General Terms and Conditions of Sale of Lite+Fog GmbH

  1. Scope of application, deviating conditions
    1. These General Terms and Conditions of Sale and Delivery (hereinafter referred to as "GTC") shall apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (hereinafter referred to as "Customer" or "Ordering Party"), i.e. natural or legal persons who, when concluding a legal transaction, act in the exercise of their commercial or independent professional activity. These GTC do not apply to consumers. 
    2. These GTC apply exclusively to the business relationship with our customers, including information and advice. Any deviating general terms and conditions of the customer are hereby expressly rejected. They shall only apply if and insofar as we expressly acknowledge them in writing. As a matter of principle, Lite+Fog GmbH expressly declares its willingness to negotiate deviating terms and conditions. Individual agreements made with the buyer in individual cases (including collateral agreements, supplements and amendments) shall, in any case, take precedence over these Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
    3. These GTC shall also apply to all future transactions with the Purchaser insofar as they are legal transactions of a related nature. 
    4. Our GTC shall apply instead of any general terms and conditions of the customer even if, according to these, the acceptance of the order is provided for as unconditional acceptance of the general terms and conditions, or we deliver after the customer has pointed out the validity of his general terms and conditions, unless we have expressly waived the validity of our GTC in writing. By accepting our order confirmation, the customer expressly acknowledges that it waives its legal objection derived from the General Terms and Conditions.
  2. Conclusion of the contract
    1. Our offers are subject to change unless they are expressly marked as binding or contain binding commitments. They are merely invitations to the customer to place orders. A contract is only concluded in current business transactions when we confirm the customer's order in writing or in text form (i.e., by fax or e-mail).
    2. Our order confirmation determines the scope of the performance of the contract. 
    3. We reserve the right to make changes to the design or form during the delivery period, which are due to improvements in technology or to requirements of the legislator, provided that the delivery item is not significantly changed and the changes are reasonable for the customer.
    4. All agreements, ancillary agreements, assurances and amendments to the contract must be in writing. Verbal amendments to the contract or additions to the contract are void. 
  3. Performance success, warranty
    1. Lite+Fog does not guarantee any particular success of a crop planting, as with all natural products, depending on various technical and environmental factors beyond the control of Lite+Fog GmbH. 
    2. The customer's warranty rights presuppose that he has duly fulfilled his obligations to inspect and give notice of defects owed under § 377 of the German Commercial Code (HGB). Foreign customers are also obliged to inspect the delivered goods immediately for obvious damage and report the damage with a written report. A comprehensible description of the damage and photographic documentation must accompany the damage report. The damage report and the documentation shall be sent by the e-mail specified in the order confirmation. 
    3. Claims for defects shall become statute-barred 12 months after delivery of the goods we supplied to our customer. The statutory limitation period shall apply to claims for damages in the event of intent and gross negligence and in the event of injury to life, limb and health based on an intentional or negligent breach of duty by the user.
    4. Suppose, despite all due care, the delivered goods have a defect already present at the time of the risk transfer. In that case, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We must always be allowed to remedy the defect at least twice within a reasonable period. Claims under a right of recourse shall remain unaffected by the above provision without restriction.
    5. If the supplementary performance fails, the customer may withdraw from the contract or reduce the remuneration, irrespective of any claims for damages. 
    6. Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear as well as in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, defective construction work, unsuitable building ground, suspension or means of transport or as a result of special external influences which are not assumed under the contract. If the purchaser or third parties carry out improper repair work or modifications, there shall be no claims for defects and the resulting consequences.
  4. Commissioning of third parties
    1. Lite+Fog mostly depends on third parties' cooperation for development, installation and commissioning. Lite+Fog will name these companies to the purchaser. 
    2. The commissioning of a third party, as this is not already included in the contractor's offer, is only permissible with the client's prior written consent, as this is not a company affiliated with the contractor. The Client may only refuse its consent for a good cause
  5. Prototypes
    1. Lite+Fog also offers to supply initial prototypes in connection with its service. Prototypes are products for which no specification or agreement on a specification exists, delivered for testing purposes, defined as such in the respective offer or in the contractor's order confirmation, or designated as prototypes by both parties as parties.
    2. If the service includes the creation of prototypes, the technical specifications defined in Lite+Fog's offer shall be understood as non-binding target values. Lite+Fog may deviate from these values if the creation would otherwise be technically impossible.
    3. Prototypes are provided "as is" and are used for the customer's internal product development. They are intended solely for trials and internal demonstrations and are not intended for integration into marketable products. The prototypes are used exclusively within the scope of the customer's product development and at the customer's own risk. Prototypes are handed over solely for testing purposes and to the exclusion of any warranty or liability. They still need to be finally developed or finally tested models. Lite+Fog does not assume any warranty or liability for the correctness of the technical data on which the offer is based, their completeness or the prototype's functionality.
    4. Any liability of Lite+Fog arising from or in connection with the provision of prototypes is excluded. This shall not apply, however, if Lite+Fog has fraudulently concealed a defect or has assumed a guarantee for the quality of the performance, for liability arising from intent or for injury to body, life, limb or health and for claims of the client under the Product Liability Act or comparable protective laws.
  6. Customer Obligations
    1. The Customer must promote the project's success in every phase through active and appropriate cooperation. In particular, he shall provide Lite+Fog with the information required for the proper execution of the project, in particular plant and application data, documents and data, measured values, computer programs and other aids and, if necessary, grant Lite+Fog's employees access to his business premises and facilities during business hours, insofar as this is required to achieve the purpose of the contract.
    2. If the client does not fulfil his duties to cooperate and Lite+Fog is, therefore, unable to complete the project or parts thereof within the agreed period, the period agreed by the parties for the project shall be extended accordingly. Lite+Fog may demand compensation for its expenses due to the Client's failure to cooperate.
    3. The customer may only use prototypes to test their properties and performance in interaction with other hardware components in his operation and to examine their possible usability in/with his products. Any further use is not permitted. Lite+Fog does not grant the customer any further rights to the prototype or any intellectual property rights, know-how, inventions and ideas embodied therein. The customer is not entitled to apply for his industrial property rights to these prototypes based on his findings from the tests with the prototypes or to grant third parties rights to them.
    4. The customer undertakes not to use the delivered equipment and prototypes for purposes that are prohibited by law or unlawful at the place of delivery. In case of unlawful use, the customer shall indemnify Lite+Fog from any claims by authorities, courts and other third parties. Lite+Fog is entitled to stop work and deliveries at any time in case of infringement without the customer being entitled to compensation.
  7. Secrecy, confidentiality
    1. We reserve the property rights and copyrights to all documents provided to the purchaser when placing the order - also in electronic forms - such as calculations, drawings, etc. These documents may not be made accessible to third parties unless we give the purchaser our express written consent. These documents may not be made accessible to third parties unless we give our express written consent. If we do not accept and confirm the order within 30 days, these documents must be returned to us immediately upon the expiry of this period.
    2. Confidentiality is agreed in principle concerning all written or oral information, and know-how exchanged and disclosed in connection with the respective legal transaction and visits to Lite+Fog's offices, regardless of whether such information and know-how was disclosed knowingly or inadvertently.
    3. Lite+Fog reserves the right to provide for a waiting period in the order confirmation during which the delivered equipment may not be inspected by third parties without these, in turn being obliged by the orderer to maintain secrecy. This provision serves Lite+Fog to protect its industrial property rights.

  8. Prices and payment
    1. Unless otherwise agreed in writing, our prices are ex-works excluding packaging and value-added tax at the applicable rate. Costs of packaging shall be invoiced separately. The invoice can be shown without VAT in the reverse charge procedure for foreign customers, provided this is requested on the order, and a tax identification number is given.
    2. Payment of the purchase price shall be made exclusively to the account specified in the order confirmation. The deduction of a cash discount is only permissible with a special written agreement.
    3. Unless otherwise agreed, the following payment terms apply
      50% with the order (down payment),
      30% upon notification of readiness for delivery,
      10% after commissioning and
      10% after acceptance.
    4. The deposit with the order is due immediately.  
    5. Agreed payments and further instalments are due 14 days after the respective payment stage has been reached, unless a longer payment term has been agreed.
    6. Payment delays entitle Lite+Fog to charge interest on arrears of 10%/year on the amount due after exceeding the deadline by more than 14 days. 
    7. Lite+Fog is entitled at its reasonable discretion (§ 315 BGB) to unilaterally increase the prices for our deliveries and services in the event of an increase in manufacturing, material and/or procurement costs, wage and ancillary wage costs, social security contributions as well as energy costs and costs due to legal requirements, environmental regulations, currency regulations, changes in customs duties and/or other public charges, if these directly or indirectly influence the costs of our contractually agreed deliveries and services and increase them by more than 5% and if there are more than 4 months between conclusion of the contract and delivery/service.
      Lite+Fog undertakes to prove the price increases to its purchasers. As mentioned above, an increase in the sense is excluded as far as the cost increase of any or all of the factors mentioned above is offset by a cost reduction of other factors concerning the total cost burden for the delivery/service (cost netting). Suppose the cost as mentioned above factors are reduced without the cost reduction being offset by an increase in the cost mentioned above factors. In that case, the cost reduction shall be passed on to the customer as a price reduction. Suppose the new price is 20% or more above the original price due to our aforementioned right to adjust prices. In that case, the customer shall be entitled to withdraw from contracts not yet fully performed concerning the part of the contract not yet performed. However, he may only assert this right immediately after notification of the increased remuneration.
  9. Delivery time and delay in delivery
    1. The start of the delivery period we stated presupposes the timely and proper fulfilment of the purchaser's obligations. This applies in particular to all structural prerequisites, connections or facilities required to install Lite+Fog's equipment insofar as the orderer has taken over as agreed. The defence of non-performance of the contract remains reserved.
    2. Delivery and/or performance periods shall commence upon receipt of our order confirmation by the customer, but not before all details of the execution of the order have been clarified and all other prerequisites to be fulfilled by the customer have been met, in particular agreed down payments or securities have been paid in full. The same applies to delivery and/or performance dates. If the customer has requested changes after the order has been placed, a new reasonable delivery and/or performance period shall begin with our confirmation of the change.
    3. Specified delivery times are non-binding unless a firm deal has been agreed. 
    4. In the event of a delay in delivery not caused by us intentionally or through gross negligence, we shall be liable for each completed week after the 5th week of delay within the framework of a lump-sum compensation for delay in the amount of 1% of the delivery value, but not more than 5% of the delivery value.
    5.  Further legal claims and rights of the purchaser due to a delay in delivery remain unaffected.
  10. Shipping
    1. Unless otherwise agreed in writing, the goods ready for dispatch shall be handed over by us to the forwarding agent or the customer's carrier at our Berlin factory or a factory of one of our suppliers following INCOTERM EXW (ex-works).
    2.  If dispatch is delayed at the request or through the customer's fault, we shall store the products at the expense and risk of the customer. In this case, the day of the planned dispatch is equal to the dispatch.
    3.  Delivery deadlines shall be deemed met when the customer is notified that the goods are ready for dispatch.
  11. Transfer of risk
    1. If the goods are shipped to the customer at the customer's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch, at the latest upon leaving the factory/warehouse. This applies regardless of whether the goods are shipped from the place of performance or who bears the freight costs.
    2. If the shipment is delayed because we exercise our right of retention as a result of the customer's default in payment in whole or part or for any other reason for which the customer is responsible, the risk shall pass to the customer at the latest from the date of notification of readiness for shipment.
    3. The purchaser shall assume the statutory disposal and reporting obligations for packaging. The orderer may return the packaging to Lite-Fog at his own expense.

  12. Retention of title
    1.  We retain title to the delivered item until full payment of all claims arising from the delivery contract. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to reclaim the object of sale if the purchaser breaches the contract.
    2.  The purchaser must treat the purchased goods carefully if ownership still needs to pass to him. In particular, when Lite+Fog delivers complete systems, the orderer must insure them at replacement value against theft, fire and water damage at his own expense.  If maintenance and inspection work has to be carried out, the Ordering Party shall carry this out in good time at its own expense. As long as ownership has yet to be transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties.

  1. Miscellaneous and final provisions
    1.  This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
    2.  The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our registered office in Berlin, Germany or Dresden, Germany. 
    3.  All agreements made between the parties to execute this contract are set out in writing in this contract.