AGB - General Terms and Conditions

GENERAL TERMS AND CONDITIONS

GENERAL TERMS OF DELIVERY – DL-AL-001-2010

for products and services of the electrical industry
(“Green Terms of Delivery” – GL) – Status: July 2023 –

I. General provisions

1. The legal relationship between the Supplier and the Purchaser in connection with the Supplier’s deliveries and/or services (hereinafter referred to as “Deliveries”) shall be governed exclusively by these GL. The customer’s general terms and conditions shall only apply insofar as the supplier has expressly agreed to them in writing. The mutually agreed written declarations shall be decisive for the scope of the deliveries.
2. The Supplier reserves its unrestricted property and copyright exploitation rights to cost estimates, drawings and other documents (hereinafter referred to as “Documents”). The documents may only be made accessible to third parties with the prior consent of the Supplier and must be returned to the Supplier immediately upon request if the order is not placed with the Supplier. Sentences 1 and 2 shall apply accordingly to the Purchaser’s documents; however, these may be made accessible to third parties to whom the Supplier has permissibly transferred deliveries.
3. The customer has the non-exclusive right to use standard software and firmware with the agreed performance features in unchanged form on the agreed devices. The customer may make a backup copy of the standard software without express agreement.
4. Partial deliveries are permissible insofar as they are reasonable for the customer.
5. The term “claims for damages” in these GL also includes claims for reimbursement of futile expenses.

II Prices, terms of payment and offsetting

1. Prices are ex works excluding packaging plus the applicable statutory value added tax.
2. If the Supplier is responsible for installation or assembly and unless otherwise agreed, the Purchaser shall bear all necessary ancillary costs such as travel and transportation costs and allowances in addition to the agreed remuneration.
3. Payments shall be made free Supplier’s paying agent.
4. The customer may only offset claims that are undisputed or have been legally established.

III Retention of title

1. The objects of the deliveries (goods subject to retention of title) shall remain the property of the Supplier until all claims to which the Supplier is entitled against the Customer arising from the business relationship have been fulfilled. If the value of all security interests to which the Supplier is entitled exceeds the amount of all secured claims by more than 10%, the Supplier shall release a corresponding part of the security interests at the Customer’s request; the Supplier shall be entitled to choose between different security interests for the release.
2. For the duration of the retention of title, the purchaser is prohibited from pledging or transferring ownership by way of security and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its customer or makes the reservation that ownership is not transferred to the customer until the customer has fulfilled its payment obligations.
3. In the event of seizure, confiscation or other dispositions or interventions by third parties, the customer must inform the supplier immediately.
4. In the event of breaches of duty by the Purchaser, in particular default in payment, the Supplier shall be entitled to withdraw from the contract in addition to taking back the goods after the unsuccessful expiry of a reasonable deadline set for the Purchaser; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The customer is obliged to surrender the goods. The taking back or assertion of the retention of title or the seizure of the reserved goods by the supplier does not constitute a withdrawal from the contract, unless the supplier has expressly declared this.

IV. Deadlines for deliveries; default

1. Compliance with deadlines for deliveries is subject to the timely receipt of all documents to be supplied by the customer, necessary approvals and releases, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the customer. If these requirements are not met in good time, the deadlines shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.
2. If non-compliance with the deadlines is due to force majeure, e.g. mobilization, war, riot, or similar events, e.g. strike, lockout, the deadlines shall be extended accordingly. The same applies in the event of late or improper delivery to the supplier.
3. If the Supplier is in default, the Purchaser may – provided it can credibly demonstrate that it has suffered a loss as a result – demand compensation for each completed week of default of 0.5%, but not more than a total of 5% of the price of that part of the Supplies which could not be put to the intended use because of the default.
4. Both claims for damages by the Purchaser due to delayed delivery and claims for damages in lieu of performance that exceed the limits specified in No. 3 are excluded in all cases of delayed delivery, even after expiry of any deadline set to the Supplier for delivery. This shall not apply in cases of mandatory liability for intent, gross negligence or injury to life, limb or health. The Buyer may only withdraw from the contract within the framework of the statutory provisions if the Supplier is responsible for the delay in delivery. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
5. At the Supplier’s request, the Customer shall be obliged to declare within a reasonable period of time whether it is withdrawing from the contract due to the delay in delivery or insisting on delivery.
6. If dispatch or delivery is delayed at the request of the Purchaser by more than one month after notification of readiness for dispatch, the Purchaser may be charged a storage fee of 0.5% of the price of the items of the Supplies for each additional month or part thereof, but not more than a total of 5%. The contracting parties are at liberty to prove higher or lower storage costs.

V. Transfer of risk

1. The risk shall pass to the Purchaser as follows, even in the case of carriage paid delivery:
   a) in the case of deliveries without installation or assembly, when they have been dispatched or collected.
   At the Purchaser’s request and expense, the Supplier shall insure the Supplies against the usual risks of transportation;
   b) in the case of Supplies including assembly or erection, on the day of taking over in the Purchaser’s own works or, if so agreed, after a faultless trial run.
2. If dispatch, delivery, the start or performance of installation or assembly, acceptance in the customer’s own plant or trial operation is delayed for reasons for which the customer is responsible or if the customer is in default of acceptance for other reasons, the risk shall pass to the customer.

VI Installation and assembly

Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly:

1. The customer must accept the goods at his own expense and provide them in good time:
   a) all earthworks, construction work and other ancillary work outside the industry, including the necessary skilled and unskilled labor, building materials and tools,
   b) the equipment and materials required for assembly and commissioning, such as scaffolding, lifting gear and other devices, fuels and lubricants,
   c) energy and water at the point of use, including connections, heating and lighting,
   d) sufficiently large, suitable, dry and lockable rooms for the storage of machine parts, apparatus, materials, tools, etc. at the installation site and adequate working and recreation rooms for the installation personnel, including sanitary facilities appropriate to the circumstances; in addition, the Purchaser shall take the same measures to protect the property of the Supplier and the installation personnel at the construction site as it would take to protect its own property,
   e) Protective clothing and protective devices that are required due to special circumstances at the installation site.
2. Before the start of the installation work, the customer must provide the necessary information on the location of concealed electricity, gas and water pipes or similar installations as well as the necessary structural data without being requested to do so.
3. Before the start of installation or assembly, the materials and objects required for the start of the work must be available at the installation or assembly site and all preparatory work must have progressed to such an extent that the installation or assembly can be started as agreed and carried out without interruption. Access routes and the installation or assembly site must be leveled and cleared.
4. If installation, assembly or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs for waiting time and any additional travel required by the Supplier or the assembly personnel.
5. The Purchaser shall immediately certify to the Supplier on a weekly basis the duration of the working time of the assembly personnel as well as the completion of the installation, assembly or commissioning.
6. If the supplier demands acceptance of the delivery after completion, the customer must carry this out within two weeks. If this does not occur, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place when the delivery has been put into use – if applicable after completion of an agreed test phase.

VII Acceptance

The customer may not refuse to accept deliveries due to insignificant defects.

VIII Material defects

The supplier shall be liable for material defects as follows:

1. All those parts or services which have a material defect shall, at the discretion of the Supplier, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.
2. Claims for subsequent performance shall lapse 12 months after the statutory limitation period begins; the same shall apply to withdrawal and reduction. This period shall not apply if the law pursuant to §§ 438 para. 1 No. 2 (buildings and items for buildings), 479 para. 1 (right of recourse) and 634a para. 1 No. 2 (construction defects) BGB prescribes longer periods in the event of intent, fraudulent concealment of the defect and non-compliance with a guarantee of quality. The statutory provisions on suspension of expiry, suspension and recommencement of time limits remain unaffected.
3. Notification of defects by the customer must be made immediately in writing.
4. In the event of notices of defects, payments by the customer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The customer may only withhold payments if a notice of defects is asserted, the justification of which is beyond doubt. The customer shall have no right of retention if his claims for defects are time-barred. If the notice of defects is unjustified, the Supplier shall be entitled to demand compensation from the Purchaser for the expenses incurred.
5. The Supplier shall be given the opportunity to remedy the defect within a reasonable period of time.
6. If the subsequent performance fails, the customer may – without prejudice to any claims for damages in accordance with No. 10 – withdraw from the contract or reduce the remuneration.
7. Claims for defects shall not exist in the case of only insignificant deviations from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable equipment, defective construction work, unsuitable building ground or which arise due to special external influences which are not assumed under the contract, or in the case of non-reproducible software errors. If improper modifications or repair work are carried out by the customer or third parties, no claims for defects shall exist for these and the resulting consequences.
8. Claims of the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the object of the delivery has subsequently been taken to a place other than the customer’s branch office, unless the transfer corresponds to its intended use.
9. Recourse claims of the purchaser against the supplier in accordance with § 478 BGB (recourse of the entrepreneur) shall only exist insofar as the purchaser has not made any agreements with his customer that go beyond the statutory claims for defects. For the scope of the customer’s right of recourse against the supplier pursuant to § 478 para. 2 BGB, No. 8 shall also apply accordingly.
10. Claims for damages by the customer due to a material defect are excluded. This shall not apply in the event of fraudulent concealment of the defect, non-compliance with a guarantee of quality, injury to life, limb, health or freedom and in the event of an intentional or grossly negligent breach of duty by the supplier. A change in the burden of proof to the detriment of the customer is not associated with the above provisions. Further claims or claims other than those regulated in this Art. VIII due to a material defect are excluded.

IX. Industrial property rights and copyrights; defects of title

1. Unless otherwise agreed, the Supplier is obliged to provide the delivery free of industrial property rights and copyrights of third parties (hereinafter: property rights) only in the country of the place of delivery. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by Supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser within the period stipulated in Art. VIII No. 2 as follows:
   a) The Supplier shall, at its option and at its own expense, either obtain a right of use for the Supplies concerned or modify them such that they no longer infringe the IPR or replace them.
   If this is not possible for the Supplier under reasonable conditions, the Purchaser shall be entitled to the statutory rights of rescission or reduction.
   b) The Supplier’s obligation to pay damages shall be governed by Art. XI.
   c) The aforementioned obligations of the Supplier shall only apply if the Purchaser immediately notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge an infringement and leaves all defensive measures and settlement negotiations to the Supplier’s discretion. If the customer ceases to use the delivery in order to minimize damages or for other important reasons, he is obliged to point out to the third party that the cessation of use does not constitute an acknowledgement of an infringement of property rights.
2. Claims of the customer are excluded insofar as he is responsible for the infringement of property rights.
3. Claims of the Purchaser shall also be excluded if the infringement of property rights is caused by special specifications of the Purchaser, by an application not foreseeable by the Supplier or by the fact that the delivery is modified by the Purchaser or used together with products not supplied by the Supplier.
4. In the event of infringements of property rights, the provisions of Art. VIII No. 4, 5 and 9 shall apply accordingly.
5. In the event of other defects of title, the provisions of Art. VIII shall apply accordingly.
6. Further claims or claims other than those regulated in this Art. IX against the Supplier and its vicarious agents due to a defect of title are excluded.

X. Impossibility; contract adjustment

1. If delivery is impossible, the customer is entitled to demand compensation, unless the supplier is not responsible for the impossibility. However, the Purchaser’s claim for damages shall be limited to 10% of the value of that part of the delivery which cannot be put to the intended use due to the impossibility. This limitation shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, limb or health; this does not imply a change in the burden of proof to the detriment of the customer. The customer’s right to withdraw from the contract remains unaffected.
2. If unforeseeable events within the meaning of Art. IV No. 2 significantly change the economic significance or the content of the delivery or have a significant impact on the supplier’s operations, the contract shall be adapted appropriately in good faith. If this is not economically justifiable, the supplier has the right to withdraw from the contract. If he wishes to make use of this right of withdrawal, he must inform the customer immediately after realizing the consequences of the event, even if an extension of the delivery time was initially agreed with the customer.

XI. Other claims for damages; limitation period

1. Claims for damages by the customer, irrespective of the legal grounds, in particular for breach of duties arising from the contractual obligation and from tort, are excluded.
2. This does not apply where liability is mandatory, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, limb or health or breach of material contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability for injury to life, limb or health. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
3. Insofar as the customer is entitled to claims for damages, these shall become statute-barred upon expiry of the limitation period applicable under Art. VIII No. 2. The same applies to claims of the customer in connection with measures to prevent damage (e.g. product recalls). In the case of claims for damages under the Product Liability Act, the statutory limitation provisions shall apply.

XII. Place of jurisdiction and applicable law

1. If the purchaser is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the supplier’s registered office. However, the supplier is also entitled to bring an action at the customer’s place of business.
2. The legal relationships in connection with this contract shall be governed by German substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

XIII Binding nature of the contract

The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. This does not apply if adherence to the contract would represent an unreasonable hardship for one of the parties.

GENERAL TERMS AND CONDITIONS OF SALE

The following “General Terms and Conditions of Sale” shall take precedence over the “Software Clause for the Provision of Standard Software as Part of Deliveries” (if agreed) and over Articles I. to XIII. of the “General Terms and Conditions of Delivery for Products and Services of the Electrical Industry”:

XIV Re II. Prices and terms of payment

1. the prices are EUR prices. Value added tax shall be charged additionally at the statutory rate applicable on the day of performance (in the case of advance payments: on the day of payment). All prices are subject to change. They do not include customs duties or other import charges; these are to be borne by the customer. If the supplier has exceptionally accepted these costs at fixed rates, any increases, e.g. due to changes in the law, shall be borne by the customer. We reserve the right to charge the prices valid on the day of delivery. The costs for special packaging will be charged additionally. Special packaging shall remain the property of the Supplier and shall be charged at rental rates on the basis of cost price; it must be returned to the Supplier immediately and carriage paid.

2. delivery shall be made as quickly as possible, subject to unhindered procurement of materials and production and transportation options. Partial deliveries are permitted. No claims for damages can be derived from late delivery. Complaints can be considered within 14 days of receipt of the goods. If the complaint is justified, a replacement will be delivered free of charge. Any further claims will not be recognized.

3. the delivered goods travel at the expense and risk of the client.

4 Our invoice shall also serve as a dispatch note.

5. we grant a 2% discount for payments within 10 days, otherwise 30 days net.

6 Only payments in cash or by bank transfer shall be deemed to be payments. In the case of bank transfers, the date on which the transferred amount is credited to the seller’s account is decisive for payment, not the date of the transfer. If we receive unfavorable information, we have the right to demand immediate cash payment even for invoices that are not yet due according to these terms of payment.

7. in the event of non-compliance with our terms of payment, we are entitled to consider current orders as invalid, even if they are not related to the payment.

8. if payment is made later than 45 days after the invoice date, we shall be entitled to charge interest on arrears at a rate of 4% above the discount rate of the Landeszentralbank. Our representatives are authorized to collect payments on the basis of a special power of attorney.

9. for orders under 150 euros net (except sample orders), an additional minimum quantity surcharge of 15 euros net will be charged.

10. for production reasons, DREES GmbH is entitled to make an underdelivery/overdelivery of 10% for each production batch.
The quantity delivered will be invoiced.

XV. to III. reservation of title

1. All delivered goods (goods subject to retention of title) shall remain our property until all claims, including future or conditional claims, to which we are entitled, irrespective of the legal grounds, including those arising from contracts concluded with the buyer at the same time or at a later date, have been fulfilled. This also applies if payments are made on specially designated receivables.
2. Processing and treatment of the reserved goods shall be carried out for us as manufacturer within the meaning of § 950 BGB, without any obligation on our part. The processed goods shall be deemed to be reserved goods within the meaning of para. 1. if the goods subject to retention of title are processed, combined and/or mixed with other goods by the buyer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our ownership expires as a result of combining or mixing, the buyer hereby assigns to us the ownership rights to which he is entitled to the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall store them for us free of charge. The co-ownership rights arising hereunder shall be deemed to be reserved goods within the meaning of para. 1.
3. The buyer may only sell the goods subject to retention of title in the ordinary course of business at his normal terms and conditions and as long as he is not in default, provided that the claims arising from the resale in accordance with the provisions of the German Civil Code (BGB) are not assigned to the buyer. Item no. 4 – 6 are transferred to us. The resale is equivalent to the installation in land or buildings or the use of the reserved goods for the fulfillment of other contracts for work and services or contracts for work and materials by the client. He is not entitled to dispose of the reserved goods in any other way.
4. The buyer’s claims from the further sale of the reserved goods, which also includes the fulfillment of a contract for work and services or a contract for work and materials, are hereby assigned to us. They serve as security to the same extent as the reserved goods. If the reserved goods are sold by the buyer together with other goods not sold by us, the assignment of the claims from the resale shall only apply to the amount of the resale values of the respective reserved goods sold as stated in our invoices. In the case of the sale of goods in which we have co-ownership rights in accordance with. Item no. 1, the assignment of the claims shall apply in the amount of these rental property shares.
5. The buyer is entitled to collect claims from the resale until our revocation, which is permissible at any time. In the case of payments to the buyer by check, ownership of the check shall pass to us as soon as the buyer acquires it. If payment is made by bill of exchange, the buyer hereby assigns to us in advance the rights arising from this. The handover of the papers shall be replaced by the fact that he shall hold them in safe custody for us or, if we do not obtain direct possession of them, he shall hereby assign to us in advance his claim for surrender against third parties; he shall deliver the said papers to us without delay, endorsed with his endorsement. The buyer is only authorized to assign claims – including the sale of claims to factory banks – with our prior written consent.
   At our request, he is obligated to immediately inform his customers of the assignment to us – if we do not do so ourselves – and to provide us with the information and documents necessary for collection.
6. If we assert the retention of title, this shall only be deemed a withdrawal from the contract if we expressly declare this in writing. The buyer’s right to possess the reserved goods shall expire if he fails to fulfill his obligations under this or any other contract.
7. Rights arising from the retention of title and all special forms thereof stipulated in these terms and conditions shall also apply until full release from contingent liabilities which we have entered into in the interests of the buyer.
8. The buyer may not make or permit any dispositions of the reserved goods that do not comply with the above conditions.
9. If the value of the existing securities exceeds the secured claims by more than 10% in total, we are obliged to release securities of our choice at the request of the buyer.

XVI to VIII Material defects

Extended liability for material defects:

2. claims for subsequent performance shall become time-barred 24 months after the start of the statutory limitation period; the same shall apply to withdrawal and reduction. This period shall not apply if the law pursuant to §§ 438 para. 1 No. 2 (buildings and items for buildings), 479 para. 1 (right of recourse) and 634a para. 1 No. 2 (construction defects) BGB prescribes longer periods in the event of intent, fraudulent concealment of the defect and non-compliance with a guarantee of quality. The statutory provisions on suspension of expiry, suspension and recommencement of time limits remain unaffected.

7. supplement
The warranty for products designed with LEDs only covers product failures caused by material, construction or product defects, as well as failure rates that exceed the nominal failure rate according to the usual value for general lighting (B50/L70).

The product must not have been modified or repaired by third parties for the warranty to be valid. The product must not have been exposed to higher mechanical loads beyond its intended use.

In the case of subsequent or replacement deliveries of LED circuit boards, changes in the luminous flux of operated LEDs may result in deviations in the lighting properties compared to the original products due to constant technical progress and usage-related processes. This shall not give rise to any warranty rights for the replacement of complete deliveries or lots.

For split (cut) flexible printed circuit boards that have been processed professionally and in accordance with the data sheet, the warranties apply in accordance with these terms and conditions of sale. The warranty will only be recognized after an inspection in our company.

XVI Validity for further deliveries

Unless otherwise agreed, these Terms and Conditions shall also apply to all further deliveries and services performed by the Supplier for or on the same item at the request and expense of the Purchaser.