1. General – Scope
1.1 Our Terms and Conditions of Sale and Delivery apply exclusively. They also apply to all future business relationships, even if they are not expressly agreed upon again. We do not recognise any terms and conditions of the customer that contradict or deviate from our terms and conditions of sale and delivery unless we have expressly agreed to their validity in writing.
1.2 Our Terms and Conditions of Sale and Delivery also apply if we carry out delivery to the customer without reservation, even if we are aware of the customer's terms and conditions of sale and delivery which contradict or deviate from our terms and conditions of sale and delivery.
1.3 Subsidiary agreements, assurances or amendments to these terms and conditions of sale and delivery are only binding if we have expressly accepted them in writing.
2 Offer – offer documents
2.1 All offers are subject to confirmation and are non-binding unless otherwise specified.
2.2 Drawings, illustrations, dimensions and weights and other performance data are only binding if this has been expressly agreed in writing.
2.3 We reserve proprietary rights and copyrights to illustrations, drawings, calculations and other documents.
3 Prices – terms of payment – default – offsetting
3.1 Unless otherwise stated in the order confirmation or in the absence of any other agreement, our prices apply.
3.2 The deduction of a cash discount requires special written agreement.
3.3 The value added tax is shown separately on the invoice at the statutory rate on the day of invoicing.
3.4 Unless otherwise specified in the order confirmation or in the absence of other special agreements, the purchase price is due for payment gross (without deduction) within 7 days of the date of invoice. If the customer defaults on payment, we shall be entitled to demand default interest to the amount of 8 percentage points above the respective base interest rate per annum. If we are able to prove higher damage caused by delay, we shall be entitled to assert this too.
3.5 In the case of defects proven by the customer, the customer shall only be entitled to withhold payment if the amount withheld is in reasonable proportion to the defects and the expected costs of subsequent performance (in particular remedy of defects). The customer is not entitled to assert claims and rights for defects if he has not made due payments and the amount due is not in reasonable proportion to the value of the defective delivery or service.
3.6 The customer is only entitled to set-off rights if his counterclaims have been legally established or are undisputed or acknowledged by us. In addition, he shall be entitled to exercise a right of retention insofar as a counterclaim is based on the same legal relationship.
4 Delivery time – delay in delivery
4.1 Delivery dates or deadlines, which can be agreed bindingly, must be in writing.
4.2 The start of the delivery period stated by us presupposes that all technical questions have been clarified.
4.3 Delays in delivery and performance due to force majeure and due to events which make delivery considerably more difficult or impossible for us, not only temporarily. In particular, this includes strikes, lockouts, official orders, etc., even if they occur at our suppliers' premises. We are not responsible for this, even in the case of bindingly agreed deadlines and dates. They entitle us to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part on account of the unfulfilled part. However, we undertake to inform the customer immediately in writing of the occurrence of this exception.
4.4 If the hindrance lasts longer than three months, the customer shall be entitled to withdraw from the contract with regard to the unfulfilled part of the contract after setting a reasonable period of grace. If the delivery time is extended or if we are released from our obligation to deliver or perform, the customer cannot derive any claims for damages from this.
4.5 Adherence to our delivery obligation presupposes the timely and proper fulfilment of the customer's obligations. The defence of non-performance of the contract remains reserved.
4.6 If the customer is in default of acceptance or if he violates other obligations to co-operate, we shall be entitled to demand damages incurred by us in this respect, including additional expenses. We reserve the right to make further claims.
4.7 If the customer fails to comply with a written demand for acceptance within a reasonable period of time in the event of a delay in acceptance, we shall be entitled to refuse performance of the contract and to demand compensation for non-performance. In this case, we shall be entitled to claim either a lump sum of 20% of the agreed gross purchase price or to demand compensation for the damage actually incurred from the customer. In the event of a lump-sum claim for damages, the customer shall be entitled to prove that we have suffered only minor damage.
4.8 Insofar as the prerequisites of paragraph 4.6 are met, the risk of accidental loss or accidental deterioration of the object of purchase passes to the customer at the time when he is in default of acceptance or default of payment.
4.9 Partial deliveries and partial services are permissible unless the partial delivery or partial performance is not of interest to the customer.
5 Shipping conditions – transfer of risk
5.1 Insofar as shipping is not carried out by our own vehicles, all shipments are at the risk of the customer who shall also responsible for insuring the goods. The transfer of risk takes place at the time the goods are handed over by us to the shipping agent or the customer.
5.2 Recognisable transport damage must be claimed in writing immediately upon acceptance of the goods, hidden transport damage must be claimed in writing with us or the delivering shipping agent within 7 days of discovery at the latest.
5.3 In the case of shipment by us, we reserve the right to choose the shipment route and the type of shipment.
6 Liability for deficiencies
6.1 In the case of newly manufactured goods, the warranty period for ordering parties is 12 months and begins with delivery of the goods. Any warranty for used goods is excluded. These limitation periods also apply to all claims for damages in connection with a deficiency.
6.2 The customer is subject to the inspection and notification obligations in accordance with Article 377 of the German Commercial Code (HGB); if the customer violates these obligations, the legal consequences stated therein shall apply.
6.3 However, Article 377 of the German Commercial Code (HGB) also applies between us and the customer even if the customer has agreed to the contrary. Article 14 of the German Civil Code (BGB) and the appointment is made in the exercise of a commercial or self-employed professional activity.
6.4 Apart from this and independent of Article 377 of the German Commercial Code (HGB), the customer is obliged to report obvious deficiencies in writing within a period of 1 week of receipt of the goods, otherwise the assertion of warranty claims is excluded. Timely shipment is sufficient to comply with the deadline.
6.5 The customer bears the full burden of proof for all prerequisites for claims, in particular for the deficiency itself, for the time of discovery of the deficiency and for timely notification of the deficiency.
6.6 Warranty claims do not exist in the case of merely insignificant deviations from the agreed quality or merely insignificant impairment of usability.
6.7 Insofar as we are responsible for a deficiency in the object of sale, we shall be entitled to either rectification of the deficiency or replacement delivery – in deviation from Article 439, Paragraph 1 of the German Civil Code (BGB) – at our discretion. The expenses necessary for the purpose of subsequent performance shall be borne by the customer to the extent that they increase as a result of the delivery item being moved to a location other than the customer's branch office, unless the shipment corresponds to its intended use.
6.8 If a two-time repair or replacement delivery fails, the customer shall be entitled to withdraw from the contract or to demand an appropriate reduction of the purchase price (reduction) at his discretion. Further claims of the customer are excluded. This applies in particular to claims for damages by the customer. The warranty does not cover natural wear and tear or damage caused either by improper handling, faulty assembly or commissioning by the customer or third parties.
6.9 Complaints cannot be accepted if the goods are second choice, special items or goods marked as used and the fitness for use of the goods is not significantly impaired. Deficiencies taken into account at the time of purchase cannot be claimed as a complaint. Complaints due to impairments that are unavoidable according to the state of the art do not constitute deficiencies, as the cause is neither due to the material nor the manufacture. The same applies to minor deviations in quality, weight, size, thickness, width, finish, pattern and colour to the extent permitted by applicable standards.
6.10 Insofar as the customer asserts rights arising from the recourse provisions of Articles 478 and 479 of the German Civil Code (BGB), we exclude liability for damages.
7 Further liability
7.1 We shall be liable in cases of our own wilful intent or gross negligence or the wilful intent or gross negligence of a representative or vicarious agent in accordance with the statutory provisions. In all other respects, we shall only liable in accordance with the German Product Liability Act for injury to life, limb or health, or for culpable breach of essential contractual obligations. The claim for damages for the violation of essential contractual obligations is, however, limited to the foreseeable damage typical of the contract. Irrespective of the legal basis, our liability is limited to the foreseeable damage typical for the contract, even in cases of gross negligence.
7.2 However, liability for damage caused by the delivery item to legal goods of the customer, e.g. damage to other items, is fully excluded. This does not apply in the event of intent or gross negligence or liability for injury to life, limb or health.
7.3 The provisions of sections 7.1. and 7.2. above apply to compensation for damages in addition to performance and compensation for damages instead of performance, irrespective of the legal grounds, in particular for deficiencies, breach of obligations arising from the contractual obligation or tort. They also apply to the claim for reimbursement of futile expenses.
We shall be entitled to withdraw from the contract at any time and without warning if the financial circumstances of the customer have deteriorated significantly and the fulfilment of the customer's obligation is endangered as a result. These preconditions are considered to be fulfilled, for example, if the customer is suspended from payment, enforced execution measures are carried out due to payment claims, protests against bills of exchange and cheques or insolvency proceedings are filed against the assets of the customer or such proceedings are initiated. The rights also exist if these conditions already existed at the time of conclusion of the contract but were not known to us.
9 Retention of title
9.1 We reserve ownership of the purchased item until receipt of payment of the claim arising from the specific delivery (in case of payment by cheque or bill of exchange up to redemption) (simple reservation of title). In the event of breach of duty on the part of the customer – in particular default in payment – we shall be entitled to demand the surrender of the delivery item and/or to withdraw from the contract, even without setting a deadline. In these cases, the customer is obliged to surrender the goods immediately. Our request to return the delivery item does not constitute a declaration of withdrawal unless this is expressly stated.
9.2 For the rest, we agree to a security interest for all further goods delivered and already paid by us because of all claims still existing from the business relationship. The handover of the goods is replaced by the fact that the customer shall be entitled to free possession of the goods (ownership institute).
9.3 The customer is obliged to treat the purchased item with care. In particular, he is obliged to insure it sufficiently at his own expense against damage caused by fire, water and theft at reinstatement value.
9.4 In the event of seizures and other encroachments, the customer must inform us immediately in writing so that we can take legal action in accordance with Article 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is in a position to reimburse the court and out-of-court costs of a lawsuit in accordance with Article 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for the loss incurred by us.
9.5 The customer shall entitled to resell the purchased item in the ordinary course of business; however, he already assigns all claims to the amount of the final invoice (incl. value added tax) of our claim to us, which accrue to him from a resale against his customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The assignment is made to secure all our claims against the customer, insofar as the claim is not secured by a simple retention of title in accordance with section 9.1.
The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect this 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 insolvency proceedings has been filed or payments have been suspended. If this is the case, however, we shall be entitled to demand that the customer discloses the debtors' claims assigned to us, provides all information necessary for their collection, hands over the associated documents and informs the debtors (third parties) of the assignment. Furthermore, the customer already authorises us to notify the debtors of the transfer of claims in his name and on his behalf.
9.6 The processing or remodelling of the purchased item by the customer shall always be carried out for us. If the purchased item is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the purchased item (final invoice amount, including value added tax) to the other processed objects at the time of processing. In all other respects, the same applies to the item created by processing as to the purchased item delivered under reservation of title.
9.7 The customer also assigns to us the claims to secure our claims against him, which arise against a third party as a result of the combination of the purchased item with real estate.
9.8 We undertake to release the securities to which we are entitled at the customer's request insofar as the realisable value of our securities exceeds the claims to be secured by more than 20%; we shall be responsible for selecting the securities to be released.
10 Additional conditions for assembly and repair work
10.1 All assembly work to be carried out by us is based on the
execution drawings approved by the customer. The assembly services shall be handed over to the customer in proper condition. Fine cleaning shall be the responsibility of the client or contractor.
10.2 If dimensional tolerances occur that do not comply with the VOB or DIN regulations, overhead costs must be applied for additional expenses incurred. Invoicing is based on the timesheet at our current hourly rates. All additional services or additional expenses, such as fitting work, special ceiling and wall connections, etc. shall be charged separately. Expenses resulting from obstructions caused by other tradesmen, mounting displacements, etc. shall be invoiced according to time required.
11 Applicable law
Contractual relationships to which these Terms and Conditions of Sale and Delivery apply are governed by the law of the Federal Republic of Germany - the provisions of the United Nations Convention on Contracts.
12 Place of jurisdiction - place of performance
12.1 For all disputes arising from the contractual relationship, if the customer is a merchant, a legal entity under public law or a special fund under public law, the district court responsible for our place of business is the competent register court, at our discretion also the chamber of commerce of the regional court responsible for our place of business. We shall, however, also be entitled to sue the customer at his place of business or residence.
12.2 Unless otherwise stated in the order confirmation, our place of business is the place of performance.
13 Data protection
By entering into the contract, the customer agrees that LACOS Computerservice GmbH may store, process and use the personal data entered by the customer in order to carry out the order. Insofar as the customer has given his or her consent on the order form, LACOS Computerservice GmbH shall also be entitled to pass on this data to other companies of LACOS Computerservice GmbH, insofar as it can be passed on in accordance with the statutory provisions, in order to occasionally provide the customer with information on other products and services that may be of interest to him. The customer shall be entitled to demand information on the scope and purpose of data processing and the designation of further recipients of the data, to object to the use or transmission of his data for advertising purposes (blocking indicator), as well as to demand information, correction, blocking or deletion of his stored personal data.
14 Scope of application
The above Terms and Conditions of Sale and Delivery are valid as of 1 May 2005.
LACOS Computerservice GmbH
Alternative dispute resolution:
The European Commission provides a platform for out-of-court online dispute settlement (OS platform), which can be accessed at ec.europa.eu/odr.
We are prepared to participate in dispute settlement proceedings before consumer arbitration bodies.