
Claims and wishes of the customer shall only become part of the contract if we have expressly confirmed them in a written form or in text form in the order confirmation.
4. Delivery times
4.1. Binding delivery dates or delivery deadlines require the express agreement in text form.
4.2. The delivery period begins with the dispatch of the order confirmation.
Compliance with the deadline presupposes the timely receipt of all documents to be supplied by the purchaser, necessary approvals, the timely clarification and approval of the plans, compliance with the agreed payment dates and other obligations.
4.3. The delivery period is met if the readiness for dispatch has been notified by the time the delivery has expired or the delivery item has left the factory.
The delivery periods are extended – without prejudice to our rights arising from the default of the purchaser – by the period by which the purchaser is in arrears with his obligations toward us.
If the failure to meet the deadline for deliveries or services is demonstrably due to mobilization, war, riots, strikes, lockouts or the occurrence of other unforeseen obstacles beyond the control of the supplier or its suppliers, the time limit shall be reasonably extended.
4.4. Lischka may, at its discretion, demand advanced payment or security deposit prior to delivery.
4.5. If the purchaser does not recall the reported goods, the goods will be invoiced to him, stored at his expense and risk and, one month after notification of readiness for dispatch, storage fee of 0.5% of the total invoice amount will be charged to him for each commenced month. The storage fee is limited to a total of 5% of the total invoice amount, unless higher costs are proven.
5. Risk transfer
The risk passes to the purchaser when the delivery items have left the factory. This also applies to partial deliveries and regardless of who has taken over the shipment costs, the delivery or installation. Insofar as acceptance has to be made, this shall be decisive for the transfer of risk. If the delivery cannot be made or cannot be made on time due to circumstances that are not attributable to Lischka, the risk shall pass from the day of notification of readiness for shipment on or from the day of acceptance readiness on to the purchaser.
6.1. The delivery and / or service shall be made at the agreed prices, if not agreed, at the prices of Lischka valid on the day of delivery.
6.2. The prices are net ex works, unloaded, without packaging, freight, and insurance and additional documentation costs, duty unpaid and without value added tax. The costs will be calculated and listed separately.
6.3. The agreed prices are only valid for the respective contract.
6.4. If installation or assembly have been taken over by Lischka and is not otherwise agreed, the purchaser shall bear the required compensation in addition to all necessary ancillary costs such as travel expenses, costs for the transport of hand tools, personal luggage and triggers.
6.5. For deliveries made later than four months after conclusion of the contract, we reserve us the right to take into account any wage and / or material price increase, occurring after the offer has been submitted by adjusting the prices.
7. Terms of payment, set-off
7.1. Our invoices are payable without deduction 10 days after date of invoice and payable net cash, unless otherwise agreed.
7.2. The exchange of bills, checks or the assignment of claims for the settlement of our remuneration claims requires our consent and is only on account of performance. Expenses and costs as well as the danger for timely presentation and protests are fully borne by the customer.
7.3. If the term of payment is exceeded, Lischka is entitled to charge interest at the rate of 9% per year above the respective base interest rate. The assertion of further damage is not excluded.
7.4. In the event of default in payment and justified doubts as to the purchaser’s solvency or creditworthiness, we are entitled, without prejudice to our other rights, to demand security or advance payments for outstanding deliveries and to immediately claim all claims arising from the business relationship.
7.5. Only undisputed, decision-ready or legally valid claims entitle the customer to set-off.
The exercise of a right of retention is excluded, if this is based on another legal relationship.
8. Installation and assembly
8.1. The customer must provide at his own expense and in time sufficient auxiliary staff and equipment for unloading, transport to the point of use and during installation and assembly of the goods.
8.2. Prior to begin of assembly, all necessary supplies and services of the purchaser must be executed and advanced to the extent that installation can be started immediately upon arrival of the fitters and assembly works can be carried out without any interruption. The installation of gas, water and electrical connections as well as water drainage are not part of the delivery program. Necessary connections must firstly be made by the customer himself, observing the regulations of the local electricity and waterworks.
8.3. If the installation, assembly or commissioning is delayed due to circumstances on the construction site without our fault, the purchaser shall bear the costs of the waiting period and additional expenses to an appropriate extent.
9. Retention of title
9.1. Until the full payment of our claims from the business relationship with the purchaser, the goods sold remain our property. The purchaser is obliged to treat the delivery with care and to insure it against fire, water and theft at its own expense. Insofar as maintenance and inspection work is required, the purchaser must have it carried out in good time at its own expense.
9.2. If there is a current account relationship between us and the commercial customer, we reserve ownership until the receipt of all payments from the current account relationship. The retention of title refers to the recognized balance. Insofar as we have agreed – in commercial transactions – with the purchaser to pay our claims by check or bill of exchange procedure, our reservation also extends to the encashment of the securities accepted by us and does not expire by a credit note, but only if the customer has released us from any liability assumed in his interest.
9.3. The customer is authorized to dispose of the purchased goods in the ordinary course of business.
9.4. The reservation of title also extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are considered the manufacturer. If the property rights remain with processing, mixing or combination with goods of a third part we acquire co-ownership in proportion of the invoice values of these processed goods.
9.5. The purchaser hereby assigns to us the claims arising from the resale against third parties as a whole or in the amount of our possible co-ownership share (see point 9.4.).
He is authorized to collect these until revocation or suspension of payments to us for our account, as long as the purchaser meets his payment obligations to us and third parties.
For the assignment of these claims, the purchaser is not entitled to collect debts by way of factoring, unless it is at the same time justified the obligation of the factor, the consideration in the amount of our share of claims as long as it directly has effect on us, as there are still demands on our part against the customer.
9.6. The sums recovered from this agreement must be transferred to us immediately. In the event of default, the purchaser is obliged to provide us with all information and documents necessary for the assertion of the rights to which he is entitled and, at our request, to notify the assignment to his customers or third parties. We are also entitled to such notice at any time without prior notice to the customer.
9.7. Access by third parties to the goods and claims belonging to us must be reported to us by the purchaser immediately by registered letter. The costs for the assertion of our rights towards the third party shall be borne by the customer, as far as we are not reimbursed by the third party.
9.8. The exercise of the reservation of title does not mean the resignation of the contract.
9.9. The goods and their resultant demands may not be pledged to third parties or transferred as a collateral action before complete payment of our claims.
9.10. If the value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the customer.
9.11. Agreements of the customer with third parties, which contradict these regulations to the retention of title, are ineffective.
10.1. Warranty rights of the purchaser presuppose that the purchaser has duly fulfilled his obligation to inspect and to give notice of defects owed in accordance with § 377 HGB (German Commercial Code).
10.2. Claims for material defects become statute-barred within 24 months, unless otherwise agreed.
This does not apply insofar as the law stipulates longer periods in accordance with §§ 438 paragraph 1 Nr. 2 (buildings and objects for buildings), 479 paragraph 1 (right of recourse) and 634a paragraph 1 Nr. 2 (defects) from the German Civil Code and in cases of infringement life, limb or health, in the event of intentional or grossly negligent breach of duty by the supplier, breach of essential contractual obligations and fraudulent concealment of a defect.
10.3. Material defects must be immediately reported to Lischka in a written form.
10.4. First of all, Lischka has the opportunity to provide supplementary performance within a reasonable period of time. Our right to refuse subsequent performance under the statutory conditions remains unaffected.
10.5. The right to choose between removal of defects and new delivery (new service) is in any case of Lischka.
If the supplementary performance fails, the orderer has the right to reduce or, at his discretion, to exit from the contract.
The right of the purchaser to demand damages instead of performance in accordance with the statutory provisions under these conditions shall remain unaffected.
10.6. Warranty claims are void if the delivered item is not operated according to our instructions, repaired by non-factory-trained personal without our permission, or further used, processed or further installed after detection of an error.
The same applies if the buyer gives us no opportunity to convince us of the defect and to eliminate it. Liability for defects does not apply to natural wear nor for damage that occurs after the transfer of risk as a result of faulty or negligent handling, excessive use, unsuitable equipment, defective construction work and chemical, electrochemical, electrical or similar influences without our fault.
For products of suppliers, as far as they do not enter into our final product, we provide warranty by assignment of our claims against the supplier, which is hereby agreed.
Furthermore, no warranty is accepted for damage caused by repairs carried out by third parties on the delivery item without our consent.
In the case of the agreement of the third party repair the defective parts are replaced, whereby in each case the rejected or exchanged parts are to be sent to us for our appraisal and become our property.
Further rides, assemblies, etc. will not be taken over by us.
In individual cases, we are authorized to provide replacement goods at approximately the same time value or to take back the goods at the invoice value, whereby all other claims for damages have been settled.
10.7. Claims by the purchaser for the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the object of the delivery has subsequently been moved to a location other than the purchaser’s branch unless the shipment complies with its intended use.
10.8. Recourse claims of the purchaser against Lischka according to § 478 German Civil Code (recourse of the entrepreneur) exist only insofar as the purchaser has not made any agreements with his customer in excess of the legal claims for defects.
For the scope of recourse claim of the purchaser against us in accordance with § 478 paragraph 2 from the German Civil Code also applies 10.7 correspondingly.
10.9. In addition, claims for damages are subject to clause 11. Any other claims of the purchaser against Lischka and its vicarious agents that are regulated by clause 10 above or beyond those provided in clause 10 are excluded.
11. Claims for damages and resignation
11.1. Claims for damages and claims for reimbursement of expenses of the customer ( hereinafter referred to as „claims for damages“ ), for whatever legal reason, in particular due to defects, delay and further infringements of duties arising from the contractual relationship and from tort, are excluded.
11.2. This does not apply to the extent that liability is mandatory, for example under the Product Liability Act, in cases of intent, gross negligence, and injury to life, limb or health as well as substantial breach of contract. The claim for damages for breach of contract is limited to the typical, foreseeable damage if there is no willful misconduct or gross negligence or liability for injury to life, limb or health. A change in the burden of proof to the detriment of the customer is not connected with the above regulations.
11.3. If the delivery is impossible, the purchaser is entitled to demand compensation, unless Lischka is not responsible for the impossibility. However, the purchaser’s claim for damages is limited to 10% of the value of the part of the delivery which cannot be put into proper operation due to the impossibility. This limitation does not apply in cases of willful misconduct, gross negligence or due to significant violation of contractual obligations or injury to life, limb or health liability is mandatory; a change in the burden of proof to the detriment of the customer is not connected with this.
The right of the customer to exit contract remains unaffected.
11.4. The customer can only withdraw from the contract within the scope of the statutory provisions if Lischka is responsible for the breach of duty; in the case of defects, however, it remains with the legal requirements. In the event of breaches of duty, the ordering party must declare himself within a reasonable period of time after Lischka has requested that he withdraw from the contract because of the breach of duty or insist on delivery.
12.1. The contractual relationship and the entire legal relationships of the parties are subject to the law of the Federal Republic of Germany with the exclusion of UN Sales Convention (CISG).
12.2. If the purchaser is a registered trader, a legal entity under public law or a public-law special fund, the place of jurisdiction is Berlin.
12.3. Should individual provisions of the contract or of these terms and conditions be or become invalid or contain a gap, the remaining provisions shall remain unaffected.