General Terms and Conditions of Optonic GmbH (AGB)
§ 1 Scope of application
(1) These General Terms and Conditions shall apply exclusively and only to entrepreneurs, legal entities under public law or special funds under public law within the meaning of § 310 paragraph 1 BGB (German Civil Code). We shall only recognize terms and conditions of the customer that conflict with or deviate from our terms and conditions if we expressly agree to their validity in writing.
(2) These General Terms and Conditions of Business shall also apply to all future transactions with the Purchaser, insofar as these are legal transactions of a related nature.
§ 2 Offer and conclusion of contract
Insofar as an order is to be regarded as an offer in accordance with § 145 of the German Civil Code (BGB), we may accept it within two weeks. Our offers are subject to change and can be revoked by us up to the time of order confirmation, unless we have bound ourselves for a certain period of time in the offer. Performance data in our offers are to be understood as approximate values and are only binding as such. Changes to the subject matter of the contract by us are permissible insofar as this is reasonable for the customer.
§ 3 Documents provided
We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order, e.g. plans, calculations, drawings, etc. These documents may not be made accessible to third parties unless we give our express written consent to do so. If a contract is not concluded, these documents must be returned to us without delay or (if provided in electronic formats) deletet throughout all data processing and storage systems of the recipient.
§ 4 Prices and Payment
(1) Unless otherwise agreed in writing, our prices shall apply ex Freiburg (Germany), excluding shipping costs, packaging and plus value added tax at the applicable rate.
Costs of packaging will be invoiced separately. Unless otherwise instructed by the Purchaser in writing and in good time, we shall insure the items against damage in transit for the benefit of the Purchaser at the latter's expense.
(2) Payment of the purchase price and all ancillary costs shall be made exclusively to the accounts specified on the invoice. The deduction of a cash discount is only permissible with a special written agreement.
(3) Unless otherwise agreed, the purchase price shall be paid within 10 days of delivery. Interest on arrears shall be charged at a rate of 9 percentage points above the respective base interest rate p.a.. We reserve the right to claim higher damages for default.
(4) Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries made 3 months or more after conclusion of the contract.
§ 5 Offsetting and rights of retention
The Purchaser shall only have the right of set-off if his counterclaims have been legally established or are undisputed. The customer shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 6 Delivery time
(1) The start of the delivery period stated by us shall be understood as an expected delivery date and shall be subject to the timely and proper fulfillment of the Purchaser's obligations. We reserve the right to plead non-performance of the contract.
(2) If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
§ 7 Transfer of risk in case of shipment
If the goods are shipped to the Purchaser at the Purchaser's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser upon dispatch to the Purchaser, at the latest upon leaving the factory or warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance and who bears the freight costs.
§ 8 Retention of title
(1) We reserve title to the delivered goods until full payment of all claims arising from the delivery contract. This shall also apply to all future deliveries, even if we do not always expressly refer to this. The transfer of ownership by way of security or pledging of the goods subject to retention of title is not permitted. We shall be entitled to take back the purchased goods if the customer acts in breach of contract. In case of doubt, the assertion of our reservation of title shall not be deemed a withdrawal from the contract.
(2) As long as the title has not yet passed to the Purchaser, the Purchaser shall be obliged to treat the object of sale with care. In particular, he shall be obliged to insure it adequately at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the Purchaser shall carry this out in good time at its own expense. As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the purchaser shall be liable for the loss incurred by us.
(3) The purchaser shall be entitled to resell the reserved goods in the normal course of business. The Purchaser hereby assigns to us the claims of the customer arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax).
This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing. The customer shall remain authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
(4) The processing or transformation of the object of sale by the customer shall always be carried out in our name and on our behalf. In this case, the purchaser's expectant right to the object of sale shall continue to apply to the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created for us.
(5) We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.
§ 9 Liability for Defects, Notice of Defects and Recourse, Manufacturer's Recourse
(1) Warranty rights of the purchaser presuppose that the purchaser has duly complied with its obligations to inspect the goods and to give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
(2) Claims for defects shall become statute-barred 12 months after delivery of the goods supplied by us to our customer. The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected. Claims for damages due to a defect shall be governed by § 10 below. Our consent must be obtained prior to any return of goods.
(3) If, despite all due care and attention, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall be entitled to remedy the defect three times. We shall always be given the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision without restriction.
(4) If the subsequent performance fails, the Purchaser may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.
(5) 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 and in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating resources or due to particular external influences which are not assumed under the contract. If improper repair work or modifications are carried out by the Purchaser or third parties, there shall also be no claims for defects for these and the resulting consequences.
(6) Claims of the Purchaser for additional expenses for the purpose of subsequent performance arising from the fact that the goods delivered by us have subsequently been taken to a place other than the Purchaser's place of business shall be excluded.
(7) The Purchaser's right of recourse against us shall exist only to the extent that the Purchaser has not entered into any agreements with its customer exceeding the statutory mandatory claims for defects. Furthermore, the aforementioned shall apply accordingly to the scope of the Purchaser's right of recourse against the Supplier.
(8) The customer does not receive any guarantees in the legal sense from us.
§ 10 Liability for Damages
(1) Our liability for breaches of contractual obligations and for tort shall be limited to intent and gross negligence. This shall not apply in the case of injury to life, body and health of the customer, claims for breach of cardinal obligations and compensation for damage caused by delay (§ 286 BGB). In this respect, we shall be liable for any degree of fault. However, as far as damages are concerned which do not result from the injury of life, body and health of the customer, we shall only be liable for the typically occurring damage. Liability in the event of a delay in delivery shall be limited to 0.5% of the value of the delivery for each full week of delay within the framework of a lump-sum compensation for delay, but not more than 5% of the value of the delivery. A prior reasonable setting of a deadline by the Purchaser shall be a prerequisite for the claim.
(2) The aforementioned exclusion of liability shall also apply to slight breaches of duty by our vicarious agents.
(3) Insofar as liability for damages not based on injury to life, body and health of the customer is not excluded for slight negligence, such claims shall become statute-barred within one year beginning with the accrual of the claim or, in the case of claims for damages due to a defect, from the handover of the item.
(4) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
§ 11 Individual and standard software
In addition to the previous provisions, the following is agreed for the delivery of standard and individual software by us.
The Purchaser shall only use data carriers, equipment and other device-specific accessories which we have approved for use by including them in our delivery offer.
The Purchaser shall receive a non-exclusive right to use the software for an unlimited period of time. However, he shall only be entitled to use the software within the purpose of use on which the contract is based. In particular, he shall not be permitted to pass on (in any form whatsoever) or transfer the software, insofar as it is individual software, to third parties for the purpose of exploration, modification or further development. He shall ensure that this agreement is also observed by his employees or third parties.
§ 12 Miscellaneous
(1) This Agreement and the entire legal relationship between the Parties shall be governed by the laws of the Federal Republic of Germany, excluding 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 shall be our registered office, unless otherwise stated in the order confirmation.
(3) Amendments and supplements to this contract must be made in writing. This shall also apply to amendments to this written form clause. Verbal collateral agreements have not been made.
(4) Should individual provisions of this contract be or become invalid or contain a loophole, the remaining provisions shall remain unaffected.