General Terms and Conditions of optiMEAS GmbH, Friedrichsdorf
§ 1 General / Scope
(1) These terms and conditions apply to all current and future business relationships and are applicable to all transactions concluded by optiMEAS GmbH - hereinafter referred to as optiMEAS.
(2) Deviating, conflicting or supplementary general terms and conditions of the customer, even if known, shall not become part of the contract unless their validity is expressly agreed in writing.
§ 2 Conclusion of contracts
(1) The offers of optiMEAS are subject to confirmation, unless expressly agreed otherwise.
(2) All information and illustrations in offers, brochures, advertisements, catalogues or other information material of optiMEAS represent only approximate values and need not correspond to the respective state of the art. They therefore do not constitute an agreement as to quality, nor a guarantee and are not relevant for the contractual determination of the object of performance and delivery.
(3) The contract shall only be concluded upon written confirmation of the order by the customer, whereby this may also be done electronically (e-mail).
(4) If the customer orders goods from optiMEAS without a prior offer, he declares bindingly that he wishes to purchase the ordered goods. optiMEAS is entitled to accept the contractual offer contained in the order within two weeks after receipt by optiMEAS. The acceptance can be declared either in writing or by delivery of the goods to the customer. If the customer orders the goods electronically, optiMEAS shall confirm receipt of the order without delay, whereby this confirmation of receipt shall not constitute a binding acceptance of the order. The confirmation of receipt can, however, be combined with the declaration of acceptance. If the customer orders the goods electronically, the text of the contract will be stored at optiMEAS and sent to the customer by e-mail upon request together with these GTCs.
(5) The customer acknowledges the copyright protection and the warranty conditions by opening the original packaging.
§ 3 Retention of title
(1) In the case of contracts with consumers optiMEAS retains ownership of the goods until the purchase price has been paid in full; in the case of contracts with entrepreneurs optiMEAS retains ownership of the goods until all claims arising from an ongoing business relationship have been settled in full.
(2) In case of breach of contract by the purchaser optiMEAS shall be entitled to demand the return of the goods. This demand for return shall only be considered as withdrawal from the contract if optiMEAS expressly declares this in writing.
(3) The customer shall only be entitled to resell or further process the goods without the consent of optiMEAS if the goods were expressly designated in the order as intended for resale. The customer shall also be obliged to ward off access by third parties to the reserved property with reference to the rights of optiMEAS and to inform optiMEAS.
(4) The customer shall be entitled to resell the goods in the ordinary course of business subject to paragraph 3. He already now assigns to optiMEAS all claims in the amount of the invoice amount, which accrue to him from the resale against a third party. optiMEAS accepts the assignment. After the assignment the customer shall be authorised to collect the claim. optiMEAS reserves the right to collect the claim itself as soon as the customer does not properly fulfil his payment obligations and is in default of payment.
§ 4 Scope of delivery
(1) The written order confirmation from optiMEAS shall be decisive for the scope of delivery, in the event of an offer from optiMEAS with a time commitment and acceptance within the time limit, the offer shall be decisive, if no timely order confirmation has been received.
(2) Delivery will be made at the customer's expense from the domestic or storage location. With the handing over of the ordered goods to a forwarding agent or any other person or institution entrusted with the transport the risk shall pass to the customer, this shall also apply in case of carriage paid delivery. optiMEAS shall be entitled, but not obliged without express written instruction of the customer, to insure the transport at the customer's expense. If the purchaser is a consumer, the risk of accidental loss and accidental deterioration of the sold item shall not pass to the purchaser until the item has been handed over, even in the case of sale by delivery to a place other than the place of performance.
(3) Unless otherwise agreed, optiMEAS shall provide software and related documentation by means of electronic Software Delivery (ESD), thus enabling the purchaser to download the purchased programme package and agreed updates from the optiMEAS server to his computer. In this case the delivery takes place with the handing over of the link for the download in written form, also by e-mail. Delivery on data carriers (CD, DVD, FLASH memory) or in paper form shall additionally only take place at the express request of the purchaser and shall be invoiced separately. The purchaser himself shall ensure the safekeeping of a copy of the loaded software and documentation.
(4) The delivery periods and dates stated in the order do not constitute fixed dates. The delivery period shall commence upon receipt of the counter-confirmed order confirmation of all documents to be procured by the customer and the agreed down payment. Insofar as preparatory actions by the customer are necessary for the execution of the delivery, the delivery period shall not commence until these actions have been completed. The delivery period shall be deemed to have been complied with if the delivery item has left the optiMEAS factory within the delivery period or within a reasonable period of grace or if the customer has been notified that the delivery item is ready for dispatch.
(5) optiMEAS is entitled to make partial deliveries, which shall be invoiced in partial invoices.
(6) Delays in delivery due to force majeure, as a result of changes in the official approval and legal situation, operational disruptions, industrial disputes, material procurement problems are not the responsibility of optiMEAS - also insofar as they occur with suppliers themselves - even in the case of bindingly agreed delivery dates. In these cases the agreed delivery date shall be tacitly extended by the reasonable period of time necessary to remove the obstacle. Claims for damages by the customer due to delay are excluded, insofar as the delay is not due to intent or gross negligence on the part of optiMEAS.
§ 5 Acceptance
(1) After installation and connection of the units, their readiness for operation is determined by a test run with standard test programmes. The functionality of individual software shall also be determined by a test run. The customer shall then accept the delivered devices and/or programmes and confirm the acceptance on the corresponding acceptance protocol. An acceptance declared to the manufacturer or supplier shall also apply in relation to optiMEAS.
(2) If the customer refuses acceptance due to significant defects, optiMEAS shall be entitled to carry out rectifications or replacement deliveries and then to declare acceptance readiness again. If an acceptance by the customer or a written declaration by the customer with a precise description of unfulfilled points does not then take place within a period of fourteen calendar days, the acceptance shall be deemed to have been completed.
§ 6 Prices and terms of payment
(1) All prices are ex works and do not include packaging, transport and transport insurance, other taxes, customs duties, fees strictly net plus statutory VAT.
(2) Payments shall be made in Euro within 30 days after receipt of the invoice without any deduction and free of charge for optiMEAS. If the payment deadline is exceeded, optiMEAS shall charge interest on arrears in the amount of 4 % above the base interest rate of the European Central Bank, without prejudice to further rights, unless the customer proves that a significantly lower damage has been incurred. optiMEAS reserves the right to claim higher damages.
(3) The customer shall only be entitled to withhold payments or offset them against counterclaims insofar as his counterclaims are undisputed or have been legally established. Furthermore, the customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship.
(4) If the customer is in default of payment, optiMEAS shall be entitled to withhold the delivery from other orders of the customer. As far as payment of the arrears is made, optiMEAS shall be entitled to determine a new delivery period at its reasonable discretion, taking into account its other delivery obligations.
§ 7 Cancellation policy for deliveries of goods, services and right of return
(1) The consumer has the right to revoke his contractual declaration within 14 days without stating reasons in text form (e.g. letter, fax, email) or - if the goods are handed over to him before the deadline - also by returning the goods. The period begins after receipt of this instruction in text form, but not before receipt of the goods by the consumer (in the case of recurring deliveries of similar goods, not before receipt of the first partial delivery) and also not before fulfilment of our duties to inform pursuant to Article 246 § 2 in conjunction with §§ 1 paragraph 1 and 2 EGBGB (Introductory Act to the German Civil Code) as well as our duties pursuant to § 312 g paragraph 1 sentence 1 BGB (German Civil Code) in conjunction with Article 246 § 3 EGBGB. The timely dispatch of the revocation or the item shall be sufficient to comply with the revocation period. The revocation is to be sent to:
At Houiller Square 4
(2) Consequences of withdrawal
In the event of an effective revocation, the services received by both parties must be returned and any benefits derived (e.g. interest) must be surrendered. If the consumer is not able to return the received services and benefits (e.g. advantages of use) to optiMEAS or only partially or in a deteriorated condition, the consumer has to compensate optiMEAS for the loss of value. The consumer shall only be obliged to pay compensation for the deterioration of the goods and for the use made of the goods if the use or deterioration is due to the handling of the goods which goes beyond the examination of the characteristics and the functioning of the goods. Testing of the characteristics and the functioning" means testing and trying out the respective goods, as it is possible and usual in a shop, for example. Goods that can be sent by parcel are to be returned at the risk of optiMEAS. The consumer shall bear the regular costs of the return shipment if the delivered goods correspond to the ordered goods and if the price of the goods to be returned does not exceed an amount of EUR 40.00 or if, in the case of a higher price of the goods, the consumer has not yet provided the consideration or a contractually agreed partial payment at the time of the revocation. Otherwise, the return shipment is free of charge for the consumer. Items that cannot be sent by parcel post will be collected from the consumer. Obligations to refund payments must be fulfilled within 30 days. The time limit begins for the consumer with the dispatch of a notice of withdrawal or the item itself, for optiMEAS with its receipt.
The same applies to the provision of services by optiMEAS. In connection with the value replacement, this can lead to the fact that consumers must nevertheless fulfil the contractual payment obligations for the period until the revocation.
The right of withdrawal expires prematurely if the contract is optiMEAS completely fulfilled by both parties at the express request of the consumer before the consumer has exercised his right of withdrawal.
(3) Return instruction
The consumer may return the goods received without stating reasons within 14 days by returning the goods. The period begins after receipt of this instruction in text form, but not before receipt of the goods. Only in the case of goods that cannot be sent by parcel post (e.g. bulky goods) can the consumer declare the return by requesting the return in text form. The timely dispatch of the goods or the request to take back the goods shall be sufficient to comply with the time limit. In any case the return shall be at the expense and risk of optiMEAS. The return shipment or the request for return must be sent to: optiMEAS, Am Houiller Square 4 c, 61381 Friedrichsdorf.
In the event of an effective return, the services received by both parties must be returned and any benefits derived must be surrendered. In the event of deterioration of the goods and for benefits (e.g. advantages of use) which cannot be returned or which can only be returned in part or in a deteriorated condition, the consumer must compensate optiMEAS to this extent. The above-mentioned regarding the examination of the properties and functionality shall apply accordingly.
§ 8 Warranty
(1) optiMEAS warrants that hardware is free of material and manufacturing defects at the time of transfer of risk. The remedy of defects and all related obligations are the responsibility of the manufacturer and not optiMEAS, if optiMEAS is not the manufacturer. Program errors in individual software must be reported in writing and must be specified and documented in such a way that an examination of the content is possible. The customer is aware that according to the state of the art the occurrence of program errors cannot be completely excluded. They therefore do not constitute defects in the legal sense. Program errors in individual software will be repaired by optiMEAS free of charge within the warranty period, after which they will be repaired against payment. In all other respects optiMEAS guarantees the faultless running of the programs with the agreed program functions and properties.
(2) In case of defects of the delivery item optiMEAS shall have the right to provide warranty by rectification of defects or free replacement delivery at its discretion. If the supplementary performance (rectification or replacement delivery) fails, the customer can in principle demand a reduction of the remuneration (reduction) or cancellation of the contract (withdrawal) at his discretion. However, in the event of only a minor breach of contract, in particular in the event of only minor defects, the customer shall not be entitled to withdraw from the contract.
(3) The customer is obliged to give written notice of obvious defects within a period of ten days from receipt of the delivery item; otherwise the assertion of the warranty claim is excluded. Timely dispatch of the notice of defect shall be sufficient to meet the deadline. The customer shall bear the full burden of proof for all prerequisites for a claim, in particular for the defect itself, for the time of discovery of the defect and the timeliness of the notice of defect. The above shall apply accordingly to consumers, with the exception that they must notify us in writing of obvious defects within a period of two months after the time at which the condition of the goods contrary to the contract was established.
(4) If the customer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he shall not be entitled to any additional claim for damages due to the defect.
(5) If the customer chooses compensation for damages after subsequent performance has failed, the goods shall remain with the customer if this is reasonable for him. The liability is limited to the difference between the purchase price and the value of the defective goods. This shall not apply if optiMEAS has fraudulently caused the breach of contract.
(6) The warranty period is two years from delivery. In the event that acceptance has been agreed, the warranty period shall commence on the day of acceptance of the delivery item. The foregoing shall not apply if the customer has not notified the defect in due time.
(7) Guarantees in the legal sense are only given by optiMEAS if they are expressly included in the order confirmation and are designated as an assurance of certain properties of the delivery item.
(8) The warranty is excluded if the customer or a third party commissioned by the customer has carried out improper work on the delivery item, has not installed the delivery item professionally or has exposed it to chemical or electrochemical effects for which the device was not suitable after intended use. Any warranty claims shall expire if the customer attaches unauthorised additional devices or carries out interventions and/or repairs to devices and software himself or through third parties without express agreement with optiMEAS.
§ 9 Liability
(1) In the case of slightly negligent breaches of duty, the liability of optiMEAS shall be limited to the foreseeable, direct average damage typical for the contract according to the type of goods. This shall also apply in the case of slightly negligent breaches of duty by the legal representatives or vicarious agents.
(2) vis-à-vis entrepreneurs optiMEAS shall not be liable in case of slightly negligent breach of immaterial contractual obligations.
(3) The above limitations of liability do not apply to claims of optiMEAS arising from product liability. Furthermore, the limitations of liability shall not apply in case of bodily injury or damage to health attributable to optiMEAS or in case of loss of life of the customer attributable to optiMEAS.
§ 10 Final provisions
(1) The law of the Federal Republic of Germany shall apply. The provisions of the UN Sales Convention shall not apply.
(2) The place of performance for all obligations arising from this contract is Friedrichsdorf. The place of jurisdiction for all disputes in connection with this agreement in relation to fully qualified merchants shall be optiMEAS. optiMEAS shall furthermore have the right to sue the other party at its principal place of business or at the place of business of the branch office to which the items purchased under this agreement are delivered.
(3) Additions and changes to this contract must be made in writing. This also applies to the above written form requirement itself.
(4) Should individual provisions of this contract be or become invalid or should the contract contain a loophole, this shall not affect the validity of the remaining provisions. In place of the invalid provision or to fill a gap, a provision shall be agreed which, as far as legally permissible, comes as close as possible to what the contracting parties intended.