Standard Terms and Conditions with authorisation for data processing
1.1 The following Standard Terms and Conditions (referred to hereinafter as ST&Cs) shall be an integral part of all of our offers of contract, notices of acceptance and other sundry agreements. Furthermore, they shall form the foundation of all of our sales, deliveries and other sundry services. This shall also be also valid for any consultancy services.
1.2 Our ST&Cs shall exclusively be applicable; conflicting stipulations or stipulations deviating from our ST&Cs shall not be recognised by us, unless we have explicitly agreed to their validity in writing. Our ST&Cs shall also be valid in the case where we carry out delivery to the purchaser without reservation, in full knowledge of conflicting stipulations from the purchaser, or stipulations from the purchaser deviating from our ST&Cs.
1.3 All agreements which are made between us and the purchaser shall be recorded in writing. Any and all stipulations may only be amended by means of written individual agreements. This shall also be valid for this requirement of the written form.
1.4 Our ST&Cs shall also be valid for all future commercial transactions with the purchaser, provided that the purchaser is a merchant (Kaufmann) within the meaning of section § 24 of the General Terms and Conditions Act (AGBG). Upon the commissioning of these ST&Cs, our previous terms and conditions are made invalid.
2. Offers / Orders
2.1 Our offers are subject to change, provided that it is not otherwise stated in the order acknowledgement.
2.2 In case of transactions with non-merchants, the purchase order signed by the purchaser shall be a binding offer. We are entitled to accept this offer within a period of two weeks by sending an order acknowledgement, or by sending the ordered goods within this time period.
3. Prices / Conditions of Payment
3.1 Provided that it is not otherwise stated in the order acknowledgement, our prices shall be on an ex works basis excluding packing/packaging and assembly. The statutory value-added tax is not included in our prices; but shall be displayed separately on the invoice on the date of invoicing as per the statutory rate. As a basic principle, lamps shall not be included in the prices, unless the goods in question are described as including lamps.
3.2 We reserve the right in commercial transactions to amend our prices appropriately, if after conclusion of the contract changes in cost occur, especially on account of collective tariff agreements, material price changes, unforeseeable public expenses, ancillary charges, freight charges or similar. Upon request of the purchaser, we shall provide evidence of these changes in cost.
3.3 In case of delayed payment, we shall be entitled to charge the statutory interest on late payments in accordance with section § 288 of the German Civil Code (BGB) in connection with section § 247 of the German Civil Code (BGB). Our right to make claims on further damages shall not be affected.
3.4 Payments shall be made exclusively to us. Employees of the company and other sundry persons are not authorised to collect monies owed.
3.5 The acceptance of means of payment other than cash shall take place only on account of performance and against absorption of all costs in connection with the method of payment by the contract partner.
3.6 We shall be entitled to carry out partial services / works and to demand corresponding partial payments for said services / works.
3.7 All of our accounts receivables shall immediately become due for payment should the conditions of payment not be adhered to, or should circumstances become known to us which make it acceptable to reduce the credit worthiness of our contract partner.
3.8 The purchaser shall only be entitled to rights of set-off, if his counter claims have been legally established, are undisputed or have been acknowledged by us. Furthermore, the purchaser shall only be entitled to exercise a right of retention, if the counter claim is based on the same contractual relationship.
3.9 Costs for the assembly of lamps shall be subject to neither reduction nor discount.
4.1 The delivery time shall only be considered as definitely agreed, if we have designated it as binding explicitly and in writing.
4.2 The commencement of the lead time as specified by us shall presuppose the clarification of all technical issues. The lead time shall begin at the earliest on the day of the sending of the order acknowledgement.
4.3 If we default on schedule for reasons falling within our responsibility, then with regard to merchants, our liability for damages in the case of ordinary negligence shall be excluded. In case of transactions with non-merchants, our liability for damages shall be limited to an amount of fifty per cent of the foreseeable damages in case of slight negligence. Further claims for damages shall be conditional on the cause of the delay being due to gross negligence.
4.4 Should we not be able to meet an agreed delivery date, then the purchaser must set us an appropriate period of grace. A period of grace shall be considered appropriate insofar as it covers the period that we require in order to receive parts to be obtained from third parties. After the unsuccessful expiry of the period of grace, the purchaser shall be entitled to withdraw from the contract; the purchaser shall only be entitled to claims for damages on account of non-fulfilment amounting to the foreseeable damages, shall the delay be due to wilful intent or gross negligence; it should be noted that the liability for damages shall be limited to fifty per cent of the damages that have occurred.
4.5 Adherence to our delivery commitments shall be conditional upon the timely and proper fulfilment by the purchaser of all its obligations.
4.6 The time for delivery shall be extended appropriately upon the occurrence of unforeseeable and extraordinary events, which we are not able to avert despite reasonable diligence proportional to the particular case exercised on our part, insofar as these said events shall have a substantial influence on the completion and delivery of the goods. Among these said events are, in particular, interventions by authorities, disruptions in operations, measures in the context of industrial action, such as strikes and lock-outs, all delays in the delivery of auxiliary materials or component parts as well as other events of force majeure. The same provisions shall be valid when such events occur affecting our sub-suppliers. Claims for damages or compensation on the part of the contract partner shall be excluded in such cases.
4.7 Should the purchaser default in acceptance of the goods, or should any other obligations to co-operate be breached, we shall be entitled to claim compensation for the damage and for any damages arising thereof, including for any possible additional expenses. In such case, the risk of accidental loss, destruction or accidental deterioration of the goods delivered shall pass onto the purchaser at the moment in which the purchaser defaults in acceptance.
5. Consultancy Services
5.1 We shall not assume liability for technical or other sundry consultation carried out by us or by those commissioned by us, unless we or those commissioned by us shall be guilty of wilful intent or gross negligence.
5.2 We reserve the right to charge for planning work rendered by us and drafts made by us, in case the corresponding order shall not be placed. Drafts, drawings, illustrations and other documents making up our offer shall remain our property and are subject to our copy right. Upon request they shall be returned to us.
6. Retention of Title
6.1 We retain title of the goods delivered until the receipt of all payments from the business transaction with the purchaser. Contingent receivables shall also be considered as accounts receivables. In case of a breach of contract by the purchaser, in particular in case of delay in payment, we shall be entitled to take back and/or redeem the goods purchased. Redemption of the goods delivered or seizure of goods delivered by us with retention of title shall always be grounds for withdrawal from the contract. After their redemption, we shall be entitled to exploit goods delivered; the proceeds resulting from this exploitation may be applied towards the purchaser’s accounts payable – after deduction of appropriate exploitation costs.
6.2 The purchaser is obligated to handle the goods with care for the duration of the period of applicable retention of title; in particular the purchaser is obligated to insure the goods at his own cost and at replacement value against fire and water damage and theft. Provided that any maintenance works are necessary, the purchaser must have these carried out at his own cost in a timely manner.
6.3 In case of seizure or intervention by third parties, the purchaser shall notify us immediately in writing so that we may bring suit in accordance with section § 771 of the Code of Civil Procedure (ZPO). As far as the third party is not in a position to reimburse us the court and out-of-court costs of a suit according to section § 771 of the Code of Civil Procedure (ZPO), then the purchaser shall be liable for these costs.
6.4 The purchaser shall support us in every reasonable way in the assertion of our security interests. Upon our request, the purchaser is obligated at all times to give us all necessary information on the whereabouts of the goods delivered with retention of title as well as any receivables arising from resale, and to hand over all documentation necessary for the assertion of our rights and claims.
The pledging or assigning as security of the goods remaining our property is forbidden to the purchaser without our consent.
6.5 The value of the retained goods within the meaning of these provisions shall be our invoice value, provided that a higher value does not result from the preceding provisions. At the purchaser’s request, we undertake to release the securities to which we are entitled to as far as the value of our securities exceeds the claims to be secured by more than twenty per cent; the choice of the securities to be released is incumbent upon us.
6.6 The purchaser is obligated, in individual cases, to make further agreements with us regarding retention of title, if and insofar as only so our claims can be secured.
7. Shipping / Transfer of Risk
7.1 Provided that it is not otherwise stated in the order acknowledgement, delivery shall be agreed on an ex works basis. Shipping is thus always effected at the risk of the contract partner.
7.2 In principle, shipping shall be effected on freight collect basis, excepting in cases where the value of goods exceeds EUR € 750.00. Provided that the purchaser so desires, we shall cover the delivery with transport and glass breakage insurance, the incidental costs in this respect shall be borne by the purchaser.
8. Sample Lamps
At the request of the purchaser, we can provide sample lamps. Sample lamps must be returned within fourteen days after delivery. The risk for sample goods shall be transferred to the purchaser upon the goods leaving our warehouse premises. The purchaser shall pay compensation in case of loss or deterioration of the goods.
9.1 In commercial transactions, the warranty rights of the purchaser presuppose that the purchaser has duly fulfilled his inspection and complaint obligations according to sections §§ 377 and 378 of the German Commercial Code (HGB). In commercial transactions, complaint shall be lodged for hidden defects immediately after their discovery.
9.2 Insofar as a defect for which we are responsible is present in the delivered goods, we shall be entitled at our discretion to rectify the defects or else replace the goods. In case of rectification of defects, we shall bear the expenses, i.e. material, transport and works costs, only to the amount of the purchase price. We shall absorb half of the costs for assembly and installation procedures. If we shall not be willing or able to undertake the rectification of defects or the replacement of the goods, or if this should fall through in some way, the purchaser shall be entitled at his discretion to withdraw from the contract or else to request a corresponding reduction in the purchase price.
9.3 If we shall not be willing or able to undertake the rectification of defects or the replacement of the goods, or if this should fall through in some way, the purchaser shall be entitled at his discretion to withdraw from the contract or else to request a corresponding reduction in the purchase price.
9.4 Insofar as nothing contrary is stated hereafter, further claims of the purchaser, irrespective of their legal basis, shall be excluded. Thus we shall not be liable for damages occurring to the item delivered; in particular, we shall not be liable for lost profit or other sundry financial losses of the purchaser. Liability for secondary damages on account of defective light-technical planning by third parties shall not be assumed.
9.5 The preceding exemptions from warranty shall not be valid if the cause of damages is due to wilful intent or gross negligence, yet the liability to pay damages in this case shall be limited to the foreseeable damages. Furthermore, preceding exemptions from warranty shall not be valid if there existed a warranty of certain characteristics in accordance with sections §§ 463 and 480 para. 2 of the German Civil Code (BGB), and the damages having occurred are due to its absence.
9.6 Provided that we negligently breach an essential contractual obligation, our liability shall be limited to the foreseeable damages.
9.7 The warranty period is twenty four months, reckoned from the date transfer of risk. This period is a statutory period of limitation and shall also apply for claims of compensation for cases of consequential harm caused by a defect, provided that claims shall not be asserted on the basis of illegal actions.
10. General Limit of Liability
10.1 Any further liability for damages, other than that provided for in points 9.4 to 9.6 shall be excluded, irrespective of the legal nature of the claim asserted. Covered are thus claims on account of fault in contract negotiations, breach of a secondary obligation and other sundry legal claims, in particular those arising from manufacturer’s liability in accordance with section § 823 of the German Civil Code (BGB).
10.2 The provision under point 10.1 shall not be valid for claims made on the basis of sections §§ 1 and 4 of the Product Liability Act (ProdHaftG).
10.3 Insofar as our liability is excluded or limited, then this shall also be valid for the personal liability of our company employees, personnel, representatives and vicarious agents.
10.4 The statute of limitations for claims between us and the purchaser shall conform to point 9.7.
Returns as a consequence of misguided actions / errors etc. are generally not possible. An exception shall only be possible with our prior written consent. In case of a return, the returned goods shall only be credited partially to a maximum of ninety per cent of the invoice value. Return shipments must always be made with the product in its original packaging. Any possible refurbishment costs shall be borne by the purchaser.
12. Authorisation for Data Processing
Subject to compliance with the relevant statutory regulations, we shall be entitled to store and process all data protected by law relating to the purchaser.
13. Jurisdiction - Place of performance - General
13.1 All contractual relationships between us and our contract partners shall be exclusively subject to the laws of the Federal Republic of Germany. This shall also be valid, in particular, should our contract partner have its place of business outside Germany. The contractual language shall be German.
13.2 Provided that the purchaser is a merchant registered in the commercial register, the courts at our place of business shall have jurisdiction. In case the non-merchant purchaser shall transfer his place of residence or usual place of residence out of the territory of the Federal Republic of Germany after conclusion of a contract, then the courts at our place of business shall have jurisdiction. This shall also apply in case the place of residence or usual place of residence of the purchaser is unknown at the time of the bringing of a suit.
13.3 Provided that it is not otherwise stated in the order acknowledgement, our place of business shall be the place of performance.
13.4 Should a provision of these conditions be or become invalid, the validity of the remaining conditions shall not be affected. The contractual parties are obligated to replace the invalid condition with a new valid condition that most closely approaches the economic effect of the invalid condition.