All-In-One Lighting Co., Ltd (“AIO”) warrants to the original buyer (“Buyer”) that all products within AIO’s LED lighting range (“Products”) will be free of significant defects in material and workmanship, provided that the Products are installed in accordance with AIO’s installation and operation instructions and by suitable qualified personnel, for a period of three (3) years from the date of original shipment of the Products (“Warranty Period”).
Delivery and Payment Terms of All-In-One Lighting
for delivery of products (including lamps, luminaires, smart home products and SKD&CKD)
1. For deliveries of All-In-One Lighting (hereinafter referred to as “AIO“) the following terms apply, unless there is an applicable agreement in place between the parties. Deviating terms of the purchaser are not accepted by AIO unless AIO would have expressly agreed to their applicability in writing. The Delivery and Payment Terms also apply if AIO undertakes delivery to the purchaser without reservation being aware of adverse terms or purchaser’s terms deviating from these Delivery and Payment terms.
2. AIO’s offers are non-binding unless otherwise agreed in writing in individual cases.
3. AIO’s delivery obligations are solely governed by the written order confirmation provided by AIO.
4. Delivery shall be made Exwork factory (EXW) in accordance with Incoterms® 2010.
5. Delivery delays or limitations which arise through no fault of AIO or which can verifiably be attributed to military mobilization, war, uprising, strike, legitimate lockout or the emergence of unforeseen obstacles outside of AIO’s control, will result in a reasonable prolongation of the delivery deadline by the duration of the hindrance. If the hindrance lasts longer than three months, each party is entitled to withdraw from the contract. In such case, any consideration already provided will be refunded by AIO to the purchaser without delay.
6. In the event of deliveries by AIO being delayed due to negligence, liability for damages arising from the delay (damages in addition to performance) is limited to 2 % of the purchase price of the late delivery, and liability for damages instead of performance is limited to 5 % of the purchase price of the late delivery. Liability for injuries to body, life and health remains unaffected.
7. AIO warrants that its products are in accordance with the respective state of the art and are free from defects in materials and workmanship. Expiration of standard life time during the warranty period does not constitute a defect. For items which are worked on and modified without AIO’s express approval or exposed to improper conditions of use, AIO shall not be obliged to pay any compensation, insofar as a claim concerning the item can be attributed thereto.
8. AIO’s product descriptions do not contain any guarantee of quality.
9. Claims for defects are subject to the purchaser’s statutory obligation to give notice of defects as per invoice. The notice of defects has to be provided in writing. Rejected goods must be returned to AIO for inspection. In the event of a wrongful notice of defects, AIO is entitled to request compensation from the purchaser for expenditures incurred in this regard, unless it was not possible for the purchaser to detect that there was no defect. If the inspection reveals a manufacturing or material or other defect, AIO shall make a replacement delivery or issue a credit note in the amount of the purchase price, at AIO’s option. If supplementary performance by replacement delivery fails or is unacceptable to the purchaser, the purchaser may withdraw from the contract or reduce payment. Damage claims only exist as per the preconditions set out in section 11.
10. In cases pursuant to invoice or purchase order, claims for defects shall lapse after the expiry of the periods set out therein. Claims arising from damage to life, body or health and claims arising from willful or grossly negligent breach of duty shall also lapse in accordance with the legal provisions. All other claims for defects shall expire 12 months after delivery.
11. Damage claims of the purchaser are excluded unless the damage was caused by willful or gross negligence of AIO or its legal representatives or agents
or insofar as the damage does not result from a violation of a material contractual obligation. Material contractual obligations in this sense are such obligations which need to be fulfilled in order to allow for the proper implementation of the contract and compliance with which the purchaser may generally rely on.
Insofar as AIO is liable according to the previous provision, liability is limited to an amount of EUR 2 million per damage event, as long as AIO did not act willfully. This does not apply if the foreseeable damage typical for such contracts is exceptionally higher. In this case, liability is limited to the higher foreseeable damage. The aforementioned provisions do not imply a change in the burden of proof to the detriment of the purchaser.
Liability arising from culpable damage to life, body or health, liability in case of a quality guarantee or in case of fraudulent concealment of a default, as well as liability based on the Product Liability Act, remain unaffected.
Apart there from, liability claims against AIO are excluded. The aforementioned liability limitations apply respectively if the purchaser claims reimbursement of expenses instead of damages.
For damages caused by delay, the liability provision in section 6 additionally applies.
Prices and Payment Terms
12. Prices are quoted in the agreed currency, net (exclusive of any fees and taxes) and without deduction on ex works basis in accordance with Incoterms® 2010. Insofar as statutory VAT accrues, the prices indicated by AIO are exclusive VAT in the respective statutory amount.
14. Payment shall be effected in the agreed currency to the place of payment designated by AIO. Reference date for timely payment shall be the date of receipt of the payment by AIO. Unless otherwise agreed, invoices are to be paid within 14 days of invoice date with 2 % early payment discount or within 30 days net.
15. In case of default of payment, interest on arrears amounting to 8 percentage points p. a. above the applicable basic interest rate shall be charged. The right to claim higher damages remains unaffected.
16. In case of default of payment, the purchaser shall bear the risk of currency exchange losses incurred against the accounts receivable in Euro on the due date.
Retention of Title
17. AIO shall retain title to the delivered goods until all account receivables which are due to AIO and arise from the current business relationship with the purchaser have been settled. Title shall not transfer to the purchaser until AIO is able to dispose freely of the purchase price. Provision of a letter of credit shall not constitute a payment.
18. The purchaser is entitled to resell goods solely in accordance with orderly business operations against immediate payment or as subject to retention of title. The purchaser already now preventatively assigns to AIO account receivables owed to the purchaser by his customers due to the resale, including the balance receivables resulting from the termination of a current account, as well as the right to cancel such current account and the right to determine the account balance. Despite this assignment, the purchaser remains authorized to collect such account receivables. However, AIO is entitled to revoke this authorization and to collect the account receivable themselves if the purchaser does not meet his payment obligations or has filed for insolvency. In such cases, AIO may demand from the purchaser to notify AIO of the debtors and assigned receivables, provide all information necessary for collection, hand over associated documentation and inform the debtors (third party) of the assignment.
19. 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 AIO by way of security, 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 AIO free of charge. If AIO products are sold together with other goods (not belonging to AIO) at a total price, the transfer shall only apply up to the amount invoiced by AIO for the AIO products. The same applies to the extent of the transfer of a potential current account receivable of the purchaser vis-à-vis his purchaser.
20. The purchaser is not allowed to pledge or transfer any goods subject to retention of title by way of security. The purchaser is obliged to inform AIO without delay in the event of third party interference with goods subject to retention of title or with account receivables assigned to AIO by way of security. Insofar as the third party is not able to refund the judicial and extra-judicial costs of a lawsuit as per § 771 ZPO (Civil Procedure Code), the purchaser is liable for the losses incurred by AIO.
21. If the purchaser is in delay with payment, AIO is entitled to withdraw from the contract and request the goods to be returned.
22. AIO shall release securities if and insofar as the realizable value of the securities exceeds the secured account receivables due to AIO by more than 10 %, whereas AIO reserves the right to determine which goods or claims are to be released.
23. If retention of title is not valid according to the jurisdiction of the place in which the goods are located, a security corresponding to the retention of title in this jurisdiction is considered agreed. If the purchaser’s participation is necessary for the security to become effective, he is obliged, upon AIO’s request, to take all measures which are necessary for the establishment and retention of such rights, insofar as is deemed reasonable.
24. When forwarding goods delivered by AIO (hardware and / or software and / or technology as well as the respective documentation regardless of how these were made available) or works and services provided by AIO (including technical support of all sorts) to a third party worldwide, the purchaser shall act in compliance with any applicable national and international (re-)export control regulations. In any case, the 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.
If required to conduct export control checks, the purchaser shall, upon request of AIO, promptly provide AIO with all information pertaining to particular end customer, destination and intended use of goods, works and services provided by AIO, as well as any existing export control restrictions. The purchaser shall indemnify AIO against any claim, proceeding, action, fine, loss, cost and damage resulting from the purchaser’s noncompliance with export control regulations. The purchaser is obliged to reimburse AIO for any damages and costs originating from such noncompliance, unless this was not caused by his fault. This provision does not imply a change in burden of proof.
25. AIO’s obligation to fulfill this agreement is subject to the proviso that the fulfillment is not prevented by any impediments arising from national and international foreign trade and customs requirements or any embargos or other sanctions.
Choice of Law and Jurisdiction
26. The law of the people’s republic of China shall apply. The application of the UN Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) and of Private International law is excluded.
27. If the purchaser is a merchant, the courts of Shenzhen shall have jurisdiction over any disputes arising from or in connection with the contract concluded with the purchaser. However, AIO is also entitled to file an action against the purchaser at the purchaser’s place of general jurisdiction.
28. If any provision of these Delivery and Payment Terms is held to be invalid, the validity of the remaining provisions shall not be affected. Statutory regulations shall apply instead of such invalid provisions.