general terms and conditions

§ 1 General, Scope, Form

  1. These "General Terms of Delivery" (hereinafter referred to as "GTC") apply exclusively to entrepreneurs (§ 14 BGB), legal persons under public law or special funds under public law. For the purposes of these terms and conditions, an entrepreneur is a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession (§ 14 Abs.1 BGB).

  2. All offers, purchases and deliveries between OPTIMA Pressformen GmbH & Co. KG (hereinafter referred to as “OPTIMA”) and the purchaser are subject exclusively to these GTC in connection with the respective order confirmation by OPTIMA. GTC of the purchaser shall not apply, even if OPTIMA does not separately contradict their validity in individual cases and/or unconditionally provides deliveries in knowledge of the purchaser's conflicting terms and conditions. They shall also apply to all future deliveries, services or offers to the purchaser, even if they are not separately agreed upon again.

  3. Individual agreements with the purchaser in individual cases (including side agreements, amendments and modifications) shall always have priority over these GTC. Subject to the evidence to the contrary, a contract or our confirmation in text form shall prevail regarding the content of such agreements.

  4. Amendments or modifications of this contract as well as legally relevant declarations and notifications of the purchaser in relation to the contract (eg setting of deadlines, notice of defects, termination, withdrawal or reduction) require text form (eg letter, e-mail, fax). This also includes a modification or revocation of this text form clause, unless the purchaser proves that the parties have intentionally waived this clause verbally in awareness of the text form requirement. Statutory form regulations and further proof, in particular in case of doubt regarding the legitimacy of the declarant, remain unaffected.

  5. Contract language is German.
     

§ 2 Subject of the Contract, Offer and Conclusion of Contract

  1. All offers, brochures, catalogs and information on the homepage of OPTIMA are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Purchase or production orders may be accepted by OPTIMA within fourteen days upon receipt.

  2. The legal relationship between OPTIMA and the purchaser shall only by governed by the individual contract between OPTIMA and the purchaser, including these GTC. This fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal commitments of OPTIMA before the conclusion of this contract are legally non-binding and shall be replaced by the contract (at least) in text form, unless verbal promises expressly state that they shall be binding.

  3. Information provided by OPTIMA regarding the subject matter of the delivery or service (eg weights, dimensions, utility values, loading capacity, tolerances and technical data) as well as illustrations thereof (eg drawings and illustrations) shall only be approximate relevant unless the applicability to the contractually stipulated purpose requires an exact match. They are not guaranteed features, but descriptions or indications of the delivery or service. Customary deviations and deviations, which occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts are permissible, as far as they do not affect the usability for the contractually intended purpose. Only the conditions expressly stated as guaranteed within the contract shall be considered a guarantee in terms of the law.

  4. OPTIMA retains ownership or copyright regarding all offers and quotations submitted by it, as well as any drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids provided to the purchaser. The purchaser shall not make these objects accessible to third parties, notify them, nor use or duplicate them themselves or through third parties as such or in terms of content, without the expressed consent of OPTIMA. At the request of OPTIMA, the purchaser must completely return these objects and destroy any copies if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this obligation is the storage of electronically provided data for the purpose of conventional data backup.
     

§ 3 Prices and Payment

  1. Prices are valid for the scope of service and delivery stated in the order confirmations. Additional or special services will be charged separately. The prices are in EURO ex works plus packaging, statutory value added tax, customs - for export deliveries - as well as fees and other public charges.

  2. Insofar as OPTIMA is obliged under the Packaging Ordinance (Verpackungsverordnung) to take back the packaging used for transport, the purchaser bears the costs for the return transportation of the packaging used and the reasonable costs of its utilization.

  3. If cost changes occur until delivery, OPTIMA reserves the right to make a corresponding price adjustment.

  4. The purchaser shall make payments in accordance with the agreed terms of payment. In the absence of a separate agreement, the purchaser shall pay 1/3 of the contract price immediately upon the conclusion of the contract and 2/3 after notification of readiness for shipment without deduction to the payment agent of OPTIMA.

  5. If the purchaser is in arrears with a payment or if there are demonstrable circumstances, according to which the creditworthiness of the purchaser no longer exists, OPTIMA is entitled to suspend the actions necessary to fulfill its contractual obligations.

  6. If the agreed payment dates are exceeded, OPTIMA shall be entitled to demand default interest in the amount of 9 percentage points above the base interest rate p.a. in addition to the outstanding payment pursuant to § 288 (2) BGB. If the purchaser does not pay even upon expiration of a reasonable deadline, the entire remaining debt shall be due for payment immediately, without prejudice to further rights of OPTIMA.

  7. Offsetting against counterclaims of the purchaser or the retention of payments due to such claims is only permitted if such counterclaims are undisputed or have been legally established.

  8. If the delivery item was delivered before payment of all amounts owed by the purchaser, the purchaser is obliged to sufficiently insure the delivery item in favor of OPTIMA until full payment has been made.

  9. The claims of OPTIMA for payment become time-barred contrary to § 195 BGB in five years. Regarding the beginning of the period of limitation § 199 BGB applies.
     

§ 4 Delivery Time - Force Majeure - Delayed Delivery

  1. The delivery period shall commence upon conclusion of the contract and the purchaser`s fulfillment of all the contractually agreed conditions in his responsibility, in particular, the arrangement for agreed payments and securities and clarification of all technical details required for the execution of the order.

  2. The delivery period is adhered to if the delivery item is ready for dispatch in the respective supply-plant until its expiration.

  3. The observance of the delivery time by OPTIMA presupposes the fulfillment of the contractual obligations by the purchaser.

  4. The delivery period shall be reasonably extended if its compliance becomes impossible due to an unforeseeable circumstance occurring after the conclusion of the contract, which is beyond the control of OPTIMA and prevents the completion or delivery of the delivery item. Such circumstances (grounds for relief for OPTIMA) include, for example: all cases of force majeure, breakdowns, limitation of energy supply, fire, lack of means of transport and shortage of workers/professionals due to industrial disputes, even if they occur at a supplier of OPTIMA, as well as other immediate and indirect effects of labor disputes. The aforementioned circumstances are not the responsibility of OPTIMA even if they occur during an already existing delivery delay.

  5. The purchaser may rescind the contract without setting a deadline if the entire performance of OPTIMA becomes is ultimately impossible before the transfer of risk (§ 275 BGB). In addition, the purchaser can withdraw from the contract if the execution of a part of the delivery of an order becomes impossible and if he has a legitimate interest in the rejection of the partial delivery. If this is not the case, the customer shall pay the contract price for the partial delivery. For the rest, § 8 (2) of these GTC apply.

  6. If the impossibility occurs during default of acceptance, or if the purchaser is solely or largely responsible for these circumstances, he remains liable for compensation.

  7. If the purchaser grants an appropriate deadline for performance to the defaulting OPTIMA, taking the statutory exceptions into consideration, and if the deadline is not met, the purchaser is entitled to withdraw within the framework of the statutory provisions.

  8. Further claims arising from delay in delivery shall be determined exclusively in accordance with § 8 (2) of these GTC.
     

§ 5 Place of Fulfillment, Shipping, Packaging, Transfer of Risk, Acceptance

  1. Place of fulfillment for all obligations arising from the contractual relationship is the headquarter of OPTIMA, unless otherwise specified. If OPTIMA is also responsible for the assembly, the place of performance is the place where the assembly is to be conducted.

  2. The shipping method and the packaging are subject to the due discretion of OPTIMA.

  3. The time of the transfer of risk shall be determined in accordance with the agreed Incoterms as they apply on the day the contract is concluded. With delivery EXW (ex works) and FCA (Incoterms 2010), the risk passes to the customer upon the indication of readiness for shipment.

  4. Insignificant defects do not entitle the purchaser to refuse acceptance of the delivery.

  5. OPTIMA is entitled to make partial deliveries.

  6. Acceptance tests, which are carried out outside the normal control of OPTIMA, shall be borne by the purchaser and require an explicit agreement.

  7. If the purchaser does not accept the delivery on the contractually agreed date, the purchaser nevertheless has to pay the owed payments on the agreed due dates. If shipping is delayed for reasons for which OPTIMA is not responsible, the delivery shall be stored at the expense and risk of the purchaser.

  8. The shipment is insured by OPTIMA against theft, breakage, transport, fire and water damage or other insurable risks, only at the explicit request of the purchaser and at his expense.

  9. Insofar as acceptance is required, the purchased item shall be deemed accepted if
    the delivery and, if OPTIMA also owes the installation, the assembly is complete,
    OPTIMA has informed the purchaser with reference to the acceptance of the goods in accordance with § 5 (9) and has asked him to accept them,
    10 working days have elapsed since the delivery or assembly or the purchaser has begun to use the goods and in this case since delivery or assembly 5 working days have passed and
    the purchaser has failed to accept the goods within this period for any reason other than a defect reported to OPTIMA, which makes the use of the goods impossible or substantially impaired.

     

§ 6 Retention of Title

  1. Deliveries shall be made exclusively under retention of title. The property is only transferred to the purchaser, if he has fulfilled all his obligations from all deliveries of goods and other services of OPTIMA. Insofar as the value of all securities to which OPTIMA is entitled against the purchaser exceeds the amount of all secured claims by more than 20%, OPTIMA will release the surplus of the security interests at the request of the purchaser. OPTIMA shall be entitled to choose between different securities.

  2. If the delivery item is firmly connected with another item, the purchaser already transfers his ownership or co-ownership rights to OPTIMA acquired through the connection until all payment obligations have been fulfilled completely.

  3. If the object of delivery is sold by the purchaser - for which he requires the explicit approval of OPTIMA -, the purchaser already assigns to OPTIMA a claim from the sale agreement until all his payment obligations have been fulfilled completely.

  4. The purchaser shall not pledge or assign the delivery item without the consent of OPTIMA until complete fulfillment of its payment obligations and shall immediately notify OPTIMA in writing of seizures of third parties to the delivery item or any other impairment of the ownership rights.

  5. The purchaser is obliged to take part in measures necessary for the protection of the property of OPTIMA. Insofar as the retention of title requires registration in a reservation of title register or similar public register, the purchaser authorizes OPTIMA to sign or record the retention of title in public registers, books or the like in accordance with the relevant state laws at the expense of the purchaser and to comply with all formalities.
     

§ 7 Warranty - Scope and Duration of Warranty Claims

Under exclusion of further claims - subject to § 8 (2) of these GTC – OPTIMA warrants as follows for defects of the delivery item:

  1. All parts shall be repaired or re-delivered free of charge at the discretion of OPTIMA, which shall prove to be defective as a result of circumstances already existing at the time of transfer of risk. The detection of such defects must be reported to OPTIMA immediately in text form. At the request of OPTIMA, a rejected delivery item must be returned carriage paid to OPTIMA. In the case of a justified complaint, OPTIMA reimburses the costs of the cheapest shipping route; this does not apply if the costs increase because the delivery item is located in a place other than the place of intended use. Replaced parts become the property of OPTIMA.

  2. In order to undertake all necessary rectifications and replacement deliveries to be made at the discretion of OPTIMA, the purchaser shall, after agreement with OPTIMA, provide the necessary time and opportunity; otherwise, OPTIMA is exempted from liability for the resulting consequences. Only in urgent cases of endangerment of operational safety or to prevent disproportionately large damages, the customer - after immediate notification of OPTIMA - has the right to have the defect rectified itself or by a third party and to demand compensation from OPTIMA for the necessary expenses.

  3. Of the costs resulting from the repair and / or replacement delivery, OPTIMA shall bear the costs of the replaced part including the shipment, the import (customs) as well as the reasonable costs of removal and installation by a technician, an assistant of OPTIMA, if the complaint proves to be justified.

  4. Within the scope of the statutory provisions, the purchaser has the right to withdraw from the contract if OPTIMA - taking into account the statutory exceptions - lapses an agreed period of time for the rectification or replacement due to a defect for reasons for which it is responsible. If there is only an insignificant defect, the purchaser is only entitled to a reduction of the contract price. The right to reduce the contract price is otherwise excluded.

  5. No liability is assumed - in particular - in the following cases: Inappropriate or improper use, faulty installation or commissioning by the purchaser or third parties, normal wear and tear, faulty or negligent treatment/storage, improper maintenance, unsuitable equipment, construction-related inadequacies, electrical and/or chemical influences - if such circumstances are not attributable to OPTIMA.

  6. If the purchaser or a third party improperly repairs without prior notification to OPTIMA, there shall be no liability of OPTIMA for the resulting consequences. The same applies to changes to the delivery item made without the prior consent of OPTIMA.

  7. The limitation period for claims for defects is - subject to a mandatory longer period of limitation (§§ 202, 309 No. 7, 438 (3), 634a (3) BGB) - 12 months from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages of the purchaser resulting from injury to life, limb or health or from intentional or grossly negligent breaches of duty by OPTIMA or its vicarious agents, which in each case expire in accordance with the statutory provisions. If the delivery is delayed for reasons for which the purchaser is responsible, the date of the notification of readiness for dispatch is decisive for the beginning of the limitation period.

  8. If the use of the delivery item leads to the infringement of industrial property rights or copyrights in Germany, OPTIMA will, at its own expense, procure the right to further use of the purchaser or modify the delivery item in a way that is reasonable for the purchaser such that the infringement of property rights ceases. If this is not possible on economically reasonable terms or within a reasonable period, the purchaser is entitled to withdraw from the contract. Under the above conditions, OPTIMA is also entitled to withdraw from the contract. In addition, OPTIMA will indemnify the purchaser for undisputed or legally established claims of the relevant property rights holder.

  9. Subject to § 8 (2) of these GTC, the obligations of OPTIMA mentioned in § 7 (8) of these GTC shall be final and conclusive in the event of an infringement of intellectual property rights or copyright. They are only provided if
    the purchaser immediately informs OPTIMA of asserted protective or copyright infringements,
    the purchaser supports OPTIMA to a reasonable extent in the defense against the asserted claims or allows OPTIMA to carry out the modification measures in accordance with § 7 (8) of these GTC,
    OPTIMA reserve all defensive measures including out-of-court settlements,
    the defect of title was not caused by the purchaser changing the delivery item on his own initiative or using it in a way that was not in conformity with the contract.

     

§ 8 Liability for Damages due to Fault

  1. If the delivery item cannot be used by the purchaser in accordance with the contract as a result of omitted or incorrect information or breaches of other contractual secondary obligations by OPTIMA - especially the instructions for operation and maintenance of the delivery item, the regulations of §§ 7 and 8 (2) of these GTC shall apply respectively, excluding further claims of the purchaser.

  2. For damages that did not occur on the delivery item itself, such as: eg loss of production, loss of use, loss of orders, financing costs, lost profits, consequential damages and other direct or indirect damages, OPTIMA shall only be liable - for whatever legal justification –
    - in cases of intent,
    - in case of gross negligence on the part of the owner(s) or executive officer(s) of OPTIMA,
    - culpable injury to life, body, health,
    - in the case of defects which they have fraudulently concealed or whose non-existence was guaranteed,
    - in case of defects of the delivery item, as far as according to the product liability law (Produkthaftungsgesetz) or other mandatory legal regulations for personal injury or material damage to privately used objects is liable.
    In the event of culpable violation of essential contractual obligations, OPTIMA is also liable for gross negligence of non-managerial employees and for slight negligence; in the latter case limited to the contractually typical, reasonably and foreseeable damage.

  3. Further claims are excluded.
     

§ 9 Statute of Limitations

Subject to § 7 (7) of these GTC, as well as any liability for intentional or malicious conduct, liability for injury to life, limb or health and for claims under the Product Liability Act (Produkthaftungsgesetz), for which the statutory periods apply, all claims of the purchaser - for whatever legal reasons – shall be time barred after 12 months.
 

§ 10 Software Usage

  1. If software is included in the scope of delivery, the purchaser is granted a non-exclusive right to use the supplied software including its documentation. It is left for usage on the intended delivery item. Use of the software on more than one system is prohibited.

  2. The purchaser may only reproduce, revise, translate or convert the software from the object code to the source code to the extent permitted by law. The purchaser undertakes not to remove manufacturer information - in particular copyright notices - or to modify it without the prior explicit consent of OPTIMA.

  3. All other rights to the software and the documentation including the copies remain with OPTIMA or the software supplier. Sublicensing is not permitted.
     

§ 11 Installation

If OPTIMA also assumes the installation of the delivery item, the General Conditions of Installation of OPTIMA shall apply complementarily, unless special contractual agreements are made.
 

§ 12 Secrecy and Data Protection

  1. OPTIMA and the purchaser are obligated to treat the information and documents reciprocally received when concluding and executing a contract, in particular confidential information, personal data and trade secrets, strictly confidential even beyond the duration of the contract and shall not to pass them on to third parties. Employees must be obliged accordingly.

  2. The contracting parties undertake to comply with the provisions of the Federal Data Protection Act (Bundesdatenschutzgesetz), as amended, during business operations and to impose these obligations onto its employees.

  3. Insofar as this is necessary for the execution and handling of the contractual relationship, OPTIMA reserves the right to save the data relating to the contractual relationship of the purchaser pursuant to § 28 of the Federal Data Protection Act (Bundesdatenschutzgesetz) for the purpose of data processing and to transfer such data to third parties (eg insurance companies or credit bureaus). In particular, the full text of the contract is stored for the purpose of fulfilling the contract. The collection, transmission or other processing of personal data of the purchaser for purposes other than those mentioned in this § 12 shall not take place without the explicit prior consent of the purchaser.

  4. If order data processing occurs within the scope of the contract execution, the purchaser undertakes to conclude a "contract data processing agreement" with OPTIMA and to provide all necessary data.
     

§ 13 Final Provisions

  1. If the purchaser is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the business relationship between OPTIMA and the purchaser shall be the headquarters of OPTIMA. Mandatory legal provisions on exclusive jurisdictions as well as the right of OPTIMA to call the court at another statutory place of jurisdiction remain unaffected by this provision.

  2. The relations between OPTIMA and the customer are exclusively subject to the law of the Federal Republic of Germany, excluding the conflict of laws (Kollisionsrecht) and the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).

  3. The invalidity of one or more provisions of this contract shall not result in the ineffectiveness of the remaining provisions. The ineffective clause is replaced by the one which most closely reflects the economic purpose of the permissible provisions and on which the parties should reasonably have accepted according to the principles of good faith.

  4. The English version of these GTC is only provided for the comfort and convenience of the purchaser. In the case of any inconsistencies between the English and German version of these GTC, the German version shall always prevail.

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