As at October 2017
I. Scope of Application
- These General Terms and Conditions of Lock Your World GmbH & Co. KG (hereinafter »LYW«) apply exclusively. No customer terms and conditions deviating from our General Terms and Conditions are acknowledged, unless we expressly grant written approval. Our General Terms and Conditions also apply if we unconditionally render performance despite knowledge of deviating terms and conditions of the customer.
- Our General Terms and Conditions apply to all performances in connection with consultation, sale, planning/development, delivery and installation of »LYW« locking systems. They also apply to all future business with the customer, in each case in the applicable version as amended from time to time.
II. Conclusion of the Agreement
- Our prices for the sale of »LYW« products as stated in catalogues, price lists, etc. are non-binding. A concrete offer is given only when
a) a customer places an order based on these statements. The contract is concluded upon confirmation of the order by LYW within 14 days, or
b) LYW provides the customer with a concrete offer. Such offer needs to be accepted by the customer within one month, upon which the contract takes effect. After the expiry of one month, LYW will no longer be bound by the offer and a new offer has to be obtained. If the parties have agreed upon another period of time such period is binding.
- If the customer does not only wish to buy »LYW« products, but in addition also asks for installation of the same, LYW will provide him with a corresponding offer which also needs to be accepted within one month. If the parties have agreed upon another period of time such period is binding.
III. Prices, Dispatch and Packaging Costs, Terms of Payment
- All prices stated by LYW are net prices. Applicable value added tax is to be added to the prices and has to be paid by the customer.
- The costs of dispatch, including any taxes, customs duties, or other public charges, etc., are not included in the purchase price for the »LYW« products; this also applies to insurance and packaging costs. In the event of a conclusion of contract, the foregoing costs will be set forth in the confirmation letter according to clause II 1 a), or stated in the offer drawn up by LYW according to clause II 1 b). Insured dispatch is made by post/carrier.
- The purchase price is payable within 8 days of the date of the invoice. Timely payment is given only when the invoiced amount has been received by LYW within the period mentioned above. If payment is not effected within this period, the customer will be in default. In this case, default interest is charged in the amount of 8% above the statutory base rate p.a. The assertion of further default damage is not excluded thereby.
If new customers are concerned LYW reserves the right to demand prepayment.
- The customer is not entitled to deduct any cash discount without corresponding prior agreement.
IV. Set-off, Retention Right, Plea of Uncertainty
- The customer is entitled to set off only if his counterclaims have been determined by final and non-appealable judgement or if they are undisputed. The customer will be entitled to exercise a retention right only if his counterclaims result from the same contractual relationship.
- If it becomes apparent after conclusion of the purchase contract that the payment of the purchase price is threatened by lack of solvency on the part of the customer, LYW will be entitled to refuse performance, unless the customer provides security. If the customer does not pay the purchase price within a reasonable period of time fixed, and if the customer also does not provide any security, LYW may withdraw from the contract.
V. Customer's Obligation to Cooperate
- Upon ordering the products, the customer must comprehensively and correctly specify all requirements regarding the locking systems. This in particular applies to the technical conditions and the site and modalities of use, as well as the desired delivery date.
The customer is responsible for establishing all factual and legal requirements to ensure timely and smooth delivery.
VI. Place of Performance, Passing of Risk
- Place of performance is the registered office of LYW, Gewerbestraße 25, 63619 Bad Orb.
- If the products are to be delivered to a different location (dispatch to a place other than the place of performance), such dispatch is at the expense of the customer as provided for in clause III 2.
- The risk of accidental destruction or loss and accidental deterioration of the products passes to the customer upon handover. If the products are dispatched to a location other than the place of performance according to paragraph 2, the described risk will pass already upon handover to the transportation agency (postal operator, carrier, etc.).
- If LYW does not only owe handover of the purchased object, but based on a corresponding regulation upon the conclusion of the contract (clause II 2) also the installation of the »LYW« product, the risk will pass upon acceptance. Acceptance shall take place within a reasonable period of time to be determined by LYW. If the customer does not comply with its acceptance obligation, acceptance shall be deemed granted upon expiry of the given period of time.
VII. Delivery, Default, Force Majeure, Self-supply
- Delivery and, if applicable, installation of the »LYW« product is made in consultation with the customer.
- LYW is entitled to partial delivery if this is reasonably acceptable to the customer.
- If the customer is in default of taking delivery or in default of acceptance, or if the customer culpably breaches its cooperation obligations according to clause V or any other cooperation obligations, then LYW shall be entitled to request compensation of any damage resulting therefrom, including any additional expenses. The assertion of further claims remains reserved. Insofar as the requirements specified above exist, the risk of accidental loss or accidental deterioration of the purchase object passes to the customer at the time the customer is in default of taking delivery/default of acceptance.
- If due to force majeure or similar events, including but not limited to strike or lack of raw materials, which LYW did not know and did not have to know upon conclusion of the contract, LYW cannot comply with delivery dates, LYW will inform the customer and state the anticipated new delivery or installation date. This date shall maximum be three months after the original date. In the event that the force majeure event or similar events continue for more than three months, LYW will be entitled to withdraw from the contract. In case of withdrawal, any consideration given by the customer will be returned. The customer does not have any claim for damages.
- Correct and duly self-supply remain reserved.
VIII. Warranty for Defects, Inspection Obligation and Obligation to Notify Complaints
- The »LYW« products conform to the contract if they have the agreed quality. This is the case when the product shows the features stated by LYW in the product specifications.
- Warranty claims can be asserted by the customer only if the customer has properly complied with its obligations according to Section 377 German Commercial Code (HGB) to inspect the product and to notify any complaints.
- If despite all care exercised the delivered »LYW« product shows any defect already given at the time when the risk passed to the customer, LYW shall first be entitled to subsequent performance. In this respect, LYW may choose whether the defect shall be remedied by subsequent improvement (remedy of defect) or by subsequent delivery (delivery of a defect-free replacement). However, the customer is expressly granted the right - at its choice - to reduce the purchase price in the case that the remedy of the defect or delivery of a replacement fails, or to withdraw from the contract. Claims for damages, if any, shall remain unaffected thereby.
- The expenses required for inspection and subsequent performance, in particular the costs of transportation, travel, work and material, are to be borne by LYW if a defect does in fact exist. However, if it turns out that a request for remedy of a defect is unjustified, the customer will have to reimburse the costs incurred by LYW. Only in the event of an actual defect will LYW bear the costs of removal and installation.
IX. Further Liability
- LYW is liable for other damage only if caused wilfully or with gross negligence.
- However, LYW will also be liable in the event of simple negligence in the case of
a) damage arising from injury of life, body and/or health,
b) damage from breach of material contractual obligations, i.e. such obligations whose proper fulfilment enables the performance of the contract in the first place and in respect of which the contract partner may regularly expect compliance (so-called "cardinal obligations"). In the case of simple or gross negligence, the liability for damages shall, however, be limited to the foreseeable, typically occurring damage.
- The liability according to the German Product Liability Act shall remain unaffected.
- Insofar as the liability of LYW is excluded or restricted, this shall also apply to the personal liability of its employees, staff members, assistants, representatives and vicarious agents.
X. Retention of Title
- LYW retains title to the delivered »LYW« products until full payment of all claims arising from the business relationship with the customer.
- The customer is obliged to treat the purchase object with care. To the extent necessary, the customer has to perform maintenance and repair works at its own costs in good time, or have such works performed by third parties.
- The customer is entitled to resell the purchase object within the ordinary course of business; however, the customer already here and now assigns to LYW all claims in the amount of the final invoice amount (including VAT), which accrue to the customer from such resale against its purchaser or third parties. This assignment is independent from whether the purchase object is resold without or after processing. LYW hereby accepts this assignment. The customer remains entitled to collect the claims within the scope of the ordinary course of business. This entitlement ceases to exist if the customer does not comply with its payment obligations from the collected proceeds, or if the customer is in default in payment. It also ceases to exist when a petition for the opening of insolvency proceedings is filed for the assets of the customer, or if the customer stops payments. In those cases, LYW shall be entitled to collect the assigned claims itself. The customer is obliged to provide LYW with all information required for collection, and to hand over the documents relating thereto. In this case, the customer will furthermore be obliged to disclose the assignment to the debtors (third parties).
- The products subject to retention of title may neither be pledged nor assigned by way of security to any third party until full payment of the secured claims. The customer is obliged to inform LYW without undue delay in writing about (attempted) attachments or other interventions by third parties. In this case, the customer is furthermore obliged to support LYW comprehensively in the judicial and extrajudicial assertion of its rights, in particular to provide LYW with the required documents.
- The processing, alteration or combination of the purchase object by the customer is always done in the name and on behalf of LYW. In such case, the expectancy right of the customer to the purchase object continues to the processed, altered or combined object. If the purchase object is processed, etc., together with other objects which do not belong to LYW, then LYW shall acquire co-ownership in the new object in proportion of the final invoice amount of the purchase object to the value of the other processed objects at the time of processing.
Besides, the provisions regarding the purchase object delivered under reservation of title shall also apply to the object produced by processing, alteration or combination.
- LYW undertakes to release any collateral upon demand of the customer to the extent that the realisable value of the object subject to retention of title exceeds the claims to be secured by more than 10 %; the selection of the collateral to be released is incumbent on LYW.
XI. Statute of Limitations
- Claims of the ordering party resulting from warranty for defects shall be statute-barred twelve months from handover, or in the case of installation after acceptance of the purchased product.
- The statute of limitations under the German Product Liability Act remains unaffected.
XII. Governing Law, Place of Jurisdiction
- This contract and all legal relationships between the parties are subject to the laws of the Federal Republic of Germany, to the exclusion of the application of the United Nations Convention on the International Sale of Goods (CISG).
- Place of jurisdiction is the registered office of LYW, Gewerbestraße 25, 63619 Bad Orb.