of Lock Antriebstechnik GmbH, Ertingen/Germany, valid for companies placing orders with their head office location outside the European Union or Switzerland
1.1 The following terms & conditions only apply if the customer is a company as defined in Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law, with its head office location outside the European Union or Switzerland.
1.2 Our services are only delivered in accordance with the following terms & conditions. Terms & conditions of the purchaser do not obligate us, even if they are not expressly rejected by us.
1.3 We process and store details to the extent required to implement and execute these business transactions. This data is not used for any other purposes.
2. Quotation and scope of delivery
2.1 Our quotations are without obligation. An order is not formally accepted until it has been confirmed by us in writing, and to comply with this written form requirement, the text form described in section 126b of the German Civil Code (BGB) is sufficient. Our written confirmation of order is authoritative in respect of the scope of delivery. Subsidiary agreements and changes require our written confirmation.
2.2 In respect of illustrations, drawings, cost proposals and other documents, data and samples, we retain title and copyright. None of the above may therefore be reproduced nor made accessible to third parties unless we agree to this expressly and in writing.
2.3 Examples of applications and calculations are non-binding in nature and, in particular, do not constitute assured properties. To this extent, we retain the right to make changes to the version. Incomplete or incorrect technical details from the purchaser shall be at his own expense. We reserve the right to make design changes.
3. Prices, payment, delivery
3.1 In the absence of any special agreement, prices apply ex-factory (ex Works Ertingen Incoterms 2010) with standard packaging without any claim to individual packaging and/or transport securing devices.
3.2 Our prices are quoted net of value-added tax at the applicable rate on the date of invoice.
3.3 The invoice amount falls due immediately in net cash terms. Written agreement is required in respect of any prompt payment discounts or other discounted rates. We reserve the right to demand step-by-step deliveries or payment in advance.
3.4 The purchaser can only offset our claims or exercise a right to retain payment if his own account receivable is undisputed or is the outcome of a legally binding verdict. The same applies to exercising any right to retain payment due to monetary claims against us by the purchaser. The right to retain payment in respect of other claims is excluded, unless these relate to the same contractual relationship.
4. Delivery lead time
4.1 The delivery lead time begins with the sending out of the order confirmation, but not before all documents, approvals and releases to be obtained from the purchaser have been obtained, including receipt of an agreed downpayment. The delivery lead time has been met if we have announced delivery readiness before it has elapsed or if the item being supplied has left our plant.
4.2 In cases where we are unable to meet delivery commitments for reasons over which we have no control (non-availability of service, failure to comply with legislative provisions), we shall inform the purchaser to this effect immediately and, at the same time, shall notify the purchaser of the anticipated new delivery date. If the service is still not available within the new delivery lead time, or if it subsequently emerges that it is impossible to fulfil it (either wholly or in substantial parts), without our being responsible for this, we are entitled, wholly or in part, to withdraw from the contract; at such a point, we would immediately reimburse the purchaser for any payment that may already have been made against this. In such cases, the purchaser is not entitled to present any compensation claims. An example of non-availability of a service in this context applies in particular to late deliveries to ourselves by our suppliers, in cases where we have concluded a congruent hedging transaction. This does not affect the legal rights of the purchaser to withdraw from or to terminate the contract, and the legal stipulations governing the processing of this contract exclude any obligation to provide indemnification (e.g. impossibility of providing the service or unacceptability of the service and/or its subsequent performance).
4.3 The onset of a delay in delivery is defined in legislative provisions. In all cases, a reminder must be obtained from the purchaser. If we go into arrears over delivery, the purchaser is entitled to demand compensation for this delay, without prejudice to his right to make further claims. For every completed calendar week, this shall amount to 0.5%, but not more than a maximum of 5% of the value of the part of our services that cannot be used at the right time, or in accordance with the contract, as a consequence of this delay. This does not apply to cases where we are found guilty of deliberate intent or of gross negligence, or where we are inevitably liable as a consequence of injuries to life, limb or physical health. This is not associated with any change in the burden of proof. We are at liberty to prove that no damage occurred whatsoever, or that any damage that may have occurred was far less serious than the lump-sum claim can justify.
4.4 Compliance with delivery lead times presupposes that the purchaser satisfies his contractual obligations.
4.5 In cases where the purchaser grants us an appropriate period of grace to make good on the delivery of goods and/or services with which we had fallen into arrears, and if that period of grace elapses without satisfactory action on our part, the purchaser is obliged to notify us on demand within a reasonable period of time whether he wishes us to take appropriate remedial action, or to withdraw from the contract and/or to demand compensation instead of receiving the goods or services. However, the purchaser is only entitled to make compensation claims if we are guilty of deliberate intent, gross negligence, or of substantial violation of contractual obligations or if we are found to be culpably liable for injury to life, limb or physical health. In the event of culpable violation of a major contractual obligation, we are then only liable for the replacement costs for contractually typical damages of a reasonable and predictable nature.
4.6 If the purchaser requests a delay in delivery, we shall charge him with warehousing costs, starting one month after announcement of our readiness to make delivery. Where storage takes place in our plant, the amount invoiced shall be at least 0.5% of the invoice total for each full month. If we set the purchaser a reasonable period of grace, we are entitled after this has elapsed without a satisfactory outcome to use the delivery items for a different purpose, and then to supply the purchaser at a reasonably extended future date. The parties to contract are free to verify and seek to apply higher or lower warehousing costs.
4.7 If the purchaser falls into arrears with the acceptance of goods ordered, we are entitled, after setting a further reasonable period of grace and that period of grace elapsing without a satisfactory outcome, to withdraw from the contract and to demand compensation amounting to 15% of the value of the order. We reserve the right to impose higher levels of compensation for damages incurred. The purchaser reserves the right to provide evidence that the damages incurred were less serious than being claimed.
5. Transfer of risk
5.1 Risk transfers to the purchaser no later than when the delivered parts are dispatched, specifically whenever partial deliveries take place or where we have undertaken to provide other services, e.g. dispatch costs or delivery and on-site installation. If the purchaser so wishes, we can insure the delivery items on his behalf and at his expense.
5.2 If the dispatch of goods is delayed for reasons for which the purchaser is responsible, risk is transferred to the purchase from the time that readiness to deliver is announced, although we are obliged to invoke the insurance cover he demands on his behalf, at the request and at the cost of the purchaser.
5.3 Partial deliveries are permissible.
6. Retention of title
6.1 Until such time as all accounts receivable and contingent liabilities are paid (including balances) that are owing to us now and in future by the purchaser, we are assured of the following forms of security:
6.2 The delivery item remains our property until the purchaser has settled all liabilities arising from the business transaction.
6.3 We authorise the purchaser in a manner that can be revoked at any time to sell on the goods supplied in the context of a proper business transaction, unless the proceeds of such a sale has already been entailed to other parties or cannot for other reasons be made payable to ourselves; this authorisation for onward sale of goods ceases to apply in the event of the bankruptcy of the purchaser.
6.4 The purchaser shall assign any receivable arising from the onward sale, leasing or some other similar commercial provision to ourselves at this time to provide us with a form of security; here, it is immaterial whether the reserved goods are sold in their own right or in conjunction with other items.
6.5 Until we revoke this, the purchaser is authorised to redeem assigned receivables but he is obliged to transfer all redeemed amounts of money to us with immediate effect, providing that our receivable is due for payment at that time. This redemption authorisation lapses even without our express revocation if the purchaser fails to honour his obligations to us, or goes into financial collapse, in particular if he defaults on payment obligations, or applies for, liquidation, or petitions for bankruptcy and insolvency proceedings. On demand from ourselves, the purchaser must furnish us with the details needed to obtain payment for assigned receivables, to communicate the corresponding documents to us and to announce this assignment to the debtor.
6.6 The purchaser must neither pledge the delivery item nor use it as any form of collateral. He must notify us immediately of any instance of pledging or seizure or other provisions by third parties. The purchaser must meet the costs of any interventions.
6.7 While the retention of title still applies, any processing and working of the delivery item and any connection with other objects takes place on our account, without in any way obligating us, and without any loss of our retention to title.
6.8 In the event of processing, linking, mixing or commingling of goods subject to retention of title with other goods also not belonging to the purchaser, we have shared title to a commensurate proportion of the invoice value of those goods, i.e. one reflecting the value of goods subject to retention of title by ourselves relative to the other processed goods at the time of processing, linking, mixing or commingling.
6.9 If the purchaser obtains sole title to the new item, both parties to contract agree that the purchaser should allocate that commensurate proportion of the invoice value of the new goods belonging to us in relation to the processed and/or commingled goods subject to retention to title by ourselves, and that this proportion shall be set aside for us free of charge to ourselves.
6.10 If the goods subject to retention of title and together with other goods, whether without or after processing, linking, mixing or commingling, should be sold on to a third party, the aforementioned pre-assignment of the proceeds of the sale shall only reflect the invoice value of the goods subject to retention of title that is sold on with the other goods.
6.11 We pledge to the purchaser that we shall release the collateral to which we are entitled if the value of this exceeds by 20% the value of our accounts receivable to be securitised.
6.12 We are entitled to demand the withdrawal of goods subject to retention of title if the purchaser either fails to meet his payment obligations by a calendar-defined date and time, or fails to meet another form of agreed deadline. This demand for withdrawal constitutes a cancellation of the contract.
7.1 If a defect exists for which we were responsible, we are entitled to choose how to remedy this defect, either through remedial work free of charge to the purchaser, or through the delivery of replacement goods. Replaced parts become our property. If we are not prepared or are not able to remedy this defect, and if in particular this failure to act extends beyond a reasonable period of time for reasons for which we are responsible, or if at least two attempts to remedy the situation fail to achieve the desired outcome, the purchaser - without prejudice to any rights to compensation claims as defined in clause 8 - is then entitled to withdraw from the contract or to demand a reduction in the amount payable.
7.2 In cases where the purchaser can found his demand on a choice of defect-related rights, he is obliged on demand by ourselves to notify us within a reasonable period of time whether he wishes to demand remedial action, to withdraw from the contract, to require a reduction in the purchase price and/or to demand compensation instead of provision of the goods or services.
7.3 The expenditure required to take appropriate remedial action, in particular transport, travel, labour and material costs, shall be borne by ourselves unless those expenditure items increase because the delivery item was subsequently moved to a location other than the head office site of the purchaser, and/or if the delivery item is not being used for its intended purpose. Should the type of remedial action or the remedial action itself only be possible at an unreasonable level of cost, we are entitled to refuse to carry out that action.
7.4 The purchaser is obliged to examine our delivery immediately after receipt, and to notify us immediately and in writing of any defects.
7.5 Defect claims lapse in 12 months. This does not apply in cases that involve German legislation, in acc. with section 438 para. 1 no. 2 BGB (buildings and items for buildings), section 479 para. 1 BGB (recourse claim) and section 634 a para. 1 no. 2 BGB (construction defects) where longer deadlines are specified and/or to contracts in which VOB/B legislation is involved to a comprehensive extent. In individual cases, we provide an extension to the warranty period. In variation to clause 7.5, sentence 1, we assure 36 months of warranty cover for the "EWA" product range, and 24 months for the "RMA 20" product range.
7.6 Defect claims do not apply in the case of defects that arose for any of the following reasons: Unsuitable or improper use, incorrect and/or irregular maintenance, incomplete assembly and/or initial commissioning by the purchaser or by third parties, natural wear and tear, defective or negligent processing, unsuitable operating materials (e.g. lubricants), replacement materials, defective construction work, chemical, electrochemical or electrical factors, provided we are not the guilty party, as well as minor deviations from agreed properties and minor impairment to suitability for use. Defect-related rights are also unenforceable if the purchaser fails to observe our stipulations relating to installation, use, treatment and maintenance or components, and fails to conduct any inspections properly that may be required. The operating manuals and maintenance instructions supplied form part of these terms & conditions on rights relating to defects.
7.7 Recourse claims against us by the purchaser in acc. with section 478 BGB only pertain in cases where the purchaser together with the consumer has not reached any agreements that extend beyond the defect-related entitlements provided for in legislation. Clause. 7.3 applies accordingly.
7.8 Furthermore, clause 8 applies to liability on our part. No more extensive claims are permitted in respect of a defect.
8.1 With regard to more extensive claims, our obligation to provide replacement is limited to cases of minor negligence to the provisions of our public liability insurance cover. This also applies to the personal liability of our salaried staff, employees, co-workers, representatives and agents. On request from the purchaser, we are prepared to disclose the provisions of our insurance policy. This limitation on liability also applies to damages that did not occur directly on the object of delivery, unless the object of delivery lacks properties that were expressly assured by us and where the purpose of this assurance is intended to protect the purchaser against damage that did not arise directly on the object of delivery and/or where the defect was concealed with deliberate intent. However, this limitation on liability only comes into play if the concluded total figure for insurance cover lies within the anticipated limits for direct and indirect material damage of this nature. In cases where the provisions of the insurance policy preclude cover being provided, without exceeding the defined amount of cover, we shall adopt subsidiary liability in favour of the purchaser, but this shall be limited to the level of liability defined in the following clause 8.2.
8.2 The purchaser is not entitled to make any claims for damages and reimbursement of expenditure above and beyond this defined level. This does not apply in the case of inalienable claims provided for under product liability legislation, nor in cases of deliberate intent or of gross negligence due to injury to life, limb or physical health, or in the event of a culpable violation of a major contractual obligation. However, in the event of culpable violation of a major contractual obligation, we are only liable for the typical kinds of damage envisaged in contracts, unless of course deliberate intent or gross negligence applies or as a result of injury to life, limb or physical health. A change in the burden of proof to the detriment of the purchaser is not associated with the provisions of clause 8.
8.3 In cases where the purchaser is entitled to compensation claims in accordance with clause 8, these shall lapse on expiry of the statutory period of limitation for material defect claims in acc. with clause 7.5. The extension in individual cases (see clause 7.5. sentence 2) does not apply here.
9. Place of execution, court of jurisdiction and applicable law, language of contract
9.1 The place of execution for all obligations arising from this contract is our head office location.
9.2 The United Nations Convention on the International Sale of Goods (CISG) dated 11.04.1980 (CISG) is not applicable here.
9.3 The application of German Law is agreed between ourselves and the purchaser, with the exception of clause 9.2 and this exempts any conflict that might exist with legal provisions from other legislatures. However, the prerequisites and effects of the retention of title agreed in clause 6 are subject to the law at the storage location of the item(s) involved, provided that the choice of law favouring German Law is inadmissible or ineffective.
9.4 German is the language of this contract. In cases where the meaning of the German text may differ from a foreign language translation of the text of this contract, or where terms & conditions of delivery and payment might vary, the meaning of the German text shall take precedence.
10. Binding nature of this contract
The contract also remains binding in cases where individual points of its terms & conditions or individual figures in the terms & conditions of delivery may become legally ineffective. The gap caused by elimination of an ineffective provision must be filled in a manner fully reflecting the original aim and spirit of the contract.
11. Court of arbitration agreement
11.1 All disputes or claims arising from or in connection with this contract, including disputes about its validity, violation, annulment or revocation shall be settled in a final manner in accordance with the rules of arbitration of the International Court of Arbitration at the Austrian Chamber of Commerce (Vienna Rules) by three arbitration judges appointed in accordance with these rules.
11.2 German material law applies, which exempts the UN Convention on the International Sale of Goods and any legal conflicts associated with the provisions of a different legislature.
11.3 The arbitration proceedings shall be conducted in German.