Section 1 General terms
(1) These Standard Terms of Delivery apply to all agreements for deliveries and other supplies of goods and services, including all kinds of cooperation and sales agreements on the part of LSP® Sporternährung GmbH, Römerstraße 49, 53111 Bonn, Germany – hereinafter referred to as LSP® – in commercial transactions with undertakings, legal persons under public law or special funds under public law. They thus apply likewise to all future business relationships even if they are not again expressly agreed.
(2) No authorised dealership agreement or a similar distribution agreement is formed between the parties even in the event of repeated deliveries. Similarly, the parties have not agreed to any exclusivity or territorial protection clauses. Any such agreements must be in writing; this applies likewise to an agreement to waive the written form requirement. The application of commercial agency law, including by way of analogy, is excluded.
(3) The customer must provide LSP® written notice in advance in the event he/she rejects the application of these Standard Terms of Delivery. Purchasing or other standard business terms of the customer at variance with the terms set out herein are not accepted. Thus any standard business terms of the customer or third parties will not be applied even if LSP® does not expressly object to their application in a specific case, or if LSP® refers to a letter containing or referring to customer or third party standard business terms.
Section 2 Offer and conclusion of contract
(1) Product descriptions from LSP® do not constitute a binding offer. LSP® may accept orders or contracts placed/awarded by the customer within 14 days of receipt. An agreement is concluded and will become binding only if LSP® expressly accepts the purchase offer by means of an order confirmation, or by action consistent with acceptance, particularly by notification of availability or delivery of the goods. In principle, LSP® only sends order confirmations in exceptional cases. Standard practice is to send notice of availability or delivery of the goods.
(2) If the customer orders through the LSP® online shop, s/he will receive an automatic confirmation e-mail. This does not constitute an order confirmation and thus does not represent acceptance.
(3) Drawings, illustrations, dimension, weights and other technical data are only binding if expressly agreed to in writing. Similarly, information on availability in the LSP® online shop is non-binding.
(4) In the case of lack of or limited availability, LSP® will not make a delivery or may only deliver short orders. If the customer accepts a short order without objection, this results in the conclusion of a contract only as to the reduced quantity. A customer must place a new order in the event additional quantities are desired.
(5) Product descriptions, information in brochures, catalogues, circular mails and price lists, to the extent that they were made part of the agreement, are merely descriptive and do not represent guarantees. A guarantee requires a written statement from LSP® management.
(6) LSP® reserves all ownership rights and copyrights to all offers and quotations made by it as well as drawings, figures, calculations, brochures, catalogues, models and other documents and resources provided to the customer. Without our express consent, the customer is prohibited from providing such items themselves, or disclosing their contents, to third parties, and from using or reproducing them on their own or through third parties. The customer must return these items to LSP® in full upon the request of LSP® and is obliged to destroy any copies possibly made if the customer no longer needs them in regular business operations, or if negotiations do not result in the conclusion of an agreement.
(7) Employees of LSP® are not authorised to make side agreements on a verbal basis or to provide verbal assurances which extend beyond the terms of a written agreement.
Section 3 Scope performance by LSP®
(1) The scope of performance owed by LSP® is determined by the order confirmation or an order accepted by LSP® and, if applicable, any agreed amendments and supplements to the agreement including these Standard Terms of Delivery. LSP® reserves the right to make minor changes to products.
(2) An order may be amended only by conclusion of an amendment or supplemental agreement. With each change request, the customer makes an offer to LSP® to rescind the first agreement combined with the offer to conclude a new agreement. LSP® is not obliged to accept the customer’s offer.
Section 4 Performance period, Default by LSP®
(1) Dates or periods for deliveries and performance estimated by LSP® are only approximate unless a fixed period or a fixed date has been expressly confirmed or agreed. To the extent shipment was agreed, delivery periods and delivery dates relate to the date on which goods are transferred to the carrier, freight forwarder or other third party engaged to transport such goods.
(2) LSP® may – without prejudice to its other rights upon a default by the customer – request an extension of delivery and performance periods or a postponement of delivery and performance dates for the period during which the customer does not fulfil his/her contractual obligations to LSP®.
(3) LSP® is not liable for delays in performance caused by force majeure and events which render it considerably difficult or impossible for LSP® to perform services – including particularly stoppage of any kind, difficulty in obtaining materials or energy, delays in transport, strike, lawful lockout, official orders or lack of, incorrect or unpunctual delivery by suppliers – and for which LSP® is not responsible. To the extent that such events render it considerably difficult or impossible for LSP® to deliver or perform and the hindrance and disruption are temporary, LSP® is entitled to postpone the performance for the period of the disruption plus a reasonable start-up period. In the case of hindrances that are not temporary, LSP® is entitled to withdraw from the agreement in full or in part due to the part yet unfulfilled. If the above hindrance lasts more than two months, the customer is entitled to withdraw from the agreement with respect to the yet unfulfilled part.
(4) If LSP® falls behind with a delivery or a performance or if LSP® is unable to deliver or perform for whichever reason, the liability of LSP® is limited to compensation for damages as defined in Section 11 (Liability of LSP®) of these Standard Terms of Delivery.
Section 5 Offset, retention and transfer
(1) Customer has a right of offset and retention only if counter-claims which have come due have been finally determined by a court or are undisputed. However, without the further conditions of Sentence 1, the customer is
a) entitled to offset also if he/she wants to set off a claim against an LSP® receivable that is reciprocal to the customer claim (e.g. offset with a compensation claim due to non-fulfilment or default against the claim to payment of the owed remuneration),
b) Also entitled to retention if the right of retention is asserted for counter-claims from the same contractual relationship.
(2) The customer may transfer claims from this agreement to third parties only with prior written approval of LSP®, except where Section 354a of the German Commercial Code applies.
Section 6 Retention of title
(1) The following securities are provided to LSP® until the fulfilment of all claims from the business relationship (including all receivables from a current account relationship restricted to this business relationship) LSP® may assert against the customer for whatever legal reason.
(2) Goods delivered remain the property of LSP® until the full payment of all secured claims. The goods as well as goods covered by retention of title replacing them according to the following provisions are hereinafter referred to as “goods subject to reserved title”. To the extent that the following refers to the value of the goods or an item, this means the invoice amount, or, if there is no invoice, the list price, or, if there is no list price, the objective value.
(3) The customer stores goods subject to reserved title for LSP® at no cost for it and with the due care of a prudent businessperson. S/he is obliged to properly insure the goods subject to reserved title and to provide evidence of such insurance to LSP®.
(4) Until the occurrence of an event of default (Section 11), the customer is entitled to process the goods subject to reserved title in ordinary business transactions, to combine and mix them with other items, including properties, (hereinafter referred to as “processing”) and to sell them. Pledges or transfers of property by way of security are prohibited.
(5) To the extent the customer has processed goods subject to reserved title, the parties agree that such processing is carried out in the name and on account of LSP® as manufacturer and that LSP® acquires a direct ownership interest or – if goods are processed together with goods from several owners or the value of the processed goods is higher than the value of the goods in which title is retained – acquires a joint ownership interest (fractional ownership) in the newly-created goods in proportion to the value of the goods subject to reserved title to the value of the newly-produced goods. In the event that LSP® does not acquire such ownership and the newly-created goods are movable goods, the customer hereby transfer his/her future ownership or, in the relationship mentioned in Sentence 1, joint ownership interest in the newly-created goods as security to LSP®.
(6) In the case of a re-sale of goods subject to reserved title, the customer hereby transfers to LSP® the resulting account receivable from the buyer for purposes of security; in the case of a joint ownership with LSP® in the goods subject to reserved title, such assignment is in proportion to the relative ownership interests. The same applies to any further claims replacing goods subject to reserved title or which otherwise arise in connection with the goods subject to reserved title, such as insurance claims or claims resulting from unauthorised acts in the case of loss or destruction.
(7) If the customer processes the goods subject to reserved title on behalf of his/her purchaser (“end customer”), the customer hereby assigns to LSP® his/her right to claim remuneration for the delivery and processing for purposes of security, however, only in proportion to the relative ownership interests. If the goods subject to reserved title have been combined with a property, the amount of claims assigned is determined in proportion of the amount of goods subject to reserved title delivered by LSP® to the remaining movable goods combined.
(8) The customer is entitled to collect claims assigned subject to Sections 6 and 7 until further notice. The customer will transfer to LSP® payments made on claims assigned in the amount of the secured claim without delay. In the event of good cause, notably of default in payment, suspension of payment or justified indications of over-indebtedness or imminent inability of the customer to pay, LSP® is entitled to revoke the customer’s right to collect claims. After submitting a previous warning, providing a reasonable period for payment and after the unsuccessful expiry of this period, LSP® is further entitled to disclose the assignment for security, to realise upon claims assigned and to demand disclosure of the securities assigned by the customer to the end customer. In the case of good cause as specified in Sentence 3, or unsuccessful expiry of a period defined in Sentence 4, the customer must provide information and documents to LSP® which are required to asserts his/her rights against the end customer.
(9) If third parties attach retained goods, particularly by way of asserting a lien, the customer will immediately inform them about the ownership rights of LSP® and notify LSP® about this event in order to enable LSP® to enforce its rights of ownership. The customer is liable to the extent the third party is not able to compensate LSP® for any resulting legal expenses whether judicial or non-judicial.
(10) LSP® will release goods subject to reserved title and goods or claims replacing them to the extent that their value exceeds the amount of secured claims by more than 20%. The selection of items to be released based on the foregoing is at the discretion of LSP®.
(11) In the event LSP® rescinds the agreement as a result of breach of contract by the customer, particularly due to default in payment (event of default), LSP® is entitled to demand possession of the goods subject to reserved title.
Section 7 Liability of LSP®
(1) To the extent liability requires fault by LSP®, the liability of LSP® for compensation for damages, for whatever legal reason (e.g. impossibility, delay, non-conforming or incorrect delivery or performance, breach of the agreement or tortious acts) is limited as provided in this Section 11 (Liability of LSP®).
(2) Liability for simple negligence is excluded to the extent not related to the breach of a material contract obligation, the performance of which first renders the proper performance of the contract possible and the performance of which the customer may reasonably be expected to rely upon and the non-performance of which endangers the achievement of the purpose of the contract (so-called “cardinal obligation”). In the event of the breach of such a cardinal obligation, the liability of LSP® in the event of simple negligence is limited to damages typical to the agreement foreseeable at the time of conclusion of the agreement. LSP® will only assume liability for simple negligence at no more than the amount of the liability limits agreed in the individual contract.
(3) In the case of gross negligence, the liability of LSP® is limited to damages typical to the agreement foreseeable at the time of conclusion of the agreement.
(4) To the extent that LSP® provides technical information or advice and this information or advice is not part of the scope of services owed by LSP® in accordance with the provisions of the agreement, such information or advice is free of charge and without recourse to any liability for negligent false information or advice.
(5) The exclusions and limitations of liability set out in this Section 11 (Liability of LSP®) apply accordingly to claims for reimbursement of futile expenses.
(6) The exclusions and limitations on liability set out in this Section 11 (Liability of LSP®) apply to the same extent in favour of executive bodies, legal representatives, employees and other agents of LSP®.
(7) The limitations set out in this Section 11 (Liability of LSP®) do not apply to liability of LSP® based on intentional conduct, injury to life, limb or health, in cases of bad faith, the assumption of a guarantee or in the case of claims based on the German Product Liability Act (Produkthaftungsgesetz).
Section 8 Limitation period
(1) The period of limitation is
a) one year for claims to repayment of the remuneration based on withdrawal or reduction, but not less than three months from submission of the valid revocation or reduction;
b) one year for claims from material defects not related to repayment of the remuneration based on withdrawal or reduction;
c) two years for claims from legal defects, if the legal defect does not affect an exclusive third-party right for which the third party may demand production or destruction of the items provided to customer;
d) two years for compensation claims from material or legal defects or compensation for wasted expenditure.
(2) The limitation period starts, subject to a specific contractual terms to the contrary, in the cases of subsection 1 letter a) to c) pursuant to the legal requirements of the applicable warranty law, in case of letter d) from the time when customer became aware of the circumstances justifying the claim or would have become aware of them absent gross negligence.
(3) The limitation period starts at the latest with expiry of the maximum periods determined in Section 199 German Civil Code. However, damages and compensation for expenses from intent, gross negligence, guarantee, malice and in the cases stated under Section 11 (7) are subject to statutory periods of limitation.
Section 9 Confidentiality
The parties are prohibited from disclosing business and trade secrets as well as other confidential information from the business relationship and from the sphere of the respective other party (except for information available to the public) to third parties. This provision will remain applicable after the termination of the contractual relationship.
Section 10 Country-specific restrictions on distribution, licenses, applications for property rights and attached trademarks
(1) Trademarks, patents, utility models, designs and other industrial property rights as well as any licenses and permissions necessary with regard to contractual products usually only exist in Germany. The customer will thus immediately notify LSP® of any knowledge of the existence of country-specific restrictions on distribution. In addition, LSP® may request at any time that the customer present appropriate evidence in German or English that there are no country-specific restrictions on distribution.
(2) Export, offering and marketing outside of Germany based on any country-specific restrictions on distribution is carried out at the customer’s risk. The customer commits to obtain any licenses and permissions necessary at own expense; LSP® is obliged to undertake any acts of co-operation necessary. LSP® reserves the right to register and enter necessary property rights at its own expense on request of the customer. The customer must not register and enter own property rights without the approval of LSP® with regard to the contractual products. The customer is further not entitled to register internet domains containing the mark “LSP®” or another mark or product description by LSP®, and/or otherwise use such internet domains for himself/herself or third parties without the consent of LSP®.
(3) The customer will not make any changes to the contractual products, including the packaging and documentation. S/he will particularly not remove, disguise, paste over or otherwise dispose of or use trademarks and logos attached to products.