Terms and conditions of sale, delivery and payment of DerbeArt for use in commercial transactions with companies, clients and private customers

I. Scope of Application

The following terms of sale apply to all contracts concerning the delivery of goods concluded between the buyer and "us", DerbeLight GmbH, Goldbachstraße 9B, 22765 Hamburg, Germany, represented by our managing director Marvin Rinas and listed in the Commercial Register at the Local Court Hamburg under the number HRB 142569. They also apply to all future business relations, even if they are not expressly agreed again. Differing conditions of the buyer which we have not explicitly accepted will not be binding for us, even if we do not expressly object to them. The following terms of sale apply even if we carry out the buyer's order without reservation while being aware of conflicting or differing conditions in the terms of the buyer.
All agreements reached between the buyer and us concerning the purchase contracts must be set out in writing in the contracts.
Individual agreements (including collateral agreements, supplements and amendments) concluded in individual cases between the parties will always have precedence over these terms and conditions.
Our offers are primarily intended for commercial buyers (businessmen) but also consumers as defined in Article 13 of the German Civil Code (BGB) will be supplied. According to § 13 BGB / German Civil Code consumers shall be natural entities with whom business relationships are started without a commercial, independent or freelance activity to be ascribed to them. According to § 14 BGB / German Civil Code, businessmen within the meaning of these Conditions shall be natural or legal entities or partnerships of legal capacity with whom business relationships are started and who exercise a commercial, independent or freelance activity.
We retain unlimited copyright and exploitation rights to cost estimates, drawings and other documents (hereinafter "documents"). The documents may only be made available to third parties upon prior written approval by us; if the order is not placed with us, they must be immediately returned upon request. Sentences 1 and 2 accordingly apply to documents of the buyer; however, these may be made accessible to such third parties as are subcontracted by us or our vicarious agents.
The buyer will ensure subsequent disposal of the delivered goods is carried out in accordance with legal regulations. In the event of a resale, the buyer will transfer this obligation to his contractual partner.

II. Offers and Conclusion of Contracts

We may accept any order of the buyer which can be qualified as an offer to conclude a purchase contract by sending an order confirmation within two weeks or by shipping the ordered goods within the same period.
Our offers are non-binding and subject to change, unless we have expressly designated them as binding.
We herewith reserve the title, copyright and all other property rights to all pictures, calculations, drawings and other documents. The buyer may only pass these on to third parties with our written consent, regardless of whether we have marked them as confidential.
A purchase in installments or on trial is not possible. The statutory right of withdrawal (see Sec. IX below) remains unaffected.

III. Terms of Payment

Our prices are ex works and do not include packaging, unless specified otherwise in the order confirmation. Our prices are gross prices and include value-added tax. The applicable VAT rate will be stated separately on the invoice at the time of invoicing.
A cash discount is only permitted with a special written agreement between us and the buyer. The net purchase price (without deduction) is due for payment by the buyer immediately upon receipt of the invoice, provided no other payment terms have been stated in the order confirmation. A payment is deemed to have been made when we can dispose of the corresponding amount. In case of check payments, payment will only be deemed as made when the check is cashed.
If the buyer is in default with any payment, the legal regulations will apply.
Even if complaints or counterclaims have been asserted, the buyer is only entitled to offset these if the counterclaims have been legally established and accepted by us, or if they are undisputed. The buyer is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.

IV. Delivery and Performance Period

Delivery dates or deadlines which have not been expressly agreed as binding, are exclusively non-binding. The delivery period specified by us only begins when all technical issues have been clarified. Likewise, the buyer must duly fulfil all obligations incumbent upon him in due time; that is, observance of delivery times presupposes the punctual receipt of all documents to be delivered by the buyer, such as required authorisations and releases, especially of drafts; as well as compliance with the agreed terms of payment and other obligations of the buyer. If these preconditions are not met in good time, delivery deadlines will be accordingly extended; deadlines will also be extended if failure to meet them is due to force majeure, e.g. mobilization, war, uprising or similar events such as strike or lockout. The above does not apply, however, if we are responsible for the delay.
If the underlying purchase contract is a transaction for delivery by a fixed date according to Article 286 para. 2 no. 4 of the German Civil Code (BGB) or Article 376 of the German Commercial Code (HGB), we accept liability in accordance with the statutory provisions. The same applies when, in the event of a delay in delivery for which we are responsible, the buyer is entitled to cancel further performance of the contract. In this case, however, our liability is limited to the foreseeable, typically occurring damage if the delay in delivery is not due to intentional breach of contract by us; whereby a fault on the part of our representatives or vicarious agents is attributable to us. Likewise, we are liable for late delivery in accordance with the statutory provisions if it is due to a willful or grossly negligent breach of contract; whereby a fault on the part of our representatives or vicarious agents is attributable to us. Our liability is limited to the foreseeable, typically occurring damage, provided the delay in delivery is not due to a deliberate breach of contract by us.
In the event that a delay in delivery is based on the culpable violation of an essential contractual obligation on our part, whereby any fault on the part of our representatives or vicarious agents is attributable to us, we are liable according to the legal regulations on the condition that liability for damages in this case is limited to the foreseeable, typically occurring damages.
Otherwise, in the event of a delay in delivery for which we are liable, the buyer may claim, for each full week of delay, a lump sum compensation in the amount of 0.5% of the delivery value, but not more than 10% of the delivery value (measured on the part of the delivery which could not be put to the intended use as a result of the delay). The right of both parties to prove higher or lower damage is reserved.
Any further liability for delayed delivery attributable to us is excluded. Other legal claims and rights of the buyer to which he is entitled in addition to his claim for damages due to a delay in delivery by us remain unaffected.
We are entitled at any time to make partial deliveries and render partial services insofar as this is reasonable for the customer.
If the buyer is in default of acceptance, we are entitled to demand compensation for the resulting damages and any additional expenses. The same applies if the buyer culpably breaches his obligations to cooperate. In the case of a default of acceptance or payment by the buyer, the risk of accidental deterioration and accidental loss transfers to the buyer.
Claims for compensation of the buyer due to a delay in delivery, as well as claims for compensation in lieu of performance that exceed the limits specified in paragraph 4, are excluded in all cases of delayed delivery, even upon expiry of a specified period allowed to us. This does not apply in cases of intent, gross negligence, or injury to human life, body or health which are legally subject to liability. The buyer is entitled to withdraw from the contract in accordance with the legal provisions only insofar as we are responsible for the delay in delivery. The preceding provisions do not imply a change in the burden of proof to the detriment of the buyer.
At our request, the buyer is obligated to declare within a reasonable period of time whether, due to delay in delivery, he wishes to withdraw from the contract or insists on delivery being carried out.

V. Transfer of Risk; Shipping; Packaging; Acceptance of Goods

Loading and dispatch will be effected uninsured and at the risk of the buyer. We will make every effort to take into consideration the wishes and interests of the buyer with regard to type and method of dispatch; any additional costs incurred thereby – even if freight-free delivery has been agreed – will be borne by the buyer. No compensation will be provided in case of transport damage.
In case of shipping, additional shipping fees apply on top of any specified quotation; these additional shipping fees will be quoted and agreed upon individually for each order.
As per the packaging regulations, transportation packaging or other packaging is nonreturnable, with the exception of pallets. The buyer is obliged to dispose of packaging at his own expense.
If dispatch is delayed at the buyer's request or due to his fault, we will store the goods at the expense and risk of the buyer. In this case, the date of notification of the readiness for dispatch is deemed to be the same as the date of dispatch.
At the buyer's request and expense, we will insure the delivery by means of a transport insurance.
The buyer may not refuse acceptance of deliveries due to minor defects.
If dispatch or delivery is delayed at the request of the buyer by more than a month after our notification of readiness for dispatch, we may charge the buyer a storage fee amounting to 0.5% of the corresponding delivery value, up to a maximum of 10% of the corresponding delivery value, for each month. The right of both parties to prove higher or lower storage costs is reserved.

VI. Material Defects; Defects of Title; Liability

The buyer is only entitled to claim damages if he has fulfilled his duties of examination and complaint against defects according to Article 377 of the German Commercial Code (HGB).
In the event of lawful complaint, under exclusion of the right of the buyer to rescind the contract or lower the purchase price (abatement), we are obliged to subsequent performance, unless we are entitled to refuse subsequent performance due to statutory provisions. The buyer will grant us a reasonable period of time for supplementary performance. Supplementary performance may, at the buyer’s discretion, either be the correction of the defect (subsequent improvement) or the delivery of new goods. In the case of a correction of defect we shall bear the necessary costs, provided these costs are not increased because the object of the contract is located at a place other than the place of performance. If subsequent performance fails, the buyer may request the reduction of the purchase price (abatement) or cancellation of the contract. Remedy is deemed to have failed if it has been attempted twice without success, unless – given the object of the contract – further attempts are appropriate and reasonable as far as the buyer is concerned. Claims for damages due to defects can only be made by the buyer under the following conditions if supplementary performance has failed. The buyer's right to assert further claims for damages according to the following conditions will remain unaffected thereby.
Warranty claims by the buyer will lapse one year after the delivery of the goods to the buyer, unless we have fraudulently concealed the defect; in this case, statutory provisions apply. Our obligations from paragraph 4 and paragraph 5 remain unaffected hereby.
In accordance with the statutory provisions we are obliged to take back new goods or to reduce the purchase price (abatement) without the usually required deadline if the buyer's customer, as consumer of the new movable goods (purchase of consumer goods), has demanded from the buyer to take back the goods or to make a price reduction (abatement) due to defects of the goods; or if the buyer is faced with a similar claim under a resultant right of recourse. We are furthermore obliged to reimburse expenses incurred by the buyer, in particular transport, travel, labour and material costs, which he has had to bear with regard to the end consumer within the context of supplementary performance due to a defect present in the goods at the time the risk was transferred from us to the buyer. The claim is excluded if the buyer has not properly fulfilled his obligation of inspection and complaint according to Article 377 of the German Commercial Code (HGB).
The obligation referred to in paragraph 4 is excluded if the defect is due to advertising statements or other contractual arrangements that do not originate from us, or if the buyer has given a special warranty to the end consumer. The obligation is equally excluded if the buyer was not legally obliged to exercise warranty rights with respect to the end consumer, or did not make use of his objection right when facing the liability demand. This is also valid if the buyer has granted warranties to the end consumer that go beyond the scope stipulated by the law.
Regardless of the following limitations of liability, according to the law we are liable for injury to life, body and health caused by a negligent or intentional breach of duty by us, our legal representatives or our vicarious agents, as well as for damages as stipulated in the German Product Liability Act. For damages that are not covered by sentence 1, and which are due to willful or grossly negligent breach of contract or fraudulent intent by us, our legal representatives or our vicarious agents, we are liable according to the statutory provisions. In this case, however, liability for damages is limited to the foreseeable, typically occurring damage, unless we, our legal representatives or our vicarious agents have acted with intent. To the extent that we have given a warranty of quality and/or durability with respect to the goods or parts thereof, we will also be liable within the scope of this warranty. However, for damages based on the lack of the guaranteed quality or durability, but which do not directly affect the goods, we are only liable if the risk of such damage is clearly covered by the quality and durability guarantee.
We are also liable for damage we have caused through ordinary, negligent breach of such contractual obligations whose fulfilment is a condition sine qua non to make the execution of the contract possible, and on whose compliance the buyer regularly relies and may rely. However, we are only responsible insofar as the damage is typically associated with the contract and is foreseeable.
Any further liability is excluded, regardless of the legal nature of the asserted claim; this particularly applies to tort claims or claims of reimbursement for futile expenses in lieu of performance; our liability as under section IV remains unaffected. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and vicarious agents.
Claims for damages by the buyer due to a defect will lapse one year after delivery of the goods. This does not apply in the case of injury to life, body or health caused by us, our legal representatives or our vicarious agents; or if we or our legal representatives have acted intentionally or with gross negligence; or if our simple vicarious agents have acted with intent.

VII. Retention of Title

Until all claims to which we are entitled against the buyer now or in future, have been fulfilled – including all balance claims from current accounts – the delivered goods (reserved goods) remain in our property. In case of a breach of contract by the buyer, such as default of payment, we are entitled to take back the reserved goods after setting a reasonable deadline. If we take back the reserved goods, this will constitute a withdrawal from the contract. If we seize the reserved goods, it will also represent a withdrawal from the contract. We are entitled to sell the reserved goods after taking them back. After deducting a reasonable amount as selling costs, the sales proceeds will be set off against the amounts due to us by the buyer.
The buyer will treat the reserved goods with care and, at his own expense, insure them sufficiently against fire, water and theft at the reinstatement value. All necessary maintenance and inspection measures must be carried out by the buyer in a timely manner and at his own expense.
The buyer is entitled to dispose of or resell the reserved goods within the ordinary course of business as long as he is not in default of payment. Pledging or transfer of ownership by way of security are not permitted. Any claims resulting from resale or other legal reasons (insurance, tort) with respect to the reserved goods (including all balance claims from current accounts) will be transferred in full to us by the buyer by way of security; we hereby accept such transfer. We revocably authorise the buyer to collect claims assigned to us for his own account and in his own name. This authorisation can be revoked at any time if the buyer fails to fulfil his payment obligations. The buyer is not entitled to cede this claim for the purpose of debt collection by way of factoring, unless at the same time reasons are stated for the obligation of the factor to transfer the quid pro quo in the amount of the claims directly to us as long as we still have claims against the buyer.
Any processing or transformation of the reserved goods by the buyer is always carried out on our behalf. If the reserved goods are processed with other goods not owned by us, we will acquire ownership of the new goods in proportion to the value of the reserved goods (final invoice amount including VAT) with respect to the other processed goods at the time of processing. The same applies for the new goods produced by processing as for the reserved goods. In the case of the inseparable mixture of reserved goods with other goods not belonging to us, we acquire co-ownership of the new goods in proportion to the value of the reserved goods (final invoice amount including VAT) with respect to the other processed goods at the time of mixing. If the buyer’s goods which are the result of mixing are deemed to be the main goods, we and the buyer agree that the buyer will transfer to us the proportionate co-ownership of these goods; we herewith accept the transfer. The buyer will keep the resulting exclusive or joint ownership of the goods in custody for us.
In the event of access of third parties to the reserved goods, especially in the case of seizures, the buyer will point out our ownership and inform us immediately so that we can enforce our property rights. If the third party is unable to reimburse us the judicial or extrajudicial costs arising in this context, the buyer will be liable.
We are obliged to release the securities due to us insofar as the realisable value of our securities exceeds the secured claims by more than 10%, whereby we are at liberty to select the securities to be released.

VIII. Impossibility; Adaptation of the Contract

Should it not be possible for us to deliver, the buyer is entitled to claim damages, unless we cannot be held responsible for the impossibility. However, the claim for damages of the buyer is limited to 10% of the value of the part of the delivery which cannot be put to the intended use due to the impossibility. This restriction is not applicable in cases of intent, gross negligence, or injury to life, body or health, where liability is mandatory; nor does it lead to a change in the burden of proof to the detriment of the buyer. The buyer's right to withdraw from the contract remains unaffected.
Where unforeseeable events within the meaning of section IV, paragraph 1 sentence 4 substantially change the economic importance, or the content of the delivery, or considerably affect our operations, the contract will be suitably adjusted in compliance with the principles of reasonableness and good faith. If such adjustment should not be feasible economically, we reserve the right to withdraw from the contract. If we wish to make use of this right of withdrawal, we must immediately inform the buyer as soon as we realise the consequences of the event, even if an extension of the delivery period was initially agreed with the buyer.

IX. Right of withdrawal for consumers

9.1 Right of withdrawal

You shall be entitled to withdraw from this contract within fourteen days, without stating reasons.

The withdrawal period shall be fourteen days from the date on which you or a third party appointed by you, other than the carrier, have or has taken possession of the last good. To be able to exercise your right, you shall provide us with

Surname: DerbeLight GmbH - Returns Address: Goldbachstraße 9B 22765 Hamburg Germany

Phone: +49 (0)40 64 66 91 76 E-mail: retouren@derbeart.com

written notice (e.g., by post, fax or email) that clearly expresses your intention to withdraw from the contract. For this purpose, you can use the attached withdrawal form template albeit this is not mandatory.

Timely submission of the withdrawal notice before the end of the withdrawal period is sufficient for the purpose of observing the withdrawal time limit.

The right of withdrawal shall not apply to contracts for the supply of goods made to client specifications or which are explicitly tailored to individual requirements.

9.2 Consequences of withdrawal

Should you withdraw from this contract, we shall promptly refund all payments that we have received from you, including delivery costs (with the exception of any additional costs incurred by your optional choice of another mode of delivery other than the least expensive standard delivery offered by us), and in no event later than fourteen days from the date on which your notice of withdrawal has been received by us. We shall refund you using the same method of payment that you used for the initial transaction, unless otherwise expressly agreed; in no instance will you be charged fees for this refund. We may withhold the refund until we receive the goods returned by you, or until you have supplied us with evidence of having sent back the goods, depending on which takes place at an earlier time.

You shall return the goods to us promptly and in any event no later than fourteen days from the date on which you notify us that you are exercising your right of withdrawal. This deadline shall be considered as met should you send back the goods before the fourteen-day period elapses. You shall bear the direct costs of returning the goods. You shall be obliged to compensate us for any loss of value of the goods should this arise from an improper handling of the goods not required for inspection of their condition, properties and functioning.

End of withdrawal terms

X Place of Performance; Jurisdiction; Applicable Law

The Agreement concluded under the application of these Terms and Conditions is subject to the substantive law of the Federal Republic of Germany. The application of the “United Nations Convention on Contracts for the International Sale of Goods” is excluded. If the Customer is not a Businessman (in terms of § 14 BGB / German Civil Code) but a Consumer (in terms of § 13 BGB / German Civil Code) and such a Customer's domicile is not in Germany, the Agreement is subject to the substantive law of the state in which the Customer maintains his permanent residence.
Hamburg, Germany is the place of jurisdiction for all disputes arising from this Agreement. If the Customer is not a Businessman (in terms of § 14 BGB / German Civil Code), but a Consumer (in terms of § 13 BGB / German Civil Code) and such a Customer's domicile is not in Germany, the determination of the place of jurisdiction is subject to the statutory provisions of the state in which the Customer maintains his permanent residence.
Mandatory standards of that state, where the Customer maintains his permanent residence or his business seat at the conclusion of the agreement, regardless of if the Customer is a Businessman or a Consumer, remain unaffected by the aforementioned choice of law and palace of jurisdiction clauses.

XI. Liability for these Terms and Conditions

Should any provision of these terms and conditions become invalid, the remaining provisions shall remain unaffected.
Any changes and additions to these Terms and Conditions have to be made at least in text form (§ 126b BGB / German Civil Code). This also applies for any amendments or repeal of this provision in para. 2, to the extent the Parties have not verifiably agreed otherwise.