Delivery and payment terms & conditions

Delivery and payment terms & conditions of Lock GmbH, Ertingen/Germany, valid for customers placing orders with their head office location outside the European Union or Switzerland

    

Section 1 Scope, form

(1) These terms and conditions of sale apply to all business transactions with our customers ("Purchasers"). These general terms & conditions of sale only apply if the purchaser is a businessman (section 14, BGB), a legal person under public law or a special fund under public law.

(2) In particular, these terms & conditions of purchase apply to contracts relating to the sale and/or delivery of movable items ("Goods") irrespective of whether we manufacture those goods ourselves or purchase them from sub-contractors (sections 433, 651 of the German Civil Code [BGB]). Unless otherwise agreed, these general terms & conditions of sale apply at the time the purchaser places an order in accordance with the currently valid version of the general agreement, i.e. the one most recently communicated to him in text format, as well as to future contracts of the same nature without the need for us to refer to them in each individual case.

(3) Our general terms & conditions of sale apply without exception. Deviating, opposing or supplementary general terms & conditions of business of the purchaser shall only become part of the contract and applicable if we have expressly consented to them. This requirement for consent applies in all cases. This requirement for consent applies in all cases, for example even if we execute a delivery to the purchaser without reservation and in full knowledge of the general terms & conditions of business of the purchaser.

(4) Individual agreements made in isolated cases with the purchaser (including subsidiary agreements, supplements and amendments) always take precedence over these general terms & conditions of sale. For the content of agreements of this nature, subject to counterevidence, a written contract and/or our written confirmation is authoritative.

(5) Significant legal explanations and announcements by the purchaser in relation to the contract (e.g. the setting of deadlines, notification of defects, withdrawal from contract or reduction), must be submitted in written or in text form (e.g. letter, e-mail, fax). Legislative formal requirements and other forms of verification, in particular in relation to doubts raised about the legitimacy of the declaring party are not affected.

(6) References to the applicability of legislative stipulations shall only be for the purposes of clarification. Even without clarification of this nature, the legal stipulations shall therefore apply, unless these are amended or expressly excluded in these general terms & conditions of sale.

Section 2 Conclusion of contract

(1) Our quotations are without obligation and are subject to change without notice This also applies if we have provided the purchaser with catalogues, technical documentation (including drawings, diagrams, calculations, computations, references to DIN standards), other product descriptions or documents - including in electronic form - to which we retain title and copyright.

(2) The ordering of goods by the purchaser is viewed as a contractually binding offer. Unless something else arises from the order, we are entitled to accept this contractual offer within 3 weeks of its arrival with us.

(3) Acceptance can either be announced in writing (e.g. In the form of an order confirmation) or by delivery of the goods to the purchaser.

Section 3 Delivery lead time and arrears over delivery

(1) The delivery lead time is agreed on an individual basis and/or is announced by us when the order is accepted. If this is not the case, the delivery lead time is then approximately 3 weeks from the date of conclusion of contract.

(2) In cases where we are unable to meet delivery commitments for reasons over which we have no control (non-availability of service), 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 also not available within the new delivery lead time, we are entitled to withdraw from the contract wholly or in part. In such cases, we would then immediately reimburse any reciprocal action provided by the purchaser. 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, where neither we nor our suppliers are culpable or in isolated cases where we are not obliged to source materials.

(3) The onset of our arrears in delivery is defined in accordance with 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 on the basis of liquidated damages. For every completed calendar week, those shall amount to 0.5%, but not more than a maximum of 5% of the value of the goods delivered in arrears. 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) This does not affect the rights of the purchaser in accordance with Section 8 of these general terms and conditions of sale nor our legal rights, in particular in cases that exclude any obligation to provide indemnification (e.g. impossibility of providing the service or unacceptability of the service and/or its subsequent performance).

Section 4 Delivery, transfer of risk, inspection and approval, default of acceptance

(1) Goods are supplied ex-stock, regardless of where the place of delivery and of any subsequent performance required may be. On demand and at the expense of the buyer, the goods may be dispatched to a different destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipping (in particular the transport company, dispatch route, packaging) ourselves.

(2) The risk of accidental loss and of incidental deterioration of the goods is transferred by no later than the handover to the purchaser. However, in relation to a sale by delivery to a place other than the place of performance, the risk of accidental loss and of incidental deterioration of the goods is transferred and the risk of late delivery passes to the freight forwarder, the haulage contractor or any other defined person or institution appointed to expedite the goods. In cases where inspection and approval has been agreed, this is the defining point for the transfer of risk. The legislative stipulations of the German law applicable to works and services [Werkvertragsrecht] shall apply accordingly. Transfer and/or inspection and approval apply in the same way if the purchaser is in arrears over acceptance of goods.

(3) If the purchaser falls into arrears over acceptance of goods, or fails to participate in a joint action or if our delivery is delayed for other reasons for which the purchaser is responsible, we are entitled to demand compensation for any damages including additional expenditure we may incur (e.g. storage costs). For this, we apply a lump-sum compensation figure amounting to EUR 50.00 per calendar day, beginning with the delivery due date or - if no due date has been defined - with notification of readiness to dispatch the goods.

Verification of more extensive damages and our legal claims (in particular the reimbursement of additional expenditure, commensurate compensation, termination) remain unaffected; however, the lump-sum figure shall be added to any more extensive financial claims. The purchaser is 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.

Section 5 Prices and payment terms

(1) Unless otherwise agreed in individual cases, our current prices apply at the time of conclusion of contract, and apply ex-stock, plus VAT at the currently applicable rate.

(2) In relation to a sale by delivery to a place other than the place of performance (Section 4 (1)), the purchaser must pay the transport costs ex-stock and the costs of any  transport insurance cover that the purchaser may wish to take out. Except in individual cases where we bill for the transport costs actually incurred, a lump-sum figure for transport (which does not include the cost of transport insurance) amounting to 12 % of the net value of the goods is deemed to have been agreed. The purchaser must meet the cost of any customs duties, fees, taxes and other government deductions.

(3) The purchase price is due and must be paid within 14 days of the invoice issue date and delivery and/or inspection and acceptance of the goods. We are however entitled at any time, even in the context of an ongoing business relationship, not to deliver goods until payment has been made in advance, either in full or in part. We shall declare any such proviso by no later than the date of order confirmation.

(4) When the aforementioned payment period elapses, the purchaser is then in arrears.Interest at the legally applicable rate of interest shall be charged to the purchase price for the duration of the period of arrears. We reserve the right to claim for more extensive damages as a result of any payment arrears. Our entitlement to interest counting from the due date is not affected in relation to our dealings with merchants (Section 353 HGB).

(5) The purchaser is only entitled to rights to set-off and to rights of retention in cases where his claim is upheld in a court of law or is undisputed. With regard to defects in delivery, the opposing rights of the purchaser, in particular those defined in Section 7 (6) clause 2 of these general terms & conditions of sale shall not be affected.

(6) If it becomes evident after conclusion of contract (e.g. filing for bankruptcy) that our claim for payment of the purchase price is in jeopardy due to an inability to pay on the part of the purchaser, we are entitled in accordance with the legal stipulations governing the right to refuse performance and - where applicable after setting a period of notice – to withdraw from the contract (Section 321 BGB). With regard to contracts for the manufacture of unwarranted items (bespoke production), we can announce our withdrawal from contract immediately; this does not affect the legislative provisions governing the expendable nature of the deadline.

Section 6 Retention of title

(1) Until such time as all accounts receivable and contingent liabilities are paid from the purchase contract and from an ongoing business relationship (secured receivables), we reserve the right to retain title to the goods sold.

(2) Until full and final payment has been received in respect of the secured receivables relating to the goods covered by our retention of title, the goods cannot be pledged to third parties nor can they be entailed as collateral. The purchaser is required to notify us immediately and in writing if he has filed for bankruptcy or of any accesses by third parties (e.g. garnishments) to the goods belonging to us.

(3) In the event of contractually non-compliant conduct on the part of the purchaser, in particular with regard to non-payment of the purchase price due, we are entitled, in accordance with legislative provisions, to withdraw from the contract and/or to demand return of the goods to which we still retain title. Demanding the return of goods does not signify a simultaneous declaration to withdraw from the contract; we are instead only entitled to demand return of the goods, and to reserve the right to withdraw from the contract. Should the purchaser fail to pay the purchase price due, we can only apply these rights if we previously and unsuccessfully set the purchaser an appropriate period of time to make payment, or legally expendable in accordance with legislative provisions.

(4) Until this right is revoked, the purchaser is entitled in the course of normal business and in accordance with (c) below to sell the goods over which title is retained to others, and/or to process them. In such cases, the following provisions apply.

(a) The retention of title extends to the processing, mixing or connection of our goods in downstream products, up to their full value, where we are deemed to be the manufacturer of those goods. If our title to goods remains current after processing, mixing or connection with the goods of third parties, we obtain co-ownership to an amount proportional to the invoice value of the processed, mixed or connected goods. Furthermore, the same applies to the resultant product as for all goods supplied on the basis of retained title.

(b) In accordance with the previous paragraph, and by way of collateral, the purchaser shall assign to us wholly or to the value of any co-ownership portion we may hold that arises from the onward sale or the goods or products and corresponding receivables due from third parties. We accept this assignment. The obligations of the purchased name in para. 2 also apply in relation to the receivables assigned.

(c) The purchaser, along with ourselves, remains entitled to obtain payment against any such receivable. We pledge to the purchaser that we shall not call in the receivable provided that the purchaser meets his payment obligations to us, that there is no impairment to his level of performance and that we do not apply our rights to retention of title in accordance with Para. 3. If this case should arise, we can demand that the purchaser notifies us of the receivables assigned and of their debtors, provides us with all details needed for us to call them in, releases the applicable documents and notifies the debtors (third parties) of this assignment of title. Furthermore, we are entitled in such cases to revoke the entitlement of the purchaser to sell and process the goods over which title is retained.

(d) If the achievable value of these securities exceeds the value of our receivables by more than 10%, we shall release collateral of our choice when called upon to do so by the purchaser.

Section 7 Defect claims from the purchaser

(1) Legislative stipulations apply to the rights of the purchaser in relation to material and legal defects (including incorrect delivery, short delivery, unprofessional assembly or inaccurate assembly/installation instructions), unless otherwise stipulated in the following text. The special stipulations governing final delivery of unprocessed goods to a consumer remain unaffected in all cases, even if they are then processed further by that consumer (supplier redress in accordance with Section 478 BGB). Our claims resulting from supplier recourse also apply if the goods were further processed before they were sold to another consumer by us or by one of our customers, e.g. through installation in a different product.

(2) The basis of our liability for defects is founded primarily upon the agreement made in relation to the properties of the goods. All product descriptions that form part of an individual contract (in particular in catalogues or on the homepage of our website) and that are in the public domain are considered as an agreement in relation to the properties of the goods.

(3) If agreement has not been reached about these properties, an evaluation based on the legislative ruling should determine whether a defect does or does not exist (Section 434 ( 1) pages 2 and 3 BGB). However, we accept no liability in relation to any public statements that the manufacturer or other third parties may make (e.g. advertising statements).

(4) The defect-related claims of the purchaser presuppose that the purchaser has fulfilled his legal duties to investigate, notify and reject defects (Sections 377, 381 HGB). In the event of a defect being detected at the time of delivery, an inspection or at some later point in time, we must be notified immediately and in writing. In all cases, visible defects must be notified to us in writing within (numeral) working days of delivery, and concealed defects discovered in a subsequent inspection must be notified to us within the same number of days of their discovery.If the purchaser fails to carry out a proper inspection and/or to report defects correctly, we cannot be held legally liable for any defect not reported to us, and/or not reported in a timely or a proper manner.

(5) If the item supplied is defective, we can first choose whether to engage in subsequent performance to remedy the defect (rectification of defects) or to deliver an item that is free of defects (replacement delivery). We retain our right, subject to the legislative prerequisites, to refuse to engage in subsequent performance.

(6) We are entitled to make any subsequent performance owed by ourselves dependent upon the purchaser paying the purchase price that is due. However, the purchaser is entitled to retain a proportion of the purchase price that is commensurate with the impact on value of the defect.

(7) The purchaser is obliged to accord us the time and opportunity we need to deliver the subsequent performance we owe, in particular by providing us for inspection purposes with the goods that are deemed to be defective. In the case of replacement delivery, the purchaser is obliged by legislative provisions to return the defective item to us. Subsequent performance does not include removal of the defective item, nor reinstallation, if we were not originally obliged to perform the installation work.

(8) The expenditure required for inspection and subsequent performance, especially the costs of transport, travel, labour and materials as well as any costs for removal and installation shall be borne by or be reimbursed by ourselves in accordance with legislative stipulations if a defect is actually found to exist. Failing this, we can demand reimbursement of costs incurred by ourselves as a result of receiving an unwarranted demand for remedial action (in particular the costs of inspection and transport), unless the absence of a defect was not detectable to the purchaser.

(9) In urgent cases, e.g. if operational safety is jeopardised, or to prevent disproportionate levels of damage, the purchaser has the right to remedy the defect himself and to demand from us reimbursement of the expenditure required in objective terms. We must be notified immediately, and preferably in advance, of any personal initiative of this nature. The right to carry out work on this personal initiative basis does not apply if we might be entitled to refuse to carry out subsequent performance ourselves in accordance with legislative stipulations.

(10) If subsequent performance has failed, or if an appropriate period of time for subsequent performance to be carried out by the purchaser has elapsed without success, or if it can be waived in accordance with legislative stipulations, the purchaser can withdraw from the purchase contract, or can reduce the purchase price. However, the presence of a minor defect does not constitute legitimate grounds for withdrawing from a contract.

(11) Claims by the purchaser for compensation and/or the reimbursement of unnecessary expenditure also only apply in relation to defects in accordance with Section 8 and are otherwise excluded.

The statutory warranty period of 12 months applies to all of our products.

Section 8 Other forms of liability

(1) Unless nothing else emerges from these general terms & conditions of sale, and this includes the following provisions, we are liable in accordance with legislative stipulations for any violation of contractual and extra-contractual obligations.

(2) We are liable to pay compensation - arising from whichsoever legal ground - on the basis of fault-based liability in relation to deliberate intent and gross negligence. In relation to simple negligence, and subject to a less stringent scale of liability, we are liable in accordance with legislative stipulations (e.g. for exercising due diligence in our own affairs), but only in respect of

a) damages arising from injury to life, limb or health,

b) damages arising from a not insignificant violation of an important contractual obligation (an obligation which can only be satisfied through fulfilment of proper execution of the contract and where the other party to contract can trust and depend upon the responsible party to contract complying with this at all times); in such cases, our liability is however restricted to replacement of the item when the damage was predictable and typical.

(3) The restrictions on liability arising from Para. 2 also apply to violations of obligations by or in favour of people for whose conduct we are responsible in accordance with legislative stipulations. These do not apply if we wilfully fail to disclose a defect or have accepted a guarantee for the properties of goods and are liable under product liability legislation in respect of claims by the purchaser.

(4) The purchaser can only withdraw from or terminate this contract in relation to the violation of an obligation that does not take the form of a defect if we are responsible for that violation of an obligation. The purchaser has no free right of termination (in particular in accordance with Sections  651, 649 BGB). In all other respects, legislative prerequisites and legal consequences apply.

Section 9 Statute of limitations

(1) At variance from Section  438 ( 1) no. 3 BGB the general statute of limitations applicable to claims arising from material and legal defects is one year from the date of delivery. In cases where an acceptance test has been agreed, the statute of limitations applies from the date of that acceptance test.

(2) However, if the goods take the form of a built structure or an object that was typically used for a built structure and that caused it to develop defects (building material), the statute of limitations is defined by legislation as 5 years from the date of delivery (Section 438 ( 1) no. 2 BGB). Further legislative special regulations for the statute of limitation also remain unaffected (in particular Section 438 (1) no. 1, para. 3, Sections 444, 445bBGB).

(3) The aforementioned statutes of limitation for the German Law on the Sale of Goods (Kaufrecht) also apply to contractual and extra-contractual compensation claims from the purchaser that are founded upon a defect in the goods, unless the application of a regular legal statute of limitations (Sections 195, 199 BGB) in individual cases would give rise to a shorter statute of limitations. However, compensation claims made by the purchaser in accordance with Section 8 ( 2) sentence 1 and sentence 2(a) as well as in accordance with product liability legislation shall lapse exclusively in line with the statutes of limitation defined in applicable legislation.

Section 10 Place of execution, court of jurisdiction and applicable law, language of contract

(1) The place of execution for all obligations arising from this contract is our head office location.

(2) The United Nations Convention on the International Sale of Goods (CISG) dated 11.04.1980 (CISG) is not applicable here.

(3) The application of German Law is agreed between ourselves and the customer, with the exception of Section 10 (3) 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 Section 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.

(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 contractual and performance-related terms & conditions might vary, the meaning of the German text shall take precedence.

Section 11 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.

Section 12 Agreement about the court of jurisdiction

(1) All disputes or claims that arise from or in connection with this contract, including disputes about its validity, infringement, dissolution or its being rendered null and void shall be settled in accordance with German Law before the District Court (Landgericht) in Ulm.

(2) German 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.

Dated: August 2019