General Terms and Conditions
Our General Terms and Conditions of Sale shall exclusively apply to all contracts between us and our clients. Any differing conditions or terms of buyer are herewith objected to and shall not apply. Any agreement affecting the execution of this contract must be in writing.
2. Offer and conclusion of contract
Samples and catalogues are to be considered non-binding material for illustration and/or test purposes, giving only an approximation of properties and specification. The weight, volume or gage of the goods measured upon shipment is valid.
3. Price of the Goods
Prices valid at date of delivery will be applied. We reserve the right to adapt prices, for confirmed orders as well, to reflect any increase in our costs, for any reason beyond our control, like force majeure, shortage of primary material or labor, strikes, official orders, transportation or similar problems, if this increase happens after confirmation of order but before delivery of goods. Our prices are ex works unless stated otherwise and do not include any kind of taxes.
4. Terms of Delivery
Confirmed delivery dates are not fixed dates, unless stated otherwise. We reserve the right to postpone delivery in the case of force majeure for the duration of the obstruction plus a reasonable period of recuperation. Should delivery have become impossible by an act beyond our control we reserve the right to partially or completely rescind the contract. Strikes, unforeseeable events or interruptions of operations are considered force majeure, should we have no influence over these events. Failure to comply by a supplier only gives us the right to rescind the contract, if a replacement deal was made and failed to comply. We reserve the right to partial deliveries unless the client has no interest in them. Unless failure to comply or delay of delivery was caused by us, our lawful representatives or auxiliary persons by gross negligence or intentional acts, we will not be liable for noncompliance. Should we be liable under the terms aforementioned, liability is limited to damages that occur foreseeable and typically under the circumstances. Unless agreed otherwise, delivery is made from the seller's premises. Goods travel at cost and danger of client, unless agreed otherwise.
5. Terms of payment
Unless agreed otherwise, our invoices are to be paid immediately upon receipt of merchandise and invoice. Should client fail to comply within 30 days, he will automatically be in default of payment. Payment is considered made when it is at our disposal. Detention of payments or balancing of payments against claims of buyer against seller is not allowed, unless these claims are undisputed or legally established. The aforementioned paragraph does not apply to buyers who are neither entrepreneurs nor statutory persons as defined by the German Commercial Code If buyer fails to make payment by due date, without prejudice to any other right or remedy available to the seller, we are entitled to charge the buyer interest on the unpaid amount, as established by § 288 Art. 1 BGB German Civil Code in its version legally valid Should there be reasons to doubt the solvency or credit standing of the client, we reserve the right to demand securities or prepayment for any outstanding delivery or declare immediate maturity of all outstanding claims.
6. Retention of Title
Notwithstanding delivery or passage of risk in the merchandise, property of merchandise shall not pass to the buyer until full payment of all our claims against the buyer, regardless of their grounds, was made. If merchandise is processed or mixed by buyer with goods that we have no property in, we shall become co-owner of these goods, which shall be stored for us by the buyer. Processing or transformation of the goods is done in our name as a producer, but without obligation to us. Should we loose ownership due to processing or fusion, we will become partial co-owner (value of invoice) of the new product. The client will store the co-owned goods free of charge. These goods are called reserved goods in the following. Buyer has the right to process or sell these goods in the regular course of business, as long as payment obligations are fulfilled. Pledging or cession by security of these goods is not allowed. For safeguard, receivables based either on the sale of these goods or on any other ground (insurance, torts) are considered fully assigned to us. These assigned receivables are released under the condition that their achievable value exceeds the value of our secured receivables by more than 10%. Buyer authorizes us to collect them at his costs, a right that we are obliged not to exercise unless buyer fails to meet his payment obligations towards us or, particularly, institutes bankruptcy proceedings. In the case of bankruptcy or suspension of payment, we have the right to demand that buyer declares the assigned receivables, gives all information and documentation necessary for us to collect our claims and informs garnishee of the assignment. Should third parties try to claim these goods, buyer is obliged to inform them of our property and immediately inform us of the intend. Buyer will be held responsible for costs and damages. This paragraph does not apply to buyers who are neither entrepreneurs nor statutory persons as defined by the German Commercial Code.
8.2 The Buyer shall have the right to attend the acceptance testing subject to written notification to Atlantic Star of the names and biodata of its representatives at least three (3) calendar days prior to the above-mentioned anticipated date. Failure of the Buyer to attend shall not delay or prevent the performance of such acceptance testing. Atlantic Star may subsequently carry out the acceptance testing, in accordance with article 8.1, the terms of which will thereafter be deemed completed. Upon completion of the acceptance testing, Atlantic Star shall issue, sign and submit to the Buyer's signature a report, which shall be signed by the Buyer no later than five (5) calendar days from its submission. Should the Buyer refuse to sign the said report, the Buyer shall so notify Atlantic Star in writing by substantiating the non-conformities within the same five (5) day period of time. Should the Buyer fail to sign the report without notifying Atlantic Star as per above, the report signed by Atlantic Star shall then have the same value and effect as if both parties had signed it.
8.4 Non-conformities evidenced during the acceptance testing shall be made good by Atlantic Star within a reasonable time. Nonconformities not affecting the functional characteristics of the Products shall not constitute a ground for rejection thereof. Such non-conformities shall be corrected by Atlantic Star before delivery.
8.5 Any and all costs incurred pursuant to inspections, and the lodging and travelling expenses of the Buyer's representative shall be borne by the Buyer.
8.6 Technical Advises
Our technical advises are given according to our best knowledge and experience. Buyer is obliged to apply due diligence in verifying applicability of our advice to his special conditions of production or application. Concerning our technical advises, which are given free of charge, we will only be liable for damages caused by gross negligence or deliberate acts from our part or by our lawful representatives or auxiliary persons. Unless intentional violation of contract has been proven, we will only be liable for damages that occur foreseeable and typically.
9. Liability clause
Liability for damages is strictly limited to the provisions made herein in paragraphs 5,6 and 7, regardless of their nature, particularly with regard to damage claims arising from fault at closure of contract, default at performance of contract or torts according to § 823 ff of the German Civil Code.
Claims for damages due to impossibility or incapability remain unaffected. The same goes for liabilities that are imperative according to the provisions of the German Product Liability Law. Exclusion or limitation of from our side also includes exclusion or limitation of liability of our employees, representatives and auxiliary persons.
10. Miscellaneous Clauses
Place of execution and place of venue is Munich, Germany. We reserve the right to sue at buyer's place of business. These General Terms and Conditions of Sales, as well as all our business relations with our clients, are governed exclusively by the Laws of the Federal Republic of Germany. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressively excluded. Please note that some of our goods might require exportation license under German law or might be subject to export restrictions of the USA or under the Nonproliferation treaty. These provisions are to be observed by the buyer in case of sale or exportation of the goods.
11. Salomonic Clause
Should one of the clauses above or part of one of the clauses above be legally invalid, validity of the other clauses of these General Terms remains unaffected.
Atlantic Star is entitled to make use of this reservation of ownership without intervention of the courts by collecting the goods from the buyer at any time.
7.1 The buyer, being an entrepreneur in the definition of the German Commercial Code, shall examine the merchandise as required by German law, checking the goods in every aspect, and determine if merchandise is suitable for the intended purposes, if necessary by running appropriate tests. Claims will only be accepted if we are informed immediately upon detection of any fault. In the case of hidden faults claims must be made within 3 month of delivery of Goods. If buyer is neither a entrepreneur nor statutory person as defined by the German Commercial Code, is also required to examine the merchandise and run appropriate tests, if necessary. Claims will only be accepted if we are informed no later than two weeks after receipt of merchandise, or within 3 month in the case of hidden faults. If any valid claim of faulty merchandise is made, we are obliged to either replace the merchandise free of charge or repair it, the choice being at our sole discretion. Buyer may chose reduction of price or cancellation of contract, should our efforts fail. In case of lack of a warranted property of the merchandise, we shall be liable for damages on the grounds of noncompliance as stated in §§ 463, 480 article 2 of the German Civil Code. We will not be liable for any consequential damages caused by any defect or fault in the merchandise, since the object of the warranty is compliance of the delivered merchandise with the contract. The warranty does not cover damages to the goods that were caused by improper handling or storage after the passage of risk or where caused by external factors that were not foreseen in the contract.
7.2 Products containing light emitting diodes (LEDs), used for the reproduction of video images or graphic content, will be free from defects in materials and workmanship under normal use of the goods in the industry for a period of 12 months from the Delivery Date, and spare parts will be free from defects in materials and workmanship under normal use of the spare parts in the industry for a period of 3 months form the Delivery Date.
7.3 “Consumables” is defined as any part(s) of goods or part(s) for use with goods, which part(s) of goods or part(s) for use with goods are consumed during the operation of the goods and which part(s) of goods or part(s) for use with goods require replacement from time to time by a user such as, but not limited to, winch flat cable.
7.4 The warranty for all kinetic lighting fixture products shall only apply in cases of at most 8 hours of uninterrupted use withing any period of 24 hours.
7.5 For the kinetic lighting fixture products containing winch flat cables, a deviating warranty applies: a full warranty is given on parts and cost of labour during period of 3 months after the invoice date. After 3 months the winch flat cable falls into „Consumables” category. The winch flat cable may become defective due to natural wearing, without the customer having any right to claim any form of warranty. During the months 4 through 24 after delivery, AS shall provide free winch flat cables, whereas cost of labour with regard to the replacement of the winch flat cable shall be for the charge of the Bayer. Warranty for motors and transmission is valid for 24 months or 2000 working hours.
7.6 Defects resulting from a failure to observe the installation instructions are not covered by any warranty. Defects resulting from any failure to take precautionary measures to prevent the influence of static electricity are not covered by any warranty either.
7.7 None of the warranties contained herein shall apply to finished goods or spare parts which are sold “as is”, as “second-hand”, as used”, as “demo” or under similar qualifications.
We will be liable according to German law if damages occur due to gross negligence or deliberate acts by us, our lawful representatives or auxiliary persons. If the violation of contract was not caused by an intentional act, liability will be limited to foreseeable and typical damages. Furthermore, we will be liable according to German law should we deliberately violate any essential duty under the contract.
Any further liability is excluded, expressively for any kind of damages that occur on anything or in any way other than on the delivered merchandise itself. Binding provisions of the German Product Liability Law remain unaffected.Our contracts are governed exclusively by German Warranty and Product Liability laws. The application of any law other than the Product Liability Law of the Federal Republic of Germany is expressively excluded.
8. Acceptance testing.
8.1 If an acceptance testing procedure is provided for in the Contract, an acceptance testing shall be carried out, after completion of manufacture and before delivery of the Products, at the premises of Atlantic Star, within a maximum period of fifteen (15) calendar days from the date of issuance of the written notice for acceptance testing sent by Atlantic Star. Any acceptance testing will be at the expense of the Buyer and performed in accordance with the Atlantic Star standard testing procedures then in force.