General Delivery Conditions of Radium Lampenwerk GmbH for Commercial Customers
1. General
1.1 These General Delivery Conditions of Radium Lampenwerk GmbH ("GDC") shall apply to the sale and delivery of goods by die Radium Lampenwerk GmbH, Dr.-Eugen-Kersting-Straße 6 51688 Wipperfürth, Germany („Radium“), to the purchaser (“Purchaser”).
1.2 These GDC shall apply exclusively. Deviating or supplementary conditions of Purchaser or any third party shall not apply unless Radium expressly agrees to their applicability in writing. This shall also apply if Radium does not separately object to the applicability of such deviating or supplementary conditions in individual cases or if Radium unconditionally carries out the delivery to Purchaser in knowledge of such deviating or supplementary conditions. Any and all verbal agreements between Purchaser and Radium and/or verbal commitments by Radium prior to the conclusion of the purchase contract shall be fully replaced by these GDC. However, separate writ- ten agreements made in individual cases with Purchaser shall in any case take precedence over these GDC.
1.3 These General Terms and Conditions shall apply exclusively to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law.
2. Contract Conclusion
2.1 Unless otherwise agreed in writing, Radium's offers are subject to change and non-binding.
2.2 The effectiveness of a purchase contract is subject to the written acceptance by Radium via order confirmation. Unless otherwise agreed in writing, Radium may accept purchase orders of Purchaser within 14 calendar days after receipt. Unless otherwise agreed in writing, exclusively Radium’s written or- der confirmation and these GDC shall determine the legal relationship between Radium and Purchaser.
3. Delivery, Delay of Delivery/of Acceptance, Force Majeure
3.1 Unless otherwise agreed in writing, the delivery shall be made FCA Radium, Wipperfürth in accordance with Incoterms 2020.
3.2 Radium shall be entitled to make partial deliveries to a reasonable extent.
3.3 Time limits and dates for deliveries announced by Radium are always only approximate, unless a fixed time limit or date has been expressly confirmed by Radium or agreed upon between the parties in writing. The foregoing provision does not constitute a reversal of the burden of proof.
3.4 The statutory provisions shall apply with regard to the occurrence of a delay of delivery by Radium. However, in any case, a dunning notice by Purchaser shall be required.
3.5 If Purchaser is in delay of acceptance, fails to perform an act of cooperation or if delivery is delayed for other reasons for which Purchaser is responsible, Radium shall be entitled to demand from Purchaser a corresponding extension of the delivery period or a postponement of the delivery date and/or compensation for the resulting damage including, without limitation, additional expenses (e.g. storage costs). Further claims and rights shall remain reserved.
3.6 Delays of delivery or delivery restrictions without fault of Radium or due to force majeure or other events outside of the sphere of influence of the parties which could not be foreseen at the time of contract conclusion and for which neither party is responsible (e.g. war, strike, lawful lockout or operational disruptions) shall result in a reasonable extension of the delivery period by the duration of the hindrance. If the hindrance lasts longer than three months, each of the par- ties shall be entitled to withdraw from the purchase contract. In this case, Radium shall reimburse Purchaser for any con- sideration already rendered without delay.
4. Prices
4.1 Unless otherwise agreed in writing, prices shall be understood the prices are quoted net in the agreed currency (excluding all taxes and fees charged) within the agreed term of payment and delivery in accordance with Clause 3.1. Where statutory value added tax is applicable, the prices quoted by Radium shall be exclusive of value added tax at the statutory rate.
4.2 Unless otherwise agreed in writing, the prices shall include Radium standard packaging.
4.3 If purchase order quantities deviate from the respective valid Radium standard shipping units, Radium shall be entitled to charge a surcharge of € 25.00 for each partial quantity position.
4.4 For each purchase order with a net order value of less than € 250.00 per recipient, a processing fee of € 25.00 will be applied. The net order value is calculated excluding any applicable taxes and fees.
5. Payment Terms
5.1 Unless otherwise agreed in writing, Radium’s payment claims for goods delivered and received by Purchaser shall be due for payment within 30 days of invoice receipt without early payment discount or other deductions to the place of payment specified by Radium. The receipt of payment by Radium shall be decisive for the timeliness of the payment. Unless otherwise agreed in writing, provision of a letter of credit shall not be deemed as payment.
5.2 In case of delay of payment, interest for delay shall be charged at the respective applicable statutory rate. The assertion of further damages, claims and/or rights shall remain reserved. In case of delay of payment, Purchaser shall bear the risk of any currency losses incurred by Radium compared to the value of the claim in Euros on the due date.
5.3 If circumstances become known after conclusion of the purchase contract which are suitable to significantly reduce the creditworthiness of Purchaser and which endanger the payment of the outstanding claims by Purchaser, Radium shall be entitled to carry out any outstanding deliveries against advance payment or provision of security only. If Purchaser does not comply with the request for advance payment or provision of security within a reasonable period set by Radium, Radium shall be entitled to withdraw from the purchase contract.
5.4 The offset with counterclaims of Purchaser or retention of payments due to such claims shall only be permissible to the extent such counterclaims are undisputed, ready for decision or finally determined by a court or have been established in the same contractual relationship.
6. Retention of Title
6.1 Radium retains title to the delivered goods ("Reserved Goods") until any and all current and future claims to which Radium is entitled from the ongoing business relationship with Purchaser including, without limitation, any and all balance claims from a current account, have been completely fulfilled. Ownership shall not pass to Purchaser until Radium is able to freely dispose of the amount owed.
6.2 Purchaser shall be entitled to resell the Reserved Goods, however only in the ordinary course of business and against immediate payment or subject to reservation of title. The receivables due to him from his Purchasers as a result of the resale including the balance claims which result from the termination of a current account, as well as the rights to cancellation of such current account and to determination of balance claims are already now preventatively assigned from the Purchaser to Radium.
6.3 Despite this assignment, the Purchaser remains authorized to collect such claims. However, Radium is entitled to revoke this authorization and to collect the claim themselves if the Purchaser does not meet his payment obligations or has filed for insolvency. In such cases, Radium may demand that the Purchaser notifies Radium of the claims that were assigned and the debtors, provides all information necessary for collection, hands over the associated documentation and informs the debtors (third parties) of the assignment.
6.4 Insofar as the title to goods subject to retention of title is lost in processing, blending or fusion with other objects, the Purchaser shall transfer the title to the new goods to Radium for surety, up to the amount that corresponds to the sales price charged to the Purchaser (including VAT, if any). The Purchaser shall store the goods for Radium free of charge. If Radium products are sold together with other goods (not belonging to Radium) at a total price, the transfer is only done in the amount invoiced by Radium for the Radium products. The same applies to the extent of the transfer of a potential current account claim of the purchaser vis-à-vis his purchaser.
6.5 The Purchaser is not allowed to pledge or transfer by way of security any goods subject to retention of title. The Purchaser is obliged to inform Radium without delay in the event of third-party interference with the goods in retention or with claims transferred to Radium as a security. Insofar as the third party is not in a position to refund the judicial and extra-judicial costs of a lawsuit as per § 771 ZPO (Civil Process Code), the Purchaser is liable for the losses incurred by Radium.
6.6 If the Purchaser is in delay with payment, Radium is entitled to withdraw from the contract and request the goods to be returned.
6.7 Radium shall release securities if and insofar as the realizable value of the securities exceeds the secured claims due to Radium by more than 10 %, whereas Radium reserves the right to determine which goods or claims are to be released.
6.8 If the retention of title as per this Sec. 6 is not effective according to the local laws applicable at the place where the goods are located, the means of security equivalent to retention of title un- der such applicable local laws shall be deemed agreed upon in-stead. To the extent Purchaser’s cooperation is necessary for the creation of such means of security, Purchaser shall be obliged, at Radium's request and Purchaser’s expense, to take all measures within reason which are necessary to establish and maintain such means of security.
7. Warranty
7.1 Radium warrants (gewährleistet) that its products represent the state of the art and are free from defects in materials and workmanship. Warranty rights of the Purchaser only exist if the products have a defect at the time of transfer of risk.
7.2 In particular, without limitation, the following shall not be deemed to be defects:
a) expiration of the usual lifetime of the goods within the warranty period,
b) natural wear and tear,
c) failures or damages resulting from the fact that Purchaser or a third party has modified, repaired or operated the goods in combination with products or software of Purchaser or a third party without Radium’s prior express written consent and
d) failures or damages resulting from the fact that the goods have not been installed, put into operation or utilized in accordance with the specifications in the relevant product data sheet and/or the relevant installation/user instructions or have been used improperly or unsuitably in any other way by Purchaser or a third party.
7.3 The product descriptions of Radium do not contain any quality guarantee.
7.4 Sales of used goods are made under exclusion of any warranty.
7.5 Claims for defects are subject to the Purchaser’s obligation to carefully inspect the goods without delay after delivery. Purchaser shall notify Radium in writing without delay after delivery of any obvious defects that are recognizable in an immediate and careful inspection. Other defects shall be notified to Radium in writing without delay after their detection. To the extent Purchaser fails to carry out a proper immediate inspection and/or fails to give proper notice of defects without delay, Radium's liability for defects shall be excluded in accordance with the statutory provisions.
7.6 Objected goods shall be returned to Radium for examination. To the extent such examination shows that no defect exists and this was recognizable for Purchaser, Radium shall be entitled to demand reimbursement of the costs and expenses incurred (in particular, without limitation, examination and transport costs) from Purchaser. If the inspection reveals that there are defects in materials and workmanship or any other defect, Radium shall, at its discretion, deliver a replacement or issue a credit note in the amount of the purchase price. The replacement delivery of a different equivalent product of the same kind by Radium is permissible and shall be permissible and deemed reasonable for the Purchaser. In case of a replacement delivery, Purchaser shall return the defective item to Radium in accordance with the statutory provisions. Radium's right to refuse subsequent performance under the statutory conditions shall remain unaffected. If the subsequent performance by replacement delivery fails or is unreasonable for the Purchaser, the Purchaser may withdraw from the contract or reduce the payment. However, Purchaser shall have no withdrawal right in the event of an insignificant defect.
7.7 Claims for damages or reimbursement of expenses by Purchaser against Radium are subject to the limits of the provisions in Sec. 9.
7.8 The limitation period for claims arising from material defects and defects of title shall be one year after delivery of the goods. The statutory limitation provisions pursuant to § 438 para. 1 no. 1 and no. 2 of the German Civil Code (BGB) and to § 445 b of the German Civil Code (BGB), if the last contract in the supply chain is a purchase of consumer goods pursuant to § 474 of the German Civil Code (BGB), shall remain unaffected. Furthermore, the statutory limitation period for claims from culpable injury to life, body or health, intentional or grossly negligent breach of an obligation, assumption of a quality guarantee, fraudulent concealment of a defect or mandatory liability under the German Product Liability Act (ProdHaftG) shall remain unaffected.
8. Third Party Property Rights
8.1 Radium warrants that the goods are free from third-party property rights at the place of manufacture, at the place of delivery and within the EU.
8.2 If a third party asserts justified claims against Purchaser due to infringement of third-party property rights based on the goods, Radium shall be liable towards Purchaser as follows:
8.2.1 Subject to the provisions of Sec. 8.2.2 and 8.2.3, Radium shall at Radium’s own choice and expense
a) provide Purchaser with a right of use for the goods concerned to the extent necessary and reasonable,
b) modify the goods concerned in a manner reasonable for Purchaser so that the property right is no longer infringed, but the goods are still essentially equivalent to the contractually agreed functional and performance characteristics,
c) refund the purchase price to Purchaser against return of the goods concerned.
8.2.2 Purchaser’s claims pursuant to Sec. 8.2.1 shall only exist to the extent that
a) Purchaser immediately notifies Radium in writing of the assertion or threat of such third-party claims,
b) all extrajudicial and judicial defensive measures and settlement negotiations are reserved to Radium or are only conducted with Radium’s written consent and
c) Purchaser makes available to Radium without delay any and all information not requiring confidentiality which is necessary for the assessment of the situation and for the defence against the claims and provides Radium with appropriate support.
8.2.3 Purchaser’s claims pursuant to Sec. 8.2.1 shall be excluded in particular, without limitation, to the extent that
a) the goods concerned have been manufactured in accordance with the instructions or specifications of Purchaser and the property right infringement is based on such instructions or specifications,
b) Purchaser itself is culpable for the property right infringement or
c) the property right infringement is caused by an unauthorized modification, repair or combination within the meaning of Sec. 7.2 c) or an improper or unsuitable use within the meaning of Sec. 7.2 d).
8.2.4 Further and other claims or rights against Radium due to a property right infringement are excluded to the extent permitted by law. If Radium chooses the alternative pursuant to clause 8.2.1.c), Radium shall be released from the obligation to deliver the product in question. Claims against Radium for property right infringement shall become time-barred in accordance with clause 7.8. Clause 9. shall apply in the event of Radium's liability under this clause 8.
9. Liability
9.1 Radium shall be liable to the Purchaser in the event of intent and gross negligence, including that of its vicarious agents, in accordance with the statutory provisions. The same applies in the case of negligently caused damage resulting from injury to life, limb or health, as well as in the case of the assumption of a guarantee of quality or in the case of fraudulent concealment of a defect or mandatory liability under the Product Liability Act.
9.2 In the event of damage to property and financial loss caused by negligence, Radium and its vicarious agents shall only be liable in the event of a breach of a material contractual obligation, but limited in amount to the damage foreseeable at the time of conclusion of the contract and typical for the contract. In such cases, Radium's liability shall be limited to an amount of EUR 2 million per year. This shall not apply if the foreseeable damage typical for the contract concluded is exceptionally higher. In this case, liability is limited to this higher foreseeable damage typical for the contract. A change in the burden of proof to the detriment of the buyer is not associated with the above provisions. Material contractual obligations in this sense are those obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the Purchaser regularly relies and may rely.
9.3 Any further liability of Radium, regardless of the cause in law, shall be excluded; this shall apply in particular, without limitation, to claims for damages and reimbursement of expenses.
9.4 The exclusions and limitations of liability in the aforementioned provisions of Sec. 9 shall apply to the same extent for the benefit of the corporate bodies, legal representatives, employees and other vicarious agents of Radium.
9.5 Purchaser undertakes to mitigate the damage in any reasonable way and to support Radium reasonably in all damage mitigation measures.
10. Export Control
10.1 If Purchaser transfers goods (hardware and / or software and / or technology as well as corresponding documentation, regardless of the mode of provision) delivered by Radium or works and services (including all kinds of technical support) performed by Radium to a third party worldwide, purchaser shall comply with all applicable national and international (re-)export control regulations. In any event Purchaser shall comply with the (re-)export control regulations of the Federal Republic of Germany, of the European Union and of the United States of America.
10.2 If required to conduct export control checks, Purchaser, upon request by Radium, shall promptly provide Radium with all information pertaining to particular end customer, destination and intended use of goods, works and services provided by Radium, as well as any export control restrictions existing. Purchaser shall indemnify and hold harmless Radium from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any noncompliance with export control regulations by Purchaser, and Purchaser shall compensate Radium for all losses and expenses resulting thereof, unless such noncompliance was not caused by fault of the Purchaser. This provision does not imply a change in burden of proof.
10.3 Radium’s obligation to fulfil this agreement is subject to the proviso that the fulfilment is not prevented by any impediments arising out of national and international foreign trade and customs requirements or any embargos or other sanctions.
11. Ownership of Documents/Auxiliary Materials
Radium retains title and/or copyright to any and all offers, cost estimates, drawings, illustrations, catalogues, brochures, models, samples, tools and other documents or auxiliary materials made available to Purchaser. Purchaser shall keep these objects confidential and shall not be entitled to make them accessible to unauthorized third parties or to copy them without the prior written consent of Radium. Purchaser shall return such objects to Radium in their entirety upon request without delay.
12. Applicable Law, Place of Jurisdiction
12.1 The contractual relationship between Radium and Purchaser and these GDC shall exclusively be governed by the law of the Federal Republic of Germany under exclusion of the UN sales law (CISG) and the provisions of international private law.
12.2 To the extent Purchaser is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for any and all disputes arising from or in connection with the contractual relationship between Radium and Purchaser or these GDC shall be Wipperfürth, Germany. However, Radium shall also be entitled to sue Purchaser at Purchaser’s general place of jurisdiction. Mandatory statutory provisions regarding exclusive places of jurisdiction shall remain unaffected.
13. Text Form, Severability
13.1 To the extent these GDC require legally relevant declarations or notifications (both unilaterally and as part of a mutual agreement) to be made in writing, a readable declaration in text form on a durable medium in which the declaring person is named (e.g. e-mail or telefax) shall suffice for compliance with the form. Statutory formal requirements shall remain unaffected.
13.2 To the extent individual provisions of these GDC are or become invalid or unenforceable in whole or in part, the validity and enforceability of the remaining provisions shall remain unaffected. The parties shall replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the original business intention of the invalid or unenforceable provision, unless supplementary contract interpretation takes precedence or is possible. The same shall apply in case of a regulatory gap.