Terms of Sale and Supply

 

(1)       The Photon Automotive Lighting, Ömer Faruk Darmon, Augsburger Str. 39, 86368 Gersthofen, Germany (hereinafter “Photon Automotive Lighting”), offers customers (consumers and entrepreneurs) auto parts, especially lamps and lights.

(2)       Unless otherwise agreed, the following provisions shall apply to contracts between us and entrepreneurs (customer). The version applicable at the time of conclusion of contract shall be authoritative. Any conflicting terms of purchase of commercial customers shall only become applicable upon our confirmation.

(3)       Entrepreneur means any natural or legal person or partnership with legal capacity that, at the time a legal transaction is concluded, is exercising its commercial or independent professional activity.

 

(1)       Unless otherwise agreed or provided for in an offer, all prices stated in an offer shall be exclusive of value added tax, packaging as well as delivery and insurance costs, which will be separately invoiced.

(2)       The customer confirms that he has the correct and complete delivery address indicated. Should there due to faulty address data give rise to additional costs for dispatch, the customer has to replace them, unless he is not at fault.

(3)       The customer – unless otherwise agreed – shall pay any amounts within 10 days of receipt of the invoice; the time we receive the amount shall be authoritative.

 

(1)       Unless otherwise agreed in individual cases, delivery of the items will, as a general rule, be effected through shipping and ex-warehouse.

(2)       Partial deliveries shall only be admissible where the customer can reasonably be expected to accept partial delivery or the customer has explicitly agreed to partial delivery. A customer can, for example, not reasonably be expected to accept partial delivery of a uniform object of purchase. Partial deliveries shall not affect the customer's rights arising from impairment of performance.

(3)       The risk of loss of or accidental damage to the goods shall pass to a qualified transport person upon handover to the customer itself or an authorized person, in the case of sale by delivery to a place other than the place of performance upon dispatch of the goods. With respect to risk assumption, default of acceptance by the customer shall have the same legal effect as handover of the goods.

(4)       We shall retain the right to deliver an item other than that purchased if the customer can reasonably be expected to accept this. This concerns, for example, any technical changes or changes to the weight that do not impair the purchased item's functionality as well as any minor changes to form and/or colour of items whose style does not play a role.

(5)       The contract is concluded on the proviso of non-performance or partial performance in the event of incorrect or improper own supply by sub-suppliers. This does not apply if we are responsible for our own supply being absent. In the event of non-availability or only partial availability of the object of performance, we will immediately inform the customers; in the event of a withdrawal, the payment will be refunded immediately to the customer.

 

(1)       We shall retain title to the goods until the purchase price has been paid in full.

(2)       If the customer is an entrepreneur, he shall be permitted to sell the goods delivered under reservation of title or consume them to provide a service within the scope of ordinary business dealings. The Parties agree that the customer assigns his payment claims from the resale or the provision of services to us in advance in case of sale or consumption to provide a service; we accept the assignment now already.

 

(1)       The following sections 2 to 4 shall apply if the conclusion of the contract of sale is part of our and of the customer's operations as a mercantile trader ("Handelsgewerbe") (merchant). The following regulations on transport damage do not restrict any customer rights or claims, including but not limited to those concerning liability for defects; however, § 377 of the German Commercial Code (HGB) shall remain unaffected.

(2)       Deliveries will be checked in the presence of the deliverer and in any event immediately after receipt. If there is apparent transport damage, the customer shall be obliged to note such damage in the shipping documents and have such note signed by the deliverer; the packaging will be kept. We shall immediately be informed of any defect discovered.

(3)       If the (partial) loss or damage was not apparent at acceptance of the goods, the customer shall be obliged to inform us of such loss or damage immediately, and in no case later than one week after gaining knowledge of the loss or damage.

(4)       Sections 2 and 3 shall not apply if we have fraudulently concealed a defect.

 

(1)       The customer shall have the statutory warranty rights against us for an initial material defect. First, the customer has a right to subsequent performance; however, the customer is always free to reduce the purchase price or, by its choice, to withdraw from the contract; the foregoing regulation shall not affect any claims for damages.

(2)       If the customer is an entrepreneur, we fulfil our warranty for defects in the goods through, at our option, subsequent improvement or delivery of substitute goods. The customer, upon our request, shall be obliged to make the goods available to allow for an investigation of the complaint of defect.

 

(1)       We shall be liable for damage from injury to life, the body or health arising from an intentional or negligent violation of duty by us, our legal representatives or the persons employed by them in performing their obligations. In addition to this, we shall be liable for any guarantee provided as well as for any damage for which liability is provided under compulsory statutory provisions including the German Product Liability Act (“Produkthaftungsgesetz”, abbreviated ProdHaftG). In addition, we shall be liable for any other damage arising from an intentional or grossly negligent violation of duty as well as fraud by us, our legal representatives or persons employed in performing contractual obligations.

(2)       We shall be liable for damage which is caused by simple negligence and does not fall within the meaning of section 1 sentences 1 and 2 in so far as such negligence concerns the violation of the contractual obligations the compliance with which enables implementation of the contract in the first place and the observance of which the purchaser therefore regularly trusts (material obligation); liability shall, however, be limited to the foreseeable direct average damage typical of this type of contract, which excludes indirect damage (for example loss of profits) as well as consequential damage. The quantum of damages shall be limited to three times the value of the shipment.

(3)       Any more extensive or further liability shall be excluded irrespective of the legal nature of the claim raised.

 

(1)       The law of the Federal Republic of Germany shall be applicable. The regulations of the UN Convention on Contracts for the International Sale of Goods shall not apply.

(2)       If the customer is a merchant, a legal entity under public law or a special fund under public law, place of jurisdiction for any disputes arising from this contract shall be Erlangen. The same shall apply if the customer does not have a general place of jurisdiction in Germany or if its registered place of residence or usual place of residence are unknown at the time a claim is brought. This shall not affect the right to bring a claim before a court at another statutory place of jurisdiction.