I Scope of Application
- The present General Terms and Conditions (GTC) shall apply to all business relations between LTS Licht & Leuchten GmbH (referred to as “Supplier” below) and the customer (referred to as “Purchaser” below). The GTC shall only apply if the Purchaser is an entrepreneur (§ 14 BGB, German Civil Code), a legal entity under public law or a special fund under public law.
- These General Terms and Conditions shall also be deemed included and applicable in any future business relationships also if they are not expressly referred to again.
- Any individual covenants agreed on a case-to-case basis with the Purchaser (including any side agreements or amendments) shall in all cases have precedence over these GTC. The content of such covenants shall be evidenced by a written contract or a written confirmation of the Supplier unless proof of the contrary is provided.
- Our General Terms and Conditions shall be valid exclusively. Any differing, conflicting or supplementary General Terms and Conditions of the Purchaser shall only become part of the contract if and to the extent the Supplier expressly confirms their validity. This confirmation requirement shall apply in any case, including but not limited to the case where the Supplier is aware of the Purchaser’s GTC and executes delivery to the Purchaser without making a reservation to this effect.
- All legally relevant statements and notifications of the Purchaser regarding the contract (e.g. setting of time-limits, notification of defects, cancellation or reduction in price) shall be made in writing, i.e. in written/text form (e.g. letter, e-mail, telefax). The formal legal requirements and other evidence – particularly in case of doubt about the legitimation of the person making the statement – shall remain unaffected.
II Conclusion of Contract/Content of Contract/Prices
- The Supplier’s offer is subject to confirmation. This shall also apply if the Supplier submitted catalogues, product descriptions or technical documentation (e.g. drawings, plans, calculations) to the Purchaser in the run-up to the contract, unless otherwise expressly agreed.
- The purchase order submitted by the Purchaser for the goods shall be considered as a binding offer to enter into a contract. The Supplier shall be entitled to accept this offer of contract within 1 week after receipt unless otherwise evident from the purchase order.
- Acceptance of the offer is declared by the Supplier either in writing (e.g. by an order confirmation) or by delivery to the Purchaser. The content and scope of supplies and services shall be governed by the Supplier’s written order confirmation. The decisive nature of the written order confirmation shall also apply to any purchase orders placed with the Supplier‘s sales agents and/or field representatives.
- The Supplier’s information about the subject of the supply or service (e.g. weights, dimensions, serviceability, capacity, tolerances and technical data) and any representation thereof (e.g. drawings and figures) is only approximative information unless its usability for the contractual purpose requires precisely matching data. Such information does not constitute warranted properties but merely describes or identifies the supply or service. Deviations usual in the trade and deviations occurring due to legal requirements or constituting technical improvements as well as any substitution of components by other equivalent parts shall be acceptable as long as this does not affect the usability for the contractual purpose.
- The basis for price calculations shall be the price lists valid at the time of signing a contract or the object-specific prices specified in an offer, as applicable.
- Prices are understood plus value added tax at the applicable statutory rate unless already included. For a net value of the goods of less than 250.00 €, an extra charge for small quantities in the amount of 50.00 € plus value added tax at the applicable statutory rate will be charged in addition. All prices indicated shall apply within the Federal Republic of Germany (except German islands) including costs of freight and transport unless otherwise agreed. Deliveries to German islands and outside of the Federal Republic of Germany are subject to an individual agreement. If the Purchaser should want to have the shipment sent by express, this must be expressly agreed along with the express charges incurred.
- The Supplier reserves the property and copyright regarding the use of quotations, drawings and other documents (referred to as “documents” below) without any restriction. Documents shall not be disclosed to any third party without the prior consent of the Supplier and must be returned immediately on request if the order is not placed with the Supplier. Phrases 1 and 2 shall apply accordingly for Purchaser’s documents, however, these may be disclosed to those third parties which have been appropriately commissioned with deliveries by the Supplier.
III Delivery Periods/Delay in Delivery
- The delivery period shall be agreed individually or specified by the Supplier when accepting the purchase order. Otherwise the delivery period shall be about 4 weeks from conclusion of contract.
- Compliance with delivery periods is contingent upon timely receipt of any and all specifications, documents, necessary licenses and approvals to be provided by the Purchaser, particularly any drawings, and adherence to the agreed terms of payment and other obligations on the part of the Purchaser. If these prerequisites are not fulfilled in due time, the delivery periods shall be extended reasonably and proportionately unless the delay should be attributable to the Supplier.
- Any fixed-date contracts (§ 376 HGB – German Commercial Code) are subject to express agreement.
- If the Supplier should be unable to keep a binding delivery period for reasons beyond its control (unavailability of service), it will inform the Purchaser about a congruent covering contract, neither the Supplier nor the sub-supplier is at fault or the Supplier should not be obliged to make the procurement in an individual case.
- The existence of a delay in delivery of the Supplier shall be governed by the statutory provisions. However, a reminder by the Purchaser shall be required in any case. If the Supplier should get into delay in delivery, the Purchaser shall be entitled to claim liquidated damages due to delay. The flat charge for damages shall be 0.5% of the net price (delivery value) for each full calendar week of delay, however, not exceeding a total value of 5% of the delivery value of the goods delivered with a delay. The Supplier shall be at liberty to prove that the Purchaser has not suffered any loss or only a substantially lower loss than the flat charge specified above.
- The Purchaser is obliged to state on Supplier’s request and within reasonable time whether it will cancel the contract for delay in delivery and/or demand damages in lieu of performance and/or insist on delivery.
- The Purchaser’s rights according to clause IX of these GTC and the Suppliers statutory rights – particularly in case of inapplicability of the obligation to perform (e.g. impossibility or unreasonableness of rendering the service and/or remedial performance) shall remain unaffected.
IV Delivery/Passage of Risk/Acceptance/Delay in Acceptance
- Shipment will be made within the Federal Republic of Germany (except German islands), unless otherwise agreed, by order of the Supplier and by a carrier of its choice. The Supplier shall make the goods available at the place of destination ready for unloading but not yet unloaded. The Supplier shall bear all costs and risks as far as to the agreed destination and not yet unloaded (DAP Incoterms 2010). Deliveries to German islands and outside of the Federal Republic of Germany and express deliveries are subject to an individual agreement.
- The Purchaser shall designate in reasonable time before shipment of the goods one or more persons by name who are definitely authorized to receive the shipment and sign the delivery note. This shall apply particularly if the goods are to be shipped to a destination other than the Purchaser‘s domicile.
- If the Purchaser should refuse acceptance without justification, fail to cooperate as required or if delivery by the Supplier is delayed for other reasons for which the Purchaser is responsible, the Purchaser shall be deemed in default of acceptance and the risk passes to the Purchaser. In this case the Supplier shall be entitled to demand compensation for the loss thereby incurred, including any additional expenses (e.g. storage costs). If the Supplier should incur storage expenses, these shall be subject to a flat charge of 0.25% of the invoice amount for the delivery goods to be stored per month or part thereof. The Supplier reserves the right to claim higher or lower costs of storage.
- The Supplier shall only be entitled to make partial deliveries if
• the partial shipment can be used by the Purchaser within the scope of the contractual intended use,
• delivery of the remaining goods ordered is ensured and
• the Purchaser does not incur any substantial additional efforts or costs (unless the Supplier is prepared to bear these costs).
V Terms of Payment
- The purchase price shall be due and payable within 14 days from receipt of invoice and delivery of the goods.
- After expiry of the above period allowed for payment, the Purchaser shall be in default. The purchase price is subject to interest for delay at the current statutory rate during the period of delay. The Supplier reserves the right to claim additional damages for delay. In relation to merchants/entrepreneurs, the claim to the commercial interest rate for delay (§ 353 HGB - German Commercial Code) shall remain unaffected.
- The Supplier is not obliged to accept any bills of exchange. These will only be accepted on a case-to-case basis in lieu of performance and subject to specific agreements. Payment shall not be deemed effected until the cheque or bill of exchange has been honoured. Any discount and acceptance charges for a bill of exchange shall be at the expense of the drawer of the bill on the due date of the claim and are payable in cash immediately.
- Notwithstanding any payment conditions agreed separately on a case-tocase basis, any claims to which the Supplier may be entitled shall become due and payable immediately if any circumstances should occur about the person of the Purchaser which make it unacceptable to continue with the payment terms agreed. This applies in particular if there are reasonable indications of a substantial deterioration of the financial standing of the Purchaser, including but not limited to stoppage of payments, cheque or bill protest or delay in payment, if it becomes evident that the Supplier’s claim to payment of the consideration is jeopardized by a lack of capacity of the Purchaser. In these cases, the Supplier shall additionally be entitled to demand matching of payments with deliveries or demand further securities. The Supplier shall furthermore be entitled to set a reasonable time-limit within which the Purchaser has to match payment with delivery, providing either consideration or security at the Supplier’s discretion. If this time-limit should elapse without success, the Supplier shall be entitled to cancel the contract.
- The Purchaser shall only be entitled to assert a right to set-off or retention to the extent its claim is established as final and absolute or uncontested. In case of defects of the delivery, any counter-claims of the Purchaser shall remain unaffected, including but not limited to those pursuant to clause VII 4) of these GTC.
VI Retention of Title
- The goods delivered (goods subject to retention of title) shall remain the Supplier’s property until any and all claims to which the Supplier may be entitled versus the Purchaser from the business relationship are settled.
- The Purchaser must neither pledge nor transfer by way of security any goods as long as they are subject to retention of title. In case of an order of attachment, seizure or other dispositions or interventions of any third party, the Purchaser shall notify the Supplier without delay.
- The Purchaser shall be entitled to resell the goods subject to retention of title in the course of ordinary business if the Purchaser receives the compensation agreed or if prohibition of assignment is not agreed. The Purchaser hereby and now assigns to the Supplier by way of security any claim to the purchase price to which Purchaser may be entitled from resale. However, the Purchaser shall continue to be entitled to collect the claims assigned by way of security unless and until this authorization should be revoked. The authorization may be revoked if the Purchaser culpably fails or ceases to meet its contractual obligations. If the collection authorization should be revoked, the Supplier shall be entitled to notify the assignment effected. The Purchaser shall be obliged to make the documents required for notification of the assignment and for collection available without delay.
- If the Purchaser should pledge the goods subject to retention of title to a third party or transfer them by way of security contrary to paragraph 2 and/or make them subject of a factoring and/or sale-lease-back scheme, this shall not be considered as a resale in the ordinary course of business.
- In case of conversion and/or further processing of goods subject to retention of title, this shall be by order and on behalf of the Supplier as the manufacturer pursuant to §§ 950 ff. BGB. In this case, the Supplier shall have (joint) ownership in the goods produced by conversion and/or further processing of the goods subject to retention of title in proportion with the value of the goods subject to retention of title and the value of the new goods at the time of conversion and/ or further processing. Moreover, the Supplier shall be entitled to proportional joint ownership of the new goods if goods of third parties are included in the processing of the goods subject to retention of title. If the Purchaser should resell the new goods produced, the Purchaser hereby and now assigns to the Supplier by way of security any claim to which Purchaser may be entitled from resale in the amount of the value of the goods subject to retention of title.
- In case of any damage or other deterioration of the goods subject to retention of title, the Purchaser shall notify the Supplier without delay. The Purchaser hereby and now assigns to the Supplier by way of security any claim against any third party to which Purchaser may be entitled from the damage or deterioration.
- Insofar as the value of all liens to which the Supplier may be entitled should exceed the amount of all claims secured by more than 20 %, the Supplier will release a proportionate part of the liens on Purchaser‘s request.
- In case of a breach of duties on the part of the Purchaser, including but not limited to default of payment, the Supplier shall be entitled to cancel the contract and take back the goods subject to retention of title. The Purchaser is obliged to surrender them. The Supplier’s taking back the goods subject to retention of title and/or assertion of the retention of title alone does not require Supplier’s cancellation of contract and shall not be deemed as an implied notice of cancellation of contract unless the Supplier states expressly that these actions be considered as cancellation.
- With regard to the Purchaser’s rights in the case of defects as to quality or title, the statutory regulations shall apply unless otherwise stipulated below. In all cases, the special statutory provisions relating to final delivery of goods to consumers shall remain unaffected (supplier regress pursuant to §§ 478, 445a, 445b BGB).
- The Purchaser shall inspect the goods delivered for proper condition without delay and notify any obvious defects to the Supplier within a period of 10 days from receipt of goods in written or text form (e.g. letter, e-mail, telefax). For hidden defects, this time-limit shall apply accordingly as soon as they are discovered. If the Purchaser should fail to make this inspection and/or notification of defect, the Supplier‘s liability shall be excluded for the defect not notified in time or properly or not at all in accordance with the statutory regulations.
- In case of a justified complaint, i.e. if there are defects in quality, the cause of which had already existed at the point of time of passage of risk, the Supplier shall have the option of repair (rectification of defect) or replacement (subsequent delivery) at its discretion. The Supplier‘s right to refuse supplementary performance under the statutory provisions shall remain unaffected.
- The Supplier is entitled to make any supplementary performance owed contingent upon Purchaser’s payment of the purchase price due. However, the Purchaser is entitled to retain a part of the purchase price in reasonable and acceptable proportion with the defect.
- If the Supplier should choose to deliver an item free of defects by way of supplementary performance, the Purchaser shall be obliged to surrender the defective item. The same shall apply accordingly for defective components if these are replaced by components free of defects by way of repair. The provisions of § 439 para. 2, 3 and 4 BGB and § 445a BGB shall remain unaffected.
- If supplementary performance failed or a reasonable time-limit to be set by the Purchaser for supplementary performance should have elapsed unsuccessfully, the Purchaser shall be entitled to cancel the contract or reduce the purchase price. However, there is no right to cancel the contract for minor defects.
- Purchaser’s claims for defects shall not be justified for ordinary wear and tear or any damage caused after passage of risk as a result of improper or negligent treatment, excessive strain, use of inappropriate materials, poor construction work, inadequate foundations or due to extraordinary outside effects which were not anticipated when concluding the contract. If the Purchaser or any third party should make any inappropriate modifications or repairs, these and any resulting consequences shall not justify any claims for defects.
- In all other respects, section IX shall govern any claims for damages. Any claims of the Purchaser against the Supplier and the latter’s vicarious agents for material defects beyond or other than those addressed in this clause and clause IX shall be excluded.
- The Supplier offers a warranty of 5 years for the LED standard products. For the LED standard luminaires, the Supplier warrants 50,000 hours within 5 years for the rating L80 B20.
VIII Return of Goods
- Returning of goods free of defects is subject to the Supplier’s prior consent. For this purpose, the Supplier will send a goods return voucher form to the Purchaser. Goods returned shall exclusively be accepted subject to the conditions specified in the goods return voucher; these conditions are deemed to be accepted by the Purchaser by returning the goods. LED products are only taken back by the Supplier within 90 days and in original sealed packaging. If goods are returned without a goods return voucher, the Supplier shall be entitled to refuse acceptance of the goods.
- The Supplier charges a flat rate of 20% of the value of the goods for handling and processing expenses for goods returned. The Purchaser shall be at liberty to prove that the Supplier’s loss is actually lower. The Purchaser shall bear any and all costs of transport, packaging, outer packaging and any repair, if applicable.
- In case of any violation of contractual and non-contractual duties, the Supplier shall be liable according to the statutory regulations insofar as there are no other stipulations in these General Terms and Conditions including the subsequent provisions.
- The Supplier shall be liable for damages – regardless of the legal basis – under the concept of tortious liability in case of intent or gross negligence. In cases of ordinary negligence, the Supplier shall be liable – with the reservation of a lower level of liability according to statutory provisions (e.g. due care as in its own affairs) – only
a) for injuries of life, limb or health,
b) for damage resulting from a significant violation of an essential contractual obligation (an obligation which is a prerequisite for proper execution of the contract and the fulfilment of which the contractual partner does and may regularly rely on); however, in this case the Supplier’s liability shall be limited to compensating for the foreseeable typical damage.
- The limitation of liability pursuant to para. 2 shall also apply to any breach of duty by or to the benefit of persons for faults of whom the Supplier is responsible under statutory provisions. They shall not apply insofar as the Supplier has fraudulently concealed a defect or offered a warranty for the condition of the goods and for any claims of the Purchaser under the product liability legislation.
X Statutory Limitation
- Notwithstanding § 438 para. 1 no. 3 BGB, the general statutory period of limitation for claims for defects in quality and title shall be one year from the date of delivery. If an acceptance procedure has been agreed, statutory limitation shall begin on acceptance.
- However, if the subject-matter is a building or an item used for a building according to its typical use and caused its deficiency (construction material), the statutory period of limitation pursuant to the statutory regulations is 5 years from delivery (§ 438 para. 1 no. 2 BGB). Any other special regulations on statutory limitation shall also remain unaffected (including but not limited to § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB).
- The above specified statutory periods of limitation of commercial law shall also apply to any contractual or non-contractual claims for damages of the Purchaser based on a defect of the goods, unless application of standard statutory limitation (§§ 195, 199 BGB) would result in a shorter period of limitation in an individual case. However, any claims for damages of the Purchaser pursuant to clause IX para. 2 phrase 1 and phrase 2(a) as well as under product liability legislation shall exclusively be governed by the statutory periods of limitation.
XI Final Provisions
- The legal relationship under this contract shall be governed by material German law, excluding the application of the United Nations Convention on International Sale of Goods.
- If the customer is a merchant/entrepreneur or a legal entity under public law or a special fund under public law, the legal venue for all disputes arising out of the contractual relationship shall be the domicile of the Supplier as far as legally admissible. The supplier shall also be entitled to take action before the court having jurisdiction for the Purchaser’s domicile. Any imperative regulations on exclusive venues shall remain unaffected by this provision.
- If any provision of these General Terms and Conditions or any clause contained in other agreements should be or become void, this shall not affect the validity of all other provisions or agreements.