Conditions of sale and delivery (effective date: october 2015)
1. The following conditions shall apply exclusively to all goods and services supplied by Reiss Lighting GmbH (hereinafter referred to as the “Supplier”). In case of a permanent business relationship, the conditions shall also apply to all future deliveries and services. The Purchaser's General Terms and Conditions shall be binding on the Supplier only if expressly acknowledged by the Supplier in writing.
2. The Supplier reserves his proprietary rights and copyrights, without restriction, to cost estimates, drawings and other documents. The documents may be disclosed to third parties only with the Supplier's explicit prior consent, and must be returned to the Supplier without delay if the order is not awarded to the Supplier.
3. If individual provisions of these conditions should be or become invalid, this shall not affect the validity of the remaining provisions.
II. Offer and Acceptance
1. Quotations submitted by the Supplier shall always be without engagement. Oral ancillary agreements shall always be confirmed in writing by the Supplier in order to be legally valid.
2. The Purchaser's order shall be binding on the Supplier only when confirmed in writing by the Supplier, which may also be in the form of a delivery note or invoice.
III. Prices and Payment
1. Prices are quoted ex works excluding freight, customs charges and packaging, plus statutory value added tax at the applicable rate. Unless a fixed price has been expressly agreed, prices shall be binding on the Supplier until the delivery date indicated in the order confirmation. If no such delivery date is indicated, the Supplier shall be bound to the prices agreed for three months from the date of order confirmation. Thereafter the Supplier shall be entitled to adjust prices accordingly in the event of cost increases. This shall not apply in the event of delay in delivery on the part of the Supplier.
2. The Purchaser may only offset claims that are uncontested or that are recognized by declaratory judgement. If the payment deadline is exceeded, interest shall be charged at the rate of 8 % above the applicable base rate unless the Supplier can substantiate higher interest charges.
3. The Supplier's claims shall become due immediately in the event of failure to adhere to the payment terms, or in case of circumstances suitable to reduce the creditworthiness of the Purchaser. The Supplier shall also be entitled to demand advance payment for deliveries still outstanding, and to withdraw from the contract after expiry of a reasonable period of grace or to demand damages for non-performance.
4. Cheques or eligible bills shall be accepted only on account of performance, and all associated costs shall be borne by the Purchaser.
IV. Retention of Title
1. All goods or services supplied shall remain the property of the Supplier until all the Supplier's claims vis-à-vis the Purchaser have been satisfied, even if the purchase price has been paid for specifically designated claims. In case of outstanding accounts, the retained ownership of goods and services (goods subject to retention of title) shall be deemed a security for the Supplier's balance invoice.
2. Any treatment or processing of the goods subject to retention of title by the Purchaser shall not entail the acquisition of ownership under Section 950 of the German Civil Code on behalf of the Supplier; the Supplier shall retain ownership of the resultant item of property, which shall serve as goods subject to retention of title to secure the Supplier's claims under Point 1.
3. When the item is processed by the Purchaser with other items that do not belong to the Supplier, the provisions of Sections 947 and 948 of the German Civil Code shall apply, so that the Supplier's joint ownership of the new item now constitutes goods subject to retention of title for the purposes of this provision.
4. The Purchaser shall be permitted to resell the goods subject to retention of title only in the course of normal business and on the condition that it likewise agrees with its customer a retention of title as per Points 1 to 3. The Purchaser shall not be entitled to any other authority to dispose of the goods subject to retention of title, especially pledging or transferring them by way of security.
5. In the event of resale, the Purchaser hereby assigns to the Supplier the claims due to it from the resale or other claims on his customers, with all subsidiary rights, until all the Supplier's claims have been satisfied. At the Supplier's request, the Purchaser shall be obliged to immediately give the Supplier all information and hand it all documents necessary to assert the rights of the Supplier in respect of the Purchaser's customer.
6. If the goods subject to retention of title are resold by the Purchaser after processing as set out in Points 2. and/or 3., or are resold together with other goods not belonging to the Supplier, assignment of the purchase price claim as set out in Point 5. shall apply only to the invoice value of the Supplier's goods subject to retention of title.
7. If the value of the security granted to the Supplier exceeds the total claim by more than 20 %, the Supplier shall be obliged, upon the Purchaser's request, to release security to that extent at the Purchaser’s discretion.
8. If the Supplier uses the retention of title by repurchasing the goods subject to retention of title, it shall be entitled to sell these goods in the open market or have them auctioned off. Repurchase of the goods subject to retention of title, which shall not be considered withdrawal from the contract, shall be effected at the proceeds realized, at an amount not exceeding the price agreed. The Supplier shall reserve the right to assert further claims for damages.
9. The Supplier shall be notified immediately of any attachment or seizure of the goods subject to retention of title by any third party. Any resultant intervention costs shall at all events be borne by the Purchaser.
V. Delivery and Acceptance Obligations
1. The delivery deadline shall commence as soon as all documents, necessary approvals and acceptances, especially drawings, plus an agreed down payment have been provided by the Purchaser. Unless fixed delivery dates have been explicitly agreed, all delivery deadlines and dates shall apply subject to a tolerance period of four weeks. The delivery deadline shall be regarded as adhered to if the delivery item has been dispatched from the Supplier's works or warehouse before expiry of the deadline and/or if the Supplier has notified its readiness to deliver. Partial deliveries shall be permitted.
2. If failure to meet delivery deadlines is attributable to force majeure events, e.g. mobilisation, war, insurrection or similar events such as strikes or lockouts, the deadlines shall be extended accordingly. This shall also apply in case of the Supplier's failure to provide itself with raw materials or necessary materials, any action by official bodies, energy and raw material problems and the like that could not be foreseen by the Supplier and for which it cannot be held responsible.
3. If a delivery deadline is not adhered to by the Supplier, even after expiry of a reasonable period of grace, the Purchaser shall be entitled – unless this was caused intentionally or by gross negligence on the part of the Supplier – to demand compensation for default or withdraw from the contract; no additional claims by the Purchaser shall be admissible.
4. In the event of delayed acceptance by the Purchaser, the Supplier shall be entitled to charge storage in the amount of 0.5 % of the value of the goods delivered for each month or part thereof.
VI. Dispatch and Transfer of Risk
1. The Supplier shall choose the packaging and type of dispatch to the best of its judgement.
2. In the event of collection or of delivery free of charge, the risk of damage, loss or destruction of the goods shall also pass to the Purchaser when the consignment leaves the Supplier's works or warehouse. In the event of any delay in dispatch or collection for which the Purchaser is responsible, the risk shall transfer upon notification that the consignment is ready for shipment. At the Purchaser's written request, the goods shall be insured at the Purchaser's expense for storage, breakage and transport damage.
VII. Material Defects and Guarantee (Supplementary Performance)
1. Unless the Purchaser is the consumer, the Supplier shall be liable for a period of 24 months from the date of delivery. Claims of any kind beyond claims for material defects, in particular for damages/reimbursement of expenses, compensation for consequential loss and consequential damage due to defects, as well as lost profit, shall be excluded, unless they were caused by the Supplier intentionally or by gross negligence. Liability for slight negligence shall be excluded. The scope of liability shall be restricted to damage typically foreseeable by the Supplier. This restriction of liability shall not apply in case of death, bodily injury or damage to health, claims under product liability law or other mandatory statutory liability claims.
2. Parts subject to wear in normal operation and whose service life under proper conditions of use may be shorter than the guarantee period shall not be covered by the guarantee period. Colour divergences and tolerances in material thickness of plastic parts shall not be covered by the guarantee, unless an explicit quality agreement has been concluded. These are related to production and do not constitute quality defects. The Supplier shall warrant the resistance of plastic components to chemical impact of any kind only following an express written statement of suitability.
3. In the case of obvious defects, complaints shall be lodged in writing immediately, within 5 working days of receipt of the delivery at the latest. In the case of hidden defects, complaints shall be lodged in writing within 5 working days after detecting them, 24 months after delivery at the latest.
4. In the event of a justified and timely complaint, defective goods shall be rectified or replaced at the discretion of the Supplier. The Supplier shall be entitled to refuse rectification of a defect if the costs of rectification would amount to twice the item's purchase price. In that case, the Purchaser may only demand delivery of a zero-defect item.
5. If the Supplier fails to rectify the defect within a reasonable period of grace set in writing by the Purchaser, the Purchaser shall at its discretion be entitled to demand cancellation of the contract (redhibition, Wandlung) or reduction of the purchase price (Minderung). No further claims shall be admissible, especially for compensation for consequential loss.
VIII. Property Rights
1. In the absence of an agreement to the contrary, the Supplier shall be obliged to effect the delivery free of industrial property rights and third-party copyrights (hereinafter referred to as property rights), in the country of the place of delivery exclusively. If a third party asserts legitimate claims against the Purchaser on account of infringement of property rights by goods or services provided by the Supplier that are used in compliance with the contract, the Supplier shall be liable to the Purchaser as follows.
2. The Supplier shall at its discretion either obtain a right of use for the goods or services concerned, modify them so that the property right is not infringed, or replace them. If the Supplier is not able to do this on reasonable terms, the Purchaser shall be legally entitled to withdraw from the contract or receive a price reduction.
3. The obligations of the Supplier specified above shall prevail only provided the Purchaser notifies the Supplier immediately in writing of any claims asserted by third parties, if no infringement is acknowledged, and if all defensive measures and conciliation negotiations are reserved by the Supplier. If the Purchaser stops using the goods or services supplied for reasons of loss reduction or other good reasons, it shall be obliged to point out to the third parties that suspending such use shall not entail any admission of a property right infringement.
4. No claims by the Purchaser shall be admissible if it is responsible for the property right infringement. Neither shall any claims by the Purchaser be admissible if the infringement of the property rights is caused by special stipulations of the Purchaser, by an application the Supplier could not foresee, or by the goods or services supplied being modified by the Purchaser, or used by the Purchaser together with products not supplied by the Supplier.
IX. Data Protection
Details provided by the Purchaser in the context of the conclusion and administration of contracts shall be stored in compliance with the relevant legal provisions.
X. Place of Performance, Place of Jurisdiction, Governing Law
1. The place of performance shall be D-88046 Friedrichshafen.
2. If the Purchaser is a merchant, a legal entity under public law, or a special fund under public law, the place of jurisdiction (also for actions on dishonoured bills and cheques) shall at the Supplier's discretion be Friedrichshafen or the competent court at the Purchaser's principal place of business.
3. Legal relations between the contracting parties shall exclusively be governed by German law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict of law rules.