General Terms of Delivery for Products and Services of Gebrüder Leonhardt GmbH & Co. KG Blema Kircheis
1. Scope of supplies and services
The mutually agreed written declarations are binding for the scope of supplies and services. If a contract was concluded without obtention of such mutually agreed declarations, either the written order confirmation of Supplier or Renderer of services (hereinafter referred to as Supplier) or, if such confirmation was not given, the written order of the Orderer will prevail.
If the obligation of Supplier compromises erection of delivered equipment or installations, other assembly work or accomplishment of servicing work, the „General Terms for Assembly and Maintenance“ will additionally be applicable.
The Supplier will reserve without restriction the rights of property as well as exploitation copyrights in cost estimates, drawings and other documents. They should be made available to third persons only after prior approval of Supplier. Drawings and other documents belonging to offers shall be returned immediately upon request, if the order is not awarded to the Offerer. Sentences 1 and 2 are analogously applicable to those third parties charged with supplies or services by the Supplier.
Collateral agreements shall only become effective, if being confirmed in writing.
Unless otherwise agreed, the prices will be valid for delivery without erection or assembly ex works excluding packaging with VAT.
Supply prices are always without engagement and not binding.
3. Retention of title
The goods remain property of the Supplier until satisfaction of all claims due to him by the Orderer within the commercial relation. Before pledging or mortgage of goods are forbidden and resale is only permitted to resellers in normal business under the condition that the reseller gets payment from his clients. Probable costs arising from interventions shall be borne by the Orderer. As far as the value of all mortgage rights due to the Supplier as per sentence 1 exceeds the amount of all secured claims by more than 25 out of a hundred, the Supplier will release a portion of mortgage rights upon the Orderer’s request.
4. Terms of payment
Payments shall be made free paying office of Supplier.
The Orderer can only make compensations with such claims being uncontested or legally valid.
The supplier is eligible requiring down payments for activities/efforts to provide. According to this, the down payments are credits to the agreement, the supplier owes this performance.
5. Deadlines for supplies and services
The mutually agreed written declarations will be binding as regards deadlines for supplies and services. Section 1.1. sentence 2 shall be valid accordingly. Meeting the deadline supposes receipt of all documents to be submitted by the Orderer in time including required approvals, releases, evidence and approval of schedules in time, compliance with the agreed terms of payment as well as other obligations. If those prerequisites are not met in due time, the deadline will be prolonged to a reasonable extent.
The deadline will be considered as met:
a, upon delivery without erection or assembly, if the consignment ready for operation was brought to despatch within the agreed period for supplies and services or was picked-up. If the delivery is delayed due to reasons the Orderer is liable for the deadline is considered to be met upon notification of readiness for despatch within the period agreed.
b, upon delivery with erection or assembly as soon as completed within the period agreed.
If the failure to meet the deadline established for supplies and services can be attributed to mobilization, war, riots, strike, lockout or occurrence of unforeseen obstacies, the deadline will be prolonged to a reasonable extent.
If the failure to meet the deadline arises from other reasons than stated in the last sentence, the Orderer may claim a default compensation – as far as he can furnish satisfactory evidence that damages arose to him due to this default – for every full week of delay amounting to ½ out of a hundred up to totally 5 out of a hundred from the value of the part of supplies and services which could not be put in proper operation due to the default of the completion of individual appertaining components.
Claim for compensations made by the Orderer exceeding the limit of 5 out of a hundred stated in Para 2 are excluded in any event of defaulted delivery even after elapse of a respite granted to the Supplier. This shall not be applicable to mandatory liability in events of malice or gross negligence. The right of the Orderer to withdraw after futile elapse of a respite granted to the Supplier will not be restricted.
If the despatch or delivery is delayed upon the Orderer’s request, storing charges can be levied to the Orderer starting one month after notification of readiness for despatch amounting to ½ out of a hundred of the invoiced sum. The storing charges will be limited to 5 out of a hundred unless higher expenses are evidenced.
6. Passing of risks
The risk is passing onto the Orderer even if carriage-free delivery was agreed:
a, upon delivery without erection or assembly if the consignment being ready for operation packed with maximum care was brought to the despatch or picked-up. Despatch is carried out according to the Orderer’s instructions or at the best discretion of Supplier. The consignment is insured by the Supplier upon request and at the expenses of Orderer against breakages and damages due to transportation or fire.
b, upon delivery with erection or assembly on the day of acceptance in the domestic factory and as far as trial run was agreed, after impeccable completion of such trial run. In this respect, instantaneous start of trial run after erection or assembly ready for operation is supposed. If the Orderer does not agree to acceptance in his domestic factory, the risk will pass onto the orderer for the period of delay after elapse of 14 days after the offer.
c, If the despatch, delivery or the start or accomplishment of erection or assembly is delayed upon the Orderer’s request or for reasons he is liable for, the risk will pass onto the Orderer for the period of delay, however, the Supplier is obligated to care for the necessary insurances upon request and at the expenses of Orderer.
Delivered goods shall be accepted by the Orderer even if they show
Partial shipments are permitted.
8. Express warranty
The Supplier shall be liable for faults also including absence of assured properties as follows:
All those parts or services shall be touched-up, redelivered or rendered once again free of charge at the Supplier’s option that become unserviceable or the serviceability of which was essentially affected due to a circumstance prior to passing of risk counted from the date of passing of risk, in particular, due to defective manufacture, bad material or faulty design within 12 months notwithstanding the operating period. The Supplier shall be notified immediately in writing of the detection of such faults and defects.
The Orderer shall comply with the contractual obligations to be fulfilled by him, in particular, the terms of tradement agreed upon.
If a complaint is asserted, payments to be made by the Orderer shall be held back only to an extend being in a reasonable relationship to the faults occurred. If, however, the contract belongs to the business of his trade, the Orderer can only hold back payments, if a complaint was risen with undoubtful qualification.
For clearing defects, the Orderer shall grant at his best discretion required time and opportunity to the Supplier. If he refuses to do so, the Supplier will be released from express warranty.
If the Supplier lets the granted reasonable respite pass without clearing the defects, the Orderer may demand cancellation of contract (rehibition) or decrease of compensation (abatement).
The right of Orderer to assert claims from defects will be barred at any rate after 12 months counted from the date of complaint. If no agreement can be reached within this period, Supplier and Orderer may agree upon a prolongation of said period.
Express warranty refers to natural wear, however. Not to damages occurred after passing of risk due to erroneous or careless operation, excessive loag, inappropriate working means, defective construction work or such influences not provided for in the contract.
Liability for consequences resulting from improper changes and repair work probably accomplished by the Orderer or third parties will be cancelled.
The warranty for touch-up work amounts to 3 months and 6 months for replacements or for substitute services. It will be valid at least until elapse or original warranty period granted for the goods delivered. The period for express warranty is prolonged by the period of operation interrupt occurring due to touch-up work, replacements or substitute services for those parts that cannot be operated properly due to this interrupt.
The stipluations concerning warranty periods under sections 1, 5 and 8 will not be valid if statute law prescribes longer periods.
Further claims set-up by the Orderer against the Supplier and his servants are excluded, particularly claims for damages not occurred on the goods delivered themselves.
This shall not be applicable to mandatory liability in events of malice, gross negligence or absence of properties assured.
Sections 1 through 10 are accordingly applicable to those claims of Orderer for touching-up, replacement or compensation brought
forward by proposals or consultations made in the framework of contract or by the violation of collateral contractual obligations.
malice, gross negligence or absence of properties assured.
Gebrüder Leonhardt-Blema Kircheis does not take any liability concerning rights of a third party at the products (e.g. cans, lids/ends, bodies etc.) which are produced by means of machines and tools of Gebrüder Leonhardt-Blema Kircheis and its technology.
9. Disability, contract accommodation
If the Supplier is not able to fulfill his obligations regarding delivery and services general legal rules will be valid subject for the following conditions:
If such disability can be attributed to the Supplier’s fault, the Orderer will have the right to claim for compensation. The compensation claim of the Orderer, however, shall be restricted to 10 out of a hundred of the value of such part of delivery or service that cannot be put into proper operation due to this disability. Compensation claims of the Orderer exceeding the stated limit of 10 out of a hundred are excluded. This shall not be applicable to mandatory liability in events of malice or gross negligence. The right of the Orderer to withdraw from the contract will not be restricted.
As far as unforeseen events as per 5.3., Para 1 considerably change the economic significance or the content of delivery and service or substantially affect the business of Supplier, the contract shall be accommodated reasonably according to trust and faith. If this cannot be sustained for economic reasons, the Supplier may withdraw from the contract. If he intends to make use of this right to withdraw, he shall inform the Orderer immediately after detection of the bearing of the event even if a prolongation of delivery period was initially agreed upon with the Orderer.
10. Other claims for compensation
Compensation claims of the Orderer arising from positive claim violation, from the violation of duties during contractual negotiations and from unlawful act are excluded.
This shall not be applicable to mandatory liability in events of malice or gross negligence of Supplier, his legal representative or his servants. This liability limitation is accordingly applicable to the Orderer.
The headquarters or the agency of Supplier shall be the sole venue for setting all disputes indirectly or directly arising from the contractual relation according to the Supplier’s option if the Orderer acts as self-contained merchant.
German law will be applicable to the contractual relations.
12. Binding force of contract
Even with legal invalidity of individual paras, the contract remains fully binding as regards the other paras. This will not be valid when abiding by the contract may involve unreasonable hardship for
General Terms for Assembly and Maintenance of Gebrüder Leonhardt GmbH & Co. KG Blema Kircheis
The following General Terms for Assembly and Maintenance shall be applicable to all assembly and service work in addition to the General Terms of Sales and Delivery. Any divergent conditions or counter confirmations of Client shall be binding for the Contractor only if expressive written consent was given. No reply to such divergent conditions should be considered as consent or approval. Herewith, expressive objection is made to such divergent conditions or counter confirmations of Client.
2. Scope of assembly work and maintenance work
Assembly of goods supplied by Contractor shall be carried out in compliance with the agreements made between him and the Client. The scope of assembly work depends upon the written consent given by the Contractor. Assembly work shall not compromise laying and connecting electric supply lines to the electrical – control cabinet, as well as connections for gas and compressed air.
Service or maintenance contracts need a separate agreement between the parties. The resulting maintenance work includes the nurture and check-up of the founded engine or system. In detail the inspection of all mechanic and electric functions, the inspection of the allocative function, function test in the modules as well as the mail function analysis in the maintenance period.
Repairs and mail function recovery caused by mail functions and damages between the maintenance range are not included in the service contract. They will be realized by separate accounting. Repairs which exceed the normal maintenance costs and in cases of violent damages, a separate accounting for parts of application plus mounting set will be needed.
The compensation of all spares which got unless by natural wearout is not included in the service contract. It will be realized by separate payment for blurb plus mounting set.
The fitters of Contractor shall not be authorized to represent him in legal transactions. However, they will be entitled to accept spare parts orders or other orders on the Contractor’s behalf. Such orders will require written consent.
3. Prices, terms of payment
Payment for assembly work and service shall be made to the Contractor as follows:
The Client will effect payment to the Contractor covering working hours inclusive of extra charge for overtime, night, Sunday and holiday work on site as well as for work under aggravating circumstances. Preparatory, travelling, routing time as well as time for reporting back shall be considered as working hours.
Expenses for travels, transportation of hand tools and personal luggage as well as severance pay for working hours as well as rest and holidays will be paid for separately.
Compensations and costs as per section 3.1. will become due as service immediately and without any deduction after receipt of invoice.
Expenses for maintenance work will be stipulated separately between the contract parties. The maintenance costs have to be paid for 1 year in advance. The respective amount plus legal sales tax has to be paid within a payment period of 30 days
beginning with the invoice date. The stipulated maintenance costs include expenses for arrival, carriage of necessary tools and blurb. Additional expenses for blurb as per section 2.3.,2.4. are excluded.
4. Participation of Client
The Client shall care for and make available in time at his own expenses:
Hands required for assembly work and services;
Materials and auxiliaries required for assembly, commissioning and service rendered by the Client;
Laying of all supply lines ready for connection;
Requires power, heating and general lighting;
Sufficiently large, suitable, dry and lockable rooms for keeping the machine components, equipment, materials, tools etc. on assembly site as well as appropriate work and rest rooms including adequate sanitary installations for assembly personnel. In addition, the Client shall take measures for protecting the property of Contractor as well as the property of the Contractor’s assembly personnel as he would take for protecting his own property.
Protective clothing and protective devices required due to particular circumstances prevailing on site which are not customary for the Contractor.
5. Delay of assembly work and service
If assembly work or service are delayed without the Contractor’s fault, particularly but not exclusively, since the Client did not fulfil his obligations as per section 4 the Client shall bear all extra costs particularly incurred by waiting time and/or several commutation of assembly personnel. Waiting time shall be paid for as per section 3.1. If the goods delivered by the Contractor could not be commissioned directly after completion of assembly, the same procedure shall be applicable.
6. Completion of assembly
Immediately after completion of assembly, the engine/installation shall be put into operation for a trial-run period of 1 hour. The Client shall submit signed minutes to the fitter regarding proper operation of engine/installation.
In addition, the Client shall confirm the working hours stated in the assembly report and accomplishment of assembly to the fitter. The attendance sheet signed shall be the basis for accounting.
Defects and lacks of assembly work and/or service shall be cleared by the Contractor free of charge. The procedure of clearing the defects shall be defined by him.
Additional claims of Client particularly compensation claims for defects or consequential damages regardless of title are excluded provided gross fault can be laid to the charge of Contractor or his servants. The Contractor shall not be liable for slight negligence at any rate.
The Contractor will not grant any warranty for defects in assembly to be attributed to the interference or instructions of Client or third parties.
8. Exemption from and limitation of liability, insurance
The Contractor will only be liable for work accomplished by assembly personnel and other servants if such work is related to the delivery of his goods, assembly or services or if induced by the Client.
If the aforementioned terms do not contain any particular regulations, any compensation claim of Client regardless of title (e.g. resulting from noncompliance, disability, delay, positive violation of contract as well as violation of duties during contractual negotiations, unlawful acts, settlement among joint debtors, failure or incorrect completion of touch-up work) will be excluded. This exemption from liability shall also be applicable to personal liability of legal representatives,
employees and other servants of Contractor.
The Client shall make sufficient insurances covering damages to property and personal injury of his personal as well as hands.
The Client shall cover the transportation risks for devices, components thereof and tools upon accomplishment of assembly work and services.
9. General regulations
The competent court at the Contractor’s headquarters shall be the exclusive venue for settling any disputes. The Contractor shall also be entitled to choose the general venue of Client.
Law prevailing in the Federal Republic of Germany shall exclusively be applicable to all legal relations between Client and Contractor.
The General Terms of Delivery of Gebr. Leonhardt GmbH & Co. KG Blema Kircheis shall analogously be valid in addition to the preceding Terms for Assembly.
In the event of invalidity or incompleteness of some contractual conditions, the other conditions will remain fully valid. Instead of invalid or incomplete conditions, a regulation shall be brought forward comin closest, in the framework of legal possibilities, to that economically intended according to the sense and purpose of invalid clause or the parties would have intended if this matter was considered previously.
General Terms and Conditions of Purchase
1. Contract terms
Unless otherwise agreed to in writing by Gebrüder Leonhardt GmbH & Co. KG Blema Kircheis (hereafter called GLBK), the following terms and conditions apply to all GLBK purchase orders for goods or services (products), in addition to any terms set forth on the face of, or attached to or incorporated by reference into, an individual purchase order. GLBK objects to any different, additional or conflicting terms proposed by a CONTRACTOR in any communication between the parties or otherwise (including on any of CONTRACTOR’S invoices, acknowledgements, other forms or website), all of which shall be deemed material alterations of the order, unless GLBK expressly agrees in writing to such terms. If there is any conflict between these terms and the terms of CONTRACTOR’s forms or website, these terms shall prevail.
GLBK shall cease to be bound by an order which CONTRACTOR fails to confirm in writing within two weeks of the date of its issue. By confirming the order CONTRACTOR warrants that the ordered goods comply with the standards required by GLBK. Call orders shall be binding unless CONTRACTOR objections arrive within five working days of receipt of order.
2. Conclusion and amendment of the contract
Declarations geared to the conclusion and the amendment respectively supplementation of contracts shall only be valid if made in writing. GLBK calls for deliveries may, however, also be issued by electronic remote data transmission (e.g. EDI, e-mail or fax).
Verbal agreements prior to or at conclusion of the contract, especially deviations from GLBK’s General Terms and Conditions of Purchase shall only be valid if confirmed by GLBK in writing. Item 2.1, sentence 2 remains unaffected by this.
2.3. Any ancillary agreements made orally or by phone or other deviations from the contract are only valid if confirmed by GLBK in writing.
2.4. Cost estimates shall be binding and not subject to compensation, unless deviating terms were expressly agreed on.
GLBK only accepts deviations from the order if they have been reconfirmed by GLBK in writing.
Terms of delivery, acceptance of costs for packaging, freight, delivery and insurance; and covering of transport risks shall be negotiated separately.
Agreed delivery dates shall be binding. Relevant for compliance with the delivery date or the delivery deadline is receipt of the goods at the premises of GLBK.
If the CONTRACTOR is responsible for setup and/or installation, and unless otherwise agreed upon, the CONTRACTOR shall assume all required incidental costs (travel expenses, availability of tools, etc.).
The statutory provisions shall apply where agreed dates are not complied with. If the CONTRACTOR anticipates difficulties with respect to production, the supply of required materials, meeting the delivery date or similar circumstances that might interfere with his ability to deliver in a timely fashion or delivery with the agreed upon quality, the CONTRACTOR must immediately notify GLBK by stating the reasons.
The unconditional acceptance of a delayed delivery or service does not constitute a waiver of claims to which GLBK is entitled due to the delayed delivery or service.
Partial deliveries are precluded as a rule, unless GLBK expressly agreed to them in writing.
The values determined by GLBK during the incoming inspection shall prevail with respect to quantities, weights and dimensions, unless different values were proved by the CONTRACTOR.
With respect to software included in the scope of delivery, including its documentation, in addition to the right of use to a legally permissible extent; GLBK has the right of use with the agreed-upon performance characteristics and to the extent necessary for the use of the product in accordance with the agreement. GLBK has the right to make a backup copy, even without express agreement.
The CONTRACTOR guarantees that delivered goods accord in every respect with the applicable statutory requirements and directives, comply with the latest state-of-the-art technology and are in conformity with GLBK’s requirements and specifications. In case requirements are deviating the CONTRACTOR shall obtain permission by GLBK in writing.
Unless otherwise agreed in writing the legal stipulations regarding warranty shall be applied.
Acceptance of the goods takes place under reserve of investigation in particular on faultlessness, especially for correctness, completeness and fitness. Defects of the delivered goods shall be notified the CONTRACTOR immediately in as far as they can be identified during inspection in line with proper business process. Deficiencies which are not recognized during such investigation are notified within ten days after cognizance.
Should any expenses arise out of the deficient delivery (especially costs referring material, route, labour and transport) the CONTRACTOR has to bear these expenses.
If GLBK had to take back delivered machines/goods rendered by the CONTRACTOR, if GLBK had to accept a reduction of the purchase price or if GLBK’s customer claims indemnity or reimbursement of expenses as consequence to a deficiency of the goods delivered GLBK reserves the right to recourse against the CONTRACTOR.
The CONTRACTOR shall immediately and free of charge correct defects in delivery or service, to which belong the non-attainment of guaranteed data and the absence of promised features. GLBK has the right to select the type of fulfillment measure. In the event the CONTRACTOR does not immediately begin with the correction of the defect after GLBK has given a time-limit, GLBK is entitled to undertake such correction by itself or by a third party at the expense of the CONTRACTOR. Minor defects may be eliminated by GLBK, in fulfilment of GLBK’s mitigation obligation, without affecting CONTRACTOR’s obligations under the warranty. The right for further claims remains reserved.
The warranty period is 24 months, save as otherwise expressly agreed, and starts on the day GLBK receives the goods. Referring machines, plants, etc. the warranty period starts with the final acceptance; that date will be taken down written by GLBK. If acceptance is delayed through no fault of the CONTRACTOR, the warranty period shall begin when goods have been get ready for acceptance.
5. Product liability
In the event a product liability claim is asserted against GLBK, the CONTRACTOR agrees to hold GLBK harmless from such claims if and to the extent the damage was caused by a defect of the goods or services. If the cause of the damage falls within the area of responsibility of the CONTRACTOR, the CONTRACTOR shall have the burden of proof to that extent. In the above cases the CONTRACTOR assumes all costs and expenses, including the costs for any legal action or a recall campaign. In addition the legal stipulations shall apply.
6. Invoice and payment
Invoices shall be provided in duplicate by CONTRACTOR. Showing the invoice number and other identifying information according to national applicable legislation and directives (VAT, etc.), invoices are to be sent separately by post to GLBK’s business address. It is prohibited to add invoices to the delivery.
In so far as no special terms has been agreed on, payment is to be made within 14 days less a 3% discount or within 30 days net less a 2% discount or 60 days net after acceptance of the invoice. Payment signifies neither the acknowledgement of proper contract fulfillment nor a waiver of the liability of the CONTRACTOR on the basis of defects. In the case of justified complaints, GLBK I entitled to withhold a reasonable share of the invoiced amount.
The assignment of claims against GLBK is only effective with GLBK’s written consent.
8. Data confidentiality; documents and materials
All documents and materials that GLBK has relinquished to the CONTRACTOR for offer filing or for execution of an order remain GLBK property. All data may not be used for other purposes, reproduced or made available to third parties. After completion of the order, the CONTRACTOR shall return all material to GLBK. Tools supplied to the CONTRACTOR shall only be used for goods related to GLBK. The CONTRACTOR is obliged to insure the tools belonging to GLBK at reinstatement value and to subrogate all compensation claims against the insurer to GLBK.
All business and technical information made available by GLBK, as long as and insofar as it is not demonstrably known to the general public, must be treated as confidential with respect to third parties and ought only to be made available to staff working on goods ordered by GLBK. These persons are also committed for secrecy.
Goods, which are manufactured according to documents (drawings, models, etc.) or by means of GLBK tool, shall not be kept by the CONTRACTOR itself, nor offered or made available to third parties.
9. General provisions
The place of performance is the place to which the goods are to be delivered in accordance with the contract or where the service is to be rendered.
The contractual relationship between GLBK and CONTRACTOR shall exclusively be governed by German law. Application of the UN Sales Convention is excluded.
Should individual terms of this contract be or become inoperative, this will not affect the remaining terms of this contract. The ineffective terms will be replaced by an effective term whose content in terms of its purpose comes closest to the purpose sought by the respective ineffective clause and to the benefit of both contractual parties.
Solely place of jurisdiction for all disputes arising from the contractual relationship shall be Aue (Saxony).