General Terms & Conditions for the Production and Delivery of Lifts
The following terms and conditions shall apply to offers and orders for the delivery of lift equipment. They shall form part of the agreement; we will not accept any conflicting terms and conditions or any terms and conditions of the customer that deviate from our own terms and conditions unless we have expressly agreed in writing that these are valid. Our terms and conditions shall also apply in cases where we unconditionally carry out supply and services to the customer knowing that conflicting or deviating terms and conditions exist. The following shall be elements of an agreement in the following order:
1. The offer of the Contractor LIPPE Lift GmbH;
2. Currently applicable guidelines;
3. The equipment drawing and circuit diagrams of the manufacturer.
I. Offer and Conclusion of Agreement
1. Any technical documentation, such as graphics, drawings, etc. and specifications of dimensions, weights, performance, requisite power, operating costs, etc., which are attached to the offer, shall only be binding if they were expressly described as such.
2. Detailed drawings of the project (building plans, circuit diagrams, etc.) shall only be carried out without charge, if the agreement is concluded in legally valid form.
3. The Contractor reserves rights of ownership and copyrights to any cost estimates, drawings and other documents. These must not be made accessible to third parties.
4. Any order that qualifies as a legally binding offer can be accepted within 4 weeks.
5. The agreement shall be concluded once the Contractor, following receipt of the order, has confirmed his acceptance of the order in writing.
II. Scope of Supply and Services
1. The scope of supply and services shall be exclusively based on our written acceptance of the order.
2. Any ordered goods that are collected by the customer (ex works) shall be made available in our production plant, subject to clause II.1. In all other cases, services include the entire equipment, subject to clause II.1.
3. The equipment shall be produced in accordance with the Contractor’s production standards, taking into account any recognised technical norms, and shall be in accordance with the recommendations applicable at the time the offer was made.
4. The Contractor shall be entitled to express approval of the plans before the production of the equipment begins.
5. Partial deliveries shall be permitted and can be charged separately, unless they cannot be reasonably used by the customer.
III. Time Limits and Deadlines
1. Any agreed times limits shall begin with the conclusion of the agreement. However, expiration of time shall not begin before:
– any details and information to be submitted by the customer in accordance with the agreement have been notified, and
– any documents, permits and releases to be obtained by the customer have been submitted, and
– any approvals by the customer in accordance with clause II.4 have been granted, and
– any deposits agreed have been paid.
In cases where the customer collects the item, the time limit shall be deemed met by us when the delivery item was made available in our production plant and the customer (who collects the item) was notified accordingly.
2. If the customer fails to promptly fulfil his obligation to co-operate and to pay under this agreement, new time limits for the performance by the Contractor shall be agreed, without prejudice to any other rights of the Contractor arising from this failure.
3. Any time limits agreed shall be extended accordingly in cases of industrial conflicts, particularly strikes and lockouts, and in the event of unpredictable impediments that are beyond the control of the Contractor, as long as these impediments affect the completion or delivery of the delivery item. This shall also apply in cases where these events occur at the plant of a sub-contractor. The Contractor shall not be liable for the above events even if these occur during an existing delay on the part of the Contractor. In important cases, the Contractor shall notify the customer as soon as possible of the beginning and the end of suchimpediments.
4. If delivery of the equipment is delayed for reasons caused by the customer, the Contractor can store the equipment. The customer shall reimburse the Contractor for any storage costs incurred. If the equipment is stored at the plant of the Contractor, 0.5% (in the case of stair lifts) of the order total shall be paid for each month that has started. Such payment shall be reduced accordingly, if the customer proves that no or only minor damage has occurred. At the same time, the next payment on account due to the Contractor shall be paid at the originally agreed delivery date. If the impossibility of performance occurs during the delayed acceptance by the customer or by fault of the customer, the customer shall be obligated to counter-perform.
5. If completion of the equipment is delayed for reasons caused by the Contractor and as a result the customer suffers damage, the customer shall be entitled, with any further claims excluded, to claim compensation for delay of 1% of the net order total for each complete month of delay. However, the total of such claim must not exceed 5% of the net order total. The Contractor reserves the right to prove to the customer that no or only minor damage has arisen from the delay.
6. If a delivery or completion deadline was agreed instead of a delivery or completion time limit, clauses III.1. to 5. shall apply accordingly.
IV. Prices and Terms of Payment
1. Prices are all-inclusive for the scope of services defined in clause II. Prices are net plus the stated valueadded tax applicable. Prices shall be regarded as fixed up to any fixed-price deadline that may have been agreed. They do not include expenses for packaging and transport and any charges for pre- and final inspections by the TÜV (German technical supervisory authority).
2. Payments shall be made by bank transfer or cheque without any deductions, as follows:
– 50% before release to production.
– 50% within 8 days following notification of completion and before delivery ex works.
If the order is for several lifts, the individual instalments shall refer to each lift
3. If the customer delays payment, interest rates shall be charged – for the duration of the delay – of 5%p.a. above the applicable base interest rate, with the proviso that further rights may be claimed. The interest on defaulted payment shall be higher or lower, if the Contractor proves that the damage was higher or the customer proves that the damage was considerably lower.
4. The offset against claims by the customer shall only be permitted if such claims were legally established.
5. The exercise of any rights of retention for claims from other agreements shall not be permitted.
6. Payments under clause IV.2 shall be made even if the lift equipment has to be reworked, no matter if such reworks are included in the warranties of the Contractors or not.
V. Retention of Title
1. All items delivered shall remain our property (conditional commodity) until all claims are settled, including any future claims that may arise in connection with the object sold, particularly any in-kind claims that we are entitled to, no matter for what legal reason. Up to then, directly following the passage of risk, the customer shall treat the delivery item with care and shall insure it against fire, theft and water damage. This shall also apply, if payments are made for claims that were specifically defined.
2. If the customer combines the conditional commodity with movables, we shall be entitled to co-ownership to the new item at the ratio invoice value of the conditional commodity to invoice value of the other items. If our ownership expires due to the combination with a plot of land or a building, we are entitled to, apart from any contractual and statutory claims against the customer, all claims against the owner arising from this.
3. The customer can dispose of the conditional commodity only in the course of ordinary business transactions and to the extent that he is not in default, under the condition, however, that any claims arising from resale are passed to us in accordance with the paragraphs below. The customer shall not be entitled to dispose of the conditional commodity in any other way. The customer shall already assign any claims of the customer arising from the resale of the conditional commodity or from the use under a contract for work or work performance contract to us. The customer shall be entitled to collect claims arising from resale or use in accordance with the above, until we revoke this right at any time. Under no circumstances shall the customer be entitled to assign the claim to third parties. The customer shall be obliged at our request to immediately notify his buyers of the assignment to us and to provide us with all information and documents required for collection.
4. We shall be entitled to redeem the conditional commodity, if the customer is in default with his contractual obligations, in case of stoppage of payments, petition for composition or petition in bankruptcy, or if there are reasonable doubts about his solvency or financial standing. The redemption of the conditional commodity through us shall not constitute a rescission of contract. If we have granted the customer a reasonable time limit for the performance of his contractual obligations stating that acceptance of the contractual performance will be refused once this time limit has expired, the customer shall bear the costs of redemption and realisation of the commodity. The realisation costs shall be 10% of the realisation proceeds, whereas proof shall not be required, plus sales tax. Such costs shall be valued higher or lower, if the Contractor proves that the costs were higher or the customer proves that the costs were lower. Any proceeds shall be credited to the customer after deduction of any expenses or any other claims of the Contractor in connection with the agreement.
5. We undertake to release, at the request of the customer, any securities that we are entitled to, to the extent as the realisable value of our securities exceeds the secured claims by more than 20%. The selection of the securities to be released shall be at our exclusive discretion.
6. In case of attachments or any other interventions by third parties, the customer shall immediately notify such third party of our rights of retention, immediately inform us in writing and hand over all relevant information and documentation.
VI. Delivery, Final Inspection and Passage of Risk
If the equipment is collected, the passage of risk occurs on delivery ex works. If the delivery is delayed due to circumstances caused by the customer, the passage of risk to the customer occurs from the day when the goods are ready for delivery. If, at the request of the customer, the goods are stored in our company, the passage of risk to the customer occurs from the day storage begins.
In all other cases the following shall apply:
1. A final inspection of the equipment shall be performed following its completion.
2. If the customer does not request a final inspection, the equipment shall be deemed accepted after 12 business days following the written notification of completion of the equipment.
3. The customer cannot refuse acceptance because of defects that do not affect the operatability of the equipment.
4. The customer shall claim any reservations due to apparent defects or non-performance of contract no later than on the dates of acceptance defined in clauses VI.1 to 3.
5. The passage of risk to the customer shall occur on installation of the goods.
6. If a third party pays compensation for damages to the equipment, for example insurance benefits, the party who held the risk at the time when the equipment was damaged shall be entitled to the compensation.
1. We guarantee that our delivery items, at the time of the passage of risk, are free from faulty material and workmanship that materially reduce the value or suitability of the goods and, if applicable, have the qualities warranted by us. In case of co-ordination measures this warranty shall only cover any new parts delivered by us. Any technical data, specifications or descriptions of quality issued by us shall not constitute a warranty, unless it was expressly confirmed as such by us in writing. We shall not be responsible for the consequences of inaccurate information on electric connection requirements or for any claims that arise from reactions of the starting current into the mains supply.
2. In cases where the customer promptly notifies us in writing of a provable warranty event in accordance with clause VII.1, we will, at our discretion and within a reasonable period of time, rectify any faults or deliver replacement goods without charge. Any parts that are replaced shall become our property. In case of a correction of faults we shall only bear the expenses required for the purposes of the correction of faults, as long as these are not increased because the faulty delivery item has been taken to another place than the place of performance. The warranty shall cover the replacement delivery or correction of fault in the same way as the delivery item, but no longer than 6 months after the warranty period for the delivery item has expired. The Contractor shall be granted reasonable time and opportunity free of charge to rectify the fault or deliver replacement items; if this is refused the Contractor shall no longer be liable. If the correction of fault is not successful within an extended time limit allotted by the customer in writing, the customer shall be entitled to either withdraw from the contract or request a reasonable reduction of the price.
3. The warranty period for new equipment shall be a total of 60 months and shall begin from delivery ex works in Lemgo, provided that a service agreement exists and service has been carried out. If no service agreement is concluded, the warranty period shall be 12 months.
4. Any warranty claims require proof that the equipment was properly erected and installed. The warranty shall not apply in cases where the delivery items have been changed, improperly erected, installed, serviced, repaired or used by the customer or third parties or have been exposed to conditions that do not comply with our assembly conditions, unless the customer proves that such circumstances are not the cause of the reported defects. The warranty shall not extend to any parts that are subject to normal wear and tear, as long as the stated defect constitutes such normal wear and tear, the power supply, metal covering at outdoor lifts and to any impairment of the paintwork caused by the use of the equipment.
If the inspection of a stated defect shows that a warranty event has not occurred, we shall charge any expenses incurred by our inspection and repair work at our currently applicable list price.
5. Subject to clause VIII. below, the customer shall not be entitled to any other rights than those defined under clauses VII.1. to 4.
1. We shall only be liable for damages, no matter what the legal reason, to the extent that:
(a) the damage is caused by gross negligence on our part; or
(b) the damage results from lack of a quality warranted by us; or
(c) we have culpably breached a fundamental contractual obligation (cardinal obligation) that puts the purpose of the contract at risk; or
(d) the Product Liability Act prescribes mandatory liability; or
(e) the damage arises from gross default or inability or impossibility to perform on our part.
So far as we are liable in principle in accordance with clause VIII.1., our liability shall be limited to € 2.5 million for injuries to persons, property damages and purely economic loss per event and year. Each liability shall be limited to such typical damage, the occurrence of which could be reasonably predicted by us based on the circumstances known to us at the time when the contract was concluded.
2. We shall not be liable for any direct damages, consequential damages or lost profits, unless such damages arise from breach of the main obligations or liability is based on intention and gross negligence or lack of a warranted quality.
3. Unless clauses VIII.1. and 2. above prescribe otherwise, any other liability, no matter for what legal reason, shall be excluded. As far as damages are excluded or limited in accordance with clauses VIII. 1 to 3. above, such exclusion or limitation shall include any claims arising from unlawful acts and claims against our employees and agents.
IX. Export to the USA and Canada
For distribution or sub-distribution to the USA and Canada, the distributor (the commerce initiator) assumes complete liability for claims in regards to damage replacement and product liability. The distributor shall therefore keep the vendor free of liabilities and complaints from third parties in regards to these areas in all cases. In addition, the distributor foregoes the right, to the maximum extent of the law, to make claims himself against the vendor, including claims of recourse, in these areas; in this case as well, the distributor is obligated to demonstrate gross negligence.
X. Premature Termination of Contract
In case of a premature termination of contract for reasons that are caused by the customer, the Contractor shall be entitled, without proof, to charge cancellation expenses of 35% of the net order total, unless the Contractor proves that such damage was higher or the customer proves that the damage suffered by the Contractor was lower.
XI. Place of Jurisdiction / Applicable Law
In all disputes, if the customer is a fully qualified merchant (Vollkaufmann), a legal person under public law (juristische Person des öffentlichen Rechts) or a public-law special fund (öffentlich-rechtliches Sondervermögen), proceedings shall be initiated before such court that has jurisdiction over the performing company’s principal place of business or delivery. The Contractor shall also be entitled to bring action at the customer’s principal place of business. Applicable law shall be the law of the Federal Republic of Germany.
XII. Final Provisions
If any provision of the above Terms and Conditions shall be or become invalid, the validity of the other provisions shall not be affected. In such a case the invalid provision shall be replaced by a provision that comes as close as possible to the intended purpose of the invalid provision and can be agreed upon in legally valid form.