General Terms and Conditions for the Manufacture and Delivery of Lifts
The following terms and conditions apply to offers and orders for the delivery of lift systems. They become part of the contract; we do not accept any terms and conditions of the customer that conflict with or deviate from our terms and conditions unless we have expressly agreed to their validity in writing. Our terms and conditions of sale shall also apply if we carry out the delivery and service to the customer without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.Components of an order are, in the following order:
- The offer from the contractor, LIPPE Lift GmbH
- The currently applicable guidelines.
- The manufacturer’s system drawing and circuit diagrams.
I. Offer and conclusion of contract
- A contract is not concluded simply by the acceptance of our offer. Our offer merely represents an invitation to the customer to submit an offer to conclude the contract (the purchase order). The technical documents attached to the offer, e.g. illustrations, drawings, etc., as well as information on dimensions, weights, performances, power requirements, operating costs, etc., shall only be binding if they have been expressly designated as binding in writing.
- Detailed project drawings (construction plans, circuit diagrams, etc.) shall only be prepared free of charge if the contract has been legally concluded.
- The contractor reserves the right of ownership and copyright to cost estimates, drawings and other documents. They may not be made accessible to third parties.
- If the purchase order qualifies as a legally binding offer, we can accept it within 4 weeks.
- The contract is concluded when the contractor has confirmed its acceptance in writing after receipt of the purchase order.
II. Scope of delivery and performance
- Only our written order confirmation is decisive for the scope of the deliveries and performances.
- Subject to Section II.1, the performance in the case of self-collection consists of the provision of the goods in our production facility. In all other respects, subject to Section II.1, the performance includes the complete system.
- The system will be built taking into account the recognised rules of technology according to the company’s factory standards and complies with the Machinery Directive in force at the time of submission of the offer (currently 2006/42/EC).
- The contractor shall be entitled to expressly approve the plans before commencing with the manufacture of the system.
- Partial deliveries are permissible and may be invoiced separately, unless they are not reasonably usable for the customer.
- The contractual agreement on the properties of the lift system arises from our offer. The contracting parties agree that this agreement on the properties shall take precedence over the objective requirements within the meaning of Section 434 Paragraph 3 Sentence 1 BGB (German Civil Code) and that this specific contractual agreement on the properties constitutes another agreement within the meaning of the aforementioned provision.
III. Deadlines and dates
- Agreed deadlines begin with the conclusion of the contract. However, the deadline shall not begin before:
– notification of any data and information to be provided by the customer in accordance with the contract
– provision of the documents, approvals and releases to be procured by the customer
– granting of any permits to be provided by the customer in accordance with Section II.4
– payment of any agreed down-payment. The deadline shall be deemed to have been met by us if, in the case of collection by the customer, the delivery item has been made available at our production facility and the customer (collector) has been informed of this accordingly.
- If the customer does not fulfil its cooperation and payment obligations in accordance with this contract in good time, new deadlines for the contractor’s performance must be agreed without prejudice to the rights arising from this for the contractor in all other respects.
- Agreed deadlines shall be extended appropriately in the event of unforeseen hindrances such as measures in the context of industrial disputes, in particular strikes and lockouts, as well as in the event of pandemics or armed conflicts that are beyond the control of the contractor, insofar as the hindrances affect the completion or delivery of the delivery item. This also applies if these circumstances occur at a subcontractor. The aforementioned circumstances are not the responsibility of the contractor even if they arise during an already existing delay on the part of the contractor. In important cases, the contractor shall inform the customer of the beginning and end of such hindrances as soon as possible.
- If the delivery of the system is delayed for reasons for which the customer is responsible, the contractor may store the system.The costs of storage must be reimbursed by the customer to the contractor at cost. In the case of storage in the contractor’s works, 0.5% (in the case of stair lifts) of the order amount shall be remunerated for each month of storage or part thereof. The remuneration shall be reduced accordingly if the customer proves that no damages or only significantly lesser damages have occurred. At the same time, the next payment on account to the contractor shall be due on the originally agreed delivery date.If the impossibility of performance occurs during the default of acceptance or through the fault of the customer, the latter remains obliged to render service in return.
- If the completion of the system is delayed for reasons for which the contractor is responsible and the customer suffers damages as a result, then the customer shall be entitled, to the exclusion of further claims, to claim compensation for delay of 1% of the net order amount for each completed month of the delay. However, the claim shall be limited to a maximum of 5% of the netorder amount. The contractor shall have the right to prove to the customer that no damages or lesser damages have occurred as a result of the delay.
- If a delivery or completion date has been agreed instead of the delivery or completion period, Sections III.1. to 5. shall apply accordingly.
IV. Prices and terms of payment
- The prices are lump sums for the scope of performances described in Section II. They are net prices plus VAT at the applicable rate as shown. They are considered to be fixed prices up to an agreed fixed price date. In the absence of a special agreement, they do not include the costs for packaging and transport or the fees for the TÜV preliminary inspection and final acceptance.
- P2. Payments shall be made by bank transfer or cheque, without any deductions, as follows:
-50% before release for production.
-50 % within 8 days after notification of completion and before dispatch ex works. If the order includes several lifts, the individual instalments refer to each individual lift.
- In the event of default of payment by the customer, default interest shall be charged for the period of default in the amount of the statutory provision of Section 288 BGB (currently 9% above the base interest rate), subject to the assertion of further rights. If the contractor proves greater damages or the customer proves significantly lesser damages, then the default interest shall be set higher or lower respectively.
- Offsetting with claims of the customer is only permissible if these claims have been legally established.
- The exercise of a right of retention due to claims arising from other contractual relationships is inadmissible.
- The payments in accordance with Section 2 are also to be made if the lift system still needs to be reworked, regardless of whether the rework is part of the contractor’s warranty obligations or not.
V. Retention of title
- All delivered goods shall remain our property (reserved goods) until all claims – including future claims – arising in connection with the purchase item, in particular the respective material claims to which we are entitled regardless of the legal grounds, have been fulfilled. Until that time, the customer must, immediately after the transfer of risk, treat the delivery item with care andinsure it against fire, theft and water damage. This also applies if payments are made on specially designated claims.
- If the reserved goods are combined by the customer with chattels, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other items. If our ownership expires due to connection with a plot of land or building, we shall be entitled, in addition to the contractual and legal claims against the customer, to all resulting claims against the owner.
- The customer may only sell the reserved goods in the ordinary course of business and only as long as the customer not in default, but with the proviso that the claims from the resale are transferred to us in accordance with the following paragraphs.The customer is not entitled to other dispositions of the reserved goods. The claims of the customer from the resale of the reserved goods or from use within the framework of a contract for work or work and services are already assigned to us now and we accept this assignment. The customer is entitled to collect claims from the sale or use in accordance with the preceding paragraph until our revocation, which we may exercise at any time. The customer is under no circumstances entitled to assign the claim. At our request, the customer is obliged to inform its customers immediately of the assignment to us and to provide us with the information and documents necessary for collection.
- We shall be entitled to take back the reserved goods if the customer is in default with a contractual obligation incumbent on him, in the event of cessation of payment, a creditor settlement application or a bankruptcy petition against the customer, or if there are justified doubts about the customer’s solvency or creditworthiness. The taking back of the reserved goods by us does not constitute a withdrawal from the contract . If we have set the customer a reasonable period of time for the fulfilment of its contractual obligations with the declaration that acceptance of the contractual performance shall be rejected after expiry of this period, the customer shall bear all costs of taking back and recycling the goods. Without proof, the recycling costs amount to 10% of the proceeds of the recycling plus VAT. If the contractor proves higher costs or the customer proves lower costs, they are to be set higher or lower respectively. The proceeds shall be credited to the customer after deduction of the costs or other claims of the contractor related to the contract.
- We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 20%. The selection of the securities to be released is solely our responsibility.
- In the event of seizures or other interventions by third parties, the customer must immediately inform the third party of our property rights, notify us immediately in writing and hand over all relevant information and documents.
VI. Handover, acceptance and transfer of risk
If the system is collected, the risk shall be transferred upon handover ex works If dispatch is delayed due to circumstances for which the customer is responsible, the risk shall be transferred to the customer from the day of readiness for dispatch. If the goods are stored with us at the request of the customer, the risk shall be transferred to the customer from the day of putting into storage.
In all other respects, the following shall apply:
- The acceptance of the system shall take place after completion.
- If no acceptance is requested by the customer, the system shall be deemed to have been accepted on expiry of 12 working days after written notification of the completion of the system.
- Acceptance cannot be refused by the customer on account of complaints that do not impair the functionality of the system.
- Reservations due to obvious defects or contractual penalties must be asserted by the customer at the latest at the time of acceptance specified in sections VI.1 to 3.
- The risk shall be transferred to the customer upon installation.
- If compensation for the damage to the system is provided by a third party, e.g. insurance benefits, the entity that bore the risk at the time of the damage to the system shall be entitled to the compensation.
- We warrant that, at the time of transfer of risk, our delivery items are free from material and manufacturing defects that significantly reduce the value or suitability of the goods and, if applicable, that they have the properties assured by us. In the case of coordination measures, the warranty only extends to new parts delivered by us. Technical data, specifications or quality descriptions issued by us do not constitute any assurances unless they have been expressly confirmed as such by us in writing.We do not accept liability for the consequences of inaccurate information about the electrical connection conditions or for any complaints arising from feedback of the starting current into the grid.
- If, in accordance with Section VII.1., the customer informs us without delay in writing of a verifiable warranty claim, a free rectification of the defect or a replacement delivery shall be made at our discretion within a reasonable period of time. Replaced parts become our property. In the case of rectifying the defect, we shall only bear the expenses necessary for the purpose of rectifying the defect, unless these are increased by the defective delivery item having been taken to a place other than the place of performance. A warranty shall be given for the replacement delivery or the repair in the same way as for the delivery item, but not longer than 6 months after expiry of the warranty period for the delivery item. The contractor shall be granted, free of charge, a reasonable time period and opportunity for the rectification of the defect or replacement delivery; if this is refused, the contractor shall be released from any liability. If the rectification also fails within a grace period set in writing by the customer, the customer shall be entitled to demand either the cancellation of the contract or a reasonable reduction in the purchase price.
- The warranty period for new systems is 60 months in total and begins from the date of dispatch from the works in Lemgo. The prerequisites are the conclusion of a maintenance contract and that maintenance is carried out. The warranty period is 12 months if no maintenance contract is concluded. In addition, the following warranty conditions of LIPPE Lift GmbH in their current version are deemed to have been agreed:
a) The warranty period is 12 months from the date of dispatch (ex works Lemgo).
b) The warranty period shall be extended to 60 months in the case of conclusion of a maintenance contract* and the performance of maintenance at least once per year by authorised maintenance personnel.
c) The warranty period for the technical usability of the running rails is 20 years in the case of conclusion of a maintenance contract* and the performance of maintenance at least once per year by authorised maintenance personnel. Paint damage and corrosion generally do not affect the technical usability.
d) Warranty claims can only be accepted upon receipt of a written assertion of a warranty claim. The performance of regular maintenance must be proven.
e) Setting/adjustment work as well as any correction work are part of the scope of assembly.
f) i) Wear parts and energy supply are excluded from the warranty.
ii) Sheet metal cladding parts for outdoor installations are excluded from the warranty.
g) Intentional damage, as well as interventions in the systems by unauthorised persons are excluded from the warranty.
h) Repairs within the warranty period: defective parts must be returned free of charge with the appropriate documentation in order that the warranty claim can be checked. Required spare parts shall be delivered immediately and free of charge by normal shipping. Additional costs for express deliveries shall be borne by the customer.
i) In the case of advance deliveries of spare parts by the Lemgo works, the defective parts replaced must be returned free of charge within 10 days. After expiry of this period, the delivered part including the freight costs shall be charged.
j) Only the working time for the replacement of the spare part can be claimed against LIPPE Lift GmbH. Travel time, mileage and other ancillary costs shall not be reimbursed.
k) The completeness of a delivery must be checked immediately upon receipt or collection.
l) Transport damage can only be passed on to us for carriage-paid deliveries. The transport damage must be confirmed by the freight forwarder and presented to us as proof.
*The lift system must be subject to continuous maintenance agreed in writing, i.e. several shorter but directly consecutive maintenance contracts are acceptable, even if they are concluded/carried out by different companies. The maintenance contract must be concluded no later than 6 months after installation
- Warranty claims require proof of proper assembly and installation. The warranty shall be forfeited if the customer or third parties alter or improperly assemble, install, maintain, repair or use the delivery item or expose it to environmental conditions that do not correspond to our assembly conditions, unless the customer proves that these circumstances are not the cause of the defect complained of. The warranty does not apply to parts that are subject to natural wear and tear, insofar as such natural wear is concerned, nor to the energy supply and the sheet metal cladding parts in the case of outdoor installations, nor to the impairment of the paintwork caused by the use of the system. If the examination of a notice of defects shows that the warranty claim is not valid, the costs of our inspection and repair will be charged at our respectively valid list prices.
- Subject to the provisions of Section VIII, the customer has no rights other than those listed in Section VII.1. to 4.
- We shall only be obliged to compensate for damages, regardless of the legal grounds, insofar as
(a) the damage is due to gross negligence or intent on our part; or
(b) the damage is due to the absence of a property assured by us; or
(c) we have culpably violated an essential contractual obligation (cardinal obligation) in a manner that endangers the achievement of the purpose of the contract, or
(d) the Product Liability Act provides for mandatory liability, or
(e) the damage is due to a case of delay, inability or impossibility for which we are grossly responsible.
Insofar as we are liable on the grounds of Section VIII.1., our liability shall be limited to 2.5 million Euros per claim and year for personal injury, property damage and pure financial losses. Any liability is limited to such typical damages whose occurrence we could reasonably have foreseen according to the circumstances known to us at the time of conclusion of the contract.
- We cannot be held liable for indirect damages, consequential damages or lost profits if the liability is not based on the violation of principal obligations or on gross negligence or the absence of an assured property.
Unless otherwise specified in sections VIII. 1 and 2 above, any further liability on our part, regardless of the legal grounds, is excluded.Insofar as claims for compensation of damages pursuant to sections VIII. 1 to 2 above are excluded or restricted, this exclusion or limitation also includes claims arising from tort as well as claims against our employees and agents.
IX. Export to the USA and Canada
In the case of distribution or sub-distribution to the USA and Canada, the distributor (marketer) assumes all liability for claims arising from the areas of compensation of damages and product liability. Therefore, the distributor must in any case indemnify and hold harmless the supplier in the event of claims by third parties from these areas.
In addition, to the maximum extent permitted by law, the distributor waives the right to assert claims, including recourse claims, against the supplier from these areas; in this case also, the distributor must prove gross negligence.
X. Premature termination of the contract
In the event of premature termination of the contract for reasons for which the customer is responsible, the contractor shall be entitled without proof to charge cancellation costs amounting to 35% of the net order amount, unless the contractor proves that it has incurred greater damages or the customer proves that the contractor has incurred lesser damages.
XI. Place of jurisdiction / choice of law
For all disputes arising from the contractual relationship, if the customer is a registered trader, a legal entity under public law or a special fund under public law, the action must be brought before the court responsible for the headquarters or delivery of the executing company. The contractor shall also be entitled to sue at the headquarters of the customer. The laws of the Federal Republic of Germany shall apply.
XII. Final provisions
Should individual provisions of the aforementioned conditions be or become ineffective, this shall not affect the effectiveness of the remaining provisions. In such a case, the ineffective provision shall be replaced by one that comes closest to the intended purpose and can be effectively agreed.