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Article I: General terms
1. Only these General Conditions of Sale apply to the legal relationships between Optimel and the Buyer in connection with deliveries and/or services from Optimel (hereinafter Deliveries). Any general business terms of the Buyer shall only apply, insofar as Optimel has consented to them explicitly in writing. The mutually agreed written declarations are decisive to the scope of Deliveries.
2. Illustrations, drawings, weights and dimensions are only approximate, unless they have been explicitly designated as binding.
3. Optimel reserves its unlimited rights of ownership and proprietary rights to use quotations, drawings and other documents, referred to hereinafter as Documents. The Documents may not be made available to third parties without Optimel's prior consent, and should be returned immediately upon request, should the order not be placed. Clauses 1 and 2 apply analogously to documents of the Buyer, although these may be made available to third parties, who Optimel has by chance authorised to provide deliveries/services.
4. The Buyer has the non exclusive right to use standard software and firmware in unmodified form with the agreed service features and on the approved devices. The Buyer may produce a back-up copy of the standard software without explicit agreement.
5. In case of doubt, statements by Optimel in connection with the contract, e.g. performance specifications, reference to DIN standards, do not constitute any acceptance of a guarantee. For the avoidance of doubt, only explicit, written statements by Optimel about the acceptance of a guarantee are authoritative.
6. Part deliveries are permitted, provided they are reasonable for the Buyer.
7. The term "compensation claims" in these General Conditions of Sale also encompasses any claims for reimbursement of futile expenditure.
Article II: Prices, payment terms and offsetting
1. The prices are ex works, excluding packaging and the applicable rate of Value Added Tax.
2. If Optimel has undertaken the installation or assembly and nothing has been agreed to the contrary, the Buyer shall bear all necessary additional costs, such as travel expenses and transport costs and per diem rates alongside the agreed payment.
3. Payments are to be made free of charges to Optimel's point of payment.
4. Payment shall be due in full upon delivery or acceptance. The Buyer shall be in default without any further explanation from Optimel 14 days from the due date, unless he has made payment.
5. The Buyer may only offset such claims that are undisputed or have been recognised as legally binding.
Article III: Retention of title
1. The objects of the Deliveries (Retained Goods) shall remain the property of Optimel until all its claims to which it is entitled against the Buyer arising from the business transaction have been discharged. If the value of all security interests to which Optimel is entitled, exceeds 20% of the total of all secured claims, Optimel will release a corresponding share of the security interests at the Buyer's request. Optimel is free to choose which of the various security interests to release.
2. For as long as the reservation of title exists, the Buyer may not pledge or use the Retained Goods as security, and may only sell them on to resellers in the normal course of business, and on the condition that the reseller receives payment from its customer or reserves title to the goods, such that ownership shall not be transferred to the customer, until all payment obligations have been discharged.
3. Should the Buyer sell on the Retained Goods, he herewith assigns all their future claims arising from the resale against his customer with ancillary rights, including any payment, claims to Optimel by way of security, without any further special notice being required. If the Retained Goods are sold on together with other objects, without an individual price being agreed for the Retained Goods, the Buyer shall cede that portion of the total price being claimed to Optimel that is equal to the price of the Retained Goods invoiced by Optimel.
4. a) The Buyer is entitled to process or mix or combine the Retained Goods together with other items. Processing is carried out for Optimel. The Buyer shall store any new item that arises on Optimel's behalf with the care of a diligent businessman. The new item shall be considered to be Retained Goods.
b) Optimel and the Buyer herewith agree that when combined or mixed with other items not belonging to Optimel, Optimel shall always acquire co-ownership of the new item proportionate to the value of the combined or mixed Retained Goods and the value of the remaining goods at the time the combination or mixing takes place. Insofar the new item is considered to be Retained Goods.
c) The regulation about assignment of a claim, as set out in no. 3, shall also apply to the new item. However, the assignment shall only be up to an amount that equates to the value of the agreed, combined or mixed Retained Goods for which Optimel has invoiced.
d) Should the Buyer combine the Retained Goods with real estate or movable property, he herewith also assigns the payment to which he is entitled, together with all accessory rights to Optimel, by way of security and without any further special notice, in a value proportionate to the combined Retained Goods and the remaining goods at the time combination takes place.
5. The Buyer is entitled to assign claims arising from the resale until authorisation is revoked. If there is a compelling reason, in particular, in the event of a default of payment, suspension of payment, commencement of insolvency proceedings, the protest of a bill of exchange or substantiated indication of the Purchaser's overindebtedness or impending inability to pay, Optimel is entitled to revoke the Buyer's collection authorisation. Additionally, Optimel may, after prior reminder setting a reasonable period of grace, disclose the assignment by way of security, dispose of the assigned claims and demand that the Buyer disclose the assignment by way of security to the customer.
6. In the case of attachments, seizures or other orders or encroachments by third parties, the Buyer must inform Opitmel immediately. Following authentication of a legitimate interest, the Buyer must immediately provide Optimel with all the necessary information and handover the requisite documents for it to assert its rights against the customer.
7. Should the Buyer breach his obligations, in particular, in the event of default of payment, and fail to perform after a reasonable period of grace has been granted, Optimel is entitled to return of the goods and even to withdraw from the contract. The statutory provisions relating to dispensing with a reasonable period of grace remain unaffected. The Buyer is obliged to release and return the goods. Taking back or asserting retention of title or seizing the Retained Goods by Optimel does not constitute a withdrawal from the contract, unless Optimel has stated this explicitly.
Article IV: Reservation as to Optimel obtaining the supplies
Obtaining the correct and prompt delivery of supplies remains reserved. Optimel shall inform the Buyer immediately, should the delivery item not be available and make appropriate recompense straight away, should it withdraw from the contract.
Article V: Deadlines for deliveries; default
1. Unless explicitly agreed to the contrary in writing in the specific case, any notified and agreed delivery dates are ex Optimel.
2. Adherence to deadlines for deliveries is dependent upon the prompt receipt from the Buyer of all documents, requisite licences and approvals, in particular, of plans and the Buyer complying with the agreed payment terms and other obligations. If these conditions are not met promptly, the deadlines will be reasonably extended; this does not apply, if Optimel is responsible for the delay.
3. If non adherence to deadline is the result of
a) force majeure, for example, mobilisation, war, terrorist acts, civil unrest or similar events (e.g. strike, lock-out);
b) virus and other attacks by third parties on the IT system of Optimel, if this occurs despite exercising the usual care with security measures;
c) obstacles because of German, US American or other applicable national, EU or international regulations concerning foreign trade law or because of other circumstances for which Optimel is not responsible; or
d) Optimel has not received prompt or correct supplies
the deadlines will be reasonably extended.
4. Should Optimel be in default, the Buyer may, provided he can furnish prima facie evidence that he has incurred damages, demand compensation of 0.5% for each full week of delay, though up to a maximum of 5% of the part of the Delivery that he was unable to put to appropriate use because of the delay.
5. Any claims for compensation by the Buyer because of delayed Deliveries and claims for damages in lieu of performance above and beyond that mentioned in no. 4, are excluded in all cases of delayed Deliveries, even after a reasonable period of grace granted to Optimel has expired. This does not apply in cases of liability due to intent, gross negligence or loss of life, bodily injury or damage to health. The Buyer may only withdraw from the contract within the scope of the statutory provisions, if Optimel is responsible for the delayed delivery. These regulations do not constitute a reversal of the burden of proof against the Buyer.
6. The Buyer is obliged to declare within a reasonable period, upon request by Optimel, whether he intends to withdraw from the contract because of the delay or requires delivery.
7. If dispatch or delivery is delayed, at the Buyer's request, for more than a month following notification that the goods are ready for display, the Buyer can be charged storage costs in the order of 0.5% of the price of the delivery items for each month commenced, though up to a maximum of 5% in total. The contractual parties may, however, provide evidence of higher or lower storage costs.
Article VI: Transfer of risk
1. Risk is transferred as follows to the Buyer even in the case of a carriage-paid delivery:
a) in the case of delivery without installation or assembly, when the goods are shipped or collected. At the Buyer's request and expense, the deliverer can insure Optimel for the usual transport risks;
b) in the case of delivery with installation and assembly on the day the goods are handed over to the Buyer's own plant, or, if agreed, following a successful trial operation.
2. If dispatch, delivery, commencement, implementation of the installation or assembly, handover at Buyer's company or the trial operation are delayed for reasons for which the Buyer is responsible, or if the Buyer fails to accept the goods, risk shall pass to the Buyer.
Article VII: Installation and assembly
Unless agreed to the contrary in writing, the following conditions shall apply to installation and assembly:
1. The Buyer must accept responsibility for and provide promptly:
a) all earth, construction and other ancillary work outside the scope of sector, including the necessary specialist, auxiliary works, materials and tooling;
b) the equipment and consumables required for assembly and start-up, such as scaffolding, lifting gear and other devices, fuels and lubricants;
c) energy and water at the point of use, including connections, heating and lighting;
d) sufficiently large, suitable, dry, lockable rooms for storing machine parts, apparatus, materials and tools etc. and suitable work and recreation areas for assembly staff, including reasonable sanitary facilities according to the circumstances at the assembly location; additionally, the Buyer must take the steps to protect Optimel's property and that of the assembly personnel on site that he would have taken to protect his own property and personnel;
e) protective clothing and safety equipment that are necessary because of the assembly location's particular situation.
2. Prior to the assembly work, the Buyer must provide unsolicited the necessary information about the location of concealed electricity, gas and water pipes or similar utilities, as well as the necessary structural data.
3. Before starting the installation or assembly, the provisions and items required to start the work must be at the installation and assembly location and all preliminary work so far progressed before the start of the construction that the installation or assembly may commence as agreed and carried out without interruption. Access routes and the place of assembly and installation must be levelled and clear.
4. If the installation, assembly or commissioning be delayed for reasons for which Optimel is not responsible, the Buyer must bear a reasonable proportion of the costs for waiting time and additional journeys required by Optimel or the assembly personnel.
5. The Buyer must issue Optimel with a certificate each week for the hours worked by the assembly personnel and the end of the installation, assembly or commissioning without delay.
6. If Optimel requires acceptance of the delivery upon completion, the Buyer must carry this out within two weeks. Acceptance shall be deemed to have taken place, if the Buyer allows the two-week notice period to lapse or if the delivery, following an agreed test phase, if necessary, has been taken into service.
Article VIII: Acceptance
The Buyer may not refuse to accept Deliveries because of minor defects.
Article IX: Material defects
1. Optimel must repair or replace or resupply, at its discretion, all those parts or services that show a material defect, provided the cause of such defect already existed at the time risk was transferred.
2. Claims for repair or replacement are subject to a statute limitation of 12 months calculated from the start of the limitation period. The same applies to withdrawal or a price reduction. This period does not apply, insofar as the law in accordance with Art 438(1)(ii) (construction work and objects for construction work), 479(1) (recourse claim) and 634a (1)(ii) (building defects) German Civil Code (BGG) prescribes longer periods, in the case of intent, malicious concealment of the defect and non adherence to a quality guarantee. The statutory regulations relating to suspension, interruption and recommencement of the limitation period are not affected.
3. The Buyer must lodge any complaints immediately in writing.
4. In the event of material defects, the Buyer may withhold payments in reasonable proportion to the material defects that have occurred. The Buyer may only withhold payments, if a complaint has been substantiated and there is no doubt as to its legitimacy. The Buyer has no right to withhold payment, if his right to make a claim is time-barred. If the Buyer's claim is unjustified, Optimel is entitled to demand compensation for the expenditure it has incurred.
5. Optimel must be given the opportunity to provide supplementary performance within a reasonable timeframe.
6. If the supplementary performance should also fail, the Buyer may withdraw from the contract or reduce payment, without prejudice to any claims for compensation in accordance with no. 10. Failure of supplementary performance shall only be assumed after the second attempt has failed. The statutory regulations relating to dispensing with a period of notice remain unaffected.
7. No claims for defects will be recognised, if the deviation from the agreed quality is only minor, serviceability is only slightly impaired or natural wear and tear, which occurs following the transfer of risk because of incorrect or negligent handling, excessive stress, unsuitable working materials, defective construction work, unsuitable foundations or because of particular, external influences that are not presupposed by the contract, as well as software faults that cannot be reproduced. If the Buyer or third parties carry out modifications or repair work incorrectly, no claims will be accepted for these or for any consequences that may arise.
8. The Buyer is not entitled to claim for expenditure required for the purpose of repair, in particular, transport, travel labour and material costs, if the expenditure increases because the delivery item has subsequently been moved to a location other than the Buyer's permanent place of business, unless the relocation was necessary for the intended used.
9. The Buyer is only entitled to seek redress from Optimel in accordance with Art. 478 BGB (recourse of the principal), provided the Buyer has not reached any agreements with his customer that go beyond the statutory claims for defects. Furthermore, no. 8 shall apply mutatis mutandis for the scope of the right of recourse the Buyer has against Optimel in accordance with Art. 478 (2) BGB.
10. The Buyer is not entitled to make any claims for damages because of a material defect. This does not apply in the case of malicious concealment of the defect, if the quality guarantee has not been met, loss of life, bodily injury or damage to health, and in the event of a wilful or a grossly negligent breach of obligations on the part of Optimel. Nonetheless, Optimel's liability in cases of gross negligence is restricted to foreseeable damage that is typical of the contract. These regulations do not constitute a reversal of the burden of proof against the Buyer. Any claims by the Buyer because of a material defect that go beyond or differ from those regulated in this Art. VIII are excluded.
Article X: Commercial trade mark rights and copyrights; defects of title
1. Unless agreed to the contrary, Optimel is only obliged to provide Deliveries free from third party trade mark rights and copyright (hereinafter Protected Rights) in the country of delivery. Should a third party bring legitimate claims against the Buyer because the Deliveries provided by Optimel and used in accordance with the contract infringe Protected Rights, Optimel is liable to the Buyer within the period set out in Art. IX. no. 2, as follows:
a) Optimel shall, at its discretion and cost, either obtain a right of use for the Deliveries concerned, modify them in such a way that they no longer infringe the Protected Rights, or replace them. If this is not reasonably possible for Optimel, the Buyer is entitled to the legal remedies of rescission or price reduction;
b) Optimel's obligation to provide compensation is governed by Art. XIII;
c) Optimel only has the aforementioned obligations, if the Buyer has notified Optimel immediately about the claims being made by the third party in writing, does not acknowledge a breach and leaves any defensive action and settlement negotiations to the discretion of Optimel. If the Buyer ceases to use the Deliveries in the interests of minimising a claim or for other important reasons, he will be obliged to indicate to the third party that cessation of use does not constitute any recognition of a breach of Protected Rights.
2. The Buyer is not entitled to make any claims, if he is responsible for the infringement of Protected Rights.
3. The Buyer is also not entitled to make claims, if the infringement of Protected Rights is the result of special instructions of the Buyer, an application that Optimel could not have foreseen, is the result of the Buyer modifying the Deliveries or using them in conjunction with products not supplied by Optimel.
4. In the event of infringements of Protected Rights, the conditions of Art. IX no. 4, 5 and 9 shall apply analogously to the Buyer's claims regulated in no. 1a).
5. The provisions of Art. IX apply analogously in the event of other defects of title.
6. Any claims by the Buyer against Optimel because of a defect of title that go beyond or differ from those regulated in this Art. X are excluded.
Article XI: Reservation of implementation
1. Contract performance is subject to there being no obstacles because of German, US American or other applicable, national EU or international regulations of foreign trade law and does not conflict with any embargoes or other sanctions.
2. The Buyer is obliged to furnish all information and documents that are required for the export, shipping or import.
Article XII: Impossibility; contract adaptation
1. If Deliveries are impossible, the Buyer is entitled to demand compensation, unless Optimel is not responsible for the impossibility. However, claims for compensation by the Buyer are limited to 10% of the value of that part of the Deliveries that cannot be used appropriately because of the impossibility. This limitation does not apply in liability cases where there is intent, gross negligence, loss of life, bodily injury or damage to health; this does not entail a change to the burden of proof against the Buyer. The Buyer's right to withdraw from the contract remains unaffected.
2. If events, as defined by Art. V no. 3 a) to c) considerably affect the economic importance or the content of the Delivery or have a major impact upon Optimel's operation, the contract shall be adapted, taking into account the principles of reasonableness and good faith. Optimel is entitled to withdraw from the contract, if this is not financially viable. The same shall apply, if the necessary export approvals have not been granted or are not usable. If Optimel intends to make use of this right to withdraw, it must inform the Buyer as soon as it becomes aware of the importance of the event, and even if an extension to the delivery date was initially agreed.
Article XIII: Other claims for compensation
1. Unless regulated to the contrary in these General Conditions of Sale, the Buyer is not entitled to claims for damages, regardless of the legal grounds, in particular because of a breach of duty arising from the contractual relationship and tortious acts.
2. This does not apply in the following cases of liability:
a) under product liability law;
b) in the event of intent;
c) in the case of gross negligence by owners, legal representatives or senior members of staff;
d) in the case of fraudulent intent;
e) in the event the accepted guarantee is not met;
f) due to culpable loss of life, bodily injury or damage to health; or
g) because of a culpable breach of material contractual obligations.
The entitlement to compensation for a breach of material contractual obligations is, however, limited to the foreseeable loss typical of the contract.
3. These regulations do not constitute a reversal of the burden of proof against the Buyer.
Article XIV: Place of jurisdiction and applicable law
1. If the Buyer is a trader, the sole place of jurisdiction is Iserlohn for all disputes arising directly or indirectly from the contractual relationship. However, Optimel does have the right to bring a case at the place where the Buyer has his registered offices.
2. This contract, including its interpretation, is subject to German law to the exclusion of the United Nations' international Convention on Contracts for the International Sale of Goods (CISG).
Article XV: Legal validity of the contract
In the event that individual provisions of the contract are invalid, the remaining provisions shall remain in force. This does not apply if adherence to the contract would constitute undue hardship to one party.