General Terms and Conditions of Sale (GTC) of the Ludwig Leuchten GmbH
Status: 20. September 2021
General conditions of sale
§ 1 Scope
- These Terms and Conditions of Sale shall apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). We shall only recognize terms and conditions of the Purchaser that conflict with or deviate from our Terms and Conditions of Sale if we expressly agree to their validity in writing.
- These Terms and Conditions of Sale shall also apply to all future transactions with the Purchaser, insofar as these are legal transactions of a related nature.
- Individual agreements made with the Purchaser in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
§ 2 Offer, conclusion of contract and scope of services
- We are entitled to accept the order by sending an order confirmation within 10 working days. However, any confirmation of receipt sent by us shall not constitute a binding acceptance of the order.
- Our offers, including those made on our behalf, are subject to change and non-binding. Orders shall only be deemed accepted when we have confirmed them in writing (order confirmation).
- Should our order confirmation contain typographical or printing errors or should the price determination be based on technically induced transmission errors, we are entitled to contest the order. Payments already made will be refunded to the buyer immediately.
- All agreements made between us and the Buyer upon conclusion of the contract as well as amendments or supplements to the contract must be made in writing to be effective.
- We reserve the right to make changes to the subject matter of the contract in the interest of technical progress, even after the order confirmation has been issued, provided that this does not affect its price, delivery time, usability or function.
- The data in our catalogs, price lists as well as in other sales documents apply to luminaires wired ready for connection, for operating voltages 230V/50Hz; our indoor luminaires are designed for ambient temperatures of max. +25°C. Luminaires for other voltages, frequencies and ambient temperatures are available on request. This also applies to special designs of a general nature.
§ 3 Documents handed over
We reserve the property rights and copyrights to all documents provided to the purchaser in connection with the placing of the order – also in electronic form – such as calculations, drawings, etc.. These documents may not be made accessible to third parties unless we give our express written consent to do so. If we do not accept the orderer’s offer within the period of § 2, these documents shall be returned to us without delay.
§ 4 Prices and payment
- Unless otherwise agreed in writing, our prices are ex works excluding packaging and plus value added tax at the applicable rate. Costs of packaging will be invoiced separately.
- Payment of the purchase price shall be made exclusively to the account specified overleaf. The deduction of a discount is only permissible with a special written agreement.
- Our invoices are due for payment 10 days after the invoice date. Bills of exchange and checks are only accepted on account of performance. Bank, discount and collection charges shall be borne by the purchaser. We do not assume any obligation or liability for timely protesting of bills of exchange and checks. The purchaser shall be in default if the contractual payment date is exceeded. If the buyer is in default of payment, interest on arrears in the amount of 8% above the respective base interest rate shall be paid. At the same time, the Buyer shall pay a lump sum of EUR 40.00 in the event of default. The assertion of further damages remains unaffected. If the Buyer’s assets deteriorate after the conclusion of the contract, or if a deterioration of assets already existing before the conclusion of the contract only becomes known after the conclusion of the contract, the Buyer shall be obliged, at our request and at our discretion, either (1) to pay for the delivery step by step or (2) to provide security in the amount of the purchase price within one week of receipt of our request before delivery. The Buyer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us.
- Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in labor, material and distribution costs for deliveries made 3 months or more after the conclusion of the contract.
§ 5 Rights of retention
The Purchaser shall only be entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.
§ 6 Delivery time
- The commencement of the delivery period stated by us is subject to the timely and proper fulfillment of the purchaser’s obligations. We reserve the right to plead non-performance of the contract.
- If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. If the above conditions are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
- Operational disruptions, shortages of energy or raw materials, traffic disruptions, insofar as such events were not foreseeable, as well as strikes, lockouts, official decrees and cases of force majeure shall release the party affected thereby from the 3. obligation to deliver or accept for the duration of the disruption and to the extent of its effect. If delivery or acceptance is delayed by more than 1 month as a result, each of the parties shall be entitled to withdraw from the contract with regard to the quantity affected by the disruption in delivery or acceptance.
- If the order was placed on call, then in the absence of a written agreement to the contrary, there must be a period of at least 6 weeks between the call and the delivery date.
- Delivery is subject to correct and timely delivery by our supplier. This shall only apply in the event that we are not responsible for the non-delivery. We will inform the purchaser immediately in writing about the non-availability of the service and immediately refund any purchase price already paid.
- In the event of non-delivery, the Buyer shall send a written reminder and set a grace period of thirty (30) days. 4. If delivery is not made within this grace period, the Buyer may withdraw from the contract with respect to the affected part of the order, if and to the extent that we are responsible for the delay.
- Further legal claims and rights of the purchaser due to a delay in delivery remain unaffected.
§ 7 Transfer of risk in case of shipment
If the goods are shipped to the Purchaser at the Purchaser’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser upon dispatch to the Purchaser, at the latest upon leaving the factory/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs.
§ 8 Retention of title
- We retain title to the delivered item until full payment of all claims arising from the delivery contract. This shall also apply to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the object of sale if the customer acts in breach of contract.
- As long as ownership has not yet passed to him, the purchaser is obliged to treat the object of sale with care. In particular, he is obliged to insure it adequately at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the Purchaser shall carry this out in good time at its own expense. As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the purchaser shall be liable for the loss incurred by us.
- The purchaser is entitled to resell the reserved goods in the normal course of business. The Purchaser hereby assigns to us the claims against the customer arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing. The customer shall remain authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
- The processing or transformation of the object of sale by the customer shall always be carried out in our name and on our behalf. In this case, the purchaser’s expectant right to the object of sale shall continue in the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created for us. To secure our claims against the purchaser, the purchaser also assigns to us such claims against a third party as accrue to him through the connection of the reserved goods with a property; we accept this assignment already now.
- We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.
§ 9 Warranty and notice of defects as well as recourse/manufacturer recourse
- The quality of the products results exclusively and conclusively from the respective product description.
- If material defects are claimed, the goods subject to complaint must be returned to Ludwig Leuchten GmbH for inspection, properly packaged and protected from damage. If Ludwig Leuchten GmbH has return transport packaging, this must be requested and used for the return transport.
- The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs (not: removal and installation costs), shall be borne by Ludwig Leuchten GmbH if a defect is actually present. However, if a request by the purchaser to remedy a defect turns out to be unjustified, Ludwig Leuchten GmbH may demand reimbursement of the resulting costs from the purchaser.
- All parts or services that have a material defect shall, at the discretion of Ludwig Leuchten GmbH, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.
- Liability for consequential damages is excluded.
- Claims for subsequent performance shall become statute-barred 12 months after the statutory commencement of the limitation period; the same shall apply mutatis mutandis to rescission and reduction. This period shall not apply insofar as the law pursuant to § 438 para. 1 no. 2 (buildings and items for buildings), § 479 para. 1 (right of recourse) and § 634 a para. 1 no. 2 (construction defects) of the German Civil Code (BGB) prescribes longer periods in the case of intent, fraudulent concealment of the defect and non-compliance with a quality guarantee. The statutory provisions on suspension of expiry, suspension and recommencement of the periods shall remain unaffected.
- Notification of defects by the customer must be made in writing without delay.
- In the event of notices of defects, payments of the Purchaser may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The Purchaser may withhold payments only if defects have been acknowledged or established by a court of law. The Purchaser shall have no right of retention if its claims for defects are time-barred. If the notification of defects is unjustified, Ludwig Leuchten GmbH shall be entitled to demand reimbursement of the expenses incurred by it from the customer.
- Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating resources or as a result of particular external influences which are not assumed under the contract. If the purchaser or third parties carry out improper modifications or repair work, there shall also be no claims for defects for these and the resulting consequences.
- Claims for damages by the purchaser due to a material defect are excluded. This shall not apply in case of fraudulent concealment of the defect, in case of non-compliance with a quality guarantee, in case of injury to life, body, health or freedom and in case of intentional or grossly negligent breach of duty by Ludwig Leuchten GmbH. A change in the burden of proof to the detriment of the purchaser is not associated with the above provisions. Further claims or claims of the customer other than those regulated in this § 9 due to a material defect are excluded.
- With regard to the functionality and interaction with other components of the subject matter of the contract, the warranty is generally excluded. This applies both to components or software programs located in the luminaire as well as externally. This does not apply if a manufacturer’s test certificate regarding functionality and interaction with other components was sent to us by the purchaser prior to conclusion of the contract for the product provided and if we were also provided with corresponding assembly instructions.
§ 10 Liability
- All claims for damages by the purchaser against us are excluded, regardless of the legal grounds, unless we or our vicarious agents have acted with intent or gross negligence or have breached material contractual obligations through slight negligence. Material contractual obligations are obligations which protect the legal positions of the contractual partner which are material to the contract and which the contract is intended to grant to the contractual partner in accordance with its content and purpose. Furthermore, essential contractual obligations are those whose fulfillment makes the proper execution of the contract possible in the first place and on whose observance the contractual partner has relied and was entitled to rely.
- In particular, the purchaser shall also have no claim to compensation in the event of non-delivery or delayed delivery, even if a period of grace has been set and this has elapsed fruitlessly.
- In the event of gross negligence or slightly negligent breach of a material contractual obligation, damages shall be limited to the typical and foreseeable damage.
- Liability for damage not occurring to the subject matter of the contract is excluded except in cases of intent and gross negligence.
- Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act or in the event of the assumption of a guarantee.
- Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
- A limitation period of one year shall apply to all claims for damages or compensation for futile expenses in the case of contractual and non-contractual liability asserted against the Seller – except in cases of intent, gross negligence or personal injury. The period shall commence at the point in time specified in § 199 of the German Civil Code (BGB). It shall commence at the latest upon expiry of the maximum periods specified in Section 199 (3) and (4) of the German Civil Code (BGB). The statutory limitation period shall apply to claims for damages under the Product Liability Act.
§ 11 Miscellaneous
- This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
- The contract language is German.
- The place of performance and exclusive place of jurisdiction and for all disputes arising from this contract is our registered office, unless otherwise stated in the order confirmation.
- All agreements made between the Parties for the purpose of executing this Agreement are set forth in writing in this Agreement.
- Should one or more of these terms and conditions be or become wholly or partially invalid, 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 provision that comes as close as possible to what was economically intended. Gaps in the provisions shall be dealt with in the same way.
- The purchaser assumes the obligation to properly dispose of the delivered goods at its own expense in accordance with the statutory provisions after termination of use and shall indemnify Ludwig Leuchten GmbH against the obligations pursuant to § 10 Para. 2 ElektroG (manufacturers’ obligation to take back electrical and electronic equipment) and any related claims by third parties.