Section 1 General Information – Scope of Application
1.1 These sales conditions shall apply to all business relationships between us – project luna interieur GmbH – and our customers. Our sales conditions shall only apply to companies in the sense of Section 14 of the German Civil Code (BGB). "Customers" in the sense of our sales conditions are only natural persons or legal entities or partnerships with legal capacity acting in the performance of a commercial or self-employed occupational activity.
1.2 Our sales conditions shall apply exclusively. They shall also apply to future orders of the customer. The version of our sales conditions valid at the time of conclusion of the contract shall be applicable. Any conditions of the customer being contrary to or deviating from these sales conditions are not recognised unless we expressly agree to their validity. Our sales conditions shall also apply when we render the service to our customer without reservation in full knowledge of customer's conditions being contrary to or deviating from our sales conditions.
Section 2 Offer – Order Documents, Intellectual Property
2.1 Our offers are always without binding force and subject to change. The customer's order, however, is binding. We shall be entitled to accept the customer's contractual offer within two weeks after receipt. Acceptance may be declared either in writing or by delivery to the customer.
2.2 Drawings, illustrations, dimensions, weights or other performance data are only binding if expressly agreed by us in writing. Public statements, recommendations or advertising shall not constitute any binding description of the quality of the products.
2.3 We reserve all intellectual property rights, industrial property rights and copyrights to our illustrations, drawings, calculations and other documents made known to the customer. These may only be used within the scope specified by us and must not be made accessible to third parties without our express permission.
2.4 The customer shall be obliged to ensure that the execution of the order does not infringe the rights of third parties, in particular their intellectual property and their industrial property rights and copyrights. The customer shall fully indemnify us against all claims by third parties made against us due to the execution of a customer's order in this regard. The provisions of Section 280, para. 1, sent. 2, of the German Civil Code (BGB) shall remain unaffected.
Section 3 Prices – Terms of Payment
3.1 The purchase price offer included in the binding order of the customer/in the order shall be binding. Unless otherwise agreed, our prices are net ex works excluding packaging, transport and customs costs.
3.2 We will not take back any transportation materials or other part-specific packaging materials in accordance with the relevant packaging regulations except packaging materials in case of assembly by our own employees. The customer shall be obliged to provide for the disposal of the packaging at his/her own expense unless our take-back obligation is required by legislation.
3.3 If desired by the customer we will have the delivery covered by a suitable transport insurance. The costs incurred for this insurance shall be borne by the customer.
3.4 We reserve the right to change our prices accordingly if cost reductions or increases not imputable to us occur after the conclusion of the contract, in particular due to collective wage agreements or changes to material prices. We will provide evidence of these changes to the customer upon request. In the event of any continuous obligation and if no agreement can be reached between the parties, the costumer can cancel the contract within one month after notification of the price increase by us.
3.5 The prices do not include the statutory value added tax. It shall be stated separately in the invoice at the statutory rate.
3.6 The deduction of discount shall require a special written agreement.
3.7 Unless a different payment date was specifically agreed, payment will be due without deduction within 30 days of receipt of invoice. If the time allowed for payment is exceeded, we shall be entitled to request overdue payment interests from merchants (Section 353 of the German Commercial Code (HGB)). In case of payment default, the statutory regulations shall apply.
3.8 The customer shall only be entitled to setoff rights, if his/her counterclaims are undisputed or have become recognised by declaratory judgement or by us. The customer shall be entitled to exercise the right of retention if his counterclaim is based on the same contractual relationship.
3.9 We are entitled to assign our payment claims (e. g. to a factor).
Section 4 Delivery Period, Compensation for Rescission of Contract
4.1 The start of the delivery period specified by us presupposes the clarification of all technical questions. The fulfilment of our delivery obligation is subject to the prompt and orderly fulfilment of the customer's obligations. The right to put forward the defence of lack of performance of the contract shall be reserved.
4.2 The delivery period is individually stipulated or indicated by us upon acceptance of the order.
4.3 Should the customer be in default of acceptance or culpably violate other obligations to cooperate we shall be entitled to claim for damages incurred to us including any additional expenditure. Further claims shall remain reserved.
4.4 Events of force majeure, which make it significantly more difficult or impossible to render a service or fulfil an obligation, shall entitle the respective party to postpone its rendering or fulfilment for the period of impediment plus a startup period of reasonable length. Industrial action in the parties' companies or in third parties' companies shall be considered as force majeure. If the rendering of the services cannot be expected due to the kind of impediment within a reasonable period of time, each party shall be entitled to rescind the part of the contract not yet fulfilled in whole or in part.
4.5 The occurrence of a delay in delivery on our part shall be determined pursuant to the statutory regulations. In any case, however, a reminder by the customer is required. If we fall behind with delivery, the customer shall be entitled to demand lump sum compensation for the damage caused by delay. The lump-sum compensation shall be 0.5 % of the net price (delivery value) for each full calendar week of delay, in total, however, not more than 5 % of the delivery value of the products delivered late. We reserve the right to prove that no damage or only a minor damage, lower than the above lump sum, has incurred.
4.6 In case of payment default, application for opening insolvency proceedings, taking information on the financial circumstances pursuant to Section 807 of the German Code of Civil Procedure (ZPO), shortages of liquid funds or significant deterioration of the customer's financial circumstances we shall be entitled to stop delivery immediately and refuse the fulfilment of current contracts. Furthermore, we shall be entitled to declare claims against the ordering party which have not yet fallen due to be immediately due for payment.
4.7 If the customer rescinds an order confirmed by us in writing before delivery of the products with our consent, we shall be entitled to claim lost profit to the amount of 30 % of the order value. The customer shall have the right to prove that no damage or only a minor damage has incurred.
Section 5 Passing of Risk
5.1 In the event of an agreement on the regulations of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the product/workpiece shall pass to the customer upon handover to the forwarding agent, carrier or any other person entrusted with the execution of the shipment.
5.2 The same consequences arise if the customer is in default of accepting delivery.
5.3 If the dispatch or the delivery to the customer is delayed at the customer's request, we shall charge him - commencing on the date that was originally scheduled for the delivery - warehouse charges amounting to 1 % of the invoice amount for each month or part thereof. The customer shall have the right to prove that no damage or only a minor damage, substantially lower than the lump sum, has incurred. In this case, the customer is in default of acceptance.
Section 6 Delivery Commitments – Subject to Correct and Punctual Supply to Our Company
6.1 We undertake to manufacture and deliver the products ordered from us according to the agreed specifications and the state of technology and to observe the marked quality reference samples. We reserve the right to make technical alterations within reasonable limits.
6.2 Partial deliveries shall be permissible as far as can be reasonably expected by the customer.
6.3 Each order of the customer shall be subject to correct and punctual supply to our company by our suppliers. This provision shall only apply in the event that we are not responsible for non-delivery, in particular if we have concluded a congruent hedging transaction with the manufacturer and yet our company does not receive any deliveries. In this case, we shall immediately inform the customer about the unavailability of the product/workpiece and shall be entitled to rescission in accordance with the statutory provisions.
6.4 In case of contracts with performance consisting of several deliveries/services, non-performance, improper or delayed performance of single deliveries or services shall not affect other performances/deliveries of the contract.
Section 7 Customer's Rights in Case of Defects (Warranty Rights)
7.1 The customer's warranty rights require that, for the defect claims to be safeguarded, we are notified of the defects by the customer in writing within one week and pursuant to Section 377 of the German Commercial Code (HGB). The customer shall bear the full burden of proof for all conditions of entitlement, in particular for the defect itself, for the date of discovery of the defect and that the defect claim has been made in time.
7.2 Insofar as the product/workpiece is defective, we shall be entitled, at our discretion, to supplementary performance either in the form of remedial action (remedy of defects) or manufacture and delivery of a new item, free of defects (compensation delivery). We are obliged to bear all costs necessary for supplementary performance, in particular costs for transportation, travel, labour and material, provided these costs do not increase due to the fact that the product/workpiece was brought to a location other than the location of performance.
7.3 If the supplementary performance fails, the customer may, at his/her own discretion, demand the lowering of the purchase price (reduction) or cancellation of the contract (rescission) as well as compensation for damages. In case of a minor non-conformity with the contract, in particular in case of minor defects, however, the customer shall not have the right of rescission. If the customer chooses compensation for damages, the liability limitations of Section 8 shall apply.
7.4 The limitation period for the warranty claims shall be one year from transfer of risk pursuant to Section 5. This shall not apply, however, to claims for damages from the injury of body and the impairment of life or health due to a defect we are responsible for or based on our or our vicarious agents' intentional or grossly negligent conduct. In this case, the statutory limitation period shall remain applicable. The limitation period in case of a delivery recourse pursuant to Sections 478, 479 of the German Civil Code (BGB) shall remain unaffected.
7.5 The customer shall not receive guarantees in the legal sense from us. Manufacturer's guarantees shall remain unaffected by this. For all illuminates we are giving a warranty for three month from date of installation.
7.6 Any claims against us may neither be assigned nor pledged by the customer. Section 354a of the German Commercial Code (HGB) shall remain unaffected
Section 8 Liability Limitations
8.1 We shall be liable to our customers in case of grossly negligent and intentional breaches of duty on our part, on the part of our legal representatives and vicarious agents. In cases of light negligence we shall only be liable - this being restricted to losses foreseeable and typical of this kind of contract - if we, our legal representatives or vicarious agents breach a material contractual obligation (cardinal obligation). For breaching an insignificant contractual obligation we shall not be liable in case of slight negligence. The aforesaid liability limitations shall not apply to claims resulting from the Product Liability Act. Furthermore, they shall not apply to the injury of body or the impairment of life or health attributable to us.
8.2 Inasmuch as liability to us is excluded or limited, this shall also apply to the personal liability of our employees, legal representatives and vicarious agents.
Section 9 Product Consultation, Materials Provided
9.1 We shall not be obliged to test the serviceability and functional capability of materials provided unless the defect of the materials is apparent. This shall also apply with regard to engineering drawings provided by the customer if we make adjustments to the product of another manufacturer in accordance with these engineering drawings.
9.2 We inform the customer about the use, the processing and the application of the products delivered. This, however, shall not release the customer from his/her own examination of suitability for the intended use. The products will only be compatible with other products delivered if expressly guaranteed by us.
Section 10 Securing of Retention of Title
10.1 We shall retain title to the products/workpieces until all payments regarding the relevant order have been made. In case of breach of the contract on the customer's part, in particular in case of delayed payment, we shall be entitled to take back the products/workpieces after an appropriate deadline. Taking back the products shall constitute a rescission from the contract. After taking back the purchased items, we shall be entitled to exploit the products. The earnings from the exploitation less reasonable exploitation costs shall be offset against the accounts payable by the customer.
10.2 The customer shall be obliged to handle the products/workpieces carefully. Insofar as maintenance and inspection work is necessary, the customer shall carry this out in due time and at his/her own expense.
10.3 In case of attachments or any other interventions by third parties, the customer shall notify us immediately so that we may take legal action according to Section 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is unable to reimburse us for the court and out-of-court costs of an action brought in accordance with Section 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for the loss occurred to us.
10.4 The customer shall be entitled to resell the products/workpieces in the ordinary course of his/her business, but in doing so, at that moment, assigns us all claims equivalent to the final invoiced amount of our claims (including statutory value-added tax) accruing to the customer from resale to his/her customers or third parties, irrespective of whether the products/workpieces were resold without processing or after processing. We shall accept the assignment. The customer shall remain authorised to collect this claim even after its assignment. Our authorisation to collect the claim ourselves shall remain unaffected by this. We shall reserve the right to collect the claim ourselves as soon as the entrepreneur does not duly meet his/her payment obligations and is in default of payment. If this is the case, we may demand that the customer informs us of the assigned claims and the debtors, that she/he gives us all the information and relevant documents necessary for collection, and that she/he informs the debtors (third parties) of the assignment.
10.5 Processing or transformation of the products/workpieces by the customer shall always be done on our behalf. If the product/workpiece is processed with other items than those belonging to us, we shall acquire co-ownership of the new object in relation of the value of the product/workpiece (final invoice amount including value-added tax) to the other objects processed at the time of the processing. The conditions that apply to a delivered product/workpiece under retention of title shall also apply to the object created by processing.
10.6 If the product/workpiece is inseparably combined with other objects not belonging to us, we shall acquire a share in the ownership of the new object in the proportion of the value of the purchase item (final invoice amount including value-added tax) to the other combined items used at the time of combining. If the products are combined in such a way that the object belonging to the customer can be regarded as the main object, it shall be deemed as agreed that the customer shall assign proportional co-ownership to us. The customer shall hold the sole or co-ownership thus produced for us.
10.7 To secure our claims against the customer, the customer shall also assign us the claims accruing against a third party resulting from incorporating the product/workpiece into real property.
10.8 At the customer's request, we shall undertake to release the securities that are due to us insofar as their realisable value exceeds the secured claims by more than 10%; the option of securities to release shall reside with our company.
Section 11 Applicable Law - Court of Jurisdiction - Place of Fulfilment
11.1 This agreement shall be subject to the laws of the Federal Republic of Germany except in respect of the provisions concerning the UN Convention on Contracts for the International Sale of Goods (CISG).
11.2 The contract language shall be German. This shall also apply if the contracting parties exchange contract documents written in a foreign language. In the event of disputes regarding the content and interpretation of the agreements contracted between the contracting parties, these contracts shall be interpreted in accordance with the customary language use of the German language.
11.3 If the customer is a merchant under the German Commercial Code (HGB), a legal person under public law or a separate public legal entity, it shall be agreed according to Section 38 of the German Code of Civil Procedure (ZPO) that the court of jurisdiction for all disputes arising between the customer and our company shall be our place of business, Ebermannsdorf. The same shall apply if the customer does not have a place of general jurisdiction in Germany. We shall also be entitled to bring an action against the customer in the court having jurisdiction over his/her place of business or the place of the contracting branch.
11.4 Save where the context otherwise requires, our place of business, Ebermannsdorf, shall be the place of fulfilment.
Section 12 Final Provision
12.1 If individual provisions of the present sales conditions are invalid, this shall not affect the validity of the remaining provisions.