Terms of Sale, Delivery and Payment
I. General Provisions
1. These Terms of Sale, Delivery and Payment constitute the legal frame-work governing all business relations between OLIGO Lichttechnik GmbH and its customers (hereafter: Buyer) as regards deliveries of goods and/or services offered by OLIGO Lichttechnik GmbH (hereaf-ter „deliveries“). This applies to all future business activities and to already existing business relations. General Terms of Business of Buyer shall only apply if OLIGO Lichttechnik GmbH explicitly acknowledges any such terms in writing. The volume of deliveries is to be stipulated in agreements mutually agreed upon in writing.
2. OLIGO Lichttechnik GmbH reserves the unlimited right of ownership and intellectual property rights regarding offers, estimates and other documents (hereafter „documents“). Such documents must not be disclosed to third parties without previously obtaining written consent of OLIGO Lichttechnik GmbH and are to be submitted to OLIGO Lichttechnik GmbH upon request, if the order is not placed with OLIGO Lichttechnik GmbH. Clauses 1 and 2 shall also apply to all documents of Buyer; these shall only be disclosed to third parties if OLIGO Lichttechnik GmbH has commissioned such parties to effect deliveries on its behalf, subject to obtaining previous consent of Buyer.
3. Partial deliveries are acceptable, within reasonable limits.
4. The term „claims for damages“ in the context of these Terms of Sale, Delivery and Payment, comprises claims for reimbursement of unavailing expenses.
5. Offers submitted by OLIGO Lichttechnik GmbH are non-binding. An agreement shall become binding only after OLIGO Lichttechnik GmbH issues an order confirmation in writing.
6. All technical details contained in our catalogues, lists, drawings and other sales documentation are made according to the best of our knowledge and diligence. However, they are subject to modification in view of product improvement, and OLIGO Lichttechnik reserves the right to modify any such technical details even after an order confirmation has been issued, provided that prices, functionality and deliv-ery periods remain unaffected.
II. Prices and Offsetting
1. Prices are quoted in EUROS ex works, and exclude freight, packaging and the respective VAT.
2. OLIGO Lichttechnik shall deliver orders worth more than EUR 675.00 net without charging freight and packaging to addresses within the territory of the Federal Republic of Germany.
3. For orders with differing invoice and delivery addresses OLIGO Lichttechnik GmbH shall charge a surcharge in the amount of EUR 7.50 net, per differing delivery address, excluding VAT.
4. Initial orders of a new Buyer shall be effected on the basis payment in advance or cash on delivery (COD). Overseas deliveries shall be effected against advance payment of the net invoice amount.
5. In case of custom-made products, half of the invoice amount is to be paid when placing the order. Once confirmed, custom-made orders are irrevocable, i.e. cannot be cancelled by Buyer.
6. In case of a delay in payment OLIGO Lichttechnik GmbH reserves the right to refuse performance until all amounts due from all unpaid in-voices, interests included, have been paid.
7. Buyer is entitled to offset indisputable or legally binding claims only.
8. OLIGO Lichttechnik is entitled but not obliged, to place samples at Buyer’s disposal, free of charge for a period of three weeks. Samples must be explicitly indicated as such in every respective order. The charges for samples shall be based on the price lists and delivery terms valid at time of delivery (trial purchase). Buyer is entitled to cancel a trial purchase within the three weeks‘ period stated above. In case of a cancellation Buyer shall return the goods franco domicile and ensure that the goods be returned in perfect condition. In this case Buyer shall receive a credit note for the amount equaling the purchase price but excluding the cost of freight to delivery address and packaging. Should the goods returned not be in perfect condition, Buyer shall be obliged to pay the full invoice amount.
9. OLIGO Lichttechnik GmbH is entitled to accommodate Buyer by taking back goods at its own discretion. In this case OLIGO Lichttechnik shall charge a processing fee in the amount of 30% of the net invoice amount, excluding VAT.
III. Reservation of Proprietary Rights
1. All goods (conditional goods) shall remain property of OLIGO Lichttechnik GmbH until all financial obligations of Buyer towards OLIGO Lichttechnik GmbH have been met. Should the total amount of all liens OLIGO Lichttechnik GmbH is entitled to, exceed the amount of all secured interests by more than 10%, OLIGO Lichttechnik GmbH shall release, upon Buyer’s request, a respective share of the liens; OLIGO Lichttechnik GmbH is entitled to choose freely between various liens.
2. As long as the goods are subject to proprietary rights, Buyer is not entitled to pledging of goods or transferring securities. Buyer shall only be allowed to sell goods subject to proprietary rights to distributors if these agree to sell the goods to their customers against cash payment or as conditional sale until the customers meet all their obligations towards the distributor.
3. Should Buyer sell goods subject to proprietary rights, he herewith agrees to unconditionally transfer all future demands towards his customers, hence revenues from resale, ancillary rights included, to OLIGO Lichttechnik GmbH. Should Buyer sell the goods subject to proprietary rights collectively with other goods, without establishing an individual price for the goods subject to proprietary rights, he herewith agrees to transfer the share of the total sales amount to OLIGO Lichttechnik GmbH equaling the invoice amount for the goods subject to proprietary rights.
4. Should the goods subject to proprietary rights of OLIGO Lichttechnik GmbH lose their original character, by transformation, construction or processing, for example, Buyer herewith agrees to transfer all claims he is entitled to from his customers or third parties, equaling the amount of his obligations according to clause 1, to OLIGO Lichttechnik GmbH.
5. Buyer is entitled to collect outstanding debts. However, for good reason such as delay in payment, cessation of payment, instigation of an insolvency proceeding, bill protest, evidence of excessive indebtedness, or bankruptcy of Buyer, OLIGO Lichttechnik GmbH is entitled to revoke this authorization.
6. OLIGO Lichttechnik GmbH is entitled to disclose assignment of security, to commercialise the assigned book account and to demand disclosure of assignment of security on the part of a customer towards Buyer. Upon request, Buyer is obliged to disclose to OLIGO Lichttechnik GmbH any assignment of security and names of debtors.
7. In case of seizure, detention or any other form of act of disposal or intervention of third parties, Buyer is obliged to immediately inform OLIGO Lichttechnik GmbH accordingly. In case of good reason Buyer is obliged to provide OLIGO Lichttechnik GmbH with details and documents regarding his claims against his customers.
8. Should Buyer violate any of his obligations, delay in payment in particular, OLIGO Lichttechnik GmbH is entitled to repossess goods or cancel agreements, after expiry of a reasonable period to perform; the statutory provisions on dispensability of granting delays shall remain unaffected. Buyer is obliged to hand over the goods. Repossession of goods or enforcement of proprietary rights or seizure of goods subject to proprietary rights by OLIGO Lichttechnik GmbH does not represent cancellation of the contract, unless specifically expressed by OLIGO Lichttechnik GmbH.
IV. Delivery Period and Delay
1. Place of performance for OLIGO Lichttechnik GmbH is Hennef, Federal Republic of Germany.
2. In case of failure to perform, due to Force Majeure, i.e. mobilisation, war, unrest or similar phaenomena such as industrial action, lockouts, etc., delivery periods shall be extended accordingly. Same applies in case of unpunctual or irregular provision of OLIGO Lichttechnik GmbH by its suppliers.
3. Should Buyer verifiably suffer losses resulting from delays in delivery on the part of OLIGO Lichttechnik GmbH, he shall be entitled to claim compensation in the amount of up to 5% of the price of the very item the effective use of which is impossible, as a result of a delay in delivery.
4. Buyer is not entitled to any claims resulting from a delay in delivery or from non-performance beyond the amount stated in clause 3, even after expiry of a last deadline granted to OLIGO Lichttechnik GmbH in accordance with statutory provisions. This shall not apply in case of an intentional act or gross negligence or damage to a person’s life, health and body, or in case of liability resulting from the product liability act or based on any other statutory right. Buyer is not entitled to cancel the contract within the framework of statutory provisions, as long as a delay in delivery remains within reasonable limits. A reversal of evidence to the detriment of Buyer is not affected by the provisions listed above.
5. In case of a delay in delivery, upon request and within a reasonable period, Buyer is obliged to inform OLIGO Lichttechnik GmbH whether he intends to cancel the order or if he insists on deliveries being effected. After expiry of the period mentioned above OLIGO Lichttechnik GmbH shall be entitled to cancel the order concerning the part in question or to cancel the contract.
6. Should more than one month elapse between the date of releasing a delivery note and the date of delivery or reception of goods upon request of Buyer, OLIGO Lichttechnik GmbH is entitled to charge at Buy-er’s account storage fees of 0.5% of the invoice amount for every month commenced, but not more than 5% of the invoice amount. Providing evidence of any higher or lower warehouse costs as well as claims for covering other charges, remain at discretion of the contract parties.
V. Transfer of Risk
1. Transport shall be effected at Buyer‘s risk.
2. Transfer of risk shall take place in the moment of handing the goods over to a forwarder or of the collection of goods, even in case of deliveries free of charge. Upon request and at the expense of Buyer OLIGO Lichttechnik GmbH shall insure goods against common transport risks.
3. In case of a delay in delivery (sending, receiving or collecting goods) required by Buyer for good reason, or if Buyer is not able to accept the goods for any other reasons, transfer of risk shall take place irrespective of the whereabouts of the goods.
1. Buyer is not entitled to refuse acceptance of (partial-) deliveries for minor defects.
2. Transport damage is to be reported to the forwarder at the time of delivery (qualified acceptance of goods). OLIGO Lichttechnik GmbH cannot be held liable for transport damages (sale by delivery to a place other than the place of performance). All goods delivered are to be inspected regarding quantity and condition within 5 working days from date of receipt. Details of damages or defaults are to be reported to OLIGO Lichttechnik GmbH in writing. Damages or defaults are to be reported prior to the goods or parts thereof being processed or incorporated into components. Should Buyer fail to report, according to the provisions stated above, damages and defaults shall not be recognised by OLIGO Lichttechnik GmbH and shall be considered as transport damages.
3. Return shipments – irrespective of reason – are to be announced within a period of 14 days and all the reasons submitted in writing. Buyer shall obtain a return shipment number and be obliged to register the shipment under the number indicated; otherwise OLIGO Lichttechnik GmbH is entitled to refuse to accept any such shipment.
OLIGO Lichttechnik shall be liable for defects as follows:
1. Condition of goods is defined by the respective product description exclusively.
2. In case of claims for damages resulting from defects, the goods subject to claims are to be returned to OLIGO Lichttechink GmbH duly packed and protected from damage during transport. If OLIGO Lichttechnik GmbH has a backhaul packaging, Buyer shall be obliged to request and use it.
3. OLIGO Lichttechnik GmbH shall bear the costs related to inspection of goods and supplementary performance, in particular cost of transport, labour and material (not assembly and disassembly costs), if a claim proves to be justified. However, if a Buyer’s claim proves to be unjustified, OLIGO Lichttechnik GmbH is entitled to charge the costs incurred at Buyer’s expense.
4. OLIGO Lichttechnik GmbH shall mend, replace or provide, free of charge, those goods or services which prove to be defective, at it deems best, provided that the cause of defect had existed prior to the transfer of risk.
5. OLIGO Lichttechnik GmbH cannot be held liable for any subsequent damage.
6. Claims for supplementary performance shall elapse after a period of 12 months, commencing with the first day of the statutory limitation; same applies to cancellations and reductions. This period shall not apply to cases where contrasting regulations in accordance with §§ 438 clause 1 No. 2 (buildings and building equipment), 479 clause 1 (right of recourse) and 634 a) clause 1 No. 2 (construction defects) of the German Civil Code award longer statutory limitation in case of intentional action, deceit and fraudulent concealment of defects and noncompliance with factual nature. Statutory regulations on suspension of statute of limitations, suspension and reinstitution of statutory periods remain unaffected.
7. Buyer’s report of defects is to be submitted immediately and in writing.
8. In case of a claim for damages resulting from defects, a retention of payments on the part of Buyer shall be tolerated insofar as they re-main within a reasonable proportion of and relation to the defect occurred. Buyer shall be entitled to retain payments only if the defects are acknowledged or established by legal institutions. Buyer is not entitled to resort to the right of retention if the claim for damages becomes statute-barred. If the claim for damages proves to be unjustified, OLIGO Lichttechnik is entitled to claim compensation from Buyer for any costs incurred.
9. Claims for damages resulting from defects shall be considered invalid in case of minor deviation from the product nature agreed upon, insignificant limitation of functionality or use, natural tear and wear or damage occurred after the transfer of risk, as a consequence of faulty or negligent treatment, excessive use, improper means of treatment or processing, or special external influence beyond the provisions of this contract. Furthermore, claims for damages resulting from defaults shall not be considered in case of improper modifications or maintenance being carried out by Buyer or third parties, nor for any defaults resulting from any such action.
10. Claims for damages resulting from defects and raised by Buyer based on material defects shall not be considered. This shall not apply in cases of fraudulent concealment of defects, noncompliance regard-ing nature of product guarantee, damage to a person’s life, body and health and in case of gross or intentional violation of duties by OLIGO Lichttechnik GmbH. A reversal of the burden of proof to the detriment of Buyer shall remain unaffected by the provisions stated above. Any claims differing from those stated in this clause 7 raised by Buyer and based on defects, shall not be considered.
VIII. Industrial and Intellectual Property Rights; Legal Defects
1. Unless otherwise expressly agreed upon, OLIGO Lichttechnik GmbH shall be obliged to effect deliveries free of industrial and intellectual property rights of third parties (hereafter: property rights) in the country of delivery only. Should a third party raise legitimate claims against Buyer for breach of property rights, based on contract related deliveries effected by OLIGO Lichttechnik GmbH, Buyer shall be entitled to hold OLIGO Lichttechnik GmbH liable within the certain periods stipulated in Article VII clause 6, as follows:
a) OLIGO Lichttechnik GmbH shall, at its discretion and at its expense, either acquire right of use for the respective delivery, or modify it, insofar as to avoid infringing property rights, or replace the delivery. Should this not be feasible for OLIGO Lichttechnik GmbH within reasonable terms and conditions, Buyer shall be entitled to statutory cancellation and additional reductions.
b) Obligations of OLIGO Lichttechnik GmbH as regards compensation of Buyer for damages, are governed by Article X.
c) All obligations of OLIGO Lichttechnik stated above shall be effect tive only if Buyer informs OLIGO Lichttechnik immediately and in writing of any claims raised by third parties, if Buyer does not acknowledge claims of infringement and if OLIGO Lichttechnik GmbH reserves the right to recourse to all means to ward off such claims or to settlement negotiations. Should Buyer interrupt or abandon deliveries for reasons of mitigation of damages or for any other good reason, he shall be obliged to communicate to the third party the fact that abandoning or interrupting deliveries does not imply an acknowledgement of infringement of property rights.
2. All claims of Buyer shall be barred, should he be responsible for infringement of property rights.
3. In addition, claims of Buyer are barred should infringement of property rights result from specific instructions of Buyer, from application of deliveries not envisaged by OLIGO Lichttechnik GmbH or from Buyer’s modifying or using the deliveries in combination with products not delivered by OLIGO Lichttechnik GmbH.
4. In case of infringement of property rights in accordance with Buyer’s claims governed by clause 1 a), provisions of Article VII No. 8 shall apply respectively.
5. Other legal defects are governed by provisions of Article VII respectively.
6. Any further claims of Buyer, or other than those covered by Article VIII, raised against OLIGO Lichttechnik GmbH and its representatives for any legal defects, are barred.
IX. Impossibility; Contract Adjustment
1. In case of failure of delivery, Buyer shall be entitled to claim compensation for non-performance, unless OLIGO Lichttechnik GmbH provides evidence that the non-performance is beyond its control. However, the total amount of any such compensation claim is limited to 5% of the value of the item subject to non-performance of delivery. This restriction shall not apply in case of intentional or gross negligence or in case of damage to a person’s life, body or health, in case of product liability act or any other case of statutory liability; a reversal of the burden of proof to the detriment of Buyer shall remain unaffected by the provisions stated above. The right of Buyer to cancel the contract remains unaffected.
2. Should the economic importance or the content of a delivery have to be modified, or should it influence the activities of OLIGO Lichttechnik GmbH substantially as a result of unforeseeable circumstances in accordance with the provisions of Article IV clause No. 2, the contract shall be modified accordingly, acting in good faith. Should such a modification not be economically justifiable, OLIGO Lichttechnik GmbH shall be entitled to cancel the contract. Should OLIGO Lichttechnik intend to make use of this provision, it shall inform Buyer accordingly and immediately upon understanding the amplitude of the situation, even if a delay in deliveries has been agreed upon with Buyer.
X. Other Claims for Damages; Limitation Period
1. Claims for damages raised by Buyer, irrespective of their legal basis, especially resulting from violation of contractual obligations or from unauthorised action, are barred.
2. This shall not apply to cases of statutory liability, e.g. Product Liability Act, gross negligence, fraudulent intent, breach of warranty, culpable damage to a person’s life, body or health or culpable breach of substantial contractual obligations; whereby claims for damages resulting from culpable breach of substantial contractual obligations remain restricted to liability for typical, foreseeable damages, other than intentional or gross negligence, fraudulent intent, breach of warranty, damages to a person’s life, body or health. A reversal of the burden of proof to the detriment of Buyer shall remain unaffected by the provisions stated above.
3. Insofar as liability for damages by OLIGO GmbH Lichttechnik is excluded or limited, the same shall apply to personal liability for damages of its employees, staff members, representatives and its factors, servants and assignees.
4. Insofar as Buyer is entitled to claims for damages, any such claims shall lapse at the end of the period of limitation according to Article VII clause 6. Same shall apply to claims of Buyer related to any measures of damage prevention (e.g. product recall). In case of claims for damages according to Product Liability Act statutory periods of limitation shall apply.
XI. Take-Back Obligation according to § 10 clause 2 ElektroG (Electrical and Electronic Equipment Act)
1. Buyer agrees to depollute and dispose of deliveries after end of product life at his own expense and according to statutory provisions and to discharge OLIGO Lichttechnik GmbH from obligations according to § 10 clause 2 ElektroG (Take-Back Obligation of Manufacturer), hence any claims of third parties resulting thereof.
2. Should Buyer pass deliveries on to commercial partners without committing them to take back, depollute and duly dispose of the products delivered, he shall be obliged to take back, depollute and duly dispose of any such goods at the end of product life and in accordance with the respective statutory provisions. Any claim by OLIGO Lichttechnik GmbH regarding Buyer’s take-back obligation shall lapse two years after the irrevocable end of life of an appliance. This two years‘ period of suspension of statute of limitations shall commence with the date of Buyer informing OLIGO Lichttechnik GmbH, in writing, of the irrevocable end of life of a product.
XII. Place of Jurisdiction and Applicable Law
1. Place of Jurisdiction (including actions on cheques and bills of exchange) is Siegburg, Federal Republic of Germany, concerning all proceedings, whereby Buyer is an established and/or registered merchant, a corporate body under public law, or a special body under public law, and all actions directly or indirectly resulting from or concerning the contract relations of the parties hitherto. OLIGO Lichttechnik GmbH is also entitled to instigate legal proceedings at place of jurisdiction of Buyer.
2. All legal relations within the framework of this contract are governed by the substantive law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIII. Final Clause
Any aberration from these Terms of Sale, Delivery and Payment, including changes to this written form clause, are subject to mutual agreement in writing.
Should individual provisions of this contract become legally void, the legal integrity of the contract shall remain unaffected. This clause shall not apply if adherence to the contract imposes unreasonable hardship onto one of the parties hitherto.