General Terms and Conditions
CONDITIONS OF SALE AND DELIVERY
As of 01 January 2020, Lightnet GmbH, Germany – hereinafter ‘Supplier’ –
1 General remarks and application
(1) These Conditions of Sale and Delivery shall only apply to companies, legal entities governed by public law and special fund under public law as defined in section 310, paragraph 1 of the German Civil Code (BGB).
(2) They shall apply exclusively. Any additional conditions that contradict or deviate from these Conditions of Sale and Delivery, in particular the Purchaser’s conditions of purchase, are hereby refuted. Deviations or additions shall only be recognised if the Supplier explicitly agrees to them in writing. These Conditions of Sale and Delivery shall also only apply in the event the Supplier renders delivery unconditionally to the Purchaser while fully aware of the Purchaser’s contradictory, deviating or additional conditions.
(3) Drawings, calculations, quotations and other documents that are given to the Purchaser during the contractual negotiations are protected by copyright for the Supplier; they shall remain the property of the Supplier and may only be made available to third parties after prior approval. If and when an order is not placed, all of the documents submitted shall be given back immediately upon the Supplier’s request.
2 Quote and conclusion of contract
(1) Information in the Supplier’s catalogues, price lists, data sheets, quotes and order proposals are non-binding, or rather, are only approximate. What is decisive for the contents and size of the deliveries and services is the information and conditions that have been agreed in the individual case and that have been confirmed with the order confirmation (provided it has been issued by the Supplier). The Supplier considers the verification of the order confirmation mandatory, and for this reason, it must be immediately verified by the Purchaser.
(2) If an order is considered an offer pursuant to section 145 of the German Civil Code (BGB), it can be accepted by the Supplier within two weeks. Acceptance can be made in writing or by email (e.g. by means of the Supplier sending the order confirmation) or by delivery of the goods to the Purchaser in accordance with these Conditions of Sale and Delivery.
(3) All technical data in the catalogue and any other sales documents, i.e. lists, drawings, performance specifications, consumption data, and weight and size specifications, are carefully prepared. The Supplier reserves the right to make changes to this data up until the conclusion of the contract, especially with respect to mistakes. Legal rights to contest this data shall also remain unaffected after the contract is concluded, particularly for obvious calculation mistakes.
(4) Oral agreements, in particular any ancillary agreements and promises made by representatives, require the Supplier’s written confirmation.
3 Data protection
The Purchaser’s data will be saved and processed by the Supplier while complying with legal regulations. If necessary, the Supplier and the Purchaser will enter into additional agreements pertaining to the transfer and processing of personal data.
4 Prices and payment
(1) Unless otherwise expressly agreed, the Supplier’s current prices at the point in time when the contract is concluded shall apply. The prices are quoted ex works or Supplier’s warehouse; prices include customary packaging but not shipping and insurance unless something else has been expressly agreed. The respective statutory amount of Value Added Tax must be added to the prices.
(2) Unless otherwise agreed, the purchase price must be paid according to the payment conditions indicated in the order confirmation. Payment of the purchase price must only be remitted to the bank account specified by the Supplier, e.g. in the order confirmation.
(3) Non-compliance with the payment deadline or if circumstances are known which could lead to lowering the creditworthiness of the Purchaser and to putting the claim to the purchase price at risk due to an inability to pay (e.g. a petition to start insolvency proceedings) will result in all of the Supplier’s claims becoming due immediately. Furthermore, in the previously mentioned cases of diminished creditworthiness and an endangerment of the claim to the purchase price, the Supplier is entitled to demand prepayment from the Purchaser for any deliveries still outstanding and to withdraw from the contract after a reasonable grace period, or to demand compensation for damages due to non-performance.
(4) Withholding payments and offsetting payments with a Purchaser’s counterclaim that is disputed by the Supplier and has not been determined legally valid is excluded. The counter rights of the Purchaser shall remain unaffected for defects of delivery, especially those mentioned in section 9, number (6).
5 Delivery period and period of acceptance
(1) The delivery deadline shall be individually agreed upon or shall be indicated by the Supplier when accepting the order. The delivery deadline is calculated depending on the Supplier’s receipt of all of the documents required for fulfilling the contract (e.g. written approval of technical drawings, clarification of technical issues, permits, etc.) and the Supplier’s receipt of the down-payment that may have been agreed upon. If the delivery deadline has not been agreed upon individually or has not been indicated when the order is accepted and the Supplier has only made a tentative promise for a delivery date, the tentative date given shall only be approximate.
(2) If the Supplier cannot meet a binding delivery deadline (unavailability of performance) due to events of force majeure or other circumstances which no one is responsible for, the Supplier will immediately inform the Purchaser and will indicate at once the new expected date of delivery. If performance is not available by the new deadline, the Supplier is entitled to withdraw either entirely or partially from the contract. Any payments made by the Purchaser shall be immediately reimbursed. A case of non-availability of performance shall include, in particular, a direct delivery made by a subcontractor of the Supplier which has not arrived on time if neither the Supplier nor the subcontracting company are responsible or if the Supplier is not obligated to make procurement in individual cases.
(3) If the Supplier does not meet a delivery date, the Purchaser is entitled to set a reasonable grace period for the Supplier and to withdraw from the contract in the event this grace period expires with no successful outcome. For standard products, a three-week deadline is considered a reasonable grace period and a period of five weeks is considered reasonable for custom-made products.
(4) If a delivery is not made by the Supplier even after a notice of default has been issued in writing and a reasonable grace period also set in writing has expired, the Purchaser is entitled to demand flat-rate compensation for damages caused by delayed performance – provided (s)he can credibly establish that (s)he has suffered damages from the delay in performance – to the exclusion of other claims for damages with regard to the delay. The flat-rate compensation is a maximum of 0.5% for each fully completed week of the delay but is a maximum of 5% of the total of the price of the delivery or service affected by the delay provided that the delay in delivery is not ascribed to malicious intent or gross negligence of the Supplier or one of its legal representatives or vicarious agents.
(5) Partial deliveries are permitted to a reasonable extent.
6 Delivery, packaging, transfer of risk, waste disposal and product take-back
(1) All goods are delivered in compliance with the agreed Incoterm clause in the Incoterm Rules 2010, which was issued by the International Chamber of Commerce, or rather in absence of such an agreement between the parties, in accordance with the Incoterm clause in the Incoterms Rules 2010 mentioned in the Supplier’s order confirmation.
(2) Unless otherwise agreed, the risk of an accidental loss and accidental deterioration of the goods is transferred with the handover of the goods to the Purchaser. Upon the request and at the expense of the Purchaser, the goods will be sent to a different location (sale to destination according to the Purchaser’s
instructions). Unless otherwise agreed, for a sale to a destination according to the Purchaser’s instructions, the risk is transferred when the goods are handed over to the shipping company, freight carrier or other person or entity which is responsible for carrying out the shipment. The hand-over to the Purchaser shall be deemed given if the Purchaser delays in accepting the goods.
(3) The packaging flat rates are shown in the respective current price lists and the order confirmation.
(4) As a general rule, all deliveries are made ready for unloading without a lift, unless something else has been explicitly agreed upon.
(5) The Purchaser may not refuse to accept deliveries and services because of insignificant defects.
(6) The Supplier shall use its best judgement when selecting the packaging and type of shipping.
7 Retention of title
(1) The delivered goods shall remain the property of the Supplier until all claims are settled that the Supplier is currently entitled to from the Purchaser and will be entitled to in the future. In event of a running (open) account, the retained ownership of the deliveries (goods subject to the retention of title) is considered security for the Supplier’s balance due.
(2) The Purchaser’s manipulation and processing of the goods subject to the retention of title is always carried out for the Supplier. If the goods subject to the retention of title is processed with other things that do not belong to the Supplier, the Supplier will acquire joint ownership of the new object in proportion of the invoice value of the goods subject to the retention of title to the other processed objects at the point in time processing was undertaken. Apart from that, the same shall apply to the new object created by the processing as it does to the goods subject to the retention of title.
(3) If the Purchaser processes the goods subject to the retention of title by combining or mixing them with something else which did not belong to the Supplier, the Supplier will acquire joint ownership of the new object in proportion to the invoice value of the goods subject to the retention of title and the other combined or mixed objects at the point in time they were combined or mixed. If the goods subject to the retention of title are combined or mixed in such a way that the Purchaser’s object must be seen as the main component, the Purchaser and the Supplier are hereby in agreement that the Purchaser will transfer proportional co-ownership of the object to the Supplier. The Supplier hereby accepts any such transfer.
(4) The Purchaser is only permitted to undertake the resale of the goods subject to the retention of title in the normal course of his/her business. The Purchaser is not entitled to dispose of the goods subject to retention of title in any other way, in particular pledging or assignment by way of security by transfer of ownership.
(5) In the event of resale, the Purchaser hereby transfers any claims which arise from the resale and any other claims against its customers, including all ancillary rights, to the Supplier until all of the Supplier’s claims have been settled. Upon request, the Purchaser is obligated to provide all information and documents which are required for asserting the Supplier’s rights against the Purchaser’s customers.
(6) If the goods subject to the retention of title were resold by the Purchaser after the manipulation and processing according to number (2) above have been undertaken or if they were resold together with other items which do not belong to the Supplier, the assignment of the purchase price claim only applies in the amount of the invoice value of the Supplier’s goods subject to the retention of title in accordance with number (5).
(7) If the realisable values of the securities that exist for the Supplier exceed the total outstanding claims by more than 10%, the Supplier shall, at the request of the Purchaser, release the sureties at its discretion.
(8) Garnishments or seizures of the goods under retention of title must be reported immediately to the Supplier. The Purchaser shall be responsible for any intervention costs arising therefrom if the third-party has not reimbursed the Supplier for these costs.
(9) If the Purchaser acts in a way contrary to the contract, in particular does not pay the purchase price due, the Supplier is entitled to withdraw from the contract under statutory provisions and/or to demand the return of goods subject to the retention of title by reason of the reservation of title. Any demand for the return of goods made by the Supplier does not simultaneously entail a declaration of rescission of the contract; the Supplier is entitled to only demand that the goods be returned and reserves the right to withdraw from the contract. If the Purchaser does not pay the purchase price due, the Supplier may only assert these rights if the Supplier has previously given the Purchaser a reasonable grace period for making payment to no avail, or if setting such a grace period is not necessary according to statutory provisions. In the event the Supplier exercises the right to retention of title by demanding the return of the goods subject to retention of title according to the previously mentioned conditions, the Supplier is entitled to utilise the goods. The proceeds from utilisation will be offset against the amounts which the Purchaser owes the Supplier after a reasonable amount has been deducted for the costs of utilisation. Any additional claims for damages against the Purchaser, in particular due to lost profits, remain reserved.
8 Return of goods as a gesture of goodwill
(1) Returns of non-defective goods as a gesture of the Supplier’s goodwill requires the prior written approval of the Supplier, otherwise the Supplier is entitled to refuse to accept the goods.
(2) Returns of goods as a gesture of goodwill requires that the goods are packed in the original packaging and are in proper condition.
(3) For returns of goods as a gesture of goodwill, the Supplier charges a flat-rate processing fee in the amount of minimum 30% of the value of the goods. Furthermore, the Purchaser is responsible for paying all transport costs and costs associated with the packaging, repackaging and any potential maintenance required.
(4) Returns of goods on a goodwill basis that are made more than 60 days after delivery are generally excluded.
(5) Returns of goods on a goodwill basis are generally excluded for custom-made products. The same shall apply to goods damaged by the Purchaser.
9 Liability for defects
(1) The Purchaser’s claims for defects requires that the Purchaser has fulfilled his/her obligation to inspect the goods and report defects under sections 377 and 381 of the German Commercial Code (HGB).
(2) If a defect becomes apparent during the delivery, the inspection or at a later point in time, it must be reported to the Supplier in writing immediately after it became known. In any event, obvious defects (including wrong or incomplete deliveries) must be reported within 10 workdays after delivery; for defects which were not noticed during the inspection, the same deadline of 10 workdays shall apply, starting from the date of the discovery. If the Purchaser neglects to carry out a proper inspection and/or to issue a notice of defects, the goods are considered to be approved in light of notice of the defects not being given in a timely or proper manner, which is why the Purchaser cannot assert claims for defects in this respect.
(3) In any event, the previously mentioned inspection must include a simple function test and a simple visual inspection of the external quality of the goods. If a large quantity of goods is delivered, it is sufficient to inspect random samples of the goods during the time period mentioned in number (2) above in a suitable manner, which is representative of the delivery and is in line with the total quantity of the goods.
(4) If the Purchaser discovers defects in the goods, (s)he is obligated to make the rejected goods or samples available to the Supplier so that it can check the complaint and is obligated to allow the Supplier to inspect the rejected goods within a reasonable period of time. In the event the Purchaser refuses to do so, the Supplier is not obligated to get involved with the Purchaser’s demand for supplementary performance.
(5) Up until the conclusion of the inspection by the Supplier in accordance with number (4) above, the Purchaser is not allowed to have the rejected goods at his/her disposal after discovering the defect, provided the Purchaser wants to hold on to his/her demand for supplementary performance.
(6) In the event of a notice of defects is justified and is submitted in a timely manner, the Supplier shall have an opportunity to undertake supplementary performance at its discretion (replacement delivery, repairs) during a reasonable period of time. The Supplier is entitled to make the supplementary performance owed dependent upon the Purchaser paying the purchase price due. The Purchaser is, however, entitled to retain a portion of the purchase price that is appropriate in relation to the defect.
(7) In the event of regress against the Supplier pursuant to section 445a of the German Civil Code (BGB), there is no need to set an otherwise required deadline for any of the Purchaser’s rights regarding defects against the Supplier due to the defects asserted by the Purchaser, if the Purchaser had to take back the sold, recently manufactured object as a result of its defectiveness or the Purchaser’s customer reduced the purchase price.
(8) In the event a defect is remedied, the Supplier is generally entitled to two attempts at improvement. The Purchaser is not entitled to a right of reduction of the purchase price as long as the Supplier meets its obligation to remedy the defects and the supplementary performance has not failed. If a second supplementary performance fails as well, the Purchaser – irrespective of any claims for damages – can reduce the payment or withdraw from the contract at his/her discretion if it is proportional to the given situation.
(9) In the event a lower price is justified pursuant to number (8) above, the reduction must be proportionate to the type and number of defects that have occurred.
(10) If the Purchaser has incorporated the goods that became defective when risk was transferred into another object or attached the goods to another object, the Purchaser can demand compensation from the Supplier for the expenditures that are necessary for removing the defective goods and the installation or mounting of the repaired goods or goods delivered free of defects (‘disassembly and assembly costs’) as part of supplementary performance pursuant to section 439, paragraph 3 of the German Civil Code (BGB). This type of claim for reimbursement of expenses is excluded if the Purchaser was aware of the defects in the goods prior to their installation or being attached to another object.
(11) The only types of disassembly and assembly costs that are deemed necessary under section 43, paragraph 3 of the German Civil Code (BGB) are those which relate to the disassembly and assembly of identical products. The costs need to be proved to the Supplier by submitting appropriate receipts at the very least in text form. All personnel and material expenses which the Purchaser wants to claim in this regard must be calculated by the Purchaser using net cost prices without the Purchaser making a profit. A Purchaser’s right to advance payment for the disassembly and assembly shall be excluded. The Purchaser is also not permitted to unilaterally offset the reimbursement of expenses related to disassembly and assembly against the purchase price claims or other payments claims of the Supplier without the Supplier’s consent. The Purchaser’s claims which exceed the necessary disassembly and assembly costs, in particular expenses for consequential losses contingent on defects, such as lost profits – including calculated profit mark-up, business interruption costs or additional costs for replacements –, are not disassembly or assembly costs, and for this reason, they cannot be compensated within the scope of the supplementary performance according to section 439, paragraph 3 of the German Civil Code (BGB).
(12) The proportionality of the costs of supplementary performance must be a given; this includes in particular these costs in relation to the purchase price of the goods in faultless condition and while taking into account the significance of the non-compliance with the contract (e.g. functional defect or defects seen upon visual inspection). Otherwise, the Supplier is entitled to refuse supplemental performance under legal requirements.
(13) If the Supplier does not meet its duty to provide supplemental performance pursuant to number (6) above or the supplementary performance fails pursuant to number (8) above, the Purchaser is entitled to reduce the price or to withdraw from the contract in each case only with regard to the defective part of the service or goods.
(14) The Purchaser has the statutory rights of recourse against the Supplier only as long as legal requirements are met. For this reason, there are not any rights of recourse if the Purchaser enters into agreements with his/her customers which concern the statutory claims for defects as part of a warranty or as a gesture of goodwill.
(15) Claims for defects cannot be made for any damage to the goods resulting from natural wear and tear, especially concerning wearing parts, improper handling, assembly, use or storage, or if changes or repairs to the goods were carried out improperly by the Purchaser or a third party.
(16) In the event of only an insignificant defect, the Purchaser cannot withdraw from the contract. In this case, the Purchaser is also refused a claim for damages instead of performance.
(17) Batch differences within the meaning of a method’s unavoidable tolerance values due to the material and surface and product-specific attributes that only represent criteria for a minor visual complaint do not constitute defects. Reference samples for comparisons will be made available upon the Purchaser’s request prior to a contract.
(18) Contrary to section 438, paragraph 1, no 3 of the German Civil Code (BGB), the Purchaser can assert claims for material defects and defects of title within 12 months starting from the time when risk was transferred.The special statutory regulations on the statute of limitations shall remain unaffected in accordance with section 438, paragraph 1, no 1, section 438, paragraph 1, no 2, section 438, paragraph 3, section 444 and section 445b of the German Civil Code (BGB).
(19) In the event a notice of defects is unjustified, the Purchaser must pay for the expenses that the Supplier incurred for verifying the defects and for rectifying the defect – in as far as this is requested- unless the lack of the item’s defectiveness was not noticeable for the Purchaser.
(20) This shall have no effect on special statutory regulations in the event of a final delivery of the newly built, unprocessed goods to a consumer (supplier regress pursuant to section 478 of the German Civil Code (BGB)), even if the consumer has subsequently processed the goods.
(21) Claims arising from supplier regress under sections 445a and 478 of the German Civil Code (BGB) are hereby excluded if the defective goods were processed further by the Purchaser or another company, e.g. by incorporating it into another product and the Supplier thus assumes the position of a subcontractor.
10 Compensation for damages / liability
(1) The Purchaser’s claims for damages, regardless of the legal grounds, are hereby excluded, especially due to a breach of the Supplier’s contractual or non-contractual obligations, provided compulsory liability of the Supplier according to German product liability law or a liability for deliberate acts or gross negligence has not been ordered; in a case of simple negligence, the Supplier shall only be liable for damages arising from harm to life, limb or health or for damages from a breach of material contractual obligations (a material contractual obligation is an obligation whose fulfilment makes the due performance of the contract possible in the first place and upon fulfilment of which the Purchaser relies or can rely on). In the event of a breach of a material contractual obligation, the Supplier’s liability shall be limited to foreseeable damages that typically occur.
(2) The liability limitations in number (1) above, shall also apply to breaches of duty made by or to the benefit of persons who are at fault and who the Supplier has to be responsible for according to statutory regulations. They shall not apply if the Supplier has maliciously concealed the defect or has assumed a guarantee for the composition of the goods.
(3) The Supplier shall not be liable for damages that occur as a result of improper third-party influences, improper installation, over-use, excess voltage or chemical influences, provided they are not due to the fault of the Supplier or its representatives. The same shall apply to unauthorised or improper repairs or interventions relating to the delivered goods by the Purchaser or a third party.
(4) The limitation periods specified in section 9 number (18) shall apply to contractual and non-contractual claims for damages and for reimbursement of expenses related to the defectiveness of the goods unless the application of regular statutory limitation periods (sections 195, 199 of the German Civil Code) would lead to a shorter limitation period in individual cases. Statutory limitation periods shall apply to claims for damages due to a liability under the product liability law, or due to a liability because of deliberate or gross negligent acts or because of an injury to life, limb or health.
11 Manufacturer’s warranty
The Supplier also offers the Purchaser a five-year manufacturer warranty for all of the products sold under the ‘Lightnet’ brand. The Supplier’s conditions and scope of performance under this manufacturer warranty are to be taken from the warranty conditions. The warranty conditions will be sent to the Purchaser upon request and are also available online under www.lightnet.de. Statutory or rather the defect-related rights of the Purchaser against the Supplier which exist according to these Conditions of Sale and Delivery shall not be affected by the manufacturer’s warranty. These rights exist without restriction and are independent of any possible enforcement of the manufacturer’s warranty.
12 Place of performance and jurisdiction
(1) These Conditions of Sale and Delivery and the contractual relationship between the Supplier and the Purchaser are subject to the laws of the Federal Republic of Germany and exclude the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of performance and exclusive venue for all disputes arising from or related to the contractual relationship is Cologne, Germany. If the Purchaser is not a businessman or a corporate body under public law, this jurisdiction shall only apply if the Purchaser does not have a general place of jurisdiction in Germany or if the party to be pursued in litigation has changed his/her domicile or habitual residence to a foreign country after the conclusion of the contract, or the domicile or habitual residence is unknown. In all cases, the Supplier is, however, entitled to file a lawsuit at the place of performance of the obligation to deliver in accordance with these Conditions of Sale and Delivery or higher-ranking individually negotiated terms, or at the general jurisdiction of the Purchaser. Mandatory legal regulations, especially related to exclusive jurisdictions, shall remain unaffected.
(3) If individual provisions in these Conditions of Sale and Delivery are or become invalid, or contain a loophole, the remaining provisions therein shall remain unaffected. The parties pledge to replace the invalid rule with a legally permissible rule which comes closest to the economic purpose of the invalid rule or loophole.