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General Terms and Conditions of Sale and Service of magineer GmbH

For the sale of products and the provision of services

Date: 15 January 2016

 

Article 1: Scope of application

 

The legal relationship between magineer GmbH (business areas: engineering and lighting) and the customer is governed in its entirety by these General Terms and Conditions of Sale and Service, unless otherwise agreed in writing. We will only accept contrary or deviating conditions from the customer if we have expressly agreed to them in writing. magineer GmbH's terms and conditions of sale and service shall apply even if magineer GmbH performs the service in the knowledge of contrary or deviating terms and conditions of the customer. These General Terms and Conditions shall apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). These general terms and conditions also apply to all future transactions with the customer insofar as they are of a similar nature.

Article 2: Offer and Conclusion of Contract

If an order is deemed to be an offer in accordance with § 145 BGB, we may accept it within two weeks. Quotations from magineer GmbH are non-binding unless expressly agreed otherwise in writing. For samples, projects and other services specifically requested by the customer, an agreed fee must be paid, even if the order is not finalised. Information about persons, business relationships and the like is strictly confidential and must be kept confidential by both the customer and the supplier.
 

Article 3 Documents supplied and confidentiality

 
All documents provided to the customer in connection with the placing of the order, such as quotations, drawings, conditions, offers, etc., remain the property of magineer GmbH and are protected by copyright. These documents are confidential and may not be disclosed to third parties without our express written consent. At the request of magineer GmbH, in the absence of corresponding orders, all documents handed over as well as all copies must be returned in full. Violations of these confidentiality and return obligations entitle magineer Lighting GmbH to claim damages and to terminate the contract immediately.

Article 4: Prices and payment

 

Unless otherwise agreed in writing, our prices are ex works, excluding packaging and transport, and excluding VAT at 19 %. Delivery and transport costs are not included in the quotations. Payment of the purchase price must be made exclusively to the account indicated on the reverse. Discounts are only permitted by special written agreement. Unless otherwise agreed, 100 % of the invoice amount is due on placing the order (payment in advance or on invoice). Claims of magineer GmbH may not be offset against claims of the customer against magineer GmbH. Unless otherwise agreed, reasonable price adjustments due to changes in labour, material and distribution costs for deliveries made 3 months or more after conclusion of the contract are reserved. The order will only be processed once the advance payment has been received by the service provider's account. In the event of late payment, the customer is in default. The default interest rate is 5 %. In addition, the supplier (even in the event of partial default) has the right to withdraw from the contract without setting an additional deadline and without having to declare this immediately, and to demand the return of the deliveries and services already provided as well as reimbursement of the damage resulting from the non-performance. In particular, all costs of legal proceedings and other reminder and collection costs shall be borne by the customer.

Article 5: Order and Contract Award

 

The order is effective by the explicit allocation of the order or by the provision of services and is binding. Any complaints must be reported immediately to the supplier or service provider. The customer is only entitled to exercise a right of retention to the extent that his claim against the same contract is well-founded. If the customer terminates the contract unjustifiably, magineer Lighting GmbH is entitled to claim damages for the costs incurred in processing the order and for lost profit. After expiry of 14 days from conclusion of the contract, 10 % of the net purchase price is due as damages. After 30 days following conclusion of the contract, 30 % of the net purchase price is due as damages. The customer retains the right to prove that less damage has been caused.

Article 6: Delivery time

 

Delivery times magineer GmbH endeavours to adhere to the stated delivery times. However, magineer GmbH cannot make any binding commitments in this respect. Partial deliveries are permitted. Claims for damages against magineer GmbH due to late delivery are in any case excluded. The agreed delivery period begins when the order has been fully clarified from a technical and design point of view. The commencement of the delivery period specified by us presupposes the timely and proper fulfilment of the purchaser's obligations. The exception of non-performance of the contract remains reserved. Cases of force majeure (official measures, operational disruptions, traffic obstructions) entitle the supplier, even in the event of delay, to postpone delivery by the duration of the obstruction and a reasonable start-up period, or to withdraw from the contract in whole or in part in respect of a part not yet performed. The supplier shall inform the customer immediately. The validity of the contract is independent of approval by third parties (authorities, etc.). The client is responsible for obtaining such approvals. Necessary modifications (administrative regulations, etc.) are considered to be an extension of the order.

Article 7: Customer's duty to cooperate

 
The Client is requested to provide the Supplier with appropriate support in the performance of the contractual services. In particular, he shall provide him with the necessary information, assistance and documents in a comprehensive and timely manner. If the customer fails to accept or culpably breaches other obligations to cooperate, we shall be entitled to claim compensation for the damage suffered, including any additional costs. We reserve all further rights. Insofar as the aforementioned conditions are met, the risk of loss or accidental deterioration of the goods shall pass to the customer at the time when the latter is in default of acceptance or payment.

Article 8: Shipping and transport

 
If the goods are dispatched at the option of the customer, the risk of loss or accidental deterioration of the goods shall pass to the customer with dispatch to the customer, at the latest on leaving the factory/warehouse. This applies irrespective of where the delivery is made or who bears the transport costs. Dispatch or transport shall be at the customer's expense and risk. The same applies to the costs of transport insurance. Transport costs for test equipment are borne by the customer. Goods ready for dispatch and not collected by the customer within 5 days will be stored at the customer's expense. At the same time, an invoice will be issued for storage. If the actual performance corresponds to that stipulated in the contract, the customer shall declare acceptance immediately. The customer has 21 calendar days to determine whether the conditions for acceptance have been met. The period begins on the date on which the complete (part of) the service is handed over.

Article 9: Retention of title clause

 

We reserve ownership of the goods delivered until all claims arising from the delivery contract have been paid in full. This also applies to all future deliveries, even if we do not always explicitly refer to this reservation. We are entitled to take back the purchased goods if the purchaser acts contrary to the contract. The purchaser is obliged to take care of the purchased goods as long as ownership has not yet passed. In particular, he must insure it against theft, fire and water damage at his own expense, up to the replacement value. If maintenance and inspection work is required, the purchaser must carry this out at his own expense and in good time. As long as ownership has not yet been transferred, the purchaser must inform us immediately in writing if the delivered item is seized or subject to other interventions by third parties. If the third party is unable to reimburse us for judicial and extrajudicial costs in accordance with Section 771 of the German Code of Civil Procedure, the purchaser shall be liable for the loss incurred by us. The purchaser is entitled to resell the reserved goods in the ordinary course of business.

 

 The purchaser's claims arising from the resale of the reserved goods are hereby assigned in the amount of the final invoice amount agreed with us (including VAT). This assignment applies irrespective of whether the goods are resold unprocessed or after processing. The purchaser remains entitled to collect the claim after the assignment. Our right to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the purchaser fulfils his payment obligations from the proceeds received, is not in arrears, and in particular as long as no application is made to open insolvency proceedings or a suspension of payment is in place. The processing or modification of the goods purchased by the purchaser is always carried out in our name and on our behalf. In this case, the right to the goods purchased shall continue to apply to the processed goods.

 

 If the goods purchased are processed with other items that do not belong to us, we acquire co-ownership of the new item in proportion to the objective value of our goods in relation to the other processed items at the time of processing. The same applies in the case of mixing. If the mixing takes place in such a way that the purchaser's item is regarded as the main item, it is agreed that the purchaser transfers proportionate co-ownership to us and retains the ownership or co-ownership thus created on our behalf. In order to secure our claims against the purchaser, the purchaser also assigns all claims due to him from the connection of the reserved goods to a plot of land against a third party; we accept this assignment with immediate effect.

Article 10: Guarantee and liability for hidden defects

 

magineer GmbH guarantees the customer that defective products or components will be repaired free of labour and material costs. Instead of repair, we reserve the right to replace the defective product or refund its value. This guarantee is valid for the guarantee period provided for the product in question. The warranty period begins on the date of sale to the consumer. All other warranty claims are in any case excluded.


The warranty covers all defects occurring during the warranty period which can be shown to be due to material or manufacturing faults. The warranty will not be granted if the model or production number of the product has been altered, erased, removed or otherwise rendered illegible, or if repairs, adaptations or modifications to the product have been carried out by unauthorised persons or companies, or in the event of damage caused by external influences (lightning, water, fire, etc.) or incorrect use.


If a modification or adaptation of the product has been made to enable a use which was not foreseen in its original specification (for example, adjustments to a different reception or connection standard), the product is not considered to be defective. Exercising the warranty does not extend the warranty period or establish a new warranty period for the product in question.


The warranty claims of the purchaser presuppose that the purchaser has properly fulfilled his examination and complaint obligations in accordance with Section 377 of the German Commercial Code.


Defects in the goods must be reported to the supplier immediately, within one week of receipt of the goods at destination. Defects which could not be discovered even with careful examination within this period must be reported in writing as soon as they are discovered, with immediate cessation of further processing or use, but at the latest within the warranty period. If the customer fails to report defects in good time, the product will be deemed to have been accepted, excluding all warranty claims and claims for damages.


Complaints about defects must be made in writing. If magineer Lighting GmbH's examination reveals a defect, magineer Lighting GmbH will either carry out repairs or issue a credit in the amount of the price. If the repair fails or is unreasonable for the customer, the customer may withdraw from the contract or reduce the remuneration. All other claims are excluded.


All claims against the supplier, irrespective of their legal basis, expire at the latest 12 months after delivery of the goods delivered by us to our customer, unless the statutory limitation period is shorter. Section 852 of the German Civil Code (BGB) remains unaffected.


For claims for damages in cases of intent and gross negligence as well as for injury to life, body and health resulting from an intentional or negligent breach of duty by the user, the statutory limitation period applies. Insofar as the law provides for longer periods in accordance with Section 438(1)(2) of the German Civil Code (BGB), these periods shall apply. Before any goods are returned, our agreement must be obtained. If, despite all due care, the delivered goods show a defect which already existed at the time of the transfer of risk, we will remedy the defect or supply a replacement product, subject to timely complaint, at our discretion.


 We will always have the opportunity to carry out this repair within a reasonable timeframe. Recourse claims remain unchanged from the previous regulations. Warranty claims do not exist in the event of insignificant deviations from the agreed quality, in the event of minor impairment of usefulness, in the event of natural wear and tear or normal deterioration, as well as in the event of damage resulting, after the transfer of risk, from incorrect or negligent handling, excessive use, unsuitable equipment, defective construction work, unsuitable ground or particular external causes not provided for in the contract. If repair work or modifications are carried out inappropriately by the purchaser or third parties, no claims for defects are possible either for this work or for the resulting consequences. Claims by the purchaser in respect of the costs necessary for the implementation of the guarantee, in particular transport, travel, labour and material costs, are excluded insofar as the costs increase because the goods delivered by us were subsequently transported to a location other than the purchaser's branch, unless this transport corresponds to its intended use. 


The purchaser's recourse claims against us exist only insofar as the purchaser has not concluded any agreements with his own customer which go beyond the legally binding warranty claims. Paragraph 6 also applies to the scope of the purchaser's recourse claims against the supplier. In the event of dissatisfaction with the product, the purchaser is not entitled to withdraw from the contract.

Article 11: Damages and interest

 

Under no circumstances will magineer GmbH be liable to pay compensation for direct or indirect damage, such as loss of profit or turnover.

In particular, magineer GmbH accepts no liability for damage caused by (a) incorrect commissioning or maintenance by the customer, (b) software, interfaces and accessories not supplied by magineer Lighting GmbH, (c) incorrect use, (d) transport, (e) external interference of any kind or (f) viruses or similar interference. Liability is also excluded for modifications or repairs carried out by persons not appointed by magineer GmbH. The liability of magineer GmbH for its vicarious agents is generally excluded. Mandatory statutory provisions remain reserved.

Insofar as magineer GmbH has a warranty or liability obligation, any claims against magineer Lighting GmbH, irrespective of the cause of action, are limited to the maximum purchase price of the product concerned.

Article 12: Data protection, confidentiality and security

 

The Customer shall ensure that the Contractor is informed of all relevant facts, over and above legal requirements, which must be known for reasons of data protection and confidentiality.

The Contractor shall comply with the statutory provisions on data protection. The Principal and the Contractor are obliged to treat as confidential all confidential information, commercial and industrial secrets acquired in the course of the contractual relationship, and in particular not to disclose them to third parties or exploit them in any way whatsoever.

In particular, magineer GmbH accepts no liability for damage caused by (a) incorrect commissioning or maintenance by the customer, (b) software, interfaces and accessories not supplied by magineer Lighting GmbH, (c) incorrect use, (d) transport, (e) external interference of any kind or (f) viruses or similar interference. Liability is also excluded for modifications or repairs carried out by persons not appointed by magineer GmbH. The liability of magineer GmbH for its vicarious agents is generally excluded. Mandatory statutory provisions remain reserved.

Insofar as magineer GmbH has a warranty or liability obligation, any claims against magineer Lighting GmbH, irrespective of the cause of action, are limited to the maximum purchase price of the product concerned.

Article 13: Safeguard clause

 

If certain provisions of the contract are invalid, this shall not affect the validity of the other provisions. The contracting parties will work together to replace the invalid provisions with provisions that are as close as possible to those that are invalid.

Article 14: Written form

 

The contract and any amendments to it, as well as all declarations, notifications and documentation obligations relating to the contract, must be made in writing.

Article 15: Place of performance

The place of performance and the exclusive place of jurisdiction for all disputes arising from this contract is our registered office, unless otherwise stipulated in the order acknowledgement. If the purchaser's residence or habitual domicile is unknown at the time the legal action is brought, or if the purchaser transfers his residence or habitual domicile outside the scope of the law after the contract has been concluded, the place of jurisdiction shall be the supplier's registered office.

USt.-Id.: DE 268333394 - Bank : Volksbank Langendernbach eG, IBAN : DE55 5116 1606 0000 093009 ; BIC : GENODE51LDD