1.1 Our terms and conditions of sale and delivery apply exclusively to all our deliveries and services, also from future business transactions. Supplementary or deviating terms and conditions of the customer shall only apply if expressly accepted by us in writing. These Terms and Conditions of Sale and Delivery shall be deemed accepted at the latest upon acceptance of our deliveries and services. Our terms of sale and delivery only apply to companies, legal entities under public law and special funds under public law.
2.1 Our offers are subject to change without notice. All contracts are concluded upon receipt of our written order confirmation, at the latest upon delivery of the goods or performance of the service. Our offer, our order confirmation and these terms of sale and delivery are decisive for the content of the contract.
2.2 The agreed properties and characteristics of our goods are exclusively those which have been expressly agreed between the parties. Without such an agreement, the product description mentioned on the website and in the catalogues or in our order confirmation shall apply. Other or more extensive properties and features are only considered as agreed quality if they are expressly confirmed by us in writing.
2.3 LTT always endeavours to determine the information given in brochures and on the website according to the current state of science and technology and according to the information of the suppliers. However, due to different measurement methods, it cannot be excluded that the technical values stated in the product descriptions may be exceeded or undershot by up to a percentage range of 10% for comparative measurements.
Declarations on our part regarding the quality of the goods shall only constitute a warranty or quality guarantee if we have expressly designated them in writing as a warranty or quality guarantee.
2.4 LTT grants the Customer the non-exclusive, unlimited right to use LTT's software products and the results of work achieved for internal purposes to the agreed extent after payment has been made. Rights of use to third-party products shall be determined, if necessary, in accordance with the attached conditions of the manufacturer.
We retain all rights to the software created by us and the associated documents as well as to changes that we have made.
The customer may only copy the software to the extent necessary for backup purposes. A reference to our copyright must be attached to or included in the backup copy. Documentation and other material may not be copied.
Industrial property rights and copyright notices may not be removed.
2.5 The basis for the development of individual software or similar services is exclusively the detailed concept in its final version or the agreed service description. Partial services can be invoiced separately.
If the Customer changes his requirements within the scope of an order, LTT may demand an appropriate adjustment of his remuneration insofar as the change has an effect on this. Agreed completion dates shall be postponed accordingly in such a case. The customer has to make the change request in written form. LTT shall examine this application without delay and inform the Customer in writing of the result. If no agreement is reached on the adjustment of the order, it shall be continued with the agreed content.
Work services are subject to acceptance. LTT may demand the performance of partial acceptance for delimitable partial services. In this case, the total performance shall be deemed to have been accepted with the last partial acceptance.
LTT declares to the customer that the service can be accepted with reference to the following acceptance fiction. After this declaration, the customer must test the respective service immediately and declare acceptance within 10 working days. Acceptance is to be declared if the service complies in essential parts with the requirements agreed in the service description. Acceptance shall also be deemed to have been granted by the customer upon signing of the mission report or use in real operation. If the customer does not accept the goods within the aforementioned period, acceptance shall be deemed to have been granted unless justified defects are notified accordingly at the same time. Only defects that significantly impair overall functionality are considered defects that prevent acceptance. The acceptance procedure is defined by LTT, whereby it is the customer's responsibility to provide the test data. On acceptance, a report to be signed by both parties shall be drawn up, accompanied by a list of any defects found.
LTT must be notified of any significant defects without delay and in a comprehensible form. These will be eliminated by LTT within a reasonable time. Subsequently, a new acceptance takes place with regard to the defect complained of.
3.1 Unless otherwise agreed between the parties, delivery shall be "ex works" (Incoterms 2000). All transport and delivery costs are to be borne by the customer.
3.2 Delivery and service dates are only binding if we have expressly confirmed this. Delivery dates designate the departure ex works, in the case of free domicile deliveries the day of goods receipt by the customer. Specified delivery periods are deemed to be approximate. They run from the dispatch of the written order confirmation. If the contractual partner is obliged to make advance performance, the delivery period shall be calculated from receipt of the consideration by us.
3.3 If a delivery date is not met for reasons for which LTT is responsible, the Contractual Partner may grant LTT a reasonable grace period in writing. If this expires without delivery, the contractual partner is only entitled to withdraw from the contract. Further rights, e.g. damages, are excluded, unless gross negligence is involved.
3.4 If LTT is prevented from fulfilling its obligations due to force majeure events - regardless of whether they have occurred at LTT or its suppliers - the delivery period shall be extended by the duration of the hindrance plus a reasonable start-up period. Force majeure includes transport obstructions, operational disruptions, delays in the delivery of raw materials, strikes, warning strikes, lockouts and other circumstances which LTT could not foresee and could not avert even if it exercised the care it was obliged to exercise in its own affairs. The customer can withdraw from the contract if he cannot be expected to wait for this longer delivery time. If delivery becomes impossible, LTT shall be released from its obligation to deliver. The Customer may request LTT to declare whether it wishes to withdraw from the contract or to deliver within a reasonable period of time. If LTT does not declare its intention, the Purchaser may withdraw from the contract in this respect.
3.5 Our named delivery and service dates subject to timely and proper self-supply. LTT does not assume any procurement risk vis-à-vis suppliers.
If we are not supplied in time and properly and we have informed the customer immediately about this, we are entitled to withdraw from the contract after two weeks, calculated from the delivery or service date specified by the customer, provided that we immediately reimburse the customer for any consideration paid.
3.6 LTT reserves the right to make customary design changes at any time without prior notice. Other design changes may be made if they are reasonable for the customer taking into account his interests. The contractual partner cannot claim that design changes can also be retrofitted within an ongoing series for devices already delivered.
3.7 LTT is entitled to make partial deliveries.
3.8 The risk of shipment shall pass to the Purchaser in all cases, even in the case of carriage paid delivery, upon leaving LTT's premises. Upon request, LTT will insure the goods against transport damage. The transport insurance expires in any case on arrival of the goods at the customer or at the delivery point designated by him.
4.1 Unless otherwise expressly agreed, prices are ex works plus packaging with the exception of return and exchange packaging and excluding value-added tax.
4.2 All invoices are due for payment to an account specified by us within 14 days of receipt without any deductions.
4.3 LTT reserves the right, at its own discretion, to provide services only after payment in advance.
4.4 Payment shall only be deemed to have been made when we can finally dispose of the amount. The acceptance of bills of exchange and cheques, which are only accepted on account of performance, remains reserved. By accepting bills of exchange or cheques we do not assume any obligation with regard to protest and timely presentation. All expenses or other costs incurred in the collection of bills of exchange or cheques shall be borne by the customer.
4.5 If a risk to our payment claims becomes apparent due to the customer's inability to pay, we shall be entitled to demand immediate payment of all claims not yet due from the entire business relationship with the customer, provided that we have already provided our deliveries and services. This also applies if we have already accepted bills of exchange or cheques. A risk exists if information from a bank or credit agency suggests the credit unworthiness of the customer. The same applies if the customer is in default with at least two invoices. In this case, we shall also be entitled to set the customer a reasonable period of time within which he shall, at his discretion, either render consideration or provide security against the provision of the outstanding deliveries and services. If this period expires unsuccessfully, we may withdraw from the contract. In the event of cessation of payments or overindebtedness on the part of the customer, setting a grace period is not necessary.
4.6 In the event of default in payment, we shall be entitled, subject to the assertion of a higher default damage, to demand interest in the amount of 8 percentage points above the base interest rate.
4.7 Offsetting by the customer is only permitted with an undisputed or legally established claim. Insofar as offsetting is not permitted, the customer is not entitled to a right of retention, otherwise only with regard to claims arising from the same contract.
4.8 The assignment of claims against us requires our consent.
5.1 Visible defects and deviations in quantity must be reported to LTT in writing immediately, but at the latest within 5 working days after receipt of the goods. Timely dispatch of the notice of defects shall suffice to comply with the deadline. In the event of hidden defects, the Customer shall be obliged to give written notice of such defects to LTT upon their discovery, but no later than within the period of limitation. The customer shall bear the burden of proof for all requirements, in particular for the existence of the defect, for the time of detection of the defect and for the timeliness of the notice of defect. LTT's liability shall be excluded if the Customer fails to make the aforementioned complaints.
The notice of defect must clearly state the type of product complained about, the type of defect and the delivery note number.
5.2 A deviation from the quality owed shall not be deemed a material defect if it is insignificant.
5.3 In the event of defectiveness of the goods, the customer's claims for damages are excluded, unless the defect is due to intentional or grossly negligent conduct by us, our legal representatives or vicarious agents, was fraudulently concealed or is covered by a quality guarantee assumed by us, which also grants the customer claims for damages in the case of warranty as evidenced by the guarantee certificate.
5.4 In the event of justified and timely notifications of defects by the customer, we are entitled, at our discretion, to rectification of defects or subsequent delivery against return of the goods. In the event of subsequent delivery, we are obliged to bear all expenses necessary for this purpose, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the purchased item was taken to a place other than the place of destination. The customer can only assert his other statutory warranty rights if he has set us an unsuccessful reasonable deadline for subsequent performance, if we refuse subsequent performance, if it fails or if it is unreasonable for the customer. A deadline is not necessary in the case of reduction of the purchase price, withdrawal and claim for reimbursement of expenses if the customer had to take back our goods from a consumer as a result of their defectiveness or a consumer has reduced the purchase price compared to him.
5.5 In cases of defects, the limitation period shall be one year from delivery of the purchased item to the customer. Shorter statutory limitation periods take precedence.
6.1 In any case we are liable without limitation for damages to life, body and health as well as according to the Product Liability Act.
6.2 In the event of a breach of essential contractual obligations (so-called cardinal obligations), our liability for damages in the event of intent or gross negligence shall be unlimited, in the event of simple negligence limited to compensation for foreseeable, contract-typical damages.
6.3 In all other cases, claims for damages against us for whatever legal reason are excluded, unless there is an intentional or grossly negligent breach of duty by us, our legal representatives or our vicarious agents. In the case of gross negligence, our liability is limited to the foreseeable damage typical for this type of contract.
6.4 Insofar as our liability is excluded or limited in accordance with the above paragraphs, this shall also apply to the liability of our vicarious agents and vicarious agents.
6.5 Should we have granted the customer certain rights within the scope of a quality guarantee in the event of a defect, such rights shall remain unaffected by the above limitations of liability.
6.6 The limitation period shall be one year from delivery of the object of purchase to the customer in cases of breach of the obligation of protection and custody, i.e. in the event of breach of our obligation to take into account the rights, legal interests and interests of the customer. If the object of sale has not been delivered, the limitation period begins at the end of the year in which the claim arose. Shorter statutory limitation periods take precedence.
7.1 The goods shall remain our sole property until all claims (including all current account balance claims) to which we are entitled against the customer now or in the future for any legal reason have been settled.
7.2 The processing or transformation of our goods by the customer is always carried out for us as the manufacturer, without any obligations arising for us as a result. If our goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our goods to the value of the other processed item at the time of processing. In all other respects, the same applies to the product resulting from processing as to our goods delivered under reservation of title.
7.3 The customer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in arrears with his payment obligations to us. Pledging or transfer by way of security is not permitted. Claims from the resale of the goods (including all balance claims from the current account), insurance claims and claims against third parties due to damage, destruction, theft or loss of the goods are hereby assigned to us by way of security. We accept this assignment. If we are only entitled to co-ownership of the reserved goods, the advance assignment shall be limited to that part of the claim which corresponds to the share of our co-ownership (on the basis of the invoice value). In the event of resale of the goods, the customer must retain title to the reserved goods vis-à-vis its customers until full payment of the purchase price. The customer is not entitled to resell the goods to third parties if the purchase price claim from the resale is subject to a prohibition of assignment.
7.4 We revocably authorize the customer to collect the claims assigned to us for his own account in his own name. This collection authorization can be revoked if the customer does not properly meet his payment obligations to us or if our claims appear to be endangered by the customer's inability to pay. Upon request, the customer must inform us of the debtors of the assigned claims.
7.5 In the event of access by third parties to the reserved goods, the customer shall point out our ownership and inform us immediately. Our intervention costs are borne by the customer.
7.6 The customer is entitled to demand the release of claims from us insofar as the realisable value of our securities exceeds our claims to be secured by more than 10%. We shall select any claims to be released.
7.7 In the event of default in payment on the part of the customer, we shall be entitled to demand the provisional return of our reserved goods at the customer's expense - by surrender or return to us - or, if applicable, to demand the assignment of the customer's claims for restitution against third parties, even without setting a grace period. Taking back or seizure of the reserved goods by us does not constitute a withdrawal from the contract. We are ready at any time to return the returned goods to the customer against payment of the purchase price.
7.8 If, in the case of deliveries abroad, the retention of title agreed under item 7 does not comply with third-party law, the provisions on retention of title shall be reinterpreted in such a way that they comply with third-party law and come close to the provisions made under item 7.
8.1 All business relations of LTT shall be exclusively subject to the law of the Federal Republic of Germany to the exclusion of all international and supranational (contractual) legal systems, in particular the UN Sales Convention.
8.2 The place of performance for deliveries and services shall be LTT's place of business.
9.1 The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Würzburg. However, we also have the right to sue the customer at his general place of jurisdiction.
9.2 The exclusive place of jurisdiction for all disputes arising from the contractual relationship shall also be Würzburg, Federal Republic of Germany (Article 17 of the European Convention on Jurisdiction and Enforcement in Judgment in Civil and Commercial Matters of 27.09.1968 (EuGVÜ)). We also reserve the right to appeal to any other court having jurisdiction under the EuGVÜ of 27.09.1968.
Status October 2005
