General terms and conditions
1. general / scope
These terms and conditions apply between us and natural and legal persons (short client) for the present legal transaction. Conflicting conditions or conditions deviating from this legal transaction will not be recognized, even if we do not expressly object to them after receipt by us. This also applies to letters of confirmation from the client or comparable declarations, measures or actions.
2. Conclusion of Contract
2.1 Our offers are subject to change. Changes in design, technology, shape, color and / or weight are reserved by us within reason.
2.2 The contract is deemed concluded when we have sent the written order confirmation. Changes require our express written confirmation to be valid.
2.3 As far as partial deliveries are reasonable for the client, these are permissible. The client has, if points are to be observed in this respect, before the conclusion of the contract explicitly in writing, otherwise he can not invoke.
Translated with www.DeepL.com/Translator (free version)3. prices, shipment, terms of payment and set-off
3.1 The price quotations are exclusive of the applicable statutory VAT and ex works. Packaging, transport, loading and shipping costs are generally to be borne by the customer.
3.2 Our prices are based on the relevant cost factors at the time of submission of the offer or our order confirmation. If these cost factors change between the time of the conclusion of the contract and the time of delivery of the goods, we are authorized, if the delivery is to be provided later than 4 months after the conclusion of the contract, to change the price in reasonable proportion to the increased costs.
3.3 In addition to the agreed remuneration, all necessary ancillary costs (travel and transport costs, etc.) are to be paid by the client himself. If the client orders to take over the shipment of the goods for him, this happens separately and without assumption of the risk of use. The client himself is responsible for all costs of freight, transport or shipping.
3.4 With the billing all payments are to be made immediately and paid at the latest within the payment period stated on the invoice. A cash discount requires an explicit written agreement.
If the client violates the agreed payment terms, he shall pay interest on the invoice amount at 8% points above the respective prime rate. Likewise, he has to pay a cost of 5€ for each reminder. However, the assertion of higher interest or further damages for another legal reason are not excluded.
3.5 It is only possible for the client to set off with such claims that are undisputed or legally binding and based on the same contractual relationship. The same applies accordingly to rights to refuse performance or other rights of retention.
3.6 If, after submission of our offer or after our order confirmation has been sent, changes occur in the economic circumstances of our client, which lead to doubt the fulfillment of his payment obligations, we have the right to hold the delivery or to make it dependent on the prior provision of appropriate security. If the customer does not meet the demand for security within a reasonable period of time, we shall be entitled to withdraw from the contract; in this case we shall be entitled to demand the price agreed for the order less the expenses saved as a result of the withdrawal. However, this does not exclude the claim for further damages.
4. Retention of Title
4.1 The delivered goods remain our property (reserved goods) until full payment of all outstanding claims from the entire business relationship and the customer is obliged to store those reserved goods separately, insofar as the contractual agreements do not contradict this.
If the value of all security rights to which we are entitled exceeds the amount of all secured claims by more than 10%, we shall release a corresponding part of the security rights at the request of the Customer; the Supplier shall have the option to choose between the various security rights when releasing them.
4.2 The Customer is prohibited from reselling, pledging or assigning the reserved goods as security without our consent during the existence of the reservation of title. Consent shall be granted if all claims against the purchaser are assigned to us by way of security, there are no prior assignments of these claims to third parties and, on a rough assessment, there is no risk for us to successfully realize our claims against the customer and/or the purchaser.
The customer shall notify the supplier immediately in the event of attachments, seizures or other dispositions or interventions by third parties.
Translated with www.DeepL.com/Translator (free version)4.3 In the event of breaches of duty by the Customer, primarily in the event of default in payment, we shall be entitled to withdraw from the contract in addition to taking back the goods following the unsuccessful expiry of a reasonable deadline set for the Customer to perform; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The Customer shall be obliged to surrender the goods without being entitled to assert a claim of interference with possession against us.
The taking back or the assertion of the reservation of title or the seizure of the goods subject to reservation of title by us shall not yet constitute a withdrawal from the contract unless the Supplier has expressly declared this.
5. Deadlines for Deliveries; Delay Delivery Deadlines
5. 1 The delivery periods and dates specified by us are non-binding, unless we have explicitly assured binding delivery periods or dates in writing.
5.2 The observance of deadlines for deliveries requires the timely receipt of all documents to be provided by the customer, necessary approvals and releases, primarily plans, technical documents, as well as compliance with the agreed payment terms and other contractual obligations by the customer. If these prerequisites are not fulfilled in time, the deadlines shall be extended appropriately; however, this shall not apply if we are responsible for the delay.
5.3 The delivery deadlines shall be extended appropriately in the event of force majeure (e.g. mobilization, war, riot) as well as in the event of the occurrence of unforeseen obstacles (e.g. strike, lockout). The same shall come into effect if we are not supplied by our suppliers in due time or in due form.
5.4 In the event of a delay in the performance of the contract by us, the customer shall be entitled to withdraw from the contract after setting a reasonable grace period. The setting of the grace period must be in writing. Further claims for damages are excluded – as far as permissible. If the delay was caused by default on the part of our suppliers, we can refer the customer to liquidate his damage by assigning the claims to which we are entitled in this respect to this third party.
5.5 Upon request, the customer is obliged to inform us within a reasonable period of time whether he is withdrawing from the contract due to the delay in delivery or whether he insists on the delivery.
6. transfer of risk/acceptance
6.1 The risk shall pass to the customer if we have stored the reserved goods for dispatch, freight or transport separately from our other goods ex our works. Any assumption of freight, transport or shipment does not change this. The claims of the customer for damage caused by freight, transport or shipping are limited to the liability claims against the carrier commissioned.
6.2 The customer is obliged to accept our goods. Due to insignificant defects, he may not refuse to accept deliveries. Any use of the ordered service without objection shall be deemed acceptance.
7.1 The statutory warranty shall apply.
Any liability is limited in amount – as far as permissible – to the extent of our liability insurance. We are not obliged to have liability insurance that covers more than standard market liability risks. If the client desires higher insurance coverage, it is up to him to procure it at his own expense.
7. 2 We shall be liable for material defects as follows:
All parts or services that have a proven material defect shall, at the discretion of the supplier, be repaired, redelivered or provided again free of charge within the warranty period if the cause of the material defect already existed at the time of acceptance but was unknown at that time.
Excluded is a liability for wear and spare parts and for the case of abuse or misuse of the delivery item by the client or by third parties. Likewise, liability for indirect, consequential or incidental damages of the client due to loss of production, business interruption or lost profits is excluded.
7.3 In the event of warranty, claims for subsequent performance shall become statute-barred in 12 months from the statutory commencement of the limitation period. The same applies to the withdrawal and reduction. This period does not apply insofar as the law according to § 438 para 1 No. 2 (buildings and things for buildings), 479 para 1 (right of recourse) and 634a para 1 No. 2 (construction defects) BGB prescribes longer periods and in case of intent, fraudulent concealment of the defect and non-compliance with a quality guarantee. The statutory provisions on suspension of expiry, suspension and recommencement of the periods shall remain unaffected.
7.4 Detected defects of the customer shall be made immediately in writing, stating the type and extent of the defect. If this does not occur, § 377 UGB shall apply.
7.5 In the event of notices of defects, payments of the client may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The Client may withhold payments only if a notice of defect is asserted about whose justification there is no doubt.
If the Client’s claims for defects are time-barred, there shall be no right of retention. If the notice of defect was unjustified, we shall be entitled to demand reimbursement from the Customer for the expenses incurred by us as a result of or in connection with the notice of defect.
7.6 We shall be given the opportunity to remedy the defect within a reasonable period of time. For the assessment of the reasonable period, any usual delivery times of the upstream suppliers or the usual production and delivery times shall be taken into account.
7. 7 Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or which arise due to special external influences which are not assumed under the contract, as well as in the case of non-reproducible software errors. If improper modifications or repair work are carried out by the customer or by third parties, there shall also be no claims for defects for these and the consequences arising therefrom.
.7.8 Claims of the Customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the object of the delivery has subsequently been taken to a place other than the Customer’s branch office, unless this transfer corresponds to its intended use.
7.9 Recourse claims of the Customer against us pursuant to § 478 BGB (recourse of the entrepreneur) shall only exist to the extent that the Customer has not entered into any agreements with its customer exceeding the statutory claims for defects.
7.10 Excluded are – to the extent permissible – claims for damages of the Customer due to a material defect. In particular, if the order has not been subjected to any functional and product testing by the Client or its customers prior to installation or use, there shall be no claims for damages.
In the event of fraudulent concealment of the defect, non-compliance with a guarantee of quality, injury to life, limb, health or freedom and in the event of an intentional or grossly negligent breach of duty by the Supplier, however, the above restriction shall not apply. A change in the burden of proof to the detriment of the Customer is not associated with the above provisions. Further claims of the Customer due to a material defect are excluded.
For any claims for damages, a maximum limitation period of 12 months from acceptance shall apply. Mere product specifications do not constitute a guarantee of quality.
In the event of liability, we shall be granted reasonable periods to remedy the proven defect. The customer may have the defect remedied at our expense or reduce the agreed remuneration appropriately, insofar as he suffers a mercantile reduction in value due to the defect in relation to the defectively delivered service, if the remedying of the defect fails despite repeated attempts to remedy the defect. Further claims are excluded.
7.11 Lighting design and profitability calculation
In the light calculations, it is assumed that the beam angle of the luminaires without obstruction meets the surface to be illuminated, since an obstruction of the luminous flux can negatively affect the calculations. We request that you disclose structural conditions prior to the lighting design so that these can be included in the lighting design and calculation. The presented light planning and corresponding profitability calculation are rough plannings. tempLED GmbH does not assume liability for the correctness of the data. Detailed planning and calculations we can offer.
8. Property rights of third parties; confidentiality
8.1 The client warrants that the manufacture and distribution of goods, which we manufacture and supply according to the specifications of our customer / client, in particular drawings, samples or models, do not infringe upon the property rights of third parties.
8.2 If a third party prohibits us from manufacturing or supplying goods or services manufactured according to the customer’s specifications by invoking an alleged property right belonging to him, we shall be entitled, without being obliged to examine the legal situation, to withdraw from the contract to the exclusion of all claims of the customer. In this case, we shall be entitled to demand the agreed price less the expenses saved as a result of the withdrawal.
– Our customer shall compensate us for all direct and indirect damages and indemnify us against all direct and indirect claims for damages by third parties, without us being obliged to examine the legal situation. Upon our request, our client shall provide adequate security within a reasonable period of time.
8.3 All documents and information provided in connection with the contract shall be treated confidentially by the client or recipient and require our prior written consent for use and exploitation outside the subject matter of the contract. This also applies if the contractual relationship has been terminated.
We reserve the copyright to all documents (elaborations, drawings, calculations, programs, tables, diagrams, etc.).
.9. impossibility; contract adjustment
9.1 In the event of impossibility of delivery, the customer shall be entitled to claim damages. This does not apply if we are not responsible for the impossibility. However, the customer’s claim for damages shall be limited to 10% of the value of that part of the delivery which cannot be put into useful operation due to the impossibility. This limitation shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health; this shall not entail a change in the burden of proof to the detriment of the Customer. The Customer’s right to withdraw from the contract shall remain unaffected.
9.2 If unforeseeable events significantly change the economic significance or the content of the delivery or have a significant effect on our business, the contract shall be adjusted appropriately in good faith. Insofar as this is not economically justifiable, we shall be entitled to withdraw from the contract.
10. Other Claims for Damages; Statute of Limitations
10.1 Claims for damages by the Customer, irrespective of the legal grounds, in particular for breach of duties arising from the contractual obligation and from tort, shall be excluded – insofar as legally permissible.
This does not apply if liability is mandatory, e.g. under the Product Liability Act, in cases of intent, gross negligence, due to injury to life, limb or health or due to the breach of essential contractual obligations. However, the claim for damages for breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, unless caused by intent or gross negligence or based on liability for injury to life, body or health. A change in the burden of proof to the disadvantage of the Client is not associated with the above provisions.
10.2 Claims for damages by the Client shall expire upon expiry of the limitation period of 12 months pursuant to Section 7.1. The same shall apply to claims of the Customer in connection with measures to avert damage (e.g. recall actions). In the case of claims for damages under the Product Liability Act, the statutory limitation provisions shall apply.
11. Place of jurisdiction and applicable law
11.1 It is agreed that the place of jurisdiction shall be the court having subject-matter jurisdiction for the registered office of our company. Notwithstanding the above, we are entitled to sue the client at his general place of jurisdiction.
11.2 The legal relations in connection with this contract shall be governed exclusively by German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the national conflict of laws provisions.
12.1 Should individual provisions of these GTC be invalid, this shall not affect the validity of the remaining parts. This does not apply if adherence to these GTC would represent an unreasonable hardship for one party. The wholly or partially invalid provision shall be replaced by a corresponding agreement that comes as close as possible to the economic content and objective of the invalid provision or the invalid part.
12.2 Supplements and/or amendments to the scope of delivery and services must be in writing to be valid. This also applies to the amendment of these General Terms and Conditions.
12.3 The values of tempLED luminaires for luminous flux, light distribution and beam angle stated in the data sheets are based on measurements by means of a goniophotometer.