General Terms and Conditions of Sale and Delivery of LuxTek GmbH
Status: August 2019
§ 1 Validity of the terms and conditions
1. The following General Terms and Conditions shall apply to all transactions of LuxTek GmbH with consumers and entrepreneurs.
2. Consumers within the meaning of these General Terms and Conditions are natural persons who conclude a legal transaction for a purpose that cannot be attributed to their commercial or independent professional activity.
Entrepreneurs are natural or legal persons or partnerships with legal capacity who act in the exercise of their commercial or independent professional activity when concluding the legal transaction.
Purchasers within the meaning of these General Terms and Conditions are both consumers and entrepreneurs.
3. All our deliveries, services and offers shall be made exclusively on the basis of the following terms and conditions. Other terms and conditions shall not become part of the contract, even if we do not expressly object to them. Deviations from these terms and conditions shall only become effective if we expressly confirm them in writing.
If we carry out the delivery or service without express objection, it can under no circumstances be inferred from this that we have accepted any terms and conditions of the customer. Acceptance of our delivery or service shall be deemed as acceptance of our General Terms and Conditions.
§ 2 Conclusion of contract, prices
1. Our offers are subject to change and non-binding. Declarations of acceptance and orders of the purchaser require our confirmation to be legally effective. 2.
2. in the order confirmation we either confirm the price and scope of services stated in our offer or in the offer of the purchaser or we send the purchaser a new offer which is adapted to the respective current situation and to which then again para. 1 applies.
3. sales tax will be charged at the statutory rate. Additional services such as take-away forklift, telephone advice or express services can be ordered – as far as possible or available – for an additional charge.
4. sketches, drafts, outturn samples, tools and similar preparatory work initiated by the purchaser will be invoiced, even if no contract is concluded. The purchaser may not make the aforementioned items available to third parties or exploit them himself or have them exploited by third parties.
5. subsequent changes to the order at the instigation of the purchaser will be charged.
We reserve the right to provide our deliveries and services with improvements required by law or customary in the industry and/or deviations that are reasonable for the Purchaser compared to the order confirmation. If these changes lead to an increase in the price confirmed by us, the purchaser shall be entitled to withdraw from the contract.
7. orders confirmed by us cannot be cancelled or modified by the customer without our consent. If we agree to the cancellation, we may – in addition to further statutory claims – demand liquidated damages in the amount of 30 % of the net order value. We reserve the right to prove that we have incurred higher damages. The purchaser reserves the right to prove that we have incurred no damage at all or only significantly less damage.
§ 3 Terms of payment
1. Unless otherwise agreed, our invoices shall be payable immediately without deduction upon receipt. Unjustified discount deductions will not be recognized.
2. we are entitled to demand a down payment on the purchase price in the amount of 20 %. This applies in particular to custom-made products and to orders exceeding EUR 40,000.00.
3. if the customer is a consumer, we shall be entitled to charge interest from the due date at a rate of five percentage points above the respective statutory base interest rate p.a.. If the customer is an entrepreneur, the interest rate shall be nine percentage points above the respective statutory base interest rate p.a..
In addition, we shall be entitled, after the occurrence of default in payment, to declare all our outstanding claims against the customer due and payable and to carry out deliveries owed by us only against advance payment or equivalent securities. The same shall apply in the event of a deterioration in the creditworthiness of the customer which occurs after conclusion of the contract or which becomes known to us after conclusion of the contract and which jeopardizes the fulfillment of existing payment obligations towards us.
4. If the payments made by the customer are not sufficient to settle all debts, the oldest debt shall be settled, even if the customer has stipulated otherwise. If interest and/or costs have been incurred, any payment insufficient to discharge the entire debt shall, notwithstanding sentence 1, first be credited against the oldest costs, then against the oldest interest and finally, in accordance with sentence 1, against the principal performance.
5. We shall charge the customer for all costs incurred by delayed payment, such as reminder fees, collection fees and the like.
6. the retention of payments due to counterclaims disputed by us and not legally established or the set-off with counterclaims disputed by us and not legally established shall not be permitted.
§ 4 Delivery, delivery times 1. The dates and deadlines stated by us are non-binding unless expressly agreed otherwise in writing.
2. delivery periods shall commence on the date of the order confirmation. If information from the purchaser is required for the execution of the order, the delivery periods shall commence at the earliest on the date on which we receive the required information.
3. delays in delivery and performance due to force majeure or other unforeseeable events for which we are not responsible and which make delivery considerably more difficult or impossible – these include in particular strikes, official orders, lawful lock-outs, weather conditions – shall entitle us to postpone the deliveries or services by the duration of the hindrance plus a reasonable start-up period, even in the case of deadlines expressly designated as binding, or, in the case of impossibility, to withdraw from the contract in whole or in part on account of the part not yet fulfilled.
We will inform the purchaser as soon as possible about the unavailability of the delivery and its expected duration.
If the delay lasts longer than one calendar month, the customer shall be entitled to withdraw from the contract with regard to the part not yet fulfilled after setting a reasonable grace period after expiry of this period. Insofar as claims for damages exist beyond this in the event of our fault, § 9 shall apply.
4. we reserve the right to correct and timely self-delivery, insofar as we are not responsible for the non-delivery. We are entitled to partial performance and partial deliveries to a reasonable extent.
§ 5 Transfer of risk, transport costs 1. In the case of delivery of the goods by us or by vehicles driving on our behalf, the risk shall pass to the Purchaser upon handover to the Purchaser at the place of destination; if the Purchaser is an entrepreneur, the risk shall already pass upon loading.
2. in the absence of the preconditions of para. 1, the risk shall pass to the purchaser if the latter is in default of acceptance.
3. We shall only take back transport packaging and all other disposable packaging in accordance with the Packaging Ordinance if it has been emptied and is not contaminated and if it has been sorted and delivered by the Purchaser at its own expense. In all other respects, the Purchaser shall be obliged to ensure proper disposal of the packaging at its own expense. Pallets may also be reclaimed by us in the event of mere delivery of the goods.
§ 6 Retention of title 1. The delivered items shall remain our property until all claims against the customer to which we are entitled from the business relationship have been fulfilled, including claims arising in the future from contracts concluded at the same time or later. This shall also apply if individual or all claims have been included in a current account and the balance has been struck and accepted.
2. the customer is revocably entitled to resell the goods subject to retention of title (reserved goods) in the ordinary course of business. Other disposals, in particular pledging or transfer of ownership by way of security, shall not be permitted.
3. the customer assigns to us already now on account of performance all claims accruing to him from the resale against his customers or third parties; we accept this assignment upon conclusion of the contract. If the goods subject to retention of title are resold together with other goods to which we do not have title, the customer’s claim against its customers shall be deemed assigned in the amount of the delivery price agreed between us and the customer. We revocably authorize the customer to collect the claims assigned to us for his account in his own name.
4. The customer shall be obliged to keep the goods subject to retention of title in proper custody for us and to treat them with care.
In the event of imminent access by third parties to the goods subject to retention of title, in particular in the event of seizure, the customer shall draw attention to our ownership in a suitable manner and notify us immediately.
5. In the case of any breach of contract by the customer, in particular in the event of default in payment, we shall be entitled to demand the return of the goods subject to retention of title and to revoke the authorization to sell in the ordinary course of business (para. 2 sentence 1) and the direct debit authorization (para. 3 sentence 3) or to withdraw from the contract. If the customer is an entrepreneur, the taking back of the reserved goods by us shall only constitute a withdrawal from the contract if we expressly declare this in writing.
After taking back the goods subject to retention of title, we shall in any case be entitled to realize the goods subject to retention of title, setting off the proceeds – less reasonable realization costs – against the customer’s liabilities.
6. If, in connection with the payment of the purchase price by the customer, a liability on our part is established on the basis of a bill of exchange, the reservation of title as well as the claim from deliveries of goods on which it is based shall not expire before the bill of exchange has been honored by the customer as drawee.
If the value of the existing securities exceeds the claims to be secured by more than 20 %, we shall be obliged to release such securities at the written request of the customer; the selection of the securities to be released shall be at our discretion.
§ 7 Condition of the goods 1. The quality of the goods shall be deemed to be only the quality described in product descriptions, specifications, markings, etc., unless otherwise agreed.
2. Variations in dimensions of up to 3% and in color may occur in the case of plastic products.
3. in case of outdoor use and prolonged weathering, air pollution, UV radiation and other weathering influences may change surface and colors. However, this does not affect the service life and suitability. Temperature-dependent length variations of +/- 3 % are usual for plastic profiles.
4. it is the responsibility of the purchaser to ensure, at his own expense, that the conditions for installation and commissioning of the goods are met. In particular, the purchaser undertakes to comply with the structural requirements, to obtain any necessary permits and to provide us with evidence of this if necessary.
§ 8 Removal of defects, warranty, manufacturer’s guarantees 1. we provide warranty for defects of the goods at our discretion by replacement delivery or rectification. If the purchaser is a consumer, he shall have the choice, within the scope of the law, whether the subsequent performance is to be effected by repair or replacement delivery. Deviations in the sense of § 7 cannot be objected to.
2. obvious defects can only be claimed immediately after receipt or handover of the goods and must be confirmed in writing. Hidden defects must be reported to us immediately after their discovery.
If the purchaser is an entrepreneur, the assertion of warranty claims is excluded in the event of non-compliance with the statutory inspection and/or the aforementioned notification obligations. In the event of improper storage, handling or processing by the Purchaser, the assertion of any claims for defects shall be excluded unless the Purchaser proves at its own expense that we are responsible for the defects. In all other respects, too, the purchaser – if he is an entrepreneur – shall bear the full burden of proof for all prerequisites for a claim, in particular for the defect itself, for the time at which the defect arose and for the timeliness of the notice of defect.
3. After two failures of subsequent performance, the Purchaser may demand a reduction of the purchase price or rescission of the contract; however, the Purchaser may only rescind the contract if a partial performance rendered is of no interest to the Purchaser or if the defect triggering the warranty is substantial. Section 9 shall apply to any claims for damages. 4.
4. If the Purchaser is an entrepreneur, warranty claims due to a defect shall become statute-barred one year after delivery of the goods. If the customer is a consumer, warranty claims for new goods shall become statute-barred two years after delivery of the goods.
5. We do not grant the customer any guarantees for the quality of the goods. Any manufacturer’s warranties of third parties shall remain unaffected and shall be asserted directly against them.
§ 9 Limitation of liability 1. Any liability on our part in connection with this contract shall be excluded unless the cause of damage is attributable to intent or gross negligence and unless there has been injury to the life, body or health of the customer; if we have breached a material contractual obligation without being guilty of intent or gross negligence, our liability to pay compensation shall be limited to the damage typically incurred.
2. Claims for damages by the customer due to a defect shall become statute-barred one year after delivery of the goods, irrespective of the legal grounds on which the claims may be based, unless a longer limitation period is prescribed by law.
3. our liability according to the product liability law remains unaffected. The foregoing limitations of liability shall also not apply if we can be accused of fraudulent intent or, contrary to § 8.5, of issuing a warranty.
4. insofar as our liability is excluded or limited in accordance with the above provisions, this shall also apply to the personal liability of employees, representatives or vicarious agents.
§ 10 Cancellation Policy and Cancellation Form (1) If the customer is a consumer, he shall be entitled to a right of revocation in accordance with the statutory provisions.
If the customer as a consumer makes use of his right of revocation according to paragraph 1, he has to bear the regular costs of the return. 3.
(3) In all other respects, the right of revocation shall be governed by the provisions set forth in detail in the following
Cancellation policy
Right of cancellation
You have the right to cancel this contract within fourteen days without giving any reason.
The revocation period is fourteen days from the day on which you or a third party named by you, who is not the carrier, has or has taken possession of the goods.
To use your right of cancellation, you must send us
LuxTek GmbH Professor-Pirlet-Straße 7, 66679 Losheim am See – Germany Tel. +49 (0) 6872 96539 11 Fax +49 (0) 6872 96539 10 E-Mail info@luxtek.eu
by means of a clear declaration (e.g. a letter sent by mail, fax or e-mail) about your decision to revoke this contract. You can use the attached model withdrawal form, which is not mandatory. You can also fill out and submit the model withdrawal form or another clear declaration electronically on our website www.luxtek.eu. If you make use of this option, you will be informed by e-mail. If you make use of this option, we will immediately send you (e.g. by e-mail) a confirmation of receipt of such a revocation.
To comply with the revocation period, it is sufficient that you send the notification of the exercise of the right of revocation before the expiry of the revocation period.
Consequences of the revocation
If you revoke this contract, we shall reimburse you all payments we have received from you, including delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the most favorable standard delivery offered by us), without undue delay and at the latest within fourteen days from the day on which we received the notification of your revocation of this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged for this repayment. We may refuse repayment until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier. You must return or hand over the goods to us without undue delay and in any case no later than within fourteen days from the day on which you notify us of the revocation of this contract. The deadline is met if you send the goods before the expiry of the period of fourteen days.
You shall bear the direct costs of returning the goods.
You will only have to pay for any loss in value of the goods if this loss in value is due to handling of the goods that is not necessary for checking the condition, properties and functionality of the goods.
– End of the cancellation policy-
4. the right of cancellation does not apply to distance contracts for the delivery of goods that have been manufactured according to customer specifications or that are clearly tailored to personal needs or that are not suitable for return due to their nature or can spoil quickly or whose expiration date would be exceeded.
5. sample cancellation form
Sample cancellation form (If you wish to revoke the contract, please fill out and return this form). To: LuxTek GmbH Professor-Pirlet-Straße 7 D - 66679 Losheim am See Fax +49 (0)6872 96539 10 E-Mail info@luxtek.eu
I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*) / the provision of the following service (*) …………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………………. ……………………………………………………………………………………………………………………………………………………………. (Name of the goods, order number and price, if applicable)
ordered on(*) …………………………….. received on (*) ……………………………
Name of the consumer(s) ……………………………………………………………………………………………………………..
Address of the consumer(s)……………………………………………………………………………………………………… ………………………………………………………………………………………………………………………………………..
Signature of the consumer(s) (only in case of notification on paper) ……………………………………………………
Date………………………………………………
(*) Delete where inapplicable
§ 11 Regulations on the purchase of consumer goods vis-à-vis companies 1. Statutory rights of recourse arising from the purchase of consumer goods shall only exist to the extent that the Purchaser has not entered into any agreements with its customer that go beyond the statutory claims for defects. The purchaser is obliged to inform us immediately of his claim arising from the purchase of consumer goods.
2. reimbursement of expenses incurred may only be claimed if proof is provided that the expenses were incurred.
3. Section 9 shall apply mutatis mutandis to the claim for damages.
§ 12 Other 1. Unless otherwise stated in the order confirmation, the place of performance for all rights and obligations shall be our place of business.
2. if the purchaser is an entrepreneur, the exclusive place of jurisdiction for all disputes arising from the contract shall be the court responsible for our place of business or, at our discretion, the court responsible for the purchaser’s place of business.
3. The rights of the purchaser arising from this contract are not transferable.
4. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. German law shall apply.
5. the sole binding language of the contract shall be German.
6. Should individual provisions of the contract be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to the invalid provision. In the event that a provision of these General Terms and Conditions of Sale and Delivery is invalid, the statutory provisions shall apply in this respect.
