These Conditions of Supply ("AGB" or "our AGB") apply to all business relationships between us and our customer ("Purchaser"). The AGB apply only when Purchaser acts in execution of his commercial or independent professional work (entrepreneur according to § 14 German Civil Code), or when Purchaser is a legal entity under public law or a public-law special fund in conclusion of the contract.
All our deliveries and services are based on these terms and any separate contractual agreements. Our AGB shall apply exclusively. Any deviating, contrary or supplementary general terms and conditions of Purchaser shall only become part of the contract if and as far as we have expressly consented to their application. This requirement of consent shall apply in any case, e.g. also if we perform the delivery to Purchaser without reservations in spite of knowing of his deviating terms and conditions.
The AGB shall specifically apply to contracts on the sale and/or delivery of movable objects ("Goods"), no matter if we produce the Goods or purchase them from suppliers (Sections 433, 650 of the German Civil Code, BGB). If not agreed on any differently, the AGB shall apply as a master agreement in the version valid or at least last reported in text form to Purchaser for future contracts of the same kind as well, without requiring any reference by us to them again from case to case.
Any individual agreements reached with Purchaser from case to case (including any side agreements, supplements and changes) shall take precedence over these AGB in any case. A written contract or our written confirmation shall be relevant for the contents of such agreements, subject to proof of the contrary. Written shall include text form (e.g. email, telefax).
Legally relevant declarations and notifications of Purchaser regarding the contract (e.g. setting of deadlines, reporting of defects, withdrawal or reduction) must be made in writing, with writing meaning written or text form (e.g. letter, email, telefax). Statutory form requirements and further proof, in particular where there is any doubt regarding legitimation of the party making the declaration, shall not be affected.
Notes regarding application of statutory provisions shall only have a clarifying meaning. Even without such clarification, the statutory provisions shall apply where not directly changed or expressly excluded, in these AGB.
Our offers are subject to confirmation and non-committal. This shall also apply if we have provided any catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form.
The order for the Goods by Purchaser shall be deemed a binding offer of concluding a contract towards us.
A contract shall be entered into at our order confirmation submitted in writing or text form (e.g. letter, email, telefax) except if there is any special agreement.
Delivery shall be made customs unpaid ex works, the factory at Werkstraße 11, D-76437 Rastatt (Germany).
On request and with the corresponding agreement, the Goods shall be sent to a different destination at Purchaser's expense (mail-order purchase). If not agreed on differently, we shall have the right to determine the type of shipment (specifically transport company, shipping method, packaging). Purchaser is obligated to provide any information, documents, approvals and certificates required for export, import or transport of the Goods to the destination to us without delay at Purchaser’s expense as far as these are required to meet the performance obligation, except if we have expressly accepted these obligations.
The place of performance for the delivery and any subsequent performance shall be the factory. The risk of accidental loss and accidental deterioration of the Goods shall pass to Purchaser at the latest when the Goods have left the factory, even if partial deliveries are made or if we have taken over any other services, such as delivery. For mail-order purchases, however, the risk of accidental loss and accidental deterioration of the Goods shall pass at delivery of the Goods to the forwarder, the carrier or any other person or institution determined to perform the shipment. Where acceptance is agreed on, this shall be relevant for passing of risk. It must be performed without delay at the acceptance date, alternatively after reporting readiness for acceptance. Purchaser must not refuse acceptance if there is an inessential defect. Apart from this, agreed acceptance shall be subject to the statutory provisions of the law on contracts for work accordingly as well. Purchaser entering default of acceptance shall be equivalent to handover or acceptance. If acceptance or dispatch is delayed or does not take place for reasons that are not due to our fault and not subject to our influence, the risk shall pass to Purchaser on the day of reporting readiness for shipment or acceptance.
Partial deliveries shall be permitted if this is reasonable for Purchaser.
If Purchaser enters default of acceptance, does not make any contribution or if our delivery is delayed for other reasons for which Purchaser is at fault, we shall have the right to demand reimbursement for the damage incurred from this, including additional expenses (e.g. storage costs).
The delivery period is agreed on individually or indicated by us when we accept the order. Compliance with this by us requires that all commercial and technical questions on the ordered Goods have been answered and Purchaser has met all of its obligations, such as provision of the required authority certificates and permits (this shall specifically apply to any required export control, import control or embargo restrictions, allotment and ratio provisions and foreign exchange restrictions) and made any agreed payment, except if we are at fault for the delay.
If the restrictions due to the above proceedings or measures pursuant to paragraph (1) above (e.g. permit, inspection or information proceedings) lead to any delay in our rendering of the services, contractual deadlines and delivery dates shall be shifted backwards accordingly except if we are at fault for this delay.
Compliance with the delivery period shall be subject to proper and timely deliveries made to us. We shall inform Purchaser immediately of any delays that become evident.
The delivery deadline shall be complied with if the object to be delivered has left our factory by the end of the deadline and readiness for dispatch has been reported. Where acceptance is required, the date of acceptance shall be relevant – except in case of justified refusal of acceptance - and otherwise the report of readiness for acceptance.
If we cannot comply with any binding delivery deadlines for reasons that are not due to our fault (non-availability of the service), we shall inform Purchaser of this without delay and at the same time report the expected new delivery period. If the service is not available within the new delivery period either, we shall have the right to wholly or partially withdraw from the contract; we shall reimburse any compensation paid by Purchaser already without delay. A case of non-availability of the service in this meaning shall in particular be the lack of timely delivery to us by our suppliers if we have concluded a corresponding coverage transaction, fault is neither with us nor our suppliers or we are not obligated to perform procurement from case to case.
Occurrence of our default of delivery shall be according to the statutory provisions. In any case, a reminder by Purchaser shall be required.
If dispatch or acceptance of the Goods is delayed for reasons that are Purchaser's fault, we shall charge the costs incurred from the delay to him.
If non-compliance with the delivery time is due to force majeure, labour dispute or any other events that are outside of our influence, the delivery time shall extend appropriately. We shall inform Purchaser of the start and end of the corresponding circumstances as early as possible.
The rights of Purchaser pursuant to § 7 and § 8 of these AGB and our statutory rights, in particular at exclusion of the service obligations (e.g. because the service and/or subsequent performance is impossible or unreasonable), shall not be affected.
Unless agreed on differently from case to case, our prices current at the respective time of conclusion of the contract shall apply, ex works including packaging but excluding loading in the factory and unloading, plus statutory VAT.
For mail-order purchases (§ 3 paragraph (2) above), Purchaser shall bear the transport costs ex warehouse and the costs for any transport insurance desired by Purchaser. In this case we charge a flat charge for freightage (excluding transport insurance), which results from the individual circumstances and which is displayed in our offer. Any customs duties, fees, taxes and other public charges shall be assumed by Purchaser.
The purchasing prices shall be due and payable within 14 days of the date of the invoice and concurrently (Zug-um-Zug) against delivery or acceptance of the goods. However, we shall have the right to wholly or partially deliver only against advance cash payment even in the scope of a current business relationship. We declare the corresponding reservation at the latest at confirmation of the order.
Purchaser shall enter default at the end of the above payment period. The purchasing prices shall bear interest at the respective applicable statutory default interest rate during the default. We reserve assertion of any further default damage. Our claim to commercial default interest (§ 353 German Commercial Code) shall not be affected towards merchants.
Purchaser shall only have any settlement or retention rights where his claim has been finally determined or is undisputed. In case of defects of the delivery, the counter-rights of Purchaser, specifically pursuant to § 7 paragraph (9) sentence 2 of these AGB shall not be affected.
If it becomes evident after conclusion of the contract (e.g. by a court action for opening of insolvency proceedings regarding Purchaser's assets) that our claim to the purchasing price is endangered because Purchaser is unable to perform we shall have the right according to the statutory provisions to refuse performance and – if applicable after setting a grace period – to withdraw from the contract (Section 321 German Civil Code). In case of contracts on the production of objects that cannot be sold otherwise (custom productions), we may declare withdrawal at once; the statutory provisions on dispensing with setting of a period shall not be affected.
We retain title in the Goods until payment of all current and future claims from the purchasing contract.
The Goods subject to retained title must not be pledged to third parties nor provided as collateral before complete payment of the secured claims. Purchaser shall inform us in writing without delay if any application for opening of insolvency proceedings is filed or where any third parties gain access to the Goods that belong to us (e.g. seizure).
We shall have the right to insure the Goods at Purchaser's expense against theft, breakage, fire, water and other damage if Purchaser has not verifiably taken out insurance.
If Purchaser acts in violation of the contract, in particular if it does not pay the due purchasing price, we shall have the right to withdraw from the contract and/or demand return of the Goods based on retained title after unsuccessful reminder, according to the statutory provisions. The demand to return the goods shall not include a declaration of withdrawal; instead, we shall have the right to only demand return of the Goods and reserve withdrawal. If Purchaser does not pay the due purchasing price, we must only assert such rights if we have previously set an appropriate period for payment to Purchaser unsuccessfully before or if setting of such a period can be disposed according to the statutory provisions.
The statutory provisions shall apply to Purchaser's rights in case of defects of material and title (including wrong and under-delivery and improper assembly or defective assembly work), except where stipulated differently below. In any case, the statutory special provisions at final delivery of the Goods to a consumer shall not be affected (supplier recourse pursuant to Sections 445a, 478 German Civil Code).
Our liability for defects shall be based primarily on the agreement entered into regarding the condition of the Goods. All product descriptions that are the object of the individual contract shall be deemed agreements on the condition of the Goods.
We shall have the right to change and improve the Goods without informing Purchaser of this in advance, provided that the changes or improvements do not sustainably impair or reduce the form or function of the Goods.
We assume no liability in the following cases: Unsuitable or improper use, defective assembly or start-up by Purchaser or by third parties, natural wear, defective or negligent treatment, improper maintenance, unsuitable equipment, chemical, electrochemical or electrical influences – if these are not due to our fault.
Safety Instructions supplied with the product must be observed by the Purchaser and must also be communicated to third parties. Before and after each use, the goods must be inspected for visible damage. Any impact of force on batteries (e.g. dropping) must be reported immediately to the manufacturer and the battery must not be used without clarification. Charging procedures must never be carried out unattended. The battery must be stored outside use in a suitable container intended for storing such batteries (e.g. battery safe).
We also shall not assume any liability for consequences if Purchaser or a third party performs improper improvement.
If no conditions were agreed on, the presence of a defect shall be determined based on the statutory provisions (Section 434 paragraph 1 sentence 2 and 3 German Civil Code). However, we assume no liability for any public statements of third parties (e.g. advertising statements).
Claims of Purchaser for defects shall require that he has met his statutory examination and complaint obligations (Sections 377, 381 paragraph 2 German Commercial Code, HGB). If any defect becomes evident at delivery, examination or at any later time, this shall be reported to us in writing without delay. If Purchaser does not properly examine and/or report any defects, our liability for the defect not reported, not reported in time or not reported property shall be excluded according to the statutory provisions.
If the delivered object is defective, we may initially choose between remedy by removal of the defect (reworking) or delivery of a defect-free object (replacement delivery). Our right to refuse remedy under the statutory prerequisites shall not be affected. Any parts replaced by us shall become our property.
We shall have the right to make the owed remedy dependent on Purchaser paying the due purchase price. However, Purchaser shall have the right to retain a share of the purchase price that is appropriate at the ratio to the defect.
Purchaser shall give us the time and opportunity required for the owed subsequent performance, specifically by providing the Goods subject to complaint to us for inspection. In case of replacement delivery, Purchaser shall return the defective object to us according to the statutory provisions.
The expenses required for the purpose of review and remedy, specifically transport, travelling, work and material expenses, shall be assumed by us if there actually is a defect. Otherwise, we may demand that Purchaser reimburses us for the costs resulting from unjustified demands for removal of defects (specifically inspection and transport costs), except if the lack of defectiveness was not evident for the Purchaser.
In urgent cases, e.g. at danger to operating safety or to defend against disproportional damage, Purchaser has to inform us without delay to coordinate the further procedure. If this is impossible under exigent circumstances, Purchaser shall have the right to remove the defect directly and to demand that we reimburse the expenses objectively required for this. Any removal of defects shall only be operated by adequate institutions. The safety instructions are to be followed in any case. We must be informed without delay, and if possible in advance, about such self-performance. The right to self-performance and the claim for the reimbursement of expenses shall not apply if we would have the right to refuse the corresponding remedy according to the statutory provisions.
If remedy has failed or an appropriate period to be set by Purchaser for remedy has expired without success or is not required according to the statutory provisions, Purchaser may withdraw from the purchasing contract or reduce the purchasing price. However, there shall be no withdrawal right in case of an inessential defect.
If use or sale of the Goods infringes any commercial property rights or copyrights in Germany, we will generally procure the right to further use for Purchaser at our expense or modify the Goods so that no property rights are infringed anymore, subject to the following paragraph 16. If this is not possible at economically appropriate conditions and within an appropriate period of time, we shall have the right to withdraw from the contract.
Our obligation named in paragraph (15) above shall only apply – subject to the provision in § 8 - if
Purchaser informs us without delay about any asserted infringements of commercial property rights and copyrights;
Purchaser supports us at an appropriate scope in defence against asserted claims and/or enables us to make the modifications pursuant to paragraph (15) above;
Purchaser lets us conduct any legal defence measures and supports us in these;
the defect of title was not due to unauthorised measures or instructions of Purchaser and any change to the Goods resulting from this and the Goods have not been used in any non-contractual manner.
17. Further claims of Purchaser shall be determined only according to the provision of § 8 below in case of defects as well.
§ 7 and § 8 paragraph (2) shall apply subject to exclusion of any further claims of Purchaser even if the Goods cannot be used contractually by Purchaser due to suggestions or consulting culpably neglected or made incorrectly by us before or after conclusion of the contract or due to culpable violation of other secondary contractual obligations – in particular instruction for operation and maintenance of the Goods.
We shall be liable for reimbursement of damage that does not occur to the delivered object directly for any legal reason – in the scope of fault-based liability in case of intent and gross negligence of us/our bodies/managing employees. In case of simple negligence, we shall be liable based on the statutory provisions (e.g. for diligence in own matters), subject to a milder liability standard, only:
for damage from violation of life, limb or health;
for damage from violation of any essential contractual obligation (obligation the performance of which is required for proper execution of the contract and the compliance with which the contractor regularly trusts in and has the right to trust in); in this case, however, our liability shall be limited to reimbursement of the foreseeable typically occurring damage;
for any defects maliciously concealed by us;
in the scope of a warranty promise;
claims of Purchaser under the Product Liability Act.
In case of culpable violation of essential contractual obligations (cf. paragraph (2) lit. (b)), we shall also be liable in case of gross negligence of non-managing employees.
Purchaser shall only have a withdrawal or termination right due to violation of obligations that are not a defect if we are at fault for the violation of obligations. A free termination right of Purchaser (in particular pursuant to Sections 650, 648 German Civil Code) shall be excluded. Apart from this, the statutory prerequisites and legal consequences shall apply.
Further claims of Purchaser shall be excluded.
All claims of Purchaser – no matter the legal reason – shall expire within 12 months after delivery of the Goods. The statutory periods shall apply to damages claims pursuant to § 8 paragraph (2).
Where software is included in the scope of delivery of the Goods, we grant Purchaser a non-exclusive right to use the software in the country of the Federal Republic of Germany and, if nothing deviating has been agreed on, the country of residence of Purchaser, as far as this is required for contractual use of the Goods within the contractual purpose. This shall not include, unless agreed on differently or the purpose of the contract, any right beyond this, specifically to process or rent the software.
The mandatory statutory rights according to § 69d of the German Copyrights Act (UrhG) are reserved.
We retain title and reserve copyright in any information and documents, e.g. samples, cost estimates and drawings of physical and non-physical kinds (e.g. in electronic form); outside of the contractual agreements (specifically the contractual purpose) or without our expressed consent, such information and documents must not be disclosed to any third parties.
These AGB and the contractual relationship between us and Purchaser shall be subject to the law of the Federal Republic of Germany under exclusion of international consistent law, in particular UN purchasing law.
The exclusive – also international – place of jurisdiction for any disputes resulting directly or indirectly from the contractual relationship shall be Karlsruhe. However, we shall in any case also have the right to raise a claim at the general place of jurisdiction of Purchaser.
Should there be discrepancies between the interpretation of the German and English versions of this Conditions of Supply, the German text shall prevail.
Lampuga GmbH
Werkstraße 11
D-76437 Rastatt