1. Scope of application, form
1.1. These General Terms and Conditions (GTC) apply to all business relationships between us, Lenhard GmbH, Robert-Bosch-Str. 7, 33178 Borchen, and our customers (“Buyer”). The following terms and conditions apply in particular to all offers made by us and to the contracts concluded with them.
1.2 The GTC shall only apply if the buyer is an entrepreneur (Section 14 BGB (German Civil Code)), a legal entity under public law or a special fund under public law. Consumers are expressly not covered by these General Terms and Conditions.
1.3 The GTC shall apply in particular to contracts for the sale and/or delivery of movable items (“goods”), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the version of the GTCs that is valid at the time of the buyer’s order or, in any case, the version last provided to the buyer in text form shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.
1.4 Our GTC shall apply exclusively. Any of the Buyer’s general terms and conditions that differ from, conflict with, or supplement our own shall become part of the contract only if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in all cases, for example even if we are aware of the Buyer’s GTC and make delivery to the Buyer without reservation.
1.5 Individual agreements made with the buyer in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
1.6 Legally relevant declarations and notifications of the buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further evidence, in particular in the event of doubt as to the legitimacy of the declaring party, remain unaffected.
1.7 References to the applicability of statutory provisions are for the purposes of clarification only. The statutory provisions shall therefore apply even without such clarification, unless they are directly modified or expressly excluded in these GTC.
2. Orders
2.1 Our offers are subject to change and non-binding. This also applies if we have provided the buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – including in electronic form – to which we reserve ownership and copyrights.
2.2 The order of the goods by the buyer is considered a binding offer of contract. Unless otherwise stated in the order, we are entitled to accept this offer of contract within 4 weeks of its receipt by us.
2.3 The acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.
3. Prices and payment terms
3.1 Unless otherwise agreed in individual cases, our prices current at the time of the conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.
3.2 In the case of mail order purchases (see Section 5), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. If we do not charge the actual transport costs incurred in individual cases, a flat-rate transport cost (excluding transport insurance) shall be deemed agreed, which would be set as economically appropriate. Any customs duties, fees, taxes and other public charges shall be borne by the buyer. Changes in sales tax entitle both parties to raise prices accordingly.
3.3 The purchase price shall be due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, we are entitled at any time, even in the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We will declare a corresponding reservation at the latest with the order confirmation. Money orders, bills of exchange and checks are only accepted by special agreement and only on account of payment, not in fulfillment of the debt, with all collection and discount charges being billed to the customer.
3.4 The buyer shall be in default upon expiry of the above payment period. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages for default. Our claim for commercial maturity interest (Section 353 of the German Commercial Code (HGB)) against merchants shall remain unaffected.
3.5 If the buyer is in default of payment, we may withdraw from the purchase contract in accordance with the statutory provisions. If, in addition, we are entitled to compensation in lieu of performance and if we take back the purchased item, we and the buyer agree that we will reimburse the buyer for the usual sales value of the purchased item at the time of taking it back. At the request of the buyer, which can only be expressed immediately after taking back the object of purchase, a publicly appointed and sworn expert, e.g. from Deutsche Automobil Treuhand GmbH (DAT) or DEKRA, will determine the usual sales value at the buyer’s option. The buyer bears all costs of taking back and selling the object of purchase. The costs of sale amount to 5% of the usual sales value without proof. They shall be set higher or lower if we can prove higher costs or the buyer can prove that lower costs or no costs at all have been incurred.
3.6 The buyer shall only be entitled to set-off or retention rights to the extent that its claim has been legally established or is undisputed. In the event of defects in the delivery, the buyer’s counterclaims, in particular Section 7.6 of these GTC, shall remain unaffected.
3.7 If it becomes apparent after the contract has been concluded (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is at risk due to the Buyer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of specific items (custom-made items), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
4. Deliveries and default in delivery
4.1 The delivery period shall be agreed individually or stated by us when we accept the order (binding delivery date). If this is not the case, the delivery period shall be approx. 3 months from the conclusion of the contract (non-binding delivery date). If subsequent amendments to the contract are agreed, a new delivery date or delivery period shall be agreed at the same time if necessary. If this is not the case, the above standard delivery period shall be deemed agreed.
4.2 If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of the service), we will inform the buyer of this immediately and at the same time provide an estimated new delivery deadline. If the service is still not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already provided by the buyer. In particular, the non-availability of the service in this sense shall be deemed to be the non-timely delivery by our supplier if we have concluded a congruent hedging transaction, if neither we nor our supplier is at fault or if we are not obliged to procure in individual cases.
4.3 The occurrence of our default in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the buyer is required. Six weeks after exceeding a non-binding delivery date or a non-binding delivery period, the buyer may request the seller in writing to deliver within a reasonable period. A period of four weeks is considered reasonable. Upon receipt of the request, we shall be deemed to be in default, unless we are not responsible for the default. If we default on delivery, the buyer may demand flat-rate compensation for the damage caused by the default. The flat-rate compensation shall amount to 0.5% of the net price (delivery value) for each full calendar week of default, but not more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the buyer has not incurred any damage at all or only significantly less damage than the above flat rate.
4.4 If the buyer also wishes to withdraw from the contract and/or claim compensation instead of performance, he must set us a reasonable deadline for subsequent delivery after the expiry of the four-week period mentioned in Section 4.3 of this section, stating that he will refuse to accept the performance after the expiry of the deadline. If the grace period expires without success, the buyer is entitled to withdraw from the contract by means of a written declaration.
4.5 The rights of the buyer in accordance with Section 7 of these terms and conditions and our legal rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to the impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
4.6 If the buyer is entitled to compensation in lieu of performance, claims for compensation are excluded in the event of slight negligence. Compensation for non-performance can only be claimed in the event of demonstrably intentional or grossly negligent behavior. In such cases, the buyer is not entitled to delivery.
4.7 If a binding delivery date or a binding delivery period is exceeded, we shall be deemed to be in default as soon as the delivery date or delivery period is exceeded; however, in the event of a delay in delivery, a reasonable grace period shall be set for us.
4.8 The manufacturer reserves the right to make changes in design or form, deviations in color shade, as well as changes in the scope of delivery during the delivery period, provided that the changes or deviations are reasonable for the buyer, taking into account our interests. If we or the manufacturer use signs or numbers to identify the order or the purchased item ordered, no rights may be derived from these alone. The information in the descriptions regarding performance, weights, operating consumption, operating costs, speed, etc. are to be regarded as approximate. No assurance or guarantee is associated with them. This applies both to the vehicle underframe and to the vehicle superstructure manufactured by us or its container.
5. Delivery, Transfer of Risk, Acceptance and Acceptance Delay
5.1. Delivery is ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the buyer, the goods will be shipped to a different destination (sale to destination). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
5.2 The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon delivery. However, in the case of mail order purchases, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, shall pass to the buyer upon delivery of the goods to the carrier, freight forwarder or other person or institution designated to carry out the shipment. If an acceptance procedure has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall apply accordingly to any agreed acceptance procedure. If the buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
5.3 The buyer is obliged to accept the purchased item within 14 days of the day of provision stated in the acceptance information. If the buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this, we shall charge a flat-rate compensation in the amount of 5% of the value of the goods per calendar week, beginning with the delivery period or – in the absence of a delivery period – with the notification that the goods are ready for shipment.
5.4 The right to prove greater damage and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum is to be offset against further monetary claims. The buyer is entitled to prove that we have incurred no damage at all or only significantly less damage than the above lump sum.
6. Reservation of title
6.1 We reserve title to the sold goods until all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
6.2 The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The buyer must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties access the goods belonging to us (e.g. seizures).
6.3 If the buyer acts in breach of contract, in particular if the buyer fails to pay the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the reservation of title. The demand for surrender does not at the same time include the declaration of withdrawal; rather, we are entitled to demand only the surrender of the goods and to reserve the right of withdrawal. If the buyer does not pay the due purchase price, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if setting such a deadline can be dispensed with according to the statutory provisions.
6.4 Until further notice in accordance with (6.4.3.) below, the Buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
- 6.4.1 The retention of title extends to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we are considered the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, the ownership rights of the latter remain in force, we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
- 6.4.2 The buyer hereby assigns to us, as security, all claims against third parties arising from the resale of the goods or products, either in full or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The buyer’s obligations as set forth in 6.2 shall also apply with regard to the assigned claims.
- 6.4.3 The buyer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the buyer meets his payment obligations to us, there is no defect in his ability to pay and we do not assert the reservation of title by exercising a right in accordance with Section 6.4. If this is the case, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides all the information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In addition, we are entitled in this case to revoke the buyer’s authorization to resell and process the goods subject to retention of title.
- 6.4.4 If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer’s request.
6.5 During the period of the reservation of title or ownership by way of security, the vehicle is to be insured by the buyer, namely by taking out liability and fully comprehensive insurance with the proviso that we are entitled to the rights arising from this insurance. The buyer assigns the rights arising from these insurance policies to us; we accept the assignment. The buyer must provide us with proof of the insurance policies without being requested to do so, at the latest 4 weeks after taking delivery of the vehicle.
6.6 If the buyer does not fulfill this obligation, we are entitled to take out this insurance at the expense of the buyer. The buyer has to reimburse us for the costs. In the event of damage, insurance payments are to be used in full for the repair of the vehicle. In the event of a total loss, the services of the insurer are to be provided to us, which in turn uses them to settle its liabilities. The buyer is entitled to any surplus.
6.7 The buyer is obliged to maintain the vehicle in proper condition during the period of retention of title or our equitable lien, to have any necessary repairs carried out immediately, and, apart from emergencies, to have them carried out in our workshop or in a workshop/company approved by us.
7. Material defects/warranty
7.1 The rights of the buyer in the event of material defects and defects of title (including wrong and short delivery as well as improper assembly or defective assembly instructions) are subject to the statutory provisions, unless otherwise specified below. In all cases, the statutory special provisions for final delivery of the unprocessed goods to a consumer remain unaffected, even if the consumer has further processed them (supplier recourse according to §§ 478 BGB). Claims arising from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur, e.g. by incorporation into another product.
7.2. The following warranty conditions apply to motor vehicles and trailers that we deliver in our own name, as well as to vehicle bodies manufactured by us and repairs carried out by us. For parts not manufactured or repaired by us and for third-party services, our warranty is limited to assigning the buyer’s claims against suppliers or subcontractors due to any defects and referring the buyer to the direct assertion of these claims. In the event that the warranty claims against third parties fail, we shall assume the warranty, unless the parts not manufactured or repaired by us and third-party services originate from the buyer himself.
7.3 The basis for our liability for defects is, above all, the agreement made regarding the quality of the goods. All product descriptions and manufacturer’s specifications that are the subject of the individual contract or that we (in particular in catalogs or on our Internet homepage) had made public at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods.
7.4 If the quality has not been agreed, the question of whether a defect is present or not shall be assessed in accordance with the statutory regulation (Section 434 (1) sentences 2 and 3 BGB). However, we shall not assume any liability for public statements made by the manufacturer or other third parties (e.g. advertising messages) that the buyer has not indicated to us as being crucial to their purchase.
7.5 We are not liable for defects of which the buyer was aware at the time of the conclusion of the contract or which the buyer was not aware due to gross negligence (Section 442 BGB). Furthermore, the buyer’s claims for defects presuppose that he has fulfilled his statutory inspection and notification obligations (Sections 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must always be carried out immediately prior to processing. If a defect becomes apparent during delivery, inspection or at any later point in time, we must be notified of this in writing without delay. In any case, obvious defects must be reported in writing within 7 working days of delivery and defects not recognizable during the inspection within the same period of time from discovery. If the buyer fails to properly inspect the goods and/or report defects, our liability for the defect not reported or not reported in time or not properly is excluded in accordance with the statutory provisions.
7.6 If the delivered item is defective, we may initially choose whether we provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
7.7 We are entitled to make the subsequent performance dependent on the buyer paying the due purchase price. However, the buyer is entitled to withhold a reasonable portion of the purchase price in relation to the defect.
7.8 The buyer must give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions. The subsequent performance includes neither the removal of the defective item nor the reinstallation if we were not originally obliged to install it. Furthermore, the warranty shall become void if the purchased item or the repaired item has been modified by a third party without our permission.
7.9 The buyer risks the loss of warranty rights if he does not treat the purchased item in accordance with our instructions or if improper treatment is found and/or if an excess of the permissible total weight or the axle pressure or the payload on which the contract is based or the chassis load capacity is determined in accordance with the respectively applicable provisions of the Road Traffic Registration Ordinance and there is a causal connection. If we suspect that the above provisions have been violated, we are entitled to obtain an expert opinion from, for example, DEKRA.
7.10. Parts that are subject to natural wear and tear are excluded from the warranty. This also applies to damage, storage and corrosion damage that can be traced back to improper handling.
7.11. If a defect actually exists, we will bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, as well as any dismantling and installation costs, in accordance with the statutory provisions. Otherwise, we may demand that the buyer reimburse us for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the buyer.
7.12. In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the buyer has the right to remedy the defect itself and to demand compensation from us for the expenses objectively required for this. We are to be informed immediately, if possible in advance, of any such self-remedy. The right to self-remedy does not exist if we would be entitled to refuse a corresponding subsequent performance according to the statutory provisions.
7.13. If the subsequent performance has failed or a reasonable deadline to be set by the buyer for the subsequent performance has expired without success or is dispensable according to the statutory provisions, the buyer can withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal for an insignificant defect.
7.14. The buyer’s claims for damages or compensation for wasted expenditure shall only exist in accordance with Section 8 of these GTC, even in the case of defects, and shall otherwise be excluded.
7.15. The warranty shall be completely excluded for deliveries of used goods.
8. Other liability
8.1 Unless otherwise provided in these GTC, including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
8.2 We shall be liable for damages – regardless of the legal basis – in the context of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in our own affairs; minor breach of duty),
- 8.2.1. for damages resulting from injury to life, limb or health,
- 8.2.2. for damages resulting from the breach of a material contractual obligation (an obligation whose fulfillment is essential to the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
8.3 The liability restrictions arising from 8.2 also apply to third parties and to breaches of duty by persons (including in their favor) whose fault we are responsible for according to legal regulations. They do not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the buyer under the Product Liability Act.
8.4 The buyer can only withdraw or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. An unrestricted right of termination for the buyer (in particular according to §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
9. Limitation
9.1 Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall begin with acceptance.
9.2 If the goods are a building or an object that has been used for a building in accordance with its usual purpose and has caused the defectiveness of the building (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (Section 438 para. 1 no. 2 BGB). Further special statutory provisions regarding the limitation period (in particular § 438 para. 1 no. 1,71 para. 3, §§ 444, 445b72 BGB) shall also remain unaffected.
9.3 The above limitation periods of the law governing sales shall also apply to contractual and non-contractual claims for damages by the buyer that are based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the buyer in accordance with § 8 para. 2 sentence 1 and sentence 2 (a) and under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
10. Choice of law and place of jurisdiction
10.1 The law of the Federal Republic of Germany shall apply to these GTC and the contractual relationship between us and the buyer, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
10.2 If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – and international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Bielefeld. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB. However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these terms and conditions or a prior individual agreement or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular exclusive jurisdiction, remain unaffected.