1.1. "Buyer" means a legal or natural person who buys Goods;
1.2. “Seller” means Lighting Technologies Europe GmbH, registered in the Commercial Registry of Munich under No. HRB 210295, and situated at the address of Fraunhoferstrasse 7, 85737 Ismaning, Germany;
1.3. “Party” means the Seller or the Buyer, and “Parties” mean the Seller and the Buyer;
1.4. "Goods" mean the articles to be supplied to the Buyer by the Seller;
1.5. “Agreement” means a set of the commercial and legal documents comprised of these Terms and Conditions, Seller’s Offer/Quotation (if any), Seller’s Price-List (if any), Buyer’s Order/Acceptance (if any), Seller’s Order Confirmation (if any), and other relevant documents issued by the Seller or the Buyer (subject to the Seller express acceptance of and consent to thereof) or executed between the Seller and the Buyer. Provisions of these Terms and Conditions are applicable unless otherwise is expressly stated by the Seller or agreed between the Parties in writing.
2.1. These Terms and Conditions shall apply to sales of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by the Seller in writing.
2.2. Any variation to these Terms and Conditions (including any special terms and conditions agreed between the Parties) shall be inapplicable unless agreed in writing by the Seller.
3. PLACEMENT OF ORDER
3.1. The Seller's acceptance of all orders and all offers and sales by Seller are subject to and expressly conditioned upon the Buyer's assent to the terms and conditions of this Agreement. The Buyer's acceptance of any offer by the Seller must be made on such terms and conditions exactly as offered by the Seller. Any of Buyer's terms and conditions which are different from or in addition to those contained in this Agreement are objected to by Seller and shall be of no effect unless specifically agreed to in writing by the Seller. Commencement of performance or shipment shall not be construed as acceptance of any of the Buyer's terms and conditions which are different from or in addition to those contained in the Agreement. If a contract is not earlier formed by mutual agreement in writing, acceptance by the Buyer of the Goods shall be deemed the Buyer’s assent to all of the terms and conditions of this Agreement.
3.2. Offers/Quotations to supply the Goods made by the Seller are valid for 30 days from issuance unless otherwise specifically mentioned in the relevant Offer/Quotation. Orders placed by the Buyer may not be cancelled or modified, either in whole or part, without the Seller’s express written consent. If the Seller consents to any order modification or cancellation, it may impose an order modification or cancellation fee. All prices are as stated in the Seller’s Offer/Quotation, or Order Confirmation, and specifically override any prices referenced in the Buyer’s Order. Prices for Orders for immediate shipment are prices in effect at time of receipt of order. Qualifying orders specifying future delivery will be invoiced at prices and terms in effect at time of shipment.
3.3. All prices and other terms are subject to correction for typographical or clerical errors.
4.1. Prices are in Euro.
4.2. The payment shall be made in the form of the bank transfer.
4.3. The payment shall be made within 14 days after the invoice date unless otherwise specified in the invoice.
4.4. The date of the funds transfer to the Seller’s bank account is considered to be the date of payment. The Seller’s bank details are the following: Commerzbank, IBAN: DE51 7004 0041 0217 7798 00, Swift/BIC: COBADEFFXXX.
4.5. All commission expenses and other charges imposed by the payer’s bank in connection to the effected payment will be borne by Buyer. All commission expenses and other charges imposed by payee’s bank and correspondent bank and directly connected to the effected payments will be borne by Seller.
4.6. Invoiced overages and the Goods shortages must be reported by the Buyer within 60 days of invoice date. Any discrepancy not reported within 60 days will not be considered for an adjustment.
5. DELIVERY AND ACCEPTANCE OF GOODS. TITLE
5.1. Name and description of the Goods, price per item, assortment, quantity and total amount relevant to a specific delivery are stated in the Seller’s Order Confirmation, or Quotation, and the Invoice. Costs of the boxes and packaging material are included in the price of the Goods. Terms of delivery is FCA Karlsfeld, Germany, Incoterms® 2010.
5.2. The Seller will make a reasonable effort to observe the dates for delivery or other performance under this Agreement, but the Seller shall not be liable for any delay in delivery or failure to perform due to acceptance of prior orders, strike, lockout, riot, war, fire, acts of God, accident, delays caused by any subcontractor or supplier or by the Buyer, technical difficulties, failure or breakdown of machinery or components necessary for order completion, inability to obtain or substantial rises in the price of labor or materials or manufacturing facilities, curtailment of or failure to obtain sufficient electrical or other energy supplies, or compliance with any law, regulation, order or direction, whether valid or invalid, of any governmental authority or instrumentality thereof, or due to any circumstances or any causes beyond its reasonable control, whether similar or dissimilar to the foregoing and whether or not foreseen. As used herein, "performance" shall include, without limitation, fabrication, shipment, delivery, assembly, installation, testing and warranty repair and replacement, as applicable.
5.3. The Buyer agrees that any delay in delivery or failure to deliver or perform any part of this Agreement shall not be grounds for Buyer to terminate or refuse to comply with any provisions hereof and no claim or penalty of any kind shall be effective against Seller for such delay or failure; provided, however, that if the delay or failure extends beyond six (6) months from the originally scheduled date either party may, with written notice to the other, terminate this Agreement without further liability for the unperformed part thereof.
5.4. In case of prepayment for the Goods, on default of obligations on the Goods delivery through the Seller's fault the latter is obliged to refund the money to the Buyer’s account within thirty calendar days from the day, following the last day of the Goods delivery period.
5.5. The date of the transfer of the Goods to the Buyer (consignee, carrier) at the point of destination according to the terms of delivery shall be deemed the date of delivery of the Goods.
5.6. The Seller shall ensure delivery of the Goods packed in appropriate packaging in order to prevent all possible damage in transportation and keeping.
5.7. The Seller is obliged to check the carrier’s transport documents (at least the Buyer’s written notification) and provide the Buyer upon his written request with the duly certified copies of the documents that expressly confirm the fact that the Goods have been transferred from the Seller to the carrier, signed by the authorized representatives of the Seller and the carrier.
5.8. Title to the Goods will pass from the Seller to the Buyer at the place of delivery according to the terms of delivery.
5.9. The Goods shall be deemed accepted by the Buyer as conforming to this Agreement, and the Buyer shall have no right to revoke any acceptance, unless written notice of the claimed nonconformity is received by the Seller within sixty (60) days of delivery thereof. Notwithstanding the foregoing, any use of a product by the Buyer, its agents, employees, contractors or licensees, for any purpose, after delivery thereof, shall constitute acceptance of that Goods by the Buyer.
5.10. Partial delivery is allowed. In this case the Buyer shall pay for partial delivery unless otherwise agreed by the Parties in writing.
6. PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS
6.1. Performance of this Agreement does not convey any express or implied license under any patent, copyright, trademark, or other proprietary rights owned or controlled by the Seller, whether relating to the products sold, service provided, or any manufacturing process or other matter. All rights under any such patent, copyright, trademark or other proprietary rights are expressly reserved by the Seller.
6.2. The Seller is solely liable for any claim based upon or related to any alleged infringement of any patent or other intellectual property rights. The Seller shall have no liability for any claim of infringement or damages based on a combination of the Goods with other products, equipment or materials, or based upon any items made with the Goods.
6.3. The Buyer shall defend and hold the Seller harmless against any expense, loss, costs or damages resulting from any claimed infringement of patents, trademarks or other intellectual property rights arising out of compliance by the Seller with the Buyer's designs, specifications or instructions.
7.1. The Goods delivered under this Agreement meet CE norms and technical specifications of the Goods issued by the Seller and valid on the date of delivery and officially posted to the Seller web site and (or) in the Seller product catalogue.
7.2. The Seller’s warranty applies in general to the luminaires, its housing, optical elements, ballasts, starting devices and other electrical components, to the fastening and installation elements and connection of the fixtures to the electrical network. The warranty does not cover lamps and other light sources, as well as fluorescent lamp starters. The warranty does not apply to discolouration of painted surfaces and plastic parts of the Goods under operation.
7.3. Unless otherwise specified by the Parties in writing the Seller undertakes the following warranty obligations. Basic warranty is valid for 3 years from the date of delivery of the Goods and covers all the Goods delivered by the Seller subject to the Buyer’s compliance with the warranty conditions set forth below. Warranty for LED-based lighting fixtures is 5 years from the date of delivery of the Goods and does not cover LED retrofit lamps and tubes.
7.4. The Seller undertakes the warranty responsibilities under the following conditions: the Goods are delivered, stocked, mounted/installed and operated in conditions and requirements specified in a product’s data sheet, engineering specifications, mounting and service instructions, delivery terms, rules for technical maintenance of electrical installations and other indispensable conditions of this Agreement which may be amended from time to time.
8.1. Claims concerning the quantity and (or) completeness of the Goods shall be brought during two calendar months from the date of delivery.
8.2. Claims concerning the quality of the Goods shall be brought during the warranty period.
8.3. The claim shall contain the following data:
— Names and positions of the persons participating in making of the damage statement;
— Date and time of making of the damage statement;
— Names of the Seller and the Buyer;
— Date and number of the relevant Seller’s Offer/Quotation (if any), Buyer’s Order/Acceptance (if any), Order Confirmation (if any), the invoice, and the CMR (if any);
— Name and quantity of the inappropriate Goods;
— Condition of tare and packing;
— At discrepancy of the Goods by quantity – data about actual quantity and assortment; at discrepancy of the Goods by completeness – data about the actual completeness; at discrepancy of the Goods; by quality – defect and its character, and also quantity of the poor-quality Goods;
— The reasons which have caused, in opinion of the Buyer, discrepancy of the Goods by quantity, by completeness and (or) by quality; and
— Other information at the discretion of the Buyer.
8.4. Claim is made on the basis of the damage statement. The claim will state requirements of the Buyer in connection with the revealed discrepancy of the Goods by quantity, by completeness and (or) by quality.
8.5. The claim with the damage statement, photos, copies of the invoice, packing list and other documents at the discretion of the Buyer must be forwarded by the Buyer by means of electronic communication.
The claim can be resolved by issuing a credit note by the Seller in order to reduce the Buyer’s depth to the Seller in amount stated in the claim.
9.1. If a Party fails to fulfill its obligation under this Agreement it is liable for direct damages caused by such a failure.
9.2. Notwithstanding anything to the contrary elsewhere in this Agreement or provided for under any applicable law, no Party shall, in any event, be liable to other Party or any third person for any consequential, incidental, indirect, special or punitive damages of other Party or third person, including but not limited to loss of future revenue, income or profits, diminution of value or loss of business reputation or opportunity relating to the breach or alleged breach hereof, whether or not the possibility of such damages has been disclosed to the other Party or third person in advance or could have been reasonably foreseen by such other Party or third person.
10. FORCE MAJEURE
10.1. Parties shall be released from their responsibility for a partial or complete non-execution of the liabilities under this Agreement should this non-execution be caused by the circumstances of force majeure as the result of unavoidable events, namely acts of Providence, national emergency, military operations, embargo etc., on condition that such circumstances influenced directly the fulfilment of this Agreement. In this case the time of the fulfilment of this Agreement obligations is extended for the period equal to period of duration of such circumstances. The parties have to inform each other on the circumstances of force majeure within thirty calendar days from their beginning.
10.2. Certificates issued by the Chamber of commerce and industry of the Buyer’s or the Seller’s country respectively will be the proof of existence and duration of such circumstances.
10.3. If such circumstances last more than six calendar months, either Party is entitled to unilaterally terminate this Agreement and is released from its obligations under this Agreement. In this case, neither of the Parties will be entitled to demand from the other Party any compensation for the losses sustained.
11. GOVERNING LAW
11.1. Any terms not addressed in this Agreement should be governed in accordance with the norms of the Incoterms® 2010 and United Nations Convention on contracts for the international sale of goods (Vienna, the 11th of April 1980), but in case of lack such norms – in accordance to the norms of German law.
12. SETTLEMENT OF DISPUTES
12.1. If any dispute, controversy, or claim arises out of, relating to, or in connection with this Agreement, representatives of the Parties authorized to settle disputes will, within 14 days of a written request from one Party to the other Party, meet in a good faith effort to settle the dispute.
12.2. If the meeting is not possible, the Parties will attempt to settle it by the written communication. Each Party upon receipt of the document concerned dispute, controversy, or claim that came out of this Agreement or in connection to it shall provide a written reasoned response within 14 calendar days from the date of receiving it.
12.3. If the Parties fail to resolve the matter amicably within 4 calendar months from the date of receiving the first relevant document, all disputes, controversies, or claims arising out of, relating to, or in connection with this contract, including but not limited to the formation, breach, termination or validity thereof, shall be resolved by a court having jurisdiction.
13. OTHER CONDITIONS
13.1. This Agreement is made in the English language.
13.2. Any changes or revisions to this Agreement shall be made in writing and requires either the Seller’s written consent or shall be executed between the Parties in writing and signed by the Parties’ authorized representatives.
13.3. The Party shall not assign or transfer any rights or claims under this Agreement without the prior written consent of the other Party, and any purported assignment made without such consent shall be void.
13.4. This Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties.
13.5. Copies hereof, of amendments and addenda hereto and of other documents submitted due to performance hereof via electronic channels (including without limitation to fax, e-mail) shall be legal and valid as originals until the parties receive such originals. Such copies shall be valid if it reproduces a corresponding original in full (without excerptions) including signature and seal of an authorized person, states sending date, time and place. The Parties shall send original documents to the other party. If a party, sending a copy, fails to send a corresponding original or submits an original that differs from the previously sent copy, such copy shall be deemed invalid and a party that sent such copy may not contest validity of such document.
13.6. If any provision or part hereof is declared invalid by court, such provision or part thereof shall be deemed excluded from this Agreement and shall not affect validity of the remaining provisions hereof.