General Terms and Conditions (GTC) of LED2WORK GmbH
§ 1 Scope of application
Business transactions with our customers and buyers (hereinafter collectively referred to as “Customers”), even if they are not mentioned in later contracts. Customers are exclusively businesses (“B2B”). The application of the customer’s general purchasing conditions or other general terms and conditions is hereby expressly excluded. Also excluded is the customer’s reference to their own Terms and Conditions, even if they contain Protective and/or Exclusivity Clauses which we have not expressly declined, regardless of the chronological order in which the competing conditions are referred to by the contracting parties, unless they have been approved in writing.
§ 2 Conclusion of Contract
- Our offers are subject to change. A purchase order from a customer is a binding offer. We can accept this offer at our option within four weeks by sending an order confirmation or the goods.
- The scope of delivery is based on our written confirmation. This also applies if a performance owed by us is to be effected according to the customer’s specifications, in particular according to a drawing supplied by the customer. A reference on our part to the DIN/ISO regulations and to other regulations is a statement of work and not an assurance of properties.
- If substantiated doubts subsequently arise about the customer’s creditworthiness, we are entitled to refuse the delivery until a security is provided or cash payment upon delivery is promised. If, despite being requested to do so within a reasonable deadline, the customer is not willing to provide a security deposit or pay cash, we are entitled to withdraw. Any claims for damages remain reserved.
- Verbal information and commitments on our part are only binding if and insofar as we confirm them in writing or respond to them by sending the goods and the invoice.
- However, the declarations contained in the order confirmation and/or in other documents exchanged between us and the customer about the characteristics of the goods do not constitute a guarantee as per Section 276 (1) of the German Civil Code, unless we have expressly stipulated this and also stated what success we guarantee.
- In case of obvious errors, typing and calculation errors in the documents submitted by us, there is no liability arising for us. The customer is obliged to inform us of such errors so that our order confirmation or invoice can be corrected. This also applies to any missing information/documents.
- The order number, customer number and invoice number stated in our order confirmation or invoice must be quoted when the invoice is paid and also in all correspondence from the customer relating to the order.
- If a declaration of acceptance was modified by the contractual partner, such partner is obliged to expressly point out the changes in its content. If there is no such express reference, our previous version shall prevail.
§ 3 Cancellation costs
If the customer unjustifiably withdraws from an order, we are entitled, without prejudice to the possibility of claiming a higher actual damage, to claim 10% of the sales price for the costs incurred during the processing of the order and for lost profit. The customer remains free to prove that the damage incurred is of a lesser value.
§ 4 Prices, price changes
- Our prices are generally stated in EURO, they are subject to VAT and they also do not include packaging and shipping costs.
- Unless otherwise stated in the order confirmation, our prices are ex works (EXW). Additional incidental fees, public levies and customs duties are not included.
- Price changes are permitted if there are more than four months between the conclusion of the contract and the agreed delivery date. If, after that, before the completion of the delivery, there is an increase or decrease in wages, raw material prices, other material costs, customs duties, taxes or other levies and freight rates or if they have been re-introduced, we are entitled to adequately increase or decrease the price in accordance with the cost changes. This also applies if a fixed price has been agreed. The customer is entitled to withdraw only if the price increase more than slightly exceeds the increase in the general cost of living between the time of ordering and delivery. If the customer is a merchant, a legal entity under public law or a special fund under public law, the price changes according to the aforementioned provision are permitted if there are more than six weeks between the conclusion of the contract and the agreed delivery date.
- The agreed prices apply only to the respective order. In the absence of other agreements, these prices are not binding for repeat orders.
§ 5 Terms of payment, offsetting
- Subject to other agreements, the purchase price or remuneration as well as the consideration for additional services are to be paid within 8 days of the invoice date. Insofar as we are entitled to make partial deliveries, such deliveries can be also accounted and made due and payable within a Uniform Delivery Contract by means of partial invoices.
- Performance occurs only after a payment has been received in our bank account.
- Payment orders, checks and bills of exchange are only accepted on account of performance. The acceptance of a bill of exchange always requires a prior written agreement with us. When accepting bills of exchange, the bank discounting and collection fees are charged. They are payable immediately in cash.
- Deductions for an early payment discount (Skonto), if agreed separately in writing, are only permissible if there are no payment arrears from the entire business relationship.
- We are entitled to offset payments first against the customer’s old debts. If costs and interest have already arisen, we are entitled to offset payments first against the costs, then against the interest and finally against the main performance.
- The customer may offset our claims only with undisputed or legally binding counterclaims.
- If defects are found, the customer is only entitled to withhold the purchase price to the extent that appears adequate in view of the defects.
- If the customer has not complied with the agreed terms of payment from previous performances or there are still payment arrears from them and/or the customer’s solvency is in question, we shall have the right to deliver the goods or to perform the service only after the customer has made the payment.
- Regardless of the duration of any accepted and credited bills of exchange, all claims become immediately due and payable if the payment terms are not met or we become aware of circumstances that are objectively suitable to reduce the creditworthiness of the customer. We shall then also have the right to carry out the outstanding deliveries only against an advance payment and to withdraw from the contract after a reasonable grace period or to demand damages on account of non-performance. We may also prohibit the resale and processing of the delivered goods and demand their return or the transfer of indirect ownership to the delivered goods at the expense of the customer and to revoke the collection authorization pursuant to § 7 (2).
- If, for whatever reason, difficulties arise when transferring the invoice amount to the Federal Republic of Germany, the resulting disadvantages shall be borne by the customer. For sales in foreign currency, the customer shall bear the exchange rate risk after the conclusion of the contract. If the agreed payment method or the payment channel cannot be adhered to, the customer is obliged to make the payments according to our choice.
§ 6 Default in payment
- The buyer defaults in payment if he does not make a payment on the date specified in the contract or fails to pay upon our reminder given after the purchase price has become overdue. The statutory provision that the debtor is automatically in default thirty days after receipt of an invoice remains unaffected.
- If the customer defaults in payment, we are entitled to demand interest, from the due date on, at a rate of five percentage points above the base rate, in case of legal transactions in which a consumer is not involved, interest at a rate of eight percentage points above the base rate. The legal regulation, according to which higher interest can be charged for another legal reason and the claim to further damages is not excluded, remains unaffected.
§ 7 Retention of title
- All delivered goods remain our property (Goods subject to retention of title) until all outstanding debts have been paid, in particular also the respective balance amounts which we are entitled to under the customer-supplier relationship. This also applies if payments are made for specifically designated outstanding debts.
- The goods delivered under retention of title must be treated with due care.
- The customer is entitled to resell the delivery item in the ordinary course of business as long as he properly meets his obligations towards us. However, already now, he hereby assigns to us all his claims that arise from such resale. The customer is authorized to collect such claim after its assignment. Our authority to collect the claim ourselves remains unaffected by this, however, we undertake not to collect the claim as long as the customer properly fulfils his payment obligations. If the customer defaults in payment, we shall have the right to request that the customer notify us of the assigned claim and its debtor, provide all the information necessary for collection, hand over the related documents and notify the debtor of the assignment.
- The processing or transformation of the goods by the customer is always carried out for us without any obligation arising from this for us. If a delivery item is processed with other items that do not belong to us, we acquire co-ownership of the new item in the ratio of the value of the delivery item to the other processed items at the time of processing.
- If a delivery item is inseparably mixed together with other items that do not belong to us, we acquire co-ownership of the new item in the ratio of the value of the delivery item to the other mixed items. The customer shall maintain the co-ownership for us free of charge.
- The customer may neither pledge the delivery items nor assign them as security. In case of seizures, confiscation or other dispositions by third parties, the customer must notify us without undue delay and provide us with all information and documents necessary to safeguard our rights. Execution officers or third parties are to be informed about our ownership.
- Execution officers or third parties are to be informed about our ownership.
- If a warehouse operator is involved, he shall be advised of our ownership before our goods are stored.
- We undertake to release, at the customer’s request, the securities to which we are entitled insofar as their value exceeds the outstanding debt to be secured by more than 20%.
- If retention of title or assignment is not effective under the law in whose area of application the goods are located, then the security corresponding to the retention of title or the assignment in this area shall be deemed to have been agreed. If the customer’s cooperation is required, he must take all measures necessary to establish and maintain such rights.
§ 8 Delivery dates, scope of delivery
- The agreed delivery periods and dates shall always be considered as approximate, unless a fixed date has been agreed in writing.
- The delivery period begins with the sending of the order confirmation, however not before all details of the execution have been clarified and all other requirements to be met by the customer have been met; The same applies to delivery dates. The delivery deadline shall be considered met if, before the deadline expired, readiness for dispatch has been announced or the delivery item has left the factory.
- The delivery period shall be extended in the event of industrial disputes, strikes and lockouts, official orders, material procurement and other technical difficulties, rejects and reworks, operations disruptions, lack of personnel and lack of means of transport as well as generally in the event of unforeseen obstacles over which we have no influence, according to the duration of such events. This also applies to delays in bindingly agreed periods and dates. This also applies if these circumstances occur with subcontractors. For the duration of the aforementioned impediments, no consequences of delay shall come into force, even if we had already been delayed when these circumstances first occurred. Even if the delivery period is exceeded, the customer remains obliged to take over the goods at the price valid on the day of delivery.
- Partial deliveries and partial services are generally permitted unless they unreasonably disadvantage the customer or the customer has excluded them in writing when the contract was made.
- Claims for damages on account of late delivery or late performance or non-delivery or non-performance are excluded unless they are based on gross negligence. Such claims shall be limited to the extra expenditures that are necessary for a purchase of replacement goods by the customer.
- In the case of call-off delivery contracts, unless otherwise agreed, we must be notified of binding quantities by a call-off order at least 3 months before the delivery date. Extra expenditures that are caused by our partner due to his late call-off order or subsequent changes of the call-off order with regard to its time or quantity shall be born by this partner; our price calculation shall be decisive in such case.
§ 9 Shipping, packaging
- As a rule, we deliver “Ex Works”. The goods are always dispatched for the account and risk of the customer, even in case of a carriage-free dispatch.
- Packaging, if any, shall be the property of the customer and will be charged by us in the absence of conflicting statutory provisions. Postage and freight costs as well as packaging expenses shall be invoiced separately. The choice of shipping method shall be made at reasonable discretion.
- The takeover by the carrier is proof of the perfect condition of the wrapping.
§ 10 Acceptance, transfer of risk
- The customer is obliged to accept the delivery item and to examine it immediately for any defects.
- If the customer deliberately or due to gross negligence falls behind with the collection or acceptance of the delivery item for more than fourteen days after the receipt of notification of its readiness for dispatch, we shall be entitled after a grace period of another fourteen days to withdraw from the contract and/or to claim damages. There is no need to set a grace period if the customer seriously or finally refuses the acceptance or it is clear that, even within such additional period, the customer is unable to pay the purchase price.
- The risk passes to the customer when the goods are handed over to the carrier.
§ 11 Defects, warranty
- As per Section 377 of the German Commercial Code (HGB), notices of defects are to be given immediately in writing, in case of obvious defects within seven days after delivery to the customer, and in case of hidden defects within three days of their discovery. A notice of defect, which was initially immediately given by the customer only verbally (over the phone), must be submitted in writing with a more detailed explanation within eight days of the verbal complaint at the latest. Upon delivery of the goods, the customer is obliged to examine them immediately for completeness.
- If the customer uses, applies or processes the delivered goods, this shall be construed as acceptance of the goods as well as the customer’s final waiver of claims arising from defects or otherwise from the delivery.
- Until a complaint has been settled, the faulty goods may not be changed without our consent. The customer is obliged to store the faulty goods with care, to keep them available for inspection and to provide us with a sample upon request. The customer is not entitled to reimbursement of storage or other costs.
- If special quality conditions have been imposed or if the goods are, on behalf of the customer, dispatched to another recipient or abroad, they must be checked and accepted in our factory prior to the dispatch on behalf of the customer. Otherwise, upon such dispatch, the goods shall be deemed delivered unconditionally.
- If the customer wishes us to carry out the necessary tests, he must inform us about this. The type and scope of the tests must be agreed before the contract is entered into.
- A deviation of up to 10% in the number of items is permissible per delivery.
- We do not guarantee the suitability for the intended use of the material we offer. Rather, with regard to the intended use, the customer is responsible for the appropriate construction taking into account the applicable safety regulations, choice of the raw material and of the necessary test procedures, correctness and completeness of the Technical Specifications for Deliveries and the technical documents and drawings handed over to us as well as for the execution of the provided manufacturing facilities, also when we propose changes that are approved by the customer.
- Furthermore, the customer is responsible for ensuring that property rights and other rights of third parties are not violated on the basis of his information. If a third party files a claim for damages against us and the cause of the damage is the responsibility of the customer, the customer shall indemnify us and hold us harmless against these claims.
- In case of defective goods, a replacement delivery or, if possible, rectification will be carried out at our option. The goods under complaint can only be sent back with our consent. Only our contractual partners are entitled to warranty rights. An assignment is excluded.
- The customer has the right to a reduction or the right of withdrawal if we were given an adequate grace period for supplementary performance (rectification of defects, subsequent delivery, procurement of spare parts) with regard to a defect within the meaning of these terms and conditions and the grace period has fruitlessly expired due to our fault, or if the subsequent performance has failed twice or is no longer reasonably acceptable for one of the parties.
- Liability for all and any damage is excluded insofar as the particular damage is not expressly named in the above provisions, also insofar as the damage has not occurred to the delivery item itself. Excluded from this provision shall be damage that has occurred due to intent or gross negligence on the part of our owners, executives or vicarious agents or that has resulted from culpable violation of essential contractual obligations. In the latter case, liability is only assumed for the typically occurring, foreseeable damage.
- The exclusion of liability shall also not apply in cases in which, in case of a defective delivery item, liability exist for injuries to life, limb or health or damage to property caused by privately used items. The exclusion of liability shall also not apply in the absence of guaranteed properties, provided that the purpose of that particular guarantee is to safeguard the customer against damage that has not occurred to the delivery item itself.
- The warranty period for newly delivered goods when properly used is for merchants 36 months after the transfer of risk to the buyer; for consumers the statutory warranty periods apply. In case of used items, warranty is excluded for merchants, for consumers it is limited to one year.
§ 12 Overall liability
- Any liability for damages beyond the scope defined in § 11 is excluded - regardless of the legal nature of the claim made. This applies in particular to claims for damages arising from culpa in contrahendo, due to other breaches of duty or due to tort claims for compensation for property damage in accordance with § 823 BGB.
- The limitation according to paragraph 1 also applies insofar as the customer, in place of claim for damages, instead of performance, demands reimbursement of useless expenses.
- Insofar as our liability for damages is excluded or limited, this also applies with regard to the personal liability for damages of our employees, workers, representatives and vicarious agents.
§ 13 Samples, tools
- If needed, the customer must deliver samples and tools to our factory with free packaging and shipping.
- If, according to templates provided by the customer, we produce samples and tools required for production, we require that the customer contribute to their manufacturing costs which we will communicate in the course of the contract negotiations and which we will invoice after release. Regardless of the proportion of manufacturing costs, we shall remain the owner of the tools so produced.
- For the samples and tools handed over to us, we only assume responsibility for proper use and storage. It is up to the owner to sufficiently insure the samples and tools against fire and water damage and against theft.
- Samples that have not been used for five years or longer shall become our property without requiring any special notification and if destroyed we shall be discharged from any liability for them.
§ 14 Place of jurisdiction, place of performance
- German law applies exclusively to all legal relationships between the customer and us, even if the customer is based abroad. The application of the UN sales law is expressly excluded.
- G The place of jurisdiction and place of performance for merchants is Pforzheim.
Version: November 2017