Terms and Conditions of LUBRICANT CONSULT GmbH
- The following General Terms and Conditions apply to all sales and deliveries by LUBRICANT CONSULT GmbH, Gutenbergstraße 13, 63477 Maintal, Germany, (hereinafter referred to as LUBCON). Supplementing or varying provisions, in particular Purchaser’s general terms and conditions, shall not be valid, even if LUBCON does not expressly object to these. This shall also apply, if LUBCON accepts orders which are accompanied by general terms and conditions.
- The German version of these General Terms and Conditions shall be the only authoritative version as to legal validity and construction of the contracts concluded between LUBCON and Purchaser. This shall also apply, if translations of these Terms of Sale are signed by the parties, or if LUBCON makes such translations available to Purchaser.
II. Delivery and Passing of Risk
- LUBCON delivers the goods in merchantable quality and design, taking into account tolerances for dimensions, weights and quality requirements due to manufacturing reasons. The weights or quantities, respectively, measured at the shipping point are authoritative for the determination of weights and quantities.
- Where economically acceptable for Purchaser, partial shipments may be made.
- In conformity with trade usage, delivery periods are not binding. Promises of delivery are subject to correct and timely delivery to us by our own suppliers, unless LUBCON is responsible for not receiving supplies.
- If Purchaser defaults in taking delivery, LUBCON is entitled to rescind the contract and to claim 10 % of the purchase price as lump sum damages, unless Purchaser proves that LUBCON has suffered a slighter loss or no loss. Our right to assert further claims for actual damage shall remain unaffected.
- Unless otherwise agreed, delivery shall be made ex works.
- The risks of accidental loss or accidental deterioration of the goods pass to Purchaser as soon as the goods have been handed over to the person who is instructed to ship the goods – even if delivery is effected carriage paid.
- If Purchaser defaults in payment, LUBCON is entitled to suspend further deliveries until payment of all outstanding amounts payable has been made in full.
- In the event that LUBCON obtains knowledge of circumstances which suggest that Purchaser’s financial condition has deteriorated materially after conclusion of the contract, in particular if Purchaser fails to settle any outstanding sums due for payment to LUBCON, and if therefore payment claims by LUBCON appear to be endangered, LUBCON has the right to carry out deliveries exclusively against immediate full or partial payment or if a security is furnished. If Purchaser is unable to pay, or if a request for the opening of insolvency proceedings on Purchaser’s assets has been filed, LUBCON is entitled to rescind sales contracts which have not yet been carried out, provided that insolvency proceedings have not yet commenced.
III. Transport Containers and Returnable Containers
- LUBCON chooses the means of transport and the type of shipment. Purchaser’s transport containers must be supplied ready for filling free LUBCON’s address. LUBCON will not inspect the condition of the transport containers prior to filling. Purchaser shall bear the risk for the use of the transport containers.
- LUBCON reserves the right to request the return of transport containers. If LUBCON so desires, purchaser must send transport containers back, carriage paid to the nearest warehouse.
- Containers supplied by LUBCON may not be used for competitors’ products or for any purposes other than those specified by LUBCON.
IV. Retention of Title and Security Interests
- LUBCON reserves ownership of the goods until full payment of all receivables, including interest and other accessory claims. This reservation of title shall also include the accepted balance, if amounts due from Purchaser are billed periodically by LUBCON (current account reservation).
- If Purchaser acts in breach of contract, in particular in the event of default in payment, LUBCON, after having granted a reasonable period, is entitled to rescind the contract and to take back the deliverables; Purchaser is obliged to return the deliverables. LUBCON’s taking back or attachment of the deliverables always constitutes a withdrawal from the contract. In the event of attachment or other intervention by third parties, Purchaser shall immediately inform LUBCON in writing to enable LUBCON to institute legal proceedings under Sec. 771 of the ZPO [German Code of Civil Procedure]. If such third party is not able to reimburse LUBCON for the judicial and extrajudicial costs of a lawsuit under Sec. 771 of the ZPO, Purchaser shall be liable for the loss suffered by LUBCON.
- Purchaser is entitled to re-sell the deliverables in the ordinary course of its business. However, as early as today, Purchaser assigns to LUBCON all claims which arise for Purchaser against any buyer or third party as a result of Purchaser’s re-sale in the amount of the invoice total (including VAT), irrespective of whether the deliverables are re-sold without processing or subsequent to processing. Purchaser is entitled to collect such sums due, even subsequent to assignment of its receivables. LUBCON’s right to collect such sums itself remains unaffected, but LUBCON undertakes not to collect such sums, if Purchaser duly fulfils its obligation to pay and does not default in payment. In this case LUBCON has the right to request that Purchaser inform LUBCON about assigned receivables and the respective debtors, give all necessary details for collection, hand the relevant documents over to LUBCON, and notify the debtors (third parties) of the assignment.
- Processing or modification of the deliverables by Purchaser is always done for LUBCON. If the deliverables are processed together with other goods which are not LUBCON’s property, LUBCON obtains a co-owner’s interest in these newly created goods, calculated pro rata from the value of the deliverables in relation to the value of the other processed goods at the time of processing. In all other respects the same provisions as for the goods which are subject to our retention of title shall apply to the goods which are created by processing.
- If the deliverables are inseparably combined or mixed with other goods which are not LUBCON’s property, LUBCON obtains a co-owner’s interest in the newly created goods, calculated pro rata from the value of the deliverables in relation to the value of the other combined or mixed goods at the time of combining or mixing. In case the combining or mixing was done in a way which results in Purchaser’s goods being considered the principal goods, it is deemed to have been agreed that Purchaser transfers a pro rated co-owner’s interest to LUBCON. Purchaser shall hold the goods in which LUBCON has the sole or a co-owner’s interest in custody for LUBCON.
V. Prices, Terms of Payment and Damage caused by Default
- Our prices are net prices plus VAT at the rate from time to time in force.
- If subsequent to conclusion of the contract charges on the goods, in particular fiscal charges, including levies collected by EU institutions or similar institutions or securities or the like, are increased, and if LUBCON was not able to foresee this at the time of the conclusion of the contract, the purchase price may be increased correspondingly. The same shall apply for levies which are charged and costs which occur for the first time.
- Invoice amounts are payable within 14 days after the invoice date with a deduction of 2 % and after this period without deduction.
- In case of Purchaser’s default, LUBCON is entitled to claim EUR 5 as a lump sum administrative fee for every reminder plus default interest at a rate of 8 % above the applicable base rate of Deutsche Bundesbank [German Central Bank]. We expressly reserve the right to assert further claims occasioned by delay.
- Purchaser may only offset payments against claims which are undisputed or have been finally settled. Businessmen do not have a right of retention. The exercise of the right of retention is also excluded to the extent that Purchaser’s counterclaim is not based on the same contractual relationship.
- Bills of exchange and cheques are only accepted as a form of payment. Bills of exchange are only accepted upon special agreement; in these cases LUBCON reserves the right to demand cash payment at any time.
VI. Claims arising from Defects
- Upon receipt, Purchaser is obliged to immediately examine the delivered goods with respect to defects and to make an immediate written complaint with respect to obvious defects. If Purchaser fails to do so, the goods shall be considered as accepted. Complaints regarding hidden defects must be made in writing immediately after detection.
- With respect to alleged claims arising from defects of the goods, in particular with respect to claims for damages, LUBCON reserves the right to prove by way of an opinion by a suitably qualified expert that the goods are not defective or that the alleged damage is not due to the defectiveness of the goods. Purchaser is obliged to make available its damaged property for this purpose. Should Purchaser have re-sold the goods, Purchaser must ensure that its buyers make the damaged property available. If an inspection of alleged defects reveals that Purchaser does not have any claim due to defects, Purchaser is obliged to reimburse LUBCON for the costs occasioned by such inspection.
- Taking into account Purchaser’s interests and the nature of the defect, LUBCON has the right to determine the type of post-performance (rectification of the defects or delivery of substitute goods). If the rectification of the defects or the delivery of substitute goods has not been successful within a reasonable period of time, Purchaser is entitled to claim a reduction of the purchase price or rescission of the contract, at its discretion.
- Post-performance is made without recognition of a legal obligation and does not result in a re-commencement of the limitation period.
- Purchaser’s claims due to defects are subject to a limitation period of 12 months after handover of the goods, unless LUBCON is responsible for wilful conduct, or mandatory legal provisions stipulate longer periods. This limitation period shall apply to all claims whatsoever, including in particular claims for consequential damage caused by a defect, which are connected with defects, if any.
VII. Limitation of Liability
- LUBCON assumes liability for damage caused by slightly negligent behaviour only in cases where such damage is attributable to a breach of a contractual duty which is so essential that the proper performance of the contract is only rendered possible by the fulfilment of such duty. In these cases liability is limited to the typical, foreseeable damage.
- Except in case of liability under the Produkthaftungsgesetz [Product Liability Act], defects covered by a guarantee as to the condition of goods or works, fraudulently concealed faults, or personal injury, the above limitations of liability apply to all claims for damages irrespective of their legal basis, including claims in tort.
- LUBCON is not liable for any damage which occurs because the supplied goods are used improperly or otherwise than for their intended purpose.
- The above limitations of liability shall also apply to claims for damages which Purchaser may have against employees or agents of LUBCON.
VIII. Analysis Data and Recommendations
- Analysis data, colour descriptions, information on other characteristics, samples and specimens shall be considered as mere guidelines as to the condition of the goods.
- Analyses and recommendations for the use of the products manufactured or sold by LUBCON are made to the best of our information and belief and without guarantee. Such analyses and recommendations do not release Purchaser from its obligation to inspect the products itself.
IX. Data Protection
We draw your attention to the fact that LUBCON processes the data obtained on Purchaser, whether received from Purchaser itself or from third parties, according to the Bundesdatenschutzgesetz [Federal Data Protection Act].
X. Applicable Law and Place of Jurisdiction
- The only applicable law is the law of the Federal Republic of Germany, excluding the reference rules of Private International Law, insofar as these refer to the applicability of the laws of a different country. The United Nations Convention on Contracts for the International Sale of Goods (CISG) and other bilateral and multilateral conventions for the unification of international sales law are excluded.
- Hanau shall be the place of jurisdiction. However, either contracting party is entitled to file a suit against the other party at the other party’s seat.
LUBRICANT CONSULT GmbH