GENERAL TERMS AND CONDITIONS

Terms and Conditions in the context of sales contracts, via the platform

www.lister.de/marktplatz/

between

the LISTER GmbH, Am Muhlenberg 3, 58509 Lüdenscheid

- below the “Supplier -

and

the clients referred to in § 2 of the Treaty 

- in the following “Customer”.

 

§ 1 SCOPE OF BUSINESS, DEFINITION OF TERMS

(1) The business relationship between the marketplace Supplier (hereinafter “Supplier”) and the Customer (hereinafter “Customer”), is subject exclusively to the following General Terms of Business as applicable at the time the order was made. No other terms will be recognized, unless the Supplier agrees to their validity in writing.

(2) The Customer is an end-consumer, provided that the purpose of the deliveries and services ordered cannot be attributed to the consumer's commercial or independent professional activity. In contrast, an entrepreneur is any natural or legal person or unincorporated organisation who, in concluding the contract, is exercising their commercial or independent professional activity.

(3) The Supplier's marketplace is aimed at both consumers and entrepreneurs.

(4) For contracts with consumers, the following provisions of §§ 2-11 apply.

(5) For contracts with companies, the following provisions of § 12 apply.

§ 2 CONTRACT WITH CONSUMERS

(1) The Customer can set up a user account for the marketplace of the Supplier only when he has received a dealer code from his dealer or after the dealer has registered the Customer with the Supplier. In the second case, the Customer will receive a welcome email that includes a dealer code, with which the Customer can then create a user account for the marketplace.

(2) After the Customer has set up a user account for the marketplace, he can select a product from the Supplier's range and use the “add to basket” button, collecting their choices in a so-called shopping basket. The product representations in the online shop do not constitute legally binding offers from the Supplier, but are an indication of offers to the Customer. Clicking the “Buy” button constitutes a binding order to purchase the products in the shopping basket. Before submitting the order, the Customer can change and view the data at any time. The application can, however, only be submitted and delivered when the Customer activates the checkbox “[] I have read the General Terms and Conditions and agree with their validity.” and “[] I accept the cancellation conditions.” The offer is then processed.

(b) The Supplier then sends the Customer an automatic acknowledgment of receipt by e-mail, in which the Customer's order is listed again and which the Customer can print using the “Print” function. The automatic acknowledgment of receipt merely documents that the Customer's order has been received by the Supplier and does not constitute acceptance of the application. The contract will be completed only when the Supplier sends a notice of acceptance by a separate e-mail (acknowledgement of order).

§ 3 DELIVERY

(1) Delivery is made only within Germany and Austria.

(2) Delivery times are detailed on the product pages.

(3) If not all ordered products are in stock, we are entitled to make partial shipments at our cost, in so far it is reasonable for the Customer.

§ 4 RESERVATION OF OWNERSHIP

Until full payment is completed, the delivered goods shall remain the property of the Supplier. Before transfer of ownership a pledge, transfer, processing or transformation without our consent is not permitted.

§ 5 PRICES AND SHIPPING COSTS

(1) All prices on the Supplier's website are to be understood as inclusive of the appropriate legal value added taxes and plus any shipping costs.

(2) The total shipping costs including delivery costs are calculated by the Supplier and are given in a single amount. This amount is on the product pages and on the order page. The shipping costs will be borne by the Customer, unless the Customer exercises his right of withdrawal.

(3) The goods will be shipped by mail. The shipping risks will be borne by the Supplier when the Customer is an end-consumer.

(4) When paying cash, an additional fee of € 5.15 will be charged, levied by the shipping agent.

§ 6 PAYMENT

(1) The Customer may make the payment by bank transfer, PayPal or Giropay.

(2) If the bank transfer option is chosen, the Supplier will provide the Customer with bank details in the order confirmation. The invoice amount is to be paid within 10 days to the account of the Supplier.

Payment of the purchase price is payable immediately on conclusion of the contract. If a calendar date has been specified for payment, the Customer will be in default if the date is not observed. In this case, the Customer must pay the Supplier default interest at the rate of 5 percentage points above the base rate.

The Customer's obligation to pay default interest excludes the enforcement of further damages payable to the Supplier which are caused by the default.

§ 7 DEFECTS WARRANTY, GUARANTEE

(1) The Supplier is liable for defects in accordance with the applicable statutory provisions, in particular the §§ 434 ff. BGB.

(2) An additional warranty exists for goods delivered by the Supplier only if this has been expressly stated in the order confirmation of the item in question.

§ 8 LIABILITY

(1) Customer claims for damages are excluded. Exempt from this rule are claims for damages due to injury to life, body and health, or in case of violation of essential contractual duties (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty on the part of the Supplier, his legal representatives or vicarious agents. Essential contractual obligations are those where performance is necessary to achieve the objective of the contract.

(2) In the event of a breach of the essential contractual obligations, the Supplier shall be liable only for damage of a nature that is foreseeable and typical for this type of contract and which is caused by recklessness unless the claim is based on injury to life, limb, body or health.

(3) The limitations of paragraphs 1 and 2 shall also apply to the legal representatives and vicarious agents of the Supplier, if claims are made directly against them.

(4) The provisions of the Product Liability Act are unaffected.

§ 9 REVOCATION

(1) Customers have a fourteen day period for withdrawal.


Cancelling policy

Right of withdrawal

You have the right to withdraw from this contract within fourteen days without giving a reason.

The withdrawal period shall be fourteen days from the date on which you or a third party appointed by you, other than the carrier, have or has taken possession of the last good.

To exercise your right of cancellation, you must contact us (Lister GmbH, Am Muhlenberg 3, 58509 Lüdenscheid, Fax: 49 2351 / 1060-50, e-mail address: info@lister.de) by means of a clear statement (e.g. a letter sent by post mail, fax or email) to inform us of your decision to withdraw from this contract. You can use the attached withdrawal form template for this purpose, but this is not mandatory.

Timely submission of the withdrawal notice before the end of the withdrawal period is sufficient for the purpose of observing the withdrawal time limit.

Results of a withdrawal

If you withdraw from this contract, we will refund all payments that we have received from you, including shipping costs (with the exception of any additional costs incurred by your optional choice of another mode of delivery other than the least expensive standard shipping method offered by us) within fourteen days from the date on which your notice of withdrawal has been received by us. We shall refund your costs using the same method of payment that you used for the initial transaction, unless otherwise expressly agreed; in no instance will you be charged fees for this refund. We may withhold the refund until we receive the goods returned by you, or until you have supplied us with evidence of having sent back the goods, depending on which takes place at an earlier time. You shall return the goods to us promptly and in any event not later than fourteen days from the date on which you notify us that you are exercising your right to rescind the contract. This deadline shall be considered as met should you send back the goods before the fourteen-day period elapses. You shall bear the direct costs of returning the goods. You shall be obliged to compensate us for any loss of value of the goods should this arise from an improper handling of the goods not required for inspection of their condition, properties and functioning.

 

(2) If the Customer wishes to exercise his right of withdrawal, he may use the template withdrawal form.


Withdrawal form template

(If you want to withdraw from the contract, please fill out this form and send it to us.)

To: Lister GmbH, Am Muhlenberg 3, 58509 Lüdenscheid, Fax: 49 2351 / 1060-50, e-mail address: info@lister.de

I hereby give notice that I / we (*) withdraw from my / our (*) concluded contract for the purchase of the following products (*) / the provision of the following service (*):
Appointed on (*) / received on (*):
Name(s) of the Customer(s):
Address(es) of the Customer(s):
Signature of the Customer(s) (only for communications on paper):
Date:
(*) Cross out as appropriate.


§ 10 CONTRACT TEXT

The Supplier is the depositor of the contract. The order data, the Conditions, the Privacy Policy and Conditions together with the mode withdrawal form template will be sent to the Customer by e-mail. The text of the contract is otherwise inaccessible to the Customer.

(c) The contract shall remain binding even in case of legal invalidity of individual item in its remaining parts. The statutory provisions shall replace the individual clause, if any. Insofar as this would constitute an unreasonable hardship for one contracting party, the contract will be ineffective as a whole.

§ 12 CONTRACTS WITH CONTRACTORS

The following Terms and Conditions Section 1-13th apply to commercial transactions with all customers who are not end-consumers within the meaning of § 13 BGB and who are headquartered in Germany. For customers based abroad only paragraph 14 applies.

1.1. Deliveries, services and offers are subject to these terms and conditions.

1.2. They apply to all future business relations, even if they are not expressly agreed again. These terms are deemed accepted upon acceptance of the goods or services, if not earlier. The Customer having regard to its conditions Confirmations are hereby rejected. This also applies to the case that the Customer has prescribed a specific form for the opposition. Deviations from these Terms and Conditions shall be effective only if confirmed in writing.

1.3. Orders and oral side agreements to contracts, which are taken by our sales representatives, shall only be effective upon written confirmation by us.

2. Contract, special features in e-commerce 2.1. Our offers are non-binding. Technical changes within reason subject, as well as the adaptation of our products to future standardization.

2.2. The Customer makes a binding ordering a product, to purchase the ordered goods (contract offer). 

We are entitled to accept this contract offer within two weeks from the date of its receipt by us. Acceptance may either expressly in writing or in text form or by sending the ordered goods.

2.3. The final contract is subject to correct and timely delivery by our suppliers. This applies only to the case where the non-delivery is not our responsibility. Especially in the presence of a proper and congruent transaction with us, a non-delivery is not our responsibility.

2.4. In electronic legal transactions, the confirmation of receipt of the order is not a mandatory declaration of acceptance of the contract offer, unless acceptance is expressly stated in the confirmation of receipt.

2.5. If an order is made by electronic means, the contract text is stored by us and sent to the Customer on request together with these Terms and Conditions by e-mail. In addition, the disclosure requirements of § 312e paragraph I no. 1-3 BGB (provision of technical aids to eliminate input errors, provision of information according to the information requirements VO, immediate confirmation of receipt) are excluded.

3. Pricing, packaging, shipping,

3.1. Prices are in € ex works, excluding freight, insurance and exclusive of VAT. Decisive are the prices stated in our order confirmation which are quoted without statutory VAT. Low volume surcharges are levied by special arrangement.

3.2. If the prices are calculated for a period longer than three months, we have the right to request the appropriate price adjustment if exceptional, unforeseeable increases of contract wages, starting material or other costs occur.

3.3. Confirmed prices of an order shall be binding on subsequent orders of similar parts in any case.

3.4. Transport packaging must be returned to us in accordance with the existing ordinances. Packaging material that is not subject to return by the Packaging Ordinance, shall be charged to us, with freight prepaid for return shipping to us.

3.5. If there are no specific instructions from the Customer for packaging and shipping , we reserve the right to choose the packaging and the transport path.

4. Payment

4.1. Unless otherwise agreed, our invoices are payable for deliveries of goods within 21 days without deduction of the invoice date. Our representatives have no authority to collect. The Customer has the contractual obligation to pay the purchase price within 21 days of receipt of goods. After this period, the Customer is in default of payment.

We are entitled to offset payments on previous debts notwithstanding any provisions of the Customer. If costs and interest have already been incurred, so we are entitled to expect the first payment on the cost and then the interest and finally against the principal to be applied.

4.2. A payment shall be considered made when we have access to the amount. In case of payment by securities we reserve the right in individual cases to consider payment made when the paper is redeemed. The associated costs and expenses are to be borne by the Customer.

4.3. The Customer pays a 7% interest above the base rate according to § 247 on a money debt during the delay. The right to claim further, specifically detected delay damages is expressly reserved. Likewise, the Customer's right to prove that a loss of interest due to the delay at a lower level or not at all has occurred.

4.4. If the Customer does not fulfil his payment obligations, in particular a check or draft is not honoured or his payments blocked, or if other circumstances become known, the creditworthiness of the Customer is important for the relationship dimensions in question, so we are entitled to call in the entire remaining debt, even if we have accepted checks or bills of exchange. We are in this case also entitled to demand advance payment or security.

4.5. The Customer is only entitled to offset, withhold or retain payment, even if defects or counterclaims are valid, only if the counterclaims are legally established or are undisputed. The right of retention is only allowed if the counterclaim from the same legal relationship comes.

5. Shipping times, delivery delays, liability for delay in delivery

5.1. Delivery times do not begin before complete clarification of all execution details.

5.2. The meeting of deadlines requires the fulfilment of the contractual obligations of customers.

5.3. We do not bear responsibility where delivery and performance delays are due to force majeure and due to events which impede delivery or impossible to make (this includes, for example, strikes, lockouts, official directive, etc.), even if they occur at our suppliers or their suppliers. They entitle us to postpone shipping or performance by the duration of the hindrance plus postpone for a reasonable period or withdraw from the unfulfilled part contract either completely or partially.

5.4. If the hindrance lasts longer than 2 calendar months, the Customer is entitled to a reasonable grace period to withdraw from the part of the contract not yet fulfilled. If the delivery times are extended or we are released from our obligations, the Customer cannot make valid any claims for damages.

5.5. We make only invoke the in para. 5.3 and 5.4 mentioned conditions if we notify the Customer immediately on the occurrence of these events.

5.6. We are liable for delays in delivery, in accordance with statutory provisions, if this is due to a wilful or grossly negligent breach of contract. If the delivery delay is not due to an abuse of the contract for which we are responsible, our liability for damages is limited to foreseeable, typically occurring damage.

We are also liable in accordance with statutory provisions, insofar as the delivery delay is a culpable breach of an essential contractual obligation. In this case, the liability for damages is limited to foreseeable, typically occurring damage.

In addition we will pay, in the case of a delivery delay attributable to us, for each full week of delay a lump sum compensation in the amount of 0.5% of the value of the delayed goods, but no more than 5% of the value of the delayed goods.

Further statutory claims and rights of the Purchaser are reserved.

6. Shipping and Transfer of Risk, Acceptance

6.1. Deliveries are made ex works (EXW INCOTERMS 2010). The risk passes to the buyer once the shipment has been handed over to the person performing the transport or has left our warehouse for dispatch. This risk is exists even if free delivery has been agreed upon. If the delivery is impossible and we are not at fault, the risk passes to the Customer upon notice of readiness for shipment. The mode of shipment is up to us, unless the Customer has given explicit instructions in this regard. Transport damage noted after receiving the shipment is to be reported immediately to the shipper or the carrier and a statement must be made.

6.2. In the event of self-collection, the Customer must be immediately ready to pick up the goods ordered. If the Customer is unable to fulfil this obligation within three business days after notification of readiness for shipment, we are entitled to ship or store the goods at our discretion at the expense and risk of the Customer. Goods notified as ready for shipping are calculated as supplied. With the notification of dispatch, the risk passes to the buyer.

7. Defects, warranty, payment of damages

7.1. We accept responsibility for the goods delivered by us in accordance with the following provisions, which includes the warranty rules and which are not guarantees in the legal sense. Any manufacturer warranties for items supplied shall remain unaffected by these provisions. Customer warranty claims require that due inspection and complaint (see below 7.3.) requirements have been duly complied with.

7.2. The warranty period is 12 months, but only if the delivered product is used in accordance with its usual purpose for a building and this has caused its defectiveness. It begins with the delivery date. If our technical data sheets or instructions are not followed or modifications to the products are undertaken, the warranty is invalidated, unless the Customer proves that the alleged defect is not due to these circumstances.

7.3. The Customer is obliged to immediately, but no later than within two weeks of receipt of the delivery to notify us of obvious defects in writing and to describe the defect exactly. Defects which cannot be detected by a thorough examination within this period must be reported to us immediately after the discovery in writing, with an exact description of the defect. When a breach of these rules occurs, the assertion of the warranty claim is excluded. The Customer bears the full burden of proof for all claims, in particular for the defect itself, the time of its identification and the timeliness of his complaint. §§ 377, 378 HGB remain unaffected.

7.4. In the case of a justified complaint, we may at our own discretion, provide a repair or replacement.

7.5. If after reasonable notice by the Customer the remedy fails,, the Customer may request the cancellation of the contract or the reduction of costs, and at his discretion withhold payment. Where only minor lack of conformity in performance is noted, especially minor defects, the Customer shall not be entitled to withdraw.

7.6. The liability for economic loss is limited to three times the purchase price of the item which caused the damages. Any claim for damages is limited to foreseeable and, according to the type of product, typically occurring damage.

7.7. Decisive for the contractual nature of the products to be supplied by us is, in the absence of any express agreement, only our product description and - in each case where applicable - the agreed upon technical delivery requirements and release and approval patterns, where appropriate, countersigned by the Customer. Release patterns are merely the control of drawings for approval, a quality description is not connected to the master instructions. Public statements, recommendations or advertisements do not constitute a contractual statement of quality of the product described.

7.8. The liability for the suitability of the product for the intended use, their proper design, compliance with construction regulations and with safety regulations the suitability of the materials is excluded, in as far as we have used information provided by the Customer when providing the service.

7.9. Warranty claims against us are only valid from our direct contractors and are not transferable.

7.10. If the Customer makes claims which we recognize as critical or not feasible in production engineering, we will make the Customer a counterproposal based on their information. The Customer is obliged in this case, on his own responsibility to check our amendment for its usability for their purposes. Any warranty or liability whatsoever with regard to the suitability of our amendment for the purposes of the customers will not be accepted.

7.11. Goods that are returned not due to defects in the goods will be accepted by us only upon prior written consent. The cost of returning the goods shall be borne by the Customer. Returned goods will be credited to the former purchase price minus a standard industry discount of 15% for incoming goods inspection, storage and commercial handling.

7.12. Lister maintains a quality management system for the manufacture of refrigeration equipment. All products are in accordance with our QM manual and are constantly checked during production. The Customer is entitled to obtain information in an audit of the nature and scope of the accompanying production quality inspections. Further tests apart than those provided as part of our quality management system will require a special agreement in writing between the Customer and ourselves, precisely describing the test parameters and test methods.

7.13. Our quality management system does not relieve the Customer of the need for proper inspection of incoming goods (see paragraph. 7.3.).

8. Limitations of Liability

8.1. We are not liable in the case of slightly negligent violation of insignificant contractual obligations.

8.2. In the case of other slight negligence, our liability is limited to foreseeable and, according to the type of product, typically occurring damage. This also applies to minor negligent breaches of duty by the legal representatives or vicarious agents.

8.3. The above limitations shall not apply to claims by the Customer regarding product liability or in the case damage to the body or health or loss of life of the Customer which are attributable to us.

8.4. The Customer claims for damages are limited to one year, beginning with the delivery of the goods. The above limitations shall not apply to claims of the Customer from product liability or in the case attributed to us, body or health or loss of life of the Customer.

9. Retention of Title

9.1. Until complete settlement of all liabilities arising from the business relationship - including interest and costs - we reserve title to the goods supplied. The Customer is obliged at our request to pay for special storage and insurance of the goods delivered under retention of title and must upon our request provide proof of the storage and insurance. In the case of the purchase price amortization in credit / exchange certificates, our reservation of title does not cancel with the redemption of the Customer's checks, but with final crediting of the amount to our bank account.

9.2. The Customer is entitled to dispose of the reserved goods - also processed - to have in the normal and ordinary course of business. He must however, reserve his rights and claims to the property until full payment of its purchase price. The Customer may not pledge or assign to secure the reserved goods and shall inform us of seizures made by third parties or other access by third parties to the reserved goods without delay.

9.3. If the Customer changes or modifies goods delivered by us or connects or  mixes them with other items or goods not supplied by us, the change or modification is free for us as manufacturers. We accordingly acquire ownership or co-ownership in the proportion of our product to the total value added in resulting from the change or modification. The Customer shall store the newly created object free of charge for us. In combining our goods with goods of other suppliers by the Customer we will be proportionally the co-owner of the new object. As far as we are owners or co-owners arising from the working or processing of new items, we will also be the co-owners of a share applicable to the goods, subject to retention provisions which may apply accordingly.

9.4. The Customer hereby releases us, in precedent to the time they are incurred, from any future claims which may arise as a result of a resale. If the reserved goods after connection - especially with goods not belonging to us - are resold, then the release occurs only to the amount of the sales value of our reserved goods. If the third-party debt is higher than our claim, the claim against the third party purchaser transfers to us in as far as it corresponds to the value of our reserved goods.

9.5 The Customer is entitled to collect the claims assigned to us by the third buyer for us.

In case of breach of contract by the Customer, in particular default in payment, we reserve the right to immediately collect the claim from the third party purchaser. The Customer is obliged to inform us (in this case) on request of information regarding the name, company, address and contract information of third buyer.

9.6. In case of breach of contract by the Customer, in particular default in payment, we are further entitled to withdraw from the contract and demand the goods, without prejudice to other legal rights because of this breach of duty of the Customer.

10. Rights, copyright

10.1. The Customer is responsible for ensuring that the goods we produce according to his information, do not infringe on the rights of third parties. If we are held liable, as a result of the production or supply of such products from a third party, to claims of a property right infringement, so shall the Customer indemnify us from all claims. We will proceed to defend ourselves in courts in such cases only if the Customer provides us with a binding statement of ensuring their payment of all costs. We are entitled to require security in this case because of the litigation costs.

10.2. The Customer has the contractual obligation, to use documents and drawings as well as services provided by us, constructive achievements and proposals for the design and manufacture of refrigeration equipment only for the agreed purpose. It is prohibited to make these the subject of publications to third parties without our consent.

11. Production equipment, tools, trade secret protection

11.1. Means of production (tools, manufacturing equipment) are all items that are manufactured for the production of ordered goods, and their purpose is to serve the production process of the goods ordered. It is agreed that the Customer shall bear the cost of its production in whole or in part, and that these costs shall appear separately from the product price in the invoice.

11.2. The cost of maintenance and proper storage as well as the risk of damage or destruction of the means of production are carried by us to the limit of an amount agreed upon at the close of the contract regarding the number of items to be produced. For the production due to wear it may become necessary to replace them, the Means of production clause 12.1 applies.

11.3. We retain the means of production for two years after the last delivery to our contractors free of charge. After this time we will give our contractors 6 weeks to decide on further storage as they require. The retention period ends if after the six weeks no statement has been made or no re-order is placed. If a new order is made within that time, this clause is renewed automatically.

11.4. The Customer does not acquire ownership of the means of production produced by us, even if he bears the costs in whole or in part. However, the Customer is entitled to deduct the tools, if despite a warning inferior quality has repeatedly been delivered or if we are unable to deliver after reasonable notice.

11.5. The Customer is obliged, as we treat all commercial and technical details, which result from the reciprocal business relationship, as a trade secret. Drawings, models, templates, samples and similar expensive item