General terms and conditions of sale
Date of issue: September 2018
- This contract and future contracts of sale, particularly for repeat orders, shall only be concluded according to the following general terms and conditions of sale, unless otherwise agreed in writing.
- These general terms and conditions of sale only apply to companies, legal persons or separate legal entities under public law or separate property under public law.
- Our general conditions become part of the contract upon receipt of our order confirmation.
- We shall not be subject to any deviating conditions of the purchaser, even when not expressly communicated, or even if deliveries are made without our raising express objections to deviating conditions.
- Our general terms and conditions of sale are deemed to be valid if we deliver to the buyer without reservation, even though we are aware that he has terms and conditions of sale which contradict ours or deviate from them.
- All divergences from these terms of sale require our express approval in writing.
II. Contractual object
- The contractual object is only the supply of the goods or the service, is defined in the order confirmation. Amendments, modifications and collateral clauses to this agreement are only valid upon written confirmation from us.
- Generally, only the features listed in the order confirmation are deemed contractually valid.
- Drawings, illustrations, dimensions or other performance data are only binding if this has been expressly agreed in writing.
III. Offers, Conclusion of Contract, and Scope of Delivery
- We reserve the right to accept an order by sending our order confirmation within 10 working days. Orders shall be considered accepted only upon written confirmation (confirmation of order), and not by mere receipt con-firmation notification.
- Our offers are not binding and are subject to change without notice. This shall also apply to offers made by or placed with our representatives. Only our written order confirmation is binding.
- In the event that our order confirmation contains either/or any written or printed errors, technical coverage errors pertaining to price determination, we are entitled to challenge. Any payments already received from the buyer will be reimbursed without delay.
- Any agreements made between us and the buyer when entering into a contract, or any supplement or changes to the contract must be made in writing to be valid.
- We reserve the right to modify the contractual object in the interest of technical progress even after an order confirmation has been drawn up, provided that such modifications do not detrimentally affect the order's price, delivery time, use or function.
- Specifications in our catalogues, prices lists, and all other sales documents apply to luminaires wired for connection to the respective power supply at an operating voltage of 230V/50HZ; our indoor luminaires are designed for a max. ambient temperature of +25°C. Luminaires for other voltages, fre-quencies, and ambient temperatures are available on request. This also applies to special versions of a general nature.
IV. Delivery, Passing of Risk, and Delivery Schedules
- The observance of delivery obligations depends on the timely and proper fulfilment of the customer's obligations. The defence of noncompliance with the contract hereto shall be reserved for us.
- Delivery is ex works.
- In the case of an agreement for free delivery, we deliver up to the loading dock. The customer is obliged to organize the unloading of the goods at its own expense.
- Packaging materials, in accordance with the packaging ordinance, can be sent back to us for disposal. Additional disposal services involving charges will not be accepted and/or undertaken by us.
- Risk transfer
- If the goods are shipped to the buyer or to another destination on the buyer's request, the risk of accidental loss or accidental deterioration is transferred to the buyer as soon as the goods are handed over to the carrier, or otherwise to the dispatch person or institution. This is valid, irrespective of whether or not said delivery was arranged by the buyer. We do not insure against transport risks.
- In the event that the delivery is free house, then we carry the risk until the goods are handed over at the agreed upon destination.
- If the buyer defaults on debt payment or acceptance, the risk of accidental loss or accidental deterioration of the goods is transferred automatically to the buyer at the time of his default.
- Delivery times
- The delivery date laid down in the order confirmation is not binding, unless otherwise is expressly agreed in writing.
- The delivery deadline is met by us if, prior to expiry date, completion and notification for collection of the goods has been communicated to the buyer, unless special delivery or collection arrangements have been otherwise agreed in exceptional cases.
- Operating breakdowns, shortages of energy or raw materials, traffic disruptions, provided that such events were not foreseeable, as well as strikes, lockouts, official orders and cases of force majeure release, for the duration of the disturbance and the extent of its effect, the party from its obligation to deliver or receive products. If the delivery is de- layed by more than 1 month, either party is entitled to cancel the con- tract with regard to the volume affected by the disruption to delivery or acceptance.
- In case of delivery on call, there must be a period of at least 6 weeks between order call and delivery date unless otherwise is agreed in writing.
- Delivery is subject to the proper and timely self-supply by our sup- pliers. This applies only I n th e case of no-delivery that is not our responsibility. We will inform the buyer about the unavailability of the performance immediately in writing and reimburse a purchase price already paid without delay.
- In the event of non-delivery, the buyer must send a written reminder and set a grace period of thirty (30) days. If delivery does not take place within this grace period, the buyer can withdraw from the contract with regard to the affected part of the order, if and to the extent that we are responsible for the delay. Claims for damages due to a failed or delayed delivery as well as claims for damages in lieu of per- formance shall be governed by VIII of these GTCS.
- We are entitled to make reasonable partial deliveries or to fulfill partial services at any time.
V. Prices, Terms of Payment, Counter demands
- Prices are ex works, without transport packaging and excluding sales and/or value added tax, unless otherwise agreed in writing. Transport, customs and any other extra costs will be charged to the buyer sepa rately.
- For contracts that destine our goods or services for a period that exceeds 4 months after the conclusion of the contract, we reserve the right to modify our prices when or after the conclusion of the contract cost reductions or increases occur, especially due to labor agreements or changes of material price. On request, we will proof these increases to the buyer.
- Terms of Payment
- Our invoices are due for payment 10 days after the invoice date.
- Bills of exchange and cheques are on account of performance. The buyer shall bear banking fees, discount and collection charges. We assume no obligation or liability for timely protestation of bills of exchange and cheques.
- By exceeding the contractual payment deadline the buyer is in default.
- In the event of a delay in payment by the buyer, interest on arrears shall be payable in the amount of 9% above the respective base interest rate. At the same time, the buyer has to pay a lump sum of 40,00 EUR in case of late payment. The assertion of any further claims for damages shall remain unaffected thereby.
- Should the financial circumstances of the purchaser deteriorate after the conclusion of a contract, or if an deterioration in his financial circumstances that existed before the conclusion of a contract does not become known to us until after the conclusion of the same contract, the buyer shall, upon our demand and at our discretion, either
(1) matching payment with delivery, or
(2) provide security in the amount of the purc hase price within one week of the receipt of the demand and before delivery.
- The customer has a counterclaiming right only if these have been le- gally established, are undisputed or are recognized by us.
- The buyer shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
VI. Reservation of title
- All merchandise delivered remains our property until complete payment for all claims to which we are entitled against the buyer from the business re-lationship. In the event of breach of contract by the buyer, especially de-fault of payment, we are entitled to repossess the goods. Taking back the goods shall constitute a withdrawal from the contract by us. We are entitled to dispose the goods after taking them back. The proceeds from the sale are to be offset against the buyers's liabilities minus reasonable costs of sale.
- Our title shall cover the new products created by the goods subject to reservation of title being processed. Installation, processing or transformation is always for our benefit as manufacturer, however without liability for us. If the goods subject to reservation of title are processed, connected with or missed with goods not belonging to use, we shall acquire coownership in proportion to the invoiced value of our goods subject to reservation of title to the invoices value of the other materials.
- As long as the purchaser is willing and able to duly fulfil his obligations to us, he may resell the related wholly or jointly owned goods in the course of its ordinary course of business, unless he is in arrears.
- The buyer assigns to us in advance the claim to which it is entitled against its customer from the resale of our reserved goods in order to secure our respective claims in the amount of claim for the purchase price. We already accept the assignment now. In the event of the sale of goods to which we have coownership, the assignment shall be limited to the share of receivables corresponding to our co-ownership share.
- The buyer has the right to collect debts even after the assignment. The payments they buyer received on the assigned claim shall keep seperately and forward to us immediately.
- This authorization to collect can be revoked at any time should the pur-chaser fail to fulfill its payment obligations to us from the received proceeds, if the purchaser defaults on payment or suspends payments or if insolvency proceedings are instituted. In these circumstances we may demand that the buyer notifies us of the assigned accounts and who owes them, provides us with all the information we require to collect the accounts, hands over to us the relevant documents and notifies the debtors that the accounts have been assigned to us.
- The purchaser shall reject any exclusion of cession demanded by his customer upon resale. We shall be entitled to inform a customer of our purchaser about our proprietary rights and the cession.
- The purchaser may not pledge the reserved goods, rent it, loan it, or transfer ownership by way of security. He shall inform us without delay and in writing of all details that are necessary for the pursuance of our due rights should the reserved goods are impounded by a third party or any claims are made about the reserved goods. If the third party is unable to reimburse us for the costs of a judicial or non-judicial action against him, the buyer is liable for these resulting charges.
- If the value of securities exceeds that of claims by more than 20%, we shall release securities chosen by us upon his request.
- The goods must reflect the state-of-the-art technology at that time unless otherwise is agreed in writing.
- The purchaser shall have to inspect the merchandise immediately upon delivery to verify whether the goods supplied are commensurate with the contractually agreed condition and properties and are suitable for the in-tended suitable for the intended purpose.
- Complaints of incorrect or incomplete delivery or other deficiencies must be forwarded to us in written form and without delay, but must reach us at the latest within seven days of delivery. Any deficiencies discovered after this point must be forwarded to us without delay and within the same form and period of time, starting with the day such deficiencies are discovered.
- Complaints regarding hidden defects in all cases are only permitted for a period of 2 years after receiving the goods.
- The alleged deficiencies must be described concretely. After the deadline according to paragraph 3 has passed, the goods are regarded as fault-lessly approved and there are no rights to the buyer.
- Upon receipt of a delivery with external signs of damage the purchaser shall claim damages in writing form and without delay at the forwarding agent, and inform us of this in writing form immediately.
- In case of defective goods the buyer shall be entitled to demand supple-mentary performance as he chooses and having set us a reasonable peri-od of time in a form of a defect or delivery of goods free from defect. If such supplementary performance is fails according to Sec. 440 S. 2 German Civil Code (BGB), the buyer shall, as he chooses, be entitled to lower the purchasing price or to withdraw from the contract. If the defect is no more than minor, the buyer shall only be entitled to a right to reduce the purchase price.
- Except in cases of willful misconduct, gross negligence and personal injury, warranty claims for all products supplied by us shall lapse after one year, unless otherwise agreed in writing. The period begins with the date speci-fied in Sec. 199 BGB (German Civil Code). It shall come into effect at the latest upon expiry of the maximum periods specified in Sec. 199 (3) and (4) of the German Civil Code (BGB).
- Warranty claims for defects shall not exist in the event of only insignificant impairment of usability, for natural wear and tear, or damage arising after the transfer of risk as a result of faulty or negligent use, excessive stress, faulty assembly, or due to special external influences which are not pro-vided for in the contract. Furthermore, claims for material defects do not exist if the buyer has not complied with the regulations concerning the handling, maintenance and inspection and care of the goods, in particular those arising from the operating instructions. This applies in particular to damage caused by excessive voltage.
- If unprofessional repair work or modifications to the goods are carried out by the buyer or third parties, they and the consequences arising therefrom shall not be covered by warranty either.
- In the case of fraudulent concealment of a defect or in the case of the acceptance of a warranty for the condition of the goods at the time of the passing of risk according to Article 444 German Civil Code (BGB) the purchaser’s rights act solely in accordance with legal regulations.
- Insofar as there are no mandatory legal regulations, the warranty shall only apply to the customer and not to the customer's customers. We do not guarantee the fitness for a certain purpose or the marketability of the respective purchased item.
- All further claims, in particular for loss of profit as well as consequential damages due to defects, are excluded, unless these were typical for the contract and foreseeable.
- If the purchaser demands warranty performance and it later transpires that such obligation on our part doesn't exist, he shall be responsible for all our reasonable expenses incurred in this connection.
- With respect to the contractual object's functionality and interaction with other components the warranty is fundamentally excluded. That refers both to the components or software programs located in the luminaire and to externally present components or software programs. That shall not apply if we will have been given by the buyer, prior to closing the contract, with respect to the provided product a manufacturer's test certificate regarding to the functionality and interaction with other components and also if we will have been given suitable assembly instructions.
- The foregoing warranty rights lapse 12 months after delivery. This does not apply in cases of intent, gross negligence, an existing guarantee or fraudulent concealment of the defect.
- All claims for damages of the buyer against us are excluded, irrespective of the legal basis, unless we or our vicarious agents have acted with intent or gross negligence or with slight negligence of essential contractual obligations. Essential contractual obligations are obligations that protect the contractual partner's fundamental legal rights under the contract in terms of its contents and its purpose. Also essential are contractual obligations that need to be fulfilled in order for the contract to be properly ececuted at all and and on the compliance with which the contractual partner has trusted and ought to be able to rely.
- In particular, the buyer shall also not be entitled to claim damages in the event of a failed or delayed delivery, even if a grace period has been de-termined and this has expired fruitlessly.
- In the case of gross negligence or slightly negligence of a essential contractual obligation the compensation is limited to typical and foreseeable damage.
- Liability for any damage that is not caused to the contractual object itself is excluded, except in the case of intent or gross negligence.
- Liability on account of culpable injury to life, body or health shall not be affected; this shall also apply to mandatory liability under the German Product Liability Act (ProdHaftG) or acceptance under guarantee.
- To the extent that our liability is excluded or limited, this applies equally to the personal liability of our employees, workers, personnel, legal representatives and vicarious agents.
- A limitation period of one year shall apply to all claims for damages or compensation for futile expenses in the case of contractual and non-contractual liability asserted against the seller - except in cases of willful intent, gross negligence or personal injury. The exclusion period shall commence on the date specified in Sec. 199 BGB (German Civil Code). It shall come into effect at the latest upon expiry of the maximum periods specified in Sec. 199 (3) and (4) of the German Civil Code (BGB). The statutory limitation period shall apply to claims for damages under the Produkthaftungsgesetz [German product liability act].
IX. Final provisions
- German law applies, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG)
- The obligatory contractual language is German.
- The place of performance is 86415 Mering/Augsburg.
- The exclusive place of jurisdiction for all disputes arising or in connection with this agreement - including actions on check and bill of exchange - shall be Augsburg. If the buyer has no general place of jurisdiction in Germany or another EU Member State, the exclusive place of jurisdiction for all disputes arising under this contract shall be our place of business.
- Should one or more of these terms and conditions be or become entirely or partially ineffective, incomplete or in need of completeness, the effective-ness and applicability of the remaining conditions of these general terms and conditions shall remain unaffected.
- The parties are already obliged to meet a regulation in this case which comes closest to the original, legal and economical aspects. Omissions in the contract are to be dealt with in the same way.