General Terms and Conditions of Delivery of Georg Linz GmbH & Co. KG, Nuremberg
1 General Provisions; Scope of Application
1.1 These General Terms and Conditions of Delivery govern the legal relationship between
Georg Linz GmbH & Co. KG (hereinafter also referred to as “LINZ”) and its customers regarding
deliveries to be made by LINZ.
1.2 These General Terms and Conditions of Delivery apply only to business customers within the meaning of Section 310
(1) of the German Civil Code (BGB).
1.3 In connection with deliveries within the scope of application, these General
Terms and Conditions of Delivery shall apply exclusively. LINZ does not recognize any terms and conditions of the customer that conflict with or deviate from
these General Terms and Conditions of Delivery, unless LINZ has expressly agreed to their
validity in writing. These General Terms and Conditions of Delivery shall also apply if LINZ, despite being aware of
terms and conditions of the
Customer that conflict with or deviate from these General Terms and Conditions of Delivery, carries out the delivery to the Customer without reservation.
1.4 These General Terms and Conditions of Delivery shall also apply to future deliveries by LINZ to the
Customer.
2. Process Leading to Contract Formation; Contract Terms; Right to Make Changes
The process leading to the formation of a legally binding contract between LINZ and the customer is
as follows: The customer generally submits a non-binding inquiry to LINZ. LINZ will review the
inquiry and, if appropriate, submit a non-binding offer to the customer. All
information provided in this context, such as drawings, illustrations, offers, dimensions, quantities, and
weights, is initially non-binding. A binding contract is only concluded upon Linz’s order confirmation
following the customer’s order, the content of which is solely
determinative for the delivery to be made. The order confirmation therefore constitutes acceptance within the meaning of Sections 147
et seq. of the German Civil Code (BGB). The order confirmation must be made in writing or in text form. We reserve the right to make
design and material changes from the specifications set forth in the order confirmation,
provided that such changes do not significantly or adversely affect the normal use of the delivery
or the use intended under the contract, and the change is reasonable for the customer
to accept.
3 Rights to Documentation and Developments; Ownership of Tools
3.1 LINZ reserves all ownership and copyright exploitation rights to all8.3 Claims for defects shall not apply
a) to defects attributable to measures or designs that the customer
has expressly requested, or
b) to defects attributable to improper storage, or
c) to defects in materials or products provided by the customer or whose
use the customer has expressly requested contrary to a notice from LINZ, or
d) in connection with the labeling of products. The affixing of labels
to the products (e.g., warning notices, addresses, or other information) is the sole responsibility of the
customer; this applies even if and to the extent that LINZ cooperates in this matter as a gesture of goodwill.
Furthermore, no defects exist
a) in the case of only an insignificant deviation from the agreed quality, or
b) in the case of only an insignificant impairment of usability, or
c) in the case of natural wear and tear.
Claims for defects also do not apply to damage resulting from improper or negligent
handling, excessive strain, overloading, or special external
influences not provided for in the contract.
If the customer or third parties perform improper modifications or repair work,
no claims for defects shall exist for such work or the resulting consequences.
documentation, technical, commercial, or other business data or information
of a tangible or intangible nature, as well as to developments and samples, in their entirety. This
specifically includes cost estimates, drawings, as well as designs and developments.
3.2 The Customer is not entitled to apply for patents or other intellectual property rights in this regard. The
Customer shall not receive any ownership, license, reproduction, usage,
or other rights without express grant.
3.3 Documents may only be made available to third parties for the purpose of performing the contract and in compliance with the
confidentiality agreed in Section 13, and must be returned upon request in the event that
no contract is concluded between the parties.
3.4 If LINZ manufactures or develops tools in connection with an order, ownership
thereof shall vest solely in LINZ.
3a Procurement of Personalized Accessories
In the event that the customer regularly places orders with LINZ, LINZ is entitled, for reasons
of efficiency, to order personalized accessories (e.g., labels) for products in reasonable quantities regardless of a
specific current order quantity, to keep them in stock,
and, if not accepted within 18 months of the order, to invoice the customer separately
for them.
4 Prices; Terms of Payment; Set-off; Right of Retention
4.1 Unless otherwise agreed in the order confirmation, all prices are “ex
works,” plus costs for packaging, transport, or shipping, as well as any customs duties or
other charges. In addition, value-added tax at the applicable statutory
rate shall always be added. Furthermore, the customer shall always bear the costs incurred by LINZ for the preparation of the
print design (e.g., plate costs or screen printing costs); this applies
even if these costs are not explicitly listed in the order confirmation.
4.2 Unless otherwise agreed in the order confirmation, payment claims are due immediately upon receipt of the invoice, without any
discount. Payments must be made to the bank account specified by LINZ.
4.3 The customer is only entitled to set off claims against LINZ’s claims if the customer’s claims
have been legally established, are undisputed, or have been acknowledged by LINZ.
4.4 The customer is only authorized to exercise a right of retention to the extent that the customer’s
counterclaim is based on the same contractual relationship.
5 Retention of Title
5.1 LINZ retains title to the delivered goods (hereinafter:
“goods subject to retention of title”) until all payments arising from the business relationship with the customer
have been received. If the customer acts in breach of contract, in particular in the event of default in payment, LINZ
is entitled to take back the goods subject to retention of title. The repossession of the goods subject to retention of title by LINZ
constitutes a withdrawal from the contract. After repossessing the goods subject to retention of title, LINZ is entitled to sell them;
the proceeds of such sale shall be applied against the customer’s liabilities—less reasonable
costs of sale. The customer is obligated to treat the goods subject to retention of title with due care;
in particular, the customer is obligated to insure them at their own expense against fire, water, and
theft damage at replacement value.
5.2 The customer is entitled to resell the goods subject to retention of title in the ordinary course of business;
however, the customer hereby assigns to LINZ all claims in the amount of the final invoice amount (including
sales tax) to LINZ arising from the resale against its
customers or third parties, regardless of whether the goods subject to retention of title were resold without or
after processing. The customer remains authorized to collect this claim even
after the assignment. LINZ’s authority to collect the claim itself remains
unaffected by this. LINZ undertakes, however, not to collect the claim as long as the customer
meets its payment obligations from the proceeds received, does not fall into default
of payment, and, in particular, no petition for the opening of insolvency proceedings has been filed or
suspension of payments has occurred. If, however, this is the case, LINZ may demand that the customer disclose to LINZ the
assigned claims and their debtors, provide all information necessary for collection,
hand over the relevant documents, and notify the debtors (third parties) of the
assignment.
5.3 LINZ undertakes to release the security to which it is entitled at the customer’s request to the extent
that the realizable value of the security exceeds the claims to be secured by more than
10%; the selection of the security to be released is at LINZ’s discretion.
6 Delivery Time; Delay in Delivery
6.1 The commencement of a delivery period or shipping date specified by LINZ
is contingent upon the resolution of all technical issues. The customer must cooperate
in this resolution.
6.2 LINZ’s obligation to meet the delivery period further requires the timely and
proper fulfillment of the customer’s obligations and duties. The defense
of non-performance of the contract is reserved.
6.3 The delivery period is deemed met if, by its expiration, the delivery has been reported to the customer as
ready for shipment and has been made available ready for shipment.
6.4 If failure to meet the delivery deadline is attributable to force majeure, including obstacles, accidents, or
disruptions that could not be prevented despite the exercise of due care,
the delivery deadline shall be extended accordingly. Force majeure includes, in particular,
mobilization, war, riots, terrorism, acts of state, the non-issuance of required
export permits, epidemics, strikes and lockouts, shortages of raw materials, lack of
transport capacity, power outages, and natural disasters.
6.5 If the agreed delivery is a fixed-date transaction within the meaning of Section 286(2)(4) of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB),
LINZ shall be liable in accordance with the statutory provisions. The same applies if a delay in delivery for which LINZ is responsible entitles the customer to declare that its interest in the further performance of the contract has ceased to exist.
artial Deliveries
6.6 In all other cases of delayed delivery, the customer’s claims for damages
due to the delay or in lieu of performance are excluded.
This does not apply to the extent that LINZ is strictly liable under statutory provisions, for example:
a) in cases of fraud or willful misconduct, gross negligence,
b) due to breach of a warranty,
c) due to injury to life, limb, or health,
d) under the Product Liability Act,
e) due to the breach of such contractual obligations whose fulfillment is essential
for the proper performance of the contract and on whose compliance the contracting party
may reasonably rely (so-called essential contractual obligations).
However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless there is fraud, intent, or gross
negligence, liability is based on injury to life, limb, or health, or liability is mandatory and unlimited for other reasons based on statutory provisions. The provisions above do not entail a shift in the burden of proof to the detriment of the customer.
7 Transfer of Risk; Partial Deliveries
7.1 Risk shall pass to the customer once the delivery is made available for dispatch at LINZ’s premises
and notification of readiness for dispatch has been given. This shall also apply where
partial deliveries are made, LINZ bears the shipping costs, or has undertaken to provide assistance (e.g.
coordination of dispatch schedules).
7.2 LINZ shall, at the customer’s request and expense, cover deliveries with transport insurance.
This does not entail any change to the transfer of risk under clause 7.1.
7.3 LINZ is entitled to make partial deliveries, provided this is reasonable for the customer.
8 Procedure for Complaints (Notice of Defects); Liability for Defects
8.1 The Customer’s claims for defects are contingent upon the Customer having fulfilled its obligations to inspect and give notice of defects pursuant to § 377 HGB.
8.2 Before asserting claims for defects, the customer must first carefully examine whether the
objected-to condition stems from causes within its own sphere of influence, or whether
a defect actually exists. In the latter case, the parties shall, if possible,
agree on whether a defect actually exists. If a notice of defect was made in error,
LINZ is entitled to demand reimbursement from the customer for the expenses incurred.
8.3 Claims for defects do not apply
a) to issues attributable to measures or designs that the customer
has expressly requested, or
b) to issues attributable to improper storage, or
c) to issues with materials or products that the customer has provided or whose
use the customer has expressly requested contrary to a notice from LINZ, or
d) in connection with the labeling of products. The affixing of labels
to the products (e.g., warning notices, addresses, or other information) is the sole responsibility of the
customer; this applies even if and to the extent that LINZ cooperates in this matter as a gesture of goodwill.
Furthermore, no defects exist
8.4 In the event of a defect, LINZ shall, at its discretion, be entitled to remedy the defect within a reasonable period by either repairing the defect or delivering a new, defect-free item. LINZ
shall also bear the expenses necessary for the purpose of subsequent performance, in particular transportation, travel, labor, and material costs, provided that these are not increased by the fact that the item delivered has been moved to a location other than the customer’s place of business; unless such movement corresponds to its intended use. LINZ is not obligated, within the scope of subsequent performance, to bear the costs for the installation or removal of the defective delivery. The customer is obligated to provide technical support for the subsequent performance by LINZ.
The customer must, in particular, point out technical peculiarities and specific risks (e.g., In particular, the customer must point out technical peculiarities and specific risks (e.g., during removal and installation) arising from the processing or combination of the delivery by the customer. If necessary, the customer must also assist LINZ in an advisory capacity with its own experts or commissioned third parties.
8.5 The Customer is obligated, to the extent reasonably possible, to provide technical
assistance to LINZ during the performance of the remedial work. In particular, the Customer must
point out any technical peculiarities and specific risks (e.g.,
during installation and removal) arising from the Customer’s processing or integration of the
delivery. If necessary, the customer must also assist LINZ in an advisory capacity with its own experts or
commissioned third parties.
8.6 If the subsequent performance fails, the customer is entitled, at its discretion, to demand rescission or
a reduction in price.
8.7 Claims by the customer for damages are, however, excluded unless LINZ is
mandatorily liable for damages under statutory provisions, for example:
a) in cases of fraud or willful misconduct, gross negligence,
b) due to failure to comply with an assumed warranty or agreed quality,
c) due to injury to life, limb, or health,
d) under the Product Liability Act,
e) due to the breach of such contractual obligations whose fulfillment is essential
for the proper performance of the contract and on whose compliance the contracting party
may reasonably rely (so-called material contractual obligations).
However, the claim for damages for the breach of essential contractual obligations is limited to the
foreseeable damage typical for the contract, unless there is fraud, intent, or gross
negligence, liability is based on injury to life, limb, or
health, or liability is mandatory and unlimited for other reasons based on statutory provisions. The
provisions above do not entail a shift in the burden of proof to the detriment of the customer.
8.8 The Customer’s claims for recourse against LINZ pursuant to § 478 BGB (recourse by the contractor)
shall exist only to the extent that the Customer has not entered into any agreements with its buyer
that go beyond the statutory
claims for defects. With regard to the scope of the
customer’s right of recourse against LINZ pursuant to § 478(2) BGB, clause 8.4, sentences 2 and
3, shall apply mutatis mutandis.
8.9 The statute of limitations for the claims governed by this clause is governed by clause 12.
9 Reservation of Performance
Performance of the contract is subject to the condition that there are no obstacles arising from German, U.S.
or other applicable national, EU, or international regulations of
foreign trade law, nor any embargoes or other sanctions. The customer
is obligated to provide all information and documents required for export, transfer, or
import.
10 Impossibility; Modification of the Contract
10.1 If delivery is impossible, the customer is entitled to claim damages,
unless LINZ is not responsible for the impossibility. However, the
customer’s claim for damages is limited to 10% of the value of that part of the delivery which
cannot be put to its intended use due to the impossibility. This limitation does not apply
in cases where liability is mandatory due to intent, gross negligence, or injury to life,
body, or health; this does not entail a shift in the burden of proof to the detriment of the
customer. The customer’s right to withdraw from the contract remains
unaffected.
10.2 If events within the meaning of Section 6.4 significantly alter the economic significance or the content of the
delivery or have a significant impact on LINZ’s operations, the contract
shall be reasonably adjusted in accordance with the principles of good faith. To the extent that this is not
economically justifiable, LINZ shall be entitled to withdraw from the contract. The same applies if required
export licenses are not granted or cannot be used. If LINZ intends to exercise this
right of withdrawal, LINZ must notify the customer immediately upon becoming aware of the
significance of the event, even if an
extension of the delivery period had initially been agreed upon with the customer.
11 Other Liability
11.1 Any claims for damages or reimbursement of expenses by the Customer beyond those expressly
stated in these General Terms and Conditions of Delivery, regardless of the legal basis,
are excluded. This also includes claims arising from business interruption, loss of
profits, loss of information or data, or consequential damages resulting from defects.
11.2 The foregoing limitation of liability shall not apply to the extent that LINZ is
mandatorily liable for damages under statutory provisions, for example:
a) in cases of fraud or willful misconduct, gross negligence,
b) due to non-compliance with an assumed warranty or agreed quality,
c) due to injury to life, limb, or health,
d) under the Product Liability Act,
e) due to a breach of such contractual obligations whose fulfillment is essential
for the proper performance of the contract and on whose compliance the contracting party
may reasonably rely (so-called material contractual obligations). However, the claim for damages arising from a breach of material contractual obligations is limited to
the foreseeable damage typical for this type of contract, unless there is fraud, willful misconduct, or gross
negligence, liability arises from injury to life, limb, or
health, or liability is mandatory and unlimited for other reasons under statutory provisions. The foregoing provisions do not entail a shift in the burden of proof to the detriment of the customer.
11a Placing the Products on the Market
The parties agree that the Customer shall “place the products on the
market” within the meaning of the
Product Safety Act, the Product Liability Act, and the Chemicals Act. Any prior testing and safety obligations are the responsibility of the
Customer. LINZ cannot be held liable by the Customer in this regard. Should LINZ be held liable by third parties,
LINZ shall be entitled to indemnification claims against the Customer.
12 Statute of Limitations
All claims by the customer, regardless of their legal basis, are subject to a one-year statute of limitations,
calculated from the statutory commencement of the limitation period, subject to the second sentence. In cases of fraudulent conduct, intentional acts,
cases of culpable injury to life, limb, or health, in claims for damages under
the Product Liability Act, or in other cases required by law, the
statutory limitation provisions shall apply. These also apply to defects in a structure or in deliveries
that were used in the manner customary for a structure and caused its
defectiveness.
13 Confidentiality; Non-Disclosure
The Customer shall treat all information provided by LINZ in connection with the Agreement and its performance
as confidential. The Customer may use the information only for the purposes specified in
the Agreement. The obligation of confidentiality does not apply to information
information for which the Customer can prove that it is already generally known
or becomes generally known without the Customer breaching its obligation of confidentiality,
or was already known to the Customer upon receipt without any obligation of
confidentiality, or was lawfully obtained from third parties without any obligation of
confidentiality, or was developed independently by the Customer without using the
information. The obligations set forth in this section shall survive the
termination of the Agreement, regardless of the manner in which the Agreement
has been terminated.
14 Jurisdiction; Governing Law; Place of Performance; Written Form Requirement; No
Assignment of Contractual Rights by the Customer
14.1 Disputes arising from the legal relationship between the Customer and LINZ that cannot be
resolved through negotiations between the parties shall be settled by way of
arbitration proceedings in accordance with the currently applicable Rules of Procedure of the German Institution of
Arbitration (DIS), which also form an integral part of the contractual relationship between
the Customer and LINZ. The seat of the arbitral tribunal shall be Nuremberg.
14.2 The exclusive place of jurisdiction for both parties shall be Nuremberg, provided that the Customer is a merchant.
14.3 The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.
14.4 Unless otherwise agreed in individual cases, the place of performance is Nuremberg.
14.5 Declarations serving to establish, preserve, or exercise rights must be made in
writing. The written form requirement is also satisfied by text form via data transmission (e.g., email) or
fax, unless the written form is required by law.
14.6 The customer may not transfer its contractual rights to third parties without the written consent of LINZ.