§ 1 Section1 Sphere of validity
(1) The sphere of validity of these terms and conditions of sale refer to all the Seller's goods and services.
(2) These terms and conditions of sale shall only apply for businesses, legal entities established under public law or special funds established under public law.
(3) Goods and services provided by the Seller shall be governed by the following Terms and Conditions of Business alone. If the Buyer has terms and conditions of business which differ from, or which are more extensive than, the Seller's T&Cs, they shall only become part of the contract in those cases in which the Seller has granted his express consent.
(4) This shall also apply in the event that the Seller provides the goods and services without reservation in the knowledge that the Buyer's T&Cs are contrary to, more extensive than, or differ from, his own T&Cs.
§ 1 Subject-matter of the contract
(1) The subject-matter of the contract is the supply of goods and / or services alone as defined in the order confirmation. Amendments, supplements and side agreements shall only be binding if they are confirmed in writing by the Seller.
(2) Contractual services not stated in the order confirmation and in particular those announced for advertising purposes shall only become part of the subject-matter of the contract if this has been confirmed in writing by the Seller.
(3) As a matter of principle only the features listed in the order confirmation shall be regarded as having been agreed as being the properties and condition of the subjectmatter of the contract. Public comments, puffs or advertising shall not constitute any contractual statement of properties and condition statements, other than those in the order confirmation.
§ 3 Conclusion of a contract
(1) The Seller is entitled to accept the order by sending out an order confirmation.
(2) Should the order confirmation contain spelling mistakes or typing errors, or should the specified price be incorrect due to transmission defects caused by technical reasons, the Seller shall be entitled to contest it. Payments already made shall be refunded to the Buyer without undue delay.
(3) Offers, including those which have been made in our name, shall be subject to change without notice and are non-binding. A contract shall only be regarded as having been concluded on a legally binding basis in those cases in which this has been confirmed in writing or actually carried out by the Seller.
§ 4 Prices, Offsetting and Right of retention
(1) Provided that nothing has been agreed to the contrary in writing, our prices shall apply net ex works plus the sum of value added tax payable and excluding packing and carriage. Any costs there may be for packing and carriage, any additional costs for disposal charged by the manufacturers / suppliers of bulbs as well as any disposal costs accruing to us will be shown separately in the order confirmation and will be invoiced separately.
(2) If the value of the goods in an order is less than EUR 150.00 net, we shall charge an extra handling fee for this of EUR 10.00 plus the value added tax payable.
(3) The agreed remuneration shall become due for payment upon the receipt of invoice. The invoiced sum must be credited to the Seller's account shown in the invoice within 14 days from receipt of the invoice, unless and agreement has been made otherwise in writing.
(4) If the Buyer is in default with payment, the Seller shall consequently be entitled to demand default interest amounting to 8 percentage points above the base rate at that time. The Seller may still demand additional default damages.
(5) The Buyer shall only be entitled to offset or to retain payment if his counter-claims have been adjudicated, are uncontested or have been recognised by us.
(6) The Buyer shall only be entitled to cancel a contract which has materialised in accordance with Section 3 of these Terms and Conditions of Sale if the Seller has expressly agreed in writing to the cancellation.
(7) If a contract is cancelled by the Buyer prior to the despatch of the goods in accordance with Paragraph (6) above, the Seller shall be entitled to demand 15% of the order net price for the costs incurred by processing the order and to cover lost profit. The Buyer is however allowed to prove that the Seller has incurred no loss at all or that the loss incurred was less than 15%.
(8) If the contract is cancelled in accordance with Paragraph (6) above after the goods have been despatched, the Buyer shall be obliged to return the goods without undue delay. A credit will be raised for goods returned undamaged and in their original packing minus the costs incurred as a result of the order being processed and lost profit. This means that the credit will amount to 80% of the net price invoiced. The Buyer is however allowed to prove that the Seller has incurred no loss at all or that the loss incurred was less than 15%.
(9) Necessary reprocessing and packing costs as well as the transport costs incurred by the Seller shall be deducted from the credit in accordance with Paragraph (8).
(10) Special productions manufactured specifically for the Buyer and electrical fixtures will not be taken back.
§ 5 Delivery Period, Passing of risk
(1) The beginning of a delivery period stated by us or agreed with the Buyer assumes that the Buyer has fulfilled his duties properly and on time. The Seller shall reserve the right to raise the objection that the contract has not been fulfilled.
(2) If the Buyer is in default with taking delivery of the goods or if he is in culpable breach of other obligations to co-operate, the risk of accidental loss or accidental deterioration of the goods shall pass over to the Buyer at that point in time at which he finds himself in default with taking delivery or debtor's delay.
(3) If the goods are despatched at the Buyer's wish to him or to a delivery destination specified by him, the risk of accidental loss or accidental deterioration of the goods shall consequently pass over to the Buyer when the goods are handed over to the haulier, freight forwarder or other person or organisation designated to convey the goods. This shall apply regardless of whether the goods are despatched from the place of fulfilment or who is to bear the freight costs.
§ 6 Reservation of title
(1) We shall reserve the title to the goods supplied until all our accounts created under the supply contract have been completely fulfilled. We shall be entitled to take back the goods if the Buyer is in breach of contract, in particular if he is in default with payment. By taking back the goods we shall be stating our withdrawal from the contract. After taking back the goods we shall be entitled to sell them and to offset the proceeds from a sale against the Buyer's liabilities – minus reasonable sale costs.
(2) As long as title has still not passed over to him, the Buyer shall have to handle the goods with care and notify the Seller without undue delay in writing, if the purchased thing has been pledged or is vulnerable to third party interference. In the event that legal action is taken by us in accordance with Section 771 of the German Code of Civil Procedure [ZPO], the Buyer shall be liable for the intervention costs incurred by us, but only however, in so far as the third party is unable to repay our costs.
(3) Our title shall also cover the new products created by the goods subject to reservation of title having been processed. Processing shall be carried out for the Seller. If the goods subject to reservation of title are processed, or merged with things not belonging to the Seller, the Seller shall acquire co-ownership in proportion to the sum invoiced for the goods subject to reservation of title to the sum invoiced for the other materials.
(4) The Buyer is entitled to resell the goods subject to reservation of title in a normal commercial transaction. The Buyer assigns his accounts resulting from the resale of the goods subject to reservation of title to us here and now as a security for our accounts in accordance with Section 6 (1) of these T&Cs for the amount of the gross grand total agreed in our invoice. The Seller accepts the assignment here and now. When selling goods in which the Seller has co-ownership, the assignment shall be restricted to that portion of the account equal to the Seller's co-ownership.
(5) During the period of time the goods are subject to reservation of title, the processing and adaptation or modification of the goods by the Buyer shall always be for the Seller. In this case the Buyer's existing expectant right to the goods shall continue for the modified thing. In so far as the goods are processed with other items not belonging to the Seller, the Seller shall acquire co-ownership to the goods in proportion to the objective value of the sold goods to the other processed items at the point in time of processing. The same shall apply in the event of joining or mixing. Provided that the joining or mixing takes place in such a way so that the Buyer's thing is to be regarded as the main thing, it shall be regarded as agreed that the Buyer shall assign a proportional co-ownership to the Seller and keep the sole ownership or coownership created by such means in safe-keeping for the Seller.
(6) To secure the Seller's accounts against the Buyer, the latter shall also assign to the Seller such accounts accruing to the Buyer against third parties as a result of combining the goods subject to reservation of title with a property; the Seller hereby accepts this assignment here and now.
(7) As long as the Buyer is prepared and is in a position to fulfil his obligations to the Seller properly, he may dispose of the goods subject to the reservation of title held by the Seller or goods co-owned by the Seller in a proper commercial transaction and collect the accounts assigned to the Seller himself. The Seller shall undertake not to collect the accounts for as long as the Buyer fulfils his payment obligations from the proceeds received, does not fall into default with payment and in particular a application is not filed for the instigation of composition or insolvency proceedings on the Buyer's assets and the Buyer does not stop making his payments. If this is the case, the Seller may demand that the Buyer notifies the Seller of the assigned accounts and who owes them, and hands over all the information and relevant documents required and notifies the debtors of the assignment.
(8) Assignments by bill of sale as a security, pledging, and the assignment of accounts, even by means of factoring shall always be subject to the prior written consent of the Seller. (9) At the Buyer's request, the Seller shall undertake to release the securities to which it is entitled, provided that their value exceeds the value of the accounts to be secured by more than 20 %.
§ 7 Warranty, Statute of limitations, Recourse
(1) The Seller shall furnish a warranty for the agreed properties and condition - minor discrepancies excepted - that the Seller shall as the Buyer chooses, and after the Buyer has set him a reasonable period of time to do so, supply a replacement faultfree product or rectify the defect. If the Seller decides to effect a cure by rectifying the defect the Buyer shall only be entitled to further warranty rights, after two attempts at rectifying the defect have been unsuccessful. The reasonable subsequent period of time set by the Buyer for the defect to be rectified shall not begin before the defect has been proven and it is certain and proven that the Seller is responsible.
(2) If the cure is unsuccessful for once and for all, the Buyer may as a matter of principle as he chooses reduce the purchase price (Reduction) or demand that the contract is rescinded (withdrawal). The Buyer shall not be entitled to withdraw from the contract if the breach of contract is minor, in particular if defects are minor.
(3) The Buyer's warranty rights shall be dependent upon him having fulfilled the duties of investigation and notification of defects properly, incumbent upon him in accordance with Section 377 of the German Commercial Code [HGB].
(4) Warranty claims regarding all the products supplied by the Seller shall become time-barred within one year, unless an agreement has been made otherwise in writing. They shall however lapse prematurely as soon as the Buyer carries out attempts to effect repairs, or makes modifications or fails to follow operating instructions. The period of time covered by warranty shall begin at the point in time specified in Section 199 of the German Civil Code [BGB]. It shall begin no later than the lapse of the maximum periods of time laid down in Section 199 Para 3 and Para 4 of the German Civil Code [BGB].
(5) The regulations in Section 7 (4) of these T&Cs shall not apply in so far as the law in Section 438 Para 1 No 2 of the German Civil Code [BGB] (Buildings and things for buildings), Section 479 Para 1 German Civil Code [BGB] (Right of recourse) and Section 634 a Para 1 German Civil Code [BGB] (Building defects) prescribed longer periods as being compulsory.
(6) It is hereby pointed out to the Buyer that the information concerning properties and condition shown in the product description or order confirmation do not constitute any warranties in a legal sense. Information concerning properties and condition over and above the product description or order confirmation plus warranties shall only apply as stated to the Buyer provided that they have been recorded separately in writing.
(7) The Buyer shall not be entitled to claims under warranty for minor deviations from the agreed properties and condition, if the fitness for use is only impaired by an insignificant amount, for normal wear and tear as well as for damage occurring after the passing of risk as a result of incorrect or negligent handling, excessive loads, unsuitable working materials, faulty fitting, or as a result of specific external factors not assumed by the contract. If improper repair work or modifications are carried out by the Buyer or by third parties, these and the consequences arising from them shall likewise not be covered by claims asserted under warranty.
(8) The Buyer's claims on account of the expenditure necessary for effecting a cure, in particular transport costs, travelling expenses, labour and materials shall not be accepted, in so far as the expenditure increases because the purchased goods have subsequently been relocated to a location other than the Buyer's premises, unless they have been moved for the purpose for which they were purchased.
(9) The Buyer shall only be entitled to rights of recourse against the Seller to the extent that the Buyer and his buyers has not made any agreements over and above the warranty rights laid down by law as being compulsory. The regulations of Section 7 (1) to (8) of these T&Cs shall apply accordingly for the actual scope of a right of recourse and for the period of time within which it must be asserted.
(10) In the event that a defect has been fraudulently concealed, or in the event that a warranty has been furnished for the condition and properties of the goods at the point in time at which risk passes over within the meaning of Section 444 of the German Civil Code [BGB], the Buyer's rights shall be determined by the statutory regulations alone.
§ 8 The Seller's liability
(1) None of the Buyer's compensation claims for damages against the Seller, regardless of whatever legal reason upon which they are based, shall be accepted, unless the Seller or his assistants have acted with intent or gross negligence or have breached important contractual duties through ordinary negligence. Important contractual duties are those obligations protecting the legal positions of the other Party to the contract which are important for the contract, which he has to fulfil to the letter under the contract in terms of content and purpose; moreover, those contractual obligations, the fulfilment of which make it possible for the contract to be carried out properly in the first place and upon whose compliance the other Party to the contract has relied and ought to be able to rely are important.
(2) In cases of gross negligence or ordinary negligence if an important contractual obligation is breached, the compensation for damages shall be limited to damages which are typical and foreseeable.
(3) No liability shall be accepted for damages not incurred by the subject-matter of the contract, except in cases of intent and gross negligence.
(4) Liability for personal injury, the lack of a feature for which a warranty was furnished by the Seller as well as the liability under the German Product Liability Act shall not be affected by the above.
(5) A time-limit of one year shall apply for all compensation claims for damages or for the reimbursement of expenditure wasted if there is contractual and non-contractual liability asserted against the Seller – except in cases of intent or personal injury. The one-year period shall begin at the point in time specified in Section 199 of the German Civil Code [BGB]. It shall come into effect no later than the expiry of the maximum periods of time specified in Section 199 Para 3 and Para 4 of the German Civil Code [BGB]. Other regulations in these terms and conditions governing periods of limitation shall not be affected by the above.
(6) The Seller shall not be liable for damages caused as a result of force majeure, civil riots, war, terrorism or natural catastrophes or as a result of other events for which he is not to blame; these include for example, strike, lock-out, traffic disruptions or official measures both in Germany and in other countries.
§ 9 Use of contractual goods as intended
Bulbs are technical working materials under the German Appliances and Product Safety Act and may only be used as intended. The use of bulbs and accessories for purposes other than those intended as well as unauthorised modifications carried out to the subject-matter of the contract without the express written consent of the Seller shall exempt the Seller from all obligations in the event of damage.
§ 10 Proper disposal
(1) The Buyer shall guarantee that he will undertake to dispose of the supplied products in accordance with the regulations of the German Electrical and Electronic Appliances Act (ElektroG). In the event of a resale the Buyer shall assign this obligation to the other Party of the resale contract.
(2) The Seller is registered with ear under WEEE-No. DE 64392354.
(3) The Seller is affiliated to the INTERSEROH collection system. Collection points are published on its homepage www.interseroh-weee.de. The Seller is affiliated to INTERSEROH recycling system for transport and commercially generated sales packaging under manufacturer number 80363.
§ 11 Choice of law, Place of fulfilment, Place of jurisdiction
(1) The business relationship between the Seller and the Buyer shall be governed by German law alone. The UN law on sales (CISG) shall not apply, even if the Buyer is domiciled in a country other than Germany.
(2) The place of fulfilment for all obligations resulting from the contract or contractual negotiations shall be our principal place of business.
(3) The sole place of jurisdiction for all legal disputes in connection with the business relationship is Augsburg. The Seller is also entitled to take legal action against the Buyer at the Buyer's general place of jurisdiction.
(4) Amendments to these General Terms and Conditions of Business shall be made available to the Buyer at least one month prior to the suggested point in time at which they are to come into force as allowed by law at that time. The Buyer's consent shall be regarded as having been granted if he has not given notification of his rejection prior to the proposed point in time at which the amendments are to come into force. The attention of the Buyer is drawn in particular to the effect of this approval. The Seller shall then base the subsequent business relationship upon the amended version of the General Terms and Conditions of Business.
(5) Should one or more of these terms and conditions of business be or become partially or completely invalid, incomplete or in need of a supplement, this shall not affect the validity of the remaining clauses. The Parties shall undertake in such a case to agree an arrangement coming closest to what was intended economically. The same approach is to be adopted if there is a gap in these terms and conditions of business.
Status: January 2013