General Terms and Conditions of Sale
Brumberg Leuchten GmbH & Co. KG
1. General terms - Scope
1.1 Our Standard Terms and Conditions of Sale apply exclusively; we do not acknowledge business terms of the customer which are contrary or at vari-ance with our Standard Terms and Conditions of Sale unless we have ex-pressly consented. Our Standard Terms and Conditions of Sale shall also apply if we make deliver to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our Standard Terms and Conditions of Sale.
1.2 Our written offer and, if we issue an order confirmation, our written order con-firmation shall be authoritative for the content and scope of any supplies of goods and services.
1.3 Our Standard Terms and Conditions of Sale shall only apply to entrepreneurs within the meaning of section 310 (1) German Civil Code (“BGB”).
1.4 Our Standard Terms and Conditions of Sale shall also apply to all future transactions with the customer. The following terms and conditions shall take precedence over any deviating terms and conditions of the customer. Waiver on the part of the customer of the applicability of its own standard business terms is not overcome by our silence or performance. A deviation from the fol-lowing conditions requires our written confirmation on a case-by-case basis.
1.5 All technical data in our catalogues and other sales documents, lists and drawings as well as weight, dimensional and mixing data have been carefully prepared; we reserve to make subsequent corrections in the event of errors.
1.6 It is the responsibility of the customer to check whether our product is suitable for its intended purpose.
1.7 To the extent that declarations under these Terms and Conditions of Sale have to be made in writing, this may be satisfied base the text form according to section 126 b German Civil Code.
2. Offer - Offer documents
2.1 If the order qualifies as an offer according to section 145 German Civil Code, we may accept it within four weeks.
2.2 We retain rights of ownership and copyright in illustrations, drawings, bro-chures, calculations and other documents. They may not be disclosed to third parties. This also applies to written documents marked as “confidential”. The customer requires our express written consent before they may be transmit-ted to a third party. Offers are only valid if in writing. Quoted prices are subject to the proviso that the order data on which the offer is based remains un-changed.
2.3 Initial samples and initial sample test reports shall only be produced by us upon express written agreement and invoiced on a time and materials basis.
2.4 Products for which we are commissioned by the customer according to draw-ings or samples, are subject an obligation on the part of the customer to ex-amine any potential third-party property rights and not to infringe any such rights. If, in the event of non-compliance with this obligation, a third party pro-hibits us from manufacturing by invoking a property right belonging to it, or if the product cannot be used because of the infringement of the property right, we shall be entitled - without examining the legal situation and excluding all claims for damages by the customer for whatever legal reason - to discontin-ue manufacture and delivery until the facts of the case have been clarified and to demand compensation from the customer, at least in the amount of 15% of the invoice value for the product to which the order relates. The cus-tomer now hereby agrees in advance to indemnify us against any claims for damages or other compensation on the part of third parties, in particular the proprietors or any such rights, on first demand. Damages for such purposes shall also include such costs as we incur as a result of defending against claims by third parties.
3. Prices - Payment terms
3.1 Unless otherwise stated in the order confirmation, our prices are stated “ex works”, including the packaging normally used by us for our products plus value added tax applicable on the date of invoicing. Any special packaging or outer packaging or special small packaging desired will be charged to the customer. Prices are only valid for the contractually agreed quantity and exe-cution. If the customer wishes to make changes which require additional pro-cessing beyond what is required by the contract or the usual production pro-cess, we reserve the right to make reasonable changes to the prices. We re-serve the right to adjust our prices by the amount of the resulting cost in-crease if, after conclusion of the contract, our costs increase unforeseeably, in particular due to collective wage agreements, increases in the price of mate-rials, in particular increases in the price of raw materials or increases in ener-gy costs.
3.2 The statutory value added tax is not included in our prices; it is stated sepa-rately in the invoice at the statutory rate on the day of invoicing.
3.3 The application of any cash discounts requires a separate written agreement.
3.4 Unless otherwise stated in the order confirmation, the net purchase price (without deduction) shall be paid to the payment office and shall be due for payment within 10 days of the invoice date. If the customer is in default of payment, we shall be entitled to charge default interest at a rate of 9 percent-age points above the statutory base rate per annum. Should we be able to prove higher damages resulting from a default, we shall be entitled to assert such damages. However, the customer is also entitled to prove to us that we have suffered no damage or lower damages as a result of the delay in pay-ment.
3.5 The customer shall only be entitled to set-off based on counter-claims that have been finally determined by a court, are undisputed, have been acknowledged by us or relate to reciprocal claims. The customer shall only be entitled to a right of retention based on counter-claims that have been fi-nally determined by a court, are undisputed, have been acknowledged by us or relate to claims that are reciprocal to the primary claim. Furthermore, the customer shall be entitled to assert its right of retention only to the extent its counter-claim is based on the same contractual relationship.
3.6 Credits are expressly issued for the purpose of offsetting. There is no right to receive payment in lieu.
3.7 In the event of doubts as to the solvency of the customer, we reserve the right to demand advance payments or securities. If we become aware that an at-tempt at attachment has been unsuccessful with regard to the customer or if we receive indications of the customer’s financial deterioration, we shall be entitled to revoke the contract subject to set-off for any expenses incurred.
4. Delivery time - Terms of delivery
4.1 The commencement of the delivery period stated by us or agreed with us is subject to the clarification of all technical questions, documents to be sup-plied by the customer, necessary permits and releases, in particular of plans, as well as compliance with the agreed terms of payment and the fulfilment of other cooperative actions by the customer.
4.2 Compliance with our delivery obligation further presupposes the timely and proper fulfilment of the customer’s obligation as well as our proper supply of the raw materials required for the manufacture of the delivery product. We re-serve the defence of non-performance under the agreement.
4.3 If non-compliance with delivery dates is due to a force majeure event, for ex-ample strike, lockout, etc., applicable deadlines shall be extended according-ly. Such a reasonable extension of the delivery periods shall also occur if we are not supplied correctly and on time (reservation of correct and punctual self-supply).
4.4 If the customer is in default of acceptance or culpably violates other obliga-tions to cooperate, we will be entitled to demand compensation for the losses incurred by us in this regard including any additional expenses. We reserve the right to assert additional claims and rights. If the shipment, dispatch or de-livery is postponed at the request of the customer, we may charge the cus-tomer a storage fee of 0.05% of the invoice amount for each month or part thereof, but no more than 5% of the invoice amount, starting 10 days after we have notified the customer that the goods are ready for dispatch. Both parties may provide evidence that actual expenses were higher or lower.
4.5 To the extent that the conditions referred to in Section 4.4 were fulfilled, the risk of accidental loss or accidental deterioration of the object of purchase will pass to the customer at the time that they are in default of acceptance or payment.
4.6 We are liable based on applicable provisions of law provided the underlying purchase agreement represents a fixed date transaction within the meaning of section 376 German Commercial Code. We are likewise liable on the basis of applicable provisions of law to the extent that the customer would be enti-tled to assert that it no longer had an interest continuation of the contract fol-lowing a delay in delivery for which we are at fault. 4.7 Furthermore, we are liable based on applicable provisions of law to the extent that a delay in delivery is based on a breach of contract for which we are at fault committed intentionally or due to gross negligence. Fault on the part of our representa-tives and agents will be attributed to us. In the event that a delay in delivery is based on a breach of contract for which we are at fault where such breach was committed intentionally or due to gross negligence, our liability for dam-ages will be limited to foreseeable damages typical to the contract.
4.8 We are furthermore liable based on applicable provisions of law to the extent that a delay in delivery for which we are at fault is the result of a breach of a material contract obligation for which we are likewise at fault. In such cases, however our liability for damages will be limited to foreseeable damages typ-ical to the contract.
4.9 We are entitled to make partial deliveries to a reasonable extent. Variations with regard to the dimensions, weight, technical design, manufacture and scope of the goods to be delivered are permissible within customary product-specific tolerances. In addition, modifications deemed to comprise technical improvements to our products shall be deemed to have been approved by the customer.
5. Passage of risk - Packaging costs
5.1 To the extent not otherwise indicated in the order confirmation, delivery is agreed “ex works”.
5.2 Special agreements apply to the return of packaging.
5.3 If the customer so wishes, we shall purchase transport insurance for a con-signment; the costs incurred in this respect shall be borne by the customer.
5.4 The customer is obliged to name one or more persons within a reasonable period before delivery of the goods who are authorised to receive the goods and the accompanying documents and to sign the delivery documents and the accompanying documents by the customer. This applies in particular if the goods are to be delivered to a location other than the registered office of the customer. If such information is not provided, those persons who have ac-tually received the goods shall be deemed to be entitled to receive the goods and authorised to sign the transfer documents (delivery note and other ac-companying documents).
5.5 If no person designated by the customer is present at the agreed time and place, or if this person or other persons is not prepared to accept the goods, the customer shall be in default of acceptance with the consequence that the risk shall pass to the customer at such point in time. Furthermore, it shall bear any additional costs arising from the fact that delivery must be made again.
5.6 The customer may not refuse receipt of deliveries due to minor defects.
6. Liability for defects
6.1 Claims for defects on the part of the customer require the customer to have properly fulfilled its duties of inspection and notification pursuant to section 377 German Commercial Code (“HGB”).
6.2 If the object purchased is defective, we are entitled to, at our election, provide supplementary performance in the form of remedial action or to supply a new, defect-free replacement. In the event of an attempt at cure or replacement de-livery, we are obliged to bear all expenses necessary to cure the defect, in particular transport, travel, labour and material costs, as well as the costs of removing the defective object and the installation of the repaired object to re-placement delivery, to the extent they are not increased as a result of the cir-cumstance that the object purchased was sent to a location other than the place of fulfilment unless delivery corresponds to its intended use. We may refuse at attempt at cure if the costs of remedying the defect are likely to ex-ceed the purchase price.
6.3 Installation and dismantling costs shall only be borne by us if the item has been installed in another item or attached to another item in accordance with its type and intended use and we are responsible for the defect giving rise to the demand for cure.
6.4 If an attempt at cure fails, the customer is entitled to, at its option, revoke the contract or demand a reduction in price.
6.5 We are liable on the basis of applicable provisions of law to the extent that the customer asserts claims for damages that are based on intent or gross negligence on our part or that of our representatives or agents. Liability for damages is limited to damages that are foreseeable and typical to the con-tract in cases where we are not at fault for an intentional breach of contract.
6.6 We are liable based on applicable provisions of law in the event of a breach of a material contract obligation for which we are at fault. In such cases, how-ever our liability for damages will be limited to foreseeable damages typical to the contract. A material contract obligation is concerned in cases where the breach relates to a duty the satisfaction of which the customer has relied up-on and is entitled to so rely.
6.7 This is without prejudice to liability for culpable injury to life, limb or health; this shall also apply to mandatory liability under the Product Liability Act.
6.8 In all other cases liability is excluded except as provided above.
6.9 The limitations period for warranty claims is twelve months from the passage of risk.
7. Overall liability
7.1 Any additional liability for damages beyond what is provided in Sections 6 and 4 is - regardless of legal basis underlying any claims asserted - exclud-ed. This applies in particular to compensation for damages related to a viola-tion of any pre-contractual obligations, violations of other duties or based on tort-related claims for compensation for property damage pursuant to section 823 German Civil Code.
7.2 The limitations period for all claims that are not subject to the limitations peri-od based on defects in the respective item shall be 18 months. It commences upon knowledge of the damage and the person causing the damage.
7.3 The limitation provided in Section 7.1 also applies to the extent the customer demands compensation for futile expenses rather than compensation for damages in lieu of performance.
7.4 To the extent our liability is excluded or limited, this applies in like manner to the personal liability for damages on the part of our salaried personnel, em-ployees, associates, representatives and agents.
8. Reservation of title
8.1 We retain title to the object sold until receipt of all payments arising from the business relationship with the customer. If the customer breaches its contrac-tual obligations or is in default of payment, we may revoke the contract if it does not fulfil its obligations after we have set a reasonable deadline or, without a warning, if we cannot reasonably be expected to adhere to the con-tract. We can also declare revocation by retaking possession of the object sold. We are entitled to dispose of the object sold following repossession; the profit from disposal less reasonable disposal costs is to be added to the cus-tomer’s liabilities.
8.2 Until the final passage of title, the customer is obliged to handle the object purchased with care. In particular, the customer is obliged to insure it against damage by fire, water or theft in a sufficient amount based on the replace-ment value. To the extent maintenance and inspection work is necessary, the customer must perform such work at its cost and expense in a timely manner.
8.3 The customer is required to provide us immediate written notice in the case of seizure or any other actions by a third party so that we may file suit under sec-tion 771 German Code of Civil Procedure (“ZPO”). In the event such a third party is not able to reimburse us for the judicial and extra-judicial costs of a lawsuit pursuant to Section 771 German Code of Civil Procedure (ZPO), the Customer is liable for damages incurred by us.
8.4 The customer is entitled to re-sell the object purchased within the ordinary course of business, however the customer now assigns us hereby in advance all receivables to which it becomes entitled in relation to its customers or third parties by virtue of such a re-sale, namely regardless of whether or not the object purchased is re-sold following additional processing. The amount of this assignment equals the final invoice amount (including VAT) of our claims. The customer is authorised to collect the receivables even after their assign-ment. Our authority to collect the receivables ourselves remains unaffected thereby. However, we agree not to collect the receivable to the extent that the customer fulfils its obligation to pay using the proceeds received, is not in de-fault of payment and, in particular, no application to initiate insolvency pro-ceedings has been filed, or payment has been suspended. However, if this is the case we are entitled to request that the customer disclose the assigned receivables and their debtors to us, that it furnishes all information required for collection, that it surrender the associated documents, and that it informs the debtors (third parties) of the assignment. The claim assigned by us in ad-vance also relates to the acknowledged balance as well as to the then-open causal balance in the event of the insolvency of the customer.
8.5 Processing or transforming the object purchased by the customer is done on our behalf in all cases. We acquire a co-ownership right in the new object in relation to the value of the object purchased (invoice amount including VAT) to the other modified items at the time of processing in cases where the object purchased was processed with other items that are not our property. For all other purposes, the provisions applicable to an object purchased subject to reservation of title apply to the new object resulting from processing.
8.6 We acquire a co-ownership right in the new object in relation to the value of the object purchased (invoice amount including VAT) to the other modified items at the time of mixture in cases where the object purchased was insepa-rably mixed with other items that are not our property. If mixture is performed in such a manner that the customer’s object is to be viewed as the primary object, it is deemed to have been agreed that the customer transfers a pro-portionate joint ownership interest to us. The customer shall preserve the sole or joint ownership arising in this way for us.
8.7 For purposes of securing our claims in relation to the customer, the customer also assigns to us the receivables due from a third party arising as a result of the connection of the object purchased to a parcel of real estate.
8.8 Upon request of the customer, we agree to release collateral provided to us to the extent that the realisable value of such collateral exceeds the value of the claims secured by such collateral by more than 10%; in such cases we are free to choose collateral to be released.
9. Jurisdiction - Place of Performance - Severability Clause
9.1 If the customer is a merchant, the place of jurisdiction for all disputes arising under or in connection with this contract shall be Sundern (Sauerland) to the exclusion of any other place of jurisdiction; however, we shall also be entitled to sue the customer at its general place of jurisdiction.
9.2 The laws of the Federal Republic of Germany shall apply subject to the ex-clusion of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”).
9.3 Unless otherwise stated in the order confirmation, the place of performance for performance and consideration, including payments, shall be the location of our head office in Sundern (Sauerland).
9.4 These Standard Terms and Conditions of Sale shall remain valid even if indi-vidual clauses prove to be invalid. Any such invalid clause shall be amended or reinterpreted by the parties so as to achieve the commercial purpose in-tended by the invalid
provision to the greatest extent possible. The same rule applies if, during per-formance of the contract, a gap that requires supplementation should be dis-covered. If any respective invalidity is based on a performance or time deter-mination, it shall be replaced by the legally permissible measure. Should any provision of these Standard Terms and Conditions of Sale be invalid with re-gard to mandatory foreign law, the customer shall, upon request, agree to any required contract supplements and make any required declarations to third parties or authorities which ensure the validity of the affected provision and, if this is not possible, its economic substance under applicable foreign law.
9.5 The German version of the Standard Terms and Conditions of Sale is the au-thoritative version. It takes precedence over English translations and has been prepared in accordance with German laws and judicial interpretations.
Last updated: April 2019