General Business and Delivery Terms and Conditions
a) These general business terms and conditions (GTC) are legally binding for all mercantile relationships, offers, deliveries, payments and other legal transactions between us and our business partners. They therefore also apply for all future business relations, even in cases in which they have not been expressly agreed to again. Business conditions from our customers which deviate from these conditions are hereby contradicted. Deviating agreements, in particular telephone and verbal agreements, including those by our representatives, are only binding when they are confirmed by us in writing.
b) Should these GTCs fail to become part of a contract in part or in total, or become void, the rest of the contract and the conditions themselves remain in effect nonetheless. The contract parties are obligated to replace any voided provisions with new ones, which approximate them in meaning and significance.
c) We reserve the right to process all data regarding the customer which we receive from the customer himself or from third parties in connection with the business relationship, as stipulated in the (German) Federal Data Protection Act.
d) The laws of the Federal Republic of Germany apply exclusively, to the exclusion of theUN Sale of Goods Convention.
2. Object of Agreement
a) Our offers are non-binding and nonobligatory. Declarations of acceptance and all ordersrequire our written or telexed confirmation to be legally valid. The same applies for additions, amendments, or subsidiary agreements. To the extent that the transmission of a written confirmation of order does not occur, the contract nonetheless comes into effect if we deliver and the customer accepts the wares based on the written or telephoned order
To the extent that the customer is a consumer in the sense of § 13 BGB, the regulations of the $$ 312 b ff. BGB on distance contracts apply as well.
b) Drawings, images, measurements, weights and other performance data are only then binding when this is expressly agreed to in writing.
c) Prices are understood tobe ex warehouse or -delivery works and do not include costs for packing, freight, loading and unloading, transport, insurance, installation, assembly and activation, nor for user training.
d) Our minimum order price is 50,– EUR (fifty Euros). Should we deliver small amounts at the customer’s express wish, we reserve the right to charge a processing fee of 5, – EUR (five Euros).
e) Price changes are permitted, when the period between contract closing and the agreed delivery date is longer than six weeks. If this limit is exceeded, and wages, materials costs or market cost prices rise between contract closing and completion of delivery, we reserve the right to raise the prices appropriately in accordance with the cost increases. The purchaser is only then entitled to withdrawal, when the price increase substantially exceeds the rise in the general cost of living between order and delivery.
a) Delivery dates and –deadlines are dated from clarification of all details of the commission, confirmation by us, and receipt of any down payments, prepayments or other similar advance performances by the buyer which have been agreed upon.
b) Binding times of performance are only considered as agreed upon, when they are expressly guaranteed as binding in the written order confirmation.
c) In case of delays in service caused by acts of nature, turmoil, strikes, lockouts or unavoidable interruptions to operations including those of our suppliers,the time of performance is extended by the length of time necessary for the resolution of the problem.
d) In case of a delay in performance for which we are responsible, the customer may, following the expiration of a grace period of at least three weeks without results, withdraw from the contract. The grace period must be established in writing and registered, and begins with the verifiable receipt of the grace period request by us.
e) We are at all times entitled to make partial deliveries without any special agreement. Every partial delivery can be invoiced separately.
f) We reserve the right, in accordance with generally accepted standards of care in the industry, to technically unavoidable deviations in physical or chemical quantities including colors, measurements, weights and amounts, also as they compare with samples.
g) We reserve the right to undertake changes in construction at any time; however, we are under no obligation to carry out such changes in products already delivered.
h) Delivery takes place by our choice from our storage location in Rheine, or from the delivery works. If the customer is an entrepreneur in the sense of $ 14 BGB, the goods are transported at the purchaser’s risk, regardless of the shipping location and their type. The costs for this are carried by the purchaser.
i) If the customer/purchaser should ultimately decline to accept our properly offered services, or refuses to accept our services following a grace period set for him of at least two weeks, we can then suspend the contract and demand damages on the basis of non-fulfillment. As damages, we may demand 25 % of the agreed price, unless the customer can demonstrate that no damages have been caused, or damages in this amount have not been caused. On our side we can apply a higher damages claim than this fixed damages rate, to the extent that we can demonstrate the occurrence of greater damages.
j) After previous approval we can accept voluntarily returned wares postpaid. Only flawless wares in their original packaging will be credited.
4. Trademark Rights
a) Drawings, proposals and documentation, especially on the development of new solution proposals, may not be made known by the recipient to any third person, especially competitor companies. Actions to the contrary are subject to damages claims and entitle us to withdraw from all closed delivery contracts with the recipient. Any drawings, documents and models belonging with the offer must be returned immediately, if the offer does not lead to the placing of an order.
b) It is the purchaser’s exclusive responsibility to ensure that the items contracted with us do not violate the intellectual property rights, trademark rights, or property rights of third parties. The purchaser will thereby hold us harmless in all cases for claims by third parties arising from the alleged injury to property rights through our execution of the order.
c) Our catalogue issues stand under copyright protection. The manuscript and the images are our property. Reprinting, including that of excerpts, and photographic utilization for other purposes is only permitted with our express approval in writing. Any violations entitle us to damages claims.
5. Retention of Title
a) The delivered wares remain our property until complete payment of our entire outstanding accounts payable from the purchaser, including those which will emerge in the future through the business relation. They may not be pledged, mortgaged, or assigned by way of a security. The purchaser is obligated to report any attempts by third parties to seize our property, and must inform us immediately following any such seizure.
b) The purchaser is entitled to dispose of the wares within the framework of a proper business transaction, as long as he is not in default. The outstanding accounts which thereby result, including any ancillary rights and security interests, are ceded by the customer to us now regardless of whether the goods subject to retention of title are revamped or processed, and whether they are sold to one or more customers. The ceded accounts serve as security for our claims in the amount of the respective goods subject to retention of title which are sold. In case of processing of wares which do not belong to usby the purchaser, we claim ownership of the new wares in the proportion of the value of thegoods subject to retention of title to the other reprocessed wares at the time of reprocessing. The purchaser is obligated to provide us with complete information on the location of the wares, to give us the resulting accounts payable from third parties and to make available documentation necessary toward that end.
c) If it should be ascertained after delivery that our claim to remuneration is seriously threatened through financial collapse of the purchaser or other causes (especially by payment default of two weeks, application for opening of an insolvency- or conciliation process), we can at our discretion declare a withdrawal from the contract, require provision of security or spot cash or, in case of continuation of the contract, reclaim our wares and disclose the assignment of claims to our customer’s purchasers. In case of withdrawal, all claims by the customer no longer apply. If we should demand security or spot cash, the time of performance is automatically extended by the amount of time which passes until the required performance of service is finally made completely available to us.
d) The enforcement of the property clause, in particular through reclaiming the wares and disclosure of the assignment, does not qualify as withdrawal from the contract and simultaneous enforcement of damages claims. Regardless of the purchaser’s payment obligations, we are entitled to sell the reclaimed wares privately at the best price and credit the proceeds, or to seek compensation at market- or purchase price minus processing fees.
e) The Lüttman Company is entitled to insure the delivered items at the purchaser’s cost against fire, water, and other damage, to the extent that the purchaser himself has not demonstrably secured such insurance.
6. Warranty and Liability
a) We will make good any material defects and defects of title through improvement or substitute delivery according to our choice. A claim to damages, price reduction or withdrawal only exists in connection with material defects or defects of title when an appropriate grace period, previously made known to us, expires without result.
b) Regarding the condition of the deliveries and services to be performed by us, it is hereby agreed that our brochure information and any information from the product’s manufacturers or his agents — particularly in the advertising on delivery- and service items and their purpose and usage (e.g., measurements, toughness, capacity, practical value etc.) — merely represent non-binding promotional information. They are to be regarded as only approximate. We must reserve the right to deviations customary in the industry. The actual agreed condition of the items has priority over any individual advertised statements from the packaging, verbal or written assertions. The same applies to the purchase of samples, models or corresponding earlier deliveries. A declaration of guarantee from us in this connectioncan only be assumed in case of the express submission, in writing,of such a guarantee declaration by us. The extent of the guarantee in this case depends on the respective content of the guarantee content.
c) If the customer is an entrepreneur in the sense of § 14 BGB, a legal person under public law, or a special assets fund under public law, no warranty obligation exists for the delivery of used wares. If the customer is a consumer according to $ 13 BGB, there is a warranty obligation of 12 months for the delivery of used wares.
d) To the extent that our service consists of the dispensation of consultation, other provision of assistance in the solution of technical problems, or similar actions, it will be carried out to the best of our knowledge and in all good conscience, but remains non-binding for us. We can only take on a corresponding liability when an express, written consulting contract is agreed upon and closed.
e) The delivered wares are to be inspected immediately upon receipt for quality, mistaken delivery and deviations in amount. We can only accept liability for obvious defects in this sense if we are immediately notified about them in writing within the limitation period of no more than 14 days from the time the deviations are recognized. Observance of the deadline is sufficiently demonstrated by the punctual receipt of the notification. If the customer is a merchant in the sense of the commercial code, instead of this paragraph, the regulations in § 377 HGB apply, with the stipulation that the inspection and defect notification regulated there also apply to mistaken deliveries and deviations in amount.
f) Damages claims of all types and on whatever legal basis against us, our legal representatives, vicarious agents or employees, especially based on dereliction of duty or unallowed handling, even in connection with our consultation in words, image, writing, or in any other manner are precluded, unless we or our vicarious agents are shown to be guilty of malice or gross negligence, or an injury to life, limb or health has occurred, or (in the unlikely case that)severe liability on our part as in the content of the contract is established, particularly from the assumption of a warranty or a procurement risk or malicious non-disclosure of defects.
Claims arising from the German Product Liability Act shall remain unaffected hereby.
In case of breach of obligations, the fulfillment of which is enabled by the proper execution of the contract and upon whose observation the customer may normally depend, we are also liable for minor negligence. In cases of minor negligence, liability is limited to the standard contract categories of reasonably foreseeable damages. This applies as well for breach of obligations by our vicarious agents.
7. Statutory Limitation of the Warranty Rights
a) If the customer is a consumer in the sense of § 13 BGB, then the following statutory limitations apply:
aa) If the defect is in the property right of a third party, based upon which the surrender of the purchased item can be demanded, or in another right, which is entered in the registry of deeds, then the statutory limitation is30 years and is calculated according to the stipulations in the legal regulations.
bb) If our performance consists of delivery of items which are normally used in construction, defects in which items have allegedly caused damage, the statutory limitation is five years and is based on the legal regulations.
cc) If the purchase of consumer goods in the sense of § 474 Abs. 1 BGB is at issue, in which a consumer has purchased a moveable good from us, the statutory limitation is two years and is otherwise oriented to the legal regulations.
dd) If the purchase of consumer goods has to do with a used item, or if the contract does not have to do with the delivery of newly-produced items, but rather with a service (service contract), or if the object of the contract is the purchase of a right, the statutory limitation is one year and is otherwise oriented to the legal regulations.
b) If our customer is an entrepreneur in the sense of § 14 BGB, a legal person under public law, or a special assets fund under public law, then the time limitations previously mentioned in aa) and bb) apply accordingly. In all other cases the statutory limitation is one year and is otherwise oriented to the legal regulations.
c) For injury to life, limb or health; grossly negligent behavior by our vicarious agents, executive employees or governing bodies; premeditated or malicious behavior; culpable violation of essential contractual obligations; guarantees and warranties, and claims under the German Product Liability Act, the legal statutory limitation regulations apply instead.
d) For the purchase of used items, we give a one-year warranty according to § 475 Abs.2 BGB.
8. Terms of Payment
a) Our invoices are due immediately upon delivery, in cash. Shipping is possible only with prepayment or payment on delivery, unless otherwise agreed.
b) A discount deduction in the amount of 2 % is possible with receipt of payment within 8 days of the invoice date. Discounts do not apply with bills of exchange, or when the purchaser has not fulfilled all of our claims, or when other accounts payable are due at the time of payment.
c) Partial deliveries will be billed separately, and otherwise paid for in accordance with these GTCs.
d) For late payments (at the latest, after exceeding a payment period of 30 days from receipt of our invoice), under reserve of enforcement, an additional damage interest in the amount of 5 % above the base interest rate in the sense of § 247 BGB will be calculated. If our customer is not a consumer in the sense of § 13 BGB, the minimum default interest rate amounts to 8 % above the base interest rate per § 247 BGB.
e) Objections by entrepreneurs in the sense of § 14 BGB to our billing, account statements, reconciliation of accounts, and similar balances must be sent in writing within a period of 4 weeks after receipt of the document in question. If no timely objection is made, this is considered to indicate approval of the invoice sum and the balance.
9. Place of Performance/Place of Jurisdiction
a) Place of performance for delivery and payment is our company headquarters.
b) If our customer is a merchant in the sense of the German Commercial Code, a legal person under public law, or a special assets fund under public law, the District Court of Steinfurt is agreed upon as exclusive place of jurisdiction for all conflicts arising directly or indirectly from the contract relationship, including change- and check processes.
10. Return Instructions (only for contracts with consumers)
a) Right to Return:
You may return the received wares without any explanations within 14 days by post. The period begins after receipt of these instructions in text form (e.g., as letter, fax, or e-Mail), but not before receipt of the wares .Only in the case of wares which cannot be sent as a package (such as very bulky goods) should you explain the return, and request retraction in text form . Adequate proof of observing the term limit is provided bythe timely mailing of the wares or the request for retraction. In any case, the return mailing will take place at our cost and risk. The return mailing or retraction request should be directed to:
Lüttmann Werkzeugmaschinen Vertriebs GmbH, Röntgenstr. 28, 48432 Rheine.
Consequences of Return:
In the case of a legitimate and effective return, services received and profits derived (if any)are to be compensated on both sides. In case of deterioration of the item and possible benefits gained (such as compensation for use), which in sum or in part cannot be surrendered (or only in poor condition), you must offer us compensation of equal value. You must only offer compensation for the deterioration of the items, to the extent that the deterioration is a result of use of the item going beyond inspection of the qualities and function of the items. “Inspection of the qualities and function” is understood to mean testing and trying out of the respective goods, as is possible and normal in a store.
Payment obligations must be fulfilled within 30 days. The period begins for you with the shipping ofthe goods or the request for retraction, and for us upon receipt.
If you have financed this contract through a loan and make use of your right of return, then you are no longer bound to the loan contract if both contracts represent an economic unit. This may be assumed, in particular, if we are simultaneously your creditor or if your creditor takes advantage of our participation with regard to the financing. If, by the time the recall or returnbecomes effective, the loan funds have already accrued to us, as regards the loan rescission you may contact not only us, but also your creditor.
b) If a consumer in the sense of § 13 BGB is not involved in the legal transaction, the right of return according to§ 18 does not apply.
End of return instructions