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of LAUDA DR. R. WOBSER GMBH & CO. KG
Version November 2005
1.1 (Scope) These General Terms and Conditions are only intended for use in business with entrepreneurs.
1.2 (Conflicting business conditions, confirmation in writing) The only terms and conditions for the contract shall be these terms and conditions. We will not accept any conflicting general business terms, whether or not expressly rejected by us. Any modifications or additional agreements must be confirmed in writing by us.
1.3 (Offers, right to make modifications, electronic data storage) Initial Quotations are made free of obligation. We reserve the right to make technical improvements and modifications of products without prior notification. We may store and process contract information in data processing systems.
1.4 ( Offsetting, withholding) Unless the customer has undisputed counterclaims, he shall neither be entitled to offset nor to withhold payments for deliveries received.
1.5 (Place of performance, Court of jurisdiction, governing law)
Place of performance is our works in D – 97922 Lauda - Königshofen. For all disputes arising out of the contract the courts of jurisdiction shall be D- 97941 Tauberbischofsheim / D- 74821 Mosbach as competent courts of our registered office. We can also take legal action against the customer at his registered office . The contract shall be construed and interpreted in accordance with the laws of the Federal Republic of Germany with exception of the 'UN Convention on the International Sale of Goods' (CISG).
1.6 (Contractual language) The language of the contract is English.
2.1. We may deliver in installments.
2.2 The customer shall bear all packing, transport and insurance costs to the place of delivery unless otherwise agreed.
2.3. The risk shall be transferred to the customer when the goods leave our works. This shall apply also when we have agreed to provide additional services such as freight forwarding, packing, exportation or installation.
3.1 Delivery periods are ex works. Delivery times or periods shall commence only after settlement of all technical questions and after we have received all documents, permits or releases required from the customer or from authorities as well as any advance payments requested. Subject to correct and punctual internal delivery. We shall inform the customer without delay of the non-availability of the delivery products.
3.2 Acts of God or any events for which we are not responsible i.e. strikes, lockouts, operating breakdowns, shortages of raw materials or means of production, delayed deliveries or failure of delivery by our suppliers shall extend the delivery period accordingly. Delivery times will also be extended due to modification of products or services requested by the customer.
3.3 In any case the customer has to send us a reminder setting a reasonable period of grace before claiming default of delivery.
3.4 In the event of compensation for damages caused by late deliveries, our liability for compensation besides performance shall be limited to 5 % and for compensation instead of performance to 10 % of the value of our delivery. This limit shall not apply in cases of intent, gross negligence and/or injury to life, body or health.
3.5 The foregoing provisions shall also apply for installation times or periods. An installation time or period shall commence only after completion of any preparational works (especially the works listed in 5.2).
4.1 Prices quoted shall be EXW (ex-works). If applicable, VAT will be added. Spare parts are charged according to our current Price Conditions or as offered.
4.2 Our prices do not include costs for taking back, recycling or disposal of waste equipment of other users than private households. If the customer wishes so, we shall organize the taking back, recycling or disposal of such waste equipment at the expenses of the customer.
4.3 Unless otherwise agreed invoices are due immediately and shall be paid in full, without deductions, to our account in the Federal Republic of Germany, in EURO (€). We shall accept bills of exchange or checks only on account of performance. Any bank costs shall be born by the customer.
4.4 In case of any delays in payment or if we have reason to believe that there could be failure of the customer to fulfill his paying obligation we reserve the right to require payment in advance or the provision of security.
4.5 Installation prices refer only to agreed work. Additional installation work shall be invoiced at our hourly rates.
4.6 Our hourly rates for installation shall apply for all working hours. Delays, journeying to and from the site, travel costs as well as surcharges for overtime, night-time working, work on Saturdays, Sundays or public holidays and for work in hard conditions will be charged in addition. The amount of surcharges depends on the rates agreed for the applicable pay scales and on the conditions prevailing locally. If an agreement cannot be reached, we may specify the amount of such surcharges at our reasonably exercised discretion in accordance with § 315 of the German Civil Code (BGB).
5.1 The customer shall be responsible for ensuring public safety at the installation site. The customer shall ensure that our installation work can be undertaken without risk of accidents. This shall include compliance with all the relevant occupational safety and accident prevention regulations.
5.2 The customer shall be obliged – at his own expenses:
a) to set up the site so that installation work can proceed without obstruction;
b) to provide electricity, water, heating, lighting and connections and if necessary compressed air, technical gas and chemicals;
c) to provide the necessary auxiliary personnel in sufficient numbers and for the time necessary for installation work;
d) to complete all earthworks, construction and installation work necessary before our installation commences;
e) to provide the necessary fixtures, heavy tools, commodities and if necessary electronic data processing systems;
f) to provide premises which can be locked for storing tools and the personnel's clothing, as well as facilities for washing;
g) to transport the installation parts to the site, to protect the installation parts and materials against harmful influences of every kind; and
h) to provide every other assistance needed by our installation staff during installation if necessary for technical reasons.
5.3 The customer shall ensure that installation work can commence as soon as our installation staff arrives and can be continued without delays until final acceptance. The auxiliary personnel provided by the customer shall follow the instructions of our representative. We cannot accept any liability for the assistance and auxiliary personnel.
5.4 Declarations of any kind by our installation staff shall only be binding if confirmed by us in writing.
5.5 At the end of the installation or - if requested by our representative – weekly, the customer shall sign our work slips in confirmation of the hours worked and the work rendered. Down-payments for the installation shall be identified also on the work slips.
6.1 The delivered products shall remain our property and title shall not pass to the customer until all open liabilities of the customer have been fully paid for.
6.2 The customer may resell products in the normal course of business provided the claims arising from the resale have not been assigned, pledged, attached or otherwise encumbered.
6.3 The customer shall not combine our products with other products that are object to rights of third parties. In case of the constitution of a new product, we will achieve joint ownership.
6.4 The customer assigns to us in advance any claims arising from the resale of the delivered products (6.2) or the newly constituted products (6.3) up to the amount of our invoice. Any and all revenue received by the customer relating to the resale shall be used exclusively for paying any amounts due to us.
6.5 In the event of delay in payment, we are entitled to withdraw from the contract and/or, even without withdrawal, to demand that reserved goods still available at the customer be handed over to us and to collect the assigned claims ourselves. To determine our rights, we can have all of the documents/books affecting our proprietary rights of the customer inspected by a person who is obliged to observe professional discretion.
7.1 We are liable that our products are free of defects at the transfer of risk. Immaterial deviations from the agreed quality or non-essential restrictions in usability are, however, of no significance.
Qualities, performance or other features shall only be binding if we have expressly agreed on them in writing to the customer. Details in advertisements, instructions for use or reference to industrial standards shall also only be binding if we have expressly agreed on them in writing. If the customer requires the products for special purposes which exceed the agreed or anticipated use, he must check before use if the products are suitable for such purposes - including all aspects pertaining to product safety - and customer is required to ensure that products comply with all relevant technical, legal and official regulations and requirements. We are not liable if such proper verification has not been performed by the customer and proper written authorization was not obtained from us.
7.2 In case of a defect the customer has to set us a reasonable period of time to enable us to eliminate the defect either - subject to our discretion – by repairing the product or supplying a product free from defects (subsequent performance according to § 439 BGB). In the event of rejection, impossibility or failure of subsequent performance, the customer has the right to demand a reduction of the purchase price or to withdraw from the contract. In case that additional expenses to repair or replace the products arise because the customer has transferred the products after delivery to another place than the agreed place of performance the customer has to bear the additional costs.
7.3 The customer has to inspect the products as to quantity and defects immediately on receipt and has to notify any apparent defects immediately. Hidden defects are to be notified immediately after being discovered. Failure to meet these obligations excludes any and all potential claims for these defects.
7.4 We are further not liable for any damages following improper use, handling, maintenance, operation or processing or on normal wear.
7.5 Our liability for slight negligence is restricted to claims based on injury to life, body or health, to claims arising from the Product Liability Law and to claims arising from the culpable infringement of essential contractual obligations, with said infringement putting the purpose of the contract at risk. Our liability for the slightly negligent infringement of essential contractual obligations is restricted to typically occurring damage foreseeable by us at the time the contract was signed.
7.6 Claims against us based on defects are subject to a statute of limitations of one year as of the delivery of the goods to the customer/acceptance of the service by the customer. The same shall apply accordingly to claims for damages, for whatever legal reason. The restriction of the period of limitation shall not apply for claims based on fraudulent concealment of a defect, for claims based on the Product Liability Law as well as for claims arising from injury to life, body or health, and for other damage based on intent or gross negligence.
8.1 We reserve ownership in any moulds, samples, diagrams, commercial or technical documents provided by us as well as all copyrights, proprietary and intellectual property rights in any such item. This applies also if the customer has partly or wholly borne their costs. The customer may use all such items only in formats approved by us in writing, he is neither entitled to manufacture these items nor to have them manufactured on his behalf.
8.2 The customer is responsible that the use of drawings, models, samples, or instructions as provided to us by the customer shall not infringe industrial property rights or other rights of third parties. The customer shall be liable for payment of all expenses, awards, damages, and other compensation to outside parties and all cash and non-cash expenses in defending any allegation of such infringement.
8.3 All information acquired through the business relationship which is not deemed to be public knowledge shall be deemed proprietary and may not be disclosed to any third parties.
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