Standard terms and conditions of business
Section 1 Scope of the Conditions
1. These standard terms and conditions of business shall be applicable to all business relations present or in the future. They are, moreover, applicable to all follow-up transactions as well as any business transactions made in connection with the contract.
2. For the purposes of these standards terms and conditions of business, Private Customers are defined as natural persons who enter into a business relationship without any commercial or otherwise independently self-employed purposes attached thereto.
3. For the purposes of these standards terms and conditions of business, Commercial Customers are defined as natural or legal persons who/which enter into the business relationship for the purposes of carrying on a commercial or self-employed operation.
4. For the purposes of these standards terms and conditions of business, Customers are either private or commercial.
5. Purchasing and other conditions of the Customer shall only be applicable insofar as they do not contradict the conditions set out here below. This shall continue to be the case even where the Seller makes a delivery without reservation having knowledge that there exist conflicting or contradictory conditions originating from the Customer.
6. Special agreements and other ancilliary terms shall not be valid except where these have been expressly agreed to, in writing, by the Seller.
Section 2 Offers, Agreements and Lighting designs
1. Offers made by the Seller, including material associated with the offers such as catalogues, illustrations, drawings and details relating to weight and dimensions, are non-binding and subject to confirmation. Samples and specimens shall be regarded as non-binding samples for inspection.
The submission of offers entails no obligation to accept orders. Orders placed shall not be understood as having been accepted until written confirmation has been received. This includes orders made electronically. Confirmation of receipt does not constitute an agreement to fulfil the order.
Where the Private Customer orders goods electronically, the text of the agreement will be stored and sent to the Customer via email, on demand, together with the standard terms and conditions of business as set out here.
2. The Seller shall be entitled to refuse delivery of articles specified in the order or ordered in writing or by telephone, but not available, or to make a different delivery, provided such action corresponds with the likely wish of the Customer. The same shall apply in cases of obvious writing or typing errors. The Seller further reserves the right to make alterations even after the sending of the confirmation of order, provided such alterations do not result in any impairment in quality, performance, price, function or delivery time.
3. Additions, amendments and other ancillary agreements are not, moreover, legally effective unless the Seller has given his agreement in writing, by post, fax, telex etc.
4. The Seller reserve the right to make design and structural alterations at any time.
5. The Seller´s assembly instructions and technical information, which are for the purposes of assisting the Customer, and which, moreover, conform to industry standards of knowledge and experience, are provided freely and do not constitute any basis for a contractual relationship nor additional duties under the agreement already made. The Customer remains responsible for examining the goods with respect to their fitness for the purposes for which they are to be used.
6. All lighting designs are carefully calculated and executed. The Tobias Grau GmbH
company does not offer any guarantee or accept any liability for the lighting calculation and lighting design.
Section 3 Prices, Price Alterations, Processing Fees
1. The prices quoted in the catalogue and in the offer are subject to confirmation.
2. Prices agreed and specified in the confirmation of order are binding for a period of four weeks.
3. The prices are „ex works“ (excl. costs of packing, being invoiced seperately). In case the Customer asks for insurance this will be arranged at his expense.
4. Assembly costs shall not be accepted.
5. In the event of alterations to the order attributable to the Customer, the Seller reserves the right to charge a processing fee amounting to 5% of the value of the order.
Section 4 Place of Performance, Bearing of Risk
1. The place of performance in all cases is the place of the Seller´s registered office.
2. In the event that the Customer is dealing commercially, the risk shall pass to the Customer, irrespective of the type of delivery made, with the transfer of the goods to the person responsible for their transportation, or as soon as they have left the Seller´s warehouse for purposes of dispatch. Should dispatch prove impossible for reasons for which the Seller is not responsible, the risk shall pass to the Customer upon notification of the latter that the goods are ready for dispatch.
3. In the event that the Customer is a Private Customer, the risk shall only pass when the Customer has received the goods irrespective of the type of delivery that is made.
4. Receipt of the goods is presumed to have occurred where the Customer is in default acceptance.
Section 5 Delivery, Delivery Deadlines, Acceptance, Non-Performance, Repudiation of Contract
1. The Seller is entitled to make part deliveries and part-performance at any time.
2. Should goods ready for dispatch be delivered at a later date than originally agreed upon by the Customer´s special request, the Seller is entitled to store the goods at the expense and risk of the Customer. This will have no effect on the Customer´s duty of payment according to Section 8 to 10.
3. If, due to some fault of the Customer, acceptance of the goods does not take place punctually, the Seller shall have the right, at his own choosing and after the granting of a period of grace of seven days, either to send an invoice for arrears, to withdraw from the contract, or to demand compensation. The same right shall apply to the Seller if, prior to acceptance, the Customer explicitly states his unwillingness or inability to take receipt of the goods.
4. Delivery dates or deadlines are agreed to on a discretionary basis, but are usually non-binding. They can however be specified in writing as being binding.
Delivery periods begin – unless some more precise date has been specified – on the date of sending of the confirmation of order, though not prior to full clarification of all technical details.
5. The Seller shall be entitled do demand 20% of the value of the order without discount as damages for non-performance, cancellation, default in taking delivery or return of purchased goods, unless the Customer can prove that no damage was suffered or that the damage suffered amounted to less than the lump sum claimed. The Seller shall moreover retain the right to assert a claim for higher compensation, provided proof of the level of such damage can be given.
6. In cases of force majeure, measures associated with labour disputes, measures required by official authorities and other business disturbances (e.g. difficulties in procurement of materials, even by suppliers, incorrect, incomplete or non-punctual deliveries by prior suppliers, personnel shortages, transports problems, etc.) lasting or likely to last – even in the case of affected suppliers – for more than a week, the delivery date or collection date shall be automatically extended by the period of the delay plus a reasonable period allowing for subsequent delivery. If necessary, the Seller shall be entitied, in respect of that part of the delivery not yet made, to withdraw from the contract in whole or in part.
Where a hindrance has lasted for more than three months, the Customer shall be entitled, after the granting of a reasonable period of grace, the withdraw from that part of the contract which has not yet been performed.
7. The Seller is entitled, in cases of breach of contract or breach of trust on the part of the Customer, to withdraw from the contract in whole or in part. The same applies to circumstances in which orderly business transactions between the Seller and the Customer are not possible or are only possible under great difficulty.
8. The Seller is entitled to withdraw from the contract, in whole or in part, if, for technical reasons, delivery appears to be inadvisable or impossible. The Seller is entitled to dispatch smaller amounts, provided this does not undermine the substance of the contract.
Section 6 Warranty
1. If the Customer is dealing on a commercial basis, the Seller shall, at his choice, fulfil the warranty for defects in the goods either by making the necessary rectification of defects or by the delivery of replacement parts.
2. If the Customer has made the contract on a private basis, as a remedy for defects, he may choose the rectification of the said defects or he may choose the delivery of replacement parts. The Seller is, however, entitled to refuse to carry out the chosen remedy where this can only be performed at costs disproportional to the value of the contract, and where the other form of remedy carries no significant disadvantage for the Customer.
3. If the remedy fails to repair the defect, the Customer may choose to demand abatement, compensation or he may rescind the contract. However, in the event where there are only minor damages or where the deviation of the goods from the agreed description and quality is insignificant, or where the goods have been customised, the Customer shall have no right to rescind the contract.
4. Claims for Commercial Customers only arise where the duties prescribed in paragraphs 377, 378 of the German Commercial Code are fulfilled, i.e. examination of the goods and prompt written reclamation in the event that defects are found. Private Customers must inform the Seller within one month, in writing, of finding evident defects in the goods contrary to the agreement. If no such notice is given to the Seller, the right to remedy for the defect shall lapse within one month after the finding of the defect. This does not apply where the Seller has acted in a deceitful manner. The Private Customer is obliged to prove when existence of defects has been determined.
5. In the event that the Customer exercises his option to rescind the agreement where there is a defect of title or a material defect, he has no additional claim for compensation for the defect against the Seller. Where the Customer chooses compensation, the goods as delivered shall remain with him where this is reasonable. The claim for compensation, in this case, is limited to the difference between the sale price and the value of the defective goods. This does not, however, apply where contractual non-compliance arises due to deception on the part of the Seller.
6. The warranty is valid for a two year period commencing from the delivery date.
7. Lighting accessories (lamps) and parts which are subject to wear and tear are excepted from warranty.
The products must be checked for visual defects, and/or scratches, prior to assembly. Once the product has been assembled, the right for a customer to make a complaint due to visual defects expires.
Warranty cover is only provided where the goods have been properly handled and professionally installed and put into operation. No warranty cover is provided in instances where the operating and maintenance instructions have not been followed or where, without consent of the Seller, improvements, alterations or other work has been carried out on the goods as delivered, or a part thereof. Furthermore, there shall be no liability for wear and tear by normal usage (e. g. tarnish or oxidization, wear on the suspending cables of height-adjustable lamps, etc.).
Warranty claims can only be made via the retailer, provided the purchase was made at a retailer‘s.
Farther-reaching claims of the Customer, in particular claims for compensation for damage not suffered on the delivery item itself or claims resulting by a use of the goods, being not customary and foreseeable or leading to a non typical and disproportionate high consequential loss, shall be explicitly excluded – to the extent that this is legally permissible according to paragraphs 305 ff. of the German Commercial Code. Not included herein, are damages resulting from injury to life and health where the Seller is at fault, and other damages resulting from deliberate or grossly negligent failure of responsibility on the part of the same. Failure on the part of the Seller may arise from his agents or vicarious agents.
The warranty obligation for damage of property or personal injury is limited to the sum covered by the Seller‘s insurance minus the excess. The Seller is willing, on demand, to allow the Customer access to the insurance policy.
Warranty claims cannot be assigned.
8. If the Customer is dealing commercially, only the product description of the Seller is relevant to the quality of the goods. Public statements or advertisements on the part of the Seller do not constitute contractually-binding statements as to the quality of the goods.
9. In the event that defective assembly instructions are delivered to the Customer, the Seller is obliged only to deliver assembly instructions free of defects, and that only where the defect in the assembly instructions prevents the goods from being properly assembled.
10. Complaints must be sent to the Seller within 14 days of receipt of the goods, subsequent to prior notification by telephone. One precondition for complaints processing is that the goods must be returned to the Seller undamaged, in the original carton and with adequate and additional dispatch packaging. A stamped warranty certificate and the original invoice must be returned with the goods.
Complaints relating to the number of items or to shortages shall only be taken into consideration if notice hereof was given by the Customer to the carrier at the time of delivery and the complaints were confirmed to the Customer by the carrier in writing. Such written notification by the Customer, together with the written confirmation of the carrier in terms of clause/sentence 1, must have been procured.
11. Deviations customary to the trade, or minor, technically unavoidable and reasonable variations in quality, dimensions, weight, equipment or design may not be objected to.
12. Goods made to specification or goods of single parts on the Customer´s special request can not be exchanged or credited for. Regarding copyrights vis-a-vis third parties, resulting from drawings or models supplied by the Customer, the Customer shall assume liability and grant the Seller leave from any claims.
Section 7 Distance Sales, Right of Return
1. Where the Private Customer has agreed with the Seller a distance sale, he has the right to return the goods within two weeks of receipt. The right of return can only be exercised by the return delivery of the goods, or in the event that the goods cannot be packaged, by demanding that they be collected by the Seller. The period allowable for return is maintained when the goods are sent within the stipulated time. This shall not be valid for goods made to specification or goods of single parts on the Customer´s special request or being made unequivocally for the Customer´s personal circumstances.
2. The costs arising when the right to return goods is exercised shall be borne by the Customer, unless the delivered goods do not conform to those goods that were ordered.
3. The Private Customer has an obligation to make the appropriate restitution where he has made use of goods according to the conditions of the agreement where such use has led to a deterioration in the goods. The Private Customer is entitled to make a careful examination of the goods. If a loss in value of the goods occurs where the Private Customer no longer merely examines the goods but actually uses them, then he is liable for that loss.
Section 8 Invoices, Terms of Payment
1. The invoice will be made out as on the day of delivery or of readiness of the goods for collection. Invoices will be made out in EURO. Postponement of the due date of invoice (valuation) is essentially inadmissible.
2. The applicable conditions of payment are those set out in the order confirmation.
3. The Seller shall have the right to subsequently specify other terms of payment or to refuse to deliver, should it become apparent from the Customer´s financial circumstances that the quoted payment options would complicate an orderly processing of the business transaction. In this connection a one-time default in payment and/or a negative bank or credit reference shall prove adequate.
In particular the Seller reserves the right to demand cash on delivery ord advance payment (e.g. in the case of new Customers). Where such delivery conditions are rejected by the Customer, Section 5, items 3 and 5 shall apply accordingly.
4. Generally speaking, payments made shall settle the oldest outstanding debit items plus any additional default interest accrued.
Section 9 Payment Default
1. In the event that the Private Customer is in default of his obligation of payment, he will be liable to pay interest on the outstanding amount. The interest will be levied at a rate of 5% above the basic lending rate.
In the event that the Commercial Customer is in default of his obligation of payment, he will be liable to pay interest on the outstanding amount. The interest will be levied at a rate of 8% above the basic lending rate. The Seller reserves the right to prove that there is a greater loss due to the Commercial Customer‘s default of payment and to levy a higher rate of interest accordingly.
2. Before full payment on due invoice amounts and default interest has been made, the Seller shall not be obliged to make any further deliveries based on any current contracts.
3. If the Customer is in default of a due payment or if there is a significant deterioration in his financial circumstances, the Seller shall be entitled to charge all outstanding claims from current business immediately or to demand cash payment in advance, subject to discontinuation of credit, prior to delivery of the goods.
4. The costs associated with default shall also include the costs of legal measures (lawyer´s costs/court costs), as well as costs associated with the Seller´s repeated requests for payment.
Section 10 Payment, Offsetting, Right of Retention
1. In general, payment must be made in cash, by bank transfer, giro transfer or transfer by postal cheque. Other payment options can, however, be agreed to in writing. As for the intake of bills of exchange, this must be determined from case to case. In cases of payment by bills of exchange the bank charges, discount charges and collection charges shall be borne by the Customer.
2. Payment shall only be regarded as having been made if the Seller can fully dispose of the sum in question. In the case of cheques payment shall be regarded as having been made once the cheque has been honoured.
3. Offsetting shall only be permissible in cases of undisputed or legally enforced claims. The same applies accordingly to rights of retention, where the claim derives from the same contractual relationship.
4. Other deductions (postage, etc.) are inadmissible.
Section 11 Reservation of Title
1. Where the contract is made with a Private Customer, the Seller reserves title in the goods until full settlement is made of the purchase price.
2. Where the contract is made with a Commercial Customer, the Seller reserves title in all matter that is the subject of the delivery, including articles concerning sales promotion and other articles otherwise made available by the Seller to the Commercial Customer (flags, displays, furniture, carpets etc.), until such time as there is settlement of all claims for payment arising from the business relationship and, moreover, for all other claims for delivery of replacement parts and for the provision of services, including all future claims arising either from agreements made at the same time or at a later date. This also applies where the Seller has included individual or all of his receivables into a current account and where the resulting balance has been accepted. In case of a current account the entirety of goods that are subject to the reservation clause serve the purpose of securing the payment of the balance. If the total value of the aforesaid goods exceeds the total value of the Seller‘s receivables against the Customer by more than 20 %, the Seller shall declare ? at his discretion and upon request of the Customer ? that the securities be released in as far as there is an excess. The release note must be in writing.
3. The Customer is obliged at any time (if requested by the Seller) to provide written information about the condition of goods that are subject to this reservation of title clause and to handle such goods in a reasonable manner.
4. The Customer may neither pledge nor assign to a third party as security any goods that are subject to this reservation of title clause. Regarding such goods, the Customer is obliged to promptly inform the Seller in writing about any damage, destruction, or pledge, seizure or any other third party rights as may occur.
5. The Seller is entitled, in the event that there be a breach of the contract on the part of the Customer, especially in relation to payment default or those obligations set out in paragraphs 3 and 4 of this section, to terminate the contract and to demand the return of the goods. This entitlement shall also arise in the event that insolvency proceedings are commenced against the Customer. The Seller is entitled, after declaring the contract to be cancelled, to recover the goods and to enter the storage facilities and business premises of the Customer for this purpose. The Customer waivers any rights that may be given him by deforcement.
6. The Customer may only assign the goods, even in the course of normal business activities, with the prior written consent of the Seller. Where this occurs, the Customer must reserve title in the goods against the third party until full settlement of the sale price. Upon the assignment of the goods to a third party, the Customer assigns to the Seller his rights of settlement to the extent of the value of the goods that are subject to this reservation of title clause together with those rights of restitution that also arise. The Seller accepts hereby this assignment. Any authorisation of resale given by the Seller to the Customer shall cease to have effect in the event that insolvency proceedings are commenced against the latter.
7. In the event that a petition for the commencement of insolvency proceedings is made against the Customer, the Customer is then obliged to make known to the Seller all claims arising from reservation of title rights pertaining to third parties. The Customer is obliged to make public the assignment in favour of the Seller.
Section 12 Liability
1. In the event that the Seller, his agent or his vicarious agent exhibit minor negligence in fulfilling the obligation to comply with a contractual condition, his liability is limited, depending on the nature of the goods, to foreseeable average damage typical of the contract.
Where the contract is made with a Commercial Customer the Seller is not liable for damage arising from minor negligence in failing to fulfil an insignificant contractual obligation.
2. The limitation of liability, as set out above, does not affect the Customer‘s statutory rights under product liability. Moreover, it shall not apply where the Seller is at fault for injury or death to the Customer.
3. Claims to compensation on the part of the Customer are limited to one year after the delivery of the goods. This is not applicable where the Seller is guilty of acting maliciously.
4. In cases of minor negligence in performing the contract, the Customer‘s claims against the Seller are limited to the sum covered by the Seller‘s insurance minus the excess.
5. No liability whatsoever is accepted for errors or omissions made by a third party in assembly.
Section 13 Data Protection
In accordance with the German Data Protection Law notice is hereby given that, for purposes of orderly business processing, person-specific data shall be stored and used in the context of electronic data processing. According to paragraphs 26, 34 and 43 of the German Data Protection Law the Customer is to receive knowledge about the first storage resp. transmission, which is hereby done. There will be no further notice.
Section 14 Product Identification, Reference
1. Each and every preparation, alteration and/or designation of a product belonging to the Seller is inadmissible if it can create the appearance that the product in question belongs to the Customer.
2. The Customer is only entitled to sell the Seller´s goods to businesses/branch for which the goods were explicitly ordered.
3. With the conclusion of the purchase contract, the Customer undertakes at the same time to purchase goods of the Seller directly from the Seller and not from any other source.
4. In each case of breach of the obligations cited under items 1 to 3 above a contract penalty is to be paid to the Seller. This is to be determined at the latter´s reasonable discretion, or at that of the court of competent jurisdiction, though it shall not amount to less than EURO 3.000,00. The right to compel refraint (e.g. restrictive injunction) shall remain unaffected by such a payment. Otherwise Section 5, item 7 shall apply accordingly.
Section 15 Place of Jurisdiction, Applicable Law, Written-Form Requirement, Partial Ineffectiveness, Interpretation
1. The court of jurisdiction for all instances of legal dispute arising, directly or indirectly, from the contractual relationship and where the Customer is dealing commercially or is a public body or estate, shall be Hamburg. The Seller is also entitled to commence legal proceedings at the place of the registered address of the Customer.
2. These terms and conditions and the above-mentioned legal relationship existing between Seller und Customer shall be subject to the law of the Federal Republic of Germany. The applicability of the uniform international law on the sale of goods shall be excludes, unless the parties reach some alternative agreement in writing.
3. Additions, amendments and ancillary agreements shall only be legally effective if they habe been confirmed in writing or by fax, etc.
4. Should any of the provisions contained in these terms and conditions or in any other agreements reached prove to be invalid, whether at present or at some future date, this shall not affect the validity of the remaining provisions or agreements. The invalid regulation shall be replaced by one that corresponds to the purpose of the contract in economic terms. In matters of interpretation of the English version of these terms and conditions, the German text shall be considered authentic and have binding force.