V. Transfer of Risk
1. Transport shall be eff ected at Buyer‘s risk.
2. Transfer of risk shall take place in the moment of handing the goods over to a forwarder or
of the collection of goods, even in case of deliveries free of charge. Upon request and at the
expense of Buyer Top Light GmbH & Co. KG shall insure goods against common transport risks.
3. In case of a delay in delivery (sending, receiving or collecting goods) required by Buyer for
good reason, or if Buyer is not able to accept the goods for any other reasons, transfer of risk
shall take place irrespective of the whereabouts of the goods.
VI. Acceptance
1. Buyer is not entitled to refuse acceptance of (partial-) deliveries for minor defects.
2. Transport damage is to be reported to the forwarder at the time of delivery (qualifi ed
acceptance of goods). Top Light GmbH & Co. KG cannot be held liable for transport damages
(sale by delivery to a place other than the place of performance). All goods delivered are to be
inspected regarding quantity and condition within 5 working days from date of receipt. Details
of damages or defaults are to be reported to Top Light GmbH & Co. KG in writing. Damages or
defaults are to be reported prior to the goods or parts thereof being processed or incorporated
into components. Should Buyer fail to report, according to the provisions stated above, dama-
ges and defaults shall not be recognised by Top Light GmbH & Co. KG and shall be considered
as transport damages.
3. Return shipments – irrespective of reason – are to be announced within a period of 14 days
and all the reasons submitted in writing. Buyer shall obtain a return shipment number and be
obliged to register the shipment under the number indicated; otherwise Top Light GmbH & Co.
KG is entitled to refuse to accept any such shipment.
VII. Defects
Top Light GmbH & Co. KG shall be liable for defects as follows:
1. Condition of goods is defi ned by the respective product description exclusively. In the case of
dimensions where no tolerance is specifi ed, the “medium” degree of accuracy as defi ned by
DIN 7168 shall apply as a matter of principle.
2. In case of claims for damages resulting from defects, the goods subject to claims are to be re-
turned to Top Light GmbH & Co. KG duly packed and protected from damage during transport.
If Top Light GmbH & Co. KG has a backhaul packaging, Buyer shall be obliged to request and
use it.
3. Top Light GmbH & Co. KG shall bear the costs related to inspection of goods and supple-
mentary performance, in particular cost of transport, labour and material (not assembly and
disassembly costs), if a claim proves to be justifi ed. However, if a Buyer’s claim proves to
be unjustifi ed, Top Light GmbH & Co. KG is entitled to charge the costs incurred at Buyer’s
expense.
4. Top Light GmbH & Co. KG shall mend, replace or provide, free of charge, those goods or
services which prove to be defective, at it deems best, provided that the cause of defect had
existed prior to the transfer of risk.
5. Top Light GmbH & Co. KG cannot be held liable for any subsequent damage.
6. Claims for supplementary performance shall elapse after a period of 12 months, commencing
with the fi rst day of the statutory limitation; same applies to cancellations and reductions. This
period shall not apply to cases where contrasting regulations in accordance with §§ 438 clause
1 No. 2 (buildings and building equipment), 479 clause 1 (right of recourse) and 634 a) clause
1 No. 2 (construction defects) of the German Civil Code award longer statutory limitation in
case of intentional action, deceit and fraudulent concealment of defects and noncompliance
with factual nature. Statutory regulations on suspension of statute of limitations, suspension
and reinstitution of statutory periods remain unaff ected.
7. Buyer’s report of defects is to be submitted immediately and in writing.
8. In case of a claim for damages resulting from defects, a retention of payments on the part of
Buyer shall be tolerated insofar as they remain within a reasonable proportion of and relation
to the defect occurred. Buyer shall be entitled to retain payments only if the defects are
acknowledged or established by legal institutions. Buyer is not entitled to resort to the right of
retention if the claim for damages becomes statute-barred. If the claim for damages proves to
be unjustifi ed, Top Light GmbH & Co. KG is entitled to claim compensation from Buyer for any
costs incurred.
9. Claims for damages resulting from defects shall be considered invalid in case of minor deviati-
on from the product nature agreed upon, insignifi cant limitation of functionality or use, natural
tear and wear or damage occurred after the transfer of risk, as a consequence of faulty or negli-
gent treatment, excessive use, improper means of treatment or processing, or special external
infl uence beyond the provisions of this contract. Furthermore, claims for damages resulting
from defaults shall not be considered in case of improper modifi cations or maintenance being
carried out by Buyer or third parties, nor for any defaults resulting from any such action.
10. Claims for damages resulting from defects and raised by Buyer based on material defects shall
not be considered. This shall not apply in cases of fraudulent concealment of defects, noncom-
pliance regarding nature of product guarantee, damage to a person’s life, body and health and
in case of gross or intentional violation of duties by Top Light GmbH & Co. KG. A reversal of the
burden of proof to the detriment of Buyer shall remain unaff ected by the provisions stated
above. Any claims diff ering from those stated in this clause 7 raised by Buyer and based on
defects, shall not be considered.
VIII. Industrial and Intellectual Property Rights; Legal Defects
1. Unless otherwise expressly agreed upon, Top Light GmbH & Co. KG shall be obliged to eff ect
deliveries free of industrial and intellectual property rights of third parties (hereafter: property
rights) in the country of delivery only. Should a third party raise legitimate claims against Buyer
for breach of property rights, based on contract related deliveries eff ected by Top Light GmbH
& Co. KG, Buyer shall be entitled to hold Top Light GmbH & Co. KG liable within the certain
periods stipulated in Article VII clause 6, as follows:
a) Top Light GmbH & Co. KG shall, at its discretion and at its expense, either acquire right of use
for the respective delivery, or modify it, insofar as to avoid infringing property rights, or replace
the delivery. Should this not be feasible for Top Light GmbH & Co. KG within reasonable terms
and conditions, Buyer shall be entitled to statutory cancellation and additional reductions.
b) Obligations of Top Light GmbH & Co. KG as regards compensation of Buyer for damages, are
governed by Article XI.
c) All obligations of Top Light GmbH & Co. KG stated above shall be eff ective only if Buyer informs
Top Light GmbH & Co. KG immediately and in writing of any claims raised by third parties, if
Buyer does not acknowledge claims of infringement and if Top Light GmbH & Co. KG reserves
the right to recourse to all means to ward off such claims or to settlement negotiations. Should
Buyer interrupt or abandon deliveries for reasons of mitigation of damages or for any other
good reason, he shall be obliged to communicate to the third party the fact that abandoning or
interrupting deliveries does not imply an acknowledgement of infringement of property rights.
2. All claims of Buyer shall be barred, should he be responsible for infringement of property
rights.
3. In addition, claims of Buyer are barred should infringement of property rights result from
specifi c instructions of Buyer, from application of deliveries not envisaged by Top Light GmbH
& Co. KG or from Buyer’s modifying or using the deliveries in combination with products not
delivered by Top Light GmbH & Co. KG.
4. In case of infringement of property rights in accordance with Buyer’s claims governed by clause
1 a), provisions of Article VII No. 5, 6, 10 shall apply respectively.
5. Other legal defects are governed by provisions of Article VII respectively.
6. Any further claims of Buyer, or other than those covered by Article VIII, raised against Top Light
GmbH & Co. KG and its representatives for any legal defects, are barred.
IX. Impossibility; Contract Adjustment
1. In case of failure of delivery, Buyer shall be entitled to claim compensation for non-perfor-
mance, unless Top Light GmbH & Co. KG provides evidence that the non-performance is bey-
ond its control. However, the total amount of any such compensation claim is limited to 5% of
the value of the item subject to non-performance of delivery. This restriction shall not apply in
case of intentional or gross negligence or in case of damage to a person’s life, body or health,
in case of product liability act or any other case of statutory liability; a reversal of the burden
of proof to the detriment of Buyer shall remain unaff ected by the provisions stated above. The
right of Buyer to cancel the contract remains unaff ected.
2. Should the economic importance or the content of a delivery have to be modifi ed, or should it
infl uence the activities of Top Light GmbH & Co. KG substantially as a result of unforeseeable
circumstances in accordance with the provisions of Article IV clause No. 3, the contract shall
be modifi ed accordingly, acting in good faith. Should such a modifi cation not be economically
justifi able, Top Light GmbH & Co. KG shall be entitled to cancel the contract. Should Top Light
GmbH & Co. KG intend to make use of this provision, it shall inform Buyer accordingly and
immediately upon understanding the amplitude of the situation, even if a delay in deliveries
has been agreed upon with Buyer.
X. Warranty for Top-Light Mirrors
We guarantee to our customers that the coating of our mirrors, without extraneous cause, will not
become stained or dull for the period of one year, starting from the day of delivery. In case of legiti-
mate complaint, only a replacement can be demanded. Entitlement prescribes after the expiration
of one year at the latest. For the rest, our terms of sale and delivery are valid.
A warranty claim only exists under the following conditions:
- Indoor usage according to regulations, but not in indoor riding locations, swimming pools,
