General Terms and Conditions of Sale, Delivery and Payment
of FH Lighting GmbH, 59755 Arnsberg
- 1 General, Scope of Application
(1) These General Terms and Conditions of Sale (GTC) apply to all our business relationships with our customers (hereinafter: "Buyer"). The GTC apply only if the Buyer is an entrepreneur (§ 14 German Civil Code (BGB)), a legal entity under public law, or a special fund under public law.
(2) Our GTC apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall become part of the contract only if and to the extent that we have expressly agreed to their validity. This consent requirement applies in any case, for example, even if we carry out the delivery to the Buyer without reservation, knowing the Buyer's GTC.
(3) Individual agreements made with the Buyer in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTC. A written contract or our written confirmation shall be decisive for the content of such agreements.
(4) Legally relevant declarations and notifications to be made by the Buyer to us after conclusion of the contract (e.g., setting of deadlines, notices of defects, declaration of withdrawal or reduction) require written form to be effective.
- 2 Conclusion of Contract
(1) Our offers are subject to change and non-binding. This also applies if we have provided the Buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve proprietary and copyright rights.
(2) The order of the goods by the Buyer is considered a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 14 days of its receipt by us.
(3) Acceptance can be declared either in writing (e.g., by order confirmation) or by delivery of the goods to the Buyer.
(4) All agreements made with our representatives in any form whatsoever are considered an offer to our company within the meaning of § 2 para. 1 of these GTC and require written confirmation by us. The representatives are not authorized to act in the name and on behalf of our company. Furthermore, § 2 para. 2 and 3 apply mutatis mutandis.
(5) Our representatives are not authorized to collect payments.
- 3 Delivery Period and Delay in Delivery
(1) The delivery period is only binding for us if it is individually agreed.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (unavailability of performance), we will inform the Buyer immediately and at the same time communicate the probable new delivery period. If the service is not available even within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already provided by the Buyer. A case of unavailability of performance in this sense is, in particular, the untimely self-delivery by our supplier, if we have concluded a congruent hedging transaction. Our statutory rights of withdrawal and termination as well as the statutory provisions on the handling of the contract in the event of an exclusion of the obligation to perform (e.g., impossibility or unreasonableness of performance and/or supplementary performance) remain unaffected. The Buyer's rights of withdrawal and termination pursuant to § 8 of these GTC also remain unaffected.
(3) The commencement of our delay in delivery is determined by the statutory provisions.
- 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Delivery is always ex works, excluding packaging, with delivery charges applied. For truck shipments, a delivery charge of 5% of the net order value will be calculated. Postal shipments are generally sent freight collect. Shipment is always at the recipient's risk, even if freight-free delivery is made in exceptional cases.
(2) If the Buyer has not provided any shipping instructions, we will choose the cheapest transport route determined to the best of our knowledge. A surcharge of 1% of the net merchandise value will be levied for internal packaging. Carton and package packaging will be invoiced at cost. Carton and package packaging cannot be returned. A deduction for cartons or internal packaging is excluded.
(3) If the Buyer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs). For this purpose, we charge a lump-sum compensation of 3.5% of the net price (delivery value) for each commenced calendar week of default of acceptance from this point in time, but not more than 30% of the delivery value in total. Our claim for lump-sum compensation arises either upon the expiry of the agreed delivery date due to the customer's fault, otherwise upon the expiry of a deadline to be set for the customer for acceptance, but at the latest at the moment when the customer has definitively and seriously refused acceptance.
- 5 Prices and Terms of Payment
(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply, ex works, plus statutory value-added tax.
(2) If a delivery period of more than 4 weeks is agreed, we are entitled to pass on to the Buyer any cost increases occurring in the interim for procurement, manufacturing, delivery, installation or similar, including those caused by changes in law (e.g., increase in value-added tax), to a corresponding extent.
(3) Please refer to the invoices for our terms of payment.
The Buyer shall be in default upon expiry of the payment period stated on the invoices.
(4) During the default, the purchase price shall bear interest at the applicable statutory default interest rate. We reserve the right to assert further damages caused by default. Our claim to commercial maturity interest (§ 353 HGB) remains unaffected towards merchants.
(5) The Buyer is entitled to set-off or retention rights only insofar as its claim has been legally established, is undisputed, or is ready for a legally binding decision, unless its counterclaims are in a synallagmatic relationship.
(6) If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the Buyer's lack of solvency (e.g., by filing for insolvency proceedings), we are entitled to refuse performance in accordance with the statutory provisions and – if necessary, after setting a deadline – to withdraw from the contract (§321 BGB). In contracts for the manufacture of non-fungible goods (custom-made products), we can declare withdrawal immediately; the statutory regulations regarding the dispensability of setting a deadline remain unaffected.
- 6 Retention of Title
(1) We reserve title to the sold goods until full payment of all our present and future claims arising from the purchase contract and a current business relationship (secured claims).
(2) The goods subject to retention of title may not be pledged to third parties or transferred as security before full payment of the secured claims. The Buyer shall immediately notify us in writing if and to the extent that third parties gain access to the goods belonging to us.
(3) In the event of breach of contract by the Buyer, in particular non-payment of the due purchase price, we are entitled, in accordance with statutory provisions, to withdraw from the contract and/or demand the return of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; rather, we are entitled to merely demand the return of the goods and reserve the right to withdraw. If the Buyer does not pay the due purchase price, we may only assert these rights if we have previously unsuccessfully set the Buyer a reasonable deadline for payment or if such a deadline is dispensable according to statutory provisions.
(4) The Buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the products created by processing, mixing or combining our goods to their full value, whereby we are considered the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their ownership rights remain, we acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us as security all claims arising from the resale of the goods or the product against third parties, or, if applicable, in the amount of our co-ownership share in accordance with the preceding paragraph. We accept the assignment. The Buyer's obligations mentioned in para. 2 also apply with regard to the assigned claims.
(c) The Buyer remains authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer fulfills its payment obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed, and there is no other deficiency in its ability to perform. However, if this is the case, we may demand that the Buyer informs us of the assigned claims and their debtors, provides all necessary information for collection, hands over the related documents and notifies the debtors (third parties) of the assignment.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the Buyer's request.
- 7 Buyer's Claims for Defects
(1) For the Buyer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or faulty assembly instructions), the statutory provisions apply, unless otherwise specified below. In all cases, the statutory special provisions for final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB) remain unaffected.
(2) The basis of our liability for defects is primarily the agreement made about the quality of the goods. All product descriptions that are the subject of the individual contract are considered an agreement on the quality of the goods; it makes no difference whether the product description originates from the Buyer, the manufacturer or us.
(3) Insofar as the quality has not been agreed upon, it shall be assessed according to the statutory provisions whether a defect exists or not (§ 434 para. 1 S 2 and 3 BGB). However, we assume no liability for public statements by the manufacturer or other third parties (e.g., advertising statements).
(4) The Buyer's claims for defects presuppose that he has complied with his statutory duties to inspect and give notice of defects (§§ 377, 381 HGB). If a defect appears during the inspection or later, we must be notified immediately in writing. The notification is deemed immediate if it is made within ten days, whereby timely dispatch of the notification is sufficient to meet the deadline. Regardless of this duty to inspect and give notice of defects, the Buyer must notify us in writing of obvious defects (including incorrect and short delivery) within ten days of delivery, whereby timely dispatch of the notification is also sufficient to meet the deadline. If the Buyer fails to properly inspect and/or give notice of defects, our liability for the defect not reported is excluded.
(5) If the delivered item is defective, we can initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse the chosen type of subsequent performance under the statutory conditions remains unaffected.
(6) We are entitled to make the owed subsequent performance dependent on the Buyer paying the due purchase price. However, the Buyer is entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) The Buyer must give us the time and opportunity necessary for the owed subsequent performance, in particular to hand over the complained goods for inspection purposes. In the case of replacement delivery, the Buyer must return the defective item to us in accordance with the statutory provisions.
(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, if a defect actually exists. If, however, a demand for defect removal by the Buyer proves to be unfounded, we can demand reimbursement of the costs incurred therefrom from the Buyer.
(9) In urgent cases, e.g., in the event of a threat to operational safety or to avert disproportionate damage, the Buyer has the right to remedy the defect itself and to demand reimbursement from us of the objectively necessary expenses incurred thereby. We must be notified immediately of such self-remedy, if possible beforehand. The right of self-remedy does not exist if we would be entitled to refuse corresponding subsequent performance according to the statutory provisions.
(10) If the subsequent performance has failed or an appropriate period to be set by the Buyer for subsequent performance has expired unsuccessfully or is dispensable according to statutory provisions, the Buyer can withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal for an insignificant defect.
(11) Claims of the Buyer for damages or reimbursement of futile expenses exist only in accordance with Section 8 and are otherwise excluded.
- 8 Other Liability
(1) Unless otherwise stated in these GTC, including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages – regardless of the legal reason – in cases of intent and gross negligence. In cases of simple negligence, we shall only be liable
- a) for damages resulting from injury to life, body or health,
- b) for damages resulting from the breach of an essential contractual obligation (an obligation whose fulfillment enables the proper execution of the contract in the first place and on whose observance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 do not apply if we have fraudulently concealed a defect or have given a guarantee for the quality of the goods. The same applies to claims of the Buyer under the Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the Buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular according to §§ 650, 648 BGB) is excluded. Otherwise, the statutory prerequisites and legal consequences apply.
- 9 Statute of Limitations
(1) Deviating from § 438 para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.
(2) If, however, the goods are a building or an item that has been used for a building in accordance with its usual purpose and has caused its defectiveness (building material), the limitation period is 5 years from delivery according to the statutory regulation (§ 438 para. 1 No. 2 BGB). Statutory special regulations for real property claims of third parties (§ 438 para. 1 No. 1 BGB), in the event of fraudulent concealment by the seller (§ 438 para. 3 BGB), and for claims in supplier recourse in the event of final delivery to a consumer (§ 479 BGB) also remain unaffected.
(3) The foregoing limitation periods of the sales law also apply to contractual and non-contractual claims for damages of the Buyer based on a defect in the goods, unless the application of the regular statutory limitation periods (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act remain unaffected in any case. Otherwise, the statutory limitation periods apply exclusively to claims for damages of the Buyer pursuant to § 8.
- 10 Choice of Law and Jurisdiction
(1) These GTC and all legal relationships between us and the Buyer shall be governed by the laws of the Federal Republic of Germany, to the exclusion of all international and supranational (contractual) legal systems, in particular the UN Sales Convention. However, the prerequisites and effects of the retention of title pursuant to § 6 are subject to the law at the respective location of the goods, insofar as the chosen choice of law in favor of German law is inadmissible or ineffective thereafter.
(2) If the Buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Arnsberg. However, we are also entitled to bring an action at the Buyer's general place of jurisdiction.
Status: 06/2022