About us

Sales, delivery and payment terms of LEWA Attendorn GmbH as at 1 April 2007

I. Applicable conditions, execution of contract

1.
The following terms and conditions govern orders placed by and deliveries to “entrepreneurs” in accordance with § 14 BGB and not “consumers” in accordance with § 13 BGB.

2.
All orders are exclusively subject to the following provisions. Any other purchasing conditions are not legally effective, even if not explicitly waived by our side. By placing the order and/or accepting the delivery, the purchaser accepts our terms and conditions.

3.
The order becomes binding upon us with our written confirmation or at the beginning of order execution.

II. Quotes, cost estimates, prices, price adjustment reservation

1.
Our quotes, as well as prices contained in catalogues, printed publications, letters etc. as well as delivery details are not binding; cost estimates are given without engagement.

2.
Our prices are to be understood as being in Euros, ex works including VAT at the legal rate, excluding packaging, freight, customs duty and insurance, which will be billed separately as applicable.

3.
For all orders including blanket purchase orders and apportioned contracts, where delivery is made as defined in the contract or at the purchaser’s request later than four months after placing the order, we may invoice to the purchaser any material price and wage increases within the framework of and in compensation of price increases occurring between the signing of the contract and delivery.

4.
If between signing and executing the delivery contract, legal amendments concerning VAT at the legal rate enter into force, we may collect this amended VAT amount, even for partial deliveries. This also applies to the definition of rates of remuneration for export or exporter remuneration.

III. Despatch, packaging, cost, transfer of risk

1.
Despatch is made at the purchaser’s cost and risk. We are not responsible for damage or loss occurring during transport, even in the event of delivery carriage paid. Unless otherwise agreed, we select the type of packaging and the shipping mode.

2.
If shipping is delayed for reasons beyond our control, the risk shall be transferred to the purchaser at the date of notification of readiness for despatch.

IV. Terms of payment and implication in the event of non-compliance, offsetting

1.
Our receivables are payable postage paid and free of charge within 30 days from the date of receipt of our invoice or an equivalent listing of claims; however at the latest 30 days after the due date and receipt of the service. (Alternatively: our receivables are payable within 14 days from the date of receipt of our invoice or a listing of claims  less a 2% cash discount or within 30 days net without deduction, however at the latest 30 days after the due date and receipt of the service). Thereafter we will invoice interest at an annual rate of 8 percentage points above the basic rate, no further reminder being required.

2.
For bills and cheques, payment is deemed to be made after they have been cleared. Any discounts and charges shall be borne by the purchaser.

3.
We accept bills of exchange or cheques only on account of performance, bills are only accepted on the basis of a separate agreement. Independent of the term of accepted bills or any agreed respite, our claims become due immediately if the purchaser does not comply with terms of payment or if circumstances arise that justify doubts as to the creditworthiness. In this event, we are authorized to make delivery only against payment in advance or provision of securities and to withdraw from the contract after an appropriate period of grace and/or claim damage.

4.
The purchaser may set off our claims only with undisputed or legally effective counterclaims.

V. Delivery terms and liability, Force Majeure, Partial deliveries, Deterioration of financial position

1.
The delivery term starts once all the details concerning the execution, in particular technical matters, have been clarified, both parties have agreed to the terms of business and the purchaser has made any required down payment. The delivery term is complied with when the delivery item has left the works or the purchaser has been notified of readiness for despatch until the expiry of such term.

2.
If for reasons attributable to us our delivery is not made in time nor within a period of grace set by the purchaser, the purchaser may withdraw from the contract concerning the ordered delivery.

3.
Claims for damage due to late fulfilment or non-fulfilment of the contract are subject to the following provisions: if we have delayed due to simple negligence, the purchaser’s claim for replacement is limited to damage due to delay amounting to a maximum of 0.5% per completed week of delay and a maximum of 5% of the invoice amount for the order affected by the delay.

If the purchaser is entitled to claim compensation for damage instead of performance, we are liable for damage, even in the event of simple negligence, if damage to third party property is involved. However any claims are limited to fifty percent of the value of the order.

4.
If Force Majeure or circumstances beyond our control (e.g., interruption of operations, strike) impede the completion of the order in good time, we are entitled to appropriately postpone the fulfilment of any accepted obligations or to withdraw from the contract in whole or in part if performance becomes impossible due to such circumstances. The same applies if materials ordered from our suppliers for execution of the order are not received or not received in good time for reasons beyond our control. Such withdrawal requires that we inform the purchaser immediately about the non-availability and refund any payment made by the purchaser without delay. In this event, any claims for damage are ruled out.

5.
Partial deliveries are permissible.

6.
In the event of a major deterioration in the purchaser’s financial position occurring or becoming known to us after the signing of the contract, we are entitled to refuse performance and to request that the purchaser removes any risk to the contract by providing a suitable security. If the purchaser does not comply with the requirement to provide a security within an appropriate period of time, we may withdraw from the contract and/or claim compensation for damage.

VI. Notice of defects, claims for defects, liability

1.
Notwithstanding any additional inspection and notice obligations existing for a bilateral trade transaction ((§ 377 HGB), the purchaser must verify the delivered goods for obvious (visible) defects and shall notify us in writing of any complaints due to obvious defects including complete incorrect deliveries within five working days after the receipt of the goods and for defects which only become obvious later, within five working days after they have been identified by the purchaser; otherwise the goods are deemed to be accepted, including any visible defect and the purchaser has no further entitlement in this respect.

For justified notices of defects, we are obliged to repair the goods supplied free of charge or to provide a replacement at our discretion. If after two attempts, the repair or replacement has failed or if we refuse to replace or repair without justification or cause an unacceptable delay, the purchaser may at his/her discretion claim a price reduction or, if the notice of defects does not apply to construction work, cancel the contract.

2.
Subject to the provisions of paragraph VII (other liability), claims for damage are subject to the following: in the event of a breach of primary contract obligations, we are liable for claims for damages instead of performance in the event of simple negligence; however any claims are limited to fifty percent of the value of defective items, unless we have fraudulently concealed the defect or have guaranteed the character of the item.

3.
Any notice of defect is not valid if the defect is due to non-compliance with operating, maintenance or installation instructions, notwithstanding any unsuitable or inappropriate use, incorrect or negligent treatment by the purchaser, natural wear and tear or interventions to the delivered item by the purchaser or by third parties.

VII. Other liability (disclaimer)

1.
We do not accept any liability beyond the above claims for any delay or notice of defect unless the damage is due to a grossly negligent breach of duty on our part or intentional or grossly negligent breach of duty by our legal representative or agent or an injury of life, body or health is involved which is based on a gross negligent breach of duty on our part or intentional or negligent breach of duty by our legal representatives or agents or damage is involved which is usually and typically covered by a third party liability insurance to be taken out by us for appropriate conditions. This applies in particular to claims for damages resulting from fault prior to or during the signing of the contract, a breach of secondary contractual duties and claims for tort.

2.
Claims according to ProdHaftG (Product Liability Act) and from own guarantees remain unaffected.

VIII. Property rights, tools, models and drawings

1.
If a delivery is made according to a drawing or other purchaser specifications, he/she shall be responsible for its correctness and for not infringing third party property rights.

2.
Tools, moulds, models and devices required for ordered goods may be invoiced by us in full or on a pro-rata-basis. In this context, it is agreed that these tools, moulds, models and devices which are fully paid by the purchaser become the purchaser’s property as soon as the agreed remuneration has been paid in full. If the purchaser has made a down payment, the items become the purchaser’s co-property on a pro-rata basis of the agreed remuneration against the down payment. We will store these items free of charge for the purchaser. We are under the obligation to deliver them only after completion of the order.

IX. Reservation of title

1.
We reserve the title to the delivered item (retention of title goods) until our claims towards the purchaser resulting from the business relationship, including future claims from contracts signed at the same time or later have been settled. In the event of a current account, retention of title goods and all rights are deemed to be security for our claim, including interest and cost.

In the event of distraints or other third party intervention, the purchaser shall notify us forthwith.

2.
The purchaser may process and resell the delivered item in the course of regular business. This right ends when the purchaser is in default or ceases payment or if insolvency proceedings are opened in respect of his/her assets. He/she is under the obligation to resell retention of title goods only with a reservation of title and to make sure that claims resulting from the resale pursuant to chapters 5 and 6 are transferred to us. The use of retention of title goods to fulfil contracts for work or contracts for work and materials are also considered resale of retention of title goods. He/she must not otherwise dispose of retention of title goods, in particular not pledge, chattel or mortgage them.

Assignment of claim from the resale of our retention of title goods is not permissible except within the framework of true factoring of which we are notified and for which the factoring proceeds exceed the value of our secured claim. Our claim becomes immediately due when the factoring proceeds are credited.

3.
By processing retention of title goods, the purchaser does not acquire ownership in the new item as per § 950 BGB. Processing or redesigning is made on our behalf without being binding upon us. Processed goods are considered as retention of title goods.

4.
When processing, combining and blending retention of title goods with other items, we have co-ownership in the new item on a pro-rata basis of the invoice value of retention of title goods to the invoice value of the other processed goods. If our retention of title becomes void by combining, blending or processing, the purchaser hereby assigns to us his title and expectant rights in relation to the new item to the amount of the invoice value of the retention of title goods, in the event of processing on a pro-rata basis of the invoice value of retention of title goods to the invoice value of the other processed goods, and shall store the goods free of charge on our behalf.   Our co-ownership rights are considered as retention of title goods.

5.
The purchaser’s claims from the resale of retention of title goods are hereby transferred to us. They serve as a security to the same extent as the retention of title goods.

6.
If retention of title goods are resold by the purchaser together with other items, he assigns to us claims from the re-sale on a pro-rata basis to the invoice value of retention of title goods to the invoice value of the other items. When re-selling goods for which we have co-ownership rights, as defined in chapter 4, a co-ownership portion according to the claim is transferred to us.

7.
At our request, the purchaser shall submit a detailed list of claims including the names and addresses of the purchaser, inform them about the transfer of such claims and provide any information required to enforce such transferred claims. The purchaser authorizes us to inform the purchaser of such transfer and to collect claims ourselves as soon as he/she is in default of payment or his/her financial position deteriorates. We may request that the inventory of transferred claims be checked by our representatives, based on the purchaser’s books. The purchaser must provide a list of any remaining retention of title goods.

8.
If the value of securities exceeds the secured claims altogether by more than 15%, we must at the purchaser’s request release securities at our discretion, taking account of the purchaser’s interest. For basic and secondary retention of title, the value of the securities is considered to be the invoice value for which the purchaser purchases the goods with us, in the event of an extended reservation of title, it is the invoice value at which the reseller resells our goods.

9.
For bills, cheques etc., payment is deemed to be made by the purchaser after they have been cashed. Cheques are only accepted on account of performance. Payments made against delivery of a bill issued by us are deemed to be settled if a cheque and/or bill recourse to us is ruled out. Notwithstanding any additional security rights, any securities provided to us remain valid until this point in time.

10.
If we have withdrawn from the contract, we may request surrender of the delivered item based on reservation on title. We are entitled to withdraw from the contract notwithstanding any additional requirements defined in § 323 BGB and in particular without a period of notice from that point in time when the purchaser is in default of payment in whole or in part. The same applies if the purchaser ceases payment or if a petition for opening of composition or insolvency proceedings over his/her assets is filed. Any cost incurred as a result of the repossession of the delivered item shall be borne by the purchaser. We may freely use the delivered item which we have taken back.

X. Place of performance, Place of venue, Applicable law

1.
The place of performance is the place of our headquarters.

2.
The place of venue for contracts with registered trades and public entities or public funds shall be the court competent at our headquarters.

3.
All deliveries and services are subject to German law except for the United Nations Convention On Contracts For The International Sale Of Goods. The contract language is German. If the contract parties use another language, the German wording shall have priority.

XI. Severability Clause

If any provision herein and/or in other agreements is or becomes invalid, such provision shall not affect the validity of the remaining provisions. The contract partners are under the obligation to replace the invalid provision by a valid provision which meet as closely as possible the economic purpose of the invalid one.

Purchasing and order conditions of LEWA Attendorn GmbH

I. Applicable conditions, execution of contract

1.
All our orders are exclusively subject to the following provisions. Any other delivery conditions are not legally effective, even if not explicitly waived by our side. By accepting the order and/or accepting the delivery, the supplier accepts our terms and conditions.

2.
Orders are only binding upon us when being made on an order form with an appropriate signature.

3.
If our orders are not confirmed in writing within 8 days, we may withdraw from the order. The order confirmation must contain the price and delivery date. In all correspondence our order number must be quoted. The supplier must fully comply with our order and must explicitly notify us of any deviations. The same applies if we receive a quote from the supplier.

4.
All agreements made between us and the supplier for execution of the contract are defined in writing in the contract.

5.
Suppliers’ quotes are free of charge and not binding upon us.

6.
Within the framework of reasonableness for the supplier, we may request a modification of the delivery item design and execution. Effects must be appropriately agreed, in particular any price reduction or extra price and impact on the delivery date.

7.
Without our approval, the supplier must not subcontract our orders to third parties; otherwise we are entitled to withdraw from the contract in full or in part and to claim compensation for damages.

II. Delivery, delivery term

1.
Our specifications, drawings, etc. must be fully complied with. In the event of excessive delivery beyond what is commercially usual, we reserve the right to return the excess material at the supplier’s cost. Partial deliveries require our approval.

2.
Agreed delivery dates are binding and must be complied with. As soon as the supplier sees that compliance with his/her contractual obligations is impossible in whole or in part or is not possible in good time, he/she shall immediately notify us in writing, stating the reasons for this being impossible and stating the expected delivery date.

3.
If the supplier fails to deliver by the agreed deadline, he/she shall be liable for any damage caused by the delay. Furthermore, we may claim compensation for damages instead of delivery and/or withdraw from the contract in whole or in part if we have set the supplier an appropriate period of grace but the supplier still fails to provide the delivery or fails to provide delivery as due within that period.

III. Packaging

Packaging is invoiced at cost price unless it has been included within the agreed price. The supplier shall select the type of packaging which offers best value for money. If the packaging cost invoiced is excessive, the difference will be deducted by us. For packaging material which is returned to the supplier, we will deduct 2/3 of the invoiced packaging cost. Any damage resulting from inappropriate packaging shall be borne by the supplier. If packaging provisions are not complied with, e.g., the use of pallets, we are authorized to deduct any resulting additional cost from the invoice.

IV.  Place of destination, risk, forwarding instructions

1.
Unless otherwise agreed, delivery shall be made Delivery Duty Paid (DDP according to Incoterms 2000), including packaging, to the place of destination defined by us. The supplier accepts the risk for any accidental loss or deterioration to the delivered items until the goods have been accepted by us or our representative at the place of destination as defined in the order.

2.
Directly after despatch the supplier shall send us the shipping note, which must include the detailed designation, quantity, weight (gross and net), type and packaging of goods for the items to be delivered. If the required shipping documents are not submitted in good time for the delivery or the above information is missing from the shipping documents so that delivery cannot be identified or handled, the goods shall be stored at the supplier’s cost and risk until  the correct and complete shipping documents have been received.

V. Acceptance

In the event of Force Majeure, strike, lockout, catastrophes and other circumstances beyond our control which mean we are unable to accept delivery in good time, we are entitled to postpone our acceptance obligation accordingly or to withdraw from the order in whole or in part if acceptance and use become impossible or unreasonable. In this event, we will notify the supplier forthwith. Any related claims for damages are ruled out.

VI. Invoice, payment

1.
Invoices shall be submitted in duplicate and must quote order number, order date and product number.

2.
Unless another payment term has been explicitly agreed, payment shall be made as follows: invoices which have a due date which falls between the 1st and 15th of a month will be paid on the 25th of that same month; invoices which have a due date which falls between the 16th and the 31st of a month will be paid on the 10th of the following month less a 3% cash discount. Any other agreement relating to discounts, bonuses etc. shall remain unaffected. The beginning of the payment term depends on the acceptance of goods and availability of an auditable invoice. In the event of premature delivery, the time between the actual delivery and the agreed or specified delivery date shall not be considered for the purpose of defining the payment term. If longer payment terms have been agreed on a case by case basis, these shall have priority over the above regulations.

3.
When the invoice amount is paid prior to receiving the goods, payment is made under reservation of receipt of goods; the right to give notice of defects shall not be affected by premature payment.

VII. Notice of defects, liability for defects of quality and defects of title and other breaches, liability period

1.
We are not obliged to carry out incoming goods inspection; we will carry out random sampling and inspect goods for obvious defects. For quantities, dimensions and weights, the values determined by us shall be decisive.

2.
Notices of defects are considered to be served in good time if obvious (visible) defects are notified to the supplier within five working days following receipt of the goods. Defects not identifiable by checks within the framework of regular business (hidden defects) may be notified later, within five working days following the identification of such defects.

3.
The supplier is obliged to provide us with access and possession of goods free from defects of quality and title. Defects of quality are present if the goods at the time of transfer of risk are not of the agreed quality and / or are not fit for the use assumed in the contract and / or do not keep their quality and / or fitness for the usual duration.

4.
In the event of defects of quality and title and other breaches, our claims and rights are those defined by German BGB (Civil Code). In addition to the legal rights, the following is agreed:

If the supplier fails to meet his/her obligation to supplementary performance within an appropriate period set by us, we may carry out the repair ourselves or have it carried out by third parties at the supplier’s cost unless the supplier refuses supplementary performance for justified reasons. § 323 Abs. 2 BGB shall apply accordingly; no period must be defined if supplementary performance has failed or is unacceptable. If supplementary performance work (e.g., sorting, repair) at the place or in the workshop is required when the goods have been shipped according to their intended purpose, the supplier is under the obligation to carry out supplementary performance or have it carried out at this place. In order to avoid line downtime, this shall be carried out immediately without any period of grace being required beyond the related notification. Otherwise we and / or the relevant party within the supply chain may carry out such work or have it carried out at the supplier’s cost.

5.
Our claims resulting from defects of quality and title and other breaches by the supplier shall become time-barred, unless any prolonged legal periods of grace or any prolonged period of grace agreed on a case by case basis apply, and notwithstanding the provisions in chapters 6 and 7. The time bar cannot be earlier than 5 years from delivery to us. This period shall be extended by times during which limitation is impeded.

6.
If legal proceedings are made against us as a result of defects in quality or other breaches due to the supplier, the supplier shall release us from any claims for damages from our contract partner insofar as the supplier is responsible for defects in quality and other breaches of duty. Our claims for damages and release from any damages and expense shall go beyond the liability and limitation periods defined in paragraph 4, however, by a maximum of 10 years from the legal beginning of limitation, as far as we are responsible for goods purchased from the supplier and resulting damages and expenses for reasons which are within the supplier’s control. Any claims for breaches of duty by the supplier which we notify within the liability and limitation periods shall become time-barred not earlier than 3 months after filing such notification.

7.
Any additional claims and extended limitation periods pursuant to ProdHaftG (German Product Liability Act) resulting from tort, malicious acts and guarantees remain unaffected. The supplier undertakes to keep all design and production documents relating to supplied goods for a period of 11 years and to make them available to us at any point in time if legal proceedings are made against us under the Product Liability Act.

VIII. Third party property rights

The supplier is responsible for the delivered item being free from third party rights.

IX. Secrecy, drawings, models, tools

1.
The contract parties undertake to treat confidentially all commercial and technical details which are not publicly known and which they get to know within the framework of the business relationship.

2.
Drawings, models, tools, jigs, samples and other documents which we make available to the supplier for the execution of orders shall be treated confidentially and may only be used for our orders. They must neither be copied nor be made available to third parties. These items remain our property. Any goods produced using items these must not be handed out to third parties whether as semi finished or finished goods; the same goes for parts which the supplier has developed based on our specification.

3.
Subsuppliers must be placed under the same obligation.

4.
If the supplier produces models, tools or drawings required for handling the order, these must be treated with the same confidentiality. It is agreed that these items become our property once we have paid the agreed price or that we become co-owners once we have made a down payment, on a pro-rata basis of the agreed price against the down payment. The supplier shall keep these items free of charge for us. We are authorized to seize such items if the supplier is threatened by a levy of execution or insolvency is filed in regard of his/her assets. These items must be delivered to us after completion of the order.

X. Assignment, reservation of title

1.
Rights and duties from our orders must not be assigned or transferred to third parties. Except in the event of an extended reservation of title, the supplier must not assign to third parties any receivables from us.

2.
The supplier reserves the title to the delivered items until his/her receivables from the business relationship with us have been fully settled. For current accounts, reservation of title is deemed as a security for the account balance.

We may process and resell the delivered item in the course of regular business. The use of retention of title goods to fulfil contracts for work or contracts for work and materials is also considered resale of retention of title goods. We are not authorized to chattel mortgage or pledge retention of title goods.

When processing, combining and mixing retention of title goods with other items, the supplier has co-ownership in the new item on a pro-rata basis of the invoice value of the retention of title goods to the invoice value of the other processed goods. We hereby assign to the supplier all claims from the resale or transmission on a pro-rata basis insofar as the goods are processed, blended or mixed and the supplier requests co-ownership. If retention of title goods are resold by us together with other items, we assign to the supplier claims from the re-sale on a pro-rata basis to the invoice value of retention of title goods to the invoice value of the other items.

The supplier undertakes to release any securities to which he/she may be entitled insofar as their value exceeds by 10 % the receivables to be secured, as far as these have not yet been settled.

XI. Place of performance, Place of venue, Applicable law

1.
The place of performance is the place of our headquarters.

2.
The place of venue for contracts with registered trades, public entities or public funds shall be the court competent for our headquarters.

3.
All orders, deliveries and services are subject to German law with the exemption of the United Nations Convention On Contracts For The International Sale Of Goods. The contract language is German. If the contract parties use another language, the German wording shall have priority.

XII. Severability Clause

If any provision of these terms and conditions and/or the other agreements is or becomes invalid, the validity of the remaining contract shall not be affected thereby. The contract partners are under the obligation to replace the invalid provision with another one which comes as near as possible to the economic result of the invalid one.