Terms and Conditions of Sale and Delivery of LSP Innovative Automotive Systems GmbH.
Hereinafter referred to as "LSP" - as of April 2017.
§1 Scope, written form
Sales, deliveries of goods to be manufactured or produced as well as services of all kinds of LSP are made to entrepreneurs exclusively on the basis of these Terms and Conditions of Sale and Delivery.
These terms and conditions apply exclusively; conflicting terms and conditions or terms and conditions of the customer that deviate from these terms and conditions of sale and delivery only become part of the contract if LSP has expressly agreed to their validity in writing. These terms and conditions of sale and delivery also apply if LSP has carried out the delivery to the customer without reservation in the knowledge of terms and conditions of the customer that are contrary to or deviate from these terms and conditions of sale and delivery.
All agreements made between LSP and the customer for the purpose of the execution of this contract, including contract amendments and ancillary agreements, are set down in writing in this contract. This written form requirement can only be waived in writing.
§2 Offer, Conclusion of Contract, Offer Documents
If the order is to be qualified as an offer according to § 145 BGB, LSP can accept it within two weeks. Offers of LSP are, if not explicitly mentioned otherwise, subject to confirmation.
Contracts with LSP are only concluded upon acceptance of the customer's order by LSP, an order confirmation by LSP or by delivery.
LSP is not obliged to ensure a supply with the delivery item after the end of production or contract, unless otherwise agreed in writing between the parties.
LSP reserves the property rights and copyrights to illustrations, drawings, calculations, software and other documents. This also applies to such written documents that are designated as "confidential". Before passing them on to third parties, the customer requires the express written consent of LSP.
§3 Prices, terms of payment, rights of set-off
Unless otherwise stated in the order confirmation, the prices of LSP are "ex works", excluding packaging or travel expenses; these will be invoiced separately in each case.
The statutory value added tax is not included in the prices of LSP; it will be shown separately in the invoice in the statutory amount on the day of invoicing.
The deduction of cash discount requires a special written agreement.
Unless otherwise stated in the order confirmation, the price is due for payment net (without deduction) within 30 days from the date of invoice. The statutory regulations concerning the consequences of default in payment shall apply.
The customer is only entitled to set-off rights if his counterclaims are legally established, undisputed or recognized by LSP. § 354a HGB remains unaffected. Furthermore, the customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
If, in the case of a call-off order, the customer does not take delivery of the minimum quantity agreed in the framework supply agreement in a monthly or annual period, he shall nevertheless be obliged to pay for the agreed minimum quantities. If LSP succeeds in selling to third parties, the amount to be paid shall be reduced by LSP's prime costs.
If the contract should be a work (delivery) contract, which the customer can terminate according to the work contract regulations without the existence of a special reason, LSP is to be compensated as follows in the sense of § 649 para. 1 p. 2 BGB: The costs accrued up to the date of termination on the basis of the LSP project documentation plus the development costs incurred by LSP. In the case of service contracts, compensation shall be paid on a time and material basis at the agreed hourly rate otherwise customary in the industry.
§4 Performance period
The start of the delivery/performance time stated by LSP presupposes the clarification of all technical questions. The compliance with the delivery/service obligation of LSP further presupposes the timely and proper fulfillment of the obligation of the customer. The objection of the non-fulfilled contract remains reserved.
Delivery/performance deadlines are only binding if they have been clearly agreed as such. Unless otherwise agreed, the deadline is 2 weeks.
LSP is entitled to partial delivery and performance to a reasonable extent, insofar as the customer cannot expect complete performance according to the nature of the object of performance.
In the case of call orders, LSP is entitled upon conclusion of the contract to procure the tools and materials required for the fulfillment of the order for the entire order and to produce the entire order quantity immediately.
If the customer is a merchant in the sense of the German Commercial Code (HGB), he has to check obvious defects of the delivered products with regard to quantity as well as quality within 5 working days after receipt of the goods at the latest and to give notice of any defects to LSP in text form. Not recognizable defects are to be reprimanded within 5 working days after discovery. For the timeliness it depends on the receipt at LSP. Defects not notified in due time will not be taken into account. In case of treatment or processing of the delivered products already before expiry of the period of notice, the customer is excluded with his notice for all delivered parts of a uniform order with regard to all recognizable defects. The approval of samples by the customer excludes the later complaint about the defectiveness of the products, provided that the delivered products correspond to the approved samples.
If the customer is in default of acceptance or culpably violates other duties to cooperate or if the performance of LSP is delayed for other reasons for which the customer is responsible, LSP is entitled to demand compensation for the damage incurred by LSP in this respect, including any additional expenses. Further claims or rights remain reserved.
If the conditions of paragraph (6) exist, the risk of accidental loss or accidental deterioration of the purchased item is transferred to the customer at the time when the customer is in default of acceptance or debtor's delay.
LSP is liable according to the legal regulations, as far as the underlying purchase contract is a firm deal in the sense of § 286 para. 2 no. 4 BGB (German Civil Code) or § 376 HGB (German Commercial Code). LSP is also liable according to the statutory provisions, if as a consequence of a delay in delivery for which LSP is responsible, the customer is entitled to claim that his interest in the further performance of the contract has ceased.
Furthermore, LSP is liable according to the statutory provisions, if the delay in delivery is based on an intentional or grossly negligent breach of contract for which LSP is responsible; a fault of the representative or vicarious agent of LSP is to be attributed to LSP. If the delay in delivery is due to a grossly negligent breach of contract for which LSP is responsible, LSP's liability for damages is limited to the foreseeable, typically occurring damage.
LSP is also liable according to the statutory provisions, insofar as the delay in delivery for which LSP is responsible is based on the culpable breach of an essential contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.
Further legal claims and rights of the customer remain reserved.
If delivery deadlines cannot be met due to circumstances for which LSP or its suppliers are not responsible, in particular force majeure, operational or traffic disruptions, fire, floods, strike, shortage of energy and raw materials, the delivery deadlines are to be extended appropriately in agreement between the parties. If the duration of the hindrances due to the above circumstances is more than 12 weeks, LSP or the customer may withdraw from the contract, provided that the maintenance of the contract is unreasonable.
As far as objects are to be manufactured by LSP, for which accessories are required, these are to be provided to LSP by the customer at his expense with a surplus of -10%. Failure to provide such accessories on time or in perfect condition entitles LSP to invoice for the additional costs incurred and releases LSP from compliance with the agreed delivery deadline, insofar as LSP is not responsible for the non-compliance.
§5 Transfer of risk, packaging costs
Unless otherwise stated in the order confirmation, delivery "ex works" is agreed.
Separate agreements apply for the return of packaging.
If requested by the customer, LSP will cover the delivery by transport insurance; the costs incurred in this respect shall be borne by the customer.
§6 Tools, tool costs
Tools of all kinds (molds, dies, etc.) are in any case considered to be the property of LSP and are not to be surrendered to the customer even if the customer has a share in the tool costs or if the customer has manufactured a tool at the customer's expense but according to the design specifications of LSP.
The total tooling cost share to be paid by the customer is due with the first delivery. LSP keeps the tools free of charge until 1 year after the last order.
Tooling costs are payable immediately net. Unless otherwise agreed, these costs, including those for tool insurance, are to be paid in addition to the price provisions according to § 3.
If the tool is provided by LSP, the delivery dates will be postponed if the tool becomes unusable due to wear and tear during use, unless the Customer has instructed LSP in due time to procure replacement tools in due time.
§7 Defect Rights, Liability
LSP warrants for the goods manufactured by it on the basis of proprietary developments according to the statutory provisions that the ordered goods are of defect-free quality, provided that the goods are properly handled, relocated, installed, used and properly stored according to the technically relevant standards. For the owed quality of the goods, apart from the contractual agreements, only the product description of LSP is decisive, but not public statements, advertising contents, etc. of other manufacturers, suppliers or third parties. An only insignificant reduction of the value or the suitability does not come into consideration for the existence of defects. In the event of an order for a series of goods, the quality of the goods (including the surfaces and dimensions) shall be based on the limit samples approved by both parties prior to the start of series production, which shall also be part of the initial sampling. If the Customer does not submit limit samples within a reasonable period of time before the start of the series or if the Customer does not declare its agreement to limit samples submitted to it by LSP in due time, products of average type and quality delivered by LSP are deemed to be free of defects.
If articles are produced and delivered according to designs or drawings of the customer, LSP assumes warranty only for the execution of the delivered parts in accordance with the documents of the customer. No warranty is given for the suitability for the purpose assumed by the Customer or for a certain number of uses.
If there is a defect in the delivered goods, LSP has the choice to remove the defects or to provide a replacement delivery. In any case, LSP is entitled to check the defectiveness on site. Accordingly, the Customer undertakes to obtain LSP's consent before returning or destroying defective makes. The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, shall be borne by LSP if there is actually a defect for which LSP is responsible and insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance. If, however, a request of the customer to remedy the defect turns out to be unjustified, LSP can demand compensation from the customer for the resulting costs.
If LSP seriously and finally refuses the fulfillment, refuses the removal of defects and a subsequent fulfillment due to disproportionate costs, the subsequent fulfillment fails or is unreasonable for the customer, the customer expressly reserves the right to demand a reduction of the remuneration or cancellation of the contract and compensation instead of the service, at his discretion. In case of only minor breaches of contract, in particular in case of only minor defects of the goods, the customer is not entitled to a right of withdrawal.
LSP is liable according to the legal regulations, if the customer asserts claims for damages, which are based on intent or gross negligence, including intent or gross negligence of representatives or vicarious agents of LSP. As far as LSP is not accused of intentional breach of contract, the liability for damages is limited to the foreseeable, typically occurring and according to German law compensable damage.
Liability for negligence - irrespective of the legal grounds - is excluded, unless it is a violation of an essential contractual obligation. LSP is liable according to the legal regulations, if LSP culpably violates an essential contractual obligation; however, also in this case the liability for damages is limited to the foreseeable, typically occurring and according to German law compensable damage.
Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the Product Liability Act. LSP does not assume any further product liability than provided for under German law.
Unless otherwise stipulated above, liability is excluded. In particular, the liability of LSP for indirect and consequential damages of the customer, including loss of profit and business interruption, is excluded to the fullest extent permitted by law.
LSP maintains a business and product liability insurance with the coverage amounts for personal injury of € 3.000.000,-, for property damage of € 2.000.000,- and financial loss of € 500.000,- per insured event (€ 6.000.000,-, € 6.000.000,- and € 1.000.000,- per insurance year), for certain damage items the coverage is limited according to the extended product liability insurance policy. Insofar as damages are insured under this policy, LSP's liability is limited in reason and amount to insurance-covered damages, unless other limitations of liability under this policy are more extensive.
Warranty claims and liabilities of LSP are excluded, if the goods are damaged by improper assembly by the customer (e.g. in a vehicle or test bench) or by the use in a vehicle (e.g. by accidents) or in a test bench or if they are structurally changed in the sphere of the customer and without prior coordination with and explicit approval by LSP.
§8 Joint liability
Any further liability for damages than provided for in § 7 is excluded - regardless of the legal nature of the asserted claim. This shall apply in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage pursuant to § 823 BGB.
The limitation according to subsection (1) shall also apply if the customer demands compensation for useless expenses instead of a claim for damages.
As far as the liability for damages of LSP is excluded or limited, this also applies with regard to the personal liability for damages of the employees, representatives and vicarious agents of LSP.
§9 Retention of title
LSP retains title to all goods delivered by it ("Reserved Goods") until all claims of LSP against the Customer, including conditional claims, have been satisfied. This also applies to claims arising in the future and to balance claims from current account relationship.
In case of breach of contract by the customer, in particular in case of default of payment, LSP is entitled to take back the goods subject to retention of title after setting and expiry of a reasonable period of time. The taking back of the reserved goods by LSP is a withdrawal from the contract. The costs incurred for the repossession are to be borne by the customer. After taking back the purchased goods, LSP is entitled to realize them, the realization proceeds are to be credited against the customer's liabilities - less reasonable realization costs.
The customer is obligated to treat the object of purchase with care; in particular, he is obligated to sufficiently insure it at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at its own expense.
The processing of the goods subject to retention of title by the customer is always carried out in the name and on behalf of LSP. If processing is carried out with items not belonging to LSP, LSP acquires co-ownership of the new item in proportion to the value of the goods subject to retention of title delivered by LSP (final invoice amount, including VAT) to the other processed items at the time of processing. The same applies if the reserved goods are mixed with other items not belonging to LSP. The same applies to the item created by processing/mixing as to the goods subject to retention of title; the Customer retains the sole ownership or co-ownership thus created for LSP.
In case of seizure of the reserved goods by third parties or other interventions by third parties, the customer is obliged to inform the third party of the ownership of LSP and to inform LSP immediately in text form so that LSP can enforce its ownership rights according to § 771 ZPO. If the third party is not in a position to reimburse LSP for the judicial or extrajudicial costs incurred in this connection, the customer is liable for this.
The customer is entitled to resell the object of sale in the ordinary course of business; however, he already now assigns to LSP all claims in the amount of the final invoice amount (including VAT) of the claim of LSP, which accrue to him from the resale against his customers or third parties, irrespective of whether the reserved goods have been resold without or after processing. The customer remains authorized to collect this claim even after the assignment. The authority of LSP to collect the claim itself remains unaffected. However, LSP undertakes not to collect the claim as long as the customer meets his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. However, if this is the case, LSP can demand that the customer informs LSP of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
LSP undertakes to release the securities to which LSP is entitled at the request of the Customer insofar as the realizable value of the reserved goods exceeds the claims to be secured by more than 10%, not only temporarily; the selection of the securities to be released is incumbent on LSP.
§10 Limitation period
Claims arising from material defects and defects of title against LSP are subject to a limitation period of one year from delivery or performance on the part of LSP. The above limitation periods also apply to contractual and non-contractual claims for damages of the purchaser, which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Unaffected by this are claims for damages to life, body and health and cases of intentional or grossly negligent damage caused by LSP, fraudulent intent as well as claims against LSP based on the Product Liability Act.
§11 Third party property rights
If LSP manufactures items or makes deliveries according to drawings, models or samples provided to LSP by the Customer, the Customer warrants that the manufacture, use or installation of the delivered products or services and their delivery do not infringe any third-party industrial property rights and indemnifies LSP against any third-party claims for damages.
In such cases, the customer must provide LSP with legal assistance upon request or enter into any legal disputes at its own expense.
The indemnification includes all expenses incurred by LSP in connection with the claim by third parties.
The limitation period for the indemnification claim is two years from knowledge or grossly negligent ignorance of LSP of the circumstances giving rise to the claim.
§12 Copyrights, ownership; cost of preliminary studies.
LSP reserves the industrial property rights (in particular patents, utility models) and copyrights to which it is entitled as well as the ownership of data, documents, sketches and drawings and software or the like created and made accessible to the customer within the scope of the execution of the contract with regard to the products, inventions or technical improvements created/distributed by it, previous projects and preliminary studies, sketches and documents which have been prepared by LSP or are based on data of LSP.
Objects within the meaning of the preceding paragraph, in particular documents, software and data to which copyrights exist, shall be kept secret in accordance with § 13 of these Terms and Conditions.
In case of infringement of property rights of LSP by the customer or in case of violation of the obligation of secrecy according to § 13 of these terms and conditions, LSP is entitled to withdraw from the contract after setting and expiration of an appropriate deadline. Further rights to omission or compensation remain unaffected by this.
Insofar as software from LSP is integrated into the purchased item/deliverables, LSP grants the Customer a non-exclusive right to use the software within the scope of the use of the delivery items according to the underlying contract; the software may not be duplicated, not modified/edited/decrypted and not used without the respective delivery item or passed on to third parties without a delivery item.
§13 Confidentiality, contractual penalty
The Customer shall oblige its employees, its freelancers and subcontractors in accordance with the confidentiality agreement existing between the parties and shall ensure that only those persons receive confidential information who are entrusted with the execution of the contract.
For each case of culpable violation of one of the confidentiality obligations of the customer or in the case of a violation of § 12 of these terms and conditions, the customer is obligated to pay to LSP a contractual penalty in the amount of 15% of the net sales subject to the contract, in the case of intentional actions excluding the continuation connection. Further claims for damages of LSP remain unaffected. In addition, the customer is liable with regard to the confidentiality obligation for its employees, freelancers and subcontractors.
§14 Protection of business relations, contractual penalty
The customer will not, without the written consent of LSP, contact or enter into or broker contracts with contractors of LSP, either itself or through third parties, during the term of the contract to which these terms and conditions apply and for a further two years after its termination, which relate to the services or makes covered by the contract, their further development and any successor models. "Contractors" of LSP are such business partners with whom LSP had performance relationships in the purchasing area for the delivery of goods and services at the time of the conclusion of this contract or with whom LSP had or has a business relationship until the termination of this contract. The submission of contracts, order confirmations or other documents such as delivery bills, invoices, consignment bills, etc. is sufficient proof of the existing business relationship.
The customer is not entitled to demand information about contractors of LSP and their services from LSP beyond their possible legal obligations. In any case, the customer is obliged to maintain silence about the other contractual partners and business processes of LSP that have become known to him.
For each case of culpable violation of one of the above agreements on protection of the article-related service relationships in commercial transactions, the customer is obliged to pay LSP a contractual penalty in the amount of 15 % of the net turnover achieved between the contractor and the customer, in case of intentional action excluding the continuation connection. Further claims for damages of LSP remain unaffected.
In case of contact by contractors of LSP within 2 years after termination of this contract, the customer will inform LSP immediately. If LSP is not prepared to provide the service offered by the contractors of LSP itself or through third parties for the customer at standard market conditions, the customer can carry out the business offered to him with the contractor.
§15 Place of performance, place of jurisdiction, applicable law
Unless otherwise stated in the order confirmation, the place of performance for the obligations of LSP and for those of the customer (in particular for payment) is the registered office of LSP.
If the customer is a merchant, the place of business of LSP is the place of jurisdiction. However, LSP is entitled to sue the customer also at the court of his domicile.
The law of the Federal Republic of Germany applies under exclusion of the norms of international private law.
Should any provision of this agreement be or become invalid, the legal validity of the remaining provisions shall remain unaffected. The contracting parties undertake to replace the invalid provision by a valid one or to close an unrecognized loophole in such a way that the economic success intended by the agreement is achieved.