General Delivery, Sales and Payment Terms of Hugo Lahme GmbH + Grau & Metallguss GmbH
Persons who on conclusion of the Agreement exercise a commercial or independent professional activity (merchant)
Legal entities of public law or a public special assets fund in the sense of Sec. 310 Subsec. 1 BGB.
1. All deliveries and services are subject to the present Terms as well as to possibly concluded separate agreements.
2. In the absence of a separate agreement, a contract is created by a written order confirmation of the Supplier.
3. Deviating terms of the Buyer not specifically acknowledged by the Supplier in writing do not become part of the contract through order acceptance.
4. The present Terms also apply to all future transactions with the Supplier when involving transactions of a similar kind or when no updated terms have been submitted.
II. Offers and Contract Conclusion
1. All offers are subject to confirmation and not binding. In particular, prices may change due to overruns or shortfalls in ordered quantities.
2. Acceptance, volume and deliveries are governed solely by the order confirmation. Agreements, amendments, supplements, assurances or ancillary undertakings made verbally or by telephone or email must also be confirmed in writing to be valid. Representatives of the Supplier are not authorized to consent to changes in the delivery and payment terms.
3. Changes to design, material selection, specification and type remain reserved also after the issue of an order confirmation if the change is not in contradiction either with the order confirmation or with the specifications of the Buyer.
4. Drawings, illustrations, measurements, weights or other data in pamphlets, circulars, pricelists, other publications or in the offers of the Supplier and/or the accompanying documentation are typical industry approximations except when explicitly designated as binding by the Supplier.
5. The Supplier retains ownership and the copyright to illustrations, drawings, calculations and other records, also when in electronic format. The Buyer may use these only for the intended purpose and not give a third party access to them nor publish them without the consent of the Supplier.
6. If following the conclusion of the Agreement, a major deterioration occurs in the asset conditions of the Buyer liable to adversely affect our payment claims, we are entitled to refuse the underlying delivery until counterperformance has been received or a security provided.
III. Delivery Periods and Late Deliveries
1. All delivery periods are approximate and therefore not binding except when explicitly agreed otherwise in writing. The date of order confirmation is relevant for the start of a delivery period. The observation of a delivery period assumes that all commercial and technical questions between the Contract Parties have been clarified and that the Buyer has fulfilled all obligations incumbent upon him as e.g. the submission of agreed records, sample approvals or the payment of an advance. When this is not the case, the delivery period shall be adequately extended.
2. The observation of a delivery period is made under the proviso of the correct and timely delivery by our subcontractors. If delays are imminent, the Supplier shall notify this fact as early as possible.
3. Delivery periods shall be adequately extended – also during an ongoing late delivery – in the case of force majeure, measures of labour unrest or other events outside the control of the Supplier. The start and end of such an obstacle shall be notified to the Buyer by the Supplier as early as possible.
4. With subsequent changes to the contract liable to affect the delivery date, the delivery period shall be adequately extended.
5. The delivery period is deemed observed if the goods have left the factories of the Supplier or the latter has reported shipping readiness on its expiry. When an acceptance is required, the acceptance date is relevant, alternatively a report of shipping readiness except in the case of a justified refusal of accep- tance.
6. With the delivery of special products or large volumes, production-related over- or under-deliveries up to 10% of the order volume, also due to any particularities with casting orders, are permitted. The total amount shall be accordingly modified according to their extent.
7. If a shipment is delayed at the request of the Buyer, he shall be billed the costs of storage actually incurred, or if storage is on the premises of the Supplier, not less than 0.5% of the invoice amount per month, starting one month from report of shipping readiness.
8. If the Supplier is in arrears and if this results in a loss to the Buyer, the latter is entitled to demand a flat-rate late delivery penalty. It shall be 0.5% for every full week of delay but no more than a maximum of 5% of the value of that part from the total shipment which due to the late arrival cannot or can no longer be contractually used.
If after the due delivery date the Supplier – taking into account the exceptions governed by law – grants the Supplier an adequate period for performance and if this period passes without effect, the Buyer is entitled to rescission as per the statutory provisions.
Further claims from late delivery shall be governed by Section X.2.
IV. Right of Rescission
1. If the Supplier is prevented from meeting his obligations by the arrival of unpredictable circumstances which he was unable to prevent in spite of reasonable diligence and irrespective of whether the obstructions occur in the plant of the Supplier or at his subcontractors as e.g. plant breakdowns or the late delivery of essential materials and if this renders delivery impossible, the Supplier shall be released from his delivery obligation and any compensation claims by the Buyer be excluded.
The same shall apply also in the case of a strike or lock-out.
2. The Buyer is likewise entitled to withdraw from the contract without setting a notice period if the entire shipment delivery is rendered impossible to the Supplier before the transfer of risk. In addition, the Buyer may withdraw from the contract if at the time of the order the execution of a portion of the delivery is rendered impossible and he can demonstrate a legitimate interest in refusing partial delivery. When this is not the case, the Buyer must pay the contractually agreed price for the partial delivery. The same applies to the incapacity of the Supplier. In all other matters, Section X.2 shall apply.
If the infeasibility or incapacity occurs during late acceptance or if the Buyer is solely or mainly liable for these circumstances, he remains obligated to counterperformance.
V. Transfer of Risk, Acceptance and Shipment
1. The risk passes to the Buyer when the goods have left the factories of the Supplier, also in the case of partial shipments or when the Supplier has agreed to provide other services as e.g. the shipping costs or to undertake delivery. When acceptance is required, the date of the latter is relevant to the transfer of the risk. It must take place promptly on acceptance, alternatively after a report of shipping readiness by the Supplier. The Buyer must not refuse acceptance due to the presence of an immaterial defect. The cost of special acceptances shall be borne by the Buyer.
2. If shipment and/or acceptance is delayed or omitted due to circumstances not attributable to the Supplier, the transfer of risk to the Buyer occurs on the date of report of delivery or of acceptance readiness. The Buyer shall be liable for any possible damage to third parties as of the same date. The Supplier undertakes to conclude insurance for account of the Buyer when so requested by the latter.
3. The Supplier ships at all times at the risk of the Buyer, also with sales on freight-paid, FOB or CIF basis and when delivery is made on vehicles of the Supplier. At the request of the Buyer, deliveries shall be insured for account of the former against theft, breakage, shipping, fire and water damage or other insurable risks.
4. In the absence of any instructions by the Buyer, the shipping route, shipping method and shipping medium are at the discretion of the Supplier, at the exclusion of liability and without guarantee for the cheapest means of transport.
5. Partial shipments are permitted when reasonable to the Buyer.
VI. Price, Packing and Payment
1. In the absence of a separate agreement, prices quoted in the order confirmation are ex-works including loading in the plant but excluding packaging, unloading, customs duties, import duties and ancillary charges. To the prices shall be added the VAT in the current statutory amount. Prices are subject to the volumes calculated and quoted in the offer.
2. In line with the current pricelist, as of a net product value of € 3,000 before tax, the Supplier will deliver swimming pool articles within Germany “free domicile” and for foreign transactions “free border for customs clearance at Buyer’s choice” using transport at the Supplier’s choice.
3. With wage-based or casting orders in raw, processed or partially processed states, deliveries are in principle made ex-works.
4. For domestic minimum orders of below € 100, the Supplier is entitled to charge a processing fee of € 10. For foreign orders below € 50, the Supplier is entitled to charge a processing fee of € 25.
5. The goods are in principle supplied unpacked. If in the opinion of the Supplier, packing is required or is provided on the instructions of the Buyer, packing follows industry-typical methods. Packing shall in all cases be for account of the Buyer.
6. At the request of the Supplier, packing and loading materials must be returned promptly freight-paid. Credit notes are issued in the amount of their residual value. In all other cases, the Buyer must ensure the disposal of packing materials himself and for his own account.
7. For repeat orders, the Supplier is not bound to earlier prices.
8. Unless fixed prices are agreed, adequate price revisions on account of changes in wages, materials and distribution costs for deliveries made 3 months from contract conclusion or later are reserved.
9. In the absence of a separate agreement, payment must be made within 30 days from invoice net without deduction or within 14 days at a 2% cash discount.
10. The right to withhold payments or to offset against counterclaims is available to the Buyer only when his counterclaims are undisputed or legally final.
11. Call-off orders must in case of a doubt be called off latest within one year from the date of order. If the call-off order is not accepted in full, the Supplier is entitled to demand a minimum volume surcharge. With ongoing delivery scheduling, when a part is liable to be discontinued, the Buyer must announce discontinuation as early as possible but at least 6 months prior thereto. Otherwise, scheduled material and production costs must be reimbursed by him.
VII. Reservation of Title
1. The Supplier reserves ownership to the goods up to the receipt of all payments from the delivery agreement, in the case of an ongoing business relationship up to the receipt of all payments from the relationship. The receipt of the countervalue is considered payment.
2. As long as ownership has not yet passed to him, the Buyer must treat the goods with due care. As long as ownership has not yet been transferred, he must promptly inform the Supplier in writing if the goods have been attached or exposed to other third-party intervention. If the third party is not able to reimburse the judicial and extrajudicial costs of an action as per Sec. 771 ZPO to the Supplier, the Buyer shall be liable for the loss to the Supplier.
3. Processing or transformation of goods supplied by the Supplier and still his property shall be made on his instructions but without obligation for the Supplier. If his ownership expires due to blending, it is already agreed at this time that co-ownership to the new product shall pass to the Supplier at a ratio of its value (invoice value). The Buyer shall administer the co-ownership of the Supplier free of charge with the diligence of a prudent merchant.
4. The Buyer assigns to the Supplier already at this time all claims to which he is entitled as a result of the sale including receivables from balances of current accounts, processing, compounding or blending of the goods supplied by the Supplier; this shall apply equally to claims of the Buyer for other legal reasons (insurance, unauthorized acts etc.) with regard to the reserved goods. The assignment shall be limited in amount to the delivery value as per the invoice of the Supplier for goods supplied by him. Without requiring further explanations, the Buyer, as part of the extended reservation of title, hereby assigns to the Supplier already at this time all claims and rights to which he is entitled against his customers as a collateral in a ratio of the value of these rights; when this is not possible, the Buyer shall give the Supplier an internal share thereof. The Supplier accepts these assignments. The Supplier revocably authorizes the Buyer to collect payables to the Supplier for his account in his own name.
When the Buyer fails to meet an obligation vis-à-vis the Supplier, the Buyer shall at the request of the Supplier disclose the assignment and give the Supplier the necessary information and records. The Supplier is furthermore entitled to notify the assignment directly to the debtors of the Buyer and instruct them to make payment to the Supplier. The same shall apply to collateral rights possibly transferred or assigned to the Supplier.
5. If the customer of the Buyer has effectively excluded any assignment of claims against him, the Buyer and Supplier shall in their internal relationship treat each other as if the above claims irrespective of their kind had been effectively assigned to the Supplier in advance. The Supplier is authorized by the Buyer to assert payment claims in his name and for his own account as soon as the Buyer under the above provisions is no longer entitled to collect payables in his own name.
6. Delivered products must not be assigned without the consent of the Supplier either by attachment or as collateral. With third-party accesses to the reserved goods, the Buyer must point out the ownership of the Supplier, inform the latter promptly and give him any help required to protect his legitimate rights. If the third party is not able or obligated to reimburse the resulting judicial and extrajudicial costs to the Supplier, the Buyer shall keep the Supplier harmless from such costs.
7. With non-contractual conduct of the Buyer – in particular in the case of late payment – the Supplier is entitled to retrieve the goods after a notice and the Buyer is required to surrender them.
8. Due to his reservation of title, the Supplier may demand the surrender of the goods only when he has withdrawn from the contract.
9. An application for the opening of insolvency proceedings over the assets of the Buyer entitles the Supplier to withdraw from the contract and to demand the immediate surrender of the goods.
10. If the value of the collateral in favour of the Supplier exceeds his receivables by more than 20% in total, the Supplier is on demand of the Buyer obligated to release collateral of his choice up to that amount.
VIII. Defect Claims
For any legal and physical vices in a deliver, the Supplier shall – subject to Section X – while observing Section IX issue the following warranty:
1. All parts that turn out to be defective as a result of circumstances prior to the transfer of risk shall at the option of the Supplier either be repaired or replaced with a flawless part free of charge. The obligations to examine and claim are governed by Sec. 377 HGB. Claims must be asserted promptly in writing. Measures by the Supplier to minimize damage or his entry into claims-related negotiations do not constitute an acknowledgement or a waiver of a claim not asserted in good time.
2. Claims are not accepted for immaterial discrepancies from the agreed quality or a minor deterioration in their utility.
3. Replaced parts become the property of the Supplier.
4. To undertake all repairs and replacement deliveries that appear expedient to the Supplier, the Buyer shall, after due communication with the Supplier, give the latter the necessary time and opportunity; otherwise, the Supplier is released from any liability for the resulting consequences. Only in urgent cases to avert disproportionately large damage whereby the Supplier must be notified immediately is the Buyer entitled to either repair the defect by himself or have a third party do so and demand reimbursement of the resulting costs from the Supplier.
5. From the costs resulting directly from a repair or replacement delivery, the Supplier shall – if the claim is found to be justified – bear the costs of the replacement including its delivery to the originally agreed destination.
6. Under the statutory provisions, the Buyer has a right to withdraw from the contract – except for the exceptions provided by law – if the Supplier allows an adequate grace period for repair or replacement delivery for a physical vice to pass without effect. If the defect is immaterial, the Buyer merely has the right to a reduction of the agreed price. The right to a reduction of the agreed price remains otherwise excluded. Further claims shall be governed by Section X.2 of the present Terms.
7. The Supplier assumes in particular no warranty in the following cases: Improper or unauthorized use, defective assembly or processing by the Buyer or third party, natural wear, defective or negligent treatment, chemical, electro- chemical or mechanical factors except when attributable to the Supplier.
8. The Supplier shall likewise not be liable for any defects with have their cause in a defective input material except if the material could have been recognized by the Supplier as defective at the time of processing.
7. If the Buyer or a third party makes unauthorized minor repairs, the Supplier shall not be liable for the resulting consequences. The same shall apply to any changes to the goods undertaken without the prior consent of the Supplier. Unauthorized reworking without prior notification of the Supplier results at all times in the loss of all defect claims.
8. Deposits of foreign matters, visible changes on surfaces or the formation of stains as a result of defective care or the non-observation of assembly, processing and operating instructions do not represent a defect in the goods.
9. If the use of the goods results in infringing commercial property rights or copyrights in Germany, the Supplier shall in principle and at his expense provide for the Buyer the right of further use or modify the goods in a manner acceptable to the Buyer so that the infringement no longer exists. When this is not possible under economically viable conditions or within a reasonable period, the Buyer is entitled to withdraw from the contract. Under the above conditions, the Supplier is likewise entitled to withdraw from the contract. In addition, the Supplier shall release the Buyer from any undisputed or legally final claims by the holders of the property rights.
10. The obligations of the Supplier quoted in Section VIII.9 are subject to Section X.2 in the event of property or copyright infringements and apply only if:
• The Buyer has informed the Supplier promptly of any asserted commercial or copyright infringements,
• The Buyer has fully supported the Supplier with the defence against said claims and/or has allowed the Supplier to carry out the modifications quoted in Section VIII.7,
• All measures in defence including extrajudicial settlements for the Supplier remain reserved,
• The legal vice does not originate in an instruction of the Buyer and
• The legal vice does not originate in that the Buyer has modified the goods in particular by processing or their use in a non-contractual manner.
IX. Exclusion and Warranty
1. The warranty does not include natural wear, in particular of parts subject to wear such as sealing materials, shaft seals and luminaries and not to damage resulting from defective or negligent handling, excessive stress, non-obser- vation of operating instructions or of the limit values quoted in Item 2.
2. Any warranty claims expire when the following limit values in the surrounding media are not observed during the use of the goods delivered by the Supplier:
• Germicide contents up to 1.0 mg/l.
• Chloride contents up to 500 mg/l.
• pH value 6.5 – 9.5
3. The installation and operation of LED lighting technology including the necessary ballast and power supply units shall be carried out exclusively by an electronic technician qualified for these works or a person of equivalent qualification. If no proof is submitted, the warranty is void.
4. The use of a warranty does not extend the warranty period.
1. If due to the culpability of the Supplier the goods cannot be used contractually by the Buyer as a result of omitted or the defective execution of proposals and consultations before or after contract conclusion or due to a breach of other ancillary contract obligations, all claims of the Buyer shall be subject to the provisions of Sec. VIII and X.2 analogously at the exclusion of all further claims of the Buyer.
2. For damage that has not occurred to the goods itself, the Supplier is liable – irrespective of the legal reasons – only
a. In case of premeditation,
b. In case of coarse negligence by corporate or executive agents,
c. For culpable injury to life, limb and health,
d. For defects which have been maliciously concealed or whose absence has been guaranteed,
e. For defects in the goods as far as liability is imposed under the Product Liability Act for personal injuries or physical damage from privately used objects.
In a case of a culpable breach of cardinal contract obligations, the Supplier is also liable for gross negligence of non-executive employees as well as for slight negligence, in the latter case limited to the contract-typical and reason- ably foreseeable damage.
Further claims are excluded.
XI. Time-Barred Limitation
1. All claims of the Buyer – irrespective of the legal reason – shall lapse in 12 months unless agreed otherwise below. Compensation claims as per Section X.2 a-e shall be subject to the statutory periods.
2. The warranty period for the following products is for
• Concrete elements of gunmetal or bronze 5 years
• Accessories and stainless steel screens 12 months
• NiSn and Rilsan coatings 12 months
• Pumps and pump control units 12 months
• Automated floor vacuum devices 6 months
XII. Order-Based Production Facilities; Cast-In Parts
3. Buyer-supplied samples or other production facilities (installations, core boxes etc.) shall be forwarded to the Supplier free of charge. The corres- pondence of supplied devices with contractual specifications or previously submitted drawings and samples will be verified by the Supplier only on explicit separate agreement.
4. The Supplier is entitled to possibly required technical casting modifications. The costs for any changes, repairs and replacement of the production facilities shall be borne by the Buyer.
5. Facilities made available will be stored for a maximum of two years from date of the last delivery. The Supplier is entitled to demand the earlier collection of these facilities. If the Buyer fails to meet this demand within a set period, the Supplier may return the facilities for account of the Buyer or destroy the facilities.
6. If at the request of the Buyer or on his instructions, order-related production facilities are produced by the Supplier, the Buyer shall bear the relating costs. Facilities produced by the Supplier remain the latter’s property but shall be used during the term of the Agreement exclusively for deliveries to the Buyer.
7. If alternatively it is agreed that the Buyer becomes the owner, ownership shall pass to him with the payment of the agreed purchase price. In such a case, the handover of the facilities may be demanded at any time but is provisionally replaced by a safekeeping obligation. The safekeeping relationship may be terminated by the Buyer earliest two years from the transfer of ownership except when agreed otherwise.
8. If the use of facilities usable only once results in production waste, the Buyer shall bear the costs of the replacement facilities.
XIII. Patents; Release of Supplier
1. If deliveries are made according to specifications of the Buyer and if patents of third parties are infringed as a result, the Buyer shall keep the Supplier harmless of any claims including the cost of the appointed legal counsel.
2. Records, drawings, designs or proposals for the design and manufacture of cast parts supplied to the Buyer including in electronic format may be used by the Buyer only for the intended purpose and not be disclosed to a third party or published without the consent of the Supplier.
XIV. Place of Performance, Jurisdiction and Governing Law
1. The place of performance for all obligations out of this Agreement is at the seat of the Supplier.
2. The place of jurisdiction is the court competent for the seat of the Supplier. The Supplier is, however, entitled to institute proceedings at the registered seat of the Buyer.
3. All legal relationships between the Supplier and the Buyer shall be exclusively governed by the relevant laws of the Federal Republic of Germany applicable to legal relationships between domestic parties.
4. For foreign transactions, the application of Secs. 305 – 310 BGB shall be excluded.
Version of May 2014