General terms of delivery and sales
I General - Areas of application
1. Our terms and conditions of sales and delivery exclusively apply. We do not recognise contradictory or differing terms or conditions of the person or company placing an order (in the following referred to as "customer") unless we have expressly agreed to their validity in writing. Our sales conditions also apply if and when we, with the knowledge that the customer's conditions contradict or differ with our sales conditions, deliver the order to the customer without reservation.
2. Everything agreed to between us and the customer that applies to the execution of this contract shall be set down in writing.
II Offer - Offer documents - catalogues
1. If the customer's order qualifies as an offer to enter into a contract pursuant to Section 145 of the German Civil Code (BGB), we can accept it within 4 weeks. Offers made by us are always without obligation.
2. Documents that belong to the bid such as drawings, specification sheets, pictures, plans, calculations and other documents are only approximate, unless they are otherwise expressly stated as being binding. These documents remain our property and remain protected by copyright; they shall not be made available to a third party. Before they are passed on to a third party, our express written permission must be obtained.
3. Descriptions of our products are only a depiction of the features and qualities and are in no way a guarantee for the quality of the goods. Our catalogues are constantly revised. The pictures and drawings are not binding.
4. We reserve the right to make technical changes in our products that increase or maintain their value at any time and without prior announcement.
5. Any quotation obtained from us is subject to charge, should it not become an order.
III Tools - Devices, etc.
1. Tools, devices, equipment and machinery, and the like that are required for the carrying out of the customer's order, whether made or procured, will also remain our property, even if paid for in part or completely by the customer.
2. Our services do not cover, unless otherwise specified, the installation and putting into operation of the items delivered on-site.
IV Prices - Terms of payment - Default
1. Unless otherwise specified in the confirmation of order, our prices are "Free Carrier" (FCA) including packaging.
2. Value-added tax, as legally applicable, is not included in our prices; it is inclu-ded as a separate item in the invoice at the rate required by law on the day the invoice is made out.
3. The deduction for cash discount requires to be agreed in writing.
4. Unless otherwise specified in our order confirmation of order, the net selling price (without discount) becomes due and payable within 30 days of the invoice date. The customer is in default, if it does not pay the due amount, at the latest, within thirty days after receipt of the invoice or equivalent payment notification. In the event of payment being due we retain the right to issue a payment notification that has an earlier due date. Notwithstanding sentences 1 and 2, the customer is in default if it has been agreed that the purchase price is to be paid by a determined or determinable date, and the customer has not paid as of this date.
5. If the customer is in default of payment, we have the right to claim 9% default interest above the respective base rate per annum. We shall be authorised to compensation for further damages that exceed the aforementioned 9% should they in fact do so.
6. Call orders are to be called up and taken in the agreed amounts and according to the agreed time frame. If call orders do not include any agreement regarding duration, product lot amounts or delivery dates, we shall be entitled to demand a binding agreement on these matters no later than 3 months after the order has been confirmed. If the customer does not comply with this requisition within 3 weeks, we shall be entitled to set a final deadline of 2 weeks. Should this deadline expire without result, we shall be authorised to withdraw from of the contract or reject any obligation to deliver and to demand compensation for damages.
7. The customer is only entitled to set-off if its counterclaim is either recognised by declaratory judgment, uncontested or acknowledged by us. The customer is further authorised to exercise its right of retention as far as its counterclaim is based on the same contractual relationship.
V Delivery time
1. The beginning of the delivery time determined by us, presupposes that all of the technical questions have been clarified. Unless otherwise agreed to, the delivery times determined by us are not binding.
2. Should we fail to provide the products by the date agreed to for reasons that we are responsible for, we will be liable for damages that are the immediate result of the delayed delivery, however limited to the amount of the foreseeable damage in case of normal negligence.
3. In the event of a delivery delay the customer is entitled to set us an appropriate grace period and if this lapses without successful delivery, may withdraw from the contract. If an appropriate period of grace lapses without successful delivery, the customer shall state within 2 weeks following the expiration of the period of grace whether or not it chooses to cancel the order or still insists on it being completed.
4. If we are liable for the compensation of damages instead of performance, the claim for compensation shall not exceed the foreseeable damages.
5. In the event of ordinary negligence we shall never be liable for consequential damage from delayed or failed performance, in particular for lost profit on the part of the customer or other costs originating from lost production.
6. Our adherence to our delivery obligations requires the customer's punctual and proper fulfilment of its obligations.
7. In the event of the customer being in default with its obligation to accept delivery of the products or breach of any duties to cooperate, we shall be entitled to claim compensation for any damages occurring therefrom, including any additional expenditure. In this event, the risk of accidental loss or risk of accidental deterioration of the purchased product shall be transferred to the customer at the moment in which it falls into arrears.
VI Transfer of Risk - Product Returns
1. Unless otherwise specified in the order confirmation the delivery shall be "Free Carrier" (FCA). The risk is transferred on to the customer at the time when the products ordered leave the plant, even if only partial deliveries are provided or the supplier provides additional performances, i.e. pays for the shipping costs or provides delivery and installation. If an acceptance by the customer of the delivery shall take place, such acceptance shall be relevant for the transfer of the risk. The acceptance of the products shall take place without undue delay on the delivery date agreed to, or following a notification of the supplier that the products are ready to be dispatched. The customer is not permitted to refuse acceptance of the products because of a defect of the product that is not substantial.
2. If the delivery or the acceptance is delayed as a result of circumstances that are beyond the control of the supplier, the risk shall be transferred to the customer on the same day as the day of the notification that the products are ready for delivery or acceptance.
3. Partial deliveries are permissible as long as they are acceptable to the customer.
4. If requested by the customer, we shall insure the delivery with cargo insurance, the costs of which shall be borne by the customer.
5. We are not obligated to accept the return or exchange of products that are free of defects. In the event that we agree to the return or exchange of products, we shall accept only those products in original packaging. Custom-built, damaged or altered products shall never be accepted in return or exchange. We shall be entitled to charge for missing parts such as lamps, fastening or mounting devices, etc. Items free of defects that are returned shall be credited at 50% of their net value in consideration of the inspection and processing costs.
VII Warranty for defects - Warranty period
1. The warranty rights of the customer require customer to be in compliance with its obligation to examine the delivered products and to give notice of defects according to Section 377 of the German Commercial Code (HGB).
2. In the event of us being responsible for the defect in the purchased products, we shall have the right to choose whether we remedy or supply defect-free products. This does not apply to the purchase of consumer goods in accordance with Sections 474 seqq. of the German Civil Code (BGB).
3. If we are not willing to remedy the defect or provide replacement, or if we are not in the position to do so, in particular, if it is delayed beyond the appropriate deadlines for reasons that we are responsible for; or should the attempt to remedy the defect or replace the defective part or product fail, the customer shall be entitled to withdraw the contract or demand an equivalent reduction of the purchase price.
4. The warranty period is one year, starting on the date the products were delivered, provided that the products delivered were not building materials as per Section 438 Paragraph 1 Number 2 b) of the German Civil Code (BGB). This period is a statute of limitation and applies for contractual or quasi contract based claims to compensation for consequential damages, provided that they are not excluded in the following provisions. This does not apply for the purchase of consumer goods in accordance with Sections 474 seqq. of the German Civil Code (BGB).
5. For any other customer rights regardless of their nature sub-clause VIIa is applicable.
6. In any event, the provisions of Sections 478, 479 German Civil Code (BGB) remain unaffected.
1. Unless otherwise stated hereinafter, our liability for defects, consequential damages or any other breach of duty, regardless of the legal basis, is excluded.
2. The aforementioned exclusion of liability does not apply for losses or damages caused by death or an injury to body or health that are the result of wrongful intent or negligence and for other damages that are caused by wrongful intent or gross negligence. The aforementioned exclusion of liability is also not applicable if we have agreed to a guarantee.
3. The exclusion of liability pursuant to Paragaph 1 above is also not applicable, if we, in events other than those provided for in Paragraph 2, negligently violate an essential contractual obligation, whose fulfillment is essential for the duly performance of the contract and on which the customer accordingly relies upon and may rely upon (referred to as “Kardinalpflichten” under German law). In such events, our liability shall be limited to the commonly foreseeable typical damage.
4. The exclusion of liability pursuant to Paragraph 1 and the limitations of liability specified in Paragraph 3 do not apply if the damages are covered by our general business liability insurance and/or our product liability insurance. In such instances, our obligation to compensate is limited to the compensation we receive from our insurance.
5. Rights and claims based on German product liability law (Produkthaftungsgesetz) remain in every instance unaffected.
VIII Retention of title
1. All products that we deliver shall remain our property until such time as any outstanding accounts from the customer have been settled. We reserve are entitled to take the sold product back for every action that is contrary to the contract, in particular, default of payment. We are authorised to utilize the sold products after we have taken them back; the proceeds after deduction of fair realisation costs are to be credited to the customers account.
2. The customer is obliged to inform us immediately in writing of any seizures or other encroachments of a third party, so that we can file a suit pursuant to Section 771 Code of Civil Procedure (ZPO). As far as the third party is unable to reimburse us for the legal and extrajudicial costs of such a suit, the customer shall be liable for the loss that occurs.
3. The customer is authorised to sell the purchased product to a third party in the ordinary course of business; however, as of now it already assigns to us its claim to payment resulting from the resale to a third party for the total invoice amount (including VAT), regardless of whether or not the purchased product has been processed prior to resale. Although the customer has assigned its claim to payment to us it still remains empowered to collect the debt from the third party. Our authorisation to collect the debt ourselves remains unaffected. However, we shall not collect the debt if the customer fulfils its obligation to pay the purchase price, if it is not in delay with its payment, and in particular if no request for a bankruptcy procedure has been filed, or if no cessation of payments has occured. However, if any of the above is in fact the case, we shall be entitled to request the customer to make the assigned debts and their debtors known to us and provide us with all the necessary details and documents.
4. Any processing or modifications carried out on the purchased product by the customer is always made on our behalf. If the purchased product is being processed with other parts not belonging to us, we shall acquire the right of co-ownership of the new object. The proportion of our right of co-ownership shall be equal to the ratio of the value of the purchased product to the other items making up the new object at the time of processing. Apart from that the object resulting from the processing that contains our product is subject to the same reservations as the purchased product.
5. We shall release the securities we are entitled to at the request of the customer to the extent that the value of our securities exceeds more than 20% of the debts that are to be secured; we reserve the selection of the securities to be released.
IX Disposal of old lighting equipment
Pursuant to the EC Waste Electrical and Electronic Equipment (WEEE) Directive, and the respective national applications of this directive, the supplier informs the party purchasing the products that it, the purchaser, carries the responsibility to dispose of the product properly and obliges itself to properly dispose of the products in compliance to the terms stipulated in the valid, applicable electronic device ordinance. If the purchasing party sells the product to a third party, this responsibility shall pass on to the new purchaser.
X Place of jurisdiction - Place of performence
1. If the customer is a merchant, Villingen-Schwenningen shall be the place of jurisdiction. We are, however, also authorised to sue the customer in its domicile court.
2. Unless otherwise specified in the order confirmation, the place of performance shall be Villingen-Schwenningen, Germany.
3. Only the laws of the Federal Republic of Germany apply to this contract.
4. The German text of these General Terms and Conditions shall be solely binding; any translation shall be deemed to have been made for convenience only.
(Last updated: June 2013)