1. Scope of application
These general terms and conditions (“T&C”) of ewo Deutschland GmbH (“ewo”) are applicable only to businesses/traders (clients) pursuant to§ 310, para. 1 German Civil Code. They govern govern all master supply contracts and/or individual sales contracts concluded with clients within Germany and abroad, as well as deliveries, services and offers of ewo, unless otherwise agreed in a particular case in express and written form. The application of general terms and conditions, which conflict with these T&C, or of other terms and conditions of the client, which differ from these T&C, is expressly excluded, unless otherwise agreed in express and written form between the parties. The fulfilment of the contract by ewo cannot be deemed as acceptance of terms and conditions of the client, which differ from these T&C.
2. Conclusion of a contract and suspensive condition
2.1. A legally binding contract is deemed to be concluded once the offer accepted in writing by the client is received by ewo, even if sent by simple e-mail. Without prejudice to the following paragraph, any other possibility to conclude a contract is expressly excluded as well as the conclusion of a contract by appointed dealers without appropriate written power of attorney.
Should the client purchase products from ewo, which have been specifically produced for the client and/or which, compared to standard products, have been modified according to the requests received by the client (so-called “individual products” or “modified standard”), the conclusion of the contract is subject to the suspensive condition that the technical project drawings made by ewo are approved in writing by the client. In such a case, the conclusion of the contract only occurs once the confirmed project drawing along with the offer pertaining to the drawing confirmed by the client is received by ewo.
3.1. Unless otherwise specified in writing, delivery is carried out FCA warehouse/Kurtatsch/Cortaccia (South Tyrol – Italy) (Incoterms 2020). Place of performance of the delivery is Kurtatsch/Cortaccia. The risk passes to the client, once the goods to be delivered are handed over to the person carrying out the transport or once the goods leave ewo’s warehouse in order to be delivered. The provision contained in the preceding sentence shall also apply if the transport was paid or organized by ewo. Should delivery be delayed for reasons attributable to the client, the risk passes once the communication, that the products are ready for delivery, has been received by the client. In such a case, ewo shall be entitled to claim compensation for any damages, including additional expenses, suffered.
3.2. Unless specifically and in writing accepted as binding, all dates of delivery are considered to be indicative and non-binding. The dates of delivery indicated by ewo imply that ewo itself has been timely supplied and that the client fulfils all its obligation in a timely and complete manner. Delays on ewo’s side do not entitle the client to terminate the contract for breach, to withdraw from the contract or to advance claims for damages or any other claims against ewo. ewo shall not be liable, even in case of binding delivery terms or binding terms for performance, for any delays in the delivery or the performance of the contract, except in cases of gross negligence or wilful intent of ewo.
In any case, ewo shall not be liable for delays in the delivery or the performance of the contract caused by force majeure or other events, which are not attributable to ewo and which do render the delivery/performance not only temporarily significantly more onerous or impossible, in particular strikes, lock-outs or official orders. This liability exemption shall also apply if such events as mentioned in the previous sentence concern suppliers of ewo or their subsuppliers.
In case of delays of more than 60 days, the client has only the right to withdraw from the contract for the remaining part of the contract not yet fulfilled, without having the possibility to advance claims for damages or any other claims against ewo.
The client shall take delivery of the products on the date communicated by ewo and the client shall have no right to oppose to or refuse partial deliveries by ewo. If the delivery is not taken, ewo is entitled, after a period of eight days has lapsed, to charge the purchaser with all related costs for the storage of the products (€ 35,00 per day and palette). Should ewo withdraw from the contract for failure by the client to take delivery, the contractual penalty pursuant to art. 10 is due and payable in addition to the aforementioned storage costs until the withdrawal from the contract. Alternatively, ewo shall also have the right to request the immediate payment of the agreed price, even if not yet due, should the client not take delivery of the products.
The client shall not be entitled to withdraw from the contract in case of excessive onerousness arisen after the conclusion of the contract and concerning the performance of its contractual obligations, even if the onerousness is caused by unforeseeable or exceptional circumstances.
Upon commencement of the production of the products ordered by the client and in any case the latest upon delivery of the products to the carrier or upon failure to take delivery by the client for whichever reason, the payment obligation of the client does not even lapse in cases of force majeure concerning the client.
ewo is entitled, at its discretion, to make partial deliveries.
4. Price and payments
4.1. Prices detailed are FCA Kurtatsch/Cortaccia (Incoterms 2020) unless otherwise agreed, net of VAT and net of other taxes and charges. Packaging and freight are not included in the net price. Further deliveries, works and services not included in the offer are charged separately. Unless otherwise agreed in writing between the parties, the client shall make an advance payment of 50% upon conclusion of the contract pursuant to art. 2. The payment of the remaining amount shall be due once the products are ready for delivery. Payment is to be made within 30 days date of invoice, unless otherwise agreed. ewo shall have the right, even after conclusion of the contract, to unilaterally change the payment conditions for clients which are subject to credit limits, in order to take the credit limits and their possible exceeding into account. In the case of delayed payment, interest on arrears is charged in accordance with § 288, para. 2 German Civil Code. Suspension of payments or offsetting of amounts, for whichever reason, shall be prohibited (solve et repete). Without any specific agreement, no discounts shall be applicable. In case of delayed payment, also with regard to partial payments or advance payments, any agreements regarding discounts shall be automatically voided and revoked. Client’s payments shall be deemed effected once the corresponding amount has been credited on ewo’s bank account.
Should the financial situation of the client worsen after the conclusion of the contract (e.g. credit rating downgrade), ewo shall have the right to request immediate payment of all outstanding amounts, regardless of their due date. In such a case, extension of payments already granted or any agreed payment terms shall be deemed revoked.
4.2. The client shall only be entitled to offset any payments due to us with any claims against us, if the client’s claims are not disputed or have been definitely awarded in a final and non-appealable judgment. A right of retention shall only exist for counterclaims resulting from the same contractual relationship. No right of retention shall exist in relation to time-barred warranty claims.
5. Retention of title
5.1. Until full payment of the goods/services is received, the following rights are granted to ewo as collateral, which will be released, upon request but at ewo’s own discretion, if the value of the collateral effectively exceeds the value of the claim by more than 20%. The goods remain the property of ewo. Processing or transformation shall always occur in favour of ewo as producer, but without any obligation for ewo. Should (co-)ownership rights of ewo be exempt by way of union, the parties already agree that the (co-)ownership rights of the client shall pass to ewo in proportion to the value of ewo’s claim (invoice value). The client shall safekeep and store goods (co-)owned by ewo free of charge. Goods, upon which ewo has (co-)ownership rights, shall be henceforth defined as “goods under retention of title”. The client shall be entitled to process and sell the goods under retention of title in the ordinary course of business, unless in default with its obligations. Pledges or transfer of the goods as security or collateral shall not be admissible. The claims concerning the goods under retention of title resulting from their sale or based on other legal grounds (insurance, tort) shall be already fully assigned now as collateral from the client to ewo. ewo irrevocably authorizes the client to collect the claims assigned to ewo in its own name and for its own account. This authorization may be immediately revoked, if the client does not orderly fulfil its payment obligations towards ewo. Should third parties seek to claim rights on the goods under retention of title, in particular in case of execution, the client shall inform the third parties about the ownership rights of ewo and shall immediately notify ewo in order for ewo to assert its ownership rights. If and to the extent to which the third party shall not able to reimburse to ewo any judicial or extrajudicial costs accrued in this regard, the client shall be liable towards ewo. Should the client not act in accordance with the contract – in particular in case of delayed payment – ewo shall be entitled to redeem the goods under retention of title or to request the assignment of the client’s claims for restitution against third parties. The redemption of goods as well as the execution levied by ewo upon the goods under retention of title cannot be regarded as withdrawal from the contract.
6. Warranty and limitation of liability
6.1. The statute of limitations for warranty claims is 12 months from their statutory beginning. The same statute of limitations apply to recourse claims of the vendor pursuant to § 445a German Civil Code, if the last contract in the supply chain is not a sale of consumer goods. For claims based on the law of product liability and in cases of wilful intent or fraudulent non-disclosure of a defect the statutory terms apply.
6.2. ewo does not warrant, that the products are suitable for a specific use by the client.
The warranty encompasses only product failures caused by proven defects in materials, construction, or fabrication as well as failure rates that exceed the nominal failure rate and a maximum average operation of 4,200 hours per year is implied.
The warranty issued is valid only on condition that the products are used in accordance with the prescribed product and use specifications (datasheet), and that they were installed and put into operation professionally, according to the provisions outlined in the manual for overvoltage protection of LED fixtures (ewo 10 February 2017). Thresholds for temperatures, voltages, and currents must not be exceeded. The product must not be subjected to any mechanical loads not in line with its destination. The failure of individual or several LEDs in LED modules is not covered under this warranty if the function of the entire assembly is not significantly affected and if a specific, unavoidable nominal failure rate is not exceeded. For lighting units, the nominal failure rate is 0.2%/1,000 hours of operation with reference to the specification values (datasheet). A decrease in luminous flux in LED modules is considered normal up to a level of 30% within 50,000 hours of operation and consequently is not covered under this warranty. Any loss of luminous flux as a result of pollution or incorrect maintenance of the lamps is not covered under the warranty.
6.3. The right by the client to invoke the warranty is subject to the compliance of the client with the examination and notification requirements set forth in § 377 German Commercial Code (HGB). The warranty claim shall be communicated in writing to ewo via e-mail to firstname.lastname@example.org immediately after the alleged defect has appeared. Defects, which are not obvious, shall be notified by the client to ewo within 14 days after the alleged defect has been found. Objected products must be sent to ewo for examination within one month. In the event that no defect is established in the course of such examinations or should be established that the warranty is not applicable, ewo has the right to claim reimbursement of the costs borne in the course of the examinations in order to determine the cause of the defect. Components or products replaced by ewo under the warranty become the property of ewo. If the client, after notifying the defect, has received a replacement part, but has not complied within the period prescribed with the obligation to send the defective product to ewo, as set forth in § 439, para. 5 and § 635, para. 4 German Civil Code, ewo shall be entitled to claim compensation.
6.4. Claims of the client for price reduction are excluded, claims for damages are subject to the limitations pursuant to art. 6.6.
Only if the client is entitled to claims under this agreement that extend beyond the mere delivery of a replacement product and are arising from any mandatorily applicable and binding legal provisions, the client shall provide advance written documentation of this to ewo, submitting written cost estimates for the replacement and the installation of replacement products on site or for any on-site repair works and providing ewo with the opportunity, in writing, to either carry out the replacement, installation or repair itself or to commission a third party to do so. In case of non-compliance with the above provisions, the client shall lose all claims regarding the reimbursement of any costs.
Replacement products or repair components may contain new or recycled materials that are equivalent or superior to new products or parts in terms of performance and reliability. The functionality of all replacement products and repair components is equivalent or superior to that of the product to be replaced. ewo warrants that all replacement products or repaired products will be free from any material and manufacturing defects for the remainder of the warranty period applicable to the product being replaced or repaired. All other matters shall be governed by the same warranty terms, conditions, scope and exclusions applicable to the original, defective product.
The guarantee shall immediately become void if modifications or repairs are carried out on the goods without prior written consent, or if the goods were improperly installed or installed by an unqualified person. As a result of technical progress as well as of use-related changes in the luminous flux and the colour point of the lighting modules, replacing products may lead to variations of the lighting characteristics (colour temperature or luminous flux) in comparison with the original products. Claims of the client regarding ancillary costs relating to the elimination of defects, in particular costs regarding transport, travel, work and material costs shall be excluded to the extent to which the costs are increased, because the products delivered by ewo have been subsequently moved from the contractually agreed place to another place, unless said movement is in line with the designated use. The same shall apply to recourse claims of the vendor pursuant to to § 445a German Civil Code, if the last contract in the supply chain is not a sale of consumer goods. Costs for installation and de-installation shall be borne by ewo only if the goods have been integrated into other goods or have been attached to other goods in compliance with their nature and designated use and if ewo is responsible for the defect, which has caused the warranty claim. Should any installation be planned in a critical environment - in terms of temperature, moisture or salty air – said installation must first be agreed with ewo. ewo will verify whether special processing or materials are necessary in order to guarantee the product’s longevity in such particular cases. Claims for performance under the warranty shall only be valid if the following cumulative conditions are all fulfilled and if proper evidence for such fulfilment is given, where appropriate in writing only, by the client:
1) The product was used in accordance with the prescribed product and use specifications (datasheet), and was professionally installed and operated.
2) No changes or overhauls (hardware or software) were undertaken without ewo’s written consent.
3) All works have been carried out in accordance with the assembly and operating manual, and their execution has been duly documented.
4) The ratings for temperatures, voltages and currents were not exceeded.
5) Defects were not caused by unforeseen and unforeseeable occurrences, such as fortuitous circumstances and/or force majeure, electrical discharges, lightning or excess voltage, not linked to any defect in the manufacturing process of the product;
6) The product has not been subjected to any mechanical loads not in line with its destination.
7) Installation of the product in a special environment that might impair the product’s longevity was agreed with ewo;
8) The product was fully paid for in accordance with the purchase contract.
9) The warranty claim was communicated in writing to ewo via e-mail to email@example.com within the term indicated under art. 5.3.
10) Where the lighting planning and calculation of the installation was not carried out directly by ewo, the client provides written evidence that such lighting planning and calculations done by himself or by appointed third parties were carried out in full compliance with the prescribed product and use specifications (datasheet).
6.5. Extended warranty to the benefit of final clients:
For all products sold under the „ewo“ trade mark, ewo offers a five year long extended product warranty provided by ewo s.r.l./GmbH, Etschweg 15, 39040 Kurtatsch (BZ) Italy. The same conditions, limitations and liability exemption set forth under this art. 6 shall also apply to the extended product warranty. The extended warranty can be activated by the final client under www.ewo.com/company/guarantee.
6.6. Limitation of liability
ewo shall be liable in case of wilful intent and gross negligence as well as on the basis of mandatory legal liability, in particular according to the law on product liability. Furthermore, ewo shall be liable in case of breach of an essential contractual obligation. Essential contractual obligations are obligations, which according to the contract have to be fulfilled by ewo to achieve the intended purpose of the contract, whose fulfilment render the regular performance of the contract possible and whose fulfilment the client may regularly rely on. The liability for slight negligence shall be limited to foreseeable damages upon conclusion of the contract, unless the damages result from harm to life, body and health. If and to the extent the liability of ewo is excluded or limited, the same applies to its legal representatives, its personnel or servants. The statute of limitations for claims for damages is 12 months from the respective statutory beginning.
7. No- assignment clause
The client shall not assign to any third party the contract and/or claims, including claims for damages, arising out of the contract without the consent of ewo.
8. Right to suspend performance
Should the client not timely and completely fulfil its payment obligations towards ewo, also with regard to partial payments or advance payments, and/or should the client not fulfil any obligations, which are necessary for the performance of the contract, in particular contractual and technical details as well as preparatory works and measures, ewo shall be entitled to suspend the performance of its own contractual obligations until any advance payments have been paid in full and/or until the client has fulfilled all of its obligations. Should ewo suspend performance in application of this clause, the client shall not be entitled to advance claims against ewo for damages or any other indemnity in relation to possible damages caused by the suspension and suffered by the client.
9. Intellectual property and copyright
The conclusion of a contract between the parties shall have no influence, unless otherwise agreed in writing, on ownership and licensing rights regarding trademarks, patents or any other intellectual property rights on the products. All intellectual property rights shall remain with ewo.
Drawings and other documents handed out to the client in the course of contract negotiations, are copyright protected in favour of ewo, remain ewo’s property and can be handed out to third parties only upon previous express and written consent by ewo. If no contract is concluded, all documents have to be immediately returned upon ewo’s request and the client shall not be entitled to retain copies of drawings and documents in any form.
10. Withdrawal from the contract
Apart from the legal provisions, ewo shall also be entitled to withdraw from the contract – possibly after setting a grace period - in case of delays by the client in taking delivery of the products or other important reasons, in particular the commencement of insolvency proceedings against the other contracting party or the dismissal of bankruptcy filings due to lack of assets.
In case of withdrawal from the contract attributable to the client, the client shall be obliged to pay a contractual penalty to ewo amounting to 15% of the gross invoice total, without prejudice to the possibility of ewo to claim further damages.
ewo shall also be entitled to withdraw from the contract in case of delays concerning the payment of any amounts due by the client, possibly after setting an adequate grace period.
Should the client withdraw from the contract – without being entitled – or unjustifiably request the termination of the contract, ewo shall have the choice to either insist on performance of the contract or to consent to the termination of the contract. In the latter case, the client shall be obliged to pay a contractual penalty to ewo amounting to 15% of the gross invoice total, without prejudice to the possibility of ewo to claim further damages.
11. Applicable law - jurisdiction
German law shall be applicable and the application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. Munich, Germany, is the exclusive jurisdiction for legal disputes of any kind.
12. Data protection clause
The parties shall treat personal data in compliance with EU regulation n. 679/2016 and the applicable national provisions.
Any amendment and/or integration of the contract shall only be deemed valid if made by way of a written agreement duly executed by both parties and shall otherwise be considered null and void. The parties expressly exclude that this clause may be amended tacitly or through conclusive conduct.
Should single clauses of these T&C be wholly or partially void, ineffective or inexecutable, the validity of the other clauses shall not be affected.
ewo Deutschland GmbH – June 2020
ewo srl - via dell'Adige 15 - IT-39040 Cortaccia (BZ) - T +39 0471 623087 - firstname.lastname@example.org - P.IVA IT 01603000215