General Terms and Conditions of optiMEAS GmbH, Friedrichsdorf
§ 1 General / Scope of application
(1) These terms and conditions apply to all present 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 made by optiMEAS are subject to change without notice, unless expressly agreed otherwise.
(2) All information and illustrations in offers, brochures, advertisements, catalogs or other information materials of optiMEAS are only approximate values and need not correspond to the respective state of the art. Therefore, they do not constitute an agreement as to quality or a guarantee and are not relevant to the contractual determination of the object of performance and delivery.
(3) The contract is only concluded by the customer's written order confirmation, whereby this can also be done electronically (e-mail).
(4) If the customer orders goods from optiMEAS without a prior offer, he makes a binding declaration that he wishes to purchase the ordered goods. optiMEAS is entitled to accept the contractual offer contained in the order within two weeks of receipt by optiMEAS. Acceptance can be declared either in writing or by delivering the goods to the customer. If the customer orders the goods by electronic means, optiMEAS shall immediately confirm receipt of the order, whereby this confirmation of receipt does not constitute a binding acceptance of the order. However, the confirmation of receipt may be combined with the declaration of acceptance. If the customer orders the goods electronically, the text of the contract will be stored by optiMEAS and sent to the customer by e-mail upon request, together with these General Terms and Conditions.
(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 title to the goods until the purchase price has been paid in full; in the case of contracts with entrepreneurs, optiMEAS retains title to the goods until all claims arising from an ongoing business relationship have been settled in full.
(2) If the buyer acts in breach of contract, optiMEAS is entitled to demand the return of the goods. This demand for return shall only be deemed a 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 being intended for resale. The customer shall also be obliged to prevent access to the reserved property by third parties, making reference to the rights of optiMEAS, and to inform optiMEAS accordingly.
(4) The customer is entitled to resell the goods in the ordinary course of business subject to the provisions of paragraph 3. The customer hereby assigns to optiMEAS all claims in the amount of the invoice amount that accrue to him against a third party as a result of the resale. optiMEAS accepts the assignment. After the assignment, the customer is authorized to collect the claim. optiMEAS reserves the right to collect the claim itself as soon as the customer fails to properly meet its payment obligations and is in default of payment.
§ 4 Scope of delivery
(1) The written order confirmation from optiMEAS shall be authoritative for the scope of the delivery; in the case of an offer from optiMEAS with a time commitment and acceptance within the specified period, the offer shall be authoritative if no order confirmation is received in due time.
(2) Delivery is made at the customer's expense from the domestic or storage location. The risk shall pass to the customer when the ordered goods are handed over to a forwarding agent or to another person or institution commissioned with the transport; this shall also apply to carriage paid deliveries. optiMEAS shall be entitled, but not obligated, to insure the transport at the customer's expense without the customer's express written instructions. If the customer is a consumer, the risk of accidental loss and accidental deterioration of the sold goods, even in the case of mail order purchases, is not transferred to the customer until the goods are handed over.
(3) Unless otherwise agreed, optiMEAS shall provide software and associated documentation by means of electronic software delivery (ESD), thus enabling the customer to download the purchased program package and agreed updates from the optiMEAS server. In this case, delivery is made in written form, including by e-mail, when the link for the download is provided. Delivery on data carriers (CD, DVD, FLASH memory) or in paper form is additionally only carried out at the express request of the buyer and will be invoiced separately. The buyer himself shall ensure the safe storage of a copy of the loaded software and documentation.
(4) The delivery periods and dates stated in the order do not represent fixed dates. The delivery period begins with 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 on the part of the customer are necessary for the execution of the delivery, the delivery period shall not begin until these actions have been completed. The delivery period shall be deemed to have been met if the delivery item has left the optiMEAS factory within the delivery period or a reasonable grace period, or readiness for shipment has been notified.
(5) optiMEAS is entitled to make partial deliveries, which shall be invoiced in partial invoices.
(6) optiMEAS shall not be held responsible for delays in delivery due to force majeure, changes in the official approval and legal situation, operational disruptions, labor disputes, material procurement problems - even if they occur at the suppliers themselves - even if delivery dates have been bindingly agreed. In these cases the agreed delivery date is tacitly extended by the reasonable period of time necessary to remove the obstacle. Claims for damages by the customer due to delay are excluded, unless the delay is due to intent or gross negligence by optiMEAS.
§ 5 Acceptance
(1) After installation and connection of the devices, their operational readiness is determined by a test run with standard test programs. The functionality of individual software is also determined by a test run. The customer must then accept the delivered devices and/or programs 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 repairs or replacement deliveries and then to declare readiness for acceptance again. If the customer does not accept the goods within a period of fourteen calendar days, or if the customer does not provide a written declaration of acceptance with a precise description of the unfulfilled points, the acceptance shall be deemed completed.
§ 6 Prices and terms of payment
(1) All prices are valid 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 euros within 30 days of receipt of the invoice without any deductions and free of charge for optiMEAS. If the payment deadline is exceeded, optiMEAS shall charge interest on arrears at a rate of 4 % above the base interest rate of the European Central Bank, without prejudice to further rights to default interest, unless the customer proves that a significantly lower loss 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 to the extent that 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 delivery from other orders of the customer. Insofar as the arrears are paid, optiMEAS is entitled to set a new delivery date at its own reasonable discretion, taking into account its other delivery obligations.
§ 7 Cancellation policy for goods deliveries, services and right of return
(1) The consumer has the right to revoke his contractual declaration within 14 days without stating reasons in writing (e.g. letter, fax, e-mail) or - if the goods have been delivered to him before the expiry of this period - also by returning the goods. The time limit begins after receipt of this notification in writing, but not before receipt of the goods by the consumer (in case of recurring deliveries of similar goods not before receipt of the first partial delivery) and also does not fulfill our obligations to inform according to Article 246 § 2 in conjunction with § 1 paragraph 1 and 2 EGBGB as well as our obligations according to § 312 g paragraph 1 sentence 1 BGB in conjunction with Article 246 § 3 EGBGB. The timely dispatch of the revocation or the goods is sufficient to comply with the revocation period. The revocation is to be addressed to:
At Houiller Square 4
(2) Consequences of withdrawal
In the event of an effective revocation, the services received by both parties are to be returned and any benefits derived (e.g. interest) surrendered. If the consumer is unable to return or surrender to optiMEAS the received services and benefits (e.g. advantages of use), or is only able to return or surrender them partially or in a deteriorated condition, the consumer must compensate optiMEAS for the lost value. The consumer must only compensate optiMEAS for the deterioration of the goods and for benefits derived from the use of the goods if the use or deterioration is due to handling of the goods that goes beyond the examination of the properties and functionality. By "testing the characteristics and functionality" we mean the testing and trying out of the respective goods, as it is possible and usual in a retail shop. Items that can be shipped as packages are to be returned at the risk of optiMEAS. The consumer must bear the regular costs of returning the goods if the delivered goods correspond to those ordered and if the price of the goods to be returned does not exceed EUR 40.00 or, in the case of a higher price, if the consumer has not yet paid the consideration or a contractually agreed part payment at the time of cancellation. Otherwise, the return shipment is free of charge for the consumer. Goods that cannot be sent by parcel post will be collected from the consumer. Obligations to refund payments must be fulfilled within 30 days. The period begins for the consumer when a declaration of withdrawal or the item itself is sent, and for optiMEAS when it is received.
The same applies to the provision of services by optiMEAS. In connection with compensation for lost value, this may mean that consumers must nevertheless meet their contractual payment obligations for the period until revocation.
The right of withdrawal expires prematurely if the contract is completely fulfilled by both parties at the express request of the consumer optiMEAS before the consumer has exercised his right of withdrawal.
(3) Return instruction
The consumer can return the received goods without giving reasons within 14 days by sending back 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. To comply with the time limit, it is sufficient to send the goods or the request to take them back in due time. In any case, the return shipment 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.
Consequences of return
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 uses (e.g. benefits of use) that cannot be surrendered or only partially surrendered or only in a deteriorated condition, the consumer must compensate optiMEAS for lost value. The above-mentioned provisions regarding the testing of properties and functionality apply accordingly.
§ 8 Warranty
(1) optiMEAS warrants that hardware is free of material and manufacturing defects at the time of transfer of risk. The elimination of defects and all associated obligations shall be the responsibility of the manufacturer and not of optiMEAS, unless optiMEAS is the manufacturer. Program errors in individual software must be reported in writing and must be specified and documented in such a way that it is possible to check their content. The customer is aware that, given the state of the art, the occurrence of program errors cannot be completely ruled out. They therefore do not constitute defects in the legal sense. Program errors in individual software shall be remedied by optiMEAS free of charge within the warranty period, and after the warranty period has expired optiMEAS shall remedy them for a fee. In addition, optiMEAS warrants that the programs will run smoothly with the agreed program functions and properties.
(2) In the event of defects in the delivery item, optiMEAS shall have the right to choose whether to provide warranty by repair or replacement free of charge. If the subsequent performance (repair or replacement) fails, the customer may, in principle, demand a reduction in payment (abatement) or rescission of the contract (withdrawal) at his discretion. However, in the event of only a minor breach of contract, in particular in the case of only minor defects, the customer shall not be entitled to withdraw from the contract.
(3) The customer is obliged to notify us in writing of obvious defects within a period of ten days from receipt of the delivery item; otherwise the assertion of warranty claims is excluded. The timely dispatch of the notice of defects shall be sufficient to comply with the deadline. The customer bears the full burden of proof for all claim requirements, in particular for the defect itself, for the time of detection of the defect and the timeliness of the notice of defects. 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 claims for damages due to the defect.
(5) If the customer chooses compensation after a failed subsequent performance, the goods shall remain with the customer if this is reasonable. 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 maliciously caused the breach of contract.
(6) The warranty period is two years from delivery. In the event that acceptance is agreed, the warranty period shall commence on the day of acceptance of the delivery item. The above shall not apply if the customer has not notified the defect in due time.
(7) Guarantees in the legal sense are only provided by optiMEAS if they are expressly included in the order confirmation and are described as warranties 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 the delivery item to chemical or electrochemical effects for which the device was not suitable after proper use. All warranty claims shall expire if the customer installs unauthorized accessories or carries out interventions and/or repairs to devices and software either himself or through third parties without the express consent of optiMEAS.
§ Article 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 type of goods. This also applies to slightly negligent breaches of duty by legal representatives or vicarious agents.
(2) optiMEAS shall not be liable to companies for slightly negligent violation of insignificant contractual obligations.
(3) The above limitations of liability shall not affect claims of optiMEAS arising from product liability. Furthermore, the limitations of liability do not apply in the case of physical injury or damage to health attributable to optiMEAS or in the 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 under this contract shall be Friedrichsdorf. The place of jurisdiction for all disputes arising in connection with this agreement in relation to registered merchants is optiMEAS. optiMEAS also has the right to sue the other party at its principal place of business or at the location of the branch office to which the items purchased under this contract are delivered.
(3) Additions and amendments 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 closest to what the parties to the contract intended.