General Conditions of Sale and Delivery

• 1. Scope
  • 1.1 For all our deliveries and services, including those in the future, the following General Conditions of Sale and Delivery apply exclusively, unless otherwise expressly agreed on in writing for individual cases. Some of the purchaser's General Business Conditions are not recognised even if we do not expressly veto them or perform the services and deliveries without reservation with knowledge of the purchaser’s General Business Conditions.
  • 1.2 Sub-agreements, warranties or changes to these conditions of sale and delivery are only binding with our express, written acknowledgement.
• 2. Offer
  • 2.1 Our offers are subject to change.
  • 2.2 Diagrams, images, measurements and weights and other service details are only binding if this has been expressly agreed on in writing. We reserve the proprietary rights and intellectual property rights for images, diagrams, calculations and other documents. This also applies for written documents marked as “confidential”. Forwarding these to third parties requires our express written consent.
  • 2.3 A contract with the purchaser takes effect through our written confirmation of order or by performing the delivery/service.
• 3. Delivery period
  • 3.1 Delivery deadlines or periods which can be bindingly agreed on require written form. Delivery periods and/or deadlines are otherwise non-binding. Statement of certain delivery periods and/or deadlines by us is subject to the correct and prompt delivery by suppliers and manufacturers.
  • 3.2 We are not responsible for delays in delivery and service due to force majeure or events which not only make the delivery temporarily significantly difficult or impossible – particularly including strikes, lock outs, official orders etc. even when these occur at our supplier -, but also those periods and deadlines bindingly agreed on. They entitle us to delay the delivery/service by the duration of the hindrance plus an appropriate start-up time, or to completely or partly withdraw from the contract because of the unfulfilled section. However, we commit to immediately informing the purchaser of this exclusion in writing.
  • 3.3 If the delivery period is put off by more than 6 month because of delivery and/or service delays according to section 3.2, each contracting party is entitled to completely or partly withdraw from the contract regarding the quantity of products affected by the delivery disruption. The purchaser cannot derive any compensation claims from an extended delivery period.
  • 3.4 The observance of the delivery period/deadline also requires prompt fulfillment of the contractual duties including the purchaser’s obligation to co-operate. The delivery period is extended by the period for which the purchaser itself is behind in completing its contractual duties. Rights to pleas that the contract has not been fulfilled are reserved.
  • 3.5 We are entitled to perform partial deliveries and partial services at any time insofar as this is feasible for the purchaser.
  • 3.6 If the purchaser falls into default of acceptance or breaches other obligations to co-operate, we are entitled to demand damages arising in this respect, including upcoming extra expenses. Rights to further claims are reserved. If, in the event of default of acceptance, the purchaser does not comply with a written acceptance request within an appropriate time frame, we are entitled to refuse contract fulfillment and demand compensation for non-fulfillment.
• 4. Passing of risk
  • 4.1 Unless otherwise stated on the confirmation of order, our deliveries and services take place “ex works”.
  • 4.2 The risk of any destruction or damages to the delivered object is passed on to the purchaser when this is sent or transferred to the transport person, but no later than when it leaves our factory. This applies regardless of whether shipment is done from the place of fulfillment or who bears the freight costs. The risk is also passed on to the purchaser in the event of a delay in acceptance.
  • 4.3 If a particular purchaser instruction applies for shipment, the risk is passed onto the purchaser upon notification that the item is ready to be shipped.
• 5. Prices and payment conditions
  • 5.1 Unless otherwise stated on the confirmation of order, our prices are considered to be “ex works”, including packaging.
  • 5.2 Unless otherwise stated on the confirmation or order or in other separate agreements, our invoices are to be paid within 8 days of invoice date. If the purchaser delays payment, we are entitled to demand default interest of 8 percent above the respective basic interest rate p.a. If we are able to prove higher delay damages, we are also entitled to assert claims for these.
  • 5.3 In the event of defects proven by the purchaser, the latter is only entitled to withhold payment insofar as the withheld amount is in appropriate proportion to the defects and foreseeable costs of further action, particularly for rectifying the defect. The purchaser is not entitled to assert claims and rights because of defects if it has not settled overdue payments and the amount payable is not in appropriate proportion to the value of the defective delivery/service.
  • 5.4 The purchaser is only entitled to off-setting rights if its counter claims are legally declared, undisputed or acknowledged by us. It is also authorised to exercise a withholding right in this respect when a counter claim is based on the same legal condition.
  • 5.5 Deduction from the net price of our invoices, particularly a deduction of the cash discount, requires a special written agreement.
• 6. Liability for defects
  • 6.1 The information and data contained in all advertising and information material only serve as a guide and are only considered binding contractual content when we have expressly agreed to them. The same applies for the sample and test characteristics.
  • 6.2 Quality and durability details or information on usage options are only considered guarantees when they have been expressly marked as such in writing.
  • 6.3 The purchaser must examine the goods immediately after delivery to see whether the goods comply with the contractually agreed quantity and quality and are suitable for the stipulated purpose. Noticeable defects and/or differences in quantity must be notified in writing immediately. Non-noticeable defects and/or differences in quantity must be notified immediately after they are discovered, but no later than 7 days after delivery of the goods to the purchaser, stating order detail and invoice/delivery note number, as well as a defect description. If this is not done, claims for defects are excluded, insofar as we have not maliciously concealed the defect or assumed a guarantee.
  • 6.4 Claims for defects do not apply for only small deviations from the agreed quality and/or only very small impairment of usability. Claims for defects also do not apply if defects are caused by incorrect treatment, changing, assembly and/or servicing of the goods. The same applies insofar as the defect can be traced back to improper usage, storage and handling of the goods.
  • 6.5 Insofar as a defect exists in the delivered item – deviating from § 439 para. (1) of the German Civil Code in this respect – a claim for improvement or replacement delivery is possible at our discretion. The expenses necessary for the purposes of further action are borne by the purchaser, insofar as they are increased by the fact that delivered item/goods are passed on to site other than the purchaser's office, unless this is part of their legal usage.
  • 6.6 If a second improvement or replacement delivery fails, the purchaser is entitled, at its discretion, to withdraw from the contract or to demand an appropriate decrease in the purchase price (reduction). Further claims by the purchaser are excluded, This particularly applies for damages claims. The warranty does not cover natural wear and tear.
  • 6.7 Claims for defects against us are time-barred in 12 months, calculated from the passing of risk, unless we have maliciously concealed the defect. §§ 478, 479 of the German Civil Code remain unaffected by this.
• 7. Liability limit
  • 7.1 We are liable for cases of deliberate acts or gross negligence, or those of a representative or assistant according to the legal clauses. For the rest, we are only liable for death, bodily harm or damage to health, or for intentional breach of important contractual duties, according to the product liability act. The claim for damages for the breach of important contractual duties is limited to foreseeable damages typical to the contract. Regardless of the legal ground, our liability is also limited to foreseeable damages typical to the contract in cases of gross negligence.
  • 7.2 The liability for damages to the purchaser’s objects of legal protection caused by the delivered item, e.g. damages to other items, is excluded. This does not apply if it is a case of deliberate acts or gross negligence, or if liability exists for death, bodily harm or damage to health.
  • 7.3 The regulations of the aforementioned section 7.1 and 7.2 cover damage compensation together with the service, and damage compensation instead of the service, regardless of the legal ground, particularly for defects, breach of duties resulting from the contractual obligation or from non-permitted behavior. They also apply for claims for compensation of supposed expenses.
• 8. Reservation of proprietary rights
  • 8.1 We reserve the rights to propriety of all goods delivered by us or the purchased item until full payment of all receivables resulting from the business relationship with the purchaser. Propriety is only transferred to the purchaser when it has settled all its liabilities to us.
  • 8.2 In the event of a contractual breach by the purchaser, particularly a delay in payment, we are entitled to demand delivery of the item and/or to withdraw from the contract without setting a time frame. In these cases, the purchaser is obligated to immediate delivery. No withdrawal explanation is necessary in our demand for the item to be delivered unless this is expressly declared.
  • 8.3 The purchaser is committed to treating the purchased item/goods with care, and is particularly committed to adequately insure these at replacement value against fire, water and theft damage at its own risk.
  • 8.4 The purchaser must immediately inform us in writing of any garnishment or other interference so that we can lodge complaints according to § 771 of the German Code of Civil Procedure. Insofar as the third party is unable to pay the court and extra-judicial costs of a complaint according to § 771 of the German Code of Civil Procedure, the purchaser is liable for the loss we incur.
  • 8.5 The purchaser is entitled to re-sell the reserved goods in conventional business dealings, however it now transfers to us all receivables, generated against its purchaser or third parties from a re-sale, totaling the final invoice amount, including sales tax, for our claim. This is done to safeguard all our claims against the purchaser, insofar as the claim is not safeguarded by the simple reservation according to section 8.1. The purchaser is entitled to collect this receivable even after the transfer. Our grant to collect the receivable ourselves is not affected by this. However, we commit to not collecting the receivable if the purchaser complies with its payment duties, does not fall behind with payment and, in particular, does not request for insolvency proceedings to be opened or ceases payment. If, however, this is the case, we can demand for the purchaser to advise us of the ceded claims and their debtors, provide all information necessary for collection, deliver relevant documents and inform the debtors (third parties) of the transfer. For the rest, the purchaser now authorises us to notify the debtors of the receivables transfer in its name and on its behalf.
  • 8.6 Processing or alteration of the purchased item by the purchaser is always done for us. If the purchased item is processed with other objects not belonging to us, we acquire co-ownership of the new item in the proportion of the value of the purchased item (final invoice amount incl. sales tax) to the other processed items at the time of processing. For the rest, the same applies for the item produced from the processing, and for the purchase item delivered under reservation.
  • 8.7 We commit to releasing the securities allocated to us at the purchaser’s request in this respect when the realised value of our securities exceeds the receivables to be safeguarded (including interest and extra charges) by more than 20%; it is our responsibility to select the securities to be released.
• 9. Final clauses
  • 9.1 The contractual relationship existing between us and the purchaser is exclusively subject to the law of the Federal Republic of Germany, except for the UN Conventions Relating to a Uniform Law on the International Sale of Goods dated 11 April 1980.
  • 9.2 The place of jurisdiction is our place of business, however, we are also entitled to sue the purchaser at its general place of jurisdiction.
  • 9.3 Unless otherwise stated on the confirmation of order, our place of business is the place of fulfillment.
  • 9.4 Should individual clauses of these General Conditions of Sale and Delivery be invalid, this does not affect the validity of the remaining clauses.

LightPartner Lichtsysteme GmbH & Co. KG, June 2014