General Terms and Conditions of business
- Unless otherwise expressly agreed, the following “General Terms and Conditions” shall apply to all contracts, deliveries and other services in business transactions with entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law (hereinafter referred to as “Customers”). Within the framework of an existing business relationship, these terms and conditions shall also become part of the contract if Deko-Light Elektronik-Vertriebs GmbH (hereinafter referred to as “Company”) has not expressly pointed out their inclusion in each individual case and the customer has not objected to their validity. These “General Terms and Conditions” shall also apply to framework agreements which the Company concludes with the Customer.
- Conflicting conditions or conditions of the customer deviating from these General Terms and Conditions, in particular purchasing conditions, shall not become part of the contract unless the company expressly agrees to them in text form.
- In the case of doubt the applicable Incoterms (International Commercial Terms) will be decisive for the interpretation of these conditions.
§2 Offers and Conclusion of Contract
- All offers of the Seller are non-binding, unless they are explicitly marked as binding or contain a specific acceptance period. They constitute only an invitation to make an offer.
- A contract is not concluded until the order confirmation of the company in text form or tacitly through the execution of the order and is based exclusively on the content of the order confirmation and/or these General Terms and Conditions. In the event of tacit acceptance of the offer, the delivery note or goods invoice shall be deemed to be the order confirmation.
- Verbal promises made by the company, its employees or commercial agents prior to the conclusion of the contract are not legally binding and shall be replaced by the contract in text form unless otherwise agreed. Insofar as the company, its employees or commercial agents make amendments or changes to the contract after conclusion of the contract, these must be in text form in order to be effective. Oral declarations by persons who are authorised to represent the company without restriction or without restriction to the outside remain unaffected by the above provision.
- If, after conclusion of the contract, the Company becomes aware of facts (e.g. default of payment by the Customer with regard to earlier deliveries) which, according to dutiful commercial judgement, indicate that the payment claim is endangered due to the Customer’s lack of ability to pay, the Company shall be entitled to the rights set forth in Section 4 of the German Commercial Code (HGB) according to § 321 BGB. In particular, the Company shall be entitled to demand, at the Customer’s option, concurrent payment or corresponding securities from the Customer after setting a reasonable deadline.
- The company’s obligation to perform is limited exclusively to its obligations as seller under the purchase contract. Consulting or information services are not subject of the contract unless they have been expressly agreed in writing.
- With the conclusion of the contract, the customer acknowledges that he has informed himself about the type of execution and the scope of the service by inspecting existing service descriptions. In the event of obvious errors, typographical errors and miscalculations in the documents, drawings and plans, these shall not be binding. The Customer shall inform the Company of such errors so that the order confirmation or the execution of the order can be corrected or renewed. This shall also apply if the documents were not available to the customer in full.
- We reserve the right to make the following changes to the contractual products after conclusion of the contract: Product changes in the course of continuous product improvement and further development, minor and insignificant deviations in colour, form, design, dimensions, weight or quantity to the extent customary in the trade.
- Requests of the customer for subsequent reduction of the agreed remuneration or cancellation of the contract without replacement can only be taken into account on the basis of a special agreement and – insofar as the goods are not in stock – only to the extent that the upstream supplier undertakes to take the goods back from the company. In any event, the Company shall be entitled to deduct from the credit a reasonable percentage of the net invoice amount for handling costs, inspection and repackaging for goods duly returned with its consent. Damaged goods will not be credited. In cases of dispute, the company is entitled to compensation for the damage it has incurred in accordance with § 122 BGB.
- The company shall be entitled to issue the customer with partial invoices or advance invoices up to the full value of the goods in the contract. If the customer does not make payment to the Company within a reasonable period (14 days) after receipt of the advance invoice, the Company shall be released from its actual and temporal delivery obligations until the advance invoice has been settled. Delivery dates promised by the Company shall be postponed accordingly. Insofar as the customer does not effect settlement of the down payment or advance invoice even after a repeated request with a reasonable deadline, the company shall be entitled to withdraw from the contract without further preconditions. In this case, claims for damages and/or reimbursement of expenses by the customer are excluded. The invoice shall be deemed to have been received on the second working day following dispatch.
The company stores and uses personal data of the customer for the handling and fulfilment of the concluded contracts. The data will also be used for further maintenance of the business relationship with the customer, unless the customer objects to this in accordance with § 28 IV BDSG.
§4 Additional services
Consulting and planning services which the customer has to provide to third parties are not subject matter of the contract. Possible details are always non-binding.
§5 Delivery, transfer of risk and default
- In the absence of a deviating agreement, delivery “EXW ex works” (Incoterms 2010) is agreed. Unless otherwise agreed, the loading and unloading of the delivery shall not be subject of the contract. The risk shall pass to the customer when the goods are handed over to the customer, the forwarding agent or the carrier, but at the latest when the goods leave the premises of the company, even if the goods are delivered by the company. The risk shall also pass to the customer if delivery is made from the premises of a third party at the instigation of the company (socalled drop shipment).
- Insofar as dispatch or delivery “free domicile” has been agreed, this shall be at the risk of the customer. In both cases, the company bears only the freight and insurance costs. If shipment is delayed on request or due to the fault of the customer, the delivered goods shall be stored at the expense and risk of the customer. The same shall apply if dispatch or delivery is delayed due to force majeure or obstacles occurring after conclusion of the contract for which the Company is not responsible. In this case, the notification of readiness for dispatch or delivery is equivalent to the dispatch of the company. The invoice shall be deemed to have been received on the second working day following dispatch.
- Partial deliveries are permissible to a reasonable extent. In particular, they are permissible if the partial delivery can be used by the customer within the scope of the contractual purpose and if the delivery of the remaining ordered goods is ensured.
- The delivery period shall be reasonably extended – even within a delay – in the event of force majeure and all unforeseen obstacles occurring after conclusion of the contract for which the Company is not responsible (including but not limited to operational disruptions, strikes, lockouts or disruptions of traffic routes, cyber attacks on the IT system), insofar as these obstacles demonstrably have a considerable influence on the delivery. This shall also apply if these circumstances occur at the Company’s suppliers and their subsuppliers, in particular if they are unable to supply the Company in a manner that is in conformity with the contract and on time despite the existence of a purchase contract or an order. The Company shall notify the Customer of the beginning and end of such obstacles as soon as possible. The customer may request the company to declare whether it intends to withdraw from the contract or to deliver within a reasonable period of time. If the company does not declare this immediately, the customer may withdraw from the contract. Claims for damages and/or reimbursement of expenses are excluded in this case. The above provisions shall apply mutatis mutandis to the customer if the abovementioned hindrances occur at the customer’s premises.
- In the event of a delay in delivery, the customer is obligated, at our request and within a reasonable period, to declare whether it continues to insist upon delivery or instead rescinds the contract due to the delay and/or claims damages in lieu of performance. Insofar as the customer does not declare in writing within the period, his silence shall be deemed a waiver of the fulfilment of the delivery obligation.
- The company shall be liable with regard to timely delivery only for its own fault and that of its vicarious agents. However, the company is obliged to assign any claims it may have against its suppliers to the customer upon request.
- The customer is aware that the export of certain goods may give rise to licensing obligations (e.g. due to the intended use or the final destination) and that the relevant national and international export regulations must be observed.
- Deliveries to the customer are subject to national or international regulations of foreign trade law, an embargo or other legal prohibitions.
- Packing material shall be charged separately.
- A return of packaging material is excluded, as far as the company has taken back the packaging material in accordance with the Packaging Ordinance in its respectively valid version or as of 01.01.2019 in accordance with the Packaging Ordinance. a suitable disposal company is called in for disposal. In this case, the customer is obliged to keep the packaging material ready and to hand it over to the disposal company. If the company agrees with the customer that he waives his right of return in return for a flatrate disposal fee, the customer shall be obliged to hand over the used packaging to a recognised disposal company that guarantees orderly disposal in accordance with the provisions of the Packaging Ordinance.
- Reusable packaging shall only be made available to the customer on loan. The customer must notify the company of the return of the packaging unit in text form within 14 days and provide the packaging. If this is not the case, the company is entitled from the 3rd week onwards. to demand 20% of the purchase price (but not more than the full purchase price) for each week as a rental fee after reminder or to invoice the value of the packaging immediately upon receipt, which shall become due for payment immediately.
§7 Prices and payment
- The prices are always exclusive of the statutory valueadded tax and exclusive of packaging and assembly. Freight, postage, customs, transport, insurance and other ancillary costs are charged separately according to the state at the time of the order. All prices do not include any disposal fee with regard to the European Directive on the Disposal of Waste Electrical and Electronic Equipment (WEEE).
- Unless otherwise agreed, payment is due immediately without deduction upon receipt of the goods and invoice. The same applies to repair invoices.
- The Company expressly reserves the right to accept cheques as payment in lieu of performance. No performance shall occur without his consent, but the cheque shall be submitted on account of performance. To the extent that the Company accepts payment by cheque as performance in an individual case, credit notes shall be issued subject to receipt less expenses, with the value date being the day on which the Company can dispose of the countervalue.
- Payment by bill of exchange is expressly excluded and will not be accepted.
- In the event of default in payment, the statutory provisions shall apply. In the event of default, the Company shall be entitled to demand interest for the year in the amount of 9 percentage points above the respective base interest rate in accordance with § 247 BGB) as well as a lump sum of EUR 40,00.
Possibly agreed discounts will not be granted if the customer is in default with payment obligations from earlier deliveries.
- In the event of default on the part of the customer, the company may revoke the direct debit authorisation (Item 8.6) and demand payment concurrently for outstanding deliveries. However, the customer may avert these legal consequences by providing security in the amount of the endangered payment claim.
- A refusal to pay or a retention of payment are excluded if the customer was aware of the defect or other reason for complaint when the contract was concluded. This shall also apply if he remained unknown to him as a result of gross negligence, unless the company fraudulently concealed the defect or other reason for complaint or assumed a guarantee for the quality of the item. In all other respects, payment can be withheld only to a reasonable extent for defects and other objections.
- The customer shall only be entitled to offset if his counterclaims are undisputed or legally established, if they are based on the same contractual relationship with the company and/or if they would entitle the customer to refuse performance in accordance with § 320 BGB (German Civil Code). The mere silence of the Company on the assertion of such counterclaims shall not be deemed an acknowledgement. This applies accordingly to any right of the customer to refuse performance. Sections 7.8. and 7.9. shall not apply to contracts with consumers within the meaning of § 13 BGB.
- If the customer does not accept the goods within four months of conclusion of the contract, without this having been contractually agreed otherwise, the company shall be entitled to pass on to the customer any price increases of the manufacturer or subsupplier that have occurred in the meantime.
§8 Retention of Ownership
- The company retains title to the goods until the purchase price has been paid in full. In the case of goods which the customer purchases as part of an ongoing business relationship, the company reserves title until all its claims against the customer arising from the business relationship, including future claims, including those arising from contracts concluded at the same time or later, have been settled (balance reservation). This shall also apply if some or all claims of the supplier are combined in a current account and if a new balance is stricken and accepted. However, the balance reservation does not apply to prepayment or cash transactions that are settled step by step.
- If the reserved goods are processed by the customer, it is agreed that the processing on behalf of and for the account of the company as manufacturer i.S.d. § 950 BGB and this directly the property or – if the processing is made of substances of several owners or the value of the processed thing is higher than the value of the reserved goods – the co-ownership of the newly created thing in proportion of the value of the reserved goods to the value of new acquired thing at the time of processing. In the event that no such acquisition of ownership should occur on the part of the contracting party, the Customer then immediately transfers his future ownership or – in the abovementioned ratio – shared ownership of the newly created item as security to the Company If the reserved goods are combined or inseparably mixed with other items to form a uniform item (§§ 947, 948 BGB), the Company shall acquire co-ownership of the newly created item in accordance with the statutory provisions. If, as a result of the combination or mixing, one of the other items is to be regarded as the main item, the customer, insofar as he owns the main item, hereby assigns co-ownership to the company in the ratio of the value of the reserved goods to the value of the newly created item at the time of the combination or mixing. In these cases, the customer must store the goods owned or co-owned by the company free of charge, which are also deemed to be reserved goods within the meaning of the above conditions.
- If reserved goods are sold alone or together with goods not belonging to the company, the customer hereby assigns, i.e. at the time of conclusion of the contract, the claims arising from the resale in the amount of the value of the reserved goods with all ancillary rights and priority over the remainder; the company accepts the assignment. The value of the reserved goods is the invoice amount of the company, which, however, is not taken into account if the rights of third parties conflict with it. If the resold reserved goods are co-owned by the company, the assignment of the claims shall extend to the amount corresponding to the share value of the company in the co-ownership.
- If reserved goods are installed by the customer as an integral part of the property, ship, ship under construction or aircraft of a third party, the customer hereby assigns the assignable claims against the third party or the person concerned to the amount of the value of the reserved goods with all ancillary rights including one upon granting a security mortgage with rank above the remainder; the company accepts the assignment. Clause 8.3 sentences 2 and 3 shall apply accordingly.
- The customer shall only be entitled and authorized to resell, use or install the reserved goods in the ordinary course of business and only subject to the proviso that the claims within the meaning of clauses 8.3. and 8.4. are actually transferred to the company. If the customer has agreed with his contractual partners on a prohibition of assignment with regard to this claim, the authorisation to resell shall lapse. The customer is not otherwise entitled to dispose of the goods to which we retain title and, in particular, may not use them as collateral or otherwise transfer ownership. An assignment by way of genuine factoring is only permitted to the customer under the condition that the company is notified of this with notification of the factoring bank and the accounts of the customer maintained there and the factoring proceeds exceed the value of the secured claim of the company. When the factoring proceeds are credited, the company’s claim becomes due immediately.
- Subject to revocation, the Company authorizes the Customer to collect the claims assigned in accordance with Sections 8.3 – 8.5. The company will only make use of its own collection authority if the customer does not meet its payment obligations, including those to third parties, or if their fulfilment appears to be at risk. At the Company’s request, the Customer shall immediately disclose the business and private addresses of its contractual partners to whom it has delivered the reserved goods or goods in which the Company’s reserved goods have been incorporated as an essential component. The notification also includes the customer’s obligation to list the extent to which these deliveries have already been settled by his contractual partners and which individual claims are still outstanding here.
- The customer must inform the company immediately of any enforcement measures taken by third parties against the reserved goods or the assigned claims, handing over the documents necessary for the objection.
- Upon cessation of payments and/or application for the opening of insolvency proceedings against the customer’s assets, the rights to resell, use or install the reserved goods and the authorization to collect the assigned claims shall lapse; the authorization to collect shall also lapse in the event of a direct debit authorisation. Any mandatory rights of the insolvency administrator shall remain unaffected.
- If the value of the securities granted exceeds the claims (if applicable reduced by down payments and partial payments) by more than 20%, the Company shall be obliged to retransfer or release the securities at its discretion. With the repayment of all claims of the company from the business relationship, the ownership of the reserved goods and the assigned claims pass to the customer.
§9 Notification of defects, warranty, and liability
- The company shall only be liable for defects within the meaning of § 434 BGB as follows: The customer must immediately inspect the received goods for quantity and quality. Obvious defects must be reported to the company in text form within 7 days of receipt of the goods. Notification of non-obvious defects shall be deemed to have been made in good time if it is received by the company in text form within 7 days of its discovery by the customer.
- If the customer detects a defect, he is obliged to make the object or sample of the object complained of available to the company for the purpose of examining the complaint and to grant a reasonable period of time for the examination. In the event of refusal, the warranty shall lapse. The customer may not dispose of the object complained of until the company has completed its examination, i.e. it may not be divided, resold or further processed.
- In the event of intentional installation or affixing of the goods, the customer must, without prejudice to the provision in paragraph 1, check the obligation, the characteristics of the goods relevant to the installation or installation and the subsequent intended use, and any defects to the company without delay in text form, as far as an examination of these properties according to the nature and condition of the goods at this time is reasonable. If the notification of defects in respect of the properties mentioned in sentence 1 is omitted despite reasonable inspection, the goods shall be deemed to have been approved to this extent. In this case, the customer shall not be entitled to any rights in respect of such defects.
- Insofar as the customer, in the event of installation or mounting of the goods, fails to check the external and internal properties of the goods relevant for this and the subsequent intended use before installation or mounting, he shall be grossly negligent. In this case, he can only assert warranty rights with regard to these properties if the defect in question has been fraudulently concealed or a guarantee for the quality of the item has been assumed by the company.
- In the case of justified notices of defects, the Company shall be entitled to determine the type of subsequent performance (replacement delivery or rectification) taking into account the type of defect and the legitimate interests of the Customer. If the supplementary performance fails, the customer shall be entitled – without prejudice to any claims for damages pursuant to Clause 10 – at his discretion to withdraw from the contract or demand a reduction in the purchase price.
- If the customer has incorporated the defective goods into another item or attached them to another item in accordance with their type and purpose of use at the time of the transfer of risk, he shall be entitled to in accordance with § 439 para. 3 BGB (German Civil Code) to demand reimbursement of expenses for the removal of the defective goods and the installation or attachment of the repaired or delivered defect-free goods (socalled dismantling and installation costs) only in accordance with the following provisions.
- Required within the meaning of § 439 Para. 3 BGB, only such dismantling and installation costs which concern the dismantling and installation or the installation of identical products, which have been incurred on the basis of customary market conditions and which are proven to the company by the customer at least in text form by submitting suitable supporting documents shall be deemed to be dismantling and installation costs. The customer shall have no right of advance payment for dismantling and installation costs. The customer is also not permitted to unilaterally set off claims for reimbursement of expenses for dismantling and installation costs against purchase price claims or other payment claims of the company without the consent of the company. Section 7.9 remains unaffected. Beyond the required removal and installation costs beyond the customer’s requirements, in particular costs for defects caused by consequential damage such. B. Loss of profit, loss of business or additional costs for replacement purchases are no removal and installation costs and therefore not in the context of subsequent performance in accordance with § 439 para. 3 BGB (German Civil Code).
- If the expenses asserted by the customer for the supplementary performance within the meaning of § 439 Para. 3 BGB in individual cases, in particular in relation to the purchase price of the goods in defect-free condition and taking into account the significance of the lack of conformity, the company is entitled to refuse reimbursement of expenses. Disproportionality exists in any case if the asserted expenditures in the sense of § 439 Abs. 3 BGB a value in the amount of 150% of the purchase price of the goods in defect-free condition or 200% of the defect-caused depreciation of the goods.
- Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded to the extent that such expenses increase because the goods were subsequently taken to a location other than the customer’s place of business or as contractually agreed, unless the transfer corresponds to the intended use of the goods.
- The customer will inform the company immediately about a warranty case that has occurred with a contractual partner.
- In the event of unjustified notices of defects, the customer shall reimburse the costs incurred by the company as a result if the customer has recognised or negligently failed to recognise that a defect is not present, but that the cause of the appearance complained of by him lies within his area of responsibility.
- Warranty claims of the customer shall become statutebarred after 12 months, calculated from delivery. This does not apply if longer periods apply per §438 1 No. 2 BGB (Buildings and things for buildings), § 438 Para. 3 BGB (fraudulent concealment), § 479 Abs. 1 BGB (right of recourse) and § 634a Abs. 1 No. 2 BGB (German Civil Code) (construction defects) provides for longer periods. Recourse claims pursuant to §§ 476, 479 BGB (German Civil Code) shall only exist if the consumer was entitled to assert claims and only to the extent determined by law, but not for goodwill settlements not agreed with the company. In addition, claims under a right of recourse require that the party entitled to recourse observes its own obligations, in particular the obligations to examine the goods and to give notice of defects.
- With the purchase of used things warranty claims of the customer are excluded after § 437 BGB altogether.
- The Company shall be liable for damages or for reimbursement of futile expenses for material defects in accordance with Section 10 of these Terms and Conditions.
§10 General limitation on liability
- The Company shall be liable in accordance with the statutory provisions insofar as the Customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of its representatives or vicarious agents. Furthermore, the Company shall be liable for culpable breaches of material contractual obligations in accordance with the statutory provisions. Fundamental contractual obligations are those, the fulfilment of which makes possible the orderly performance of the contract and which the contrating partner can generally expect compliance. Insofar as neither intent nor gross negligence can be attributed to the company, liability for damages shall be limited to the foreseeable damage typically occurring in contracts of this type. Indirect damages or consequential damages are only eligible for compensation if they are typically to be expected when the item is used as intended.
The above provisions do not increase the customer’s burden of proof.
Liability for culpable injury to life, limb or health shall remain unaffected. Liability according to the product liability law of the Federal Republic of Germany remains unaffected.
- Any further claims for damages, irrespective of their legal basis, are excluded. This shall also apply if the customer demands compensation for futile expenses instead of compensation for the damage instead of performance.
- For technical information or a purely advisory activity, if this is not contractually owed, any liability is excluded.
- Liability for gross negligence and claims for damages based on injury to life, limb or health shall be governed by the statutory statute of limitations.
- In all other respects, the periods of limitation in accordance with Section 9.9 of these Terms and Conditions shall apply to claims based on defects.
§11 Place of performance, place of jurisdiction and applicable law
- The place of performance and jurisdiction for all claims and disputes arising from or in connection with the contractual relationship, insofar as the customer is a merchant, a legal entity under public law or a special fund under public law, shall be the administrative headquarters of the company. However, the latter shall also be entitled to sue the customer at his place of business.
- The legal assessment of the relations between the contracting parties shall be governed exclusively by the formal and substantive law applicable in the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). Furthermore, reference standards of German international private law which would lead to the application of foreign legal standards or foreign jurisdictions are excluded.
§12 Invitation to make a declaration
If the Company requests the Customer to make declarations, such as an approval, and sets the Customer a reasonable deadline for doing so, the declaration shall be deemed to have been made when the deadline expires and the Customer remains silent. The invitation shall be deemed to have been received on the second working day following its dispatch.
§13 Severability clause
Should individual provisions of this contract be invalid, partially invalid or unenforceable, this shall not affect the validity of the remaining provisions. Instead of the invalid, partially invalid or unenforceable provision, the parties agree to set a provision that comes closest to the meaning and purpose of the invalid, partially invalid or unenforceable provision. Should the parties fail to reach such an agreement, the invalid, partially invalid or unenforceable provision shall be replaced at the request of the parties by the statutory provision which comes closest to the meaning and purpose of the invalid, partially invalid or unenforceable provision.