General Terms and Conditions (GTC) of the TRIO Lighting Group
TRIO Leuchten GmbH, Arnsberg registered in the commercial register AG Arnsberg, HRB 1194 Reality Leuchten GmbH, Arnsberg – registered in the commercial register AG Arnsberg, HRB 7512 TRIO International GmbH, Arnsberg – registered in the commercial register AG Arnsberg, HRB 9671 hereinafter referred to as TRIO Lighting Group.
These terms and conditions apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB), hereinafter referred to as the customer.
Agreements made between the parties in individual cases (including collateral agreements, additions and amendments) must be made in writing and in any case take precedence over these conditions.
The following terms and conditions apply to the entire business relationship with our customers. The customer acknowledges them as binding for the present contract and also for all future transactions in the currently valid version. Any deviating agreement requires our written confirmation. The customer waives the right to assert his own terms and conditions of purchase. These also do not become part of the contract through our silence or through our delivery.
II. Offers and delivery
Our offers are subject to change.
If we are hindered in the timely performance of the contract due to procurement, manufacturing or delivery disruptions beyond our control – at our premises or our suppliers – e.g. due to energy shortages, traffic disruptions, strikes, lockouts, the delivery period shall be extended accordingly. The customer can only withdraw from the contract if he sets us a reasonable grace period in writing after expiry of the extended period. The withdrawal must be made in writing if we do not fulfill within the grace period.
If it becomes impossible for us to fulfill the contract in whole or in part for the reasons mentioned in Section II.2, we shall be released from our obligation to deliver. Any payments already made will be reimbursed immediately.
We will inform the customer immediately of the hindrance according to Section II.2 and the impossibility according to Section II.3.
Claims for damages by the customer due to delay in delivery and in lieu of performance are excluded even after expiry of any deadline set for us for delivery in accordance with Section IX.
If the customer is in default with the payment of a previous delivery, we are entitled to withhold deliveries without being obliged to compensate for any damage incurred.
We are entitled to make partial deliveries as well as partial invoices.
Unless otherwise agreed, the calculation shall be made at the net prices applicable on the day of delivery plus value added tax at the respective statutory rate. Agreements on bonuses and other remuneration lose their effectiveness in the event of the customer's cessation of payments or an inconclusive foreclosure against him.
Invoices are issued on the day of delivery. Payments are accepted within 30 days of invoicing on a net basis without deduction. However, we can make the delivery dependent on immediate payment or on payment in advance.
We reserve the right to decide on the acceptance of bills of exchange and cheques on a case-by-case basis. It is only made on account of performance. A credit note will be issued subject to chargeback in the event of non-redemption. For bills of exchange, we charge the usual bank discount and collection charges. We do not assume any liability for timely collection or for timely protest.
In the event that the customer is in default of payment, that a bill of exchange or cheque is not honoured on time, or that there is a significant deterioration in his financial circumstances which jeopardises our claim, we may make the entire claim due immediately – even if bills of exchange or cheques are given for this purpose.
Only persons with our written power of collection using our receipt forms are entitled to accept payments.
The customer can only assert a right of retention if it is based on the same contractual relationship. He is only entitled to offset if we have acknowledged the counterclaim or if it has been legally established. We may at any time offset our claims against claims of the customer against other affiliated companies.
V. Retention of title
In order to secure our claims against the customer, we reserve our ownership of the delivered goods (hereinafter referred to as reserved goods) until all claims arising from the business relationship with the customer have been paid.
The customer is obliged to treat the reserved goods with care and to insure them at his own expense against fire, water and theft in the amount of the replacement value of the purchased item. If the reserved goods are seized, the customer is obliged to point out our ownership and to inform us immediately in writing of the seizure.
The customer is entitled to resell the reserved goods in the ordinary course of business. He is not entitled to make any other dispositions, in particular to transfer ownership by way of security and to pledge. In the event of resale, the customer hereby assigns to us the resulting claims of any kind against the purchaser in order to secure the purchase price claim. This also applies in the event that the customer's receivables from the resale are included in a current account. The assignment of a current account claim shall only take place pro rata in the amount of the resale price of the reserved goods.
The customer is entitled to treat, process and transform the reserved goods in the ordinary course of business and to sell the new item in the ordinary course of business. If the customer processes the goods subject to retention of title, the processing is always carried out in our name and on our behalf, but without any obligation on our part. We acquire ownership of the new item immediately. If the processing is carried out from materials of several owners, we shall acquire a co-ownership share in the new item corresponding to the value of the reserved goods. If we acquire ownership or a co-ownership share in the new item, we shall transfer ownership or co-ownership of the new item to the customer subject to the condition precedent of full payment of the purchase price. If the reserved goods are combined or mixed with other items of the customer and the customer's item is to be regarded as the main item, the customer assigns to us a co-ownership share in the main item corresponding to the value of the reserved goods under the resolutive condition of full payment of the purchase price. If the customer sells the new item or the item created by combining or mixing, the customer hereby assigns to us the claim to which he is entitled against the purchaser of the item in order to secure the purchase price claim. In the event that we have only acquired a co-ownership share in the new item, the customer assigns the claim pro rata according to the value of the co-ownership share.
Until further notice, the customer is authorized by us to collect the claims assigned to us in his own name for our account.
If the customer defaults on payment of the purchase price, we have the right to withdraw from the purchase contract and demand the surrender of the goods subject to retention of title.
VI. Packaging and shipping
The packaging is carried out according to professional and commercial criteria. Packaging will be charged separately. Boxes will be credited in full within 8 days if they are returned carriage paid. Light packaging such as postal boxes, cartons, foils, etc. will not be taken back. The customer shall ensure proper disposal/recycling at his own expense.
Shipment is ex works, without guarantee of the cheapest shipment at our best discretion. All deliveries (including returns and carriage paid deliveries) are made for the account and at the risk of the customer. From a net value of 1,000 € (in words one thousand euros), delivery is free of charge. The risk is transferred to the customer when the goods are made ready for acceptance at the named location, regardless of whether we have taken over the organization of the shipment and/or the shipping costs. The notification of readiness for dispatch is equivalent to the provision of the goods for acceptance at the named location.
VII. Material defects
We are liable for material defects as follows:
All those goods or services that have a material defect within the limitation period are to be repaired, redelivered or re-rendered free of charge at our discretion, provided that the cause of this defect already existed at the time of the transfer of risk.
Claims for material defects shall become statute-barred after 12 months. This does not apply if the law prescribes longer periods in accordance with §§ 438 para. 1 no. 2 BGB (buildings and items for buildings), 438 para. 3 BGB (fraudulently concealed defects), 479 para. 1 BGB (right of recourse) and 634a para. 1 no. 2 BGB (construction defects).
The customer must notify us immediately in writing of material defects. In the ordinary course of business, the customer must inspect the goods immediately after delivery and report any defects found in the process immediately in writing with the reasons for the complaint. A preclusion period of 5 days applies to obvious defects.
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 can only withhold payments if a notice of defect is asserted, the justification of which cannot be doubted. If the notice of defects was unjustified, we shall be entitled to demand reimbursement of the expenses incurred by us from the customer.
First of all, we must always be given the opportunity to remedy the defect within a reasonable period of time.
If the supplementary performance fails, the customer may - without prejudice to any claims for damages in accordance with Section IX - withdraw from the contract or reduce the remuneration.
Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable equipment or due to special external influences that are not assumed under the contract, as well as in the case of non-reproducible software errors. If improper modifications or repair work are carried out by the customer or third parties, there shall also be no claims for defects for these and the resulting consequences. Claims are also excluded if technical specifications and assembly recommendations that we give for the use of the product are not taken into account and damage is caused as a result.
Claims of the customer due to the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the goods have subsequently been taken to a place other than the customer's branch, unless the transfer corresponds to his intended use.
The customer's statutory rights of recourse against us shall only exist to the extent that the customer has not made any agreements with his customer that go beyond the statutory claims for defects. Section VII.8 shall also apply accordingly to the scope of the customer's right of recourse against us. The customer is obliged to immediately report any recourse that occurs in the supply chain.
In all other respects, Section IX (Liability) shall apply to claims for damages. Further claims or claims of the customer against us other than those regulated in this Section VII due to a material defect are excluded.
VIII. Compensation for repair work
If the customer of our goods is a reseller and carries out the rectification work himself in accordance with Section VII.1, the applicable terms and conditions of the TRIO Lighting Group shall apply in the event of a warranty claim. The customer may demand reimbursement of repair costs to the exclusion of further claims, provided that the reseller is authorized to carry out repair work. The same applies if the reseller carries out repair work within the scope of the TRIO Lighting Group warranty.
IX. Other liability
Claims for damages by the customer or claims against us for reimbursement of expenses are excluded, regardless of the legal grounds, unless mandatory statutory liability or a claim arises for the following reasons: In cases of non-contractual liability under the Product Liability Act, in the event of intent, gross negligence, non-compliance with guaranteed characteristics, in the event of personal injury, we shall be liable in accordance with the statutory provisions. In the event of a breach of essential contractual obligations, the customer's claim for damages shall be limited to the foreseeable damage typical for the contract. If we cause this intentionally or through gross negligence or if personal injury has occurred as a result, the statutory provisions shall apply.
X. Labelling of goods, property rights
A modification of our goods, a removal of our device numbers and type plates as well as any special stamps that are considered to be marks of origin of the customer or a third party or give the impression that it is a special product are not permitted.
We assume liability that the goods sold as such are free of third-party property rights in Europe. If third parties should assert justified claims arising from property rights, we will, at our discretion and at our expense, either obtain a license for the customer or replace the goods sold with goods free of property rights or take them back against refund of the purchase price. We shall be liable for further claims in accordance with Section IX. Our above-mentioned obligations shall only exist if the customer notifies us immediately in writing of the claims asserted by the third party, does not acknowledge an infringement and reserves the right to take all defensive measures and negotiate a settlement. We assume no liability for the fact that the use of the goods sold does not interfere with the property rights of third parties.
XI. Foreign business
The contractual relations shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Should any provision of the GTC be invalid, the remaining provisions shall remain unaffected. The contracting parties undertake to replace an invalid provision of the GTC with a provision that is as close as possible in terms of meaning and purpose to the invalid provision in a legally effective provision. This also applies to any existing loopholes.
XIII. Place of jurisdiction
The exclusive place of jurisdiction for all disputes arising from business relationships to which these terms and conditions apply is the respective registered office of the companies belonging to the TRIO Lighting Group within the scope of these terms and conditions, unless otherwise stated in the order confirmation of the TRIO Lighting Group.