GENERAL TERMS AND CONDITIONS 2016/002

Transcription

1 GENERAL TERMS AND CONDITIONS 2016/ General / scope 1.1 These terms and conditions apply to all product sales and other deliveries and services from NORKA Norddeutsche Kunststoff- und Elektrogesellschaft Stäcker mbh & Co. KG (NORKA), unless any special agreements have been entered into effectively and in text format in an individual case by way of derogation from these general terms and conditions. General terms and conditions of the purchaser shall only apply if NORKA has expressly agreed to these in text format. The matching declarations from both parties in text format shall be conclusive in determining the scope of the deliveries. 1.2 These general terms and conditions shall only apply to enterprises pursuant to section 310 subsection 1 of the German Civil Code (BGB). 2. Formation of a contract 2.1 NORKA is bound by its own quotes for a period of 14 days unless the quote contains a different time commitment. Quotes from NORKA are without obligation. Brochures, images, designs, technical and other product descriptions, dimensions and weights or statements in advertisements do not represent independent quotes or pledges from NORKA and are non-binding. Offers are subject to changes and technical improvements or changes to the design. 2.2 With orders from a purchaser the contracting partner is bound by their order for a period of 28 days following receipt. 2.3 Orders are only binding on NORKA if they are confirmed in text format or through dispatch of the goods together with the invoice. 3. Prices, delivery and returns 3.1 The relevant prices stated in the current sales documents are applicable. All prices are net ex works/germany, not including costs for VAT, packaging, freight, postage, insurance, customs or any other costs. 3.2 Prices agreed in writing, or the prices arising from the order confirmation take precedence over prices stated in catalogues, price lists or earlier quotes. 3.3 NORKA reserves the right to adjust prices for deliveries of goods and services within the framework of continuing obligations without taking delivery periods into account. 3.4 All prices shall be understood as being from a net goods value of EUR Orders with a lower goods value are processed with a flat-rate processing fee of EUR For deliveries where the net value of the goods is EUR 2, or above the goods are delivered free within the Federal Republic of Germany, and free border or FOB outside of the Federal Republic of Germany. For deliveries where the net value of the goods is less than EUR 2, the packaging fees/freight costs incurred are charged at the amount of the costs incurred or at a flatrate fee of EUR 7.50 currently. Page 1

2 3.6 Delivery times for NORKA will be extended appropriately if the agreed delivery deadline is delayed on grounds for which NORKA is not responsible. This applies to cases of force majeure, breaches of obligation by the contracting partner to cooperate or to similar reasons. 3.7 Partial deliveries are permitted. 3.8 In the case of orders which are only called off in parts, the costs will be incurred for each part subject to any prior agreement to the contrary. 3.9 NORKA will insure the goods (breakage, transportation, fire damage) at the customer's request and expense Order changes or cancellations must be made in text form. In the event of a partial or complete cancellation of the order by the purchaser, Norka shall be entitled to charge 10% of the net value of the goods provided that the goods were not yet completed at the time of the cancellation. If the goods (standard goods) are already completed at the time of the cancellation then a cancellation fee of 30% of the net value of the goods shall be charged. Up to 80% of the net value of the goods shall be charged for cancellations of customised goods that have been produced in accordance with the effort and expenditure already incurred at the time of the cancellation Delivered goods will be accepted for return in the event of a justified withdrawal from the contract Any return of goods as a goodwill gesture is excluded where the return shipment request is not made and accepted within 90 days from the delivery date according to the delivery slip Returns must be shipped freight paid and in appropriate and technically correct packaging NORKA charges a flat-rate processing fee of 30% of the net value of the goods for accepting returns. All costs for delivery, return, repair and repackaging, provided that the goods are resalable, must be borne by the return shipper. 4. Risk / transfer of risk 4.1 The risk of the goods being destroyed, lost or damaged is transferred to the purchaser upon shipment. In the event that the purchaser collects the goods the risk is transferred to the purchaser at the point in time that the goods are made available in accordance with the notification. 4.2 If the shipment or delivery is delayed at the customer's request the risk is transferred to the customer from the point in time that the goods are ready for shipment. 5. Payment conditions 5.1 Invoices are payable within 30 days after invoice date without deductions. Divergent payment terms are effective provided that they have been agreed in writing beforehand. 5.2 Any offsetting arrangements or the assertion of a right of retention in relation to a claim from NORKA is only permissible where the claim is undisputed or has been determined in law. 5.3 In the event of default of payment NORKA is entitled to charge default interest up to the amount set out in law above the base interest rate in accordance with section 247 II of the German Civil Code (BGB). The right to assert claims for further damage is reserved. Page 2

3 5.4 If the 30-day period or the payment agreements are not met then extension or part-payment agreements shall cease to be effective and any outstanding amounts shall then be due for immediate payment in their entirety. Any outstanding deliveries will subsequently only be executed following advance payment or with security provided. In the event that there are justified doubts regarding the purchaser's creditworthiness or fulfilment of the contractual terms and conditions, NORKA may also withdraw from the contract and assert claims for damages. 5.5 Payments are generally applied in settlement of the oldest invoices due plus default interest and costs incurred in the following order: costs, interest, principal claim. 6. Retention of title 6.1 NORKA retains the title in the delivered goods until all claims for payment against the purchaser from current and future deliveries have been satisfied in full. This also applies in particular to cases of deliveries with an open account or under current account conditions. 6.2 As security the purchaser assigns all payment claims in relation to NORKA from current and future deliveries of goods together with all ancillary rights to NORKA, including only for the amount of NORKA's share in the title where applicable. This also applies to those cases where the purchaser has its purchase price claim at its disposal (e.g. factoring); in this case the purchaser assigns the portion of the claim to which NORKA is entitled to NORKA. NORKA accepts this assignment through this agreement. 6.3 Provided that the purchaser meets its obligations from the business relationship then it may dispose of the goods to which NORKA retains the title in the ordinary course of business and may also collect the claims assigned to NORKA. In the event of default of payment or if there are justified doubts as to the purchaser's solvency or creditworthiness this right will be withdrawn from the purchaser to the extent that NORKA collects the claim itself or otherwise disposes of the goods delivered under reserve, for instance by taking the goods back or selling them to a third party. 6.4 In the event of default of payment or if new justified doubts as to the purchaser's solvency or creditworthiness emerge, NORKA is entitled to demand information immediately from the purchaser on the customers to whom goods have been sold which remain subject to NORKA's retention of title, to inform these of the existing retention of title and the assignment of the purchase price claim to NORKA and to ensure that the relevant assigned amounts are paid to NORKA, or that NORKA is able to assert and enforce the assigned claims itself through the provision of comprehensive information and handover of documents. 6.5 The regulations in this section also apply to cases where the goods delivered by NORKA are combined and mixed with other goods. 6.6 The purchaser undertakes to transport, store and use the goods delivered which are subject to the retention of title appropriately and in a technically correct manner and to prevent them from being damaged or lost. At its own cost the purchaser must also insure the delivered goods appropriately against fire, water and theft and will assign its claims for compensation in this regard to NORKA for the amount to which the latter is entitled. Page 3

4 6.7 If the purchaser's behaviour is in breach of contract, in particular if it is in default of payment, NORKA is entitled but is not obliged to withdraw from the contact and to take the goods back after a reasonable period has expired. 6.8 Where applicable the purchaser may demand that any securities provided are released provided that these exceed the securities provided for NORKA's benefit by more than 20%. 7. Material defects and defects of title 7.1 NORKA is liable for material defects and for guaranteed characteristics to the exclusion of further claims against it and its assistants and vicarious agents as follows: Negligible deviations from the standard or agreed condition do not give rise to claims for defects. There are no claims for defects in the event of inappropriate handling, mounting or commissioning by the purchaser or third parties. Section 438 of the German Commercial Code (HGB) is applicable in the event of transport damage. Following receipt the purchaser must check the goods without delay for identifiable defects and provide notification of these to NORKA in writing without delay and no later than within 7 working days. This also applies to defects which are detected or which occur later. Notifications of defects must be made to NORKA central office/executive management in order to be effective. Notifications of defects made to sales agents or other third parties are ineffective. In the event of a justified notification of defect the purchaser is entitled to supplementary performance within the framework of the warranty. Claims for compensation against NORKA, its legal representatives and also against its assistants and vicarious agents are excluded unless, in the event of an injury to life, limb or health, this is demonstrably based on a negligent breach of obligation by NORKA or a wilful or negligent breach of obligation of a legal representative or vicarious agent of NORKA, or unless, in the event of other damage, this is demonstrably based on a grossly negligent breach of obligation by NORKA or a wilful or grossly negligent breach of obligation of a legal representative or vicarious agent of NORKA. In the event of a justified defect NORKA will strive to implement supplementary performance and deliver a product which is free from defects as quickly as possible. The particular circumstances of the individual case must be taken into account. The purchaser must grant NORKA a reasonable period for supplementary performance to this extent. In the event that the supplementary performance fails the purchaser is entitled to a reduction in the purchase price or rescission of the contract with claims for damages excluded. NORKA does not have to answer for defects if NORKA is not responsible for the defects and problems occurring. This is the case in particular where damage occurs through causes such as natural wear and tear, or particularly if the purchaser is responsible for this such as inter alia defective or unsuitable handling, transportation or storage, excessive strain, unsuitable operating equipment, defective mounting/installation, unsuitable premises or components or conditions which demand special requirements such as those of a physical, chemical, electro-chemical or electrical kind. Page 4

5 The same applies where the luminaires are fitted inappropriately with an electrical adapter or T5 lamps. 7.2 NORKA delivers its products free from defects of title. The products delivered by NORKA are free from third-party property rights (brand names, copyrights, industrial property rights) in the territory of the Federal Republic of Germany. In the event that third parties assert claims from property rights against the purchaser, NORKA provides a guarantee for defects of title in the same way as for material defects, whereby NORKA must be granted the opportunity to agree or enforce rights of usage in relation to the rightholder or to change the delivered products in a way that they do not breach third-party property rights or to replace these with products which are free from property rights. If this is not possible for NORKA under reasonable conditions the purchaser will be entitled to a right of withdrawal or of a reduction in the price. NORKA is released from its obligation to the purchaser where the latter breaches the duties of care and obligations incumbent upon it. The purchaser must notify NORKA in full and in text format without delay where claims are asserted by third parties and may not acknowledge these types of claims without the prior consent of NORKA. NORKA reserves the right to implement all composition negotiations or extra-judicial or judicial defence measures. The purchaser may not assert any claims against NORKA where NORKA is not responsible for the circumstances establishing the third-party property rights. 8. Liability 8.1 NORKA is liable for personal injury for which NORKA is responsible and for wilful intent and gross negligence under the statutory provisions. NORKA is liable up to the amount of the value of the contract in the event of damage caused negligently. Any further claims for damages and compensation, in particular on account of a breach of duties of care and ancillary duties from the contractual obligation, a tortious act or on account of other damage including lost profits, are excluded where permissible by law. The regulations agreed in these terms and conditions are conclusive where permissible by law. The regulations agreed here also apply in favour of all employees, assistants and vicarious agents, sub-contractors and other parties appointed by NORKA. 8.2 In the event of delays to binding delivery deadlines that have been agreed for which NORKA is responsible and of damage arising demonstrably through the delay, the purchaser may claim compensation for the delay amounting to 0.5%/week, up to a maximum amount of 5%, calculated on the value of the goods that have not been delivered or that have been delivered late. 8.3 Claims for compensation by the purchaser on account of the delayed delivery which exceed the values stated previously are generally excluded, including in cases where a grace period has been set. The purchaser retains its statutory right to withdraw from the contract where the statutory criteria are present. Page 5

6 8.4 In the event of impossibility for which NORKA is responsible the purchaser is entitled to claim a maximum amount of compensation in accordance with point 8.2. The purchaser's right to withdraw from the contract remains unaffected by this. 8.5 The personal liability of the legal representatives, vicarious agents and other employees is excluded where damage is caused through slight negligence. 8.6 Claims for compensation with liability in accordance with this section will expire one year following delivery or following the delivery time originally agreed. 8.7 Liability under the mandatory legal regulations remains unaffected by this, in particular under the Product Liability Act. 9. Manufacturer's warranty NORKA provides a manufacturer warranty for its products in accordance with the scope set out in the appendix to these general terms and conditions (manufacturer warranty). Control systems and parameter settings for luminaire components are excluded from this. The statutory warranty periods shall apply to these. 10. Proviso Fulfilment of the contract by NORKA comes with the proviso that no obstacles stand in the way of the fulfilment and delivery of the products arising from national, European, international or other legal regulations which must be complied with. 11. Place of fulfilment and jurisdiction Our registered office shall be the place of jurisdiction provided that the purchaser is a trader, legal entity under public law or special fund under public law. We shall also be entitled to bring an action at the purchaser s place of business. 12. Substantive law The contractual relationship shall be governed by German law. The United Nations Convention on Contracts for the International Sale of Goods is excluded. The relevant latest version of the general delivery terms and conditions of the ZVEI (German Electrical and Electronic Manufacturers' Association) shall apply in the event that there is no regulation provided in our terms and conditions in particular cases. 13. Data protection With due regard to the German Federal Data Protection Act, reference is made to the fact that your personal data will be saved and processed using IT equipment for the purposes of proper processing of any business transactions. No special notification will be provided by us for this. Page 6

7 14. Severability clause In the event that individual clauses in these general terms and conditions are or become ineffective in whole or in part then this should not negatively affect the effective nature of the remaining clauses and components of clauses. Both contracting parties hereby confirm their express intention to leave the terms and conditions of contract agreed here effective within the framework permitted by law. Section 139 BGB is expressly waived to this extent. The parties will agree on a regulation to replace the ineffective provision which comes closest to the original regulation in a manner permitted under the statute and from a legal and economic point of view, and which comes closest to the will of the parties when entering into the contract. These regulations also apply accordingly in cases where these regulations contain an unintended loophole. Last updated 01/10/2016 Page 7