Baulmann_Firma_SW_20

Baulmann Leuchten GmbH

Please find our terms and conditions of sale, delivery and payment - for use in business transactions.

General terms and conditions of sale, delivery and payment for application in commercial transactions

I. General Terms and Conditions

1. Reciprocal written declarations are standard for the scope of deliveries or services (Deliveries in the following). However, the Purchaser’s general terms of business apply only in so far as the supplier or service provider (Supplier in the following) gave him/her express, written approval.

2. The Supplier reserves the rights of the unlimited use of property and copyright as regards cost estimates, drawings and other documents (Documents in the following). The Documents may be made available to a third party only with the Supplier’s previous approval and are to be promptly returned if desired, should the order not be assigned to the Supplier. Points 1 and 2 apply corresponding to the Purchaser’s Documents; however, these may be made available to a third party whom the Supplier has permissibly contracted for Deliveries.

3. Part Deliveries are allowed, in so far as they are acceptable to the Purchaser.

4. The non-private Purchaser is obliged to guarantee the waste disposal of the supplied products according to the Directive on electrical equipment. In case of a resale, the Purchaser shall transfer these obligations to his/her contract partner.

II. Prices and Payment Conditions

1. The prices are ex-works plus packaging, freight, and the respectively valid legal VAT.

2. Payments are to be made free of transaction charge to the Supplier.

3. The Purchaser is entitled to set off only those payments that have been determined as uncontested or legally binding.

4. Invoices are issued on the day of Delivery. Payment within 10 days after the invoice date is granted a discount of 2%. The maximum credit term is 20 days.

5.Should the maximum term be overdue, the Supplier has the right to charge interest and fees, starting from the expiration date, which are demanded by German banks for unsecured credits.

6.If there is a delay in payment or any other justified doubt about the Purchaser’s credit worthiness, all liabilities shall be immediately due.

7.First Delivery to new clients in general takes place with payment in advance.

8.The following conditions apply to special custom-made products:
- 50% advance payment at order placement.
- 50% payment at supply/Delivery.

III. Reserved Ownership

1. The objects contained in the Deliveries (reserved goods) remain the property of the Supplier until the fulfilment of all claims against the Purchaser owed to the Supplier based on the business relationship. If the value of all security interests owed to the Supplier exceeds the amount of all secured claims by more than 20%, the Supplier, at the wish of the Purchaser, shall release a corresponding part of the security rights; in this release process, the Supplier has right of option between different security rights.

2. During the existence of the reserved ownership, the Purchaser is prohibited from making a pledge or security agreement, and resale is allowed only to re-sellers in the conventional course of business and only on condition that the re-seller receives payment from his/her client, or makes the provision that the property is first transferred to the client when the latter has fulfilled his/her payment obligations.

3. The Purchaser has the right to resell the reserved property in the appropriate course of business in so far as s/he keeps to the agreed remuneration, or in so far as no non-assignment clause has been negotiated. As security, the Purchaser hereby assigns to the Supplier his/her claim on the purchase price ensuing from the sale. However, s/he remains entitled to collect the claims assigned for this security as long as this authorisation is not withdrawn. The authorisation can be withdrawn if the Purchaser through his/her own fault does not keep or no longer keeps to his/her contractual obligations. If the direct debit authorisation is withdrawn, the Supplier has the right to notify the effected withdrawal. The Purchaser must promptly make available the documents required for notification of the withdrawal and for the direct debit.

4. In a breach of obligation on the part of the Purchaser – in particular as regards delayed payment – the Supplier has the right of cancellation and recall after the expiry of an appropriate time limit set for the Purchaser to perform this obligation; the legal provisions regarding the dispensability of a time limit remain unaffected. The Purchaser is obliged to surrender the goods.

IV. Time limits for Deliveries; Delay

1. The maintenance of time limits for Deliveries requires the prompt receipt of all Documents to be supplied by the Purchaser, required authorisations and approvals especially of plans, and the maintenance of the agreed payment conditions and other obligations on the part of the Purchaser. Should these requirements not be fulfilled by the due date, the time limits are appropriately extended; this does not apply if the Supplier is responsible for the delay.

2. The time limits are extended accordingly if the non-maintenance of the time limits derives from a) force majeure, e.g. mobilisation, war, acts of terrorism or similar events (e.g. strikes, lockouts), b) viruses or other attacks by a third party on the Supplier’s IT system, in so far as these occur despite the usual care taken in protective measures, c) obstacles caused by German, US and otherwise applicable national, EU or international regulations with regard to foreign trade law that do not apply to the Supplier, or d) late or non-appropriate Delivery by the Supplier.

3. If the Supplier is responsible for a delay, the Purchaser – in so far as s/he makes it credible that the former is responsible for the damage – shall demand compensation for each complete week of the delay of 0.5%, but in toto at the most 5% of the price for the part of Deliveries that because of the delay could not be used in expedient operations.

4. Both claims for damage on the part of the Purchaser because of delay in Delivery and also claims for damage instead of the services that go beyond the limits named in point 3 are excluded in all cases of delayed Delivery, also after expiry of a time limit for delivery set for instance for the Supplier. This does not apply if liability is mandatory in a case of intent, for gross negligence or because of injury to life, physical injury or injury to health. The Purchaser may cancel the contract – within the scope of legal provisions – only if the Supplier is responsible for the Delivery delay. A change in the onus of proof to the disadvantage of the Purchaser is not associated with the preceding regulations.

5. If demanded by the Supplier, the Purchaser is obliged to declare within an appropriate time limit whether s/he will cancel the contract because of Delivery delay or whether s/he insists on the Delivery.

6. If shipment or delivery is delayed at the Purchaser’s wish by more than a month after notification of the readiness to ship the goods, the Purchaser can be charged storage fees for each further begun month of 0.5% of the price of the Delivery goods, at most however in toto 5%. Both contract parties shall be at liberty to furnish proof of higher or lower storage fees.

V. Transfer of Risk

1. The risk is transferred to the Purchaser also for freight-free Deliveries if they are brought or are picked up for shipping. Supplier’s Deliveries shall be insured for the usual transport risks at Purchaser’s wish and cost.

2. The risk is transferred to the Purchaser if the shipment, or the Delivery, or the start and adoption into the Purchaser’s own operations or trial operations, is delayed for reasons applicable to the Purchaser, or if for other reasons the Purchaser falls into default of acceptance.

3. No compensation is made for transport breakages.

VI. Reception

The Purchaser may not refuse reception of Deliveries on account of insignificant defects.

VII. Material Defects

1. All those parts or services which – without taking the operation duration into account – show a material defect within the limitation period shall be improved, delivered or rendered again free of charge based on the Supplier’s option in so far as its cause already lay within the period of the transfer of risk.

2. Claims for retrospective fulfilment  lapse in 12 months as of the start of the legal limitation period; this applies correspondingly to cancellation and price reduction.
This time limit does not apply:
- if the law (German) in terms of §§ 438 Section 1 No. 2 (Buildings and Items used for a Building) and 634a Section 1 No. 2 (Construction Defects) BGBc prescribes longer time limits,
- in cases of intent
- fraudulent concealment of the defect   and also
- non-maintenance of a quality guarantee

Claims for reimbursement by the Purchaser in terms of § 445a BGB (German law – Recourse of the Seller) lapse likewise in 12 months as of the legal start of the limitation period, presuming the last contract in the supply chain is not a consumer goods purchase. The legal provisions on expiry suspension, suspension and new start of the limitation periods remain unaffected.

3. In case of material defect, the Purchaser must promptly make a complaint in writing against the Supplier.

4. In cases of claims for defects, Purchaser’s payments may be withheld in a scope appropriately proportional to the occurring material defects. The Purchaser’s right to withhold does not apply if his/her claims against defects have exceeded the time limit. If the complaints about defects are made unjustly, the Supplier has the right to demand from the Purchaser reimbursement for the expenses incurred by him/her.

5. First of all, the Supplier shall be granted the opportunity of retrospective fulfilment within the appropriate time limit.

6. Should the retrospective fulfilment fail, the Purchaser – irrespective of any claims for damage in terms of Article X – can cancel the contract or reduce the remuneration.

7. Claims against defects do not apply when there is an insignificant deviation from the agreed quality; or an insignificant limitation of usability, natural material fatigue or damage that arises from erroneous or neglectful usage, inappropriate operative media, defective construction work, inappropriate construction grounds or defects that arise from special exterior influences that are not provided for in the contract, also those arising from reproducible software defects. If the Purchaser or a third party carries out inappropriate modifications, integration or disassembly, or maintenance work, no claims against defects can be raised for these parties and for the consequences arising from these activities.

8. Claims of the Purchaser on account of the expenses accruing from the purpose of retrospective fulfilment are excluded if the expenses increase because the object of Delivery has been shipped later to a different location from the Purchaser’s establishment, unless the shipment corresponds to his/her usage in terms of his/her provisions. This applies in accord with the Purchaser’s claims for reimbursement of expenses in terms of §445a BGB ( “Recourse of the Seller”), presuming the last contract in the supply chain is not a consumer goods purchase.

9. Purchaser’s warranty claims against the Supplier according to §445a (Recourse of the Seller) exist only in so far that the Purchaser has not made any agreements with his/her customer that go beyond the legal claims for defects.

10. Consumables such as transformers, power suppliers and light sources are excluded from the guarantee. Further claims of the Purchaser on account of a material defect and claims other than those regulated in this Article VII are excluded.

VIII. Commercial Property Rights and Copyrights

Unless otherwise agreed upon, the Supplier is obliged to perform the Delivery only in the country of the place of Delivery, without infringement of commercial property rights and copyrights of a third party (Commercial Property Rights in the following).

In so far as a third party raises legitimate claims against the Purchaser on account of an infringement of Commercial Property Rights through the Supplier’s performed and contractually applied Deliveries, the Supplier is liable to the Purchaser within the time period provided for in Article VII no. 2 as follows:

a) On his/her own option and at his/her cost the Supplier shall effect either a right of usage for the respective Deliveries and modify it so that the Commercial Property Right is not infringed, or replace it. If this is not possible for the Supplier in accord with appropriate conditions, the Purchaser shall avail of the legal withdrawal and price reduction rights.

b)The Supplier’s obligation to pay damage compensation shall conform with Article X.

c)The Supplier’s aforementioned obligations apply only if the Purchaser informs the Supplier without delay in writing about the claims raised by the third party, and if the Purchaser does not acknowledge an infringement, and all defensive actions and settlement negotiations remain the right of the Supplier. If the Purchaser ceases the usage of the Delivery in order to reduce damage or for other important reasons, the Purchaser is obliged to inform the third party that no acknowledgement of an infringement of the Commercial Property Right is associated with the cessation of usage.

2. Claims of the Purchaser are excluded if s/he is responsible for the infringement of the Commercial Property right.

3. Claims of the Purchaser are furthermore excluded if the infringement of the Commercial Property Right is based on special specifications of the Purchaser, or on a usage that was non-foreseeable by the Supplier, or because the Delivery was changed by the Purchaser or actuated together with products not supplied by the Supplier.

4. Applicable in infringements of Commercial Property Rights are the claims of the Purchaser provided for in No. 1 a), otherwise corresponding to the provisions of Article VII, Nos. 4, 5, 8 and 9.

5.If other defects of title occur, the provisions of Article VII shall apply correspondingly.

6. Further claims of the Purchaser, also other than those provided for in this Article VII against the Supplier and his/her auxiliary agents are excluded on account of a defect of title.

IX. Impossibility; Contractual Adjustment

1. If the Delivery is impossible, the Purchaser has the right to demand damage compensation, unless the Supplier is not responsible for the impossibility. However, the Purchaser’s claim for damage compensation is limited to 10% of the value of that part of the Delivery that cannot be used in expedient operations. This limitation does not apply in so far as liability is mandatory in cases of intent, gross negligence or injury to life, physical injury or health; a modification of the onus of proof is herewith not connected to the Purchaser’s disadvantage. The Purchaser’s right of contract cancellation remains unaffected.

2. In so far as unforeseen events in terms of Article IV No. 2 radically alter the economic significance or the Delivery contents or radically affect the Purchaser’s operation, the contract shall be appropriately adjusted respectful to principles of good faith. If this is economically not feasible, the Supplier has the right to cancel the contract. The same applies if required export licences are not allotted or not usable. If the Supplier wishes to make use of this right of cancellation, he must inform the Purchaser without delay after recognising the implications of the event and even when an extension of the Delivery deadline was previously negotiated with the Purchaser.

X. Other Claims for Commercial Property Rights

1. Purchaser’s claims for Commercial Property Rights and reimbursement of expenses (in the following Claims for Commercial Property Rights) are excluded, regardless of whatever legal grounds, in particular on account of infringements of obligations based on the contractual obligations and prohibited actions

2. This does not apply if there is mandatory liability, for example in terms of the Product Liability Act, in cases of intent, gross negligence, on account of injury to life, physical injury, or to health on account of the infringement of basic contractual obligations. The Claims for Commercial Property Rights based on the infringement of basic contractual obligations is however limited to the contract-typical foreseeable damages, unless there is intent or gross negligence, or there is mandatory liability because of injury to life, physical injury, or to health. A change in the onus of proof to the Purchaser’s disadvantage is not bound by the aforementioned provisions.

Should claims in terms of Commercial Property Rights in terms of the Article XS be owing to the Purchaser, these lapse after expiry of the time limit valid for the claims for material defects in terms of Article VII No. 2. For claims in terms of Commercial Property Rights, the legal time limit provisions are valid in accord with the Product Liability Act.

XI. Place of Jurisdiction and Applicable Law

1. Sole place of jurisdiction,if the Purchaser is a business person, is the Supplier’s place of residence for all direct or collateral disputes arising out of the contractual relationship. However, the Supplier has the right to file a suit in the Purchaser’s place of residence.

2. German substantive law applies for legal relations in the context of this contract, without recourse to the United Nations agreement on contracts related to the international sale of goods (CISG).

XII. Binding Contractual Obligation

The contract remains binding, also when individual provisions are legally ineffective in its other parts. This does not apply if the insistence on the contract would involve undue hardship for a party.

Status January 2018