GENERAL CONDITIONS OF SALE, DELIVERY AND PAYMENT OF LIFEPHOTONIC GMBH
Validity of terms and contract conclusion:
1. All offers, agreements, deliveries and services are only on the basis and in accordance with the terms set out below. They shall, unless otherwise agreed, also for deliveries abroad and for all future transactions. Differing conditions of the customer are not recognized, unless we expressly confirm this in writing. The confirmation requirement applies even if we have carried out the delivery to the purchaser having regard to its terms and conditions.
2. Our offers are non-binding. This is true even if we the customer catalogs, brochures, technical documentation – have left, product descriptions or documents in any form, in which we have ownership and copyright reserved -. Such as drawings, plans, calculations. This does not apply only if our offers are explicitly marked as binding or contain a deadline for acceptance.
3. The ordering of goods by the customer is considered a binding contract offer. The contract is concluded with adoption. We are entitled to accept the offer within two weeks from receipt by us, unless the order arises from something else. The assumption is made in writing (order confirmation) or by delivery of the goods to the buyer.
4. The content of the agreements individually agreed with the customer in individual cases (including side agreements, additions and amendments to the contract), a written contract or our written confirmation shall prevail.
5. Legally relevant declarations and notifications which are to be delivered after the contract by the customer against us (eg setting deadlines, defects, notice of withdrawal or reduction) shall be valid only in writing.
6. Our offers are valid under the condition that the fulfillment of any European or US American export regulations preclude (eg embargoes, sanctions lists, permit requirements). The customer is obligated to provide all necessary for exports, imports and other trade information and documents available. Delays resulting from any export control checks, delivery times and agreed deadlines shall be extended accordingly. If any permits can not be obtained, or if there are other export restrictions, this offer is null and void and the resulting contract shall respect. These goods than not closed and any product resulting from this exceeded time limits damages is imposed, unless this is based on intent or gross negligence on the part of LifePhotonic.
7. Unless we refer below to valid legal regulations, this is merely for clarification. Even without such clarification thus apply the statutory provisions, unless they are directly modified or expressly excluded in these conditions.
Offer documents, copyright:
At all relevant documents to the offer, we reserve ownership and copyright; they must not be made available without our prior written consent to third parties and are, if the order is not granted, returned immediately upon request. Development and construction for the production of equipment, lasers, and other products Lichtleitsonden remain our intellectual property and may the Purchaser neither disclosed to third parties, can still be used for their own purposes. The buyer is obliged to extensive secrecy, even if no order is placed.
Price and payment:
1. Prices are ex works respectively in EURO plus the respective statutory VAT. As well as the costs of packaging, loading, dispatch, transport insurance, customs and handling costs. Are fixed prices has been agreed, valid on the day of delivery list is valid. Payments are free to make our payments office.
2. Any changes occurring after the conclusion of the agreed foreign currency prices or the exchange rate for EURO will be charged to the purchaser.
3. Payments shall be made only directly to us; they apply to non-cash payment until finally credited to our account as true. Representatives and traveling employees are not eligible to receive any money. Bills of exchange are accepted on account of performance only by appointment and on condition that they are discountable. Discount charges will be calculated from the due date of the invoice amount.
4. Invoices are – unless otherwise agreed – to be paid within 15 days from the date of invoice. We reserve the right to make deliveries only against advance payment, or cash on delivery, especially for first or after occurrence of late payments. Spare parts and other repair supplies, including service and maintenance are to be paid immediately after delivery completely.
5. Our claim for compensation is due in any case for payment immediately if the customer becomes insolvent, applied for against its assets, insolvency proceedings or his company is sold or another owner takes his place.
6. If the buyer of the payment or a partial payment in arrears, so the unused payment obligation to the statutory rate of 8% is – points to pay interest over the base rate. There remains at liberty to claim further default damages. Our claim to the commercial maturity interest pursuant to Â§ 353 HGB remains unaffected in relation to merchants.
7. The customer is not entitled to set-off, reduction or right of retention, unless his claims are legally determined or undisputed. The other rights of the buyer in case of defects of the delivery, in particular after the below warranty, remain unaffected.
8. In the cases referred to in paragraph 5 as well as becoming aware of other after conclusion occurred circumstances that seriously jeopardize the contract just by the Purchaser, we are entitled to the statutory provisions, to withhold performance and to rescind the contract. We may also require a hitherto agreed reasonable advance payment or the appropriate increase in an already agreed advance payment or the provision of a security in the amount of each outstanding liabilities. If the buyer request a reasonable time limit not after, so we are entitled to rescind the contract or to demand compensation instead of performance.
9. Permissible partial deliveries can be invoiced.
Place of performance, passing of risk, Shipping, Freight:
1. Delivery and transfer of risk take place “ex works” (Droste-Huelshoff-Str. 3, D-53129 Bonn), Incoterms 2010, where the place of performance.
2. If the goods are sent to the customer’s request this, so, the risk of accidental loss and accidental deterioration and the risk of delay to the purchaser when they are delivered to the shipping agent. This also applies to partial deliveries as well as regardless of whether this program is carried out by the performance or who bears the freight costs. If the goods are ready for shipment and the shipment is delayed or acceptance by us for reasons beyond control, the risk shall pass upon receipt of notification of readiness for shipment to the customer.
3. consignments can be insured by us at the expense of the purchaser, unless the latter after readiness for shipment proves latest within 5 days of appropriate insurance or expressly declared the waiver of insurance.
4. If delivery has been agreed with installation and assembly, the risk shall pass with acceptance of the goods in the operation of the customer or, if so agreed, after a fault-free trial run over. If the dispatch, delivery, the start or performance of assembly and installation, taking over in the own works or the trial run is delayed by the Purchaser to represent circumstances, then the risk is transferred to the purchaser.
Retention of title:
1. The delivered goods until full payment of all claims which we are entitled present or future against the purchaser – including all balance claims from current accounts – our property. In case of default or other, not only minor violations of contractual obligations, we are entitled to take back the delivery item after cancellation of the contract. The Purchaser shall bear the costs incurred for the return shipping cost. We are entitled to take back the merchandise to their utilization, the proceeds of sale are to the purchaser’s liabilities – less reasonable costs – shall be credited.
2. The Purchaser shall handle the reserved goods with care. He has to insure the reserved goods at his own expense against fire, water and theft at replacement value. The Purchaser shall carry out timely and appropriate as necessary maintenance and inspection work at his own expense.
3. The purchaser is not entitled during the retention of title to pledge, to transfer of ownership and for sale-and-leaseback resale of the reserved goods. To resell the reserved goods, the purchaser is entitled only in proper business as long as he is not in default of payment and authorized only under the condition that in the event of resale to a reseller that receives payment from its customer or makes the reservation that ownership on the customer only after if it has fulfilled its obligation to pay.
4. The customer shall assign the receivables from the resale of the goods as well as those claims of the Buyer with respect to the reserved goods arising from any other legal grounds against his customers or third parties (in particular claims in tort and claims for indemnification) including all current account balance claims now by way of security in full extent to us. We accept the assignment. The claim assigned to us share is a priority basis. However, the purchaser is entitled to collect the receivables as long as he does not interfere with the fulfillment of his obligations to us in default or not become insolvent. If the reserved goods are sold together with other items on, so we, the ordering party with priority over the other claims that part of the total price claim, corresponding to the provided by us invoiced price of the goods. The purchaser must inform us immediately of the resale of the goods as well as the damage or destruction of the goods. He also has to inform the debtor of the assignment without delay and to inform us immediately at our request, the information necessary to collect the assigned claims and to hand over necessary documents.
5. Any working or processing of the reserved goods by the customer on our behalf without incurring any obligations. In processing, combining and mixing or blending the reserved goods with other not belonging to us the resultant co-ownership of the new item we are entitled to in proportion to the value of the goods to the other processed goods at the time of processing, combining, mixing or blending. If the buyer acquires sole ownership of the new product, the Parties agree that the Purchaser grants us in proportion to the value of the processed, connected, mixed or combined reserved ownership of the new thing and this secures for us without charge. If the conditional goods namely whether resold together with other goods without or after processing, combining, mixing or blending, the advance assignment agreed above shall apply only to the value of the reserved goods which are resold with the other goods.
6. The purchaser shall assign to us as security for our claims against him, the claims accruing to him by connecting the supplied – adult with a property against a third party – where appropriate, processed, combined, mixed or blended.
7. About any seizure or other enforcement measures or dispositions of third parties on the reserved goods or the assigned receivables, the Purchaser shall immediately inform us by handing over the necessary documents for an intervention.
8. If the realizable value of the above secured claims by more than 10%, we are requested by the customer obliged to release a corresponding part of our securities; the selection of securities to be released lies with us.
1. Correct and timely self-delivery is reserved.
2. An approximately firmly agreed delivery period shall be deemed complied with if before its expiry the goods have left the respective works / warehouse or the readiness for dispatch is notified, when performing a pre-acceptance upon completion thereof. Partial deliveries are allowed. The delivery period shall be reasonably extended if the customer of to be procured him the documents, approvals, work pieces, devices or other preliminary work is not sufficient time, in unforeseeable, exceptional and despite the due care required and expected in the circumstances of the case do not unpreventable events such. B. stoppages, strikes and lockouts, export and import bans, refusal or revocation of licenses or permits or other regulatory measures; This also applies if one of the above events with a supplier or other manufacturer’s entry. If the purchaser is in default with agreed partial payments, the delivery period shall be extended accordingly.
1. Does the service we provide flawed, including the absence of the contractually agreed quality part, we will deliver or repair at our discretion either replacement; The number of two to be granted to us rectification or replacement tests should not fall below. In final failure of the repair or replacement delivery, the purchaser can demand cancellation of the contract or reduction of the price at his discretion.
2. Obvious defects in our performance must immediately – within 14 days after receipt – and hidden defects shall be notified in writing immediately after their discovery; otherwise any warranty rights of the purchaser are excluded.
3. We are not liable for damages caused by improper use or handling, faulty installation and commissioning by the purchaser or third parties, natural wear, unsuitable equipment, replacement materials and chemical, electrical or electrochemical influences beyond our power and influence. Improper use occurs in particular if the buyer the subject matter of delivery is not in accordance with where the underlying contract or – use the mentioned in our data sheets and brochures operating conditions – if operating conditions are not expressly stipulated in the contract. The operating conditions can always be consulted with us or the Buyer shall be sent, at his request.
Only our written order confirmations are relevant
4. To the extent of our supplies and services or the documents incorporated by reference therein. Our local technical details of the delivery item, including pictures, drawings and application reports as well as presented on request of the purchaser weight specifications provide constitute any warranty within the meaning of Â§ 443 BGB. For compliance with foreign packaging and customs regulations, we give no guarantee. Technical improvements are reserved without notice and consultation with the customer.
5. The warranty period is 12 months. It begins with the delivery of the goods to the buyer.
6. Further claims of the customer are excluded, in particular claims for compensation for damages which have not arisen on the delivery item itself. This does not apply to intent or gross negligence or culpable violation of essential contractual obligations. In case of culpable violation of essential contractual obligations we are liable – except in cases of willful misconduct and gross negligence – only for the contract-typical, reasonably foreseeable damage. The disclaimer does not apply in the absence of guarantees of quality, provided that the guarantee intended just to hedge the buyer for the damage. Furthermore, the liability does not apply in cases where liability is in accordance with the Product Liability Act in the delivery item for personal injury or damage to privately used objects errors.
Industrial property rights and copyright:
1. Items that are manufactured according to the Purchaser, the Purchaser shall warrant that industrial property rights of third parties are not infringed by the manufacture and operation. The purchaser keeps us free in this case from all third party claims due to intellectual property rights.
2. If third parties against the purchaser legally established or should be asserted by us as authorized recognized claims for infringement of intellectual property rights of objects of delivery, we will obtain a license at our discretion and at our expense either for the customer, the product in question charged in accordance modify, replace it with a property right free or, if these measures are carried out, or only with an unreasonable economic burden, take the product back against reimbursement of the price. Further claims for damages are excluded, unless we are responsible for the infringement intentionally or with gross negligence. Our liability is then limited to the amount of the price of the object of delivery.
3. Notice in point. Obligations referred to 2 shall only apply if and insofar as we informed the customer about the fees charged by third party claims immediately in writing, without our prior written consent neither a comparison on the fees charged by third party claims includes still recognizes this and leaves any protective measures and settlement negotiations. If and insofar as the customer stops using the delivered goods from mitigating or other important reasons, he shall immediately notify in writing the third party that no acknowledgment is linked with it.
4. Claims of the Purchaser of property rights violations are excluded if and to the extent it is responsible for the infringement of property rights or the infringement of property rights is caused by specifications made by the Purchaser, by a not foreseeable by us or by the fact that objects of delivery by the purchaser or a third party be modified or used in conjunction with products not supplied by us products. Claims are further excluded if they were motivated by the fact that the customer has used or resold items of delivery after he was informed that the use of any third party rights.
5. Any further claims against us because of IPR infringement are excluded. The following liability regime however remains as untouched as to the purchaser’s right to rescind the contract.
Redemption obligation under the Waste Electrical and Electronic Equipment Act (ElektroG):
1. The purchaser assumes the obligation to dispose of the delivered goods after termination of use at his own expense by the legal regulations in accordance with the ElektroG.
2. The customer shall indemnify us from the obligations according to Â§10 Abs. 2 ElektroG (take-back obligation of the manufacturer) and thus related third party claims.
3. The Purchaser has commercial third parties to whom he passes on the delivered goods, by contract to dispose of them after termination of use at their expense by the legal regulations and impose a corresponding duty in the case of retransfer.
4. If the customer, third parties to whom he passes on the delivered goods by contract to take over the duty of disposal and for further obligation, the purchaser is obliged to take back the delivered goods after termination of use at its own expense and in accordance with the legal regulations to to dispose.
5. Our right to transfer / exemption by the Purchaser no statute of limitations before the expiry of two years after the end of use of the device. The two-year period of the suspension of expiration begins with receipt of written notice of the purchaser with us about the end of use.
1. The buyer is entitled to claims only if intent or gross negligence. He therefore are also not on the claims he is entitled to in those provisions beyond compensation to (in particular to claims for damages in case of delay in delivery, impossibility, breach of obligations in contract and tortious acts), unless they have been caused intentionally or through gross negligence. Incidentally, we are liable for simple negligence only: (1) for loss of life, limb or health; and (2) (must obligation the fulfillment of which makes the proper execution of the contract and on whose fulfillment the customer regularly relies and may rely) for breach of an essential contractual obligation. Our liability is limited for slight negligence in breach of contract and in cases of gross negligence to the typical contractual foreseeable damage.
2. In the case of slight negligence, we are liable for damages caused by delay only in the amount of up to 5% of the purchase price.
3. The endorsement referred to in para. 1 and 2 disclaimer does not apply acceptance of a guarantee, in case of fraudulent concealment of defects and in mandatory liability under the Product Liability Act.
Compensation for termination of contract:
If an order is canceled for reasons for which the Purchaser is responsible, he must pay us compensation of 5% of the net order value. The purchaser is entitled to prove that we suffered no or significantly less damage has occurred. The assertion of further claims remains us liberty.
Should individual provisions be wholly or partially invalid or unenforceable, or should prove an unintended loophole in the contract, so the validity of the contract as well as the rest of the sales, delivery and payment shall not be affected. The parties are obliged to replace ineffective or unenforceable conditions or provisions of the Treaty through agreements, which come closest to the intended purpose. This also applies to complete an unintended loophole.
Jurisdiction and applicable law:
1. To the extent that at the purchasers to merchants – excluding those merchants whose operation does not require a commercially organized business undertaking type and scope -, legal persons of public law or public special fund, is at all from the contractual relationship arising directly or indirectly dispute BONN exclusive – also international – place of jurisdiction. LifePhotonic is also entitled to bring an action at the Purchaser.
2. The contract is subject in all cases to German law (especially BGB and HGB) to the exclusion of international uniform law, in particular the UN Sales Convention (CISG).
LifePhotonic GmbH last update: March 2015
D-53129 Bonn Germany
Tel .: + 49 228-9339-8400 Fax: + 49 228-9339-8399