General Terms and Conditions – Sales

General conditions of delivery and performance for use in business dealings with business entities

The following text is a translation of the German terms and conditions and is provided for your information only. In all cases of doubt or discrepancy, the German language version shall prevail.

Arts Outdoor Lighting Technology GmbH & Co. KG (hereinafter referred as AO Lighting),
Postal address: Arberger Hafendamm 22, 28309 Bremen, GERMANY
Last updated: January 2014

 

§ 1 – Scope

1) The present General Terms and Conditions of Business (hereinafter referred to as the Terms) shall constitute both the basis and an integral part of all contractual agreements which are concluded by and between Arts Outdoor Lighting Technology GmbH & Co. KG (hereinafter referred to as AO Lighting, on the one hand, and its contractual partners (hereinafter referred to as the Customer), on the other, and which concern the sale of items and/or associated materials and services by AO Lighting. They shall also govern all future transactions between AO Lighting and the Customer (hereinafter referred to as the Parties) even in the absence of any further agreement to this effect.

2) Only the present Terms shall apply. The Customer‘s divergent terms of business, if any, shall be deemed invalid. Any changes to the Terms shall be without legal effect unless expressly confirmed by AO Lighting in writing; only in case of such confirmation shall they take precedence over these Terms.

3) These Terms will be deemed to have been accepted at latest on receipt of the goods or service(s) in question.

4) These Terms shall also apply to legal entities under public law and special public assets.

 

§ 2 – Offer and conclusion of contract

1) Offers by AO Lighting shall be without obligation. AO Lighting reserves the right to make changes and additions. Illustrations in printed materials as well as statements concerning weights and dimensions are to be regarded as approximative unless their accuracy is guaranteed in writing.

2) For the contract to come into effect, there must be written confirmation by AO Lighting. Such written confirmation shall determine with finality the nature of the performance, the contractual relationship and scope of delivery contracted for. Ancillary agreements and oral statements including assurances and guarantees given by employees shall only form part of the contract if confirmed in writing by AO Lighting. The only persons authorized to provide such written confirmation are the managing director of AO Lighting and its authorized signatories.

 

§ 3 – Prices

1) All prices quoted by AO Lighting are to be understood as being in euros exclusive of value added tax.

2) In the case of sale to destination according to buyer‘s instructions, the purchase price shall apply plus the cost of freight, packaging and insurance.

3) AO Lighting shall remain committed to the prices quoted in its offers for 30 days from the time of the offer in question. Otherwise the definitive prices shall be those quoted by AO Lighting in the order confirmation.

4) The cost of installation, training, and other ancillary services are not included in the purchase price unless agreements to the contrary have been reached.

 

§ 4 – Delivery

1) Unless otherwise agreed, AO Lighting shall decide upon the means of transport and shipping routes without being responsible for selecting the quickest and cheapest possibility.

2) Delivery dates and periods must be explicitly confirmed by AO Lighting in writing and shall be considered merely approximate. Delivery shall be deemed to be punctual if the goods have left AO Lighting‘s warehouse or if they have been reported ready for delivery prior to expiry of the delivery period.

3) AO Lighting shall only be responsible for the punctuality of its own deliveries and/or services if it has itself received the requisite deliveries or other services punctually (provided the relevant contracts with suppliers and subcontractors were concluded at an appropriate time). The burden of proving that AO Lighting is in breach of duty with respect to the obtaining of supplies shall lie with the Customer. Correct and punctual deliveries by our own suppliers shall be expressly reserved.

4) In the event of Acts of God, strikes, shortage of raw materials or operational disturbances, the delivery periods shall be extended accordingly. In any such case or if AO Lighting‘s suppliers encounter circumstances leading to considerably delayed performance and AO Lighting is unable to procure the goods, AO Lighting shall be entitled to withdraw from the contract. At the Customer‘s request, AO Technology shall declare whether AO Lighting intends to exercise its right to withdraw from the contract or intends to deliver within a reasonable period of time to be agreed.

5) Deliveries are ex warehouse AO Lighting at the expense and risk of the customer. The place of performance in the sense of § 269 BGB is the head office of AO Lighting. The risk of accidental loss and accidental deterioration of the goods is passed to the customer at the time of their handover at the place of performance. If the contract provides expressly for delivery to some other location, the risk of accidental loss and accidental deterioration of the goods passes to the customer upon delivery of the item by AO Lighting to the shipping agent, carrier or other person or entity charged with performance of the delivery. If the customer delays in accepting the goods, the transfer of risk shall nonetheless be deemed to have taken place.

6) AO Lighting has the right to make partial deliveries which shall in each case be payable separately..

 

§ 5 – Terms of payment

1) Unless otherwise explicitly agreed in writing, AO Lighting‘s invoices shall be payable within fourteen days of receipt of the goods, without any deductions whatsoever. The Customer shall be in arrears if this deadline is exceeded. In the event that there are any defects, the Customer has no withholding rights unless the delivery is obviously defective or if the Customer has clearly the right to refuse to accept the delivery. In this case, the Customer only has any withholding rights to the extent that the withheld amount is in an appropriate relationship to the defects and to the probable costs of subsequent performance (particularly rectification of defects). The Customer is not entitled to assert claims and rights for defects if the Customer has not made due payments and the due amount (including any payments already made) is in an appropriate relationship to the value of the defective delivery.

 

§ 6 – Reservation of title

1) All delivered items remain the property of AO Lighting until all the claims of AO Lighting against the Customer arising from the business relationship have been satisfied. In case of any breach of duty by the Customer, and in particular in case of a failure to pay on time, AO Lighting is entitled – even in the absence of a deadline – to demand the return of the delivered item and/or to rescind the contract. The customer shall be obliged to make restitution. A demand for restitution of the delivered item shall not be deemed a rescission by AO Lighting of the contract unless this is expressly stated.

2) The Customer shall be obliged to inform AO Lighting without delay of any third-party action against the goods, for instance if attachment is ordered, as well as to report any damage to or destruction of the goods. The Customer shall immediately inform AO Lighting in writing of any change in possession of the goods or change of domicile.

3) The Customer shall be entitled to resell the goods in the ordinary course of business. The Customer hereby assigns to AO Lighting in full any claims deriving from the resale or from any other legal title (e.g. insurance, impermissible action). AO Lighting herewith accepts the assignment. Following such assignment, the Customer shall be authorized to collect the sums outstanding until further notice. However, AO Lighting reserves the right to collect the sums directly if the Customer does not discharge his payment obligations correctly.

 

§ 7 – Liability of defects

1) AO Lighting is not responsible for defects in the delivery derived from third parties and forwarded to the Customer unchanged. This does not apply in case of intent and negligence.

2) Claims for defects by the Customer do not exist in the case of merely immaterial deviation from the agreed quality or immaterially impaired use of the delivery object.

3) In case of defects, AO Lighting has the right to choose between the rectification of such defects and replacement delivery. Should subsequent fulfilment fail, the Customer has the right to choose whether to reduce payments or withdraw from the contract. Remediation of any defects shall only be deemed to have failed after a third attempt at remediation has proved unsuccessful.

4) The customer shall bear the expenditure necessary for the purpose of subsequent fulfilment in so far as this is increased as a result of the deliveries or performance having been performed or rendered at a place other than the head office of AO Lighting, unless such relocation is consistent with their designated purpose.

5) The Customer must report the defect in writing within 7 days of receiving the goods, otherwise warranty claims shall be excluded. This shall not apply if the defect was not evident. If a defect is found later, it must similarly be reported in writing within seven days. Defects shall be deemed to have been reported in good time if notice is sent before expiry of the deadline. The Customer shall bear the full burden of proof for all requirements underlying a claim, particularly the defect itself, the time at which the defect was discovered and for proving that the defect was reported in good time.

6) If the buyer finds defects of the goods, he must not dispose of them, i.e. they may not be shared, resold or processed further until an agreement on the settlement of the claim has been reached or else an independent examination has been conducted by an expert appointed by the chamber of commerce at the head office of the purchaser.

 

§ 8 – Limitation of liability

1) AO Lighting is liable for cases of intent or gross negligence in accordance with the statutory provisions. Otherwise AO Lighting is only liable according to the German Product Liability Law for loss of life, bodily injury, impairment to health or for the culpable violation of material contractual obligations. How­ever, claims for damages for the violation of material contractual obligations are limited to foreseeable damage typically associated with this type of contract. Even in cases of gross negligence, AO Lighting‘s liability is limited to foreseeable damage typically associated with this type of contract unless one of the exceptional cases referred to in Paragraph 2 of this Section applies at the same time.

2) If AO Lighting’s operating or maintenance instructions are not followed, products are modified, parts changed or consumable materials used that do not correspond with the original specifications, all claims for defects shall be null and void unless the Customer can substantiate the claim that none of these circumstances contributed to the fault.

3) Liability for damage caused by the delivered item to the legal property of the Customer, for example damage to other chattels, is fully excluded. This does not apply, however, in the case of intent or gross negligence or to claims in respect of loss of life, bodily injury or impairment to health.

4) The provisions of Paragraphs 1 and 2 above apply both to damages in addition to performance and to damages in lieu of performance, regardless of the legal basis for the claim, and in particular claims in respect of defects, violation of the obligations arising from the contractual relationship or unlawful acts. They also apply to claims for compensation for futile expenditure.

5) Where the performance of services is delayed, AO Lighting shall be liable in cases of intent or gross negligence in accordance with the statutory provisions. Such liability shall, however, be restricted to foreseeable loss typically associated with this type of contract. Otherwise AO Lighting’s liability for delayed performance for damages in addition to performance and for damages in lieu of performance shall be limited to 10% of the value of the delivery at the most. Further claims by the customer for delay in providing the service are excluded – even after the deadline set by AO Lighting has come to an end. The abovementioned limitations do not apply to loss of life, bodily injury or impairment to health.

 

§ 9 – Rescission

1) The customer may only rescind the contract within the scope of the statutory provisions if AO Lighting is guilty of breach of duty; in case of defects, however, the statutory provisions still obtain. In case of breach of duty, the Customer must inform AO Lighting in writing, within a reasonable period of being requested so to do, whether it intends to rescind the contract on the grounds of breach of duty or insist on delivery.

 

§ 10 – Limitation period

1) The limitation period for claims and rights arising from defects in the delivery – whatever their legal basis – shall be one year.

2) The limitation period in Paragraph 1 shall also apply to all compensation claims against AO Lighting that relate to the defect – regardless of the legal basis for the claim. The same shall apply to compensation claims of any kind against AO Lighting that are not related to a defect.

3) The limitation period does not generally apply in the case of intent. It does not apply either if AO Lighting has fraudulently concealed a defect. In the latter case, the statutory limitation period shall apply instead.

4) The period of limitation shall also not apply to compensation claims in case of loss of life, bodily injury or impairment to health or else violation of liberty, for claims under product liability law, for grossly negligent or else wilful dereliction of duty or for violation of material contractual obligations.

 

§ 11 – Form and concluding provisions

1) Insofar as written form has been agreed or prescribed by the present Terms, this requirement shall also be met by facsimile transmission (fax) and by an electronic document from which the identity of the issuer can be established incontrovertibly.

2) All ancillary agreements shall be without legal effect unless confirmed in writing by AO Lighting.

3) If any of the provisions in the contractual agreement, including these Terms, proves to be invalid or has not been validly incorporated into the contract, this shall not affect the validity of the remainder of the provisions of the contract. Instead the provision most closely fulfilling the economic intention of the Parties shall apply.

4) The parties are mutually permitted to produce photographic and film works, including works created in a similar manner to such works, of the contract goods and the lighting effects produced by the same and in every respect use them for their own purposes. Any transfer to third parties for commercial purposes is excluded.

5) All legal relations between the Parties shall be governed by the laws of the Federal Republic of Germany. The court of jurisdiction is Bremen.

 

General terms and conditions – Rentals

General terms and conditions of Business for Rentals

The following text is a translation of the German terms and conditions and is provided for your information only. In all cases of doubt or discrepancy, the German language version shall prevail.

Arts Outdoor Lighting Technology GmbH & Co. KG (hereinafter referred as AO Lighting),
Postal address: Arberger Hafendamm 22, 28309 Bremen, GERMANY
Last updated: January 2014

1) All rented items are and shall remain the property of AO Lighting.

2) The flawless functionality of all rented items is examined by AO Lighting prior to their being handed over to the company or individual hiring them (hereinafter referred to as the Customer). The Customer shall be obliged to examine the rented items when they are taken over to ensure that they are complete and free from defects and shall immediately report any defects or missing parts to AO Lighting. If the Customer fails to examine the rented items or does not report any defects or missing parts, the rented items shall be deemed to have been approved / without defects, unless the defect was not evident at the time of examination. If such a defect is discovered later, it must also be reported without delay following its discovery. Defects shall be reported in writing.

3) If the rented items are defective at the time of being handed over or if a defect is discovered later, the Customer shall be entitled to demand rectification of the defects after having reported them in good time. AO Lighting may satisfy the demand for rectification either, at its discretion, by providing an equivalent rented item or by repairing the defective item.

4) The Customer shall only be entitled to demand a reduction in price or termination of the contract in accordance with Section 543, paragraph 2, No. 1 and Section 543, paragraph 3 of the German Civil Code (BGB) if attempted rectification by AO Lighting proves fruitless. If the Customer fails to report the defect or reports the defect belatedly, the Customer shall not be entitled to demand a reduction in price on account of the defect nor to terminate the contract in accordance with Section 543, paragraph 2, No. 1 and Section 543, paragraph 3 of the German Civil Code (BGB) nor to claim damages.

5) If several items have been rented out, the Customer shall only be entitled to terminate the complete contract on account of the defective nature of a single item if the rented items have been rented out as a complete unit and the defective nature significantly impairs the contractually presumed serviceability of the rented items as a whole.

6) If the Customer rents technical complex equipment or equipment which is difficult to operate without making use of the specialist personnel recommended and offered by AO Lighting the Customer shall only be entitled to demand rectification of the defect if he can prove that the defect has not been caused partly or entirely by operator errors.

7) The Customer shall only be entitled to assert contractual and statutory claims for damages if they are based on a wilful or grossly negligent violation of duty by AO Lighting. Strict liability in accordance with Section 536, paragraph 1, of the German Civil Code (BGB) shall be excluded. In addition, AO Lighting shall also be liable for typical, foreseeable losses if they have been caused by gross negligence or wilful intent by a simple vicarious agent or by negligent violation of a substantial contractual duty by AO Lighting.

Liability for loss of life, bodily injury or impairment to health shall remain unaffected by these limitations of liability.

8) The Customer shall treat the rented items with care. If the Customer has not booked service personnel from AO Lighting, the Customer shall be obliged to carry out all the necessary maintenance and repair work professionally and at its own expense during the rental period. In particular, the Customer shall repair all defects in lamps occurring during the rental period.

9) The rented items may only be installed, operated and removed in accordance with the technical rules and exclusively by qualified personnel. If items are rented without personnel from AO Lighting, the Customer shall ensure continual compliance with all applicable safety regulations, especially the accident prevention guidelines issued by the employers‘ liability insurance associations and the guidelines of the Association of German Electrical Engineers (VDE).

10) The Customer shall ensure a disturbance-free supply of electric power during the entire period of use of the rented items. The Customer shall be liable for any damage or losses due to power failures and interruptions or fluctuations in the power supply.

11) The Customer shall be obliged to obtain at his expense and in good time all permits required under public law for the planned use of the rented items. If installation is undertaken by AO Lighting, the Customer shall present the necessary permits to AO Lighting on request beforehand. AO Lighting shall not be liable for the permissibility of the Customer‘s intended use of the rented items.

12) In the event of the installation being undertaken by AO Technology, AO Lighting accepts no liability in respect of the timely completion of the installation if the work of installation is delayed by inclement weather (e.g. storm, rain, snow or similar). Nor does AO Lighting accept any liability in respect of the planned lighting performance and functionality if these are hindered or adversely influenced by inclement weather.

13) The rented items shall be returned to AO Lighting’s warehouse in full, in orderly, clean and faultless condition. The duty to return items shall also encompass any defective rented items, especially lamps and other small accessory parts.

14) If the agreed rental period is exceeded, the Customer shall inform AO Lighting of this fact in writing and without delay. Continued use shall not lead to an extension of the rental unless the parties have expressly agreed to this in writing. For every day by which the agreed rental period is exceeded, the Customer shall pay compensation equal to the agreed remuneration per day. This remuneration shall be calculated by dividing the originally agreed total price by the number of days of the originally agreed rental period. AO Lighting reserves the right to assert further claims.

15) If rented items, lamps or other small accessory parts are culpably damaged or lost, the Customer shall refund to AO Lighting the new value of the parts, unless the Customer can prove that AO Lighting has not incurred any loss or that the loss is considerably smaller.

16) The Customer shall have the right in accordance with the following rules to cancel the rental agreement in writing prior to the commencement of the rental period. However such cancellation shall only be valid if notified in writing.

In the event of such cancellation, the Customer shall be obliged to pay AO Lighting the following remuneration as compensation
a) in the case of cancellation 30 days prior to the commencement of the contractually agreed rental period, 20%;
b) in the case of cancellation 10 days prior to the commencement of the contractually agreed rental period, 50%;
c) in the case of cancellation 3 days prior to the commencement of the contractually agreed rental period, 80%.

The obligation to pay compensation shall not apply insofar as the Customer can prove that AO Lighting has not suffered a loss or that the loss is considerably smaller in magnitude.

17) The parties are mutually permitted to produce photographic and film works, including works created in a similar manner to such works, of the contract goods and the lighting effects produced by the same and in every respect use them for their own purposes. Any transfer to third parties for commercial purposes is excluded.

18) Place of performance shall be at AO Lighting‘s head office. The present Terms and all legal relations between AO Lighting and the Customer shall be governed by the laws of the Federal Republic of Germany.