Terms and Conditions for B2B, Entrepreneurs and Public Authorities

CARPETLIGHT GmbH
Friesenweg 5F, 22763 Hamburg, Germany
Phone: +49 40 43096222
Email: info@carpetlight.com

Internet: http://www.xplight.com
Managing Director: Götz Schmidt zur Nedden
Commercial Register: Amtsgericht Hamburg (Local Court Hamburg)
Registration number: HRB 132948
WEEE-Number: DE59055631
VAT ID No.: DE 296315898

Online dispute resolution according to Art. 14 (1) ODR-VO: The European Commission provides a platform for online dispute resolution (OS), which can be found at http://ec.europa.eu/consumers/odr/.

§ 1 General, Scope of Application

(1) The following General Terms and Conditions (hereinafter "GTC") apply to all our business relations with our customers (hereinafter "Buyer"). The GTC apply only if the Buyer is an entrepreneur (§ 14 German Civil Code (BGB)), a legal entity under public law or a special fund under public law.

The GTC apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also: "Goods"), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 651 BGB).

The GTC in the version valid at the time of the Buyer's order or, in any case, in the version last communicated to the Buyer in text form, shall also apply as a framework agreement for similar future contracts for the sale and/or delivery of goods with the same Buyer, without us having to refer to them again in each individual case; in this case, we will inform the Buyer of changes to the GTC without delay.

(3) Our GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This consent requirement applies in any case, for example, even if we carry out the delivery to the Buyer without reservation in knowledge of the Buyer's GTC.

(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. For the content of such agreements, subject to proof to the contrary, a written contract or our written confirmation shall be decisive. Furthermore, the price lists take precedence over these GTC.

(5) Legally relevant declarations and notifications to be made by the Buyer to us after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) require text form (§ 126 b BGB) to be effective. Insofar as these GTC mention that legally relevant declarations or notifications must be made in writing, text form (e.g. email and fax) in accordance with § 126 b BGB is sufficient.

(6) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.

§ 2 Conclusion of Contract

(1) Unless otherwise expressly agreed in writing in individual cases, our offers are subject to change and non-binding. This also applies if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.

(2) The Buyer's order of the goods shall be considered a binding offer to conclude a contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 14 days of its receipt by us.

(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.

(4) The product presentation in the online shop does not constitute a binding offer to conclude a purchase contract. Rather, it is a non-binding invitation to order goods in the online shop. The Buyer can select products, in particular luminaires, and collect them in a so-called shopping cart using the "Add to cart" button. By clicking the "Buy now" button, the Buyer submits a binding offer to purchase the goods in the shopping cart. Before submitting the order, the Buyer can change and view the data at any time. However, the application can only be submitted and transmitted if the Buyer accepts these contractual terms by clicking the "Accept GTC" button. We will then send the Buyer an automatic confirmation of receipt by email, in which the Buyer's order is listed again and which the Buyer can print out using the "Print" function. The automatic confirmation of receipt merely documents that the Buyer's order has been received by us and does not constitute acceptance of the offer. The contract is only concluded by our declaration of acceptance, which is sent with a separate email (order confirmation). In this email or in a separate email, but at the latest upon delivery of the goods, the contract text (consisting of the order, GTC and order confirmation) will be sent to the Buyer by us on a durable medium (email or paper printout). The contract text will be stored in compliance with data protection.

§ 3 Delivery Period and Delay in Delivery

(1) The delivery period will be individually agreed upon or specified by us upon acceptance of the order. If this is not the case, the delivery period is approximately ten to twelve weeks from the conclusion of the contract.

(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (unavailability of performance), we will inform the Buyer of this immediately and at the same time communicate the estimated new delivery deadline. If the service is also unavailable within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any consideration already rendered by the Buyer will be refunded immediately. A case of unavailability of performance in this sense shall be considered, in particular, the untimely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault, or we are not obliged to procure in individual cases.

(3) The occurrence of our delay in delivery is determined by the statutory provisions. In any case, however, a reminder from the Buyer is required. If we are in default of delivery, the Buyer may demand liquidated damages for the delay. The lump sum for damages amounts to 0.5% of the net price (delivery value) for each full calendar week of delay, but not more than 5% of the delivery value of the belatedly delivered goods in total. We reserve the right to prove that the Buyer has not incurred any damage at all or only a significantly lower damage than the aforementioned lump sum.

(4) The Buyer's rights according to § 8 of these GTC and our legal rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

(1) Delivery takes place ex works, which is also the place of performance for delivery and any subsequent performance. At the Buyer's request and expense, the goods will be shipped to another destination (sale by dispatch). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.

(2) The risk of accidental loss and accidental deterioration of the goods passes to the Buyer at the latest upon handover. In the case of a sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay passes already upon delivery of the goods to the forwarder, the carrier or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this is decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services apply mutatis mutandis to an agreed acceptance. It is equivalent to handover or acceptance if the Buyer is in default of acceptance.

(3) If the Buyer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this purpose, we charge a lump-sum compensation of EUR 5 per calendar day, provided that the lump sum is not obviously unreasonable, starting from the delivery period or - in the absence of a delivery period - from the notification of the readiness for dispatch of the goods. Proof of higher damage and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum is to be credited against further monetary claims. The Buyer remains at liberty to prove that we have incurred no damage at all or only a significantly lower damage than the aforementioned lump sum.

§ 5 Prices and Payment Terms

(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply, namely ex works ("EXW" according to INCOTERMS 2010) in the Federal Republic of Germany, in EURO, exclusive of the applicable statutory value-added tax. The current prices are exclusive of expenses, packaging, import, export, transport and insurance costs, unless otherwise agreed in individual cases.

(2) In the case of a sale by dispatch (§ 4 para. 1), the Buyer bears the transport costs from the warehouse as well as the costs of any transport insurance desired by the Buyer. Unless we charge the actual transport costs in individual cases, a flat rate for transport costs of EUR 40 in Europe and EUR 120 outside Europe (excluding transport insurance) applies for deliveries, unless this flat rate is obviously unreasonable. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer. All packaging materials and other packaging in accordance with the packaging ordinance will not be taken back and become the property of the Buyer.

(3) The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods, unless otherwise agreed in individual cases. However, we are entitled, even within an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment at any time. We will declare such a reservation at the latest with the order confirmation. For contracts with a delivery value of more than EUR 5,000, we are, however, always entitled to demand an advance payment of 30% of the purchase price. The advance payment is due and payable within 7 days of the invoice date.

(4) Upon expiry of the aforementioned payment period, the Buyer shall be in default. The purchase price shall bear interest during the default at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. Our claim to commercial maturity interest (§ 353 BGB) against merchants remains unaffected.

(5) The Buyer shall only be entitled to offsetting or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer's counter-rights remain unaffected, in particular in accordance with § 7 para. 6 sentence 2 of these GTC.

(6) If it becomes apparent after conclusion of the contract that our claim to the purchase price is endangered by the Buyer's inability to perform (e.g. by an application for the opening of insolvency proceedings), we are entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible items (custom-made products), we can declare the withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.

§ 6 Retention of Title

(1) We reserve title to the goods sold until all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.

(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The Buyer shall immediately notify us in writing if and to the extent that third parties have access to the goods belonging to us.

(3) In the event of conduct by the Buyer in breach of contract, in particular non-payment of the purchase price due, we shall be entitled, in accordance with statutory provisions, to withdraw from the contract and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; rather, we are merely entitled to demand the return of the goods and reserve the right to withdraw. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if such a deadline is dispensable according to statutory provisions.

(4) Until revoked in accordance with (c) below, the Buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.

1. a) The retention of title extends to the products resulting from the processing, mixing or combination of our goods at their full value, whereby we are considered the manufacturer. If, in the event of processing, mixing or combination with goods of third parties, their ownership rights continue to exist, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title.

2. b) The Buyer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product, or, in the amount of our possible co-ownership share according to the preceding paragraph. We accept the assignment. The Buyer's obligations mentioned in para. 2 also apply with regard to the assigned claims.

3. c) The Buyer remains authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer fulfills his payment obligations towards us, does not fall into arrears with payments, no application for the opening of insolvency proceedings has been filed, and there is no other deficiency in his ability to perform. If this is the case, however, we may demand that the Buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents, and notifies the debtors (third parties) of the assignment. Furthermore, in this case, we are entitled to revoke the Buyer's authorization to further sell and process the goods subject to retention of title.

4. d) If the realizable value of the collateral exceeds our claims by more than 10%, we will release collateral of our choice at the Buyer's request.

§ 7 Buyer's Claims for Defects

(1) For the Buyer's rights in the event of material and legal defects (including incorrect and short deliveries as well as improper assembly or faulty assembly instructions), the statutory provisions shall apply, unless otherwise stipulated below. In all cases, the special statutory provisions for final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB) remain unaffected.

(2) The basis of our liability for defects is, above all, the agreement made regarding the quality of the goods. All product descriptions (including those of the manufacturer) that are the subject of the individual contract or that have been publicly announced by us (in particular in catalogs or on our website) are considered an agreement on the quality of the goods. LEDs are subject to age-related degradation due to use. The aging of LEDs is indicated by a gradual decrease in luminous flux (in lumens), changes in the color locus of the LEDs, and the total failure of individual LEDs on a board. The failure or malfunction of up to 1% of the total LEDs installed in Carpetlight lighting systems does not constitute a defect in performance; it is attributable to production-related variations and is not considered a material defect.

(3) Insofar as the quality has not been agreed, it shall be assessed according to the statutory provisions whether a defect exists or not (§ 434 para. 1 sentences 2 and 3 BGB). However, we assume no liability for public statements by the manufacturer or other third parties (e.g. advertising statements).

(4) Should a defect appear during the inspection or later, we must be notified of this immediately in writing. Notification is considered immediate if it occurs within two weeks, whereby timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this inspection and complaint obligation, the buyer must report obvious defects (including incorrect and short deliveries) in writing within two weeks of delivery, whereby timely dispatch of the notification is also sufficient to meet the deadline. If the buyer fails to properly inspect and/or notify defects, our liability for the defect not reported, not reported in time, or not reported properly is excluded in accordance with legal provisions.

(5) If the delivered item is defective, we can first choose whether to perform subsequent fulfillment by remedying the defect (repair) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent fulfillment under the legal conditions remains unaffected.

(6) We are entitled to make the owed subsequent fulfillment dependent on the buyer paying the due purchase price. However, the buyer is entitled to withhold a portion of the purchase price appropriate to the defect.

(7) The buyer must give us the time and opportunity required for the owed subsequent fulfillment, in particular to hand over the complained goods for inspection purposes and to send them to our business premises for reimbursement of shipping costs. In the case of replacement delivery, the buyer must return the defective item to us in accordance with legal provisions. Subsequent fulfillment does not include the removal of the defective item nor its re-installation, if we were not originally obliged to install it.

(8) If our products are inextricably integrated by third parties into an overall system and our products thereby become 'fixed' and cannot be sent to us for repair as individual components, our warranty obligation expires. This also applies if the buyer changes the original condition through mechanical alteration / surface alteration / structural alteration in such a way that the products can no longer be repaired (e.g., if our products are completely cast in silicone or glued to other objects).

(9) We bear the expenses necessary for inspection and subsequent fulfillment, in particular transport, travel, labor, and material costs (not: removal and installation costs), if a defect actually exists. However, if a buyer's request for defect rectification proves to be unjustified, we can demand reimbursement from the buyer for the costs incurred as a result, unless the buyer could not have recognized the absence of the defect.

(10) In urgent cases, e.g., to avert risks to operational safety or disproportionate damage, the buyer has the right to remedy the defect himself and to demand reimbursement from us for the objectively necessary expenses. We must be notified of such self-remedy immediately, if possible beforehand. The right to self-remedy does not exist if we would be entitled to refuse corresponding subsequent fulfillment according to legal provisions.

(11) If subsequent fulfillment has failed or a reasonable deadline set by the buyer for subsequent fulfillment has expired without success or is dispensable according to legal provisions, the buyer can withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal for an insignificant defect.

(12) Buyer's claims for damages or reimbursement of futile expenses also exist only in case of defects in accordance with § 8 and are otherwise excluded.

§ 8 Other Liability

(1) Unless otherwise stated in these GTCs, including the following provisions, we are liable for a breach of contractual and non-contractual obligations in accordance with legal provisions.

(2) We are liable for damages - irrespective of the legal reason - within the scope of fault liability for intent and gross negligence. In the case of simple negligence, we are liable, subject to a milder standard of liability under legal provisions (e.g., for care in one's own affairs), only

• a) for damages resulting from injury to life, body, or health,

• b) for damages resulting from a not insignificant breach of an essential contractual obligation (an obligation whose fulfillment is essential for the proper execution of the contract and on whose observance the contracting party regularly relies and may rely); in this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from paragraph 2 do not apply if we maliciously concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to buyer's claims under the Product Liability Act.

(4) The foregoing provisions also apply in favor of our employees, vicarious agents, representatives, and other auxiliary persons for whom we are liable under legal provisions.

(5) For a breach of duty that is not a defect, the buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise, the legal requirements and legal consequences apply.

§ 9 Statute of Limitations

(1) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.

(2) However, if the goods are a structure or an item that has been used for a structure in accordance with its usual purpose and has caused its defectiveness (building material), the limitation period is 5 years from delivery in accordance with the legal regulation (§ 438 para. 1 no. 2 BGB). Other special legal regulations regarding limitation (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 479 BGB) also remain unaffected.

(3) The aforementioned limitation periods of sales law also apply to the buyer's contractual and non-contractual claims for damages based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act remain unaffected in any case. Otherwise, only the statutory limitation periods apply to the buyer's claims for damages pursuant to § 8.

§ 10 Complete Systems

(1) Unless the buyer commissions us with the integration, installation, and Site Acceptance Test (SAT) of complete systems, i.e., systems consisting of several individual components or individual products from different manufacturers, the individual components are expressly sold as individual components and not as a complete system. Accordingly, a warranty in accordance with these GTCs is granted only on the individual components and not on a functioning complete system. A detailed protocol, to be signed by both parties, must be drawn up for each SAT.

(2) If the buyer already has individual components of a complete system, we offer the buyer the integration of the existing components into a complete system in a separate agreement and against payment. If the integration is not carried out by us, a warranty according to these GTCs is granted only on the individual components and not on a functioning complete system. For example, if the power control is not provided by us or if a third-party power control is used that has not been explicitly approved by us in writing as suitable for the specific purpose, the warranty is excluded. The individual components only function with our power control or with power controls approved by us as suitable and can be damaged by the use of incorrect or unsuitable controls.

§ 11 Intellectual Property Rights

Unless otherwise agreed in writing between the parties in individual cases, the following applies:

(a) We transfer to the buyer the usage rights to the goods or software necessary for contractual use only if the purchased goods contain intellectual property, e.g., designs, copyrights, or software;

(b) we merely transfer a simple, non-transferable, non-sublicensable right of use without time and spatial restriction;

(c) the buyer generally has no claim to the source code;

(d) if we design individual goods for the buyer, the buyer does not have the right, without our written consent, to reproduce, process, and distribute the designed goods, nor to sell, assign, and/or transfer the rights licensed to the buyer to the designed goods to third parties;

(e) all usage rights are transferred to the buyer only after full and final payment of the agreed remuneration.

§ 12 Export Restrictions

(1) The buyer must be aware that the products supplied by us may be subject to export restrictions under applicable foreign trade law regulations on export control, and therefore the export of such products, whether in their original state or installed, to countries subject to such restrictions may be entirely prohibited or only permissible with special official permits.

(2) The buyer is responsible for complying with such foreign trade law regulations. The buyer undertakes to strictly adhere to export regulations, diligently and promptly obtain all necessary official or other permits, submit applications, and make payments. If foreign trade law regulations must be observed in connection with the sales transaction or shipment, the buyer must inform us thereof. If the buyer violates this obligation, they must compensate us for all expenses or damages incurred as a result, e.g., in dealing with foreign trade or financial authorities.

§ 13 Disposal of Waste Electrical Equipment

(1) The buyer must dispose of the delivered equipment at their own expense and in compliance with legal regulations after the end of its use. We are thereby released from the obligation to take back and from related claims of third parties (§ 10 Para. 2 ElektroG).

(2) It is hereby agreed that claims for the assumption of manufacturer obligations and release from third-party claims do not expire before a period of 12 months after the final cessation of use of the equipment. The period begins at the earliest with receipt of a written notification from the manufacturer about the cessation of use.

(3) In the event of passing on the equipment to commercial third parties, the buyer undertakes to oblige these third parties to properly dispose of the equipment after the end of its use, to bear the associated costs, and to impose a corresponding obligation in the event of further passing on. Violations lead to a take-back obligation of the buyer with regard to the respective equipment as well as the obligation to dispose of it and bear the associated costs.

§ 14 Data Protection

We inform the buyer that we electronically store personal data of the buyer for the purpose of contract processing, invoicing, and statistical evaluation. This refers to data such as name, address, and bank details, as well as data resulting from the execution of the contract. This data will not be passed on to third parties.

§ 15 Choice of Law and Jurisdiction

(1) These GTCs and the contractual relationship between us and the buyer are governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. However, the prerequisites and effects of the retention of title according to § 6 are subject to the law at the respective location of the item, insofar as the choice of German law made would be inadmissible or ineffective under that law.

(2) If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our place of business in Hamburg. However, we are also entitled in all cases to bring an action at the buyer's general place of jurisdiction.