I. Contractual Basis, Products/Services
1. All products and services are exclusively sold on the basis of the conditions hereinafter. This also applies to deliveries ex distributing warehouse. The Buyer’s conditions of purchase are explicitly contradicted hereby. They are not obliging unless NORKA contradicts them again explicitly upon conclusion of an individual contract. Subsidiary agreements are exclusively effective if they have been confirmed in writing by NORKA.
2. NORKA quotations are without engagement. An order is exclusively considered accepted after it has been confirmed in writing. This also applies to orders placed with the agencies. Only the statements in our order confirmation are binding. Documents like figures, drawings and indications of weights pertaining to a quotation are only binding if they have been explicitly designated as such. NORKA reserves the proprietary right, copyright and the right with regard to cost estimates; and these rights must not be made accessible to any third parties. Documents pertaining to quotations must be returned immediately if the order is not assigned to NORKA.
3. The figures and indications of weights and dimensions in NORKA catalogues and prospectuses have been generated at the best of our knowledge, errors excepted; the same applies to the indications in our sales documents. Subject to changes for the purpose of technical advancement.
4. The indications in our sales documents, catalogues and prospectuses apply to lamps wired ready for connection for operating voltages of 230 V 50 Hz and ambient temperatures of max. 25° C. However, lamps for voltages, ambient temperatures and frequencies deviating from these values can also be supplied. A separate quotation is necessary for that purpose.
5. Prices are to be understood ex works excluding packaging, freight and customs. Subject to pro-rata price increases in case the prices of raw materials and wages rise after conclusion of the contract.
II. Delivery, Passing of Risk
1. All deliveries are quoted ex works on principle. Dispatch is effected at the Buyer’s risk and expense.
2. Even if carriage free delivery was agreed, the risk is transferred to the Buyer as soon as the consignment leaves the works. If dispatch or delivery is delayed on request of the Buyer, in both cases the risk for the time of delay is transferred to the Buyer from the date of readiness for dispatch. However, NORKA is obliged to execute the insurances requested by the Buyer at the Buyer’s request and cost.
3. An agreed period of delivery starts on the date the written receipt of the agreement on the order between the Buyer and NORKA is on hand. The delivery period shall be extended for an adequate period if NORKA cannot adhere to it due to reasons NORKA’s is not responsible for according to the general principles of law (e.g. if documents to be supplied by the Buyer do not reach NORKA in time or force majeure, e.g. war or strike).
4. The delivery of orders that can be retrieved in several partial lots is exclusively subject to the original conditions on the basis of an explicit agreement on the agreed terms. The calculated costs, in particular carriage and freight costs, are decisive.
5. The goods are packaged with utmost care and dispatched according to the best discretion of NORKA. NORKA will insure the consignment against breakage, transport damage and fire loss at the Buyer’s request and cost.
6. The Buyer shall accept delivered goods even if they have insignificant deficiencies. Partial deliveries are admissible.
III. Payment
1. All prices are to be understood ex works and without the statutory VAT. All payments must be made within 30 days; deviating dates of payment must be agreed in writing on principle. Payment must be effected in cash without any further deduction free NORKA domicile. Payment is charged against the respective oldest due invoice. The NORKA representatives are exclusively entitled to accept payment by virtue of explicit agreement with NORKA.
2. The Buyer is not be entitled to retain any payments due to any counterclaims not accepted by NORKA nor is he entitled to charge up against such claims.
3. In case any agreed payment dates are exceeded, interests amounting to 2% above the respective discount rate of the Hamburg Federal State Central Bank will be charged without reminder subject to the assertion of further claims. Simultaneously, the total remaining amount is due immediately, also in case of deterioration of the Buyer’s financial situation, regardless of the maturity of any bills of exchange taken in or possibly granted deferrals. NORKA will exclusively effect deliveries outstanding at that point in time against advance payment or securities; furthermore, it can withdraw from the contract or claim damages for non-performance.
IV. Reservation of Title
1. The goods remain property of NORKA until all claims NORKA is entitled to against the Buyer have been settled. The Buyer shall not be entitled to any chattel mortgages or pledging of the goods before these claims have been settled. The Buyer is exclusively entitled to resale of the goods in the course of business according to the rules and conditional sale under retention of title in case of other than cash sales. This right expires if and as soon as the Buyer ceases to pay.
2. The Buyer is obliged to inform NORKA before he disposes of his own claims by means of a factoring agreement. If the Buyer sold his claims within the context of genuine factoring he shall assign the claims which are due to NORKA to NORKA against the factoring. NORKA shall accept this assignment. In order to protect all claims of NORKA against the Buyer, the latter shall already transfer all claims he is entitled to or will be entitled to in future due to the sale of NORKA goods to NORKA upon conclusion of this contract. NORKA undertakes to transfer the claims it assigned to the Buyer on request of the latter as far as they exceed NORKA’s claims against the Buyer.
3. The Buyer is obliged to inform his customers immediately of the assignment and to hand over the information necessary for asserting the rights against its customers as well as the pertaining documents to NORKA on request of NORKA. The Buyer shall be entitled to collect the newly generated purchase price claim until revoked. The entitlement expires if and as soon as the Buyer ceases payment. The Buyer shall bear the costs for debt collection and interventions.
4. Handling and processing shall be executed for NORKA without obliging NORKA. If the NORKA goods are mixed or connected with other articles, the Buyer shall already assign his ownership or co-ownership rights in mixed inventory or the new object to NORKA at this point and he shall preserve these rights with commercial diligence for NORKA. The same also exclusively applies to further processing or the installation (assembly) of the NORKA goods.
5. The reservation of title according to the aforementioned conditions also continues to exist if individual claims of NORKA are integrated into a current account and the balance has been struck or acknowledged.
6. The Buyer is obliged to take all necessary actions to prevent any impairment or loss of rights in the delivered goods NORKA is entitled to on his own cost. This shall also apply in case the goods are sold within the context of genuine factoring if NORKA has not been informed of this fact in good time. If the property of NORKA is seized in execution the Buyer must inform NORKA immediately.
7. NORKA is entitled to demand the return of its goods any time. If NORKA uses this right, a withdrawal only exists if NORKA declares this fact explicitly.
V. Liability for Defects
1. NORKA shall be liable for defects including missing warranted properties to the exclusion of further claims against NORKA and its vicarious agents and persons employed in the performance of NORKA’s obligations as follows:
2. Recognizable defects must be indicated in writing within a limitation period of 10 days after receipt of the goods. Any defects occurring later must be indicated in the same way and within the same period after their discovery. The representatives of NORKA are not entitled to accept any notifications of defects or other declarations of the Buyer in the sense of § 91, paragraph 2 of the German Commercial Code.
3. All parts which become defective within 12 months - without consideration of the service life - calculated from the day of transfer of peril in a demonstrable way as a result of circumstances before the transfer of peril, in particular due to lacking design, poor building materials or defective execution or if their usability was impaired in a considerable way must be delivered again. NORKA does not assume the restoration costs.
4. The Buyer shall grant NORKA an adequate period of time and opportunity for delivering new spare parts. If the Buyer refuses this period of time and opportunity NORKA shall be exempted from the liability for defects.
5. Claims for material defects become statute-barred within 12 moths.
6. Our product liability expires in case the lamps are equipped with electronic adapters and T5 lamps.
7. The liability for defects expires if the delivery item is modified by a third party or by the installation of parts of an external party.
8. The Buyer has no conversion or diminution rights unless NORKA is not in a position to remove the defects.
9. In case NORKA rejects any notices of defects lodged in good time the Buyer’s right of warranty claims shall expire in all cases within 12 months from the date of the timely notification of defect. If the Buyer and NORKA do not come to an agreement within this period, the period of limitation can be extended by agreement.
10. Liability for defects does not refer to wear and tear or to damage resulting from incorrect or negligent handling, storage, excessive strain, inappropriate equipment, faulty construction works, unsuitable rooms or building grounds, physical, chemical, electrochemical or electrical influences without any fault on part of NORKA after passing of the risk.
11. NORKA shall be liable for replacement pieces to the same extent as for the original delivery item, however this applies only until expiry of the period of warranty applicable to the original delivery item.
12. Unless products of subcontractors are integrated in the finished electrical product, the provisions for defective deliveries in the terms of delivery of the subcontractors shall apply to their products.
13. If it is impossible for NORKA or the Buyer to perform the tasks they are obliged to, the general principles of law shall apply subject to the following proviso: If the impossibility of performance is attributable to gross negligence of NORKA the Buyer shall be entitled to withdraw from the contract or to claim for compensation. However, the Buyer’s claim for damages shall be limited to 5% of the value of the part of the delivery which could not be commissioned appropriately due to the impossibility of performance.
14. If any unforeseen events change the proportion of performance and counter-performance substantially or if they have a substantial influence on the operation of NORKA, NORKA shall be entitled to withdraw from the contract. In case NORKA intends to withdraw from the contract, NORKA has to inform the Buyer immediately after having gained an insight in the importance of the events, even if an extension of the delivery period had been agreed with the Buyer at first.
15. Any other claims, no matter for which legal reason, of the Buyer against NORKA, its vicarious agents and persons employed in the performance of NORKA’s obligations are excluded. In case of any subsequent modification of the lamps, their internal circuits or the device equipment NORKA shall be released from any liability according to the Law on Technical Working Equipment dated 1968-06-24 (Machine Protection Act).
VI. Other Claims for Damages
As far as the Buyer is entitled to claims for damages according to clause V, these claims will become time-barred after expiry of the period of limitation applicable to warranty claims for hidden defects according to point 4 of clause V. In case of claims for damages according to the Product Liability Act the legal statutes of limitation shall be applicable.
VII. Returns
Returns may exclusively be effected after NORKA’s previous consent and free of carriage charges. NORKA charges an overall handling fee amounting to 20% of the value of the goods for taking the goods back. All costs for delivery, taking the goods back, repair and new packaging – provided the goods are in such a condition that they can be resold - will be deducted from the credit note. This does not apply in case of a justified withdrawal of the Buyer from the contract.
VIII. Place of Jurisdiction and Applicable Law
1. The legal ineffectiveness of single parts of this contract shall not affect the binding force of the rest of the contract.
2. The German substantiate law excluding the United Nations Convention on Contracts for the International Sale of Goods shall be applicable to the legal relationship in connection with this contract.
3. Hamburg shall be the sole place of jurisdiction for legal actions against NORKA. The place of jurisdiction for legal actions of NORKA against the Buyer shall either be Hamburg or the domicile of the Buyer, also in case of actions arising out of a bill of exchange or a cheque.
(State: 21 February 2007)
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