Our terms and conditions
Section 1 – Scope of the terms and conditions
- All deliveries, services and offers of Lütkebohle & Nolte GmbH & Co. KG (“Seller”) to its customers (“Buyer”) shall be made exclusively on the basis of these General Terms and Conditions of Delivery and Business (“GTCs”). These GTCs apply in particular to contracts governing the sale and/or delivery of movable property (“Goods”) without regard to whether the Seller manufactures the goods itself, purchases them from suppliers or manufactures them using materials provided by the Buyer.
- These GTCs only apply when the Buyer is an entrepreneur (Section 14 BGB [Bürgerliches Gesetzbuch, German Civil Code]) or a legal entity under public law or a special fund under public law. Unless otherwise agreed, the GTCs shall apply as a framework agreement in the text form version that is valid on the date of the Buyer’s order or in any case in the text form version that has been most recently communicated to the Buyer, and also to similar future contracts without the need for the Seller to refer to them in individual cases.
- Any conflicting, deviating or supplementary terms and conditions of the Buyer shall exclusively be deemed part of the contract if and to the extent that the Seller has explicitly agreed to their validity in writing. This consent requirement shall also apply in cases where the Seller carries out delivery to the Buyer without reservation while fully aware of the Buyer’s terms and conditions.
- Individual agreements made with the Buyer in individual cases (including collateral agreements, amendments and supplements) shall take precedence over these GTCs in all cases. A written contract or written confirmation by the Seller shall, unless proven otherwise, be decisive for the content of such agreements.
Section 2 – Offers and order placement
- All offers, also insofar as they are contained e.g. in brochures, advertisements or other documents, are non-binding and subject to change. The Seller shall hold itself to specially prepared offers designated as binding for a period of 30 calendar days.
- Orders placed by the Buyer shall be deemed binding contractual offers that the Seller is free to accept within a period of four weeks. Acceptance shall occur by means of written order confirmation or delivery of the Goods.
- The Seller reserves the rights of ownership and copyright to any visualisations, illustrations, calculations and other documents. The same applies to written documents designated “confidential”. The Buyer shall obtain the express written consent of the Seller before disclosing any materials to third parties.
Section 3 – Prices and price changes
- All prices are net prices excluding statutory value added tax; VAT is declared separately in the invoice at the statutory amount valid as of the invoice date.
- Provided nothing to the contrary arises from the order confirmation, prices shall apply “free domicile”, packaging included.
- Insofar as the agreed prices are based on the Seller’s list prices and a period exceeding four months lies between the conclusion of the contract and the agreed delivery date, the Seller’s list prices valid as of the date of delivery or provision (minus any agreed percentage- or fixed discount) shall apply.
Section 4 – Delivery term/Delays in delivery or acceptance
- The Seller shall endeavour to meet the specified deadlines. Deadlines held out in prospect by the Seller shall always apply as approximate unless a fixed deadline has been expressly promised or agreed.
- The beginning of the delivery term stated by the Seller is dependent on the clarification of all technical issues. Fulfilment of the delivery obligation is further dependent on the timely and proper fulfilment of the Buyer’s contractual obligations. The Seller reserves the right to plead non-fulfilment of contract.
- If the Buyer is delayed or defaults in acceptance or culpably violates any other obligations to cooperate, the Seller shall be entitled to claim compensation for the damages arising therefrom, including any additional expenses. The Seller reserves the right to assert further claims.
- The occurrence of a delay in delivery is determined in accordance with applicable statutory provisions. In case of a merely negligent delay in delivery, the Seller shall be liable for every completed week of delay within the scope of a lump-sum compensation amounting to 1% of the delivery value but not exceeding a maximum of 5% of the delivery value. The Seller reserves the right to prove that no damages or significantly lower damages than the predetermined lump sum have arisen for the Buyer.
- The Buyer reserves the right to assert further rights and claims. The Buyer’s rights as defined in Section 7 of these GTCs remain unaffected.
Section 5 – Shipping and transfer of risk
- The risk of accidental loss or deterioration of the Goods is transferred to the Buyer no later than at the time of handover. In the case of sale by dispatch, however, the risk of accidental loss or deterioration of the Goods is transferred to the Buyer as soon as the shipment is handed over to the person carrying out the transport. If handover for the purpose of shipment is delayed at the Buyer’s request, risk is transferred to the Buyer at notification of readiness for dispatch. If the parties have agreed on an acceptance of delivery, this shall be decisive for the transfer of risk. The same applies with regard to handover or delivery if the Buyer is delayed or defaults in acceptance.
- Provided that the Buyer so wishes, the Seller shall cover the delivery by a transport insurance policy in the Buyer’s name; the Buyer shall bear the resulting costs.
Section 6 – Liability for defects
- Claims for defects by the Buyer depend on the Buyer’s having duly fulfilled its duties of inspection and objection in accordance with Section 377 HGB (Handelsgesetzbuch, German Commercial Code).
- If an item for sale exhibits any defects, the Buyer shall be entitled to supplementary performance through its choice of remedial action or delivery of a new, defect-free item. Subsequent performance does not include either the removal or re-installation of the defective item unless the Seller was originally obligated to installation. The Seller is obligated to bear all expenses necessary for subsequent performance, in particular transport, travel, labour and material costs (excluding installation and removal costs) insofar as these do not increase through transportation of the item for sale to a location different from the place of fulfilment.
- The Seller is entitled to make subsequent performance dependent on the Buyer paying the purchase price that is due. However, the Buyer is entitled to retain a share of the purchase price appropriate to the scale of the defect.
- If subsequent performance fails, the Buyer is entitled to its choice of withdrawing from the contract or demanding a price reduction.
- The limitation period for defect claims is 12 months calculated from the transfer of risk. If the parties have agreed on an acceptance of delivery, the limitation period begins at acceptance. However, if the Goods in question are comprised of a building or an item that has been used for a building in accordance with its customary use and has caused the building to become defective, the limitation period is five years from delivery in accordance with the legal regulations (Section 438 para. 1(2) BGB).
- Statutory special provisions governing final delivery of the Goods to a consumer (supplier regress as defined by Sections 478 and 479 BGB) remain unaffected in all cases, in particular with regard to a limitation period.
Section 7 – Contract manufacturing
- In the case of contract manufacturing, the Buyer shall provide the materials, parts, devices, tools and/or machines to be used by the Seller in good order and condition and in accordance with any specifications designated in the order confirmation.
- In the case of contract manufacturing or the mechanical processing of materials provided by the Buyer, the Seller shall only be liable within the framework of the manufacturing or processing services performed. The Seller shall not be liable for any materials provided by the Buyer or for any defects in the services of the Seller caused by the materials, parts, devices, tools and/or machines provided by the Buyer. Wilful intent and gross negligence on the part of the Seller are excluded from the above; Section 8 of these GTCs remains unaffected.
- The Seller is entitled to bill for additional processing effort arising from errors or defects pursuant to para. 2. In this case, the Buyer is entitled to prove that significantly lower processing effort, or none at all, has arisen for the Seller.
- To the extent that performance or completion of the works is delayed due to reasons for which the Buyer is responsible (e.g. delayed provision of goods), the Seller shall be released from the obligation to meet any agreed deadlines.
Section 8 – Other liability
- The Seller is liable for any violations of contractual obligations or of statutory non-contractual obligations insofar as nothing to the contrary arises from these GTCs, including the following provisions.
- Within the scope of fault liability, the Seller is liable – irrespective of legal grounds – in the event of wilful intent or gross negligence. In cases of ordinary negligence, the Seller (subject to a more lenient standard of liability in accordance with applicable statutory provisions) is only liable:
- for damages arising from injuries to life, limb or health,
- for damages arising from the violation of an essential contractual obligation. Contractual obligations deemed essential are those for which fulfilment is a condition for the proper performance of the agreement and compliance with which the contractual partner regularly relies on and is justified in relying on (e.g. the defect-free delivery of the Gods). In this case, however, the liability of the Seller is limited to compensation for foreseeable damages that can typically be expected to occur. For delays in delivery caused by ordinary negligence, Section 4 para. 4 shall apply.
- The liability limitations arising from Section 8 para. 2 also apply in the event of violations of breaches of duty committed by or in the interests of persons whose fault is the responsibility of the Seller under applicable statutory provisions. These limitations do not apply insofar as the Seller has fraudulently concealed a defect or has assumed a guarantee for the condition of the Goods, nor for claims by the Buyer pursuant to the German Product Liability Act (Produkthaftungsgesetz).
Section 9 Retention of title
- The Seller shall retain ownership of the item(s) for sale until full payment has been made for all present and future claims arising from the purchase agreement and from an ongoing business relationship. In the event of conduct in breach of contract by the Buyer, in particular default of payment, the Seller is entitled to withdraw from the contract and demand the return of the item(s) for sale in accordance with the statutory provisions.
- The Buyer is obligated to treat the item(s) for sale (“Reserved Goods”) subject to retention of title with due care; in particular, it is obligated to insure the item(s) against damages from fire, water and theft sufficient to the full replacement value at its own expense.
- The Reserved Goods may neither be pledged to third parties nor assigned as security before full payment of the secured claims has been made. In the event of seizure or other third-party access to the Reserved Goods, the Buyer shall inform the Seller in writing without delay so that the Seller can assert its rights of ownership. Insofar as said third parties are not able to compensate the Seller for the judicial and extrajudicial costs incurred in this regard, the Buyer shall be liable for the losses incurred.
- Until notice to the contrary, the Buyer is entitled to sell the Reserved Goods in the ordinary course of business; however, it simultaneously relinquishes to the Seller all claims it accrues through sale to its customers or to third parties, in full or in the amount of any co-ownership share of the Seller (para. 5). The seller shall accept this assignment. Even after assignment, the Buyer remains authorised to collect these claims. The Seller’s authorisation to collect the claims itself remains unaffected by the above. However, the Seller undertakes not to collect these claims insofar as the Buyer fulfils its payment obligations to the Seller and there is no deficiency in its capacity (in particular, no application to open insolvency proceedings has been made). In the latter event, the Seller may demand that the Buyer disclose the assigned claims and their assignees, state all information necessary for collection, hand over the associated documents and notify all assignees (third parties) of the assignment. In this case the Seller is further entitled to revoke the Buyer’s authorisation to sell or process the Reserved Goods.
- The retention of title extends to the products resulting from the processing, mixing or combining of the Reserved Goods for their full value, with the Seller deemed to be the manufacturer. In the event that third parties retain ownership rights when processing, mixing or combining the Reserved Goods with their goods, the Seller shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Furthermore, the same terms and conditions shall apply to the resulting products as to the item(s) for sale delivered under retention of title.
- The Buyer also relinquishes to the Seller the claims to secure claims against it by the Seller arising against third parties through the combination of the item(s) for sale with any real estate properties.
- At the Buyer’s request, the Seller undertakes to release the securities to which the Seller is entitled insofar as the realisable value of its securities exceeds that of the claims to be secured by more than 10%; selection of the securities to be released lies with the Seller.
Section 10 – Payment
- Sales staff are not authorised to collect in cash. Furthermore, payments with discharging effect may only be made directly to the Seller or to a bank account specified by the Seller.
- Insofar as nothing to the contrary arises from the order confirmation, the purchase price shall be due in the net amount (without deduction) within a period of eight days from the invoice date. The statutory regulations governing the consequences of payment default shall apply.
- The Seller expressly reserves the right to refuse cheques or bills of exchange. In all cases, acceptance shall exclusively occur on account of payment. Charges for discounts or bills of exchange shall be borne by the Buyer and are due immediately.
- The Buyer shall only be entitled to rights of set-off insofar as its counterclaims have been established by a court of law, are undisputed or have been acknowledged by the Seller. Furthermore, the Buyer is only entitled to assert a right of retention insofar as its counterclaim is based on the same contractual relationship.
Section 11 – Place of jurisdiction, choice of law and place of fulfilment
- Insofar as the Buyer is a businessperson, a legal entity under public law or a special fund under public law, the Seller’s registered office shall be the place of jurisdiction; the Seller is nevertheless also entitled to proceed against the Buyer at its general place of jurisdiction. Overriding statutory provisions, in particular on exclusive competences, remain unaffected.
- The law of the Federal Republic of Germany applies; application of the UN Sales Law (CISG) is excluded.
- Provided nothing to the contrary arises from the order confirmation, the Seller’s registered office shall be the place of fulfilment.