Terms and Conditions of Sale, Delivery and Payment of Top Light e.K.



I. General terms and conditions

1. For the legal relationship between Top Light e.K. and an orderer in connection with the deliveries and/or services of Top Light e.K., Top Light e.K. shall not be liable. (hereinafter: Deliveries) shall apply - after all, these Terms and Conditions of Sale, Delivery and Payment. General terms and conditions of the orderer shall only apply insofar as Top Light e.K. has expressly agreed to them in writing. The mutually agreed written declarations are authoritative for the scope of deliveries.

2. Top Light e.K. reserves all proprietary and copyright exploitation rights to cost estimates and other documents (hereinafter: documents). The documents may only be made accessible to third parties with the prior consent of Top Light e.K. and, if the order is not placed with Top Light e.K., must be returned to Top Light e.K. immediately upon request. Sentences 1 and 2 shall apply accordingly to the orderer's documents; however, these may be made accessible to third parties to whom Top Light e.K. has permissibly transferred deliveries.

3. Partial deliveries are permissible insofar as they are reasonable for the customer.

4. The term „claims for damages“ in these terms and conditions of sale, delivery and payment also includes claims for reimbursement of wasted expenses.

II. Prices, terms of payment and offsetting

1. Prices are ex works, excluding packaging, plus the applicable statutory value-added tax.

2. For orders from our luminaire portfolio with a net value of over 350.00€, Top Light e.K. delivers freight and packaging paid to a receiving station or shipping address within the Federal Republic of Germany. In the case of orders from our mirror portfolio, costs are incurred for each delivery which are stated in Top Light e.K.'s offer or order confirmation.

3. Invoices will be issued on the day of delivery at the earliest. A discount of 2% is granted for payment within 10 days of the invoice date. The open target is 30 days. If a direct debit order is placed, we grant a 3% discount. The invoices are collected on the 10th of the following month for the previous month.

4. First deliveries to new customers are always cash on delivery. Deliveries outside the Federal Republic of Germany are generally made against net advance payment.

5. For custom-made products and orders over 5,000.00€, half of the invoice amount is due when the order is placed. Special designs are excluded from exchange.

6. Payments are to be made free paying agent of Top Light e.K.

7. The customer may only set off claims which are undisputed or have been finally and conclusively established by a court of law.

III. Reservation of proprietary rights

1. The items of the deliveries (reserved goods) remain the property of Top Light e.K. until all its claims against the orderer arising from the business relationship have been fulfilled. If the value of all security rights to which Top Light e.K. is entitled exceeds the amount of all secured claims by more than 10%, Top Light e.K. shall release a corresponding part of the security rights at the request of the orderer; Top Light e.K. shall be entitled to choose between various security rights upon release.

2. For the duration of the retention of title, the customer is not permitted to pledge the goods or assign them as security - and resale is only permitted to resellers in the normal course of business and only on condition that the reseller receives payment from his customer or makes the reservation that ownership is not transferred to the customer until the customer has fulfilled his payment obligations.

3. If the orderer resells goods subject to retention of title, he hereby assigns his future claims from the resale against his customers with all ancillary rights - including any balance claims - as security to Top Light e.K. without the need for further specific declarations. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods, the orderer assigns to Top Light e.K. that part of the total price claim which corresponds to the price of the reserved goods invoiced by Top Light e.K..

4. Until revoked, the customer is entitled to collect assigned claims from the further processing. Top Light e.K. is entitled to revoke the orderer's collection authorisation in the event of good cause, in particular default in payment, cessation of payments, opening of insolvency proceedings, protest of a bill of exchange or justified indications that the orderer is in over-indebted or threatened insolvency. In addition, Top Light e.K. may, after prior warning and within a reasonable period of time, disclose the assignment by way of security, realise the assigned claims and demand that the orderer discloses the assignment by way of security to the customer.

5. The orderer must notify Top Light e.K. immediately of any attachments, seizures or other dispositions or interventions by third parties. If a justified interest is substantiated, the orderer must provide Top Light e.K. with the information required to assert his rights against the customer and hand over the necessary documents.

6. In the event of a breach of duty by the orderer, in particular in the event of default in payment, Top Light e.K. is also entitled to withdraw from the contract after the unsuccessful expiry of a reasonable deadline set to the orderer for performance in addition to taking back the goods; the statutory provisions on the dispensability of setting a deadline remain unaffected. The customer is obliged to surrender the goods. Taking back or asserting the retention of title or seizure of the reserved goods by Top Light e.K. shall not constitute withdrawal from the contract, unless Top Light e.K. had expressly declared this.

IV. Time limits for deliveries; delay

1. The observance of deadlines for deliveries presupposes the timely receipt of all documents to be supplied by the customer, as well as the observance of the agreed terms of payment and other obligations by the customer. If these conditions are not met in good time, the deadlines shall be extended accordingly; this shall not apply if Top Light e.K. 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 unpunctual or proper delivery to Top Light e.K

3. If Top Light e.K. is in default, the orderer may - provided he can prove that he has suffered damage as a result - demand compensation of 0.5% for each completed week of delay, but no more than a total of 5% of the price for that part of the deliveries which could not be put into appropriate operation due to the delay.

5. At Top Light e.K.'s request, the orderer is obliged to declare within a reasonable period of time whether it will withdraw from the contract due to the delay in delivery or insist on delivery.

6. If dispatch or delivery is delayed at the request of the customer by more than one month after notification of readiness for dispatch, the customer may be charged storage costs amounting to 0.5% of the price of the items of the deliveries for each further month or part thereof, but no more than a total of 5%. The contracting parties are free to prove higher or lower storage costs.

V. Transfer of risk

1. The risk shall also pass to the customer in the case of carriage paid delivery if it has been dispatched or collected. At the request and expense of the orderer, Top Light e.K. will insure deliveries against the usual transport risks.

1. The risk shall also pass to the customer in the case of carriage paid delivery if it has been dispatched or collected. At the request and expense of the orderer, Top Light e.K. will insure deliveries against the usual transport risks.

VI. Receipt

DThe customer may not refuse acceptance of deliveries due to insignificant defects - gladly.

VII. Material defects

1. The quality of the products results exclusively and conclusively from the respective product description. For dimensions without tolerance indication, the accuracy level „Medium“ according to DIN 7168 applies.

2. At Top Light e.K.'s discretion, all those parts or services which have a material defect must 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.

3. Claims for subsequent performance shall become statute-barred 12 months after the start of the statutory limitation period; this shall apply to withdrawal from the contract and reduction of the purchase price. This period does not apply if longer periods are prescribed by law in accordance with §§ 438 para. 1 No. 2 (buildings and objects for buildings), 479 para. 1 (right of recourse) and 634a para. 1 No. 2 (defects in buildings) BGB in the event of intent, fraudulent concealment of the defect and non-compliance with a quality guarantee. The statutory provisions on suspension of expiry, suspension and recommencement of periods remain unaffected.

4. Complaints by the customer must be made in writing without delay.

5. In the event of notices of defects, the Purchaser may withhold payments 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 cannot be in doubt. The customer has no right of retention if his claims for defects are time-barred. If the notification of defects was unjustified, Top Light e.K. is entitled to demand reimbursement from the orderer for the expenses it has incurred.

6. Top Light e.K. is to be granted the opportunity for subsequent performance within a reasonable period of time.

7. If subsequent performance fails, the customer may - irrespective of any claims for damages - withdraw from the contract in accordance with No. 10 - or reduce the remuneration.

8. Claims for defects shall not exist in the event of only insignificant deviations from the agreed condition, 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 strain, unsuitable equipment, or as a result of special external influences which are not assumed under the contract. If the purchaser or third parties carry out improper modifications or repair work, no claims for defects shall exist for these and the resulting consequences either.

9. Claims of the Purchaser for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the object of the Supplies has subsequently been moved to a location other than the Purchaser's branch office, unless the transfer corresponds to its intended use.

10. The orderer's right of recourse against Top Light e.K. pursuant to § 478 BGB (recourse of the entrepreneur) shall only exist insofar as the orderer has not made any agreements with his customer going beyond the statutory warranty claims. No. 9 also applies accordingly to the scope of the orderer's right of recourse against Top Light e.K. pursuant to § 478 para. 2 BGB.

11. Claims for damages of 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 quality guarantee, injury to life, body, health or freedom and in the event of an intentional or grossly negligent breach of duty by Top Light e.K... A change in the burden of proof to the detriment of the customer is not associated with the above provisions. More extensive or other than in this Art. VII of the Purchaser due to a material defect are excluded.

VIII. Industrial property rights and copyrights; defects of title

1. Unless otherwise agreed, Top Light e.K. is obliged to deliver the goods 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 justified claims against the orderer on account of the infringement of property rights by deliveries made by Top Light e.K. and used in accordance with the contract, Top Light e.K. shall be liable to the orderer within the period specified in Art. VII No. 3 as follows:

a) Top Light e.K. shall, at its option and at its own expense, either obtain a right of use for the deliveries entered, modify them in such a way that the property right is not infringed or - replace them. If this is not possible for Top Light e.K. on reasonable terms, the orderer shall be entitled to the statutory rights of withdrawal or reduction.

b) Top Light e.K.'s obligation to pay damages shall be governed by the following provisions. VII Nr. 11.

c) The aforementioned obligations of Top Light e.K. shall only apply if the orderer immediately notifies Top Light e.K. in writing of the claims asserted by the third party, does not acknowledge an infringement and Top Light e.K. retains the right to all defensive measures and settlement negotiations. If the customer stops using the delivery in order to reduce the damage or for other important reasons, he is obliged to point out to the third party that the suspension of use does not constitute an acknowledgement of an infringement of property rights.

2. Claims of the customer are excluded if he is responsible for the infringement of industrial property rights.

3. Claims of the orderer are also excluded if the infringement of property rights is caused by special specifications of the orderer, by an application not foreseeable by Top Light e.K. or by the delivery being modified by the orderer or being used together with products not supplied by Top Light e.K...

4. In the event of infringements of industrial property rights, the claims of the Purchaser regulated in No. 1 a) shall otherwise be governed by the provisions of Art. VII Nos. 5, 6 and 10 accordingly.

5. In the event of other defects of title, the provisions of Art. VII shall apply mutatis mutandis.

6. Further or other claims of the orderer against Top Light e.K. and its vicarious agents than those regulated in this type, VIII, on account of a defect in title are excluded.

IX. Impossibility of Performance; Adaptation of Contract

1. If delivery is impossible, the orderer is entitled to claim damages, unless Top Light e.K. is not responsible for the impossibility. However, the customer's claim for damages is limited to 10% of the value of that part of the delivery which cannot be put into appropriate operation due to the impossibility. This limitation shall not apply in cases of mandatory liability due to intent, gross negligence or injury to life, body or health; this shall not entail a change in the burden of proof to the detriment of the Purchaser. The right of the customer to withdraw from the contract remains unaffected.

2. If unforeseeable events within the meaning of Art. IV No. 2 considerably change the economic significance or the content of the delivery or have a considerable effect on the operation of Top Light e.K., the contract shall be adapted appropriately in good faith. Insofar as this is not economically justifiable, Top Light e.K. shall be entitled to withdraw from the contract. If Top Light e.K. wishes to make use of this right of withdrawal, it must inform the orderer immediately after having realised the scope of the event, even if an extension of the delivery period had initially been agreed with the orderer.

X. Guarantee for Top Light Mirrors

For a period of one year - calculated from the day of delivery - we guarantee our customers that the surface of our mirrors will not become stained or blind without external influence. In the event of justified complaints, only a replacement delivery can be demanded. A claim is valid for one year at the latest. In all other respects, the provisions for notices of defects pursuant to Clause 5 of our General Terms and Conditions of Sale and Delivery shall apply accordingly.

A warranty claim exists only under the following conditions

- intended use of our mirrors indoors, but not in indoor riding arenas, swimming pools, spas, saunas and their adjoining rooms, with constantly extremely high humidity.

- there must be sufficient air circulation between the mirror and the wall surface or other mounting surfaces due to sufficient distance from the wall. The mounting parts must not consist of aggressive materials. Plastered and painted surfaces must be completely dry before mirror installation.

- Our control marks or trademarks on our mirrors must not be removed or made unrecognisable in order to ensure proper proof of origin.

A warranty claim does not apply:

- in the event of damage to the covering as a result of machining and processing or in the event of firm adhesion to surfaces and materials (e.g. bonding, framing, mastic removal), unless this has been done by us.

- in the event of damage to fittings caused by the action of active substances, in particular liquids containing acids or similar chemical agents, irrespective of whether these come into direct contact with the mirror or in the form of vapours. These active ingredients include the most common commercial cleaning agents and cosmetics.

- in the event of damage to the mirror caused in whole or in part by mechanical action.

- in case of non-compliance with our regulations for storage and maintenance of mirrors, which can be requested.

The buyer has to prove that the above mentioned conditions are fulfilled and/or warranty exclusions are not given.

XI. Other claims for damages; limitation of actions

1. Claims for damages on the part of the customer, on whatever legal grounds, in particular due to breach of duties arising from the contractual obligation and from tortious acts, are excluded.

1. Claims for damages on the part of the customer, on whatever legal grounds, in particular due to breach of duties arising from the contractual obligation and from tortious acts, are excluded.

1. Claims for damages on the part of the customer, on whatever legal grounds, in particular due to breach of duties arising from the contractual obligation and from tortious acts, are excluded.

IX. Possibility; Adaptation of contract

1. The orderer assumes the obligation to properly dispose of the delivered goods after termination of use at his own expense in accordance with the statutory provisions and exempts Top Light e.K. from the obligations pursuant to § 10 (2) ElektroG (manufacturers' obligation to take back goods) and related claims of third parties.

2. If the customer passes the goods on to commercial third parties and these are not contractually obliged to take over the disposal and to undertake further obligations, it is incumbent on the customer to take back the delivered goods after termination of use at his own expense and to dispose of them properly in accordance with the statutory provisions. Top Light e.K.'s claim to takeover/release by the orderer shall not lapse before the expiry of two years after the final end of use of the device. The two-year period of suspension of expiry shall commence at the earliest upon receipt by Top Light e.K. of written notification by the orderer of the termination of use.

IX. Impossibility of Performance; Adaptation of Contract

1. If the orderer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of Top Light e.K. However, Top Light e.K. shall also be entitled to sue at the orderer's registered office.

2. Legal relations 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)..

IX. Impossibility of Performance; Adaptation of Contract

The remaining parts of the contract remain binding even if individual provisions are legally invalid. This does not apply if adherence to the contract would constitute unreasonable hardship for one party.

03/2015

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Top Light e. K.
Industriezentrum 100
32139 Spenge



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