Section 1 Scope, Form

 

(1) These General Terms and Conditions of Purchase (GTCP) shall apply to all business relationships with our business partners and suppliers (“Seller(s)”). The GTCP shall apply only if the Seller is an entrepreneur (Section 14 BGB (German Civil Code)), a legal entity under public law or a special fund under public law.

 

(2) The GTCP shall apply in particular to contracts concerning the sale and/or supply of movable items (“Goods”), irrespective of whether the Seller manufactures the Goods itself or procures them from sub-suppliers (Sections 433 & 650 BGB). Unless agreed otherwise, the GTCP valid at the time of the placement of the order by the purchaser or in the version last imparted to the latter in text form shall also be deemed a framework agreement for future contracts of the same type, without it being necessary for us to make specific reference to them again in each individual case.

 

(3) These GTCP shall apply exclusively. Any deviating, opposing or supplementary General Terms and Conditions of the Seller shall only become components of the contract if and insofar as we have explicitly consented to their validity in writing. This consent requirement applies in every case, for example, even if the Seller, in the context of its order confirmation, should refer to its own GTC and we do not explicitly contradict this.

 

(4) Legally relevant declarations and notifications on the part of the Seller relating to the contract (e.g. the setting of deadlines, reminders, rescissions) are to be issued in writing. Within the meaning of these GTCP, this includes both the written and text form (e.g. letter, e-mail, fax). Statutory form requirements and further proofs, particularly with regard to doubts concerning the legitimacy of the person issuing the declaration, remain unaffected by this.

 

(5) Pointers to the validity of statutory stipulations have only clarifying significance. The statutory provisions therefore apply even without any such clarification, inasmuch as they are not either directly amended or explicitly excluded in these GTCP.

 

Section 2 Contractual Conclusion

 

(1) Our order shall be deemed binding at the earliest upon being submitted or confirmed in writing. The Seller is required to draw our attention to evident errors (e.g. spelling or calculation mistakes) and incompleteness in the order including the order documents for the purpose of completion or correction prior to acceptance; otherwise the contract shall be deemed not to have been concluded.

 

(2) The Seller is required to confirm our order within a period of two weeks in writing or to execute it without reservation, in particular by way of dispatching the Goods (acceptance).

 

(3) Delayed acceptance shall be deemed a new offer and require acceptance on our part.

 

Section 3 Delivery Period and Delivery Default

 

(1) The delivery period indicated by us in the order is binding and represents a cardinal contractual duty. Should the delivery period not be indicated in the order and also not have been agreed elsewhere, it shall be three weeks from the time of contractual conclusion. The Seller is subject to an obligation to inform us without delay in writing, should it be foreseeable that it – on no matter what grounds – might not be able to adhere to agreed deadlines.

 

(2) Should the Seller not fulfil its performance or fail to do so within the agreed delivery period or should it default, our rights – in particular to rescission and compensation – shall be determined by the statutory provisions. The regulations in Para. 3 remain unaffected by this.

 

(3) Should the Seller default, we may – in addition to any further-reaching statutory entitlements – demand flat-rate compensation for the losses suffered due to the delay amounting to 1% of the net price for each complete calendar week, but restricted in total to not more than 5% of the net price of the Goods delivered too late. We shall retain the right to prove that we have suffered higher losses. The Seller shall retain the right to prove that no losses at all or only considerably lower losses have been suffered.

 

Section 4 Performance, Delivery, Transfer of Risk, Default on Acceptance

 

(1) Without our prior written consent, the Seller shall not be entitled to cause the services it owes to be performed by any third parties (e.g. sub-contractors). The Seller shall bear the procurement risk for its services, unless anything to the contrary should be agreed in an individual case (e.g. restriction to stock).

 

(2) Delivery shall take place within Germany “free domicile” to the destination indicated in the order. Should the place of destination not have been indicated and nothing to the contrary agreed, delivery is to be effected to our headquarters in Bramsche. The respective place of destination is also the place of fulfilment for the delivery and for any post-fulfilment (obligation to provide).

 

(3) The delivery is to be accompanied by a delivery note stating the date (of issue and of dispatch), content of the delivery (article number and quantity) plus our order identifier (date and number), gross and net weight and – insofar as the Goods are subject to a traceability obligation – the designation of the consignment (permissible designations: consignment, batch, lot, parcel, minimum durability date). Should the delivery note be missing or if it is incomplete, we shall not bear the responsibility for any resulting delays in the processing and payment processes. A relevant notification of dispatch bearing the same contents is to be sent to us separately from the delivery note. 

 

(4) The risk of the accidental loss and accidental deterioration of the item is transferred to us upon the handing over thereof at the place of fulfilment. Insofar as an acceptance procedure has been agreed, this shall be decisive for the transfer of the risk. Otherwise, the statutory provisions of the laws on contracts for services shall apply accordingly in the event of an acceptance procedure. Handover or acceptance shall be deemed to have taken place if we are in default of acceptance.

 

(5) The statutory provisions apply to default of acceptance being incurred on our part. The Seller must, however, also offer its services explicitly to us if, for an action or cooperation on our part (e.g. supply of material), a defined or definable calendar time has been agreed. If we are in default of acceptance, the Seller may demand compensation for its extra expenditure according to the statutory provisions (Section 304 BGB). Should the object of the contract be a non-fungible item to be manufactured by the Seller (individual production), the Seller shall be entitled to further-reaching rights only if we should have entered into a cooperation obligation and bear the responsibility for such cooperation failing to take place.

 

Section 5 Prices and Terms of Payment 

 

(1) The price quoted in the order is binding. All prices include the statutory rate of VAT, if this is not declared separately.

 

(2) Insofar as nothing to the contrary has been agreed in an individual case, the price includes all services and auxiliary services of the Seller (e.g. assembly, installation) and all auxiliary costs (e.g. correct packaging, transport costs including any transport and liability insurance).

 

(3) The agreed price shall mature for payment within 30 calendar days from full delivery and performance (including any agreed acceptance procedure) and receipt of a correct invoice. Should we effect payment within 14 calendar days, the Seller shall grant us a 3% discount on the net amount of the invoice. In the event of a bank transfer, payment has been effected punctually if our transfer order is received by our bank prior to expiration of the payment deadline; we are not responsible for any delays caused by the banks involved in the payment transaction.

 

(4) We do not owe any default interest. The statutory provisions apply to default on payment. 

 

(5) We are entitled to rights of off-setting and retention and to the plea of a non-fulfilled contract to the extent provided for by law. We are in particular entitled to withhold due payments insofar as we still hold claims against the Seller resulting from incomplete or defective services.

 

(6) The Seller shall hold rights of off-offsetting or retention only in the event of counterclaims that have been legally established or are undisputed.

 

Section 6 Confidentiality and Reservation of Proprietary Rights

 

(1) We reserve proprietary rights and rights of authorship to any illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents as well as to samples, patterns, formulae, etc. (hereinafter: Documents). Documents of this type are to be used exclusively for the contractual performance and to be returned to us after the completion of the contract. The Documents are to be kept secret with respect to any third parties, also after termination of the contract. The obligation to secrecy shall only lapse if and insofar as the knowledge contained in the Documents provided has become generally known. Specific confidentiality agreements and statutory regulations on the protection of confidential information remain unaffected.

 

(2) The above stipulation applies analogously to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, patterns and any other objects we provide to the Seller for manufacturing purposes. Such items are – insofar as they should not be processed – to be stored separately at the Seller’s expense and to be insured to a reasonable extent against destruction and loss.

 

(3) Any processing, mixing or binding (further processing) by the Seller of items provided is undertaken on our behalf. The same applies to the further processing by us of the Goods supplied, so that we shall be deemed the manufacturer and shall acquire ownership of the product upon further processing in accordance with the statutory provisions at the latest.

 

(4) The transfer of the Goods to us is to take place unconditionally and regardless of whether the price has been paid. However, should we, in an individual case, accept an offer of the Seller for transfer subject to the payment of the purchasing price, the reserved proprietary rights of the Seller shall expire at the latest upon payment of the purchasing price for the Goods delivered. In the orderly course of business transactions, we shall also remain empowered to sell on the Goods prior to payment of the purchasing price under anticipatory assignment of the claim resulting from this (alternatively validity of the simple reservation of proprietary rights expanded to include the sale). All other forms of reserved proprietary rights are thus excluded, in particular extended or transferred proprietary rights or reservations of title expanded to include further processing.

 

Section 7 Defective Delivery

 

(1) To our rights in the case of material and legal defects to the Goods (including incorrect and short deliveries as well as improper assembly/installation or defective instructions) and any other violations of duty on the part of the Seller, the statutory provisions and, exclusively to our advantage, the following supplements and clarifications shall apply.

 

(2) According to statutory provisions, the Seller shall in particular be liable for the Goods having the agreed properties at the time of handover to us. In any event, those product descriptions shall be deemed agreements upon properties that – especially by way of designation or reference in our order – are an object of the respective contract or have been incorporated into the contract in the same manner as these GTCP. It does not thereby make any difference whether the product description originates from us, the Seller or the manufacturer. Insofar as the Goods supplied, under statutory regulations, have to be provided with a minimum durability date, the Goods must also, subsequent to delivery, possess a reasonable, standard residual durability of 75% of their total storage lives. The minimum durability date is to be affixed to the delivery so as to be clearly visible. 

 

(3) In the case of Goods containing digital elements or other digital contents, the Seller owes the provision and up-dating of the digital contents in any event insofar as this derives from an agreement upon properties in accordance with Para. 2 or any other product descriptions or the manufacturer or in its order, in particular on the internet, in advertisements or on the label affixed to the Goods.

 

(4) We are not under any obligation to undertake an inspection of the Goods or make any special inquiries about any possible defects at the time of the conclusion of the contract. In partial deviation from Section 442 Para. 1 Clause 2 BGB, we are therefore entitled to unrestricted claims based on defects also in cases in which we failed to gain knowledge of the defect at the time of the conclusion of the contract as a consequence of gross negligence.

 

(5) The statutory provisions (Sections 377 & 381 HGB (German Commercial Code)) apply to the commercial obligation to inspect and notify any defects, subject to the following proviso: our inspection duty is restricted to defects that, during our incoming goods inspection, openly come to the fore upon external appraisal, including that of the delivery documents (e.g. transport damage, incorrect and short deliveries) or which are recognisable during our quality control inspection applying the spot-check procedure. Insofar as an acceptance procedure has been agreed, there is no inspection obligation. It is furthermore a question of the extent to which an inspection is feasible in the normal course of business taking the circumstances of the individual case into account. Our notification obligation for defects discovered at a later date shall remain unaffected. Notwithstanding our inspection duty, our complaint (notification of defect) shall in any event be deemed immediate and in good time if it is dispatched within five working days of its discovery or, in the case of evident defects, of delivery. 

 

(6) Post-fulfilment also encompasses the removal of the defective Goods and renewed incorporation, insofar as the Goods, in accordance with their nature and intended purpose, have been incorporated into another item or affixed to another item before the defect became evident; our statutory entitlement to compensation for relevant expenditure (removal and installation costs) remains unaffected. The Seller shall also bear the necessary expenditure incurred for the purposes of inspection and post-fulfilment, in particular transport, route, labour and material costs plus, if applicable, removal and installation costs, should it be discovered that, in fact, there had not been any defect. In the case of materials that have been mixed with other materials and cannot be restored to their constitutional elements, the supplier shall be liable for all materials used. Our liability for compensation in the event of unjustified demands for the rectification of defects shall remain unaffected; but in this connection we shall be liable only insofar as we have recognised that there had been no defect or failed to recognise that due to gross negligence.

 

(7) Notwithstanding our statutory rights and the regulations contained in Para. 5, the following applies: should the Seller fail to comply with its post-fulfilment obligation, we – at our choice through either rectification of the defect (reworking) or delivery of a defect-free item (substitute delivery) – within a reasonable period of time set by us, shall be entitled to rectify the defect ourselves and to demand the replacement of the expenditure necessary or an appropriate advance for this from the Seller. Should post-fulfilment on the part of the Seller have been unsuccessful or is unacceptable for us (e.g. due to particular urgency, a threat to operational safety or the threatening of disproportionately high losses) there shall be no need to set a deadline; we shall inform the Seller of any such circumstances without delay; if possible, beforehand.

 

(8) Furthermore, we are entitled, according to statutory provisions, to reduce the purchasing price or to rescind the contract in the event of a material or legal defect. We also hold entitlements to compensation for damage and expenditure according to statutory provisions.

 

Section 8 Guarantees, Properties, Demands on Quality and Suppliers, Exclusion of Assignment 

 

(1) The Seller guarantees that all deliveries accord with the specifications of the delivery destination. This applies particularly to any goods-specific quality, packaging, declaration, labelling and safety provisions and all other public law requirements to be adhered to. 

 

(2) The Seller especially guarantees that the Goods it supplies, at the time of the transfer of risk, accord with the legal regulations applicable at the delivery destination (e.g. food regulations or the requirements of the Device and Product Safety Act), the recognised rules of technology and relevant DIN norms, legal guidelines and ordinances and also that, at the time of the transfer of risk, the Goods supplied are marketable at the declared delivery destination in every respect. 

 

(3) This applies regardless of whether the Seller is itself the manufacturer of the Goods delivered or merely acts as a trader in those Goods. 

 

(4) The Seller undertakes to regularly monitor adherence to the aforementioned regulations. We shall only then accept the Seller’s Goods should they satisfy all requirements. The Seller also bears the procurement risk for its services, subject to any other agreements, for example in the case of restriction of the delivery to stocks.

 

(5) We are entitled to cause the contractual products to be inspected. These inspections may also be carried out prior to or during delivery. 

 

a) The Seller grants us in this respect the right to implement, during normal operational and business hours, tours of inspection and quality controls on the Seller’s premises/at the production or warehousing location, either itself or through the agency of a third party (Audit), insofar as it is a matter of Goods that are also manufactured for us.

 

b) The Seller is required, at our request, to make available to us, free of charge, any documents and documentations that affect quality assurance, thereby stating the name of the manufacturer.

 

c) The Seller is required to have any changes in the quality parameters and product compositions for Goods intended for us approved by us beforehand in writing. The Seller is required to present to us up-to-date quality certificates in accordance with contractual agreements at any time and unasked.

 

(6) The Seller and any third parties whose services it uses are subject to an obligation to carry out their entrepreneurial activities strictly in accordance with valid statutory provisions and other regulations. We expect in particular that the principles of our Code of Conduct, retrievable from https://leibergmbh.de/media/2022/02/code-of-conduct-leiber-de-20012022.pdf, and especially Figure III. thereof, will also be followed or introduced by the Seller in the same or a comparable form. The Seller shall furthermore ensure that its own suppliers will also follow or introduce our Code of Conduct or comparable regulations.

 

(7) The Seller shall only be entitled to cause essential obligations arising from the contractual relationship to be carried out by third parties if it has our prior written consent to do so.

 

(8) The Seller is not entitled to assign its claims arising from the contractual relationship to third parties. This shall not apply insofar it should be a matter of monetary claims.

 

Section 9 Supplier Regress

 

(1) We are entitled, without restriction, to our statutorily defined claims to expenditure and regress within a supply chain (supplier regress in accordance with Sections 478, 445a, and 445b or Sections 445c, 327 Para. 5, 327u BGB) in addition to our claims based on defects. We are especially entitled to demand precisely that type of post-fulfilment (reworking or substitute delivery) from the Seller that we owe our own customer in the individual case; in the case of goods containing digital elements or other digital contents this also applies with respect to the provision of necessary updates. Our statutory right of choice (Section 439 Para. 1 BGB) is not restricted by this.

 

(2) Before we recognise or fulfil any claims based upon defects asserted against us by our customers (including refunding of expenditure in accordance with Sections 445a Para 1, 439 Paras. 2, 3, 6 Clause 2, 475 Para. 4 BGB), we shall inform the Seller and ask the latter for a written statement thereby briefly outlining the facts of the matter. Should no substantiated statement be forthcoming within a reasonable period of time and no amicable agreement reached either, the claim based on defects actually granted by us shall be deemed owed to our customer. In such a case, the onus shall be upon the Seller to prove the contrary.

 

(3) Our claims deriving from supplier regress shall also apply should the defective Goods have been combined with any other product, whether by ourselves, our customer or any third party, e.g. by way of incorporation, affixation or installation, or further processed in any other way.

 

Section 10 Manufacturer’s Liability

 

 (1) Should the Seller be responsible for product damage, it must exempt us from any claims asserted by third parties insofar as the cause should be located within its area of control and organisation, and it should be liable in terms of the external relationship.

 

(2) In the context of its exemption obligation, the Seller shall be obliged, in accordance with Sections 683 and 670 BGB, to refund any expenditure resulting from or in connection with any recourse made by third parties including any recalls implemented by us. We shall inform the Seller of the content and extent of any recall measures – insofar as this is possible and reasonable – and grant it the opportunity to make a statement. Further-reaching statutory claims shall remain unaffected.

 

(3) The Seller shall be required to take out a product liability insurance policy with a lump sum cover of at least 10 million EUR per case of damage to persons or property, and to maintain the same.

 

(4) Upon demand, the Seller shall be required to provide, at any time, proof of cover by sending a copy of the relevant liability insurance policy in question together with proof of the extent of the cover.

 

(5) The Seller is under an obligation to inform us without delay of any suits filed against it or of the assertion of any claims that are attributable to a defective product supplied by it (product damage), and to supply us upon demand with all documents necessary for a review and a reaction (e.g. instigation of recall measures). 

 

(6) We shall undertake in consultation with the Seller the necessary informing of the respectively responsible authority according to the provisions of the Device and Product Safety Act or of that act valid at the time the product damage is incurred.

 

Section 11 Protected Rights

 

(1) According to the criteria of Para. (2) below, the Seller guarantees that the Goods supplied by it do not violate the rights of any third parties, in particular no protected rights of third parties located in countries belonging to the European Union or the European Free Trade Area (EFTA) or any other countries in which it manufactures the Goods or causes them to be manufactured.

 

(2) The Seller is under an obligation to exempt us, upon our first written request, from all claims and any consequences deriving from the same, with effect for the past and the future, and on no matter what their legal grounds, that any third parties might assert against us due to the violations of commercial protected rights referred to in Para. (1) above. 

 

(3) This exemption obligation shall not be given inasmuch as we should ourselves have caused or contributed to the claims of third parties against us by gross negligence or wilful intent.

 

(4) This exemption obligation shall also not be given inasmuch as the Seller should prove that it is neither responsible for the violation of protected rights nor could have known about this at the time of the delivery by applying due commercial care and attention.

 

(5) Our further-reaching claims based upon legal defects to the Goods supplied remain unaffected by the above.

 

(6) The exemption obligation of the Seller applies to all expenditure that necessarily accrues to us out of or in connection with recourse made by a third party. 

 

(7) Moreover, all expenditure rendered necessary by recourse made to us by a third party in accordance with Para. (2) above is also to be refunded to us by the Seller.

 

Section 12 Statute of Limitations

 

(1) The reciprocal claims held by the contractual parties shall fall under the statute of limitations according to the statutory provisions, insofar as nothing to the contrary is specified in the following.

 

(2) By way of deviation from Section 438 Para. 1 No. 3 BGB, the general statute of limitations for claims based upon defects shall be 3 years from the transfer of risk. Insofar as an inspection procedure has been agreed, the statute of limitations shall commence at the time of the inspection. The 3-year period shall also apply analogously to claims arising from legal defects, whereby the statutory period of limitations for claims in rem for the restitution of property held by third parties (Section 438 Para.1 No. 1 BGB) remains unaffected. Beyond this, claims based on legal defects shall not under any circumstances fall under the statute of limitations as long as the third party is still able to assert the claim against us – in particular due to the absence of any limitation period.

 

(3) The statutory periods of limitation under commercial law including the aforementioned prolongation apply – to the extent provided for by law – to all contractual claims based upon defects. Insofar as we should also hold non-contractual compensation claims due to any defects, the regular statutory period of limitations (Sections 195 and 199 BGB) shall apply thereto, unless the application of the periods under commercial law should, in an individual case, lead to a longer limitation period.

 

Section 13 Choice of Law and Court of Jurisdiction

 

(1) The law of the Federal Republic of Germany shall apply to these GTCP and to the contractual relationship between us and the Seller under exclusion of international uniform law, in particular of the UN Convention on the International Sale of Goods.

 

(2) Should the Seller be a merchant as defined in the commercial code, a legal entity under public law or a special fund under public law, the exclusive – also international – court of jurisdiction for all disputes arising from the contractual relationship shall be our head office in Bramsche, insofar as the Seller has its domicile in the Federal Republic of Germany or a state belonging to the European Union (EU). We are, however, in all cases also entitled to file a suit at the place of fulfilment for the delivery obligation according to these GTCP or an overriding individual agreement or at the Seller’s general court of jurisdiction. Overriding statutory provisions, in particular concerning exclusive jurisdictions, remain unaffected.

 

(3) Inasmuch as the Seller should not have its domicile in the Federal Republic of Germany or a state belonging to the European Union (EU) the following agreement regarding a court of arbitration is concluded:

 

 

All disputes arising in connection with this contract or concerning its validity shall be decided in accordance with the regulations of the German Institution for Arbitration (DIS), in their version valid at the time of initiation, under exclusion of standard legal procedures. The arbitration proceedings shall be held in Bramsche. The language spoken in the court of arbitration is German. The court of arbitration is required to base its decision upon the agreed substantive law. Decisions will be taken by three arbiters, whereby the president must be qualified to hold the position of a judge.

Section 1 Scope, Form

 

(1) These General Terms and Conditions of Sale (GTCS) shall apply to all business relationships with our customers (“Purchaser(s)”). The GTCS shall apply only if the Purchaser is an entrepreneur (Section 14 BGB (German Civil Code)), a legal entity under public law or a special fund under public law.

 

(2) The GTCS shall apply in particular to contracts concerning the sale and/or supply of movable items (“Goods”), irrespective of whether we manufacture the Goods ourselves or procure them from sub-suppliers (Sections 433 & 650 BGB). Unless agreed otherwise, the GTCS valid at the time of the placement of the order by the Purchaser or in the version last imparted to the latter in text form shall also be deemed a framework agreement for future contracts of the same type, without it being necessary for us to make specific reference to them again in each individual case.

 

(3) Our GTCS shall apply exclusively. Any deviating, opposing or supplementary General Terms and Conditions of the Purchaser shall only become components of the contract if and insofar as we have explicitly consented to their validity in writing. This consent requirement applies in every case, for example, even if the Purchaser, in the context of its order confirmation, should refer to its own GTC and we do not explicitly contradict this.

 

(4) Legally relevant declarations and notifications on the part of the Purchaser relating to the contract (e.g. the setting of deadlines, reminders, rescissions or reductions) are to be issued in writing. Within the meaning of these GTCS, this includes both the written and text form (e.g. letter, e-mail, fax). Statutory form stipulations and further proofs, particularly with regard to doubts concerning the legitimacy of the person issuing the declaration, remain unaffected by this.

 

(5) Pointers to the validity of statutory stipulations have only clarifying significance. The statutory provisions therefore apply even without any such clarification, inasmuch as they are not either directly amended or explicitly excluded in these GTCS.

 

Section 2 Contractual Conclusion

 

(1) Our offers are subject to alteration and non-binding. This shall also apply should we have supplied to the Purchaser catalogues, documentations (e.g. drawings, plans, computations, calculations, references to DIN norms, patterns, samples, formulae), other product descriptions or documents – also in electronic form – to which we reserve proprietary rights and rights of authorship.  

 

(2) The placement of an order by the Purchaser for the Goods is deemed a binding offer of a contract. Insofar as nothing to the contrary may be derived from the order, we are entitled to accept this offer of a contract within a period of four weeks of having received it.  

 

(3) Acceptance may be declared either in writing (e.g. order confirmation), by supplying the Goods to the Purchaser or by making the Goods available for collection by the Purchaser and informing the latter that they are ready for dispatch.

 

Section 3 Delivery Period and Delivery Default, Obstacles to Delivery, Contractual Adjustment

 

(1) The delivery period shall be agreed upon individually or indicated by us in our order acceptance. Insofar as this should not be the case, the delivery period shall be, provided the product is available, 6 months from the time of the conclusion of the contract. 

 

(2) Delivery default on our part shall be determined according to the statutory provisions.  A warning from the Purchaser is required in every case, however. Should we default on delivery, and the Purchaser incur any losses as a result, the Purchaser may demand flat-rate compensation for the losses it has suffered due to the delay to the amount of 0.5% of the net price (delivery value) for each complete calendar week of the delay, but restricted in total to not more than 5% of the net price of the Goods delivered too late. We shall retain the right to prove that the Purchaser has not suffered any losses at all or that the losses suffered were considerably lower than the above flat rate.  

 

(3) Insofar as we – without being in default of delivery according to Paragraph (2) – should be unable to adhere to binding delivery periods for reasons for which we do not bear the responsibility (non-availability of the performance) we shall inform the Purchaser hereof without delay and at the same time notify it of the probable new delivery period. Should the performance also not be available within the new delivery period, we shall be entitled to rescind the contract in part or in its entirety; we shall refund immediately any counter-service already performed by the Purchaser. Examples of a cases of non-availability of service within the meaning of the above are deemed to be in particular: if we have not ourselves been punctually supplied by our own sub-supplier, if we have concluded a congruent covering transaction, should neither we nor our sub-supplier be to blame for the circumstance or should we, in an individual case, not be under any procurement obligation.

 

(4) Notwithstanding Paragraphs (2) and (3), we may demand contractual adjustment insofar as circumstances that have become fundamental components of the contract should have changed profoundly subsequent to the conclusion of the contract and we would either not have concluded the contract at all or concluded it with different content had we foreseen said change. This shall apply insofar as, taking all circumstances of the individual case into account, in particular contractual or statutory risk-splitting, adherence to the unchanged contract cannot reasonably be expected of us. Should central ideas that have become fundamental components of the contract turn out to have been false, this shall be deemed equivalent to a change in the circumstances. 

 

(5) The rights of the Purchaser according to Section 8 of these GTCS and our statutory rights, in particular in the event of the exclusion of the performance obligation (e.g. due to the impossibility or unreasonableness of performance and/or post-fulfilment) shall remain unaffected in all cases listed in this Section 3.

 

Section 4 Delivery, Transfer of Risk, Acceptance, Default on Acceptance

 

(1) Delivery shall be effected ex platform from our plant in Bramsche, which is also the place of fulfilment for the delivery and for any post-fulfilment. At the request and expense of the Purchaser, the Goods will also be sent to a different destination (consignment sale). Insofar as nothing to the contrary has been agreed, we shall be entitled to determine the nature of the consignment (in particular the transport company, route, packaging) ourselves.

 

(2) The risk of the accidental loss and accidental deterioration of the Goods shall be transferred to the Purchaser upon the handing over thereof at the very latest. In the case of a consignment sale, however, the risk of the accidental loss and accidental deterioration of the Goods, as well as that of any delays, shall be transferred already at the time of the delivery of the Goods to the carrier, forwarding agent or any other person or institution charged with the task of organising the consignment. Insofar as an acceptance procedure has been agreed, this shall be decisive for the transfer of the risk. Otherwise, the statutory provisions of the laws on contracts for services shall apply accordingly in the event of an acceptance procedure. Handover or acceptance shall be deemed to have taken place if the Purchaser is in default of acceptance.

 

(3) Should the Purchaser default on acceptance, fail to fulfil a cooperation obligation or should our delivery be delayed for any other reasons for which the Purchaser bears the responsibility, we shall be entitled to demand compensation for any resultant losses including extra expenditure (e.g. warehousing costs). We shall charge compensation for this to the amount of 0.25% of the delivery value (in the sense of the pure net sale value) of the Goods affected by the default on acceptance for each full week (7 days) or 0.036% of the delivery value per calendar day, beginning with the commencement of the delivery period or – in the absence of a delivery period – upon the sending of the notification that the Goods are ready for dispatch.

 

Proof of higher losses and our statutory entitlements (in particular refunding of extra expenditure, appropriate compensation, cancellation) remain unaffected; the flat-rate is, however, to be off-set against any further-reaching monetary claims. The Purchaser retains the right to prove that we have suffered either no losses at all or that the losses suffered were considerably lower than the aforementioned flat rate.  

 

Section 5 Prices and Terms of Payment 

 

(1) Insofar as nothing to the contrary has been agreed in an individual case, our current prices at the time of the respective contractual conclusion shall apply, ex warehouse, plus the statutory rate of VAT. 

 

(2) In the event of a consignment sale (Section 4, Para. 1), the Purchaser shall bear the transport costs ex warehouse and the costs for any transport insurance desired by the Purchaser. Any customs duties, fees, taxes and other public dues shall be borne by the Purchaser.

 

(3) The purchasing price shall mature and be payable within 14 days of the issuing of an invoice and delivery or acceptance of the Goods. In the course of an ongoing business relationship, we shall be entitled at any time to effect delivery in part or entirely only in return for payment in advance, however. We shall declare any such reservation along with our order confirmation at the very latest.

 

(4) The Purchaser shall be in default upon expiry of the above payment deadline. As long as this default persists, interest is to be paid on the purchasing price at the statutory rate of default interest applicable at the respective time. We reserve the right to assert further-reaching default losses. With respect to merchants, our claim to the commercial maturity interest (Section 353 HGB [German Commercial Code]) remains unaffected by this.

 

(5) The Purchaser shall hold rights of off-offsetting or retention only to the extent that its own claims have been legally established or are undisputed. In the event of delivery defects, the Purchaser’s counter-rights, in particular in accordance with Section 7 Para. 6 Clause 2 of these GTCS, remain unaffected by this.

 

(6) Should it, subsequent to the conclusion of the contract, become clear (e.g. due to an application for the opening of insolvency proceedings) that our claim to the purchasing price is endangered through insufficient performance capability on the part of the Purchaser, we are, according to statutory provisions, entitled to refuse performance and – if appropriate, after the setting of a deadline – to rescind the contract (Section 321 BGB (German Civil Code)). In the case of contracts for the manufacturing of non-fungible items (individual constructions), we may rescind immediately, the statutory regulations governing the dispensability of the setting of a deadline remain unaffected.

 

Section 6 Reservation of Proprietary Rights

 

(1) Until such time as all our present and future claims deriving from the purchasing contract and an ongoing business relationship (secured receivables) have been paid in full, we reserve our proprietary rights to the Goods sold. 

 

(2) Prior to the settlement in full of the secured receivables the Goods subject to the reservation of proprietary rights may not be pledged to third parties, nor may they be assigned as collateral. The Purchaser is required to inform us without delay in writing should an application for the opening of insolvency proceedings be filed or attempts made by any third parties to seize (e.g. by way of attachment) the Goods belonging to us.

 

(3) In the event of conduct on the part of the Purchaser contrary to the terms of the contract, especially failure to pay the due purchasing price, we shall, according to the statutory provisions, be entitled to rescind the contract and/or demand the return of those Goods subject to the reservation of proprietary rights. The demand for the return of the Goods does not at the same time constitute a declaration of rescission; it is rather the case that we are entitled to merely demand the return of the Goods and to reserve the right of rescission until later. Should the Purchaser not pay the due price, we may only exert these rights if we have previously unsuccessfully set the Purchaser a reasonable deadline for payment or the setting of such a deadline is dispensable according to statutory provisions.

 

 (4) Until further notice, the Purchaser is authorised, in accordance with lit. (c) below, to sell on and/or, further process those Goods subject to the reservation of proprietary rights in the ordinary course of business. In this case the following provisions apply additionally.

 

a) The reservation of proprietary rights extends to those products created through the processing, mixing or combining of Goods to the full value of those products, whereby we shall be deemed the manufacturer. Should, in the course of the processing, mixing or combining of our Goods with those of a third party, the latter’s proprietary rights remain intact, we shall acquire co-ownership according to the ratio of the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the product created as to the Goods supplied under the reservation of proprietary rights.

 

b) The Purchaser assigns at this point in time already any claims it might accrue towards third parties from the sale of the Goods or of the products in their entirety or to the extent of our co-ownership acquired in accordance with the previous paragraph to us as collateral. We accept the assignment. The Purchaser’s duties named in Para. 2 shall also apply with a view to the assigned claims.

 

c) In addition to ourselves, the Purchaser shall remain empowered to collect the receivables. We undertake not to collect the receivable for as long as the Purchaser complies with its payment obligations towards us, its performance capability is not impaired and we do not assert our reserved proprietary rights by exercising any right held according to Para. 3. Should this be the case, however, we may demand that the Purchaser should make the assigned receivables and their debtors known to us, provide all details necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. We are further entitled in such a case to revoke the Purchaser’s authority to sell and process the Goods subject to the reservation of proprietary rights.

 

d) Should the realisable value of the securities exceed our claims by more than 10%, we will, at the demand of the Purchaser, release securities at our own discretion.

 

Section 7 Purchaser’s Right to Claims based upon Defects

 

(1) The statutory rights of the Purchaser shall apply in the event of material or legal defects, insofar as nothing to the contrary is agreed in the following. In all events, the statutory special regulations on the refunding of expenditure in the case of final delivery of the newly created item to a consumer (Supplier Regress in accordance with Sections 478, 445a, and 445b or Sections 445c, 327 Para. 5, 327u BGB) shall remain unaffected insofar as no other equivalent form of compensation, e.g. in the context of a quality assurance arrangement, has been agreed upon.

 

(2) The basis of our liability for defects is in particular the agreement reached regarding properties and the presumed use of the Goods (including accessories and instructions). Insofar as the parties have agreed on the properties of a purchased item, objective demands upon that item shall not be applied in this respect.

 

a) All product descriptions and designations, representations of product features, data sheets (e.g. specifications, protein values, pH-values, analysis certificates, sample findings, etc.) are deemed in this sense to be agreements on properties, as are any other manufacturer’s statements that are components of the individual contract or have been made public by us (in particular in catalogues or on our internet-homepage under www.leibergmbh.de) at the time of the conclusion of the contract.

 

b) Insofar as a property was not agreed upon, the question of whether a defect is given or not is to be assessed in accordance with statutory provisions (Section 434 Para. 3 BGB). Public statements made by the manufacturer or in the latter’s name, especially in advertising or on the label attached to the Goods shall thereby take precedence over any statements made by any other third parties. 

 

c) Both in the case of agreed (lit. a)) as well as of non-agreed (lit. b)) properties, the following peculiarities of natural products are to be taken into account when determining the extent of an agreed property and its suitability for standard application:

 

aa) Because the Goods are natural products, fluctuations in the colour structure and texture are usual within the same consignment (batch). 

 

bb) In the case of natural products particularly, deviations and heterogeneity of the products with regard to measurements, colour, form, structure, granulation size, specific weight, density, and dry bulk density, are possible and usual, due to the natural materials.

 

cc) Insofar as these are not explicitly part of the agreed properties of the Goods, patterns and samples are considered merely non-binding and exemplary and show only the appearance and features of a section of the products as patterns and samples of the products – like the descriptions of the products listed above in Para. (2) a) – are never able to reflect all differences within a batch. 

 

dd) Samples and patterns are thus deemed to be merely approximate illustrations of features such as quality, colour and weight. Even if supply of a patterned product exactly as in this patterned batch is agreed and follows accordingly, we cannot assume any guarantee that the delivery will be totally identical with the patterns provided or that it will remain so.

 

(3) As a fundamental rule, it is the Purchaser who is responsible for the correct selection of the products, their suitability for their intended purpose and in particular whether the contractual product is suited to its presumed or standard use. This shall not apply insofar as it has explicitly availed itself of our advisory services; in such a case the Purchaser shall be obliged to provide us with accurate information pertaining to the intended purpose and place of usage as well as all other necessary information for the correct selection of products. Advisory services are provided by us – based upon the information from the Purchaser necessary for such a service – to the best of our knowledge. 

 

(4) We do not, on principle, assume liability for defects of which the Purchaser is aware at the time of the conclusion of the contract or of which it is unaware due to gross negligence (Section 442 BGB). Furthermore, the Purchaser’s claims based on defects also presuppose that the latter has complied with its statutory inspection and notification obligations (Sections 377 & 381 HGB (German Commercial Code)). In the case of Goods intended for further processing, an inspection must in all cases be undertaken immediately prior to processing. Should a defect reveal itself upon delivery, during the inspection or at a later date, this is to be reported to us in writing immediately. In all cases, evident defects are to be reported to us within five working days of delivery and defects not evident at the time of inspection within the same period of time subsequent to their discovery. Should the Purchaser fail to undertake the inspection and/or to issue the notification in due and proper fashion, our liability for the defect reported too late or not reported in due and proper fashion according to the statutory provisions is excluded.

 

(5) Should the item delivered be defective, we shall initially be entitled, at our own discretion, to attempt post-fulfilment through either rectification of the defect (reworking) or delivery of a defect-free item (substitute delivery). Should the form of post-fulfilment chosen by us be unreasonable to the Purchaser, it may refuse it. Our right to refuse post-fulfilment under statutory provisions shall remain unaffected. 

 

(6) We are entitled to make the post-fulfilment required from us dependent upon the Purchaser paying the purchasing price. The Purchaser shall, however, be entitled to withhold a reasonable part of the purchasing price in relation to the defect.

 

(7) The Purchaser is required to grant us the necessary time and opportunity for post-fulfilment and in particular to hand over the Goods complained about for inspection purposes. In the event of substitute delivery the Purchaser shall be required to return the Goods complained about to us at our request; the Purchaser shall not, however, be entitled to have them returned to it once more.

 

(8) We shall bear or refund the necessary expenditure incurred for the purposes of inspection and post-fulfilment, in particular transport, route, labour and material costs plus, if applicable, removal and installation costs, in accordance with statutory provisions and these GTCS, should there have indeed been a defect. Otherwise we may demand from the Purchaser the refunding of costs resulting from unjustified demands for the rectification of defects should the Purchaser have recognised or failed to recognise due to gross negligence that there had not, after all been any defect.

 

(9) In urgent cases, e.g. for the averting of unreasonably high losses, the Purchaser shall have the right to rectify the defect itself and to demand from us the refunding of the expenditure objectively necessary for this purpose. We are to be informed of any self-help immediately, if possible beforehand. This right to self-help shall not be given should we have been entitled under statutory provisions to refuse the relevant post-fulfilment.

 

(10) Should a reasonable deadline to be set by the Purchaser for post-fulfilment expire without success or be dispensable according to statutory provisions, the Purchaser may, under statutory provisions, rescind the purchasing contract or reduce the price. In the case of a negligible defect, no right to rescission shall be given, however.

 

(11) Any claims held by the Purchaser to compensation for or refunding of expenditure undertaken in vain are, also in cases of defects, given only according to the criteria of Section 8 and are otherwise excluded.

 

Section 8 Other Liability

 

(1) Inasmuch as nothing to the contrary may be derived from these GTCS including the following stipulations, we shall be liable for violations of contractual and non-contractual obligations in accordance with the statutory provisions. 

 

(2) In cases of wilful intent or gross negligence, we are liable – notwithstanding the legal grounds – for compensation in the context of fault-based liability. In the event of simple negligence we shall be liable subject to the proviso of statutory restrictions upon liability (e.g. due care and attention when handling our own affairs; negligible violation of duty) only 

 

a) for losses resulting from the violation of life, the body or health,

 

b) for losses resulting from the violation of a cardinal contractual obligation (an obligation the fulfilment of which makes the orderly implementation of the contract possible in the first place and in the adherence to which the contractual partner regularly places and is entitled to place its trust); in this case, however, our liability is restricted to the replacement of losses that are predictable and typical for this type of contract. 

 

(3) The restrictions upon liability deriving from Para.  2 shall also apply towards third parties as well as in the event of violations of obligations by persons (also in their own favour), for whose culpability we are required to bear the responsibility according to statutory provisions. They do not apply insofar as a defect had been fraudulently concealed or a guarantee for the properties of the Goods had been assumed or to claims held by the Purchaser under the Product Liability Act.

 

(4) In the event of the violation of an obligation that does not constitute a defect, the Purchaser may only rescind or cancel should we bear the responsibility for the violation. A free right of cancellation on the part of the Purchaser (in particular according to Sections 650 and 648 BGB) is ruled out. Otherwise, the statutory provisions and legal consequences apply.

 

Section 9 Statute of Limitations

 

(1) By way of deviation from Section 438 Para. 1 No. 3 BGB, the general statute of limitations for claims based upon defects shall be one year from the transfer of risk. Insofar as an inspection procedure has been agreed, the statute of limitations shall commence at the time of inspection. 

 

(2) The above statutory periods of limitations under commercial law also apply to contractual and non-contractual claims due to any defects to the Goods, unless the application of the regular statutory period of limitations (Sections 195 and 199 BGB) would, in an individual case, lead to a shorter limitation period. Claims held by the Purchaser according to Section 8 Para. 2 Clauses 1 and 2 (a) as well as according to the Product Liability Act, are exclusively subject to the statutory periods of limitation.

 

Section 10 Choice of Law and Court of Jurisdiction

 

(1) The law of the Federal Republic of Germany shall apply to these GTCS and to the contractual relationship between us and the Purchaser under exclusion of international uniform law, in particular of the UN Convention on the International Sale of Goods.

 

(2) Should the Purchaser be a merchant as defined in the commercial code, a legal entity under public law or a special fund under public law, the exclusive – also international – court of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our head office in Bramsche, insofar as the Purchaser has its domicile in the Federal Republic of Germany or a state belonging to the European Union (EU). We are, however, in all cases also entitled to file a suit at the place of fulfilment for the delivery obligation according to these GTCS or an overriding individual agreement or at the Purchaser’s general court of jurisdiction. Overriding statutory provisions, in particular concerning exclusive jurisdictions, remain unaffected.

 

(3) Inasmuch as the Purchaser should not have its domicile in the Federal Republic of Germany or a state belonging to the European Union (EU) the following agreement regarding a court of arbitration is concluded:

 

 

All disputes arising in connection with this contract or concerning its validity shall be decided in accordance with the regulations of the German Institution for Arbitration (DIS), in their version valid at the time of initiation, under exclusion of standard legal procedures. The arbitration proceedings shall be held in Bramsche. The language spoken in the court of arbitration is German. The court of arbitration is required to base its decision upon the agreed substantive law. Decisions will be taken by three arbiters, whereby the president must be qualified to hold the position of a judge.