General Terms and Conditions for Delivery and Payments
1. Unless otherwise agreed in writing, the following terms and conditions apply to any delivery to a customer (“Partner”) of LTS’ products and to all related transactions with Partner, even in case that such terms and conditions have not been explicitly agreed upon for any related future orders.
2. Any terms and conditions tendered by Partner which are in any way inconsistent with or in addition to the terms set forth herein are hereby rejected.
3. These terms and conditions may not be amended, modified or waived, except pursuant to a written instrument duly signed by LTS.
II. Offers and Orders
1. Unless otherwise agreed, offers by LTS are non-binding and are subject to LTS’ written confirmation. The Partner’s submission of a firm purchase order shall constitute an offer for conclusion of an agreement and shall be considered as the Partner’s consent to all of the terms and conditions contained herein.
2. Purchase orders shall become binding contracts upon LTS’ written confirmation of the purchase order.
3. Oral agreements are not binding unless confirmed in writing.
III. Prices and Terms of Payment
1. Unless otherwise agreed in writing, LTS’ prices are “FCA” (as defined in INCOTERMS 2010). All prices stated do not include VAT.
2. Transportation shall be by means that are commercially reasonable and customary and at Partner’s expense. The prices do not include special packaging, special transport, freight outside the boundaries of Germany, duties, insurance and other charges or any charges incurred at the point of destination.
3. The Partner must make payments when due. Payments are due within 30 days from the date of invoice. All payments shall be made in Euro.
4. Past due payments will bear interest at the legally applicable rate starting on the specific date when the payment has become due or on the first business day in Germany thereafter.
5. LTS reserves the right to withhold delivery of any products to be sold hereunder until payment of all outstanding overdue balances or credit arrangements satisfactory to LTS have been made.
6. Partner shall not be entitled to exercise any right of setoff, net-out or deduction, take any credit, or assert any other defence arising out of any transaction unless and until Partner has obtained a final and non-appealable judgment against LTS in the amount asserted by Partner.
1. Unless otherwise specified in writing, delivery shall be FCA (as defined in INCOTERMS 2010) LTS’ manufacturing plant.
2. The product will be packaged for shipment, delivery and storage in accordance with a written confirmation of the purchase order by LTS. Remunerations arising from special packaging requested by the Partner will be charged separately.
3. If the Partner requests that the shipment be delayed or delivery is delayed due to default in payment by Partner, LTS will charge 10 € per month per pallet for storage of the product beginning on the first month after announcement of delivery.
4. All shipping dates are tentative. LTS reserves the right to make partial shipments and to submit invoices for partial shipments.
1. Partner shall provide free of charge DDP (Incoterms 2010; DDU for NON-EU-sender) such quantities of compound, chemicals, packaging materials and other raw materials as well as artwork in due time to enable LTS to carry out all necessary tests prior to manufacturing. In due time shall mean not later than two weeks before the start of the manufacturing of the product.
2. LTS may pass on the charges and costs caused by Partner’s belated supply.
3. Such artwork provided for the manufacturing of packaging materials and for the printing of the packaging of products shall be deemed to be approved by Partner upon delivery. Any additional costs caused by defective or incorrect artwork or any changes thereto upon short notice shall be borne by Partner.
VI. Legal Compliance
1. The Partner shall comply with all applicable laws and regulations concerning the storage, shipping, use labeling and marketing of products.
2. Costs and expenses in connection with recalls or market withdrawals of individual goods for any reason, including legal requirements or administrative action shall be borne solely by the Partner.
1. LTS warrants that upon delivery all products will conform to the specifications set forth in the Partner’s purchase order and confirmed by LTS in writing; provided that any claims are made twelve (12) months after delivery of the defective product and that Partner can demonstrate that products have been stored properly during such twelve (12) months period.
The foregoing warranty shall be void if the products have been misused, neglected, improperly handled, altered, abused or used for any purpose other than the one for which they were manufactured or if the product’s failure to conform to the foregoing warranty was due in whole or in part to other conditions beyond the control of LTS.
2. EXCEPT FOR THE FOREGOING WARRANTIES, THIS WARRANTY IS IN LIEU OF ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH OTHER WARRANTIES ARE EXPRESSLY EXCLUDED AND DISCLAIMED; NO CLAIM OR ACTION OR OTHER PROCEEDING MAY BE BROUGHT ON AN ALLEGED BREACH OF WARRANTY OF LTS SET FORTH HEREIN AFTER THE EXPIRATION OF THE TWELVE (12) MONTH WARRANTY PERIOD.
3. Partner shall examine the products for defects in quality or quantity immediately upon receipt.
4. Any claims for obvious defects or non-conforming shipments shall be brought to LTS’ attention in writing within 30 days after receipt of the products, or, in case of latent defects, immediately upon discovery thereof. LTS reserves the right to examine any product which is alleged to be defective prior to honoring such claim.
5. The Partner’s sole remedy for breach of the warranty set forth in
VII.1 shall be, at LTS option, the repair or replacement of such products. LTS will provide replacement products free of charge, including the costs for transport or repair of any defective or non-conforming products. In the event that the defective goods contain components provided by the Partner, these components can be charged to LTS. In the event that the products cannot be repaired and replacement of the products is impractical, the Partner shall be entitled to (i) an allowance which will be credited to the Partner account, (ii) decrease in purchase price or (iii) rescission from the agreement.
VIII. Product Liability
1. Except as provided in subparagraph VIII. 2. below, Partner agrees to assume all liabilities as a result of personal injury or property damage due to the product, whether or not defective at the time of delivery. Partner shall be solely responsible for the expenses of defending claims made by third parties and shall indemnify and hold LTS harmless and agrees to reimburse LTS for any expenses incurred by LTS in connection with such claims.
2. To the extent that damages occur as a result of defects (Defect shall mean products not meeting the warranties set forth in subparagraph VII.1.), Partner’s recourse is limited to the amount covered by LTS’ product liability insurance. The limitation of liability set forth in the immediately preceding sentence shall not apply in the event of LTS’ willful misconduct or gross negligence.
3. Partner’s claims and damages in case of LTS’ late delivery by exceeding fifteen (15) days of the mutually agreed delivery date, impossibility to deliver and/or incomplete deliveries shall be limited to the amount of one third of the agreed purchase price of the delayed or missing part of the delivery. Except for LTS’ willful misconduct or gross negligence, any further damages and claims for late or incomplete delivery shall be excluded.
4. Under no circumstances shall LTS be liable to Partner for indirect, special or consequential, lost profits and/or punitive damages, provided, that this exclusion of liability does not apply if such agreement would be invalidated by stringent law as it may be the case for intentional misconduct or willful default.
IX. Patent Infringement
1. LTS does not make and shall not be deemed to make any representation or warranty, express or implied, as to the infringement of any third party’s intellectual property rights.
2. In the event of a suit against one or more parties for patent infringement relating to the product, or a claim by a third party against one or more parties arising from an alleged patent infringement relating to the product, or a license of a third party patent relating to the product being necessarily acquired by one or more parties, Partner shall indemnify and hold LTS harmless from such claims, damages and out-of-pocket expenses resulting from such situation (such out-of-pocket expenses shall be considered to include royalties and damages, as well as legal expenses and settlement payments).
If any provision of this agreement is held to be invalid or unenforceable under applicable law, such provision shall be deemed limited or modified to the extent necessary to make the same valid and enforceable under applicable law, and the remaining provisions shall remain valid. Any invalid or unenforceable provision shall be replaced with such new provision which achieves the intended economic result in a legally valid and effective manner.
XI. Force Majeure
1. Neither party shall be liable for defaults or delays in the performance of their obligations if the same are due to war, war-like actions, embargo, fire, flood, earthquake, transport sanctions, accident, explosion, impossibility to procure or shortage or lack of raw materials, lack of manufacturing facilities, ban on imports or exports of the products, legal orders, rationing of the products, or a strike, lockout or other difficulties related to work disputes concerning production or transport, or any other cause due to circumstances beyond their control whether similar in class or kind mentioned above.
2. In case of impending events that are beyond the control of the parties or events that have already occurred, the party directly concerned will notify the other party promptly concerning the extent and expected duration of the delay.
XII. Proprietary Rights
1. Until full payment of all accounts by Partner, LTS retains title and a security interest to the products which have been supplied.
2. Until paid in full Partner may dispose LTS’ products only in the regular course of business.
3. Partner hereby grants LTS a security interest in the products sold hereunder with the right to file or otherwise perfect such interest under applicable law.
4. No right or license to any patent, trade secret or intellectual property to either party is granted by these terms and conditions. All of LTS’ relevant intellectual property rights, whether or not registered or registrable, used in or in connection with the products, are and shall remain the exclusive property of LTS.
XIII. Applicable Law, Court of Jurisdiction
1. Place of fulfillment shall be our place of business.
2. This agreement shall be governed by and construed in accordance with the laws of Germany. Regulations of the UN agreement on contracts about international purchase of goods, Vienna 11.02.1980, however, are not applicable.
3. Place of venue shall be any competent court at our place of business.
4. In the event that any dispute or claim of any sort arising out of these terms and conditions or any subsequent agreement should be each of the parties waives irrevocably any right that such party may have to demand or request a trial by jury.