General Terms and Conditions – Status: 14 June 2018
The company lipobak GmbH & Co. KG is referred to as lipobak in the following text.
§ 1 Scope of application
These general terms and conditions form the basis for all future services and deliveries, even if their inclusion is not expressly agreed again. Any deviating or conflicting general terms and conditions of the customer are hereby expressly rejected. Unless they are expressly acknowledged in writing, they are not binding for lipobak.
§ 2 Offer / conclusion of contract
Offers are always subject to change; orders are deemed accepted if they are either confirmed in writing by lipobak or executed without delay after receipt of the order. In that case, the delivery note or the invoice shall be deemed the order confirmation. Information contained in advertisements, documentation, brochures and similar publications constitutes only descriptions of the products and contains no warranty for the condition of the item or that the item will retain a certain condition for a certain period. The assumption of a warranty (guarantee of durability) requires an explicit written agreement. Obvious errors, typing, printing and calculation errors are not binding for lipobak. The documents belonging to the offer, such as illustrations, drawings, calculations, weight and dimension specifications, are, unless otherwise agreed, only approximate. Such information, in particular information on performance and usability of the delivered products as well as DIN standards, shall only be deemed a designation of certain characteristics within the meaning of § 434 BGB if lipobak expressly confirms this in writing. If lipobak provides samples to the purchaser, these are deemed test samples and not samples within the meaning of § 454 BGB. lipobak retains ownership of cost estimates, drawings and other documents. They may only be used for the stated purposes and must not be made accessible to third parties. For all deliveries, in particular where the delivery volume exceeds € 5,000.00, lipobak is entitled to demand an advance payment of one third of the agreed price upon order placement, another third upon completion, and the remaining amount after handover. If, after conclusion of the contract, lipobak becomes aware of facts, in particular payment default with regard to earlier deliveries, which, according to proper commercial discretion, indicate a material deterioration of assets, lipobak is entitled to demand advance payment or appropriate security and, in the event of refusal, to withdraw from the contract, whereby partial deliveries already made shall become due immediately.
§ 3 Shipping / packaging / transfer of risk
The route and means of dispatch are at the discretion of lipobak. The same applies to the packaging, which is carried out according to production and transport requirements as well as environmental policy considerations. At the request and expense of the buyer, the goods will be insured. The risk shall pass to the buyer upon handover of the goods to a forwarding agent or carrier, at the latest upon leaving the warehouse. In the case of delivery including installation and assembly, the risk shall pass on the day of acceptance at the buyer premises, provided that trial operation was agreed, after flawless trial operation. This requires that the trial operation or acceptance at the buyer premises follows immediately after the operational installation or assembly. If the buyer does not accept the offer of trial operation or acceptance at the buyer premises, the risk for the period of delay shall pass to the buyer after 14 days from such offer. If dispatch, delivery, the start, or the execution of installation or assembly is delayed at the request of the buyer or for reasons for which lipobak is not responsible, the risk for the period of delay shall pass to the buyer. Where the return of disposable packaging is considered, the return shipment to lipobak must be made free point of sale. Returns are excluded for packaging for which a dual waste disposal system (Green Dot) has been set up that has been recognized by the competent authority pursuant to § 6 (5) Packaging Ordinance. The return of packaging material is also excluded insofar as lipobak engages a suitable disposal company for disposal pursuant to § 11 Packaging Ordinance. In this case, the buyer is obliged to provide the packaging material and hand it over to the disposal company. If lipobak agrees with the buyer that, in return for a disposal flat rate, the buyer waives the right of return, the buyer is obliged to hand over the used packaging to a recognized disposal company that ensures proper disposal in accordance with the provisions of the Packaging Ordinance.
§ 4 Prices / payments
Unless special prices have been agreed, the list prices valid at the time of conclusion of the contract shall apply. Prices are in euros plus packaging, shipping costs and VAT. In the event of price increases by upstream suppliers as well as unexpected increases in wage and transport costs, lipobak is entitled to an appropriate price increase, insofar as own delivery or performance is to take place later than 4 months after conclusion of the contract and there is no fixed-price agreement. In the event of default of acceptance for fixed-date deliveries, the payment period runs from the scheduled delivery date. Invoices are payable net within 14 days of receipt. No cash discount is granted; contract work is payable without deduction within 10 days. Claims become due immediately, regardless of the term of any bills of exchange accepted and credited, if the payment terms are not complied with or if facts become known that indicate a material deterioration of the buyer assets. In the latter case, lipobak is entitled to take back the goods, if necessary enter the buyer premises and remove the goods. lipobak may also prohibit any further sale and removal of the delivered goods. Due to the retention of title (see § 6), lipobak may demand surrender of the item if lipobak has withdrawn from the contract. lipobak is entitled to revoke the direct debit authorization for good cause and to demand advance payment for outstanding deliveries. The buyer can avert this by providing security in the amount of the payment claim at risk for lipobak. Set-off against claims of lipobak is only permissible with undisputed or legally established counterclaims. A right of retention from earlier or other transactions of the ongoing business relationship cannot be asserted. Unilateral invoice deductions for disposal of packaging material, in particular transport costs, are not permitted. Default interest is calculated at 8 percentage points above the base interest rate. If the customer is a consumer, the default interest rate for the year is 5 percentage points above the base interest rate. A higher rate applies if charging a higher interest rate for open overdraft credits is proven, whereby the customer reserves the right to prove that lipobak incurred significantly lower interest damage.
§ 5 Delivery periods / delay
The risk shall pass to the buyer upon handover of the goods to a forwarding agent or carrier, at the latest upon leaving the warehouse. Timely acceptance is an essential contractual obligation of the customer. lipobak is entitled to make partial deliveries and to invoice them separately. Delivery dates and delivery periods are only binding if they are included as such in a written offer or the written order confirmation by lipobak and are designated as binding. After expiry of a bindingly agreed delivery period, the customer must set lipobak a reasonable period for performance. If this period expires without result, the customer may, subject to other rights, withdraw from the contract. In the event of disruptions, e.g. due to force majeure and other obstacles for which lipobak is not responsible, in particular disruptions at the supplier, strikes, lockouts, operational disruptions, etc., and insofar as these obstacles affect delivery or performance by lipobak, the agreed delivery and performance period for lipobak shall be extended by a reasonable period. If, due to such an obstacle, delivery and performance become impossible or unreasonable, lipobak shall be released from the obligation to perform permanently. Information on dates for completion and delivery of parts not yet completed or not yet released are non-binding planning guidelines in the interest of a comprehensive test phase.
§ 6 Retention of title
lipobak retains title to the goods until the purchase price has been paid in full. In the case of goods that the customer obtains from lipobak in the course of commercial activity, lipobak retains title until all claims arising from the business relationship, including future claims also from contracts concluded at the same time or later, have been settled. This also applies if individual or all claims of lipobak have been included in a current account and the balance has been collected and acknowledged. If, in connection with payment of the purchase price by the buyer, a liability under bills of exchange is established by lipobak, the retention of title does not expire before the bill of exchange is redeemed by the customer as drawee. If the reserved goods are combined by the customer with other goods, lipobak shall have co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods and the processing value. If lipobak ownership expires due to combination, mixing or processing, the customer transfers to lipobak, already at the time of conclusion of the contract, the ownership rights to which the customer is entitled in the new item to the extent of the invoice value of the reserved goods and holds them in safekeeping for lipobak free of charge. The ownership rights arising thereafter are deemed reserved goods within the meaning of paragraph 1. The buyer must inform lipobak immediately of any access by third parties to the reserved goods and the assigned claims. The buyer may only sell the reserved goods in the ordinary course of business on normal terms and conditions and as long as the buyer is not in default, provided that the claims from resale pass to lipobak in accordance with the following conditions. The customer is not entitled to make any other dispositions of the reserved goods. The customer claims from resale of the reserved goods are hereby assigned to lipobak. They serve as security to the same extent as the reserved goods. If the reserved goods are sold by the customer together with other goods not supplied by lipobak, a corresponding portion of the claim from resale, corresponding to an own ownership share, is assigned in the ratio of the invoice value of the goods to the other goods sold in which lipobak has co-ownership shares. If only a co-ownership share exists in the sold items in favor of lipobak, the claims are assigned in the amount of the sales value of this share with priority over the other claims. At the request of lipobak, the customer will provide names and addresses of the relevant purchasers as well as the nature and scope of the customer claims against them. lipobak is entitled, to secure its payment claims, to disclose the assignment at any time. Pledging or transfer by way of security of reserved goods is not permitted. In the event of access by third parties to the reserved goods, the customer will point out lipobak ownership and lipobak must be notified immediately in writing. The customer bears all costs of any necessary intervention proceedings and other defense measures in connection with such access by third parties. In the event of customer breach of contract, in particular default of payment, or if facts exist that justify the assumption that suspension of payments is to be feared, lipobak may revoke, at the customer expense, the above-mentioned authorization of the customer to resell, collect claims and process and/or combine reserved goods, and/or demand assignment of surrender claims of the customer against third parties. This right also exists for lipobak if the secured claims are already time-barred. Due to the retention of title, lipobak may demand surrender of the item if lipobak has withdrawn from the contract. lipobak is entitled to realize the reserved goods and to satisfy itself from the proceeds thereof, offsetting against the open claims against the customer. If lipobak is entitled to exercise the retention of title, the customer irrevocably and unrestrictedly grants lipobak access to the customer business premises or site during customary business hours for the purpose of collecting the reserved goods and hereby waives the need for a court order permitting access to the aforementioned premises. The customer is entitled to collect the claims from resale unless lipobak revokes the collection authorization. At the request of lipobak, the customer is obliged to inform the customer purchasers immediately of the assignment to lipobak (unless lipobak does so itself) and to provide lipobak with the information and documents required for collection. The customer is not entitled to further assign the claim under any circumstances. Assignment by way of factoring is only permitted provided that lipobak is notified, stating the factoring bank and the buyer accounts maintained there, and that the factoring proceeds exceed the value of the secured claim. Upon crediting of the factoring proceeds, the claim of lipobak becomes due immediately. lipobak undertakes to release the securities to which lipobak is entitled insofar as their value exceeds the claims to be secured, insofar as these have not yet been settled, by more than 20%.
§ 7 Notice of defects / warranty
All obvious and/or detected defects, shortages or incorrect deliveries must be reported in writing without delay, in any case before processing or installation. Further obligations pursuant to § 377 HGB remain unaffected. Obvious defects must be reported within one week after handover of the system. If this is not done, warranty is excluded. The warranty period for all deliveries to entrepreneurs within the meaning of the BGB or merchants within the meaning of the HGB is one year. In the event of warranty, the customer may initially demand subsequent performance. lipobak is entitled to provide such subsequent performance by remedying the duly notified defects. For remedying the defects, the customer must grant lipobak the time and opportunity to be determined at equitable discretion, in particular to make the complained-about system immediately accessible, otherwise warranty shall lapse. If lipobak does not remedy the defects, lipobak reserves the right to provide delivery of a defect-free item as subsequent performance. The customer must set lipobak a reasonable period for subsequent performance. If lipobak does not remedy defects within this reasonable period, or if delivery of a defect-free item is impossible or refused by lipobak, the customer has the right to withdraw from the contract or reduce the purchase price, in addition to the right to compensation for damages instead of performance. No period need be set if lipobak refuses both types of subsequent performance, or if subsequent performance has failed or is unreasonable. In particular, the value of the item in defect-free condition, the significance of the defect, and the question of whether the other type of subsequent performance can be carried out without significant disadvantages for the customer must be taken into account. Remedying of defects (repair) is deemed to have failed if a reasonable number of repair attempts has not been successful. In particular, the nature of the item (device), the nature of the defect, and the defect-related failure of a commercially used item (device) are of significance. Warranty is excluded if the product (system, installation) is improperly installed, maintained, used, repaired, modified, or operated by the customer or third parties commissioned by the customer in an environment that does not meet lipobak installation requirements. In each individual case, lipobak determines how the water quality (temperature, salt content, etc.) must permanently be. If, after review of a defect notice, it is determined that there is no warranty case, the costs of review and repair are charged in accordance with the applicable customer service pricing provisions. If the system lacks a guaranteed condition at the time of transfer of risk, the customer has the right to withdraw from the contract.
§ 8 Safety provision
Compliance with the relevant safety regulations, such as accident prevention regulations, is pointed out. Insofar as safety regulations exist in the customer country for deliveries abroad, in particular for approval, maintenance and handling of the delivered items, the customer alone is obliged to comply with them. The customer is obliged to indemnify lipobak against all claims arising from such regulations. In the event of defect notices, the delivered products must, where possible, be sent in carriage paid, whereby within the warranty period the devices will be repaired or replaced by lipobak free of charge if they have become defective due to material or manufacturing defects.
§ 9 General limitation of liability
pages/agb.Zu Schadenersatz sind wir nur verpflichtet, wenn der Schaden auf einer durch grobe Fahrlässigkeit oder Vorsatz verursachten Pflichtverletzung beruht. Bei einer nur leicht fahrlässigen Pflichtverletzung einer Hauptleistungspflicht (wesentliche Vertragspflicht), wird die Schadenersatzhaftung begrenzt. In diesem Fall ist die Haftung auf höchstens € 500.000,00 für Personen- und Sachschäden bzw. € 50.000,00 für Vermögensschäden begrenzt. Die Begrenzung gilt bei solchen Schäden, mit deren Eintritt bei Vertragsabschluss vernünftigerweise gerechnet werden konnte, d. h. ausgeschlossen sind vertragsuntypische oder nicht vorhersehbare Schäden. Diese Begrenzung gilt nicht bei Schäden aus der Verletzung des Lebens, des Körpers oder der Gesundheit. Für den Fall, dass lipobak Nebenpflichten (unwesentliche Vertragspflichten) nur leicht fahrlässig verletzen, wird die Schadenersatzhaftung ausgeschlossen. Dies gilt nicht bei der Haftung für Verletzung des Lebens, des Körpers oder der Gesundheit. Bei nicht zu vertretenden Verletzungen von Nebenpflichten, kann der Kunde nur dann zurücktreten, wenn es ihm nicht zumutbar ist, an dem Vertrag festzuhalten.Die gleiche Haftungsbegrenzung gilt für die Haftung bei nur leicht fahrlässiger Pflichtverletzung von Erfüllungsgehilfen.Soweit der Kunde Unternehmer oder Kaufmann i.S.d. HGB, juristische Person des öffentlichen Rechts oder öffentlich rechtlichen Sondervermögens ist, werden mögliche Schadenersatzansprüche wie folgt eingeschränkt: Jegliche Haftung ist auf solche Schäden beschränkt, mit deren Eintritt beim Vertragsabschlus nach den bekannten Umständen vernünftigerweise zu rechnen war (d. h. typischerweise vorhersehbare Schäden).Schadenersatzansprüche, außer aus der Haftung bei Verletzung des Lebens, des Körpers oder der Gesundheit, verjähren mit Ablauf eines Jahres ab der Übergabe der Ware oder der Abnahme der Anlage oder der Durchführung einer mangelhaften Dienstleistung.Es besteht keine Haftung für mittelbare Schäden oder entgangenen Gewinn, sofern die Haftung nicht durch grobes Verschulden oder die Übernahme einer Garantie begründet ist. lipobak haftet auch nicht für die unsachgemäße Verwendung der Produkte, insbesondere wenn die Produkte nicht gemäß der jeweils zur Verfügung gestellten Produktinformation eingesetzt und verwendet werden. Die Beweislast hierfür trägt der Kunde.Diese Haftungsbegrenzung gilt auch für Ansprüche gegen Mitarbeiter, die von lipobak beauftragt sind.
§ 10 Data protection
lipobak customers are hereby informed that lipobak processes the personal data obtained in the course of the business relationship in accordance with the provisions of the GDPR.
§ 11 Place of performance / jurisdiction / applicable law
Place of performance is Claudiusstraße 25, 64521 Groß-Gerau. Insofar as the customer is an entrepreneur, a registered merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all legal disputes arising from or in connection with contracts is agreed to be Groß-Gerau. lipobak, however, remains entitled to file an action or initiate other legal proceedings at the general place of jurisdiction or the customer registered office.
§ 12 Choice of law
The contractual relationships are governed exclusively by the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. Should individual provisions of these sales and delivery conditions be invalid or become invalid due to legal developments, the validity of the remaining provisions shall remain unaffected. All prices are ex works plus the applicable statutory VAT, currently 19%. The general delivery and payment conditions of lipobak apply.