General Terms and Conditions [GTC] of LEHNER GmbH SENSOR-SYSTEME

Status: 21.04.2023 

I: General provisions 
 
(1) The legal relationship between the supplier and the purchaser in connection with the deliveries and/or services of the supplier [hereinafter referred to as "deliveries"] shall be governed exclusively by these GTC. Any general terms and conditions of the purchaser shall apply only to the extent that the supplier has expressly agreed to them in writing. The scope of the deliveries shall be determined by the mutually agreed written declarations. 
 
(2) The supplier reserves its unrestricted property and copyright exploitation rights to cost estimates, drawings and other documents [hereinafter referred to as "Docu-ments"]. The documents may only be made accessible to third parties with the prior consent of the supplier and, if the order is not placed with the supplier, must be returned to the supplier immediately upon request. Sentences 1 and 2 shall apply mutatis mutandis to documents of the pur-chaser; these may, however, be made accessible to such third parties to whom the supplier has reliably transferred supplies. 
 
(3) The purchaser shall have the non-exclusive right to use standard software and firmware with the agreed perfor-mance features in unchanged form on the agreed devices. The purchaser may make a backup copy of the standard software without express agreement. 
 
(4) Partial deliveries are permissible insofar as they are reasonable for the customer. 
 
(5) The term "claims for damages" in these GTCs also includes claims for reimbursement of futile expenses. 
 
II: Prices, terms of payment and set-off 
 
(1) The prices are ex works excluding packaging plus the applicable statutory value added tax. 
 
(2) If the supplier has undertaken the installation or as-sembly and unless otherwise agreed, the purchaser shall bear all necessary ancillary costs such as travel and transport costs as well as allowances in addition to the agreed remuneration. 
 
(3) Payments are to be made free supplier's paying office. 
 
(4) The purchaser may only offset such claims that are undisputed or have been legally established. 
 
(5) The supplier shall be free to invoice its services by letter post or electronically by e-mail. 
 
III: Retention of title 
 
(1) The objects of the deliveries (reserved goods) shall remain the property of the supplier until all claims to which it is entitled against the purchaser from the business rela-tionship have been fulfilled. If the value of all security interests to which the supplier is entitled exceeds the amount of all secured claims by more than 20%, the sup-plier shall release a corresponding part of the security interests at the request of the purchaser; the supplier shall be entitled to choose between different security interests for release. 
 
(2) During the existence of the retention of title, the pur-chaser is prohibited from pledging or transferring owner-ship by way of security and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its cus-tomer or makes the retention that ownership is only trans-ferred to the customer when the latter has fulfilled its pay-ment obligations. 
 
(3) If the purchaser resells retained goods, it hereby as-signs to the supplier by way of security its future claims against its customers from the resale together with all ancillary rights - including any balance claims - without the need for any further special declarations. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods, the purchaser shall assign to the supplier that part of the total price claim which corresponds to the price of the reserved goods invoiced by the supplier. 
 
(4) a) The purchaser is permitted to process the reserved goods or to mix or combine them with other objects. The processing shall be carried out for the supplier. The pur-chaser shall keep the resulting new item for the supplier with the due care of a prudent businessman. The new object shall be deemed to be goods subject to retention of title. 
b) The supplier and the purchaser agree already now that in the event of combination or mixing with other items not belonging to the supplier, the supplier shall in any case be entitled to co-ownership of the new item in the amount of the share resulting from the ratio of the value of the com-bined or mixed reserved goods to the value of the other goods at the time of combination or mixing. To this extent, the new item shall be deemed to be reserved goods. 
c) The provision on the assignment of claims under no. (3) shall also apply to the new item. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined or mixed goods subject to retention of title invoiced by the supplier. 
d) If the purchaser combines the goods subject to retention of title with real estate or movable property, it shall also assign its claim to which it is entitled as remuneration for the combination, together with all ancillary rights, to the supplier by way of security in the amount of the ratio of the value of the combined goods subject to retention of title to the other combined goods at the time of the combination. 
 
(5) Until revoked, the purchaser shall be authorised to collect assigned claims from the resale. In the event of good cause, in particular default in payment, cessation of payments, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the purchaser, the supplier shall be entitled to revoke the purchaser's authori-sation to collect. In addition, the supplier may, after prior warning and observance of a reasonable period of time, disclose the assignment of security, realise the assigned claims and demand the disclosure of the assignment of security by the customer to the customer. 
 
(6) In the event of seizures, attachments or other orders or interventions by third parties, the purchaser shall notify the supplier without delay. If a justified interest is substantiat-ed, the purchaser shall immediately provide the supplier with the information required to assert its rights against the purchaser and hand over the necessary documents. 
 
7. In the event of violations of obligations by the purchaser, in particular in the event of default in payment, the supplier shall be entitled to withdraw from the contract in addition to taking back the retained goods after the unsuccessful expiry of a reasonable deadline set for the purchaser to 
perform; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The purchaser shall be obliged to surrender the goods. The taking back or assertion of the reservation of title or the seizure of the reserved goods by the supplier shall not constitute a with-drawal from the contract unless the supplier has expressly declared this. 
 
IV: Time limits for deliveries; Delay 
 
(1) The observance of deadlines for deliveries presuppos-es the timely receipt of all documents to be supplied by the purchaser, necessary approvals and releases, in particular of plans, as well as the observance of the agreed terms of payment and other obligations by the purchaser. Where such conditions are not fulfilled in due time, the time limits shall be extended accordingly; this shall not apply where the supplier is responsible for the delay. 
 
(2) If the failure to meet the deadlines is due to 
a) force majeure, e.g. mobilisation, war, acts of terrorism, riots or similar events (e.g. strike, lockout), 
b) virus and other attacks by third parties on the IT system of the supplier, insofar as these occurred despite compli-ance with the usual care in protective measures, 
c) obstacles due to German, US-American or other appli-cable national, EU or international regulations of foreign trade law or due to other circumstances for which the supplier is not responsible, or 
d) if the supplier fails to deliver in due time or in due form, the time limits shall be extended accordingly. 
 
(3) If the supplier is in delay, the purchaser may - provided he can credibly prove that he has suffered a loss as a result - claim compensation for each full week of default of 0.5%, but in no case more than a total of 5% of the price of that part of the supplies which, owing to the default, could not be put to the intended use. 
 
(4) The purchaser's claims for damages due to delayed supplies as well as claims for damages in lieu of perfor-mance exceeding the limits specified in no. (3) above shall be excluded in all cases of delayed supplies, even upon expiry of a time set to the supplier to effect the supplies. This shall not apply in cases of liability for intent, gross negligence or injury to life, body or health. The purchaser may only withdraw from the contract within the scope of the statutory provisions if the supplier is responsible for the delay in delivery. A change in the burden of proof to the detriment of the purchaser is not associated with the above provisions. 
 
(5) At the supplier's request, the purchaser is obliged to declare within a reasonable period of time whether he withdraws from the contract due to the delay in delivery or insists on delivery. 
 
(6) If dispatch or delivery is delayed at the request of the purchaser by more than one month after notification of readiness for dispatch, the purchaser may be charged storage costs amounting to 0.5% of the price of the items of the supplies for each additional month or part thereof, but not exceeding a total of 5%. The contracting parties are free to prove higher or lower storage costs. 
 
V: Transfer of risk 
 
(1) Even in the case of carriage paid delivery, the risk shall pass to the purchaser as follows: 
a) in the case of delivery without installation or assembly, when it has been brought for dispatch or collected. At the request and expense of the purchaser, the supplier shall insure the delivery against the usual transport risks; 
b) in the case of delivery with installation or assembly, on the day of take-over in the purchaser's own works or, if agreed, after successful trial operation. 
 
(2) If the dispatch, the delivery, the start, the performance of the installation or assembly, the taking over in the own works or the trial run is delayed for reasons for which the purchaser is responsible or if the purchaser is in default of acceptance for other reasons, the risk shall pass to the purchaser. 
 
VI: Installation and assembly  Unless otherwise agreed in writing, the following provisions shall apply to assembly and erection:  (1) The purchaser shall undertake and provide in due time and at its own expense: a) all earthwork, construction work and other ancillary work outside the scope of the contract, including the skilled and unskilled workers, building materials and tools required for this purpose, b) the items and materials required for assembly and commissioning, such as scaffolding, lifting gear and other equipment, fuels and lubricants, c) energy and water at the place of use, including connec-tions, heating and lighting, d) sufficiently large, suitable, dry and lockable rooms at the place of assembly for the storage of machine parts, appa-ratus, materials, tools, etc. and adequate working and recreation rooms for the assembly personnel, including sanitary facilities appropriate to the circumstances; in addition, the purchaser shall take the same measures to protect the property of the supplier and the assembly personnel at the site as it would take to protect its own property, e) protective clothing and protective devices which are necessary due to special circumstances at the assembly site.  (2) Prior to the start of the assembly work, the customer shall provide, without being requested to do so, the neces-sary information on the location of concealed electricity, gas and water lines or similar installations as well as the required structural data.  (3) Prior to the start of assembly or erection, the materials and objects required for the commencement of work must be available at the site of assembly or erection and all preparatory work must have progressed to such an extent that assembly or erection can be commenced as agreed and carried out without interruption. Access roads and the installation or assembly site must be leveled and cleared.  (4) If assembly, erection or commissioning is delayed due to circumstances for which the supplier is not responsible, the purchaser shall bear the reasonable costs incurred for idle times and any additional travelling of the supplier or the erection personnel. 5.  (5) The purchaser shall immediately certify to the supplier on a weekly basis the duration of the working time of the erection personnel and the completion of the erection, assembly or commissioning.  
(6) If the supplier demands acceptance of the supplies after completion, the purchaser shall carry out such ac-ceptance within two weeks. Acceptance shall be deemed to have taken place if the purchaser allows the two-week period to elapse or if the supplies have been put to use, possibly after completion of an agreed test phase.   
 
VII: Acceptance  The purchaser may not refuse to take delivery of the sup-plies on the grounds of minor defects.  Article VIII: Material defects  The supplier shall be liable for material defects as follows: (1) All parts or services showing a material defect shall, at the supplier's discretion, be repaired, replaced or provided again free of charge, provided that the cause of the mate-rial defect was already present at the time of passing of risk.  (2) Claims for subsequent performance shall become statute-barred 12 months after the statutory commence-ment of the limitation period; the same shall apply to re-scission and reduction. This period shall not apply insofar as longer periods are prescribed by law in accordance with    438 para. 1 no. 2 (buildings and items for buildings), 479 para. 1 (right of recourse) and 634a para. 1 no. 2 (construction defects) of the German Civil Code (BGB), in the case of intent, fraudulent concealment of the defect and non-compliance with a quality guarantee. The statuto-ry provisions on suspension of expiry, suspension and recommencement of the periods shall remain unaffected.  (3) Notices of defects by the purchaser must be made immediately in writing.   (4) In the event of notices of defects, payments of the purchaser may be withheld to an extent that is in reasona-ble proportion to the material defects that have occurred. The purchaser may withhold payments only if a notice of defect is asserted about which there can be no doubt. The purchaser shall have no right of retention if its claims for defects are time-barred. If the notification of defects is unjustified, the supplier shall be entitled to demand com-pensation from the purchaser for the expenses incurred.  
 
(5) The supplier shall be given the opportunity to remedy the defect within a reasonable period of time.  
 
(6) If the subsequent performance fails, the purchaser may - without prejudice to any claims for damages according to no. (10) - rescind the contract or reduce the remuneration.  (7) Claims for defects shall not exist in the case of insignif-icant deviations from the agreed quality, in the case of insignificant impairment of usability, in the case of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construc-tion work, unsuitable foundation soil or as a result of par-ticular external influences which are not assumed under the contract, as well as in the case of non-reproducible software errors. If the purchaser or third parties carry out improper modifications or repair work, no claims for de-fects shall exist for these or for the resulting consequenc-es.  (8) Claims of the purchaser for expenses incurred in the course of supplementary performance, including costs of travel, transport, labor, and material, shall be excluded to the extent that expenses are increased because the sub-ject-matter of the supplies has subsequently been brought to another location than the purchaser's premises, unless doing so complies with the normal use of the supplies.  (9) The purchaser's right of recourse against the supplier pursuant to Sec. 478 BGB (German Civil Code) shall only exist to the extent that the purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects. Furthermore, no. (8) shall apply mutatis mutandis to the scope of the purchaser's right of recourse against the supplier pursuant to Sec. 478 para. 2 German Civil Code (BGB).  (10) Claims for damages of the purchaser based on a Defect shall be excluded. This shall not apply in the event of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, body or health and in the event of intentional or grossly negligent breach of duty by the supplier. A change in the burden of proof to the detriment of the purchaser is not connected with the above provisions. Further or other claims of the purchaser than those provided for in this Art. VIII for a material defect are excluded.  IX: Industrial property rights and copyrights; defects of title  (1) Unless otherwise agreed, the supplier shall be obliged to deliver the supplies free from third parties' industrial property rights and copyrights (hereinafter referred to as IPR) only in the country of the place of delivery. If a third party asserts a justified claim against the purchaser based on an infringement of an IPR by the supplies made by the supplier and used in conformity with the contract, the supplier shall be liable to the purchaser within the period stipulated in Art. VIII no. (2) as follows: a) The supplier shall, at its option and expense, either obtain a right to use the IPR with respect to the supplies concerned or modify the supplies such that they no longer infringe the IPR, or replace them. If this is not possible for the supplier under reasonable conditions, the purchaser shall be entitled to the statutory rights of rescission or reduction. b) The supplier's obligation to pay damages shall be gov-erned by Art. XII. c) The aforesaid obligations of the supplier shall only apply to the extent that the purchaser notifies the supplier with-out undue delay in writing of the claims asserted by the third party, does not concede the existence of an infringe-ment and leaves any protective measures and settlement negotiations to the supplier's discretion. If the purchaser ceases to use the supplies in order to minimize the dam-age or for other important reasons, it shall be obliged to point out to the third party that such cessation of use does not constitute an acknowledgement of the infringement of an IPR. 2.  (2) Claims of the purchaser shall be excluded insofar as the purchaser is responsible for the infringement of the IPR.  (3) Claims of the purchaser shall also be excluded if the infringement of the IPR is caused by specifications made by the purchaser, by an application not foreseeable by the supplier or by the supplies being modified by the purchaser or being used together with products not provided by the supplier. 
 (4) In the event of infringements of industrial property rights, the claims of the purchaser set forth in no. (1) a) shall otherwise be governed by the provisions of Art. VIII no. (4), (5) and (9) shall apply accordingly.  (5) In the event of other defects of title, the provisions of Art. VIII shall apply accordingly. 
 
(6) Further claims or claims other than those provided for in this Art. IX against the supplier and its vicarious agents on account of a defect in title shall be excluded.   
 
 
X: Reservation of performance  (1) Performance of the contract shall be subject to the proviso that there are no obstacles due to German, US-American or other applicable national, EU or international regulations of foreign trade law as well as no embargos or other sanctions.  The purchaser shall be obliged to provide all information and documents required for the export, transfer or import.  XI: Impossibility; Adjustment of contract  (1) If delivery is impossible, the purchaser shall be entitled to claim damages, unless the supplier is not responsible for the impossibility. However, the purchaser's claim for damages shall be limited to 10 % of the value of that part of the supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in cases of liability based on intent, gross negligence or injury to life, body or health; this does not imply a change in the burden of proof to the detriment of the purchaser. The purchaser's right to withdraw from the contract shall re-main unaffected.  (2) Insofar as events within the meaning of Art. IV no. (2) a) to c) substantially change the economic importance or the contents of the supplies or considerably affect the supplier's business, the contract shall be adapted taking into account the principles of reasonableness and good faith. If this is not economically justifiable, the supplier shall be entitled to withdraw from the contract. The same shall apply if required export permits are not granted or cannot be used. If the supplier intends to exercise this right of rescission, it shall notify the purchaser thereof without undue delay after having become aware of the conse-quences of the event, even if an extension of the delivery period had initially been agreed with the purchaser.  XII: Other claims for damages  (1) Unless otherwise provided for in these General Terms and Conditions, any claims for damages of the purchaser, irrespective of their legal basis, in particular for breach of duties arising from the contractual obligation and from tort, shall be excluded.  (2) The supplier shall expressly not be liable for damages incurred by the purchaser directly or indirectly as a result of cyber attacks. The supplier shall also not be liable if the purchaser suffers damage from cyber attacks that occur via the supplier's IT infrastructure and/or supplied IT com-ponents, e.g. computers, USB hubs, data interfaces that are part of the supplier's scope of delivery. The supplier shall not be liable for damages incurred by the Customer if the Customer operates the system supplied by the supplier online. The supplier shall also not be liable for damages incurred by the Customer and the Operator if the Operator is requested by the supplier to operate the system online.   (3) This does not apply as far as liability is as follows: a) according to the product liability law, b) in case of intent, c) in the case of gross negligence of owners, legal repre-sentatives or executives, d) in case of fraudulent intent,  e) in case of non-compliance with an assumed guarantee, f) for culpable injury to life, body or health, or g) due to culpable violation of essential contractual obliga-tions.  The claim for damages for the violation of essential con-tractual obligations shall, however, be limited to the fore-seeable damage typical for the contract, unless another of the aforementioned cases applies. 4.  (4) The above provisions do not imply a change in the burden of proof to the detriment of the purchaser.  
XIII: Place of jurisdiction and applicable law  (1) If the purchaser is a merchant, the sole place of juris-diction for all disputes arising directly or indirectly from the contractual relationship shall be the supplier's place of business. However, the supplier shall also be entitled to bring an action at the purchaser's place of business.  (2) This contract, including its interpretation, shall be gov-erned by German law to the exclusion of the United Na-tions Convention on Contracts for the International Sale of goods (CISG).  XIV: Binding force of the contract  The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. This shall not apply if adherence to the contract would represent an unreasonable hardship for one of the parties.  
 
Kirchheim unter Teck, den 21.04.2023