General Terms and Conditions of Sale
of Brumberg Leuchten GmbH & Co. KG
§ 1 General - Scope
- Our Terms and Conditions of Sale shall apply exclusively; contradicting conditions or conditions of the customer that deviate from our Terms and Conditions of Sale will not be accepted by us unless we have expressly agreed to their applicability in writing. Our Terms and Conditions of Sale shall also apply when we perform deliveries without objection while being aware of contradicting conditions or Terms and Conditions of Sale that differ from ours.
- Decisive for the content and scope of deliveries and services shall be our written offer and, if we issue an order confirmation, our written order confirmation.
- Our Terms and Conditions of Sale shall only be applicable to companies within the meaning of § 310 Par. 1 BGB [Bürgerliches Gesetzbuch - German Federal Civil Code].
- Our Terms and Conditions of Sale shall also apply to all future business with customer. The following Terms and Conditions supersede customer‘s Terms and Conditions that differ in content. Customer‘s waiver of the applicability of any of their own Terms and Conditions shall also not be invalidated by our silence or our performance. A deviation from the following Terms and Conditions in an individual case shall require our written confirmation.
- All technical data in our catalogues and other sales materials, lists and drawings as well as weight, measurement and mixing information has been carefully prepared, however, we reserve the right to later corrections.
- It shall be customer‘s responsibility to check whether our product is suitable for cus-tomer‘s specified purpose.
§ 2 Quote - Quotation Documents
- If the order is to be qualified as a quote in accordance with § 145 BGB, we shall have the right to accept it within four weeks.
- We reserve property rights and intellectual property rights in depictions, drawings, calculations and other documents; they must not be made available to third parties. This shall also apply to any written documents labelled as confidential. Their disclosure to third parties by customer shall require our express written approval. Quotes shall only be valid if in written form. The prices stated shall apply subject to the condition that the order data on which the quote tendered was based remain unchanged.
- We shall only prepare first samples and first sample test reports upon express written agreement, billed at cost.
- For products ordered based on customer‘s drawings or samples, customer shall be obliged to check for possible property rights of third parties and to not infringe upon them. If, as a result of failure to comply with this obligation, we are enjoined from manufacturing due to a third party’s assertion of its property right or we cannot use the product due to infringement of the property right, then we are entitled, without further examination of the legal situation and to the exclusion of all damage claims, regardless of the reason therefor, on the part of customer - to cease manufacturing and delivery until the fact situation is clarified as well as to request damages from customer, at least in the amount of 15% of the invoice value for the ordered product. Customer already now agrees to indemnify us against third party claims for damages and other third party claims for compensation, especially from holders of rights, at our first request therefor. Included in the scope of the damages shall also be such costs as we may incur due to having to defend against claims of third parties.
§ 3 Prices - Terms and Conditions of Payment
- Unless stated otherwise in the order confirmation, our prices are ex works, including the packaging usually employed for our products plus the applicable VAT on the day of invoicing. Requested special packaging or outer packaging or special small packaging shall be billed to customer. The prices shall be applicable, respectively, only to the contractually agreed upon quantity and design. If customer requests changes that require higher processing than what the contract or typical production process is based on, we shall reserve the right to a reasonable adjustment of the price. We reserve the right to raise our prices proportionally in accordance with cost increases incurred if, after conclusion of this Contract, our costs unforeseeably increase, especially due to labour agreements or the costs of materials, especially those of raw materials or energy.
- The statutory valueadded tax is not included in our prices; it will be specified separately on the invoice in the statutory amount applicable on the day the invoice is issued.
- The deduction of a discount shall require a special written agreement.
- Unless specified differently in the order confirmation, the purchase price shall be due net (without deduction) free of transaction charges and shall be payable within 10 days of the date of the invoice. If customer is in default, we shall be entitled to de-mand interest on arrears in the amount of 8 percentage points above the statutory base interest rate per year. If we are able to provide proof of higher damages due to this default, we shall be entitled to claim those. Customer, however, shall have the right to prove to us that we did not incur damages or did incur significantly lower damages as a result of this default.
- Customer is only entitled to setoff rights if its counterclaims represent a final legal judgement, is uncontested, or has been acknowledged by us, or it has a mutual relationship (synallagmatic) to the principle claim. Customer only has a right of retention for claims that have been legally established, are uncontested, have been acknowledged by us, or constitute counterclaims that are in a mutual relationship (synallagmatic) to the principle claim. Furthermore, customer shall be entitled to the exercise of a right of retention insofar as its counterclaim is based on the same contractual relationship. Credit notes shall be issued explicitly for the purpose of setting off claims. There shall be no entitlement to payment.
- In case of doubt regarding customer‘s ability to pay, we reserve the right to demand advance payments or that securities be rendered. If we obtain knowledge that an attachment could not be enforced at customer or if we receive any indication of a financial collapse of customer, we shall be entitled to withdraw from the contract subject to a charge for the expenses incurred.
§ 4 Delivery Schedule - Terms and Conditions of Delivery
- The start of the delivery schedule stated by us or agreed upon with us presupposes that all technical questions have been addressed, all documents to be supplied by customer have been delivered, all necessary permits and releases have been obtained by customer, especially with respect to plans as well as the adherence to the agreed upon Terms and Conditions of Payment and the fulfilment of the other acts of cooperation by customer.
- Furthermore, the adherence to our obligation to deliver presupposes the timely and proper fulfilment of customer‘s obligation as well as that we received proper delivery of the raw materials necessary for manufacturing the delivery product. The right to objection of non-fulfilled shall remain reserved.
- If the non-fulfilment of delivery times is based on force majeure, e.g. strike, lockout, etc., the delivery times shall be extended appropriately. One such appropriate extension of the delivery times shall also occur when we are not supplied properly or on time (reservation of a proper and timely delivery by our suppliers).
- If customer is defaulting on acceptance or if customer culpably violates other duties of cooperation, we shall be entitled to demand compensation of any resulting damages including any possible extra expenses to customer. We reserve the right to assert further claims and rights. If the delivery or shipment is postponed upon customer‘s request, we shall be entitled to bill the customer a storage fee in the amount of 0.05 % of the invoice total for each month started, up to a maximum of 5 % of the invoice total, 10 days after notifying customer that the goods are ready for shipment. Both parties to the contract shall have the right to prove higher or lower expenses.
- If the prerequisites in Par. 4 exist, the risk of accidental loss or accidental deterioration of the goods shall pass to customer at the moment customer defaults on acceptance or payment.
- In accordance with the statutory regulations, we shall be liable to the extent that the underlying purchasing contract is a fixed date transaction in the meaning of § 286 Par. 2 Nr. 4 BGB or of § 376 HGB [Handelsgesetzbuch - German Commercial Code). In accordance with the statutory regulations, we shall also be liable if customer, due to a delayed delivery due to our fault, is entitled to claim that customer‘s interest in the continued fulfilment of the contract has ended.
- Furthermore, in accordance with the statutory regulations, we shall be liable if the delayed delivery is due to a wilful or grossly negligent breach of contract for which we are responsible; culpability of our representatives or vicarious agents shall be attributed to us. If the default in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability shall be limited to the foreseeable, typically occurring damages.
- We shall also be liable in accordance with statutory provisions, insofar as the delay in delivery that was our fault is based on a culpable breach of a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damages.
- We shall be entitled to make partial deliveries within a reasonable scope. Deviations in measurements, weight, technical design, manufacturing and quantity of the goods to be delivered shall be allowed within customary, productrelated tolerances. Furthermore deemed as approved by the manufacturer shall be modifications that serve technical advancement and improvement of our products.
§ 5 Transfer of Risk - Packaging Costs
- Unless the order confirmation specifies otherwise, the delivery shall be agreed upon ex works.
- The return of packaging materials shall be subject to special agreements.
- If requested by the ordering party, we will obtain transport insurance for the delivery; the costs caused by it shall be born by the ordering party.
- Customer shall be required to name one or more people within a reasonable period before delivery of the goods who are authorised by customer to accept the goods and the accompanying documents, and to sign the delivery papers and accompanying documents on behalf of customer. This shall apply in particular if the goods are delivered to a location other than customer‘s place of business. If such information is not provided, those persons who actually accept the goods shall be deemed authorised to accept the goods and to sign the transfer papers (delivery note and other accompanying papers).
- If none of the people named by customer are present at the agreed upon time at the specified location or if this person or other persons are not willing to accept the goods, customer shall be in default of acceptance, with the consequence that the risk transfers to the customer. Furthermore, customer shall bear the extra costs arising from a renewed delivery.
- Customer shall not be entitled to reject deliveries due to minor defects.
§ 6 Liability for Defects
- Customer‘s claims for defects presuppose that customer properly fulfilled its inspection and complaint obligations owed in accordance with § 377 HGB.
- If the purchased item has a defect, we shall be entitled to a rectification of our choice in the form of removing the defect or supplying a new item free of defects. In the case of removing the defect, we are obligated to bear all necessary expenses for the pur-pose of rectification, in particular, transport, road, work and material costs provided that these costs are not increased by the fact that the purchased item has been transported to a place other than the place of fulfilment. We may refuse rectification when the expenses for removing the defect are expected to exceed the sales price.
- If the remedy fails, customer - at its discretion - shall have the right to demand with-drawal or reduction.
- We shall be liable in accordance with the statutory stipulations insofar as customer makes claims for damages that are a result of intent or gross negligence, including intent of gross negligence of our representatives or vicarious agents. Unless we are claimed to be in deliberate breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damages.
- In accordance with the statutory regulations, we shall be liable if we culpably violated a material contractual obligation; however, even in this case, the liability for damages shall be limited to the foreseeable, typically occurring damages. A material contractu-al obligation shall exist if the violation of the obligation refers to an obligation in whose fulfilment customer has trusted and could be expected to trust in.
- Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability in accordance with the German Product Liability Act (Produkthaftungsgesetz).
- To the extent not otherwise specified above, any liability shall be excluded.
- The period of limitation for claims for defects shall be 12 months, as from the transfer of risk.
§ 7 Liability for Defects
- Any further liability for damages other than those stipulated in § 6 and § 4 shall be excluded – regardless of the legal nature of the claim being asserted. This applies in particular for damage claims from fault when the contract was concluded, due to other breaches of obligation or on account of claims in tort for compensation of material damages in accordance with § 823 BGB.
- The period of limitation for all claims that are not subject to the period of limitation for defects of the item shall be an exclusion period of 18 months. It shall commence upon obtaining knowledge of the damage and of the person causing the damage.
- The limitation pursuant to Par. 1 shall also apply, insofar as the customer demands compensation of useless expenses instead of performance.
- Insofar as liability for damages against us is excluded or limited, this shall also apply with respect to the personal liability for damages of our employees, workers, associates, representatives and vicarious agents.
§ 8 Security of the Reservation of Title
- We retain title to the item purchased until receipt of all payments resulting from the business relationship with the customer. Insofar as we agree with the customer on payment based on the check/bill of exchange procedure, the retention of title shall also extend to the customer cashing the bill of exchange accepted by us and shall not expire by crediting the check received by us.If customer breaches its contractual obligation or fallsinto default of payment, we may withdraw from the contract if, after a setting a reasonable deadline, customer fails to meet its obligations, or adhering to the contract even without a reminder notice cannot be reasonably expected. We may also declare our withdrawal from the contract by taking back the item purchased. After taking back the item purchased, we shall be entitled to dispose of it; the proceeds from the disposal shall be credited against the liabilities of customer – less reasonable disposal costs.
- Customer is obligated until the final transfer of ownership to treat the item purchased with care; he is in particular obligated to insure the item at his own expense against damage by fire, water and theft sufficient to cover the replacement value. Insofar as maintenance or inspection should be necessary, the customer must carry this out in due time at his own expense.
- In case of attachments or other encroachments by third parties, customer shall notify us immediately so that we can file a lawsuit in accordance with § 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not able to reimburse us for the judicial and extra-judicial costs of such a lawsuit in accordance with § 771 ZPO, customer shall be liable for any losses we incur.
- Customer shall be entitled to resell the purchased goods in the ordinary course of business; customer shall, however, now assign to us all accounts receivables in the amount of the final invoice amount (including VAT) of our account receivable that accrue to him against purchasers or third parties on resale, independently of whether the purchased goods were resold without or after processing it. Customer shall remain authorised to collect this account receivable even after assignment. Our authori-sation to collect the account receivable ourselves shall remain unaffected by this. However, we agree not to collect the accounts receivable as long as customer complies with its payment obligations from the collected proceeds, does not default in payment and, in particular, no petition for the institution of insolvency or conciliation procedure is filed or cessations of payment exist. But if this is the case, we shall be entitled to demand that customer inform us about assigned receivables and the debtor of same, provide us with all information required for collection, hand out the pertinent documents and inform the debtor (third party) of the assignment. The claim already ceded to us in advance shall also apply to the acknowledged balance, as well as, in the case of an insolvency of the customer, to the then existing causal balance.
- The processing or transformation of the purchased goods by customer shall always be done for us. If the purchased goods are processed together with other items not belonging to us, we shall consequently acquire co-ownership of the new object in proportion to the value of the purchased goods (invoice total, including VAT) to the other processed items at the time at which processing took place. Incidentally, for the object resulting from the processing, the same shall apply as for the purchased goods under reservation.
- If the purchased goods are combined with other objects not belonging to us such that they cannot be separated from one another, we then shall acquire joint ownership of the new object in proportion to the value of the purchased goods (invoice total, includ-ing VAT) and to the other processed items at the time at which combining took place. If the combining occurs such that customer‘s object is regarded as the principal item, then it is deemed agreed upon that customer shall transfer co-ownership to us proportionally. Customer shall keep safe the resulting sole ownership or co-ownership for us.
- As security for our claims against it, customer shall assign to us all claims against a third party resulting from combining the purchased goods with real property.
- We undertake to release the securities due to us at customer‘s request as long as the realisable value of our securities exceeds the secured accounts receivable by more than 10 %; the selection of the securities to be released shall be at our discretion.
§ 9 Place of Jurisdiction - Place of Performance - Severability Clause
- If supplier is a merchant, then the place of jurisdiction - to the exclusion of all others - is Sundern (Sauerland) for all controversies that arise. However, we are also entitled to bring claims against supplier at its general place of jurisdiction.
- The laws of the Federal Republic of Germany shall be applicable; the terms of the UN Convention on Contracts for the Sale of Goods shall be excluded.
- Unless stated otherwise in the order confirmation, the place of performance for all performance and counter performance by us and supplier, including payment, is the headquarters of Brumberg Leuchten GmbH & Co. KG in Sundern (Sauerland).
- These General Terms and Conditions of Sale shall remain in effect even if individual clauses should turn out to be invalid. The invalid clause shall be amended or interpreted by the parties in such a way that the commercial purpose intended by the invalid provision shall be achieved to the greatest extent possible. The same approach shall be taken if in the conduct of the contractual relationship a gap requiring supplementation results. If the invalidity is based upon a definition of performance or time, the statutorily permissible measure shall take its place. If a provision of these General Terms and Conditions of Sale proves to be invalid in regard to mandatory foreign law then, upon request, supplier will reach agreement with us on those contractual supplements and make those declarations to third parties or officials that retain the validity of the affected provision and, if this is not possible, that preserve its economic content even in accordance with foreign law.
- The German version of the General Terms and Conditions of Sale shall be the authoritative version. In case of translations, it shall prevail over the English translation and is designed based on German law.
Sundern, June 2016