Terms and conditions: Status as at 05/2020
§ 1 Sphere of validity
(1) These terms and conditions of sale and supply alone shall apply for goods supplied, services rendered and offers submitted by LWL-Sachsenkabel GmbH (hereinafter known as “Seller”), unless other terms and conditions are expressly approved in writing by the Seller in writing. These terms and conditions of sale and supply shall also apply in those cases in which the Seller supplies the goods without reservation or accepts an order without reservation even in those cases in which he is aware that the Buyer’s terms and conditions of business are contrary to, or differ from, these terms and conditions of sale and supply.
(2) The terms and conditions of sale and supply shall apply only if the Buyer is a trader (Section 14 of the German Civil Code [BGB]), a legal entity under public law or a public law special asset.
(3) These terms and conditions of sale and supply shall also apply for all future contracts governing the sale and/or the supply of movables with the Buyer, without the Seller having to draw attention to them again in every single instance.
§ 2 Offer, conclusion of contract
(1) The Seller’s offers are subject to change without notice and are non-binding, unless the offer states otherwise.
(2) The Buyer’s order is a legally binding offer to enter into a contract.
(3) A supply contract shall only materialise when it has been confirmed in writing by the Seller, and which the Seller may state within two weeks of receiving the Buyer’s order. Its contents shall determine the content of the contract. If the Buyer does not raise an objection without undue delay, the order shall be based upon the content of the order confirmation. If an order confirmation is not raised, a supply contract shall materialise (governed by these terms and conditions of sale and supply) by providing the goods. In such cases the Buyer shall waive the receipt of a statement of acceptance by the Seller.
§ 3 Prices / Terms and Conditions of Payment
(1) Unless the Parties have made an agreement otherwise in a specific case, the Seller’s prices shall be understood to be “EXW Gornsdorf” (Incoterms 2010) plus the rate of value added tax in force at the point in time at which the invoice is raised. Generally the prices in force at the point in time at which an offer is submitted shall apply.
(2) The seller reserves the right to set minimum order values and minimum quantity surcharges.
(3) Invoices shall become payable in full within 30 days from the delivery of the goods and presentation of invoice. Irrespective thereof, the Seller shall be entitled at all times to make a delivery dependent upon concurrent payment without having to state any reasons.
(4) The Buyer shall find himself in default when the period allowed for payment stated in Paragraph (2) (30 days) expires. If the Buyer does find himself in arrears, the Seller shall consequently be entitled to demand default interest amounting to eight (8) percentage points above base rate. The right to charge interest on monies owed after the date on which payment is due as is normal in commercial transactions (Section 353 of the German Commercial Code [HGB]) shall not be affected by the aforegoing. Other damages may also be asserted.
(5) All payments have to be made in Euros.
§ 4 Reservation of title
(1) The Seller shall retain the title to the items to be supplied until the receipt of all payments in existence at the point in time at which that contract was signed.
(2) The goods subject to reservation of title are to be stored separately from the Buyer’s property or third party property and are to be clearly marked as the Seller’s property.
(3) The Buyer is entitled to resell and / or process the goods subject to reservation of title in a proper commercial transaction.
(4) The Buyer’s accounts created from reselling the goods subject to the reservation of title (Including other accounts such as insurance claims or claims based upon unlawful acts in the event of loss or destruction) shall be assigned to the Seller here and now by way of security. The Seller accepts the assignment. The Buyer is entitled to collect the assigned account as long as he fulfils his payment obligations. In the event that the Buyer is in default with payment, the Seller shall be entitled to revoke the collection authorisation. In this case the Buyer shall, at the Seller’s request, be obliged to pass over to the Seller all the information required for collection and to allow the Seller to have the existence of the assigned account verified by a party appointed by the Seller on the basis of the Buyer’s bookkeeping records. The Buyer shall also be obliged to notify the debtors that the account has been assigned to the Seller.
(5) If the goods subject to reservation of title are processed by the Buyer, it shall consequently hereby be agreed that the processing shall be carried out in the name, and for the account of, the Seller and the Seller shall acquire direct title or – if the processing is carried out with, or in connection with, materials owned by more than one other owner, or the value of the processed thing is higher than the value of the value of the supplied goods – the co-ownership (fractional co-ownership) of the newly created thing in proportion to the value of the items supplied to the newly-created thing. In so far as the Seller loses his title as a result of the items he supplies being combined or blended or in the event of the goods being processed he should not be the owner of the manufactured thing, the Buyer shall consequently hereby assign to the Seller from the outset co-ownership to the unitary thing equal to the value of the supplied goods in proportion to the unitary thing. The Seller hereby accepts the offer. The hand-over of co-ownership shall be replaced by it being kept in safekeeping free of charge.
(6) The supplied goods subject to reservation of title must not be pledged to third parties nor assigned as a security before the secured accounts have been paid in full. The Buyer shall have to inform the Seller in writing of third party seizures of the Seller’s property.
(7) In the event that the Buyer is in default with payment, an application is made to instigate insolvency proceedings on the Buyer’s assets, an expectancy is assigned to a third party or the Buyer’s business operations are assigned to a third party, the Seller shall be entitled to withdraw from the contract in accordance with the statutory regulations and to demand the return of the supplied goods. In so far as the Buyer does not pay the purchase price due, the Seller may only assert these rights if he has previously set the Buyer a reasonable period of time for payment and payment has not been made or such a period of time may, under the statutory regulations, be disregarded. The Seller may enter the Buyer’s business premises for the purposes of demanding the return of the supplied goods. After the goods subject to reservation of title have been taken back, the Seller shall be authorised to sell them in the open market. The proceeds from the sale are to be offset against the Buyer’s liability (minus reasonable cost of sale expenses).
(8) At the Buyer’s request, the Seller shall undertake to release the securities to which he is entitled to the extent that they exceed the value of the accounts to be secured by more than 20% in so far as they have not yet been settled. The selection of the securities to be released shall be incumbent upon the Seller.
§ 5 Dispatch
(1) Provided that Buyer and Seller have not agreed otherwise in a specific case, the goods shall be delivered “EXW Gornsdorf” (Incoterms 2010). The Seller will take out insurance policy covering the normal transport risks at the Buyer’s request and cost.
(2) If the delivery is delayed at the Buyer’s instigation, or if, in a given instance it has been agreed that a delivery shall be called off and if the Buyer does not call off the delivery within 14 days from being notified that the goods are ready for dispatch, the goods shall be kept in safekeeping at the Buyer’s risk or put into store and invoiced as having been supplied “EXW Gornsdorf” (Incoterms 2010)
§ 6 Deliveries / Delivery period
(1) The deadlines for the deliveries shall be agreed by the Parties. If the Parties have agreed a delivery period, it shall begin to run on the date of the written order confirmation or. – if one has not been sent out – when the goods are made available.
(2) Compliance with deadlines agreed for the supply of goods and services shall be dependent upon the receipt on time of all the documents to be furnished by the Buyer as well as all the necessary information being passed over on time and the fulfilment of all other obligations by the Buyer. If these preconditions are not fulfilled on time, the periods of time allowed for the supply of goods and services shall be extended appropriately. This shall not apply if the Seller is responsible for the delays.
(3) If the Seller recognises that he will be unable to meet an agreed deadline, the Seller shall notify the Buyer of this without undue delay.
(4) The Seller shall not be liable for delays in delivery caused by force majeure or as a result of other events unforeseeable at the point in time at which the contract was signed affecting him or one of his suppliers for which the Seller is not responsible (E.g. strike, lock-out, operational disruption, not being supplied on time, transport delays, inclement weather conditions, restrictions imposed by the government, official intervention, currency-related or trade policy-related measures, natural catastrophes, fire, flooding, piracy, blockage of transport routes etc.). The delivery period shall be extended by the duration of the temporary impediment to performance for which the Seller is not responsible..
(5) The Seller is entitled to supply part deliveries, provided that (i) the part delivery can be used by the Buyer for the purpose for which he entered into the contract, (ii) the Seller is able to supply the remaining goods and (iii) the Buyer does not incur any additional costs as a result.
(6) Compensation claims for damages on account of impossibility of supply or delays in supply shall be limited in accordance with the regulations in (6) of these General Terms and Conditions of Sale and Supply.
§ 7 Reservation of right to withdraw from the contract
(1) The Seller is entitled to withdraw from the contract if force majeure, strikes, or natural catastrophes or the failure of the Seller’s suppliers to supply him with the correct goods on time make it much more difficult or impossible to supply in accordance with the contract and this impediment for which the Seller is not responsible is not only of a temporary nature.
(2) The Seller shall be entitled to withdraw from the contract if the Buyer has made incorrect or incomplete statements about the facts determining his creditworthiness.
§ 8 Warranty / Compensation for damages / Liability
The statutory regulations shall govern the rights of the Buyer in the event of the goods supplied by the Seller being affected by quality or legal defects, unless specified otherwise in the following.
(1) Upon receipt the Buyer has to inspect the goods he has received for defects without undue delay. He has to notify the Seller of manifest defects in writing without undue delay within ten (10) working days (Monday to Friday) from receipt at the latest. He must notify concealed defects in writing within seven (7) working days from discovery. Otherwise the delivery shall be regarded as having been approved..
(2) The Buyer shall have to allow the Seller an opportunity to verify the defect and in particular to make the goods about which a complaint has been made and their packing available for inspection At the Seller’s request the goods about which a complaint has been made are to be returned carriage-free to the Seller within 14 days. If a defect is substantiated, the Seller shall refund the Buyer the costs of the cheapest method of returning the goods to the Seller. This arrangement shall not apply if the goods are at a location other than that at which they are supposed to be used in accordance with the contract.
(3) In so far that the thing does have a defect the Seller shall as he chooses be entitled to effect a cure either by means of rectifying the defect or by supplying a new defect-free thing.
(4) The warranty shall lapse if the Buyer has modified the supplied goods or has them modified by a third party without the Seller’s consent thereby making it more difficult or impossible to rectify the defect. In each case however, the Buyer shall have to bear the additional costs incurred in rectifying the defect as a result of the modification.
(5) If it is not possible to effect a cure or supply a replacement, or if the Seller refuses to do so or if the cure or replacement does not take place or is unsuccessful for reasons other than those attributable to the Seller being responsible within a reasonable period of time laid down by the Buyer, the Buyer may, as he chooses, withdraw from the contract or reduce the purchase price. The purchase price may only be reduced by the Seller adjusting the invoice or raising a credit. The Buyer will not have to specify a period of time if the law does not require him to do so.
(6) The Buyer’s other claims, in particular for compensation for damages instead of performance, and for the reimbursement of other direct or indirect damage – including accompanying or subsequent damage, regardless of whatever reason – will not be accepted. This shall not apply if
a) The Seller has maliciously concealed a legal or quality defect or has expressly taken on a product warranty guaranteeing freedom from such defects or for the condition of goods.
b) The damage is attributable to intent or to gross negligence on the part of the Seller, one of his legal representatives or assistants or a negligent breach of important contractual duties by the Seller or by these persons. By important contractual duties are to be understood those obligations the fulfilment of which make it possible to carry out the contract properly in the first place and upon the fulfilment of which the other Party to the contract may usually rely and usually does rely. In cases of ordinary breaches against important contractual obligations the Seller’s obligation to pay compensation for property and pecuniary loss shall be limited however in amount to damages typical for the contract and which could have been foreseen.
(7) The provisions in accordance with the above paragraph shall apply accordingly for the Buyer’s direct claims against the Seller’s legal representatives and assistants.
(8) In all cases the statutory regulations shall not be affected if goods are supplied direct in a final delivery to an end customer (Supplier’s recourse in accordance with Sections 478 and, 479 of the German Civil Code [BGB]).
§ 9 Period of limitation
(1) Section 438 of the German Civil Code [BGB] shall apply for the period of limitation for claims under warranty.
(2) All claims not covered by the exclusion of liability in accordance with Section (6) of the exclusion from liability as well as any real rights to hand-over there may be shall become time-barred in accordance with the statutory regulations.
(3) All other claims between the Parties to the contract shall become time-barred within a period of two years from the statutory beginning of the period.
§ 10 Place of fulfilment / Legal venue / Language / Applicable law / Miscellaneous
(1) In so far as nothing has been expressly agreed otherwise, the Seller’s principal place of business shall be the place of fulfilment.
(2) The sole legal venue – even if the dispute is international in character – for all disputes arising from the supply arrangement shall be Stollberg in the Federal Republic of Germany. The Seller shall be entitled to take legal action against the Buyer at the Buyer’s legal venue as well.
(3) The law of the Federal Republic of Germany shall apply. The UN law on sales shall not apply.
(4) Should individual provisions of these General Terms and Conditions of Sale and Supply become partially or completely void or invalid, the remaining provisions shall not be affected by this as a result.
Status as at 05/2020