1.1 These General terms and conditions of business („GTC“) are applicable on all current and future deliveries of the company LEIDEL & KRACHT Schaumstoff-Technik GmbH (L&K).
1.2 Changes or supplements of these GTCs are only then valid if they were accepted by L&K in written form. We herewith explicitly object to any general terms and conditions of purchase and to deviant terms of contract of the customer.
2. Offers and prices
2.1 Offers of L&K are basically nonobligatory and only then mandatory when they are explicitly announced to be mandatory or when they contain a term of acceptance.
2.2 The obligation of L&K conforms explicitly to the contents of the offer or the order confirmation of L&K as well as these GTC.
2.3 Statements in price lists and other publications of L&K like e.g. drawings and technical documents are only then mandatory when they were explicitly guaranteed in written form.
2.4 For smaller orders a reduced price will be charged according to the amount.
2.5 If there is no other agreement, the prices of L&K are to be seen as net EX WORKS from L&K („EX WORKS“ acc. to Incoterms 2010), exclusive VAT, installation and production certificates.
3. Terms of payment and clearing prohibition
3.1 Invoices of L&K have to be settled within 30 days after date of invoice, without deduction of cashback, expenses, taxes and fees of any kind. For pure delivery of goods a cashback of 2% can be agreed on with L&K for payment within 14 days. Cashback can only then be agreed on when there are no open financial obligations from earlier deliveries.
3.2 Furthermore the customer binds himself to pay any accruing costs to L&K from reminders and exactions of claims
3.3 L&K is eligible to ask for advance payment of a part or the whole purchasing price. This is explicitly valid for customer specific manufacturing of products or for concessions made by L&K.
3.4 The settlement of claims of the customer with claims existing from the delivery of L&K is prohibited
4. Delivery and transfer of benefits and risks
4.1 Terms and times of delivery are approximate values. Their compliance is dependent on punctual delivery of all required data and approval as well as the fulfillment of the cooperation duties of the customer. This also applies for the case that arranged part or advance payments are not made within the time stipulated.
4.2 In case of delay in delivery the customer gives L&K an appropriate grace period of 4 weeks. If this period is exceeded by L&K, even for attributable reasons, the customer may refuse the delayed part of the delivery. Partial deliveries are legitimate and are to be seen as independent businesses.
4.3 Claims of the customer for damages because of delay in delivery are excluded, except for cases of intent or gross negligence by L&K.
4.4 Terms of delivery have to be extended in an appropriate way if the customer breaches his duty of cooperation or if obstacles occur which are out of reach for L&K like e.g. war, strike, accidents, natural disasters, supplier´s problems, regulatory actions or force majeure.
4.5 If there is no other agreement, the prices of L&K are to be seen as net EX WORKS from L&K („EX WORKS“ acc. to Incoterms 2010), exclusive VAT, installation and production certificates. Benefits and risks are transferred to the customer from the moment the goods are leaving ex works.
4.6 If the dispatch or the takeover of the product is delayed or made impossible by the customer, for reasons which cannot be accepted by L&K, the goods will be stored on account and risk of the customer.
5.1 The customer is not entitled to cancel the order without the accordance of L&K.
5.2 If the customer does not take the goods over , L&K is entitled to cancel the order after a period of two (2) weeks or to claim damages because of non-fulfilment equivalent to the damages caused.
5.3 L&K is entitled to cancel the purchase contract if the customer is in default with payment of the purchasing price.
6.1 Development patterns may be manufactured by hand or may not be manufactured under batch production conditions. We reserve the right for common material- or process-related deviations
6.2 Master samples are to be approved in writing by the customer as well as by L&K.
7.1 Information, recommendations and application notes given by L&K do not exempt the customer from their own performance tests and duty of care.
8.1 Tools, which are made on behalf of our experience, drawings and constructions remain our intellectual property even if they are charged. They are not allowed to be sold or used otherwise without our approval.
9. Transfer of ownership
9.1 L&K remains the owner of the delivery until the customer has paid the complete purchasing price. The customer legitimates L&K to have the retention of the title registered in the official register and commits himself not to do anything that could endanger the retention of title.
10. Guarantee and warranty
10.1 The term of guarantee starts with the day of delivery and amounts to 1 year on material and processing, if not stipulated in a different way. L&K guarantees that the product was manufactured and delivered according to the agreed requirements.
10.2 For products which were not manufactured by L&K (additional parts and equipment) L&K only assumes warranty in the scope of the warranty of the sub-contractor.
10.3 The warranties in numbers 10.1-10.2 are final and all other warranties are excluded.
10.4 The customer commits himself to check the product after receipt within an appropriate time period but within 15 working days at the latest. Any faults have to be reclaimed detailed and in writing after they were determined. If the customer does not take advantage of the right of complaint or the testing period has expired unused, the delivery is to be seen as approved.
10.5 If the product is deficient, L&K commits itself to repair or to replace the deficient product during the term of guarantee at its own option. For that purpose the rejected/defective goods have to be packed appropriately for the back haul to L&K. The rejected products can only be shipped free of charge with a shipping company authorized by L&K. All other back hauls are only possible at the expense of the customer.
10.6 L&K is entitled to refund the purchase price against redemption of the deficient product if a new production is disproportionate because of economic reasons.
10.7 Repairs or replacements do not lead to a prolongation or interruption of the term of guarantee.
10.8 Faults which are attributable to normal wear, inappropriate use or disregard of the application rules are excluded from the guarantee. The guarantee expires if the customer or third parties change or repair the product without prior written approval of L&K.
11. Exclusion of liability
11.1 Claims of the customer against L&K are conclusively regulated in this GTCs. The liability of L&K towards the customer for direct as well as for indirect losses like loss of production, data or profit are excluded for whatever legal reason. The exclusion of liability is also valid when consulting an auxiliary person.
11.2 The exclusion of liability does not apply for malice or act of gross negligence by L&K.
12.1 The customer has to insure all of the goods provided to us as well as all the goods manufactured by us and stored at our place against fire and burglary.
12.2 We are on no account liable for damaging events like force majeure, fire or burglary.
13. Regulations at the place of destination
13.1 The customer has to call L&K´s attention to the legal and operational safety regulations which are valid for the goods at the place of destination and which refer to the delivery and usage of the products.
14. Redemption of goods
14.1 In case of contamination of goods the customer is obliged to purge and if appropriate disinfect the goods according to hospital hygiene standards. At disregard the customer has to bare all costs incurred because the goods do not need to be taken back or will be sent back.
15. Intellectual property and non-disclosure
15.1 The customer does not receive any patent, copyright or trademark law or any other intellectual property rights for the products, designs, tools or drawings with the purchase of the products. This remains also the case if L&K makes customer specific adaptations on the products.
15.2 The customer commits himself to treat any information and documents received by L&K confidentially as far as they are not public.
16. Export control
16.1 The customer acknowledges that the products may be subject to export control regulations of the USA, Asia, Europe as well as to import and export regulations of other countries. The customer is obliged to stick to these terms and acknowledges that it is on him to seek for the export, re-export and import licences if it may be necessary. The customer commits himself to hold L&K harmless concerning any claims which result from infringement of export control regulations.
17.1 The customer disposes the products delivered by L&K on his own responsibility and at his own costs according to the currently legal regulations in force and under consideration of environmental legislation.
18.1 If a clause of these GTCs is completely or partially void, it will be replaced by an effective clause which is closest to the commercial purpose of the ineffective clause.
19. Place of performance, legal jurisdiction and applicable law
19.1 The place of performance and the exclusive legal jurisdiction is the registered office, however L&K is entitled to call the competent court at the customer´s headquarter.
19.2 The legal relationship between L&K and the customer is subject to German law under exclusion of the clause of the United Nations Conventions on Contracts for International Sale of Goods (CISG).
LEIDEL&KRACHT Schaumstoff-Technik GmbH, Germany
LEIDEL&KRACHT Foam-Technology, USA
L&K Update: January 2015
1. Offer and contract closing
We exclusively work on the basis of the hereinafter delivery and service conditions as well as the terms of payment. Deviating agreements, especially conflicting terms of business of our customers are only valid if we explicitly acknowledge them in written form. Contrary business conditions of our customers are being objected even now. With the acceptance of the delivery our customers acknowledge our terms of delivery, service and payment as solely binding. Offers take place nonobligatory unless not limited in time. Offers which content is decisive for the contractual relationship need to be approved in written form to be legally valid. Agreements made on the phone or orally are only legally valid after our written confirmation.
Our prices are stated in Euro and are Ex Works. We reserve the right to invoice the current prices at the time of delivery in case of an increase of the acquisition costs. For smaller orders a minimum price will be charged depending on the dimension or quantity.
All consignments travel on the risk and account of the customer. The risk is transferred onto the customer when the goods are dispatched.
4. Delivery times
Our statements concerning the delivery times are made at our best judgement but without any liability. If the agreed time of delivery is exceeded by more than two weeks the customer is entitled to set an appropriate period for a subsequent delivery. If the duty of delivery is not fulfilled by the expiration of the deadline, the customer has the right to withdraw from the contract. The withdrawal has to be declared in written form immediately after the expiration of the contractual deadline. There is no right of withdrawal if we -not through our fault- are not in the position to keep the deadline of the subsequent delivery. In that case we are entitled to delay the delivery for the time of the hindrance. Claims of damages due to delayed delivery or non-delivery are excluded in any case. Partial deliveries are admissible and are regarded as independent businesses.
5. Default of the customer
If the customer does not accept the delivery, we are entitled to withdraw from the contract or ask for a compensation because of non-performance after a deadline of two weeks. In the latter case we are entitled to ask for a compensation of 10% of the order value or the actual loss occured.
Approval samples are handmade. We therefore reserve the right of insignificant deviations or changes due to production factors. We reserve the right for conventional deviations of Quality, application Quantity, thickness and colors of up to +/-20%. Reclamations which are made because if these reasons cannot be accepted by us.
Information, recommendation and application clues do not release the customer from an own performance test. They do not constitute guaranteed properties in the sense of law so that no claims can be justified even though they are made on the basis of our own testing results.
Tools which are made on the basis of our experience and drawings pass into our property even after being charged.
Our invoices are issued when the goods are ready for dispatch. Concerning services they are payable without deduction on receipt. Deliveries of goods are payable in cash within 14 days with 2% cash discount, within 30 days payable net.
Above-mentioned discount for cash is only granted on the precondition that all payables from prior deliveries are completely fulfilled. If periods for payment are exceeded, we are entitled to charge interest rates in the amount of 2 % above the respective interest rate of the Federal bank Lombard. . When cancelling orders which were already approved by us, we are entitled to invoice the customer 20% of the order value.
10. Right of retention
We have a right of retention against our customers concerning all claims whether due or not yet due, no matter what the legal reason may be regarding the goods or material of our customers which are under our power of disposition. This right of retention has as well an impact on non-traders of the commercial right of retention § 369, paragraph 3 of the German commercial code (HGB) does not apply. The customer is not entitled to make use of the right of retention or declare offsetting concerning our due payments.
11. Retention of title
We reserve the right of title of the delivered goods until the business relationship is completely finished. This applies as well for all secondary claims not matter what the legal reason may be. Cheque and bill transactions are only regarded as paid after encashment. The customer is entitled to process the delivered goods in the scope of his regular business operations. If the ownership gets lost by the processing of the goods the customer herewith transfers the ownership of the resulting object in order to ensure the claims according to paragraph 1. The customer is obliged to store the object resulting from the processing gratuitously. The customer is precariously entitled to resale the delivered goods or the item resulting from the processing in the scope of his regular business operations at any time. All rights, as well as all secondary rights are transferred to us concerning resales and any resulting claims in all kinds of business relations between our customer and his customer. The transferred rights serve as protection of all rights according to paragraph 1.The customer is entitled and obliged to withdraw the claims assigned to us unless we cancel this authorization. The direct debit authority expires even without an explicit cancellation when the customer stops his payments. The customer has to inform us immediately upon our request to whom he has sold the goods and which claims are due. The customer is not entitled to any other dispositions subject to retention of title or accounts assigned to us. He has to inform us immediately on any infringements of rights on the goods subject to retention of title. If required by the customer we commit ourselves to transfer the entitled properties and claims of ours to the customer if the value exceeds the value of the total account by 25%.
All goods provided to us by the customer or those manufactured by us for the customer and stored at our location are to be insured against fire and burglary. We are not liable for damaging events like fire or burglary, even not in the case of fault.
We guarantee that we, according to our choice, repair the goods free of charge, deliver subsequently and flawlessly or issue a credit note for the defects which are either recognizable or hidden or for the lack of guaranteed features within 6 months from the day of delivery. Other claims of the customer regarding faults or lacks of guaranteed features, especially damage claims because of direct or indirect losses are herewith excluded. If the guarantee, according to paragraph 1 is rejected by us or not appropriately executed or we are in delay despite the grace period the customer can only resign from the contract; damage claims no matter on which legal basis also for compensation of direct losses are excluded. The same applies if the execution according to paragraph 1 turns out to be impossible. Notices of defects have to be made in writing within 14 days after receipt of goods or when defects are not directly visible, after being discovered at the latest. At a default of the deadline guarantee claims can no longer be invoked. We are not bound to guarantee according to paragraph 1 as long as the customer does not fulfill his contractual obligation, especially when he does not settle his payments. The seller´s warranty expires if the delivered goods are altered, inappropriately handled or processed. We are not liable for third-party products. We transfer our claims for guarantee against the supplier of third-party products to our customers though. No limit or warranty is given for used goods.
14. Advance payment obligation
If there are reasonable doubts about solvency or creditworthiness of our customers after the contract closing, we are entitled to choose between immediate payment or bailout of the delivery or the surrender of already delivered goods or to resign from the contract and to ask for compensation of our expenses. Claims of damages made by the customer are excluded no matter what legal basis they are derivated from.
Returns need our written approval in each individual case.
16. Alteration of contract
Every alteration of our terms of delivery, service and payment need our written approval in order to be valid. If these conditions are partly altered through a written agreement, the other conditions remain valid.
17. Partial inefficacy
If single clauses of these conditions or the contractual relationship are void, the efficacy of the other clauses is not affected. The affiliates are obliged to agree on a new clause which is closest to the purpose of the void clauses.
18. Place of performance and jurisdiction
The place of performance is Cologne. The place of jurisdiction for all disputes in the context of the contractual basis is exclusively Cologne, for cheque and bill tran