General Delivery Conditions
1. General Provisions
- These General Terms and Conditions for Deliveries and Services (hereinafter referred to as GDC – General Delivery Conditions) apply to all offers, deliveries and services, in particular sales of the LILIAN water analysis system, the water analysis sticks (SensoSticks) as well as the waterproof and dustproof smartphones (hereinafter referred to as Deliveries) of Lilian Labs GmbH (hereinafter referred to as Lilian Labs) to its contracting partners.
- The declarations made by both parties are decisive for the scope of the deliveries. The declarations shall be made at least in text form. The contracting partner’s general terms and conditions shall only apply to the extent that Lilian Labs has agreed to them at least in text form.
- Lilian Labs reserves the unrestricted right to its property and copyright exploitation rights to supplied software, cost estimates, drawings and other documents. The data and documents sent in the context of the offer must not be made accessible to third parties, unless Lilian Labs agrees to the corresponding procedure at least in text form, and must be returned to Lilian Labs without delay if a contract is not concluded.
- The contracting partner has the non-exclusive right to use standard software with the agreed performance features in unchanged form. It is only permissible to pass on, sell or further use the software with the consent of Lilian Labs. This consent must be given at least in text form.
- No additional warranties are provided for the delivered software. Lilian Labs is not liable in particular for the accessibility of servers.
- Partial deliveries are permissible insofar as they are reasonable for the contracting partner.
2. Payment Conditions
- All payments are to be made 10 days after delivery or acceptance. Payment deadlines are considered met if Lilian Labs can dispose of the amount within the deadline.
- If the contracting partner is in default of payment or if after conclusion of the contract circumstances become known which call his creditworthiness into question, Lilian Labs is entitled to demand immediate payment of the entire remaining debt of the contracting partner, to demand advance payments or securities or to withdraw from the contract after expiration of an appropriate period of grace without prejudice to other rights. Doubts about creditworthiness exist in particular if the contracting party is in arrears with two consecutive payments.
- Lilian Labs reserves the right to make reasonable price changes if there are changes to the wage, material and distribution costs for services which take place more than 3 months after conclusion of the contract. This shall not apply to fixed price agreements.
3. Retention of title with processing clause
- The objects of the Deliveries (reserved goods) shall remain the property of Lilian Labs until all claims to which it is entitled against the contracting partner from the business relationship have been fulfilled. Insofar as the value of all security interests to which Lilian Labs is entitled exceeds the amount of all secured claims by more than 20%, Lilian Labs shall release a corresponding part of the security interests at the request of the contracting partner.
- The contracting partner shall carry out any processing or treatment of the reserved goods for Lilian Labs, without any obligations arising for the latter as a result. In the event of processing, combination, mixing or blending of the reserved goods with other goods not belonging to Lilian Labs, Lilian Labs shall be entitled to the resulting co-ownership share in the new item in the ratio of the value of the reserved goods to the other processed goods at the time of processing, combination, mixing or blending. If the contracting partner acquires sole ownership of the new item, both contracting partners agree that the contracting partner acquiring sole ownership shall grant Lilian Labs co-ownership of the new item in proportion to the value of the processed or combined, mixed or blended goods subject to retention of title and hold it in safe custody for Lilian Labs free of charge.
- While the retention of title exists, the contracting party is prohibited from pledging or transferring ownership by way of security and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its contracting party or makes the reservation that ownership shall only pass to its contracting party when the latter has fulfilled its payment obligations.
- In the event of seizure, confiscation or other dispositions or interventions by third parties, the contracting partner must notify Lilian Labs immediately. Lilian Labs is entitled to choose between the different security rights at the time of release.
- In the event of culpable breach by the contracting partner of essential contractual obligations, in particular in the event of default in payment, Lilian Labs is entitled to take back the goods after issuing a reminder; the contracting partner is obliged to surrender the goods. The taking back or assertion of the retention of title or the seizure of the reserved goods by Lilian Labs does not constitute a withdrawal from the contract unless Lilian Labs has expressly declared this to be the case.
4. Delivery period, delay in delivery, force majeure
- The observance of agreed deadlines for Deliveries presupposes the timely receipt of all documents to be supplied by the contracting partner, as well as the observance of the agreed terms of payment and other obligations by the contracting partner. If these requirements are not fulfilled in good time, the time limits shall be extended appropriately; this does not apply if Lilian Labs is responsible for the delay. Delivery dates are only valid if they have been expressly confirmed by Lilian Labs. The confirmation of the delivery date must at least be in text form.
If the contracting partner is in default of acceptance or culpably violates other duties to cooperate, the risk of complete loss or accidental deterioration of the items and software provided for testing purposes, the rental items, the purchased item or the piece of work shall also pass to the contracting partner at the point in time at which the contracting partner is in default of acceptance.
- If non-compliance with the deadlines is due to force majeure e.g. mobilisation, war, riot, or similar events, e.g. strike, lockout, the deadlines shall be extended accordingly. The party affected by an event of force majeure shall immediately notify the other party of the restriction of its contractual obligations and shall endeavour to remove the obstacles to the performance of the contractual obligations as soon as possible.
- Claims for compensation by the contracting partner are excluded in all cases of delayed delivery, even after expiry of any period of grace granted to Lilian Labs – subject to the provisions in article 12. This does not imply a change in the burden of proof to the detriment of the contracting party. The right of the contracting party to withdraw from the contract after fruitless expiry of a reasonable period of grace granted to Lilian Labs remains unaffected.
5. Transfer of risk
- The risk shall pass to the contracting party as follows:
- in the case of Deliveries without setting up the software or instruction in operation, when they have been brought to dispatch or collected. Deliveries can be insured by Lilian Labs against the usual transport risks at the request and expense of the contracting partner.
- in the case of deliveries with installation of the software or instruction in operation, in each case on the day of acceptance (commissioning).
- If dispatch, delivery, installation or assembly, acceptance is delayed for reasons for which the contracting partner is responsible or if the contracting partner is in default of acceptance for other reasons, the risk shall pass to the contracting partner. The right of Lilian Labs to demand acceptance for deliveries with installation of the software or instruction in operation remains unaffected.
6. Setting up the software and instruction in the mode of operation
Unless otherwise agreed at least in text form, the following provisions shall apply to the setup of the software or instruction in its operation:
- The contracting party shall take over and provide in good time at its own expense:
- all ancillary work outside the scope of Lilian Lab’s business, including the skilled and unskilled labour and tools required for this,
- the materials and supplies required to set up the software and commission the SensoStick,
- energy and water at the point of use including connections, heating and lighting,
- at the place of deployment for the storage of the Sensosticks, materials, tools etc. sufficiently suitable, dry and lockable rooms and in all other respects the contracting partner shall take the same sort of measures to protect the property of Lilian Labs as he would to protect his own property.
- If the installation, instruction or commissioning is delayed due to circumstances for which Lilian Labs is not responsible, the contracting partner must to a reasonable extent bear the costs for standby waiting time and additionally required travel of the necessary personnel.
- If Lilian Labs demands acceptance of the delivery after completion, the contracting partner must carry this out within two weeks. Acceptance shall be deemed to have taken place if the contracting partner allows the two-week period to elapse or if the Delivery has already been put into use – if applicable after completion of an agreed test phase.
7. Liability for defects
- Warranty rights of the contracting partner presuppose that the contracting partner has duly complied with its inspection and notification obligations owed under § 377 HGB (German Commercial Code). The contracting partner may not refuse to accept Deliveries due to insignificant defects.
- Claims for defects shall become statute-barred – irrespective of the period of operation – 12 months after delivery of the delivered goods to the contracting partner. The foregoing provisions shall not apply insofar as the law mandatorily prescribes longer time limits. The consent of Lilian Labs must be obtained before any goods are returned.
- If, despite all due care, the delivered goods have a defect which was already present at the time of the transfer of risk, Lilian Labs shall, subject to timely notification of defects, at its discretion either repair the goods or supply replacement goods. Lilian Labs must always be given the opportunity of subsequent performance within a reasonable period.
- If the supplementary performance fails, the contracting partner may – irrespective of any claims for damages – withdraw from the contract or reduce the remuneration.
- Claims for defects do not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or in the case of damage which occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials or due to special external influences which are not specified in the contract. If the contracting partner or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.
- Any rights of recourse of the contracting partner against Lilian Labs exist only to the extent that the contracting partner has not made any agreements with his customer which go beyond the statutory mandatory claims for defects. Furthermore, paragraph 5 shall apply accordingly to the scope of the contracting partner’s right of recourse against the contractor.
- In the event of notification of defects, the contracting partner may only withhold payments to an extent that is in reasonable proportion to the material defects that have occurred. If the notification of defects is unjustified, Lilian Labs can demand reimbursement of the expenses incurred from the contracting partner.
- For claims for damages, article 12 (Liability) applies in all other respects. Further claims or claims other than those regulated in this article by the contracting partner against Lilian Labs and its vicarious agents on account of a material defect are excluded.
8. Due date/acceptance
The agreed remuneration shall be due for payment immediately upon acceptance of the service (commissioning) – subject to any other contractual agreement.
9. Set-off/provision of security
- The contracting party may only offset such claims that are undisputed or have been legally established.
- The right of Lilian Labs to demand security is determined in accordance with § 648a BGB (German Civil Code).
10. Industrial property rights and copyrights
- If a third party raises justified claims against the contracting partner because of the infringement of an industrial property right or copyright (in the following: Property Rights) by products delivered by Lilian Labs, Lilian Labs is liable to the contracting partner as follows: Lilian Labs will at its choice and at its expense either
- obtain a right of use for the delivery item,
- modify the delivery item in such a way that the property right is not infringed,
- replace the delivery item by another one with a corresponding performance capability that does not infringe any property rights or
- take back the delivery item against reimbursement of the remuneration.
- The above-mentioned obligations of Lilian Labs exist only if the contracting partner informs Lilian Labs immediately about the claims asserted by the third party at least in text form, does not acknowledge an infringement and all defence measures and settlement negotiations are reserved for Lilian Labs. If the contracting party discontinues the use of the product for reasons of mitigation of damages or other important reasons, it shall be obliged to point out to the third party that the discontinuation of use does not constitute an acknowledgement of an infringement of property rights.
- Claims of the contracting partner are excluded insofar as he is responsible for the infringement of property rights.
- Claims of the contracting partner are also excluded insofar as the infringement of property rights is caused by special specifications of the contracting partner, by an application not foreseeable by Lilian Labs or not contractually agreed or by the fact that the product has been changed by the contracting partner or is used together with products not supplied by Lilian Labs.
- Further claims against Lilian Labs are excluded; article 12 remains unaffected, however, as does the contracting partner’s right to withdraw from the contract.
11. Impossibility, contract adjustment
- If it becomes impossible for Lilian Labs to make the agreed delivery without having knowledge of the impediment to performance when the contract was concluded or without being responsible for this ignorance, the contracting partner is entitled to demand either damages in lieu of performance or reimbursement of its expenses in accordance with § 284 BGB (German Civil Code). The contracting partner’s claim for damages shall be limited to 10% of the value of that part of the delivery which cannot be put into useful operation due to the impossibility, subject to the provisions of article 12. Lilian Labs is permitted to prove that a damage or a reduction in value has not arisen or has arisen to a considerably lesser extent than the flat rate. This does not imply a change in the burden of proof to the detriment of the contracting party. The contracting partner’s right to withdraw from the contract remains unaffected.
- If unforeseeable events within the meaning of paragraph 4.2. substantially change the economic significance or the content of the delivery or have a substantial effect on the operation of Lilian Labs, the contract shall be adjusted appropriately in good faith. Insofar as this is not economically justifiable, Lilian Labs is entitled to withdraw from the contract. If it wishes to make use of this right of withdrawal, it shall notify the contracting party thereof without undue delay after having realised the consequences of the event, even if an extension of the delivery period had initially been agreed with the contracting party.
- Lilian Labs is liable in accordance with the statutory provisions insofar as the contracting partner asserts claims for damages which are based on intent or gross negligence, including intent or gross negligence of the vicarious agents employed by Lilian Labs, or are based on the Product Liability Act. Insofar as there is no intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
- Liability for culpable injury to life, limb or health, for fraudulent concealment of a defect or for breach of material contractual obligations shall remain unaffected. Material contractual obligations are obligations the fulfilment of which is essential for the proper performance of the contract and compliance with which the contracting partner may regularly rely on. However, damages for breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract if such damage was caused by simple negligence.
- Unless otherwise stipulated above, any liability in all other respects – regardless of the legal nature of the asserted claim – is excluded. This applies in particular to claims for damages arising from culpa in contrahendo, pecuniary loss such as loss of production and loss of profit as well as due to other breaches of duty or due to tortious claims for compensation for property damage in accordance with § 823 BGB (German Civil Code).
- The liability for property damage is limited to €5,000 per damage event and €10,000 in total in cases of simple and gross negligence.
- A change in the burden of proof to the detriment of the contracting partner is not associated with the above provisions.
13. Place of jurisdiction
- If the contracting partner is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the head office of Lilian Labs, Braunschweig.
- The contractual relations shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
14. Data protection
Lilian Labs collects, processes and uses the personal data necessary for the fulfilment of this contract in accordance with the applicable data protection regulations.
15. Text form requirement
Amendments and supplements to the Service Agreement and these GDC must be made in text form. This also applies to the text form requirement itself. Verbal side agreements do not exist.
LILIAN LABS GMBH
Salzdahlumer Straße 196