TERMS AND CONDITIONS OF SALE

1. Scope of application

1.1. These General Terms and Conditions of Sale (GTCS) apply to all our business relationships with our customers ("Buyer"). The General Terms and Conditions of Sale shall only apply if the Buyer is an entrepreneur (Section 14 BGB), a legal entity under public law or a special fund under public law within the meaning of Section 310 (1) BGB.

1.2. Our General Terms and Conditions of Sale shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall also apply if the Buyer refers to its General Terms and Conditions of Business in the context of the order and we have not expressly objected to the General Terms and Conditions of Business.

1.3. These General Terms and Conditions of Sale apply to contracts for the sale and/or delivery of services and movable goods ("Goods"). It is irrelevant whether we manufacture the goods or procure the relevant services ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the General Terms and Conditions of Sale in the version valid at the time of the Buyer's order or in the version last communicated to him in text form shall also apply as a framework agreement for similar future contracts, without us as the Seller having to refer to them again on a case-by-case basis.

1.4. Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) and information in our order confirmation shall take precedence over these General Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

1.5. Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. notifications of defects, setting of deadlines, cancellation or reduction) must be made in writing, i.e. in written and text form (e.g. letter, e-mail,). Further statutory formal requirements and further evidence (if necessary, in case of doubt about the legitimisation of the declaring party) remain unaffected.

1.6. If references are made to the validity of statutory provisions, it should be noted that these are for clarification purposes only. The statutory provisions shall apply - even if no corresponding clarification has been made - to the extent that they are not amended or excluded by the General Terms and Conditions of Sale.

2. Offer and conclusion of contract

2.1. Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to standards) and other product descriptions or documents (including in electronic form). We reserve ownership rights and copyrights to all documents provided to the Buyer in connection with the order placement. These documents may not be made accessible to third parties unless we give the Buyer our express written consent to do so.

2.2. The order of the goods by the Buyer is a non-binding contractual offer in accordance with § 145 BGB. If nothing to the contrary results from the order, we shall be entitled to accept this contractual offer within two weeks of its receipt by us.

2.3. The acceptance of the contract offer on the part of the Buyer can be declared either in writing (e.g. by an order confirmation) or by delivery of the goods to the Buyer. If we as the seller do not accept the buyer's offer within the period specified in clause 2.2, any documents sent to the buyer must be returned to us immediately.

3. Prices and payment agreements

3.1. Unless otherwise agreed in writing in individual cases, our current prices at the time of conclusion of the contract shall apply ex warehouse, plus statutory VAT. The cost of packaging shall be invoiced separately. Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in labour, material and distribution cost for deliveries made 3 months or more after conclusion of the contract.

3.2. In the case of a sale involving the carriage of goods, the Buyer shall bear the transport cost ex warehouse and the cost of any transport insurance requested by the Buyer. We shall have the liberty to charge a reasonable fee covering the administrative effort of arrangement of the transport and it´s insurance. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.

3.3. Payment of the purchase price shall be made exclusively to the bank account of Optonaval. The deduction of a cash discount is only permitted by special written agreement.

3.4. Unless otherwise agreed, the purchase price is due and payable within fourteen days of invoicing. However, we are entitled at any time, even in the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.

3.5. The Buyer shall be in default if the above payment period expires. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate pursuant to Section 288 (2) of the German Civil Code (BGB) in the amount of eight percentage points above the respective base interest rate. We reserve the right to assert further claims for damages caused by default. Our claim against merchants for commercial maturity interest in accordance with § 353 HGB remains unaffected.

3.6. We reserve the right to charge reasonable reminder fees covering the administrative effort of managing such reminders and follow up of outstanding payments.

3.7. If it is foreseeable after conclusion of the contract that our claim to payment of the purchase price is jeopardised due to the Buyer's inability to pay (e.g. due to an application for the opening of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and, if necessary after setting a deadline, to withdraw from the contract (Section 321 BGB). In the case of contracts for which the manufacture of non-fungible items (customised products) is owed, we may declare our withdrawal immediately. The statutory provisions on the dispensability of setting a deadline shall remain unaffected in this respect.

4. Rights of retention

The purchaser shall only be entitled to rights of set-off or retention if his claim has been legally established or is undisputed and his counterclaim is based on the same contractual relationship resp. purchase order. If defects occur within the scope of the delivery, the Buyer's counter-rights, in particular in accordance with Section 8.6 sentence 2 of these General Terms and Conditions of Sale, shall remain unaffected.

5. Delivery period and delay in delivery

5.1. The delivery period shall be agreed individually or specified by us upon acceptance of the order.

5.2. If we are unable to comply with contractually agreed delivery periods for reasons for which we are not responsible, we shall inform the Buyer of this circumstance without delay and at the same time notify the Buyer of the expected or new delivery period. If a delayed delivery cannot be made due to non-availability of the service even within the newly announced delivery period, we are entitled to withdraw from the contract in whole or in part; we must immediately reimburse any consideration already provided by the buyer (in the form of the purchase price payment). The non-availability of the service is given, for example, if our supplier has not delivered to us on time, if we have concluded a congruent hedging transaction, if there are other disruptions in the supply chain (for example due to force majeure) or if we are not obliged to procure in individual cases.

5.3. Whether we as the seller are in default of delivery shall be determined in accordance with the statutory provisions. However, the prerequisite for a delay in delivery by us as the seller is a reminder from the buyer. If there is a delay in delivery, the buyer may claim lump-sum compensation for the damage caused by the delay. The liquidated damages shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay but shall not exceed a total of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer has suffered no damage or only less damage than the above lump sum.

5.4. The rights of the Buyer pursuant to Section 9 of these General Terms and Conditions of Sale and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

6. Delivery, transfer of risk, acceptance, default of acceptance

6.1. Delivery shall be ex warehouse. The warehouse is also the place of fulfilment for the delivery and the place for any subsequent fulfilment. If the buyer wishes the goods to be sent to a different destination (sale to destination), the buyer shall bear the cost of despatch. If nothing has been contractually agreed, we may determine the type of shipment (packaging, shipping route, transport company) ourselves.

6.2. The risk of accidental loss and accidental deterioration shall pass to the Buyer when the goods are handed over to the Buyer. In the case of a sale involving the carriage of goods, the risk of accidental loss of the goods, accidental deterioration of the goods and the risk of delay shall pass to the Buyer upon delivery of the goods to the forwarding agent or carrier. If acceptance of the goods is contractually agreed, this shall be decisive for the transfer of risk. Further statutory provisions of the law on contracts for work and labour remain unaffected. If the Buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance of the goods.

6.3. If the Buyer is in default of acceptance, or our delivery is delayed for other reasons for which the Buyer is responsible, we shall have a claim against the Buyer for compensation for the damage incurred, including additional expenses (e.g. storage cost). If this is the case, we shall charge the Buyer a compensation in the amount of 0,5 % of the invoice-value of the relevant delivery plus storage cost (if any) per calendar week (beginning with the delivery period or, if no delivery period is specified, with the notification that the goods are ready for dispatch). Statutory claims on our part (reimbursement of additional expenses, reasonable compensation, cancellation) and proof of higher damages shall remain unaffected.

6.4. Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, cancellation) shall remain unaffected; however, the compensation as per 6.4. shall be offset against further monetary claims. However, the Buyer shall have the right to prove that we have suffered no loss at all or only a significantly lower loss than the above compensation.

7. Retention of title

7.1. We reserve title to the delivered goods until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).

7.2. The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties seize the goods belonging to us (e.g. seizures). If the third party is not able to reimburse us for the judicial and extrajudicial cost of an action pursuant to § 771 ZPO, the Buyer shall be liable for the loss incurred by us.

7.3. In the event of a breach of contract by the Buyer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods based on the retention of title. The demand for return does not at the same time include a declaration of cancellation; rather, we are entitled to demand only the return of the goods and reserve the right to cancel the contract. If the buyer does not pay the purchase price due, we must have set the buyer a reasonable deadline for payment without success before asserting these rights. This shall only apply if such a deadline is not dispensable under the statutory provisions.

7.4. The Buyer shall be authorised to resell and/or process the goods subject to retention of title in the ordinary course of business until revoked in accordance with clause 7.4.3. In this case, the following provisions shall apply in addition. In this case, the following provisions shall apply in addition:

7.4.1. The products of our goods resulting from combination or processing shall be subject to retention of title at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of combination or processing with the goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the combined or processed goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title. The purchaser also assigns to us, for security purposes, such claims against a third party which accrue to him through the combination of the goods subject to retention of title with a property. In this case, we accept the assignment.

7.4.2. The Buyer hereby assigns to us, for security purposes, the claims against third parties arising from the resale of the goods or the product in the amount of the final invoice amount agreed with us (including VAT) in total or in the amount of our possible co-ownership share in accordance with clause 7.4.1. We accept the assignment. The Buyer's obligations listed in Clause 7.2 shall also apply with regard to the assigned claims.

7.4.3. The buyer remains authorised to collect the claim in addition to us. As long as the Buyer fulfils his payment obligations to us, there is no deficiency in the Buyer's ability to pay and we do not assert the retention of title by exercising a right in accordance with clause 7.3, we undertake not to collect the claim. If we assert the exercise of a right pursuant to Section 7.3, we may demand that the Buyer disclose the assigned claims and their debtors and that the Buyer provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In addition, we shall be entitled to revoke the Buyer's authorisation to resell and process the goods subject to retention of title.

7.4.4. If the realisable value of the securities exceeds our claims by more than 20%, we shall release securities of our choice at the Buyer's request.

7.5. The buyer is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure it adequately at his own expense against fundamental external risks, such as but not limited to theft, fire, and water damage at replacement value. If maintenance and inspection work have to be carried out, the buyer must carry this out in good time at his own expense.

8. Claims for defects of the buyer

8.1. The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise specified below. This shall not affect the statutory provisions on the sale of consumer goods (Sections 474 et seq. BGB) and the Buyer's rights arising from separately issued guarantees, in particular from the manufacturer.

8.2. Agreements that we have made with buyers regarding the quality and the intended use of the goods (including accessories and instructions) regularly form the basis of our liability for defects under the warranty. A quality agreement includes all product descriptions and manufacturer's specifications that are the subject of the individual contract or were made public by us (in particular in catalogues or on our Internet homepage) at the time the contract was concluded. If no quality has been agreed, it must be assessed in accordance with the provision of § 434 (3) BGB whether a defect exists. Against this background, public statements made by the manufacturer in the context of advertising or on the labelling of the goods take precedence over statements made by other third parties.

8.3. For goods with digital elements or other digital content, that we are only obliged to provide and update the digital content insofar as this expressly results from a quality agreement in accordance with Section 8.2. We accept no liability for public statements made by the manufacturer or other third parties.

8.4. We shall not be liable for defects which the Buyer is aware of or is grossly negligent in not being aware of at the time of conclusion of the contract in accordance with Section 442 BGB.

8.5. Claims for defects on the part of the Buyer shall only exist if the Buyer has complied with its statutory inspection and notification obligations (§§ 377, 381 HGB). If the goods are building materials or other goods intended for installation or other further processing, an inspection must be carried out immediately before processing. We must be notified immediately in writing if a defect is discovered during delivery, inspection or at a later date. Obvious defects must be reported in writing within 5 working days from delivery and non-recognisable defects within the same period from discovery of the defects. If the Buyer fails to fulfil or does not fulfil its obligation to properly inspect the goods and/or report defects, we shall not be liable for the defect not reported or not reported on time or not reported properly in accordance with the statutory provisions. If the goods were intended for fitting, mounting or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of non-compliance with or breach of one of these obligations. In this case, the Buyer shall not be entitled to any claims for compensation for the "installation and removal cost".

8.6. If the delivered goods are defective, we as the seller shall be entitled to choose whether we provide subsequent fulfilment by remedying the defect (subsequent improvement) or by delivering a defect-free item (subsequent delivery). If the type of subsequent fulfilment chosen by us is unreasonable for the buyer in the individual case, he may refuse it. However, we reserve the right to refuse subsequent fulfilment under the statutory conditions. In addition, we are entitled to make the subsequent fulfilment to be provided by us dependent on the buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.

8.7. The Buyer shall grant us the necessary time and opportunity for the subsequent fulfilment to be provided. In particular, the Buyer shall hand over to us the item for which he has asserted a defect for inspection purposes. If we make a subsequent delivery of a defect-free item, the buyer must return the defective item to us in accordance with the statutory provisions. However, the Buyer shall not be entitled to a claim for return.

8.8. Unless we are contractually obliged to do so, subsequent fulfilment shall not include the dismantling, removal or de-installation of the defective item or the installation, fitting or installation of a defect-free item. This shall not affect the Buyer's claims for reimbursement of the "installation and removal cost".

8.9. We shall reimburse the expenses which are necessary for inspection purposes and for subsequent performance (transport, labour and material cost and, if applicable, removal and installation cost) in accordance with the statutory provisions and these General Terms and Conditions of Sale if a defect exists. However, we may demand reimbursement from the Buyer for cost incurred due to an unjustified request to remedy a defect if the Buyer knew or could have recognised that there was in fact no defect.

8.10. The Buyer has the right to remedy the defect himself and to demand reimbursement of the expenses objectively necessary for this purpose if there is an urgent case (e.g. in the event of danger to operational safety or to prevent disproportionate damage). The buyer must inform us immediately in the event of self-remedy. If we would be entitled to refuse subsequent fulfilment in accordance with the statutory provisions, the Buyer shall have no right to self-performance.

8.11. The Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions if a deadline to be set by the Buyer for subsequent fulfilment has expired unsuccessfully or is dispensable in accordance with the statutory provisions. In the event of a minor defect, however, the Buyer shall have no right of cancellation.

8.12. Claims for damages or claims for reimbursement of futile expenses of the Buyer (Section 284 BGB) shall only exist in accordance with Clauses 9 and 10, even in the event of a defect.

9. Limitation period

9.1. The general limitation period for claims resulting from material defects or defects of title is one year from delivery, in deviation from Section 438 (1) No. 3 BGB. If acceptance has been contractually agreed, the limitation period shall commence upon acceptance.

9.2. The above limitation period of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period pursuant to Sections 195, 199 BGB would lead to a shorter limitation period in individual cases. The Buyer's claims for damages pursuant to clauses 10.1 and 10.2.a) as well as those pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

10. Other liability

10.1. Unless otherwise provided for in these General Terms and Conditions of Sale, including the following provisions, we as the Seller shall be liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.

10.2. Within the scope of fault-based liability, we shall be liable for damages, irrespective of the legal grounds, only in the event of wilful intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), only.

10.2.1. for damages resulting from injury to life, body, or health,

10.2.2. for damages resulting from the breach of an essential contractual obligation (obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner relies on and may also rely). In this case, however, our liability shall be limited to compensation for foreseeable, typically occurring damage.

10.3. The limitations of liability arising in accordance with clause 10.2 shall also apply to third parties and in the event of breaches of duty by persons whose fault we are responsible for in accordance with statutory provisions. Insofar as a defect has been fraudulently concealed and a guarantee for the quality of the goods has been assumed, the limitations of liability shall not apply. This also applies to claims of the buyer under the Product Liability Act.

10.4. The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not result from a defect if we as the Seller are responsible for the breach of duty.

10.5. The Buyer's right of cancellation (in particular pursuant to Sections 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

11. Choice of law and place of jurisdiction

11.1. These General Terms and Conditions of Sale and the contractual relationship between us as the Seller and the Buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

11.2. Our registered office in Hamburg, Germany shall be the exclusive, and also international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.

11.3. We shall also be entitled to bring an action at the place of fulfilment of the delivery obligation in accordance with these General Terms and Conditions of Sale or an overriding individual agreement or at the Buyer's general place of jurisdiction. This shall not affect overriding statutory provisions (exclusive places of jurisdiction).

  

Appendix 1:

Amount of default interest

From the beginning of the delay, the buyer shall owe the seller interest on arrears in addition to the purchase price. If a consumer is involved in the purchase contract, whether as buyer or seller, the interest rate is 5% above the base rate. In the case of purchase contracts between entrepreneurs, the interest rate is 9% above the base rate.

The current base interest rates can be found at www.bundesbank.de.

 

Date of implementation: 24.05.2024