Terms of Delivery & Payment - International
Terms of Delivery & Payment
(Revised 01/08/2017; apply only to businesses and public customers outside Germany).
1. Scope of Application, Storage of Data
a) Until such time as they are revoked by us, these Terms of Delivery and Payment shall apply for all business transactions, including future transactions, even if they are not expressly agreed at the time. Each and every agreement diverging from this must be confirmed by us in writing.
b) Customer waives inclusion of its general terms of business, in particular its terms of purchase, which shall not become an integral part of the contract even if we fail to object to them or if we make a delivery. These Terms of Delivery and Payment shall be deemed accepted on receipt of our goods at the latest.
2. Conclusion of Contract, Prices, Minimum Order
a) All our offers and price lists are subject to change and are not binding. The submission of an offer shall in no way oblige us to accept an order. Orders shall not be deemed accepted by us until we have confirmed the order in writing.
b) Prices are ex works excluding packaging according to Incoterms 2010. They are net prices to which the turnover tax applicable at the time is to be added. Unless a special agreement has been reached in writing, the prices applicable on the day of delivery shall be charged.
c) For each country, different minimum order quantities and extra charges (packaging and delivery) for small order quantities apply.
d) All orders are legally binding. There is no right of withdrawal or cancellation of the order.
3. Delivery, Consignment, Delay
a) Unless otherwise agreed, deliveries shall be made ex works as defined in Incoterms 2010. The risk devolves to Customer as soon as the goods leave our factory or warehouse.
b) The delivery period shall be reasonably extended if we are subsequently prevented from punctual performance of the contract due to any disruption involving procurements, manufacture, or deliveries either at our place of business or that of our own suppliers, e.g. due to energy shortages, traffic disruptions, shortages of raw materials, defects in quality, changes in the quality of raw materials, strikes, lockouts, staff shortages, and all other instances of force majeure and reasons that are beyond our control and verifiably prevent us from meeting the deadlines. Customer may rescind the contract only if we have been granted a subsequent extension of time in writing. Notice of rescission must be given in writing if we fail to perform within the extended period.
c) If Customer defaults in payment for a previous delivery, we shall be entitled to withhold deliveries or to rescind the contract without being under any obligation to afford compensation for any losses incurred.
d) We are entitled to make partial deliveries and to make customary over or under deliveries of up to 10% of the total order.
4. Returning Goods
a) The right to return or exchange goods that have been ordered is excluded. However, if in any specific case we agree to a return being made, issuing written confirmation to this effect beforehand, the goods must be delivered to our place of business freight paid and at Customer’s risk. As a matter of principle, credit notes shall be issued only for whole boxes in their original packaging.
b) When credit notes are issued, costs at a flat rate of 20% of the order value, but at least EUR 100, shall be deducted. If additional expenses are incurred, e.g. repairs or repackaging, they shall be charged separately. Warehouse goods that are not easily sold or are outdated, and special orders or made-to-order items and specially stamped goods may not be returned. This shall not apply if Customer’s withdrawal from the contract is justified.
c) The return of used goods is excluded, with the exception of acknowledged claims.
5. Payment, Interest, Setoff, Retention
a) Our invoices are payable within 15 days of date of invoice without deduction unless otherwise agreed. However, we may deliver subject to advance payment.
b) We reserve the right to decide whether to accept bills of exchange on an individual basis. Bills of exchange shall be accepted by way of payment only. For bills of exchange, we charge the customary bank discount rate and collection fees. We do not assume any guarantee for punctual collection or objection.
c) Payment shall not be deemed effected until the funds are irrevocably cleared on our account in full.
d) If Customer defaults in payment, default interest at the statutory rate (§6:119a of the Civil Code of the Netherlands) shall be due, to be paid retrospectively on a monthly basis. We reserve the right to charge further damages for delayed performance.
e) If our terms of payment are not met, all our demands shall become due for immediate payment.
f) Only those persons who have our written authorization to collect are entitled to receive payments.
g) Customer may exercise the right of retention only if its counterclaim is based on one and the same contractual relationship. Customer is entitled to set-off only if its counterclaims have been finally established in a court of law or acknowledged by us.
6. Retention of Title
a) The goods supplied shall remain our property until the purchase price and all our other receivables from Customer have been paid in full, or if cheques or bills of exchange have been offered – including bills discounted by Customer itself – until they have been honoured. This shall also include conditional claims. In respect of current accounts, the right of retention shall be deemed security for our claim to the account balance. This shall also apply to claims that are conditional or arise at a future date.
b) If Customer defaults in payment, if there is any substantial deterioration in its financial position, or if a petition is filed for the initiation of insolvency proceedings against its assets, we are entitled to rescind the contract and to demand surrender of the goods subject to retention of title. Customer shall then be under obligation to grant us access to the goods subject to retention still in its possession, to draw up and provide us with an exact list of the goods, and to select the goods and hand them over to us. Apart from this, we must be furnished with all the documents and all the information relevant to the safeguarding of our title.
c) If the total value of the securities provided to us exceeds our demands by more than 10%, we shall, at Customer’s request, release securities to this extent at our discretion.
d) The goods subject to reservation of title must be insured by Customer against all storage risks, and at our request Customer must prove that such insurance has been effected. Customer shall bear the costs for all the obligations to cooperate given above. Customer must inform us immediately of any attachment or other interference by third parties.
7. Claims, Guarantee, Rescission
a) As a general rule, defective products must be returned to us for in-house quality inspection before a warranty claim can be approved. In very rare and exceptional cases and only with our prior consent, the return of products can be waived, if Customer provides product code, production code, and comprehensive photos that prove the defectiveness of the product.
b) For defective goods, we shall initially provide a guarantee in the form of subsequent improvement or substitute delivery, at our discretion.
c) If subsequent performance fails, Customer may demand a reduction in the price or rescission of the contract, at its discretion. However, if there is only a minor breach of contract, in particular if defects are only slight, Customer shall have no right of rescission.
d) Customer is obligated to report obvious defects in writing within 2 weeks of receiving the goods; otherwise the assertion of the guarantee claims shall be excluded. For the deadline to be met, it shall suffice for the report to be sent on time. Customer shall bear the full burden of proof for all the circumstances supporting its claim, in particular for the defect itself, for the time at which the defect was established, and for the complaint being lodged in good time.
e) If, after performance has failed, Customer opts to rescind the contract due to a legal defect or a defect in quality, it shall not be entitled to claim any additional compensation for the defect.
f) If, after subsequent performance has failed, Customer opts to claim compensation, then Customer shall retain the goods if it may reasonably be expected to do so. The compensation shall be limited to the difference between the purchase price and the value of the defective object.
g) The specifications given in our catalogue or other descriptions of our products (excluding packaging) shall constitute the agreed standards of the lighting products we supply. Public statements, recommendations, or advertising made by us apart from this shall not constitute any contractual specification of the quality of the goods. The average service life specified means that at least 50% of the lighting products in a packaging unit have the average service life specified for a specific type of lighting product, provided the nominal voltage, normal switching conditions, and the normal length of usage per day are observed.
h) Irrespective of the average service life, the guarantee is limited to a period of 12 months from the date of delivery. For lighting products for which we specify an average service life of more than 12 months in our catalogue or in other product specifications (excluding packaging), this service life shall be deemed an agreed standard, but the guarantee for these lighting products shall be limited to 24 months from the date of delivery.
h) If Customer receives assembly/installation instructions from us containing errors, we shall be obligated to supply assembly/installation instructions that contain no errors, but only if the errors in the assembly instructions prevent proper assembly.
i) Unless expressly agreed otherwise in writing, we shall not give Customer any guarantees in a legal sense.
8. Adjustment of the Contract
If unforeseen events as defined in item 3 (c) above substantially alter the economic significance or the subject matter of the delivery or performance, or have a substantial impact on our sector, the contract shall be adequately adjusted to an extent corresponding with good faith. If it is not reasonable in economic terms to do so, we shall be entitled to rescind the contract. If we wish to exercise this right of rescission, we must notify Customer to this effect without delay on realising the impact of the event, even if an extension of the delivery period had initially been agreed with Customer.
9. Limitations of Liability
a) For all kinds of damages, we shall be liable in accordance with the legal provisions only in the event of intent and gross negligence, in cases of damage to health, physical injury, or death, and in cases of claims based on the Product Liability Act.
b) In the case of slightly negligent violations of cardinal duties, our liability shall be limited to the direct average foreseeable damage considering the type of goods supplied, and typical for the type of contract. This also applies to slightly negligent violations of duty on the part of our legal representatives or those assisting us in performing our obligations. In all other cases, our liability is excluded.
c) Customer’s claims to compensation for defects of our products shall become time barred one year after the goods have been delivered. This damage will be compensated only if our products were used in accordance with the operating instructions.
d) Our indemnity for losses is limited to EUR 5,000,000 for each liability case.
e) If we give technical information or advice not related to the core contractual relationship, this is provided free of charge and without any liability.
10. Labels on Goods, Export Restrictions, Patent Guarantee
a) Without our prior written permission, Customer is not entitled to alter our goods, remove our stamps or labels, or affix special stamps in such a manner that the public may think that the goods have been manufactured by Customer or a third party.
b) We assume liability for the fact that the goods sold as such are free of third-party rights in the Federal Republic of Germany. If third parties assert legitimate claims based on industrial property rights, we shall at our expense either obtain a license for Customer, replace the goods that have been sold with ones free of industrial property rights, or take the goods back in return for a refund of the purchase price, at our discretion.
c) Our liability for the fact that usage of the goods that have been sold interferes with third-party industrial property rights is limited to gross negligence and intent.
11. Governing Law, Venue, Severability
a) The contract shall be governed by substantive law of the Netherlands. Application of the UN Convention on the International Sale of Goods (CISG) is excluded.
b) It is agreed that Amsterdam shall be the venue for all claims between Customer and ourselves that are based on the contract, including proceedings involving bills of exchange and deeds. We may also sue Customer at its registered headquarters.
c) The legal ineffectiveness of individual provisions of the contractual relationship shall not result in the contract becoming null and void, unless this would involve a grave frustration of contract.
BLV Licht- und Vakuumtechnik GmbH, Muenchener Straße 10, 85643 Steinhoering, Germany