General Business Terms

General Business Terms of Technische Leuchten Rudolf von Prusky GmbH (RvP) Validity from: 01.12.10

1. General

1. Our General Business Terms are preoccupative, any aberrant or contrary business terms are not respected unless expressively confirmed in written

2. Our General Business Terms are valid also in case that we are instructed about aberrant or contrary business terms of the purchaser and supply without reservation and do not expressively contradict.

II. Conclusion of Contract

Our quotations non-binding and without obligation in any case unless differently agreed. Our quotations are always subject to prior sale. Any contract is not concluded unless a written order confirmation is established by RvP or execution of shipment of ordered goods. Any deviation of pictures (catalogue e.g.) and descriptions, technical modifications and the amendment errors and printing errors remain reserved.

RvP reserves for itself the right to modify products in colour, shape and material especially in case that these are subject to modification due to technical or safety reason.

RvP does not grant a warranty for reorder unless not expressively confirmed

III. Prices

1. Prices are always net and are valid plus Value Added Tax as valid at the date of delivery. The prices are always to be considered as Ex Works, plus packing and freight cost. Amendments on price lists are reserved. Errors and printing errors in conditions remain always reserved. Always those prices are to be charged which are valid the day of shipment.

2. Changes on prices are always provided in case of a time distance of 4 months or more between contract conclusion and confirmed delivery date.

In case of increase of salaries, material or purchasing cost Rvp is in the right to lift prices in accordance to such increases. The purchaser has the right to withdraw from the contract only in case that the increase is remarkably higher than increased cost of living between order and shipment.

In case that the purchaser is a partnership, Capital Company or public-law body changes on prices are possible, when a time distance of six weeks remains between conclusion of contract and confirmed delivery date.

3. RvP is allowed to charge an extra-charge for small quantities of 10,00€ in case that the net volume of purchase order reaches an amount of 100,00€ or less.

IV. Delivery and Freight

1. Indicated dates of delivery and arrival are always without liability. In case of delay the purchaser has to grant an extended delivery period up to six weeks.

The delivery period may be extended in case of act of god, labour dispute, especially strike and lockout e.g. and in case of unforeseen obstruction beyond our control like disturbances, delays in supply of relevant necessary material as long as such delays have traceable influence on delivery of ordered goods. Such rule is also valid in case those circumstances like described may happen with sub-suppliers. The delivery period is extended in accordance to the duration of circumstances as described.

Such circumstances are with our liability even if they arise during a delay which is already existent. In important cases such circumstances are to be notified to the purchaser as soon as possible.

2. RvP reserve the right of partial compliance and delivery. Such partial compliance and delivery may be executed and charged separately.

Deliveries are to be executed in standard packing while such packing becomes property of the purchaser. Deposit devices like Euro pallets are excepted; RvP has the right to charge the equivalent value of the deposit to the purchaser.

3. Risk is transferred to the purchaser with handover of goods to forwarder even if the choice of means of transportation and forwarder was with RvP and by exception the transport cost had been covered and forwarder had been chosen by RvP.

The purchaser has to assert his right due to damages during transport to the forwarder within legal period Transport or other insurances are to be covered by RvP only at request of the purchaser and at his cost.

V. Payment

1. The invoice amount is due for payment within 8 days less 2% cash discount or within 30 days from invoice date net unless not otherwise expressively agreed. Cash, service or special purchases are due at once with cash discount.

2. An acceptance of cheques and drafts becomes valid payment after encashment. An acceptance of drafts requires a previous written agreement. With encashment the usual bank interest charges and expenses are to be charged. They are to be paid cash at once.

3. Interest for late payment is to be charged by RvP with an annual percentage rate of 10%.

They are to be charged higher when we are able to prove higher interest rates or lower in case that the debtor proves interest rates.

4. In case that the debtor is a partnership, capital company or public-law body he may reckon up claims only when they are undisputable or in force of law or he may apply for the right for retention against RvP.

VI. Cancellation Cost

1. In case of unjustified withdrawal from a contract RvP is allowed to demand a compensation fee of 10% of goods value for missing profit or cost erased by execution of order.

2. For special products or manufacturing RvP is allowed to demand full contact value reduced by saved expenses.

VII. Warranty

1. The purchaser is obliged to check goods in appearance and function immediately after receipt and to notify supplier on defects. In such case the exact point of time for the recognition of defect hast o be proved. Those for b2b according to § 377 HGB enforced rules concerning check and notice of defects remain untouched, notices of defects are to be notified by professional purchaser with 8 days after delivery in written.
   

2. In case of justified complaint goods are to be exchanged, taken back, reduced in price or repaired on choice of RvP. In case of unsuccessful exchange or repair of goods the purchaser has the right to demand depreciation or restitution. Cost for delivery and transport of goods to be repaired are to be borne by purchaser in case that the goods were brought to a place abroad of original delivery address.

3. Any warranty claim is excluded for complaints which were not indicated in time. Furthermore any warranty is excluded for goods on which purchaser has executed modifications himself or by third parties.

4. Any claim for compensation - pretended delay included - is excluded unless the loss is a result of most careless or intentional action.

5. In b2b any claim for defect goods is in lapse after in one year after delivery.

6. The purchaser is obliged to enable us to recheck those goods notified as being defect.

7. In case that RvP sold newly manufactured goods to a professional customer who himself sold these goods to a private user and has to take them back due to defectiveness or accept price reduction, such customer has rights as described in § 478 BGB. Such rights are in lapse as defined in § 479 BGB. Rights of customer according to §§ 478 und 479 BGB remain untouched in so far.

8. In any case in which we should be obliged to compensate losses or expenses out of b2b sales according to contract or legal conditions our liability, including managers and executives, is limited to those cases in which intention, most careless action or action or compensable injury are traceable. Any liability for culpable injury of relevant contract is, excluded those cases as described in subsections 1 and 2, limited to losses which are expectable and typical related to contract. An amendment of burden of proof causing a disadvantage for the purchaser is not contained in defined clause.

 

9. Claims of customers for compensation of losses by repair, especially delivery, transport, internal transport, labour and material cost are excluded in case that such cost rise due to transport of goods to other places than residence of purchaser unless it relates to standard use.

10. Claims on compensation are excluded for civil wrong action unless the loss is a result of intention or most careless action, even of executives.

VIII. Reservation of Proprietary Rights

1. RvP reserves the right of property on supplied goods until full balance of open demand. In case of purchaser’s action against contract, especially delayed payment, Rvp has the right to take back goods after payment reminder and the purchaser is obliged to hand out. The claim for reservation of proprietary rights as well as the distrait of goods supplied by RvP is not to be rated as withdrawal from the contract in case that the clauses of private user‘s credit act (Verbraucherkreditgesetz) become valid or RvP expressively confirmed validity of such claim.

2. Executing the right of reservation property against partnerships, capital companies or public-law bodies in addition the following clauses become valid:

The purchaser has the right to resell goods supplied in regular business but passes any proprietary rights to RvP which may arise as active debt in a volume of the contract between RvP and him (VAT included) out of sales to third parties without reference to possible processing. The debtor is allowed to cash debts after assignment of accounts receivables. Our right to cash debts remains untouched, but we are obliged not to cash as long as the debtor fulfils duties resulting out of contract conclusion and not in delay with accounts receivable. In such case we are allowed to demand the indication of the assignment of accounts receivable and related debtors and any information and documentation which enables us to cash and to inform the third party about assignment of accounts receivable.

3. Any modification or processing of goods is executed for us .In case that goods are mixed with or inseparably linked to other goods out of our property we achieve property on the new thing in a value relating to the value of our goods on it at the time of processing. The debtor is obliged to detain our partial property.

4. The customer must not mortgage goods or hand over as security. In case of mortgage and injunction or confiscation by third parties the customer has to notify immediately and has to give any necessary information and documentation which enable us to safeguard our rights. Executives in charge of mortgage are to be informed about our property.

RvP is obliged to release rights on demand of the customer as long as their value does not exceed the claim to be secured by more than 20%.

IX. Place of Performance and Court of Jurisdiction

Place of Performance is Büren.

For any dispute resulting from a contract conclusion with partnerships, capital companies or public-law bodies’ legal action has to be taken in the court of jurisdiction at RvP’s place of performance. We are also authorized to start legal action at the place of performance of the purchaser.

Any business is executed under German law excluding international right on sales of movable goods even if the purchaser residence lies outside Germany.

X. Miscellaneous

In case that a part of concluded contracts with our customers is or becomes invalid the validity of any other condition including this one remains untouched. The invalid part of agreement then has to be amended the way that the new agreement replaces the old in permissible way.

Any transfer of rights and duties out of a contract concluded with us requires our written approval for its validity.

 

Vorschlag als Schlusssatz (um bei Übersetzungsfehlern oder sprachlichen Unklarheiten keine Probleme zu bekommen):

These General Business Terms are a translation of ‚Lieferungs- und Zahlungsbedingungen der Technische Leuchten Rudolf von Prusky GmbH (RvP) Stand: 01.12.10‘. In any case of legal dispute the clauses of the german version are in effect.