Terms & Conditions

§ 1 scope, form

(1) These General Terms and Conditions (GTC) apply to all our business relationships with our customers ("Buyer"). These GTC only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code), a legal entity under public law, or a special fund under public law.

(2) These General Terms and Conditions apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, these General Terms and Conditions in the version valid at the time of the Buyer's order or, in any case, in the version last communicated to the Buyer in text form shall also apply as a framework agreement to similar future contracts, without us having to refer to them again in each individual case.

(3) Our General Terms and Conditions apply exclusively. Any deviating, conflicting, or supplementary general terms and conditions of the buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This also applies if we carry out the delivery to the buyer without reservation in full knowledge of the buyer's General Terms and Conditions or if we refer to a letter containing or referring to the buyer's or a third party's terms and conditions.

(4) Individual agreements deviating from these General Terms and Conditions must be made in writing, unless evidence to the contrary is provided.

§ 2 Conclusion of contract

(1) Our offers are subject to change and non-binding unless expressly marked as binding. This also applies if we have provided the buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, estimates, references to DIN standards), other product descriptions, or documents – including in electronic form. Verbal advice or promises made by us or our employees prior to the conclusion of this contract are legally non-binding unless their binding nature has been agreed upon in writing.

(2) The buyer's order for goods is considered a binding contractual offer. The buyer is bound to the order within a period of 14 days. The contract is concluded through our order confirmation within this period or through a delivery made directly following the order. Order confirmations via web-based means and/or fax are sufficient in writing. Verbal agreements or verbal modifications and additions to orders require our express written confirmation to be legally effective. We are entitled to notify the buyer of any deviations from the order with the order confirmation that are reasonable for the buyer. These deviations are binding for both parties unless the buyer objects to the content of the order confirmation in writing within eight days of its dispatch. In the event of such an objection, we are entitled to withdraw from the contract within a further period of 12 days by sending a corresponding written declaration, excluding any claims for damages.

(3) Information provided by us or our employees regarding the subject matter of the delivery or service (e.g., weights, dimensions, utility values, load capacity, tolerances, and technical data) as well as our representations of the same (e.g., drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but rather descriptions or markings of the delivery or service. Customary deviations and deviations resulting from legal regulations or representing technical improvements, as well as the replacement of components with equivalent parts, are permissible provided they do not impair the usability for the contractually intended purpose. In this respect, paragraph 2 applies.

(4) We reserve ownership and copyright to all offers and cost estimates submitted by us, as well as to drawings, illustrations, calculations, brochures, catalogs, models, tools, and other documents and aids made available to the buyer. The buyer may not make these items accessible to third parties, either as such or in terms of their content, without our express consent, or disclose them, use them, or reproduce them himself or through third parties. At our request, the buyer must return these items to us in full and destroy any copies made if they are no longer required in the normal course of business or if negotiations do not lead to the conclusion of a contract. This does not include the storage of electronically provided data for the purpose of standard data backup.

(5) If more than one month elapses between the conclusion of the contract and the delivery, without the factory being responsible for the delay in delivery, the factory shall be entitled to a reasonable price increase in the event of unforeseeable changes in market prices as a result of collective agreements, changes in material or energy prices and increases in freight prices.
The price adjustment will be made in proportion to the price change. Price increases and price reductions of individual price elements are offset against each other. If the total cost reduction exceeds the total price increase, the factory undertakes to make a corresponding price reduction.
If the price increase is significant, the customer has the right to terminate the contract with immediate effect. A price increase of at least 10% is considered significant.

§ 3 Delivery Period and Delay in Delivery

(1) The delivery period will be agreed upon individually or specified by us upon acceptance of the order. Any other delivery and service deadlines and dates promised by us are always approximate, unless a fixed deadline or date has been expressly promised or agreed upon. If shipment has been agreed upon, delivery periods and dates refer to the time of handover to the freight forwarder, carrier, or other third party commissioned with the transport.

(2) Compliance with agreed delivery deadlines requires the timely receipt of all documents, necessary permits, and approvals to be provided by the Buyer, in particular plans, as well as compliance with the agreed payment terms by the Buyer. If these requirements are not met in a timely manner, the deadlines shall be extended accordingly, unless we are responsible for the delay.

(3) The Buyer is obligated to facilitate prompt, proper, and safe unloading and acceptance, in particular, risk-free access to the construction site and unloading in the immediate vicinity of the construction site at a horizontal unloading area. In the event of non-compliance with this requirement, it is up to the driver whether to unload the delivery (further away) or return it to the factory. The Buyer shall bear the costs and risk of damage in this regard. Claims for damages by the Buyer are excluded unless otherwise stipulated by mandatory statutory provisions.

(4) We shall not be liable for impossibility of delivery or delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the non-delivery, incorrect delivery or late delivery by suppliers) for which we are not responsible. If such events make delivery or service significantly more difficult or impossible for us and the hindrance is not merely temporary, we are entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or service periods or dates shall be extended or postponed by the duration of the hindrance plus a reasonable start-up period. If the buyer cannot reasonably be expected to accept the delivery or service due to the delay, he may withdraw from the contract by written declaration after giving notice of his right of withdrawal at least two weeks in advance.

(5) We are entitled to make partial deliveries if

• the partial delivery can be used by the buyer within the scope of the contractually intended purpose,

• the delivery of the remaining ordered goods is ensured and

• the buyer does not incur any significant additional expenditure or costs as a result (unless we agree to cover these costs).

(6) Our delay in delivery shall be determined by statutory provisions. In any case, however, a reminder and setting of a deadline by the buyer are required. If we are in default or if a delivery or service becomes impossible for us, regardless of the reason, our liability for damages is limited in accordance with Section 12 of these Terms and Conditions.

(7) The rights of the buyer according to Section 10 of these General Terms and Conditions and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and/or subsequent performance), remain unaffected.

§ 4 delivery, transfer of risk, acceptance, default in acceptance

(1) Deliveries and subsequent deliveries shall be made from a factory or warehouse designated by us (place of performance). At the buyer's request and expense, the goods will be shipped to another destination (sale by dispatch). Unless otherwise agreed, we are entitled to determine the method of shipment (in particular the transport company, shipping route, and packaging).

(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover; in the case of a sale by dispatch, however, upon delivery of the goods to the forwarding agent, carrier, or other person or institution designated to carry out the dispatch. This shall also apply if partial deliveries are made or if we have undertaken other services (e.g., shipping or installation). If dispatch or handover is delayed due to circumstances attributable to the buyer, the risk shall pass to the buyer from the day on which the delivery item is ready for dispatch and we have notified the buyer thereof. The buyer is responsible for insuring the goods against theft, breakage, fire, water damage, or other insurable risks.

§ 5 Deadline for delivery and damages due to delay

(1) After expiry of the agreed delivery period, a grace period of 14 days shall commence without further notice, unless the requirements of Section 3, Paragraph 4 are met. After expiry of this grace period, the buyer is entitled to grant us a grace period of 4 weeks in writing. After expiry of this period, the buyer is entitled to withdraw from the contract if he threatened to do so when setting the grace period. If no such notice is given when setting the grace period, we shall be released from our obligation to deliver after expiry of this period, at our discretion, if the buyer does not respond to our request within the grace period as to whether he insists on contract fulfilment.

(2) No fixed-term transactions are made.

(3) We shall only be liable for damages claimed by the buyer in the event of a delivery delay, which also includes claims for reimbursement of expenses pursuant to Section 284 of the German Civil Code (BGB), if the delivery delay was caused intentionally or through gross negligence. This limitation of liability shall not apply in the event of injury to life, body, or health, breach of legally binding warranties, or fraudulent conduct or gross negligence. Furthermore, claims for compensation for breaches of essential contractual obligations are limited to the typical, foreseeable damage; in the case of slight negligence, to 50% of the foreseeable damage; unless we were informed of the possibility of greater damage when placing the order.

§ 6 Obligation to accept

The buyer is obligated to pay the agreed purchase price and accept the purchased item. If the buyer does not accept the goods, has already announced their refusal to accept before delivery, or returns delivered goods without authorization, or if we are entitled to non-delivery according to Section 8, we have the right to request the buyer to fulfill the contract within a period of 12 days. The buyer shall bear the costs for storage, insurance, and other protective measures incurred due to the delayed acceptance. The buyer is entitled to prove that the actual damage was lesser.

§ 7 prices and terms of payment

(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply, ex works or warehouse specified by us, plus statutory VAT.

(2) In the case of a sale by dispatch (Section 4 (1)), the buyer shall bear the transport costs ex works or warehouse and the costs of any transport insurance taken out by us at the buyer's request. Any customs duties, fees, taxes, and other public charges shall be borne by the buyer.

(3) The purchase price is due and payable within 14 calendar days of invoicing and delivery or contractually agreed provision at the factory or warehouse or acceptance of the goods, unless otherwise agreed. However, we reserve the right at any time, even within the framework of an ongoing business relationship, to make a delivery, in whole or in part, only against advance payment. We will declare a corresponding reservation with the order confirmation at the latest.

(4) Upon expiration of the above payment deadline, the buyer shall be in default. During the period of default, the purchase price shall bear interest at the applicable statutory default interest rate. We reserve the right to claim further damages for default. With regard to merchants, our claim to commercial default interest (Section 353 of the German Commercial Code) remains unaffected.

(5) The Buyer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer's statutory counterclaims remain unaffected.

(6) If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the buyer's inability to perform, we shall be entitled to withdraw from the contract in accordance with the statutory provisions (Section 321 of the German Civil Code). In the case of contracts for the manufacture of non-fungible items (custom-made items), we may declare withdrawal immediately; the statutory provisions regarding the dispensability of setting a deadline remain unaffected.

§ 8 Default of payment

(1) In the event of default in payment, we are entitled, in accordance with Section 288 (2) of the German Civil Code (BGB), to demand statutory default interest of 9 percentage points above the base interest rate or a demonstrably higher damage caused by default.

(2) In the event of default in payment due to exceeding the payment deadline, we shall have the following further rights:

a) We are entitled to refuse further deliveries under current contracts. Delivery deadlines for current, not yet fulfilled contracts will be suspended retroactively, without the need for special notice, for the period from the date of default until full payment.

b) We are entitled to demand immediate payment before delivery of the goods for any outstanding deliveries from all current contracts, without prejudice to the payment term.

c) We may exercise the rights agreed in Section 9 (retention of title) and/or withdraw from all existing contracts in whole or in part.

(3) We shall also be entitled to these rights if the Buyer’s financial circumstances deteriorate significantly (e.g., suspension of payments, filing for insolvency, enforcement measures, protests of checks or bills of exchange, cessation of business).

(4) In the event of default in payment, the buyer shall bear the costs and fees incurred by us. Furthermore, the buyer shall pay all costs incurred by us in engaging a lawyer, including a correspondent lawyer.

§ 9 Retention of title

(1) We reserve title to the goods sold until all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.

(2) The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The buyer must notify us immediately in writing if an application for the opening of insolvency proceedings has been filed or if third parties (e.g., seizures) are made to the goods belonging to us.

(3) In the event of breach of contract by the buyer, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and demand the return of the goods based on our retention of title. If the buyer fails to pay the purchase price due, we may only assert these rights if we have previously unsuccessfully set the buyer a reasonable deadline for payment or if such a deadline is dispensable under the statutory provisions.

(4) Until revoked in accordance with (c) below, the Buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.

(a) The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we are considered the manufacturer. If the ownership rights of third parties remain in place during processing, mixing or combining with goods of third parties, we acquire co-ownership in proportion to the invoice values ​​of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title.

(b) The buyer hereby assigns to us, as security, any claims against third parties arising from the resale of the goods or products, in full or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The buyer's obligations set forth in paragraph 2 also apply with regard to the assigned claims.

(c) The buyer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the buyer meets his payment obligations to us, there is no lack of performance, and we do not assert the retention of title by exercising a right pursuant to paragraph 3. However, if this is the case, we may demand that the buyer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment. Furthermore, in this case, we are entitled to revoke the buyer's authorization to further sell and process the goods subject to retention of title.

(d) If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the Buyer's request.

§ 10 Defect investigation

The buyer is obligated to inspect the goods immediately upon receipt and to report any defects – including the delivery of goods that differ from the order – within a deadline of 7 days after receipt of the goods. In the case of hidden defects, the deadline begins upon discovery. Our field staff are not authorized to accept complaints. After this deadline, complaints are excluded – even through recourse under Section 478 of the German Civil Code (BGB). The same applies if the delivered goods have been modified by the buyer.

§ 11 Warranty and material defects

(1) Customary or minor, technically unavoidable deviations in quality, dimensions, or weight, as well as customary breakage (up to 5% for bricks), shall not be considered defects. Public statements or claims by our suppliers or third parties shall not be considered a quality agreement.

(2) The use of natural additives may lead to variations in the quality of our products, such as efflorescence, color variations, burrs, pores, cracks, dimensional and angle tolerances, weight specifications, shrinkage cavities, or surface cracks. Deviations, changes, or tolerances – with the exception of incorrect deliveries – do not constitute deviations from the agreed or usual quality, provided the relevant DIN standards are met. Samples are therefore considered non-binding viewing examples. Minor deviations from these do not constitute a defect, provided the item is suitable for the intended or customary use under the contract and has a quality that is customary for items of the same type and that the buyer can expect given the nature of the item.

(3) If the buyer has proven that they have fulfilled their obligations under Section 377 of the German Commercial Code (HGB), we have the right, in the case of justified complaints, to repair the goods or provide a replacement, at our discretion. We are entitled to subsequent performance within a period of 30 days from the return of the defective item. The buyer's warranty rights are forfeited if, in the event of a complaint, the buyer does not make the goods available to us within a period of 30 days despite an express request. If subsequent performance fails, the buyer is entitled either to withdraw from the contract or to reduce the purchase price; however, this is limited to the defective goods.

(4) If an inspection of the defective goods by us is necessary, the purchaser must grant us the necessary time and opportunity to do so. The purchaser is obligated to either hand over the goods for inspection purposes or to make them available for inspection upon installation.

(5) If we deliver replacement goods, the buyer must return the defective goods to us in accordance with statutory provisions. At our request, a defective delivery item must be returned to us freight-free. We will bear or reimburse the expenses required for inspection and subsequent performance, in particular transport, travel, labor, and material costs, as well as any dismantling and installation costs, in accordance with statutory provisions if a defect actually exists. Otherwise, we may demand reimbursement from the buyer for the costs incurred as a result of the unjustified request for defect rectification (in particular inspection and transport costs), unless the lack of defect was not recognizable to the buyer.

(6) In the event of defects in components from other manufacturers that we are unable to remedy due to licensing or practical reasons, we will, at our discretion, assert our warranty claims against the manufacturers and suppliers for the purchaser's account or assign them to the purchaser. Warranty claims against us for such defects shall exist under the other conditions and in accordance with these General Terms and Conditions only if the legal enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or, for example, due to insolvency, is futile. During the duration of the legal dispute, the limitation period for the purchaser's relevant warranty claims against us is suspended.

(7) In urgent cases, e.g., if operational safety is at risk or to prevent disproportionate damage, the buyer has the right to remedy the defect himself and to demand reimbursement from us for the objectively necessary expenses. We must be notified immediately, if possible in advance, of such self-repair. The right to self-repair does not apply if we would be entitled to refuse corresponding subsequent performance under statutory provisions.

(8) Claims for material defects shall not apply to natural wear and tear of the purchased item or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating materials, or due to special external influences not assumed under the contract. If improper modifications or repairs are carried out by the buyer or third parties, these and the resulting consequences shall also not be considered material defects. The following additional circumstances lead to the exclusion of warranty and liability claims:

• improper use of the purchased item

• improper assembly or installation

• Failure to observe the instructions regarding transport, storage, assembly, commissioning, operation and maintenance, unauthorized structural changes

(9) If the buyer has installed the defective item in accordance with its type and intended use into another item or attached it to another item, we are entitled, in addition to liability for the defective item, to refer the buyer to reimbursement of expenses in accordance with Section 439 (3) of the German Civil Code (BGB). Any rework by us as the seller instead requires our consent. Expenses within the meaning of Section 439 (3) of the German Civil Code (BGB) do not include costs incurred due to the total or partial destruction of other parts that are not part of the delivery item during installation or removal; unless we can be proven to have acted with culpable intent or gross negligence.

10) In the event of disproportionate costs for subsequent improvement, we are entitled to refuse subsequent performance or the type of subsequent performance as well as the resulting claim for reimbursement of expenses in accordance with Section 439 (4) of the German Civil Code (BGB).

(11) If transport, labor and material costs increase because the purchased item has been transported to a location other than the contractually agreed destination, the resulting increases or expenses shall not be borne by us.

(12) In the case of justified complaints about defects, the Buyer may only withhold payments to an extent that is proportionate to the defects encountered and the necessary repair costs. If further payment obligations are not fulfilled,

• we are entitled to refuse subsequent performance until the justified claim has been paid;

• a right of recourse according to Section 478 of the German Civil Code (BGB) is excluded.

(13) If subsequent performance fails, or a reasonable period set by the Buyer for subsequent performance has expired without success, or is dispensable under statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an insignificant defect.

(14) In the case of defects, the Buyer’s claims for damages or reimbursement of wasted expenses shall only exist in accordance with Section 12 and shall otherwise be excluded.

§ 12 Limitation of Liability

If our subsequent performance fails, the buyer may not assert any further claims beyond the rights under Sections 437 Nos. 2 and 3 of the German Civil Code (BGB), regardless of the legal basis, including tort. We are not liable for damages not caused to the delivered item itself, nor for lost profits or other financial losses of the buyer. To the extent that our liability is excluded or limited, this also applies to the personal liability of legal representatives, salaried employees, employee representatives, and vicarious agents. This exclusion of liability does not apply to injury to life, limb, or health if damage was caused intentionally or through gross negligence, or if we have provided a guarantee of quality and we can be accused of fraudulent conduct. It also does not apply to claims pursuant to Sections 1 and 4 of the Product Liability Act. If we have negligently breached a primary obligation or any other material contractual obligation, our liability for compensation is limited to the foreseeable damage typical for the contract, and in the case of slight negligence to 50% of the foreseeable damage.

§ 13 property rights

(1) We guarantee, in accordance with this Section 13, that the delivery item is free from any third-party industrial property rights or copyrights. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it for the infringement of such rights.

(2) In the event that the delivery item infringes a third-party industrial property right or copyright, we will, at our discretion and at our expense, modify or replace the delivery item in such a way that no third-party rights are infringed, while the delivery item continues to fulfill the contractually agreed functions, or we will grant the buyer the right of use by concluding a license agreement. If we fail to do so within a reasonable period of time, the buyer is entitled to withdraw from the contract or to appropriately reduce the purchase price. Any claims for damages by the buyer are subject to the restrictions of Section 9 of these General Terms and Conditions.

(3) In the event of infringements of rights by products supplied by us from other manufacturers, we will, at our discretion, assert our claims against the manufacturers and suppliers for the account of the buyer or assign them to the buyer. Claims against us in these cases shall only exist in accordance with this Section 13 if the legal enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or, for example, due to insolvency, is futile.

§ 14 Final provisions

(1) These General Terms and Conditions and the contractual relationship between us and the buyer shall be governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Paderborn. The same applies if the buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, in all cases, we are also entitled to bring legal action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement, or at the buyer's general place of jurisdiction. Priority statutory provisions, in particular those relating to exclusive jurisdiction, remain unaffected.

(3) To the extent that the contract or these General Terms and Conditions contain any gaps in the provisions, the legally effective provisions which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of the gap in the provisions shall be deemed to have been agreed upon to fill these gaps.

August Lücking GmbH & Co. KG
Elsener Str. 20, 33102 Paderborn
Version of 2020