These terms of business are a component of all offers and contracts from Leicht & Appel GmbH relating to provision of goods and services. The conditions apply to the current business relationship with traders, and also apply to future proposals made and contracts concluded, in any form whatsoever (written or by telephone or verbal). The purchaser's conditions of purchase are not recognised, even if they are not expressly negated by Leicht & Appel GmbH. They are deemed to be accepted only if they are confirmed in writing by Leicht & Appel GmbH. If two letters of confirmation cross with each other, the provisions contained in the confirmatory letter from Leicht & Appel GmbH are valid, unless during the contractual negotiations the purchaser makes the purchase conditional on the recognition of his conditions of purchase.
II. Proposal, delivery, acceptance
All proposals from Leicht & Appel GmbH are without engagement even after acceptance by the purchaser, under reserve of being sold in the intervening time, until confirmed to the contrary from Leicht & Appel GmbH. For an individual case, Leicht & Appel GmbH is bound by its proposal, if this was specifically stated in writing.
Delivery periods/dates are binding only with written agreement from Leicht & Appel GmbH. The period starts only when the purchaser has taken the required collaborative actions. Delivery periods/dates are subject to the correct, defect-free, complete, and timely obtaining of supplies by Leicht & Appel GmbH. Events of any type whatsoever for which Leicht & Appel GmbH is not responsible and which affect supplies to them, or which delay or otherwise hinder delivery of goods by them (e.g. import and export restrictions from official bodies, mobilisation, war, blockades, strikes, lock-outs, etc), relieve Leicht & Appel GmbH from its obligation to performance for as long as the effects last. If, because of such events, Leicht & Appel GmbH cannot provide performance for a period of more than one month, the company may withdraw from the contract if it is still unfulfilled. Claims for damages by the purchaser for these reasons are excluded. Exceeding delivery periods/dates in other ways entitles the purchaser to withdraw from the contract if he has unsuccessfully given Leicht & Appel GmbH a suitable extension period of at least four weeks for performance. The extension period notification must be made in writing. The purchaser's further rights and claims against Leicht & Appel GmbH because of delayed delivery or unfulfilled performance are excluded unless it is a case of gross negligence or intent by Leicht & Appel GmbH, its management or vicarious agents. This restriction of liability does not apply in the case of an infringement of significant contractual obligations for which Leicht & Appel GmbH is responsible (cardinal obligations). If Leicht & Appel GmbH can be obliged to make payment of damages because of straightforward negligence (infringement of cardinal obligations), then the claims are limited to the typically predictable damages. In such cases, claims for damages because of loss of production and/or loss of profit are excluded. This restriction of liability also applies correspondingly to the behaviour of the vicarious agents of Leicht & Appel GmbH.
The customer is obliged to the immediate acceptance of the purchased goods as soon as Leicht & Appel GmbH has indicated their availability. The purchaser bears the costs of transport. They are reckoned from the place of despatch indicated by Leicht & Appel GmbH. Leicht & Appel GmbH will inform the purchaser of the place of despatch in the notification of availability. The liability of Leicht & Appel GmbH in terms of shipping is restricted to intent and gross negligence, unless it is a case of injury to life, health or body.
III. Assumption of risk
Risk transfers to the purchaser with the supply/delivery of the goods by Leicht & Appel GmbH as per contract. In the absence of agreements to the contrary, the purchaser bears risks associated with transport.
The purchaser must examine the goods immediately after delivery by Leicht & Appel GmbH, and if a defect is apparent must serve notice to Leicht & Appel GmbH immediately. If the purchaser fails to notify Leicht & Appel GmbH, then the goods are deemed to be accepted, unless it is a case of a defect which was not recognisable during the inspection. If the goods are sold "as seen", the purchaser must inspect them immediately. A later complaint of any type is excluded. Complaints of damage/defects or incorrect quantity/other incorrect amounts will be taken into account only if they are raised immediately on receipt/acceptance of the goods, and are recorded on the delivery note or by calling in a railway official or the carrier. Later complaints by the purchaser are excluded in this respect. Apart from this, complaints which are not immediately recognisable must be raised immediately after discovery, or at the latest within 10 days after receipt of the goods.
The goods under complaint may be returned only with the agreement of Leicht & Appel GmbH, unless Leicht & Appel GmbH has not responded to the complaint within 10 days.
Until a complaint has been dealt with, nothing may be removed from the goods/delivery under complaint, and they may not be modified in any other way, without the agreement of Leicht & Appel GmbH. The purchaser is obliged to take care of the goods under complaint, to keep them available for inspection, and to provide Leicht & Appel GmbH with a sample upon request. The purchaser has no right to compensation for safekeeping or other costs.
V. Delivery amounts
1. The purchaser must accept deviations in delivery quantities of +/- 10% of the ordered goods.
2. Delivery is made under invoice of the full amount of the actual delivered quantities.
VI. Liability for defects
1. If the delivered goods are not free from material defects, or Leicht & Appel GmbH has given a guarantee for certain characteristics, then the company has the choice of correcting the defect or of providing goods free of defect. Leicht & Appel GmbH can give guarantees of characteristics only in writing.
2. If attempted correction fails after an unsuccessful second attempt, then the purchaser has the choice of withdrawing from the contract or of reducing the purchase price. If the defect is caused by gross negligence or intent on the part of Leicht & Appel GmbH, its vicarious agents or subcontractors, or the defect results in an infringement of significant contractual obligations (cardinal obligations) for which Leicht & Appel GmbH is responsible, or to an injury to life, health or body for which they are responsible, or if Leicht & Appel GmbH has given a guarantee for specific characteristics, or product liability law becomes applicable, then instead of withdrawing or reducing the price, the purchaser may also claim damages because of the defect. If the infringement of cardinal obligations results from straightforward negligence, and this causes the purchaser financial or material damage, then the claim for damages is limited to the typically predictable damages. Damages because of loss of production and/or lost profit are excluded in cases of simple negligence. This restriction of liability applies correspondingly to the vicarious agents and subcontractors of Leicht & Appel GmbH.
3. If Leicht & Appel GmbH decides to correct the defects, then the company bears the costs necessary for correction. Costs which result from the delivered goods being brought to a location other than the purchaser's premises are borne by the purchaser.
4. The liability of Leicht & Appel GmbH in terms of packaging is restricted to intent and gross negligence, unless it is a case of injury to life, health or body. Leicht & Appel GmbH is then only liable for the suitability of the delivered containers for a specific load, if the company has stated the suitability in writing beforehand. The responsibility and liability for the compatibility (suitability) between containers on the one hand and load on the other is borne exclusively by the purchaser, unless Leicht & Appel GmbH has confirmed the compatibility of the container with specific loads in writing beforehand.
5. Our goods are delivered as clean as possible in appropriate outer packaging. The final cleaning and inspection of our goods before further use must be carried out by the purchaser. We do not give guarantees in terms of cleanliness and usability.
VII. Reservation of title
1. The delivered goods remain the property of Leicht & Appel GmbH until their full purchase price has been paid. The addition of individual items to an open account, as well as balancing the account and the acceptance of the same do not remove the retention of title. In this case, the reserved title is deemed to be a security for the account claim.
2. The purchaser may make use of the goods under reservation of title as part of a normal business operation. If goods under reservation of title are disposed of alone or together with goods not belonging to Leicht & Appel GmbH, the purchaser already transfers at this point the resulting claims, and all subsidiary claims, resulting from the further disposal; this will be to Leicht & Appel GmbH at the value of the goods under reservation of title, and Leicht & Appel GmbH accepts this transfer. The value of the goods under reservation of title is the amount invoiced to the purchaser by Leicht & Appel GmbH, plus a security supplement of 10% which however is not taken into account, to the extent that rights of third parties are in opposition. If Leicht & Appel GmbH is a joint owner of the goods disposed of, then the transfer of claim includes only the amount corresponding to Leicht & Appel GmbH's portion of the jointly owned goods. The purchaser's rights over the goods under reservation of title is nullified in the case of arrears, or if it is revoked by Leicht & Appel GmbH.
3. The purchaser has the right to collect transferred claims for payment himself, as long as he punctually fulfils his payment obligations to Leicht & Appel GmbH. If the purchaser gets into arrears, then at the request of Leicht & Appel GmbH, he must inform the company of the names and addresses of the third parties to whom the goods which have not been paid for have been delivered. If payment to the purchaser is made by cheque for goods under reservation of title, he already transfers at this point the ownership in the cheques to Leicht & Appel GmbH. If payment is made by bill of exchange, then the purchaser hereby transfers in advance the rights arising to him from this to Leicht & Appel GmbH. The handover of the cheques/bills of exchange is replaced through the purchaser keeping the cheques/bills of exchange safe for Leicht & Appel GmbH, or if he does not have direct access to them, he hereby in advance transfers to Leicht & Appel GmbH his claim for surrender against third parties.
4. The purchaser may neither pledge nor assign as a security the goods under retention of title to third parties. He is obliged to immediately inform Leicht & Appel GmbH in writing of any access by third parties to the goods under retention of title and of transferred claims. The costs of an intervention by Leicht & Appel GmbH are charged to the purchaser.
5. If Leicht & Appel GmbH has to retrieve from the purchaser, set apart, or otherwise secure goods under reservation of title in order to protect its property, the related costs are charged to the purchaser. The purchaser is obliged to fully compensate Leicht & Appel GmbH for any type of loss of value of the goods under reservation of title.
6. The purchaser is entitled to dispose of the goods under reservation of title, only if he has not agreed with his own customer a non-assignment clause. If in the long term the value of the securities provided exceeds the demands of Leicht & Appel GmbH by more than 15%, Leicht & Appel GmbH is obliged to repayment or release on demand by the purchaser. Leicht & Appel GmbH will choose the goods or claims to be released. In evaluating the goods, their purchase price is decisive, however reduced by a security deduction of 20% per year from the time of acquisition, where part years are counted as whole years. When all claims of Leicht & Appel GmbH arising from the business relationship have been repaid, the ownership in the goods under reservation of title and the transferred claims reverts to the purchaser.
VIII. Prices, payment, reservation of title
1. Under reserve of individual agreements to the contrary, Leicht & Appel GmbH is authorised, after conclusion of the contract, to pass on to the purchaser charges for additional expenses arising to him (e.g. new or increased duty, taxes, levies, equalisation levies or other official charges on the purchase price, increased freight charges, changes in rates of exchange, increases in raw material prices).
2. Payment must be made net immediately after receipt of the invoice, without any deduction, unless anything else is specified in the invoices. Cheques and bills of exchange are accepted only on account of performance. Transfer fees, exchange taxes, discount charges, and any other costs of collection are at the expense of the purchaser.
3. No complaints of any type by the purchaser release him from his obligation to pay the purchase price. To the extent that the purchaser believes that the has a right to a reduction in purchase price, he must pay the reduced purchase price to Leicht & Appel GmbH, and must deposit the cost difference from the full purchase price, either on trust in a notarial trust account at the offices of Leicht & Appel GmbH, or by providing a guarantee in his own name from a credit institute which is authorised to provide security against proceedings. If the purchaser's reduction in payment proves to be justified, the costs in providing a deposit/security are liable from Leicht & Appel GmbH. Arising from any possible counterclaims, the purchaser has neither a right of retention nor of charging on, unless Leicht & Appel GmbH has acknowledged the counterclaim in writing or this is determined to have legal force.
4. In the case of arrears by the purchaser, Leicht & Appel GmbH can charge legal interest for arrears as per § 288 BGB (German Civil Code), subject to further rights. After Leicht & Appel GmbH sets an extension period of at least five working days, the company is further authorised to withdraw from the contract, to claim damages for non-performance, to claim release of the goods under reservation of title for the purpose of exploitation against the account of the purchaser, or to collect the demands transferred to the company by the purchaser against third parties. Leicht & Appel GmbH will firstly give the purchaser 10 days notice of exploitation of the security goods. The same applies to the cover of transfers and the collection of transferred claims. The exploitation of the security goods may also be achieved through private contract, in which case the revenues not needed to cover the claim are to be given to the purchaser. If the purchaser's financial situation worsens, Leicht & Appel GmbH is authorised to require immediate payment of all claims, if performances have already been agreed, to make them conditional on payment in advance or on provision of security, or to cancel orders.
IX. Other provisions
1. The place of performance of the delivery is the destination location. The place of performance of the delivery is also the destination location for delivery carriage-paid to destination.
2. The place of performance for payment of the purchase price, and the place of jurisdiction for all claims arising from the delivery transaction, including claims relating to bills of exchange and cheques, is the registered office of Leicht & Appel GmbH.
3. The parties agree to the law of the Federal Republic of Germany.
X. Salvatory clause
1. If parts of this contract are or become unworkable, the other provisions remain unaffected by this. The unworkable condition will be replaced by a clause which is legally permissible and comes closest to the commercial purpose of the contract, taking into account the parties' mutual interests.
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