Our general terms and conditions

General Terms and Conditions of Sale of Latzke Härteprüfung GmbH in Wiehl I. Validity of the conditions

The deliveries, services and offers of Latzke Härteprüfung GmbH (hereinafter referred to as “Latzke“) to the purchaser (hereinafter jointly referred to as “Parties”) are made exclusively in accordance with these General Terms and Conditions of Sale (hereinafter referred to as “Terms“).
These Terms and Conditions are divided into Part A concerning the General Terms and Conditions of Delivery and Payment for Supply Contracts and the supplementary Part B concerning the installation of a machine by Latzke.
These terms and conditions shall also apply to all future business relations, even if they are not expressly agreed again. Latzke does not recognize any conflicting or different terms and conditions of the customer, even if their validity has not been separately objected to in individual cases.
These terms and conditions only apply to a person who is acting commercially or independently professionally upon conclusion of the contract (so-called “entrepreneur”) or to legal entities under public law or a special fund under public law.
Individual agreements made between the parties in individual cases shall in any case take precedence over these terms and conditions. A contract is concluded with the written order confirmation by Latzke, unless otherwise agreed in writing.
The content of collateral agreements and other contractual agreements, details, information or promises of any kind and form shall be subject to written confirmation by Latzke.
All drawings, technical documents or other information of a physical or non-physical nature made available to the customer shall remain the property of Latzke. Without the written consent of Latzke, these documents may not be disclosed to third parties or used for other purposes for which they were supplied.

Part A

General terms of delivery and payment

I. Scope of the section

The provisions of this Section A apply to all offers, sales and the processing of deliveries and services by Latzke.

II Delivery, delay in delivery, transfer of risk, place of performance

The expected delivery period is based on the offer and order confirmation by Latzke and is generally non-binding and subject to correct and timely delivery to Latzke. The delivery period shall be extended until all questions regarding the delivery item have been clarified between Latzke and the customer and the customer has fulfilled all obligations (e.g. payments). The defense of non-performance of the contract remains reserved. Latzke shall not be in default of delivery in the event of disruptions due to force majeure and other obstacles for which Latzke is not responsible, such as operational disruptions or the conclusion of a congruent hedging transaction in the event of the supplier’s default. If the delivery period is extended for the aforementioned reasons, Latzke shall inform the customer of this immediately and notify the customer of the expected new delivery period.
If the delivery item has left the Latzke works by the expiry of the agreed delivery period or the agreed delivery date or if Latzke has notified the customer of readiness for delivery by that time, the delivery period shall be deemed to have been met. If acceptance of the delivery item is planned at the Latzke plant, the acceptance date or the notification of readiness for acceptance or, in the event of unjustified refusal of acceptance, the expiry of the reasonable grace period set by Latzke shall be the relevant date for compliance with the delivery period. This shall not apply if non-compliance with the delivery date / delivery period was caused by Latzke.
If the customer is in default of acceptance or purchase or culpably violates other obligations to cooperate, Latzke shall be entitled to charge the resulting damage, including possible additional expenses and/or deliveries not called off, in due time. Further rights or claims arising from this remain reserved.
The risk of accidental loss or accidental deterioration shall pass to the customer
– upon the occurrence of the time of default of acceptance or default of acceptance if the conditions according to clause II para. 3 are met;
– upon dispatch to the customer, at the latest upon leaving the Latzke works; this shall apply irrespective of who bears the freight costs;
– if acceptance has been agreed, the time of acceptance;
– in the event of unjustified refusal of acceptance, the expiry of the reasonable grace period for acceptance set by Latzke.
The place of fulfillment is always the Latzke plant in Wiehl, unless a different place of fulfillment is specified in the order confirmation.

III Prices and payment

All prices are based on Latzke’s offer. The prices shall apply including loading ex Latzke works plus the applicable statutory value added tax, excluding packaging costs and excluding further transportation costs (including unloading at the customer’s premises), unless otherwise agreed in writing between the parties.
Latzke may demand that the customer makes an advance payment in the amount of the value of the components provided after the components of the goods to be delivered have been made available. After notification of readiness for dispatch, but before dispatch of the goods to be delivered, Latzke shall be entitled to demand a further payment on account amounting to 80% of the purchase price less any first payment on account. The remaining balance of the purchase price shall be paid after receipt of the goods and invoicing. Upon request, Latzke shall provide the customer with a security or warranty guarantee in the amount of the respective installment payment to be made.
Payment shall be made without any deduction as per the invoice, unless otherwise agreed between the parties. Payment shall only be deemed to have been made when the entire invoice amount has been credited to Latzke’s account.
The customer shall only be entitled to set-off or retention rights with undisputed or legally established claims or with counterclaims based on the same legal relationship.

IV. Retention of title

Latzke retains title to the delivery item (so-called “reserved goods”) until full payment of all present and future claims arising from the contract and the current business relationship (so-called “secured claims”).
If the customer acts in breach of contract, in particular in the event of default of payment, Latzke shall be entitled, after setting a reasonable deadline, to withdraw from the contract and demand the return of the reserved goods. The customer is obliged to return the reserved goods immediately. After withdrawal from the contract and after taking back the reserved goods, Latzke shall be entitled to realize the reserved goods after prior warning of realization to the customer and to offset the realization proceeds less reasonable realization costs against the outstanding liabilities of the customer. If the proceeds of the realization exceed the costs and liabilities, the surplus shall be paid out to the customer.
The customer is obliged to treat the reserved goods with care. If maintenance and inspection work is necessary for the proper care of the goods subject to retention of title, he must carry this out immediately at his own expense.
The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claim. The customer is obliged to inform Latzke immediately in writing or in text form in the event of seizures or other interventions by third parties in the reserved goods.
The customer shall be authorized to resell and/or process the reserved goods in the ordinary course of business in accordance with the following provisions:
– Any processing or transformation of the reserved goods by the customer shall be carried out for Latzke as manufacturer. If the reserved goods are processed with other items that do not belong to Latzke, Latzke shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing. – If the reserved goods are inseparably combined or mixed with other items not belonging to Latzke, Latzke shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other combined or mixed items at the time of combination or mixing. If the goods subject to retention of title are combined or mixed in such a way that the customer’s item is to be regarded as the main item, the customer and Latzke hereby agree that the customer shall transfer co-ownership of this item to Latzke on a pro rata basis. Latzke accepts this transfer.
– The customer hereby assigns to Latzke by way of security his claims for payment against his customers arising from a resale of the reserved goods as well as those claims of the customer with regard to the reserved goods which arise for any other legal reason against his customers or third parties (in particular claims arising from tort and claims from insurance benefits), including all balance claims from current accounts, in full. Latzke accepts this assignment.
If the realizable value of the securities exceeds Latzke’s claims by more than 10%, Latzke shall release securities of Latzke’s choice at the customer’s request.
If a prolonged or extended retention of title according to clause 5 is not effective according to the law of the place where the reserved goods are located, the customer shall not be entitled to resell the reserved goods unless he grants Latzke another appropriate means of security and takes the necessary actions for this purpose. The customer shall also be obliged to grant such a means of security if the law of the place where the reserved goods are located does not recognize a retention of title at all.

V. Claims for defects/liability

Latzke is obliged to remedy material defects and defects of title in accordance with the statutory provisions. The prerequisite for this is that the customer has properly fulfilled his statutory obligations to inspect and give notice of defects. If a defect is discovered during the inspection or later, Latzke must be notified immediately in writing. In the case of obvious defects, the notification shall be deemed immediate if it is made within two (2) weeks of delivery. In all other cases, notification shall be deemed to have been made without delay if it is made within two (2) weeks of discovery of the defect. Timely dispatch of the notification shall suffice to meet the deadline.
Warranty claims do not exist for damage or defects,
– which are attributable to the influence of third-party products (e.g. materials provided by the customer),
– which are based on a design specified or specified in more detail by the customer,
– which are attributable to circumstances occurring after the transfer of risk,
– which are due to operating conditions not provided for in the contract or improper use or improper service or repair work by the customer,
which are due to unauthorized modifications by the customer,
– which are due to normal wear and tear or normal deterioration, or which are otherwise attributable to the customer’s sphere.
Latzke may charge for additional expenses resulting from such disruptions.
If the goods are defective, Latzke may, at its discretion, either remedy the defect (repair) or deliver a defect-free item (replacement delivery) as subsequent performance. Latzke may remedy the defect at its own discretion at the place of performance; however, Latzke shall not be obliged to remedy the defect at the location of the goods if the goods have been moved to a location other than the place of performance. In the event of rectification of defects or replacement delivery, Latzke shall be obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance. Replaced or returned parts shall become the property of Latzke.
If no defect is found in the delivery item following a complaint/notification of defect by the customer, the customer shall bear the costs incurred by Latzke.
The customer shall give Latzke the opportunity to repair or replace the goods. This shall not affect the customer’s right, in extremely urgent cases and after informing Latzke in writing, to remedy the defect itself or have it remedied by a third party, with a claim to reimbursement of the proven necessary expenses.
If the supplementary performance fails or if further attempts at supplementary performance are unreasonable for the customer, the customer shall be entitled to reduce the purchase price or to withdraw from the contract. In the case of an insignificant defect, however, there is no right of withdrawal. The customer shall not be entitled to any claims for damages due to a defect in the delivery item except in the cases specified in Clause VI Nos. 1 to 3.

VI. Liability

Latzke shall be liable without limitation for damages resulting from injury to life, body or health which are based on a negligent breach of duty by Latzke or on an intentional or negligent breach of duty by a legal representative or vicarious agent of Latzke and in the case of statutory strict liability, in particular under the Product Liability Act and in the case of guarantee liability.
Latzke shall be liable for other damages which are based on an intentional or grossly negligent breach of duty by Latzke or on an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of Latzke. In this case, liability is limited to the foreseeable, typically occurring damage at the time of conclusion of the contract.
Latzke shall only be liable for the foreseeable, typically occurring damage at the time of conclusion of the contract in the event of intentional or negligent breach of a material contractual obligation. An essential contractual obligation is such an obligation which makes the proper fulfillment of the contract concluded with the customer possible in the first place and on which the customer has relied and was entitled to rely and whose culpable non-fulfillment jeopardizes the achievement of the purpose of the contract.
Otherwise, the liability of Latzke is excluded.
Insofar as the liability of Latzke is excluded and limited, this shall also apply to employees, representatives and vicarious agents of Latzke.

VII. Statute of limitations

In the case of damages resulting from injury to life, body or health, which are based on a negligent breach of duty by Latzke or an intentional or negligent breach of duty by a legal representative or vicarious agent of Latzke, in the case of other damages, which are based on an intentional or grossly negligent breach of duty by Latzke or on an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of Latzke, as well as for damages which are based on an intentional or negligent breach of essential contractual obligations from the respective contract by Latzke or a legal representative or vicarious agent, the statutory warranty period shall apply. The same applies in the case of statutory strict liability, in particular under the Product Liability Act and in the case of guarantee liability.
The limitation period is five years for a building and for an item that has been used for a building in accordance with its normal use and has caused its defectiveness, as well as for a work whose success consists in the provision of planning or monitoring services for a building.
In all other cases, the warranty period is one year.

VIII. Nutzung von Computer –Software

If software is included in the scope of delivery, the customer shall be granted a non-exclusive right to use the software supplied, including its documentation. The software is provided exclusively for use on the delivery item intended for this purpose or for use of the delivery item. Use of the software for other purposes is prohibited. The aforementioned right of use may only be transferred to subsequent owners or lessees of the delivery item; the granting of sublicenses by the customer is not permitted.
Latzke is under no obligation to release the source code of the software or to provide updated software versions.
The customer may only reproduce, revise, translate or convert the software from the object code into the source code to the extent permitted by law (§§ 69a ff. UrhG). The customer undertakes not to remove manufacturer’s details – in particular copyright notices – or to change them without the prior express consent of Latzke.
All other rights to the software and the documentation, including copies, shall remain with Latzke or the software supplier.

IX. Force majeure

If a contracting party is unable to fulfill its contractual obligations for reasons for which it is not responsible, such as labor disputes, fire, war, general mobilization, insurrection, embargo, foreign exchange and export restrictions, natural disasters, acts of terrorism, insufficient supplies, it may suspend these obligations to the extent that these impediments persist and were not foreseeable at the time the contract was concluded.
The party invoking force majeure must notify the other party in writing and without delay of the beginning and end of this delay; otherwise it is obliged to indemnify the other party against the costs incurred as a result of the failure to notify.
Either party may withdraw from the contractual relationship or terminate it with immediate effect if the delays caused by force majeure have lasted longer than six months.

X. Sonstiges

Partial deliveries
Latzke is entitled to deliver parts of the delivery item if this does not conflict with the legitimate interests of the customer. This is particularly the case if the partial deliveries are of interest to the customer according to the purpose of the contract and the customer does not incur any significant additional expense as a result.
Technical adjustments
Latzke reserves the right to make technical adjustments to the delivery item at any time up to handover, insofar as these serve to optimize the delivery item. Should such a technical adjustment result in a price increase, Latzke shall not make the technical adjustment without first obtaining the customer’s consent.
Validity of general law
Unless otherwise stipulated above, the statutory provisions shall apply.

XI. Applicable law and place of jurisdiction

The contract and the resulting delivery and acceptance relationships are subject to the substantive law of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
The exclusive place of jurisdiction for all disputes arising in connection with or from the contract shall be Latzke’s place of business. Latzke shall be entitled to sue the customer at the competent court of his place of business.

Part B

Conditions for the installation of a machine by Latzke

I. Scope of the section

The provisions of this section shall apply to all assembly and commissioning of delivery items carried out by Latzke at the customer’s premises in addition to the provisions of the above Part A.

II Prerequisites for installation

Before the start of installation and commissioning, the customer must have created all the necessary conditions so that the work can be started immediately after the arrival of the service personnel without risk to their life and health and can be carried out without interruption.
The following requirements must be met by the customer: – the delivery item and its accessories are unpacked at the installation site, – all supply lines (electricity, water, compressed air, hydraulics, etc.) required for the installation and commissioning of the delivery item are available and ready for connection, – the PC provided by the customer meets the necessary system and software requirements, .the PC provided by the customer fulfills the necessary system and software requirements,
– if the delivery item includes several Latzke testing machines, an independent RCD with 30mA residual current is available for each Latzke testing machine,
– sample material for instruction in the intended use of the delivery item is provided,
– foundations are completely dry and set,
– the rooms in which assembly and commissioning take place must be protected against the effects of the weather, well lit and sufficiently heated.

III Other provisions of the customer

The customer shall in any case assume at his own expense and risk:
– the unloading and installation of the delivery item at the place of installation by a special transport company,
– the provision of the labor deemed necessary by Latzke,
– the provision of the necessary and suitable construction, auxiliary and operating materials, devices and heavy tools, in particular transport and lifting tools, as well as light, electricity and heating,
– suitable lockable rooms for the stay of Latzke’s employees and the storage of materials.

IV. Costs of installation

Unless otherwise agreed, the customer shall bear the costs of assembly and commissioning of the delivery item and of instructing the operating personnel.
The customer shall be charged the applicable hourly rates, including additional costs for overtime and work on Sundays and public holidays. Travel time and waiting time shall be considered working time.
Costs for travel to and from the site, transportation of luggage and tools as well as other costs incurred in connection with the assembly and commissioning of the delivery item shall also be borne by the customer.
The costs of official acceptance shall be borne by the customer.
A rental fee shall be charged for the provision of special testing equipment for the acceptance of the delivery item.

V. Liability

Latzke shall be liable for the proper assembly and commissioning of the delivery item and all related activities of its personnel and vicarious agents as well as for any damage culpably caused in the process. However, liability is limited in accordance with para. VI of the General Terms and Conditions of Delivery and Payment.
Latzke shall not be liable for any further work carried out by its personnel and vicarious agents for the installation of the delivery item which is not connected with the installation and commissioning of the delivery item or which is caused by the customer himself, nor for any damage caused in the process.

VI Resale of the delivery item

In the event of a resale of the delivery item, the purchaser shall draw the attention of the buyer concerned to the requirement of inspection and compliance with the applicable product and country-specific safety regulations. The customer shall indemnify Latzke against all claims arising from non-compliance with this obligation to inform.

Status: April 2018