Section 1 General
(1) The scope of validity of these sales conditions extends to all deliveries and services provided and rendered by Alurays Lighting Technology GmbH (the “Supplier”).
(2) These conditions of sale apply only to entrepreneurs, legal entities under public law or special funds under public law.
(3) All deliveries and services provided by the Supplier are exclusively subject to the following General Terms and Conditions. Differing or supplementary terms and conditions of the buyer shall only become part of the contract if the Supplier has expressly agreed to them.
(4) This also applies in the event that the Supplier renders the delivery or service to the buyer without reservation in the knowledge of conflicting, supplementary or deviating conditions of the buyer.
Section 2 Subject matter of the contract
(1) The exclusive subject of the contract is the delivery or performance of the goods, which are defined in the order confirmation. Changes, additions and side agreements are only binding if confirmed in writing by the Supplier.
(2) Contractual services that are not listed in the order confirmation, in particular those that are made public for advertising purposes, are only part of the subject of the contract if this is confirmed in writing by the Supplier.
(3) As a rule, only the features listed in the order confirmation are considered agreed as the quality of the object of the contract. In addition, public statements, laudatory suggestions or advertising do not constitute a contractual indication of the quality of the products.
Section 3 Conclusion of contract
(1) The Supplier may accept the order by sending an order confirmation.
(2) If the order confirmation contains typographical or printing errors or if the price determination is incorrect due to technical transmission reasons, the Supplier is entitled to contest. Already made payments are refunded to the buyer immediately.
(3) Offers, including those made in our name, are non-binding. A contract is only deemed to be concluded in a legally binding way if it has been confirmed in writing and/or fulfilled by the Supplier.
Section 4 Prices, offsetting and right of retention
(1) Unless otherwise agreed in writing, our prices are net ex works plus statutory VAT and excluding packaging and shipping. Any costs for packaging and shipping, any disposal surcharges of the luminant manufacturers / suppliers, as well as any disposal costs incurred by us are shown separately in the order confirmation and will be invoiced separately.
(2) The agreed remuneration shall become due upon receipt of the invoice. The invoice amount must be credited to the Supplier’s account stated in the invoice within 10 days of receipt of the invoice, unless otherwise agreed in writing.
(3) If the buyer is in default of payment, the Supplier is entitled to demand default interest in the amount of 8 percentage points above the respective base interest rate. The assertion of further damage caused by delay remains unaffected.
(4) The right of offsetting or retention shall only be due to the buyer, if its counterclaims have been legally established, are undisputed or acknowledged by us.
(5) The buyer is only entitled to cancel a contract concluded in accordance with Section 3 of these conditions of sale if the Supplier expressly agrees to the cancellation in writing.
(6) If a contract is canceled by the buyer in accordance with numeral (6) before the goods have been shipped, the Supplier is entitled to claim 20% of the net price for the costs incurred by the processing of the order and for lost profit. However, the buyer is allowed to prove that less or no damage has occurred.
(7) If the contract is canceled in accordance with numeral (6) after the goods have been shipped, the buyer is obliged to return them without delay. A credit for original packaged and undamaged goods is deducted from the costs incurred by the processing of the order and the lost profit and thus in the amount of 80% of the calculated net price. However, the buyer is allowed to prove that less or no damage has occurred.
(8) Necessary processing and packaging costs as well as transport costs incurred by the Supplier are additionally deducted on the credit note according to numeral (7).
(9) Custom-made items and special electrical equipment specially made for the buyer will not be taken back.
Section 5 Delivery time, passing of risk
(1) The delivery period specified or agreed by us shall only commence upon the timely and dutiful fulfillment of the obligations of the buyer. The putting forward of a defense with regard to the unfulfilled contract remains reserved.
(2) If the buyer is in default of acceptance or culpably violates other obligations to cooperate, the risk of accidental loss or accidental deterioration of the goods shall pass to the buyer at the time at which it is in default of acceptance or payment.
(3) If the goods are dispatched at the request of the buyer to this or to a place of delivery designated by it, the risk of accidental loss or accidental deterioration of the goods passes on to the buyer upon the handing over of the goods to the forwarding agent, the carrier or the person or institution otherwise responsible for carrying out the shipment. This applies regardless of whether or not the shipment of the goods takes place from the place of performance and who bears the freight costs.
Section 6 Retention of title
(1) We reserve the title to the delivered goods until all claims from the delivery contract have been fulfilled completely. We are entitled to take back the goods if the buyer behaves contrary to the contract, in particular if it is in default of payment. By taking back the goods, we declare the withdrawal from the contract. After the return of the goods, we are entitled to utilise them, the proceeds of utilisation shall be credited to the liabilities of the buyer – less reasonable utilisation costs.
(2) As long as the property has not yet passed on to the buyer, the buyer must treat the goods with care and notify the Supplier in writing without delay, if the goods are seized or subjected to other interventions by third parties. The buyer is liable for the intervention costs incurred by us, in the case of a claim according to section 771 of the German Code of Civil Procedure (ZPO), however, only to the extent to which the third party is unable to reimburse them.
(3) Our title to property extends to the new products resulting from the processing of the reserved goods. Processing takes place for the Supplier. In the event of processing, combining or mixing with items not belonging to the Supplier, the Supplier acquires co-ownership in the ratio of the invoice value of the reserved goods to the invoice values of the other materials.
(4) The buyer is entitled to resell the reserved goods in the normal course of business. The buyer hereby assigns its claims resulting from the resale of the reserved goods to us to secure the respective claims in accordance with Section 6 (1) of these GT&C in the amount of the gross final invoice amount agreed with us. The Supplier hereby accepts the assignment. In the case of sale of goods in which the supplier has co-ownership, the assignment is limited to the proportion of the claim corresponding to the co-ownership share of the Supplier.
(5) During the period of retention of title, the working and processing or remodeling of the goods by the buyer always takes place for the Supplier. In this case, the buyer’s expectancy existing with regard to the remodeled goods continues to exist. If the goods are processed with other objects not belonging to the Supplier, the Supplier acquires co-ownership in the new object in proportion of the objective value of the purchased goods to the other processed objects at the time of processing. The same applies, if the goods are combined or mixed. If the combining or mixing takes place in such a way that the object of the buyer is to be regarded as the main item, it is agreed that the buyer transfers pro rata co-ownership to the Supplier and keeps the resulting sole ownership or co-ownership for the Supplier.
(6) In order to safeguard the claims of the Supplier against the buyer, the latter also assigns such claims to the Supplier which accrue to it from the combining of the reserved goods to a property against a third party; The Supplier hereby accepts this assignment.
(7) As long as the buyer is willing and able to duly fulfill its obligations to the Supplier, it may dispose of the goods owned or co-owned by the Supplier in the ordinary course of business and collect the claims assigned to the Supplier. The Supplier undertakes not to collect the claims as long as the buyer meets its payment obligations from the proceeds received, does not default on payment and, in particular, no application for the opening of settlement or insolvency proceedings has been filed or payment has been stopped. If this is the case, the Supplier may demand that the buyer informs it of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtors of the assignment.
(8) The buyer may only assign the goods as securities, pledge them assign receivables, including by way of sale of receivables, with the prior written consent of the Supplier.
(9) The Supplier undertakes to release the securities to which it is entitled upon request of the buyer, insofar as the value exceeds the claims to be secured by more than 20%.
Section 7 Warranty, statute of limitations, recourse
(1) The Supplier shall warrant for the agreed quality – with the exception of insignificant deviations – in subsequently delivering a defect-free product or eliminating the defective condition at the buyer’s option and in line with the setting of a reasonable deadline. If the supplier decides to remedy the defect by eliminating the defect, the buyer has further warranty rights only if the elimination of the defect has failed twice. The reasonable period of grace does not begin until the Supplier’s defect and obligation to represent have been established and proven.
(2) If the supplementary performance finally fails, the buyer may in principle demand, at its discretion, a reduction of the purchase price (reduction) or rescission of the contract (withdrawal). In the case of a minor lack of conformity, in particular for minor defects, the buyer has no right of withdrawal.
(3) Warranty rights of the buyer presuppose that the buyer has duly fulfilled its duties of inspection and complaint pursuant to § 377 of the German Commercial Code (HGB).
(4) Warranty claims regarding all products delivered by the Supplier are subject to a limitation period of one year unless otherwise agreed in writing. They shall, however, expire prematurely as soon as the buyer attempts to repair or modify any goods or if operating instructions are not followed. The period begins with the point in time specified in section 199 BGB. It shall enter into force no later than upon the expiry of the maximum periods specified in section 199 (3) and (4) BGB.
(5) The buyer is hereby informed that the quality information given in the product description or order confirmation does not constitute a legal guarantee. Details of quality and guarantees that go beyond the product description or order confirmation shall only be deemed as declared to the buyer, if they have been recorded in writing and separately.
(6) Claims for defects do not exist in case of only insignificant deviation from the agreed quality, insignificant impairment of the usability, natural wear or tear as well as damage occurring after the passing of risk as a result of faulty or negligent treatment, excessive use, unsuitable equipment, defective assembly or due to special external influences that are not required under the contract. If the buyer or any third party undertakes improper repair work or changes, claims for defects cannot be asserted in relation to them and the resulting consequences.
(7) Claims by the buyer for the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the purchased goods are subsequently moved to a location other than the buyer’s branch unless the shipment complies with their intended use.
(8) Claims for recourse of the buyer against the Supplier exist only to the extent that the buyer has not made any agreements with its buyer beyond the legally binding claims for defects. The provisions of the Sections § 7 (1) to (8) of these GT&C apply mutatis mutandis to the actual and temporal scope of such recourse claim.
(9) If a defect is maliciously concealed or if a guarantee is assumed for the quality of the good at the point in time of passing of risk in the sense of section 444 BGB the rights of the buyer shall go exclusively in line with the statutory provisions.
Section 8 Liability of the Supplier
1) All claims for damages of the buyer, regardless of the legal grounds against the Supplier, are excluded, irrespective of the legal grounds, unless the Supplier or its vicarious agents acted willfully or grossly negligently or slightly negligently violated essential contractual obligations. Essential contractual obligations are those obligations that protect the contract-relevant legal positions of the contracting party which must be granted to it according to the contract’s content and purpose at the relevant point in time, and those contractual obligations that form the basis for being enable to properly execute the contract and the compliance of which the contracting party has believed in and in which such belief was justified.
(2) In the case of gross negligence or slightly negligent breach of a material contractual obligation, the damages are limited to the typical and foreseeable damage.
(3) Liability for damage that does not arise on the subject matter of the contract shall be excluded except in cases of intent and gross negligence.
(4) The liability for personal injury, for the lack of a condition for which a guarantee has been assumed by the seller, as well as liability under the Product Liability Act remains unaffected.
(5) All claims for damages or compensation for futile expenses in case of contractual and non-contractual liability, which are asserted against the Supplier – except in cases of intent or personal injury – are subject to a limitation period of one year. The period begins with the point in time specified in section 199 BGB. It shall enter into force no later than the expiry of the maximum periods specified in section 199 (3) and (4) BGB. Other provisions for the limitation of these conditions remain unaffected.
(6) The Supplier shall not be liable for damage caused by force majeure, riots, war, terrorist or natural events or by other events for which it is not responsible; this includes e.g. strikes, lockouts, traffic disruptions or governmental orders at home or abroad.
Section 9 Intended use
Luminants are technical working equipment according to the Equipment and Product Safety Act and may only be used as intended. Improper use of lights and accessories as well as unauthorised changes to the subject matter without the express written consent of the Supplier release the Supplier from all obligations in the event of damage.
Section 10 Disposal
(1) The buyer undertakes to ensure the disposal of the delivered products in accordance with the provisions of the Electrical and Electronic Equipment Act (ElektroG). In case of a resale, the buyer transfers this obligation to its contractual partner.
(2) The Supplier is registered with ear under the WEEE no. DE11915266.
Section 11 Choice of law, place of performance, severability clause and place of jurisdiction
(1) The business relationship between the Supplier and the buyer is subject exclusively to German law. The application of the UN Sales Convention (CISG) is excluded, even if the buyer has its place of business abroad.
(2) Place of performance for all duties resulting from contract or contract negotiations is our place of business.
(3) The exclusive place of jurisdiction for all disputes in connection with the business relationship is Munich.
The Supplier is also entitled to sue at the general place of jurisdiction of the buyer.
(4) Amendments to these General Terms and Conditions shall be offered to the buyer no later than one month before the proposed date of their coming into effect in the form permitted by law from time to time. The buyer’s consent is deemed to have been granted if it has not notified its refusal prior to the proposed date of the changes becoming effective. The buyer is particularly advised of this approval effect. The Supplier will then apply the amended version of the General Terms and Conditions to the future business relationship.
(5) Should one or more of these terms and conditions be or become wholly or partially ineffective, incomplete or in need of supplementation, this shall not affect the validity of the remaining clauses. In this case, the parties undertake to agree on a regulation which comes closest to what was economically wanted. Loopholes shall be treated likewise.
As of: February 2017