1. Scope of application
- Unless otherwise expressly agreed, the following “General Terms and Conditions” shall apply to all contracts, deliveries and other services in business transactions with businesspersons as defined by Section 14 of the German Civil Code (BGB), 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 an integral part of the contract if DEKO-LIGHT Elektronik-Vertriebs GmbH (hereinafter referred to as “DEKO-LIGHT”) has not expressly referred to their inclusion in each individual case and the customer has not objected to their validity. These “General Terms and Conditions” also apply to frame-work agreements that DEKO-LIGHT concludes with the customer.
- Any conditions of the customer that conflict with or deviate from these General Terms and Conditions, in particular purchase condi-tions, shall not become part of the contract, even if DEKO-LIGHT does not expressly object to them. This shall also apply if DEKO-LIGHT renders its services to the customer without reservation in the knowledge of conflicting or deviating conditions or if the customer refers to conflicting or deviating conditions in individual correspondence.
- These General Terms and Conditions do not apply to consumers as defined by Section 13 of the German Civil Code.
2. Offers and conclusion of contract; contract content and amendments
- All offers from DEKO-LIGHT are subject to change and non-binding, unless they are expressly marked as binding or contain a certain acceptance period. They only constitute an invitation to submit an offer.
- A contract shall only be concluded upon the order confirmation by DEKO-LIGHT in text form or implicitly upon execution of the order, or because DEKO-LIGHT begins to provide the service in accordance with the contract. DEKO-LIGHT may demand written confirmation of verbal contractual declarations by the customer. DEKO-LIGHT's written acceptance of the binding purchase offer (order confirmation) may also be sent by email (electronically).
- The contract content is based exclusively on the content of the order confirmation from DEKO-LIGHT and/or these General Terms and Conditions. In the event of implicit acceptance of the offer by DEKO-LIGHT, the delivery note or the goods invoice shall be deemed to be an order confirmation. Verbal commitments made by DEKO-LIGHT, its employees or commercial representatives prior to the conclusion of the contract are legally non-binding and shall be replaced by the contract in text form, unless a different agreement has been made. Insofar as DEKO-LIGHT, its employees or commercial representatives make additions or amendments to the contract after its conclusion, these must be in writing in order to be effective. Verbal declarations by persons who are authorised to represent DEKO-LIGHT without restriction or to do so externally remain unaffected by the above provision.
- DEKO-LIGHT’s obligation to perform shall be limited exclusively to its obligations as a seller under the purchase contract. Consulting or information services are not the subject of the contract, unless they have been expressly agreed in writing.
- The customer is obliged to inform himself of the type of perfor-mance and the scope of the service by inspecting the existing service descriptions no later than the time of conclusion of the contract. There is no liability for obvious errors, typographical errors or mathematical errors in the documents, drawings and plans. The customer shall in-form DEKO-LIGHT of such errors so that the order confirmation or the execution of the order can be corrected or renewed.
- DEKO-LIGHT reserves the right to make the following changes to the contract products after conclusion of the contract: Product chang-es in the course of continuous product improvement and further development, minor and insignificant deviations in colour, shape, design, dimension, weight or quantity to an extent usual in trade.
3. Additional services (consulting and planning services)
Consulting and planning services that the customer provides to third parties are not the subject of the contract unless expressly agreed. Any information on this is always non-binding.
4. Delivery, transfer of risk, partial deliveries and delay in delivery
- 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 the subject of the contract. Upon handover of the goods to the customer, the forwarding agent or the carrier, the risk shall pass to the customer, but no later than upon leaving the premises of DEKO-LIGHT, even if the delivery is made by DEKO-LIGHT. Transport insurance is only provided at the customer’s special request and at the customer's expense. The risk shall also pass to the customer if DEKO-LIGHT arranges for the delivery of goods from a third party’s premises (drop shipment).
- DEKO-LIGHT shall select the shipping method, the carrier and the transport route if DEKO-LIGHT does not have written specifications from the customer. In this selection, DEKO-LIGHT is only liable for intent or gross negligence.
- Insofar as “free delivery” is agreed for the shipment or delivery, this shall take place at the customer’s risk. In both cases, DEKO-LIGHT shall only bear the costs for freight and insurance. If shipment is delayed at the request of or due to the fault of the customer, the goods shall be stored at the customer’s expense and risk. The same shall apply if the shipment or delivery is delayed due to force majeure or obstacles occurring after conclusion of the contract for which DEKO-LIGHT is not responsible. In this case, the notification of readiness for shipment or delivery is deemed the same as shipment.
- Partial deliveries are permitted 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.
- Information on delivery and performance times is non-binding, unless it is designated as binding by DEKO-LIGHT in text form. All delivery and performance periods are subject to correct and timely self-delivery. Unless otherwise agreed, delivery periods shall commence with the dispatch of the order confirmation by DEKO-LIGHT, but not before all commercial and technical questions have been clarified between the customer and DEKO-LIGHT and the customer has fulfilled all of its obligations (e.g. necessary official approvals provided or agreed down payments made).
- The delivery period shall be appropriately extended — even within a delay — in the event of force majeure and all unforeseen obstacles that occur after the conclusion of the contract, for which DEKO-LIGHT is not responsible (in particular operational disruptions, strikes, lockouts or disruptions of traffic routes, pandemics, cyber-attacks on the IT sys-tem), insofar as these obstacles demonstrably have a significant influ-ence on the delivery. This shall also apply if these circumstances oc-cur at DEKO-LIGHT's suppliers and their sub-suppliers, in particular if they are unable to supply DEKO-LIGHT in a contractually compliant and timely manner despite the existence of a purchase contract or an order. DEKO-LIGHT shall inform the customer of the start and end of such obstacles as soon as possible. The customer may request that DEKO-LIGHT declare whether it wishes to withdraw or deliver within a reasonable period of time. If DEKO-LIGHT does not respond immedi-ately, the customer may withdraw. Claims for damages and/or reim-bursement of expenses are excluded in this case.
- In the event of a delay in delivery, the customer shall be obliged, at the request of DEKO-LIGHT, to declare within a reasonable period of time whether he shall continue to insist on delivery or withdraw from the contract due to the delay and/or demand damages instead of performance.
5. Customer’s general obligations
- The customer is obliged to have all deliveries and services of DEKO-LIGHT examined by a competent employee immediately after delivery or provision or after making them accessible in accordance with the provisions of commercial law (Section 377 of the German Commercial Code (HGB)) and to report any recognisable and/or rec-ognised defects immediately in writing with a precise description of the defect.
- The customer acknowledges that DEKO-LIGHT is dependent on the customer’s comprehensive cooperation for the successful and timely performance of the deliveries or services owed by DEKO-LIGHT. The customer therefore undertakes to provide all information required for proper performance of the service in a timely and com-plete manner.
- The customer undertakes to thoroughly test the deliveries and ser-vices of DEKO-LIGHT for usability in the specific situation and to sub-ject them to a function test before assembly, further delivery, etc. This also applies to delivery items that the customer receives free of charge as a gift or as part of the warranty.
6. Prices and payment; prohibition of assignment; offsetting
- The prices always exclude the legally owed value added tax as well as packaging and assembly. Freight, postage, customs, transport, insurance and other ancillary costs are charged separately according to the status at the time of the order.
- Unless otherwise agreed, payment shall be due immediately upon receipt of the goods and invoice without deduction. The same applies to repair invoices. Without a special agreement, only non-cash pay-ments, i.e. transfers to the bank account specified by DEKO-LIGHT, are permitted.
- In the event of default, the statutory provisions shall apply. In par-ticular, in the event of default, DEKO-LIGHT shall be entitled to charge interest to the amount of 9 percentage points above the base interest rate (in accordance with Section 247 of the German Civil Code) and a dunning fee of EUR 10.00. The right to assert further damages caused by default remains unaffected.
- In the event of a default by the customer lasting longer than 30 calendar days or if an application for the initiation of insolvency pro-ceedings over the customer’s assets or comparable proceedings un-der another legal system is filed, DEKO-LIGHT shall be entitled to make all claims against the customer due immediately, to withhold all deliveries and services and to assert all rights arising from retention of title. However, the customer may avert these consequences by provid-ing securities in the amount of the payment claim at risk.
- If facts become known to DEKO-LIGHT after conclusion of the con-tract (e.g. default of payment by the customer from previous deliveries or other unfavourable information about the customer’s financial situa-tion or creditworthiness), which, according to due commercial judg-ment, lead to fears that the claim for payment is at risk due to the cus-tomer’s lack of ability to pay, DEKO-LIGHT shall be entitled to the rights in accordance with Section 321 of the German Civil Code. In particular, DEKO-LIGHT shall be entitled, by setting a reasonable pe-riod of time, to demand from the customer delivery versus payment or corresponding securities, at its discretion.
- Except in the area of Section 354 a of the German Commercial Code, the customer may only assign claims arising from this contract to third parties with the prior written consent of DEKO-LIGHT. The customer shall only be entitled to a right of retention or the defence of non-performance of the contract within the respective contractual rela-tionship.
- The customer shall only have a right of set-off insofar as its coun-terclaims are undisputed or legally established, they are based on the same contractual relationship with DEKO-LIGHT and/or they would entitle the customer to refuse performance in accordance with Section 320 of the German Civil Code. The mere silence of DEKO-LIGHT with regard to the assertion of such counterclaims shall not be deemed an acknowledgement.
7. Retention of title
- DEKO-LIGHT retains ownership of the goods until the purchase price has been paid in full. In the case of goods purchased by the cus-tomer in the context of an ongoing business relationship, DEKO-LIGHT reserves the right of ownership until all its claims against the customer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled (reservation of balance). This also applies if individ-ual or all claims of DEKO-LIGHT have been included in a current in-voice and the balance has been drawn and accepted. However, the reservation of balance does not apply to prepayment or cash transac-tions processed as delivery versus payment.
- If goods subject to retention of title are sold alone or together with goods not belonging to DEKO-LIGHT, the customer hereby—i.e. at the time of conclusion of the contract—assigns the claims arising from the resale in the amount of the value of the goods subject to retention of title with all ancillary rights and with priority over all other claims; DEKO-LIGHT accepts the assignment. The value of the goods subject to retention of title is the invoice amount of DEKO-LIGHT, which, how-ever, remains excluded, insofar as third-party rights oppose it. If the resold goods subject to retention of title are co-owned by DEKO-LIGHT, the assignment of claims shall extend to the amount corre-sponding to DEKO-LIGHT's share in the co-ownership.
- The customer is only entitled and authorised to resell, use or install the goods subject to retention of title in the usual, ordinary course of business and only with the proviso that the claims as defined by Para-graph 2 actually pass to DEKO-LIGHT. Insofar as the customer has agreed with its contractual partners a prohibition of assignment with regard to this claim, the authorisation to resell shall expire. The cus-tomer is not entitled to dispose of the goods subject to retention of title in any other way, in particular to pledge or assign them as security. The customer is only permitted to assign by way of real factoring if DEKO-LIGHT is made aware of this, disclosing the factoring bank and the customer’s accounts held there, and the factoring revenue ex-ceeds the value of the secured claim of DEKO-LIGHT. With the credit-ing of the factoring revenue, the claim of DEKO-LIGHT shall become due immediately.
- DEKO-LIGHT authorises the customer to collect the claims as-signed in accordance with Paragraphs 2 and 3, subject to revocation. DEKO-LIGHT shall only make use of its own right of collection if the customer does not meet its payment obligations, including those to-wards third parties, or their fulfilment appears to be at risk. At the re-quest of DEKO-LIGHT, the customer must immediately disclose the business and private addresses of its contractual partners to whom it has delivered the goods subject to retention of title or goods into which the goods subject to retention of title of DEKO-LIGHT have been in-corporated as an essential component. The notification also includes the obligation of the customer to list the extent to which these deliver-ies have already been settled by its contractual partners and which claims are still outstanding here in detail.
- The customer must inform DEKO-LIGHT immediately of any en-forcement measures by third parties against the goods subject to re-tention of title or the assigned claims, handing over the documents necessary for the objection.
- Upon suspension of payment and/or application for the initiation of insolvency proceedings over the customer’s assets, the rights to re-sell, use or install the goods subject to retention of title and the author-isation to collect the assigned claims shall expire. Any mandatory rights of the insolvency administrator remain unaffected.
- If the value of the securities granted exceeds the claims (if applica-ble, reduced by down payments and instalments) by more than 20 %, DEKO-LIGHT shall be obliged to retransfer or release them at its dis-cretion. Upon repayment of all claims of DEKO-LIGHT arising from the business relationship, ownership of the goods subject to retention of title and the assigned claims shall be transferred to the customer.
8. Warranty for defects and liability
- If the customer discovers a defect, he shall be obliged to provide DEKO-LIGHT with the object of complaint or a sample thereof for the purpose of examining the complaint and he shall allow a reasonable period for the examination. Until the examination is completed by DEKO-LIGHT, the customer may not dispose of the object of com-plaint, i.e. it may not be shared, resold or processed further. The cus-tomer’s rights with respect to defects also presuppose that he properly fulfils his notification and inspection obligations in accordance with Section 5. Paragraph 1 and has reported hidden defects in writing im-mediately after discovery.
- If, in the event of installation or attachment of the goods, the cus-tomer fails to check the external and internal properties of the goods relevant to this and the subsequent intended use before installation or attachment, this shall be deemed gross negligence. In this case, the customer may only assert rights with respect to defects regarding these properties if the defect in question has been fraudulently con-cealed or a guarantee has been assumed by DEKO-LIGHT for the condition of the item.
- In the event of justified notices of defects, DEKO-LIGHT shall be entitled to determine the type of subsequent fulfilment (replacement or rectification) taking into account the nature of the defect and the legit-imate interests of the customer. If subsequent fulfilment fails, the cus-tomer shall—without prejudice to any claims for damages in accord-ance with Section 9—be entitled to withdraw from the contract or demand a reduction in the purchase price, at his discretion.
- If the customer has installed the goods that were defective at the time of the transfer of risk in another item or attached them to another item as per their type and intended use, in accordance with Section 439 of the German Civil Code he may only demand reimbursement of expenses from DEKO-LIGHT for the removal of the defective goods and the installation or attachment of the repaired or delivered non-defective goods (removal and installation costs) in accordance with the following provisions: As defined by Section 439, Paragraph 3 of the German Civil Code, the only requirement is for removal and installation costs relating to the removal and installation or attachment of identical products, which have been incurred on the basis of customary market conditions and which are proven to DEKO-LIGHT by the customer by submitting suit-able receipts at least in text form. The customer is not entitled to an advance payment for removal and installation costs. The customer is also not permitted to unilaterally offset claims for reimbursement of expenses for removal and installation costs against purchase price claims or other payment claims of DEKO-LIGHT without the consent of DEKO-LIGHT. Claims of the customer exceeding the required re-moval and installation costs, in particular costs for consequential dam-age caused by defects, such as loss of profit, operational downtime costs or additional costs for replacement purchases, are not removal and installation costs and are therefore not within the scope of subse-quent fulfilment in accordance with Section 439, Paragraph 3 of the German Civil Code.
- If the expenses claimed by the customer for subsequent fulfilment under Section 439, Paragraph 3 of the German Civil Code are dispro-portionate in the individual case, in particular in relation to the pur-chase price of the goods in a defect-free condition and taking into ac-count the significance of non-conformity with the contract, DEKO-LIGHT shall be entitled to refuse to reimburse the expenses. Dispro-portionality shall be deemed to exist in any case if the expenses claimed under Section 439, Paragraph 3 of the German Civil Code ex-ceed 150 % of the purchase price of the goods in a defect-free condi-tion or 200 % of the reduced value of the goods due to the defect.
- Claims by the customer due to the expenses required for the pur-pose of subsequent fulfilment, in particular transport, travel, labour and material costs, are excluded to the extent that these expenses in-crease because the goods were subsequently transported to a loca-tion other than the customer’s branch or other than contractually agreed, unless the transportation corresponds to the intended use of the goods.
- The customer must inform DEKO-LIGHT immediately of any war-ranty case that has occurred with a contractual partner.
- In the event of unjustified notices of defects, the customer shall re-imburse DEKO-LIGHT for costs incurred as a result thereof, provided that the customer recognises, or negligently failed to recognise, that there is no defect, but rather the cause of the aspect the customer complained about lies within his area of responsibility.
- Claims for defects by the customer shall become statute-barred 12 months after delivery of the goods. This does not apply if the law pro-vides for longer periods in accordance with Section 438, Paragraph 1, No. 2 of the German Civil Code (buildings and objects for buildings), Section 438, Paragraph 3 of the German Civil Code (fraudulent con-cealment), Section 479, Paragraph 1 of the German Civil Code (re-course claims) and Section 634a, Paragraph 1, No. 2 of the German Civil Code (construction defects). Recourse claims in accordance with Sections 476 and 479 of the German Civil Code shall only exist if the claim was justified by the consumer and only to the extent stipulated by law, not on the other hand for goodwill arrangements not agreed with DEKO-LIGHT. In all other respects, recourse claims require the party entitled to recourse to comply with his own obligations, in par-ticular with the obligations to examine the goods and give notice of de-fects.
- In the case of the purchase of used items, warranty claims of the customer in accordance with Section 437 of the German Civil Code are completely excluded.
- DEKO-LIGHT shall be liable in accordance with Section 9 of these Terms and Conditions for damages or for reimbursement of fu-tile expenses for material defects.
- Returns of defective goods to DEKO-LIGHT for the purpose of subsequent fulfilment or notice of defects may only take place after prior consultation with DEKO-LIGHT. The risk of accidental loss or de-terioration of the goods shall not pass over until acceptance of the goods by DEKO-LIGHT at DEKO-LIGHT's place of business. DEKO-LIGHT is entitled to refuse returns of goods without prior consultation.
9. Limitation of liability
- DEKO-LIGHT shall only pay compensation for damages or reim-bursement of futile expenses, irrespective of the legal grounds (e.g. due to contractual or quasi-contractual obligations, material defects and defects of title, breach of duty and tort) to the following extent and only if DEKO-LIGHT is at fault (intent or negligence):
a) Liability in the event of intent and under guarantee is unlimited.
b) In the event of gross negligence, DEKO-LIGHT shall be liable in the amount of the typical and foreseeable damage.
c) In other cases, DEKO-LIGHT shall only be liable in the event of a breach of an essential contractual obligation, in the event of claims for defects and in the event of default, and specifically for compensation for typical and foreseeable damage.In this respect, liability is limited to five times the agreed remuneration for the order affected by the damage per claim.According to the case law, essential contractual obligations (cardinal obligations) are such obligations whose fulfilment enables the proper execution of the contract in the first place and the observance of which the contractual partner regularly relies and may rely on.
- In the event of death, physical injury or illness, and in the event of claims arising from the Product Liability Act (Produkthaftungsgesetz), only the statutory provisions shall apply.
- Any liability is excluded for technical information or purely consult-ing activities if this is not contractually owed.
- DEKO-LIGHT retains the right to object to contributory negligence.
- In all other respects, the limitation periods in accordance with Sec-tion 8, Paragraph 9 of these Terms and Conditions shall apply to claims for defects.
10. Social clause
When determining the amount of any compensation claim to be ful-filled by DEKO-LIGHT, the economic circumstances of DEKO-LIGHT, the nature, scope and duration of the business relationship, any con-tribution to the cause and/or fault on the part of the customer and any goods installation situation that is particularly unfavourable must be appropriately taken into account in favour of DEKO-LIGHT. In particu-lar, the compensation, costs and expenses that DEKO-LIGHT is to bear must be proportionate to the value of the goods sold.
11. Export control
- Deliveries to the customer are subject to national and international provisions of foreign trade law, an embargo or other legal prohibitions. In the event of such an embargo or prohibition, DEKO-LIGHT shall be entitled to withdraw from the contract without this resulting in claims for damages by the customer.
- Before passing on the goods covered by the contract to third par-ties, the customer is obliged to ensure by means of appropriate checks and measures that such passing on or provision does not vio-late embargo regulations, in particular those of the European Union and the Federal Republic of Germany, also taking into account any circumvention bans.
- Furthermore, the customer is obliged to observe the provisions of European and German sanctions lists with regard to any business ac-tivities with the organisations, persons and companies listed there. The customer must also ensure that the use or transfer of the goods covered by the contract does not serve any prohibited military or ar-mament-related purposes or such purposes requiring approval, unless the corresponding necessary approvals have been obtained.
- Insofar as it becomes necessary as a result of any inspections, the customer shall immediately provide DEKO-LIGHT upon request with all information regarding the final destination and recipient as well as the intended use of the goods delivered under the contract.
- The customer shall fully indemnify DEKO-LIGHT against all claims asserted due to non-compliance with the aforementioned export con-trol obligations and shall reimburse DEKO-LIGHT for any damages and expenses incurred as a result.
12. Place of performance, place of jurisdiction and applicable law
- The place of performance and place of jurisdiction for all claims and disputes arising from or in connection with the contractual rela-tionship is Karlsruhe, insofar as the customer is a businessperson, a legal entity under public law or a special fund under public law. How-ever, DEKO-LIGHT is also entitled to sue the customer at its regis-tered office and at any other permissible place of jurisdiction.
- The law of the Federal Republic of Germany shall apply to the ex-clusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
Version 2.0 (last updated: 1 August 2021)