Valid as of October 2007
1. General Provisions
Unless agreed otherwise, the following General Terms and Conditions of Business shall apply to offers, deliveries and services of Lmb Technologie GmbH. Any different terms and conditions, including the customer’s purchasing conditions, shall be effective only if they have been agreed separately and confirmed in writing by Lmb Technologie GmbH. They shall apply equally to all future business relations, even if they are not explicitly agreed again. The valid version of the maintenance and the rental terms and conditions respectively shall apply to maintenance, service and rental agreements.
All offers by Lmb Technologie GmbH are subject to change as regards price and delivery possibilities and do not constitute binding offers of contract. Offers by Lmb Technologie GmbH shall be regarded as a request to the customer to place an order. If the customer confirms such an offer, the customer’s letter of confirmation shall be considered an offer to enter into a contract. A legally binding purchase contract, contract for work or services shall materialise only upon written confirmation of the order by Lmb Technologie GmbH. Cost estimates and information on freight rates are not binding. The seller assumes no responsibility for the accuracy of illustrations, drawings, technical data and electrical parameters.
3. Changes to the Contents of the Contract
Lmb Technologie GmbH reserves the right to change specifications in the course of technical progress. However, such a change may be considered only if the customer’s interests are not harmed or are not affected unreasonably, or if both parties have a considerable interest in the change.
Prices are not binding and are quoted ex stock Schwaig in euros, excluding packaging, plus the respective statutory value-added tax. Prices apply for four months from conclusion of contract. Price changes are permissible if more than four months have elapsed between conclusion of contract and agreed delivery date. Price changes are also permissible if a delivery date has been agreed within four months of conclusion of contract, but Lmb Technologie GmbH cannot deliver the goods / service within these four months for reasons for which the customer is responsible. In this case the prices of Lmb Technologie GmbH valid on the day of delivery shall apply. The price of the goods / service is without discount or other reductions, without installation or assembly ex Lmb Technologie GmbH, excluding packaging costs. In the case of deliveries outside Germany, the customer shall bear all costs such as charges, customs duties and shipping costs.
a) Deliveries of goods
Payment of the purchase price shall be due upon the payment date agreed in writing and under the conditions of payment stipulated for the contents of the contract. Unless agreed otherwise, the following time shall apply for the payment of purchase prices for deliveries of goods: within 20 days of receipt of the invoice of Lmb Technologie GmbH without any deductions. This time limit will be deemed observed if Lmb Technologie GmbH receives payment within the given period.
Fees for services shall be due for net payment immediately upon receipt of the invoice from Lmb Technologie GmbH. These provisions are deemed observed if Lmb Technologie GmbH receives payment within 8 days.
Payments shall be made, as a matter of principle, to a bank account held by Lmb Technologie GmbH, indicating the invoice number and invoice date. Payments to third parties or to employees of Lmb Technologie GmbH do not settle the customer’s debt unless the third party provides written collecting power from Lmb Technologie GmbH. If the customer’s financial circumstances deteriorate substantially, Lmb Technologie GmbH must be informed immediately. Lmb Technologie GmbH is then entitled to refuse to deliver goods or services and to withdraw from the contracts concerned until payment is made or security is provided. A substantial deterioration in the customer’s financial circumstances exists in particular in the event of a bill or cheque protest, stopped cheques, a request to make an affirmation in lieu of an oath, a petition to file composition or bankruptcy proceedings. The customer’s financial circumstances are also deemed to have deteriorated substantially if the customer defaults on payment of at least 25% of the purchase price or fee and a deadline for payment of at least 2 weeks, set by Lmb Technologie GmbH for payment of the amount outstanding, has been unsuccessful. If, when setting the deadline, Lmb Technologie GmbH has informed the customer that in the case of non-payment the total residual debt would be due, then Lmb Technologie GmbH is entitled to demand immediate payment of the entire residual debt when the deadline has expired without success. Lmb Technologie GmbH can grant the customer a revocable extension of time for payment. This extension of time for payment must be made in writing. In addition, if the customer fails to fulfil the contract, Lmb Technologie GmbH is entitled to demand, on a lump-sum basis, 20% of the purchase price as damages. This does not affect the right to damages which are demonstrably over and above this level. The customer is entitled to a set-off only if the counterclaim of Lmb Technologie GmbH has been acknowledged in writing or has been established as being final and absolute. Pursuant to Sections 366, 367 German Civil Code (BGB) and despite the customer’s different provision, Lmb Technologie GmbH shall determine which claim is to be met by the customer’s payment.
6. Default on payment
If the customer fails to meet the deadlines for payment specified in Section 5 Para. a), Lmb Technologie GmbH is entitled to claim interest at the rate of 4.5% above the respective discount rate of the German Central Bank (Deutsche Bundesbank). This does not affect the right of Lmb Technologie GmbH to terminate the contract or claim damages because of non-fulfilment. If the customer defaults on payment of an invoice, all his liabilities immediately become due and the seller can demand cash payment for deliveries still outstanding before delivery of the goods and without allowing for a period of payment. The same shall apply if bills and cheques are not honoured, if payments are suspended, or the buyer files a petition for bankruptcy or composition proceedings.
7. Termination of the Contract by the Customer
The customer can terminate the contract only with the agreement of Lmb Technologie GmbH, provided Lmb Technologie GmbH has not yet fulfilled its side of the contract. In this case Lmb Technologie GmbH can claim damages, on a lump-sum basis, amounting to 20% of the total purchase price, wage or fee for services without value-added tax. This is the usual compensation for processing an order and for lost profit. Damages can be higher or lower if Lmb Technologie GmbH proves it has suffered higher damages or the customer proves that lower damages or no damages whatsoever have been incurred.
8. Termination of the Contract by Lmb Technologie GmbH
Lmb Technologie GmbH can terminate the contract without the customer claiming damages in the case of force majeure. Lmb Technologie GmbH is also entitled to terminate the contract if
1. The customer does not behave in conformity with the contract;
2. The customer defaults on acceptance;
3. The customer’s financial circumstances have deteriorated substantially (bill or cheque protest, stopped cheques, request to make an affirmation in lieu of an oath, petition to file composition or bankruptcy proceedings), if in the event of an agreement on payment by instalments the customer defaults on payment of at least two consecutive instalments which account for at least 10% of the total purchase price.
If Lmb Technologie GmbH terminates the contract for reasons for which the customer is responsible, then Lmb Technologie GmbH can demand damages, on a lump-sum basis, amounting to 20% of the payment due to it, without value-added tax, as compensation for the lost profit and for processing the order, provided the customer does not prove that the damages incurred were lower than the lump sum or were not incurred at all. The customer defaults on acceptance if, after expiry of an appropriate additional period of time set by Lmb Technologie GmbH, the customer has refused to accept the goods or service or has previously stated explicitly that he does not wish to accept the goods or service of Lmb Technologie GmbH.
Delivery dates are not binding. Part deliveries shall be permitted. Unforeseen obstacles to delivery, such as cases of force majeure, strikes, interruptions to operations at the company’s facilities or at one of its suppliers, transportation problems etc. entitle the seller not to fulfil his contractual obligation in whole or in part. The buyer cannot claim damages.
If Lmb Technologie GmbH defaults on the delivery of goods or services, the customer must grant an appropriate additional period of at least 4 weeks for delivery of the goods or services. Only when the respective additional delivery period has expired is the customer entitled to assert a claim arising from default on delivery. However, in the event that Lmb Technologie GmbH is responsible for the default on delivery, the customer can claim damages only if he can prove that default was caused by Lmb Technologie GmbH intentionally or by gross negligence.
10. Packaging, Shipment, Transfer of Risk
Goods are packaged in accordance with the usual practice in the trade. Costs of shipment shall be borne by the customer. As a matter of principle, therefore, transport costs, assembly and customs duties are at the customer’s expense, unless agreed otherwise in writing. The risk shall pass to the customer as soon as the consignment has been delivered to the carrier, forwarding agent, etc. If this delivery is delayed for reasons for which the customer is responsible, the risk shall pass to the customer on the customer being advised of readiness for dispatch of the consignment.
Lmb Technologie GmbH does not warrant that equipment or software supplied functions perfectly in any EDP system environment. This applies in particular to customised and/or older systems. Lmb Technologie GmbH shall provide warranty for defects in the goods, including the lack of assured characteristics, in accordance with the following provisions: The warranty shall extend exclusively to the replacement of defective parts (parts guarantee). The warranty obligation for flawless materials and flawless execution shall apply to all newly supplied equipment for a period of 12 months from the transfer of risk. The warranty period for replacement parts shall be 6 months. The warranty period for repair work shall be 3 months. All expendable items and wear parts are excluded from the warranty granted by Lmb Technologie GmbH. As warranty the customer can first of all demand that the defect be remedied as a matter of principle. Instead of remedying the defect Lmb Technologie GmbH can supply a replacement article. If Lmb Technologie GmbH refuses to provide a remedy, or if the defect is not remedied within a reasonable period set by the customer, then the customer is entitled to a reduction in purchase price or to cancellation of the contract. Lmb Technologie GmbH does not have any warranty obligations if:
-The buyer has not immediately notified the company of a defect and has not immediately given it an opportunity to remedy the defect or
-The object of purchase has been handled incorrectly or put under excessive strain and has not been handled by Lmb Technologie GmbH or by authorised third parties or
-Parts have been installed into the object of purchase, the use of which has not been authorised by the manufacturer or the object of purchase has been changed in a way which has not been authorised by the manufacturer or
-The customer has not followed the manufacturer’s instructions on the handling, maintenance and care of the object of purchase or
-The customer has not used original expendable materials.
Natural wear and tear on the object of purchase shall be excluded from the warranty. The customer’s warranty claims shall become statute-barred upon expiry of the period of warranty obligation of 12 months for new equipment, 6 months for replacement parts and 3 months for repairs, starting from the transfer of risk of the object of purchase or from completion and renewed availability of the repaired item.
12. Distribution of our products
Are products sold with discount to distributors to the purpose that they will be resold later on, the buyer (=distributor) is obliged to:
- translate user manuals and other documentation into the respective national language
- to engage a service technican who was trained by Lmb on the respective product and who performs service and maintenance on site for the enduser
- to ensure with sufficient documentation retracability of the products to the enduser at any time and in case of a recall to hand over this information to Lmb
Unless explicitly agreed otherwise in writing, information we receive in connection with orders is treated confidentially.
The customer’s rights are regulated conclusively in these conditions. Lmb Technologie GmbH shall not be liable, on any legal ground whatsoever, for damages incurred to anything other than the object of purchase.
15. Reservation of Ownership
Lmb Technologie GmbH shall reserve ownership of the goods until receipt of complete payment of all existing receivables connected with the purchase contract. If the customer defaults on payment or has difficulties with payment, the seller is entitled to immediately reclaim possession of the goods which have not yet been resold. Until possession is reclaimed the buyer must store the goods in the ownership or co-ownership of the seller separately from other goods, mark them as the property (jointly held property) of the seller, abstain from using them in any way and provide the seller with a list of ownership (co-ownership) of these goods. If the customer is a legal person under public law or a trader for whom the contract is part of his business operations, then the reservation of ownership shall also apply to receivables which the seller has from his ongoing business relations with the customer. Upon the customer’s request, Lmb Technologie GmbH undertakes to dispense with reservation of ownership if the customer has paid all the receivables connected with the object of purchase and appropriate security exists elsewhere for the other receivables from ongoing business relations. During reservation of ownership, the customer must keep the object of purchase in good order, have maintenance work scheduled by the manufacturer and necessary repairs carried out immediately by Lmb Technologie GmbH or a workshop authorised by the manufacturer to service the object of purchase. If third parties seize the goods subject to reservation of ownership or the goods are taken in pledge, the customer must inform Lmb Technologie GmbH immediately. In such cases the customer must also inform the third parties and pledgees of ownership by Lmb Technologie GmbH. The customer must also inform Lmb Technologie GmbH within 24 hours of any change in the location of the goods. Until complete payment has been made, the customer must refrain from doing anything with the object of purchase beyond normal use. The customer agrees herewith to grant Lmb Technologie GmbH the right to collect all goods and, for this purpose, to enter the customer’s home or business premises.
16. Place of Performance and Jurisdiction
The place of performance and sole place of jurisdiction for deliveries and payments as well as for all disputes arising between the parties, including legal action relating to cheques and bill, shall be the principal place of business of the seller, Lmb Technologie GmbH, and, in the event of assignment to a collection agency for the purpose of collection, the principal place of business of this collection agency. If the customer is a registered trader, the place of jurisdiction for all disputes arising in connection with the contractual relationship shall be Amtsgericht Erding (Local Court Erding).
German law shall apply. In the event of disputes, the German text of the General Terms and Conditions of Business shall be legally binding and shall prevail.
17. Severability Clause
If individual provisions or parts of these General Terms and Conditions of Business are or become invalid for any reason whatsoever, the validity of the other provisions shall remain unaffected. In this case the invalid provision or invalid part shall be replaced by a valid provision/part which achieves the same economic purpose as originally intended.