General terms and conditions of sale and delivery
I. General information
- All deliveries and services of LiPRO Energy GmbH & Co. KG hereinafter referred to as the supplier, are based on these terms and conditions as well as any separate contractual agreements. Deviating terms and conditions of purchase of the purchaser shall not become part of the contract even by acceptance of the order. In the absence of a special agreement, a contract shall be concluded with the written order confirmation of the Supplier.
- The supplier reserves the property rights and copyrights to samples, cost estimates, drawings, and similar information of a tangible and intangible nature, including in electronic form. They may not be made accessible to third parties. The Supplier undertakes to make information and documents designated by the Purchaser as confidential accessible to third parties only with the Purchaser’s consent.
- The Supplier’s offers, also in brochures and advertisements, are subject to change. Orders placed by the Purchaser shall only become binding upon written confirmation by the Supplier.
II. Extent of the delivery obligation
- The written order confirmation by the Supplier shall be decisive for the delivery volume.
- The supplier expressly reserves the right to make reasonable technical changes to goods or services insofar as these are unavoidably necessary and could not have been foreseen.
III. Price and payment
- In the absence of a special agreement, the prices shall apply ex-works including loading at the factory, but excluding packaging, transport, and unloading. Value added tax at the respective statutory rate shall be added to the prices.
- In the absence of a special agreement, payment shall be made without any deduction to the Supplier’s account per the following terms of payment:
- 80 % of the total invoice amount shall be paid within 7 days after the acceptance of the order confirmed in writing by the Supplier, and the order placed in writing by the Purchaser.
- 20% of the total invoice amount will be paid 7 days prior to the agreed date of delivery, but no later than 30 days after notification that the goods are ready for dispatch, according to the priority principle.
- The Purchaser shall only be entitled to withhold payments or to set off payments against counterclaims to the extent that the Purchaser’s counterclaims are undisputed or have been finally determined by a court of law.
IV. Delivery time, delivery delay
- The delivery time begins with the date of receipt of payment in full by the Supplier per the payment terms regulated in these General Terms and Conditions.
- The delivery period shall be deemed to have been complied with if the delivery item has left the supplying plant or the storage location by the expiry of the delivery period or the customer has been notified that the delivery item is ready for dispatch, unless otherwise agreed in writing.
- In the event of measures within the scope of labor disputes as well as in the event of the occurrence of unforeseen obstacles which are beyond the supplier’s control or in the event of obstacles for which the supplier is responsible, the delivery period shall be extended accordingly.
- If the shipment is delayed due to circumstances for which the Purchaser is responsible, the Purchaser shall be charged the storage costs of the Supplier as well as the storage costs incurred by third parties in the amount of 1 % of the total invoice amount for each month of the delay in delivery, calculated 14 days from the day of the notification of readiness for shipment. The Supplier shall be entitled to dispose otherwise of the delivery item after granting a period of 6 months after notification of readiness for dispatch which has elapsed fruitlessly; the delivery contract and any claims for reimbursement by the Purchaser against the Supplier shall thereby become invalid.
- Compliance with the delivery period shall be conditional upon the fulfillment of the Purchaser’s contractual obligations.
- If the Purchaser is more than six weeks in arrears with the taking over of the subject matter of the contract or the fulfillment of its payment obligation after notification of the provision, the Supplier shall be entitled, after granting a grace period of 14 days, to withdraw from the contract or to claim damages for non-performance. If the Supplier claims damages for non-performance, it may claim 15% of the sales price as liquidated damages. The Supplier reserves the right to prove a higher damage, the Purchaser reserves the right to prove a lower damage. If the Supplier does not make use of this right to liquidated damages, it shall also be entitled – without prejudice to its other rights – to dispose freely of the subject-matter of the contract and to deliver to the Purchaser in its place a similar subject-matter under the terms of the contract within a reasonable period of time.
- In the event that the Purchaser does not accept the goods, does not pay, etc., the Supplier is entitled to claim damages. Since the Supplier purchases purchased parts from third parties to a large extent, the Supplier is entitled to claim the actual damage incurred. In the absence of other provisions, the Supplier may claim 50% of the sales price as compensation. The Supplier reserves the right to prove a higher damage, the Purchaser reserves the right to prove a lower damage.
- The Supplier grants the Purchaser the right to cancel the contract, provided that the Purchaser is prepared to pay the cancellation costs in accordance with the following scale. The cancellation costs are stated below as a percentage and are measured against the agreed sales price, calculated from the conclusion of the contract/confirmation of order:
• within the first 30 days: 50%
• within day 31-60: 60%
• within day 61-90: 70%
• from day 91 until date of notification of readiness for shipment: 80%.
The Purchaser is entitled to execute the cancellation only if he pays the above amounts. If the Purchaser cancels the Contract in accordance with this provision, the Supplier shall remain the owner of the equipment and the work in progress.
- If necessary purchased parts cannot be procured in time (delivery bottleneck), although the Supplier has ordered in time, the delivery period shall be extended accordingly. The Supplier shall immediately inform the Purchaser thereof in writing. Otherwise, fixed delivery periods shall only apply if they have been agreed in writing or assured by the Supplier.
- The Supplier reserves the right to make changes in design or form, deviations in color and changes in the scope of delivery, provided that the object of purchase is not substantially changed and the changes are reasonable for the Purchaser.
V. Transfer of risk, Acceptance
- Shipment shall be made for the account and at the risk of the Purchaser, unless otherwise agreed. The risk of accidental loss or accidental deterioration shall pass to the Purchaser upon delivery ex works or ex warehouse, unless otherwise agreed.
- If shipment is delayed at the request of the Purchaser or if the goods are not accepted for reasons for which the Supplier is not responsible, the risk shall pass to the Purchaser upon notification of readiness for shipment.
- Unloading of the goods is the responsibility of the Purchaser and shall be at the expense of the Purchaser.
- Partial deliveries are permissible insofar as they are reasonable for the Purchaser.
- If the Purchaser is an Entrepreneur, the risk of accidental loss and accidental deterioration of the purchased item shall pass to the forwarding agent, the carrier or any other person designated to perform the shipment in the case of sale by delivery to a place other than the place of performance. The handover is the same if the customer is in default of acceptance.
- The Purchaser shall protect the delivered goods against theft, vandalism and damage caused by external influences (e.g. weather) or, if necessary, insure them, unless insurance cover already exists. The Purchaser shall be liable for any damage caused as a result.
- If the transfer of risk to the Purchaser after installation of the Goods at the Purchaser’s place of use is agreed, the Goods shall be insured by the Supplier, the terms and conditions of which shall then be defined separately and commissioned and ordered separately by the Purchaser.
VI. Retention of title
- The object of purchase shall remain the property of the Supplier until the claims to which the Supplier is entitled on the basis of the contract have been settled. The retention of title shall also remain in force for all claims which the Supplier subsequently obtains against the Purchaser in connection with the object of purchase, e.g. on the basis of planning and service work, repairs or spare parts deliveries and other services.
- Any processing of the object of purchase subject to retention of title, as well as any combination with third-party items by the Purchaser or third parties, shall be carried out on behalf of the Supplier. The Supplier shall be entitled to co-ownership of newly created items in proportion to the value of the object of purchase.
- The Purchaser shall be entitled to process and sell the object of purchase in the ordinary course of its business; as security, it hereby assigns to the Supplier its claims arising from the resale of the object of purchase. The Purchaser is authorized to include the claim. The Supplier reserves the right to notify the Purchaser of the assignment and to collect the claim. The Supplier undertakes to release the securities to which it is entitled to the extent that the invoice amount of the reserved goods exceeds the claims to be secured by more than 20%, insofar as these have not yet been settled.
- In the event of significant breach of contract by the Purchaser despite prior warning, in particular in the event of default in payment, the Supplier shall be entitled to withdraw from the contract and to demand the return of the purchased item. In this case, the Supplier shall be entitled, after giving written notice with a reasonable period of notice, to dispose of the object of purchase in the best possible way by private sale, offsetting the proceeds of the sale against the purchase price.
- In the event of access by third parties, in particular in the event of seizure of the object of purchase, the Purchaser shall immediately notify the Supplier in writing and immediately inform the third party of the Supplier’s retention of title. The Purchaser shall bear all costs which have to be incurred for the cancellation of the seizure and for a recovery of the object of purchase, insofar as they cannot be recovered from third parties.
- The Purchaser shall be obliged to keep the object of purchase in proper condition for the duration of the retention of title, to have all maintenance work and necessary repairs provided for by the Supplier carried out without delay – except in emergencies – by the Supplier or by a workshop recognized by the Supplier for the servicing of the object of purchase.
- If the law of a country does not permit the retention of title but allows comparable rights to be reserved, the Supplier may exercise all rights of this kind. The Purchaser shall be obliged to take measures at its own expense which are necessary to make these rights to the object of purchase effective and to maintain them.
- The Supplier shall be entitled to withdraw from the contract if the Purchaser or a third party files for insolvency proceedings.
VII. Services of the Purchaser during installation
- The Purchaser shall, at its own expense, create in good time all the preconditions which will enable the Supplier to carry out start-up without undue delay.
- At the Supplier’s request, this shall include the provision of skilled and auxiliary personnel, equipment, energy, water and working and operating materials, as well as the preparation of all earthworks and foundation, construction and scaffolding work. The access roads and the assembly site must be levelled at floor level and have sufficient load-bearing capacity for vehicles and the foundations must be completely dry and set. At the Supplier’s request, the Purchaser shall provide suitable rooms for personnel and assembly equipment.
- In the case of assembly work abroad, all entry, work and other necessary permits shall be procured by the Purchaser at the Purchaser’s expense.
- Delivery shall be deemed to be fulfilled when the object of purchase has been handed over to the Purchaser or readiness for dispatch has been notified. From this point in time, the risk is also transferred.
- From the date of performance, the Supplier shall be liable in accordance with the provisions of Article XII.
- Delivered objects of purchase shall be accepted by the Purchaser, even if they show minor defects, without prejudice to the rights under Article XII.
IX. Material defects
- The determination of a material defect must be reported to the supplier in writing without delay. Replaced parts become the property of the supplier.
- The costs for the removal of defects or replacement delivery shall be borne by the supplier.
- If it turns out that this is not a warranty case, but that the alleged defects are due to the fact that the customer has not handled the system properly, the customer shall bear the costs.
- The Purchaser shall be obliged to carry out any necessary rectification work:
a)to grant the necessary time and opportunity.
b) to provide auxiliary personnel, equipment and operating facilities and to carry out ancillary work at its own expense.
c) to carry out at the Purchaser’s own expense the work exceeding the original scope of the order.
- The obligation to remedy material defects shall not apply to natural wear and tear and parts which are subject to premature consumption due to their material properties or the nature of their use. Furthermore, the Supplier shall not be liable for damage caused by the fact that the Purchaser improperly stores, handles or uses the contractual items, has itself carried out faulty assembly or commissioning, uses unsuitable operating materials, excessively stresses products, etc. The Supplier shall also not be liable in the event of any other circumstances. There shall also be no liability in the event of any other circumstances which have arisen through no fault of the Supplier (e.g. defective foundations, unsuitable subsoil, chemical or electrochemical or electrical influence, etc.)
- The obligations to remedy material defects do not exist if
- the Purchaser has not notified the Supplier of a defect in writing without undue delay.
- by any improper modifications or repair work carried out by the Purchaser or third parties without the prior consent of the Supplier, liability for the consequences arising therefrom shall be excluded.
- parts have been installed in the object of purchase the use of which has not been approved by the supplier or the object of purchase has been modified in a manner not previously approved in writing by the supplier
- parts have been installed by third parties that have an influence on the operation of the plant
- The purchaser has not followed the instructions for handling, maintenance and care of the object of purchase (e.g. operating instructions).
X. Infringement of industrial property rights
If the use of the object of purchase leads to the infringement of industrial property rights or copyrights in Germany, the Supplier shall, at its own expense, generally procure for the Purchaser the right to continue using the object of purchase or modify the object of purchase in a reasonable manner so that the infringement of industrial property rights no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the Purchaser shall be entitled to withdraw from the contract. Under the aforementioned conditions, the Supplier shall also be entitled to withdraw from the contract. In addition, the Supplier shall indemnify the Purchaser against undisputed or legally established claims of the owners of the property rights concerned, and shall otherwise defend against any attacks by third parties against the Purchaser and/or the Supplier.
XI. Warranty period of limitation
Claims of the purchaser, due to material defects/legal defects, shall become statute-barred one year after the day of start-up of the object of purchase, if the purchaser is a legal entity under public law, a public special fund or an entrepreneur who acts in the exercise of his commercial or self-employed activity when concluding the contract. In any case, claims shall become statute-barred at the latest 15 months after delivery or notification of readiness for delivery. This limitation period of one year shall be extended to 2 years from start-up in the event that the purchaser and user is a private person.
- If the Supplier installs spare parts within the scope of the warranty, the following shall apply with regard to the warranty period: The warranty for such parts shall be one year; this period shall not end before the warranty period for the delivered equipment.
- Further claims of the Purchaser, in particular a claim for compensation for damage that has not occurred to the delivery item itself, are excluded. This exclusion of liability shall not apply in the event of intent, gross negligence on the part of the owner or executive employees, or culpable breach of material contractual obligations. In the event of culpable breach of material contractual obligations, the Supplier shall be liable – except in cases of intent and gross negligence on the part of the owner or executive employees – only for reasonably foreseeable damage typical for the contract. Furthermore, the exclusion of liability shall not apply in cases in which liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivery item. It shall also not apply in the absence of characteristics which have been expressly warranted if the purpose of the warranty was to protect the Purchaser against damage which did not occur to the delivery item itself.
XIII. Software usage
Insofar as software is included in the scope of delivery, the Purchaser shall be granted a non-exclusive right to use the delivered software including its documentation. It shall be provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
The Purchaser may not duplicate, revise, translate or convert the software from the object code into the source code. The Purchaser undertakes not to remove manufacturer’s information, in particular copyright notices, or to modify them without the Supplier’s prior express consent.
All other rights to the software and the documentation, including copies, shall remain with the Supplier or the software supplier. The granting of sublicenses is not permitted.
XIV. Applicable law, place of jurisdiction
- All legal relations between the Supplier and the Purchaser shall be governed exclusively by the laws of the Federal Republic of Germany applicable to the legal relations between the parties, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- The place of jurisdiction shall be the court having jurisdiction over the Supplier’s principal place of business. However, the Supplier shall be entitled to bring an action at the Purchaser’s principal place of business.
XV. Severability clause
Should any provision of these terms and conditions be or become invalid, the remaining provisions shall remain unaffected. If individual provisions are challenged or become invalid, they shall be replaced by a provision that corresponds as closely as possible to the intended provision.