Delivery and payments conditions
1. Offer and conclusion of contract
1.1 Offers are always subject to change and non-binding, unless they are limited in time. Orders require our written confirmation to be legally valid, the content of which is decisive for the contractual relationship. Agreements made by phone and verbal agreements, subsidiary agreements and arrangements with representatives only become legally valid when they are confirmed in writing.
1.2 Any terms and conditions of purchase, delivery and payment signed by the purchaser shall be deemed to be contradicted and excluded unless they are in accordance with the above terms and conditions and the contents of the order confirmation.
1.3. If, after conclusion of the contract, we become aware of circumstances which reduce the creditworthiness or solvency of the purchaser or if the purchaser's financial circumstances deteriorate considerably, we shall be entitled without further ado to demand immediate payment of all claims, including those not yet due, or the return of the delivered goods (which does not constitute withdrawal) at the purchaser's expense, and also, at our discretion, advance payment or security for the goods still to be delivered. In such a case, we can also withdraw from the contract without the need to set a grace period; in this case, the purchaser has no claim to compensation. Our claim to immediate payment under discontinuance of all possibly agreed payment dates shall otherwise exist irrespective of whether bills of exchange whose due date has not yet been reached are running for the payment of the goods.
1.4 Any errors that we make in the offer, in the acceptance of the order, in the confirmation of the order or in the invoicing, in particular errors in the price quotation, in the calculation, by wrong addition, entitle us, at our discretion, to contest or withdraw from the contract.
2. Prices and terms of payment
2.1 The prices are in Euro, ex-works Kirchentellinsfurt, subject to change, including loading at the factory, but excluding packaging. The prices valid on the day of delivery are decisive.
2.2 Our invoices are payable within 14 days of the invoice date with 2% discount or within 30 days net. Payments made by means of bills of exchange, cheques or other promises of payment shall not be deemed complete until honoured. All associated costs as well as the discount charges shall be borne by the purchaser. We reserve the right to decide in each individual case whether bills of exchange are accepted on account of payment in exceptional cases. Discounts are not granted for payment with bills of exchange. The assertion of claims for damages against us due to the late presentation or protest of bills of exchange is excluded.
2.3 If the term of payment of even just one invoice is exceeded, all outstanding invoices, even those not yet due, including current bills of exchange or deferred amounts, become due. Without the need for a reminder, we shall in this case be entitled to demand customary bank interest from the due date as well as the use of any other costs incurred. The same applies in any case in the event of late payment, default or deferral.
2.4 Delay in payment may result in delay in delivery; in this case we reserve the right to refuse further performance of the contract and to claim damages for non-performance.
2.5 The purchaser is not entitled to withhold payments or to offset such counterclaims against any complaints or counterclaims not recognised by us.
3.1 The delivery period shall commence on the date of written agreement on the order between the purchaser and us; it shall be deemed to have been met when the consignment concerned has left our factory. Compliance with the delivery period is subject to the correct and timely delivery by our own suppliers as well as the fulfilment of the contractual obligations of the purchaser.
3.2 All shipments are sent at the expense and risk of the purchaser. Insurance shall only be taken out at the express request and expense of the purchaser. If the dispatch or delivery of the goods is delayed at the request of the purchaser, the risk shall pass to the purchaser on the day the goods are ready for dispatch.
3.3 Delivery times are given to the best of our judgement, but without any liability. Withdrawal by the purchaser, even in the event of a delay in delivery or a claim for damages due to delay, is excluded. Events of force majeure as well as unforeseen circumstances in our own factory or at subcontractors for which we are not responsible and which make the timely execution of accepted orders impossible, entitle us to withdraw from the contract or to postpone the delivery for the duration of the hindrance, to the exclusion of any claims for damages by the purchaser.
3.4 In all other cases in which the delivery becomes impossible for us before the risk is transferred – even if we are responsible for the impossibility of performance – the purchaser may withdraw from the contract without claiming damages.
4.1 We are not obliged to provide a warranty until the purchaser has fulfilled his payment obligations. Any modification or repair work carried out improperly by the purchaser or third parties shall invalidate our liability. The delivered goods are to be examined upon arrival. Obvious defects as well as complaints due to defective or incomplete delivery must be reported in writing immediately, at the latest within 8 days of receipt of the goods. If the purchaser fails to provide written notification, the goods shall be deemed approved.
4.2 We shall be liable for defects for which we are responsible and for the absence of warranted characteristics of the goods exclusively as follows:
a) Parts that demonstrably become unusable or whose usability would be considerably impaired within 1 year (in the case of day and night operation within half a year) from the date of the transfer of risk, as a result of a circumstance occurring before the transfer of risk, in particular due to faulty design, poor building materials or defective workmanship are to be repaired or replaced free of charge at our discretion. Any such defects detected must be reported to us in writing without delay. Replaced parts become our property. The purchaser must grant us the necessary time and opportunity to carry out all changes and to deliver spare parts. If he refuses this, we shall be released from liability for defects. The liability for defects does not refer to natural wear and tear, nor to damage resulting from incorrect or negligent handling, excessive strain, unsuitable operating materials or chemical, electrochemical or electrical influences that occur through no fault of the supplier.
b) In the case of delivery of third-party products, only the conditions which we have agreed with our supplier or sub-supplier shall apply with regard to liability for defects. Our liability expires with the assignment of the claims to the purchaser.
c) If, despite repair or new delivery in accordance with a), the defect is not remedied and the delivered goods are unsuitable for the intended purpose due to the defect, the purchaser has the right to withdraw from the contract. The same shall apply if the elimination of a defect acknowledged by us is not commenced within one month from the date of acknowledgement, provided that we are obliged to eliminate the defect in accordance with the remaining content of these conditions (see paragraph 4.1).
4.3 All further claims of the purchaser, in particular all claims for redhibitory action or reduction as well as for compensation for damages of any kind, including compensation for consequential damages, loss of earnings or similar, are excluded.
4.4 Any claim arising from complaints shall expire by limitation, unless the limitation period is earlier for legal reasons, at the latest 1 month after written rejection by us. The date of our letter of rejection is decisive.
5. Retention of title and final provisions
5.1 The delivered goods shall remain our property until full payment of all claims, including future claims, including all ancillary claims and other costs, expenses and outlays arising from the business relationship and charged to the purchaser. This shall also apply if the purchase price has only been paid for certain deliveries specifically designated by the purchaser. In the case of a current account, the retained title shall serve as security for our respective balance claim.
5.2 a) If the items delivered under retention of title are combined with other items which do not belong to us, we shall acquire co-ownership of the new goods in the ratio of the value of the reserved goods to the remaining material value. The purchaser hereby assigns to us his rights of ownership or co-ownership of the new goods and shall keep them in safe custody for us with the care of a prudent businessman.
b) The purchaser is entitled to sell the goods delivered under retention of title in the ordinary course of business. Other dispositions of the goods, in particular pledging or transfer by way of security, are prohibited. The purchaser must notify us immediately of any seizure or other impairment of our rights to the reserved goods. Costs incurred in the pursuit of our rights (e.g. interventions, third-party proceedings) shall be borne by the purchaser.
c) The purchaser is obliged to impose a retention of title in our favour on his customers for each resale of the goods encumbered with our retention of title. This obligation is deemed to be valid with the order. Any infringement of this provision entitles us to withdraw from the contract and to claim damages. In the event of resale, the purchaser assigns his future purchase price claim to us by way of security upon conclusion of the contract, without the need for a special declaration. Until revoked, the purchaser is authorised to collect the newly created purchase price claim.
d) After the occurrence of the consequences of default, in particular also in the event of insolvency, as well as an out-of-court or court settlement, the reserved goods may only be disposed of with our consent. At our request, the purchaser must also provide us with information on the stock and whereabouts of the reserved goods; the purchaser is also obliged to provide us with the necessary information and hand over documents in order to assert our rights.
e) Retention of title is conditional in such a way that, upon full payment of our claims, ownership of the goods subject to retention of title is automatically transferred to the purchaser and the purchaser is entitled to the assigned claims. Furthermore, we are obliged to release the securities to which we are entitled at the request of the purchaser at our discretion if the value of the securities exceeds the value of our claims against the purchaser by 20%.
5.3 Place of performance is Kirchentellinsfurt, Germany. The place of jurisdiction for all disputes, including actions on cheques and bills of exchange, is Kirchentellinsfurt, Germany. German law applies to the contractual relationship.
5.4 Even if individual provisions are changed or ineffective, the remaining provisions of the supply contract and these terms of delivery and payment shall remain legally binding.
5.5 These terms of delivery and payment come into force with immediate effect, our previous terms of delivery and payment lose their validity. In addition, the general terms of delivery for products and services of the electrical industry shall apply.
LEITENBERGER Mess- und Regeltechnik GmbH