General Terms and Conditions
LÖFFLER GmbH GENERAL TERMS AND CONDITIONS
SCOPE OF SERVICES. These General Terms and Conditions apply to all merchandise, services, deliveries and any future transactions of LÖFFLER GmbH (“LÖFFLER”). LÖFFLER shall not accept any terms and conditions of the Customer that are inconsistent or deviate from these Terms and Conditions unless LÖFFLER expressly agrees in writing to be bound by inconsistent or different terms.
OFFERS / CONTRACT CONCLUSION. The submission of a quotation by LÖFFLER in response to Customer’s request does not constitute an expression of acceptance and is non-binding. The Terms and Conditions of sale set forth herein are the only terms and conditions applicable to the sale of the merchandise described on the face hereof if not otherwise confirmed in the Order Confirmation.
PRICES / SHIPPING / TRANSFER OF RISK.
a) LÖFFLER’s registered office shall be the place of performance for all obligations arising from these Terms and Conditions.
b) Method of transport and place of delivery of the merchandise shall be specified by in the Order Confirmation. Shipping expenses of the merchandise shall be F.O.B the place of destination. All merchandise delivered shall be packed and, marked for shipment F.O.B. the place of destination at which time title to such Merchandise and risk of loss shall pass to the Customer at the time of shipment or pickup by the Customer of its agent. The Customer shall pay for all the costs incurred for packaging and transportation.
c) The merchandise may be shipped to another destination at the request of the Customer. The shipping and packaging are subject to LÖFFLER’s reasonable discretion.
d) The risk of transport shall always be borne by the Customer. The risk shall pass to the Customer when the item(s) to be delivered are handed over to the shipper, carrier or other third party assigned to shipping the item(s) at the latest. This also applies if LÖFFLER assumes additional services, such as shipping costs or delivery in particular.
e) LÖFFLER shall have the right to effect partial deliveries anytime and at the discretion of LÖFFLER.
DELIVERY / TIME OF DELIVERY. LÖFFLER will not distribute any merchandise to the Customer without a prior written confirmation of an order by the Customer. LÖFFLER shall convey to the Customer an Order Confirmation including a description of the merchandise to be provided, pricing confirmation, and delivery dates. The stated times of delivery by LÖFFLER shall be an approximation, unless a specific delivery date has been expressly agreed upon by LÖFFLER and the Customer. The Customer hereby acknowledges and agrees that any and all technical questions relating to the merchandise shall be presented to LÖFFLER before any agreed upon or estimated date of delivery. LÖFFLER compliance with the delivery dates shall be performed provided that the Customer has timely and properly fulfilled any and all of its obligations in accordance with these Terms and Conditions. If shipping has been agreed on, delivery times and dates refer to the time of handover to the shipper, carrier or another third party otherwise assigned to carry out the shipping.
a) In the event of any delay in delivery LÖFFLER shall promptly inform the Customer. The Customer shall not be entitled to any claims for damages due to delayed delivery and LÖFFLER shall provide the Customer with a new expected delivery date.
b) If LÖFFLER is not able to fulfill the order or provide the merchandise within the new delivery date, which may be due to unavailability of the material in particular to late deliveries by LÖFFLER Supplier if LÖFFLER has concluded a congruent hedging transaction, LÖFFLER may at its sole discretion completely or partially withdraw from any contract or order confirmation by and between the Customer and LÖFFLER.
c) Any payments already made by the Customer to LÖFFLER will be refunded immediately.
WARRANTY & INSPECTION. LÖFFLER warrants that delivered merchandise is free from material defects. LÖFFLER will immediately rectify defects which may be discovered by the Customer during inspection of the merchandise provided that the Customer immediately notifies LÖFFLER within seven (7) business days after the Customer’ s receipt of delivery. LÖFFLER shall have the opportunity to correct the defects within a reasonable time frame agreed on by the parties. After LÖFFLER has had the necessary opportunities to correct the defects if the Customer is unsatisfied the Customer shall immediately return the merchandise or shall accept the merchandise at a lower price. If the Customer fails to properly inspect and / or notify LÖFFLER of the defects, LÖFFLER shall not be liable for the defect.
a) If the merchandise is defective upon transfer of risk, the Customer is entitled to a second delivery. This will consist of repair or replacement according to LÖFFLER’s discretion.
b) If the subsequent delivery fails, the Customer is entitled to withdraw from the contract or reduce the purchase price.
c) Claims by the Customer arising from the necessary costs for the purpose of a second delivery, in particular transport, labor and material costs, are excluded if the expenses increase because the object of delivery was later brought to a place other than the location of Customer, unless the shipment corresponds to an intended use.
d) Warranty claims shall not exist in cases of minor defects which deviate from the agreed product quality and in case of minor impairment of usefulness.
e) LÖFFLER shall not assume liability for damages which are attributable to improper use, faulty operation and handling, non- compliance with installation requirements, natural wear and tear, failure to carry out repairs, etc., provided that these occurrences are not caused by LÖFFLER, its agent, contractors, affiliates, or employees in the performance of an obligation. All LÖFFLER warranties shall be revoked in the event of any improper repair work executed without the approval of LÖFFLER as well as any Customer or third-party intervention which is connected with the asserted defects.
LIMITATION OF LIABILITY. LÖFFLER’s liability under its warranty is expressly limited to the repair, replacement, or refund of the invoice price of the merchandise, which prove to be defective in materials or workmanship within the warranty period. The repair, replacement or refund of the merchandise shall be at LÖFFLER’s sole discretion. LÖFFLER shall not be liable for incidental or consequential damages of any kind, including consequential damages for injury to any person. In no event shall LÖFFLER be liable for incidental or consequential damages arising out of or in connection with these Terms and Conditions, including without limitation, breach of any obligation or warranty. Consequential damages for purposes hereof shall include, without limitation, loss of use, income or profit, or losses sustained as the result of injury to any person. All claims of the Customer shall be restricted to cases involving intentional or grossly negligent action committed by LÖFFLER, its agents, contractors, affiliates, or employees in the performance of their obligations. This shall not apply to damages resulting from death, physical injuries or health injuries which are caused by a negligent breach of duty by LÖFFLER, or by a negligent breach of duty by LÖFFLER its agents, contractors, affiliates, or employees. Furthermore, LÖFFLER shall only assume liability for consequences that are typical for the contract and foreseeable in the case of damages caused as a result of negligent behavior. Liability for compensation for damages extending past this is excluded.
RETENTION OF TITLE. LÖFFLER shall reserve the title to all merchandise supplied by LÖFFLER (reserved merchandise) until the full purchase price and all LÖFFLER claims from the business relationship are paid, including from contracts that have been concluded later.
a) The Customer is entitled to resell the merchandise in the ordinary course of business, as long as they are not in arrears with their obligations and provided they do not suspend payment. Specifically, the following applies:
- The Customer hereby assigns the claims from the resale or other sales transactions, such as work contracts with all ancillary rights to LÖFFLER proportionately to the extent that the merchandise is processed, mixed or combined, thus leading to LÖFFLER co-ownership to such merchandise in the amount of LÖFFLER’s invoice value or the merchandise is permanently installed. If the reserved merchandise is sold by the Customer together with other merchandise not supplied by LÖFFLER, the Customer shall hereby forward the primary share of claims from the resale of LÖFFLER reserved merchandise in the amount of the invoice value to LÖFFLER. If the Customer has sold the merchandise with non-recourse factoring, he hereby assigns claims from the factoring to LÖFFLER. If the Customer assigns the claims from the resale in a current account relationship with their buyer, the Customer hereby assigns its claim to LÖFFLER as per LÖFFLER invoice amount of the reserved merchandise.
LÖFFLER hereby accepts the above assignment.
The Customer is permitted to resell only if they also reserve the property until full payment of their claim from the resale has been collected.
The Customer is entitled to collect the claims assigned to LÖFFLER unless revoked. The right to collect shall expire with revocation due to delay in payment or suspended payments by the Customer. In this case, LÖFFLER is authorized by the Customer to inform their buyers of the assignment and collect the claims itself. The Customer is obliged to forward an exact listing of claims owed to the Customer upon request including the names and addresses of the buyers, the amount of the individual claims, invoice date, etc., and any information required to collect these claims and to permit verification of this information.
Amounts received by the Customer from assigned claims are to be kept separately before being transferred to LÖFFLER.
Pledges or security assignments for the reserved merchandise or the assigned claims are not permitted. In the case of pledges, LÖFFLER has to be informed of the particulars of the creditor immediately.
If the value of the securities to which LÖFFLER is entitled exceeds 10% of LÖFFLER’s total claim against the Customer LÖFFLER are committed to releasing them upon request by the Customer.
In case of default or suspension of payments by the Customer, LÖFFLER is entitled to take back the merchandise. If LÖFFLER takes back reserved merchandise due to LÖFFLER’s reservation, a withdrawal from the contract only exists if LÖFFLER expressly declares this to be the case. LÖFFLER can dispose of the returned merchandise at LÖFFLER’s discretion.
The Customer shall keep the reserved merchandise for LÖFFLER free of charge. He must insure them against the usual risks such as fire, theft, and water to the usual extent. The buyer hereby assigns his claims against insurance companies from damage of that kind or other replacement obligations to LÖFFLER in the amount of LÖFFLER’s claims. LÖFFLER accepts the assignment.
PAYMENT & OFFSET BAN. Unless otherwise agreed, LÖFFLER’s invoices are paid immediately without deduction. Fulfillment occurs only after final redemption.
a) In case of default, the Customer owes interest at a rate of 12%. If the 12% interest rate exceeds the statutory rate, the Customer has the option of providing evidence that the delay in payment did not cause damage in this amount. The assertion of a higher loss due to default of payment is not excluded.
b) If the customer defaults on a payment, all claims become due immediately.
c) If the financial circumstances of the Customer deteriorate significantly, endangering LÖFFLER’s claims, LÖFFLER is entitled to demand payment in advance or reasonable security. This also applies even if such conditions existed prior to contract conclusion and became known to LÖFFLER only later. If the advance payment or security deposit is not paid despite a reminder and a reasonable extension of the grace period, LÖFFLER is entitled to withdraw from the contract or claim damages for non-performance.
d) Offsetting by the Customer with counterclaims is excluded unless it is based on the same contractual relationship or the counterclaims are uncontested or legally established.
CANCELLATION. No order request with respect to which LÖFFLER has issued an order invoice may be canceled or suspended after the date of the sales confirmation without the sole and express written consent of LÖFFLER. Upon cancellation or suspension at the request of the Customer, and acceptance by LÖFFLER the Customer shall reimburse LÖFFLER promptly for all expenditures incurred by LÖFFLER including, but not limited to, hardware used, labor and, a proportionate share of direct manufacturing, general and administrative expenses. In addition, the Customer shall also reimburse LÖFFLER for any extraordinary costs and other expenses attributable to such suspension or cancellation.
MERCHANDISE MODIFICA TIONS. The Customer acknowledges that the merchandise sold under this Agreement may be changed by LÖFFLER at any time without prior notice for various reasons, such as to improve quality, comply with applicable law, to adopt changes in materials, design, dimensions or in accordance with LÖFFLER’s policy of continuous improvement. While LÖFFLER may provide reasonable notice of such changes whenever possible, the Customer agrees that any changes are outside of LÖFFLER’s control and do not constitute a breach of these Terms and Conditions or the order invoice.
FORCE MAJEURE. "Force Majeure" means any event or condition which wholly or partially delays or prevents such party from performing any of its obligations hereunder and is beyond the reasonable control of, and occurs without the fault or negligence of, the party affected thereby including, without limitation, acts of God, acts of the public enemy, insurrections, riots, labor disputes, labor or material shortages, fires, explosions, floods, breakdowns of or damages to plants, merchandise or facilities, interruptions to transportation, embargoes, or orders or acts of any court or government authority having jurisdiction or any military authority. If, as a result of Force Majeure, it becomes impossible or impractical for either party to carry out its obligations hereunder (other than any obligation to pay money when due in accordance with the terms of this Agreement) in whole or in part, then such obligations shall be suspended to the extent necessary by such Force Majeure during its continuance.
INDEMNIFICATION. The Customer shall indemnify and hold harmless LÖFFLER against all claims, obligations or liabilities including court costs and attorneys' fees, arising out of Customer’ s negligence, tortious or unauthorized acts, misrepresentations, omissions, failure to perform its obligations hereunder, or any acts not expressly authorized in writing, related to or beyond the scope of these Terms and Conditions.
TERMINA TION. The agreement may be terminated by LÖFFLER and LÖFFLER may, at its option, declare any unpaid balance and other sums payable by Customer hereunder immediately due and payable for any one or more of the following reasons: (a) if Customer fails to make payment when due; or (b) the Customer substantially breaches any other obligation of this Agreement.
MEDIATION AND ARBITRATION. Any disputes between the parties hereto, whether arising under this agreement or otherwise, which the parties cannot resolve between themselves using good faith shall be referred to a court certified mediator of the Court in the County of the principal office of LÖFFLER and any mediation shall be held in the County of the principal office of LÖFFLER. The Customer shall bear the cost of said mediation. In the event that said dispute is not resolved in mediation, the parties shall submit the dispute to a neutral arbitrator residing in Hersbruck, Germany. The arbitration shall be held in Hersbruck, Germany and the Customer shall bear the cost of said arbitration. In the event that the parties are unable to agree upon an arbitrator within 15 days of the date on which either party requests arbitration of a matter, the arbitrator shall be provided by the American Arbitration Association. The parties further agree that full discovery shall be allowed to each party to the arbitration and a written award shall be entered forthwith. Any and all types of relief that would otherwise be available in Court shall be available to both parties in the arbitration. The decision of the arbitrator shall be final and binding. Arbitration shall be the exclusive legal remedy of the parties. Judgment upon the award may be entered in any court of competent jurisdiction. If either party refuses to comply with a ruling or decision of the arbitrator and a lawsuit is brought to enforce said ruling or decision, it is agreed that the party not complying with the ruling or decision of the arbitrator shall pay all the court costs and reasonable attorney's fees (including Trial and Appellate attorney's fees) incurred in enforcing the ruling or decision of the arbitrator. Any rights of injunctive relief shall be in addition to and not in derogation or limitation of any other legal rights.
STATUS. The Customer and LÖFFLER are entities. Nothing in the Order Conformation or in these Terms and Conditions shall be construed as creating an employer-employee or joint venture relationship.
NOTICE. All notices or other documents under this Agreement shall be in writing and delivered personally or mailed by certified mail, postage prepaid, addressed to the parties at their last known address.
SEVERABILITY. If any provision of these Terms and Conditions is held invalid, unenforceable, or void by a court of competent jurisdiction, these Terms and Conditions shall be considered divisible as to such provision, and the remainder of the Terms and Conditions shall be valid and binding as though such provision were not included in these Terms and Conditions.
NO-WAIVERS. The waiver by any party of any other party's breach of any provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach, and the waiver by any party to exercise any right or remedy shall not operate nor be construed as a waiver or bar to the exercise of such right or remedy upon the occurrence of any subsequent breach. No action on the part of either party to this Agreement shall be interpreted as a waiver unless such action shall be in writing.
MODIFICATIONS. Additions and modifications to these Terms and Conditions are only valid in writing by LÖFFLER. With the exception of LÖFFLER managers or authorized representatives of LÖFFLER, LÖFFLER’ s employees are not entitled to make any oral agreements. Fax transmission by LÖFFLER shall be sufficient to fulfill the written form clause.
COMPLIANCE WITH LAW. Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.
PLACE OF PERFORMANCE & JURISDICTION. The place of performance is the registered office of LÖFFLER. Place of jurisdiction for both parties is Hersbruck, Germany.
GOVERNING LAW. The contractual relationship between LÖFFLER and the Customer is governed by German Law excluding the Contracts for the International Sale of Goods (“CISG”).