General Terms and Conditions of Opto GmbH (Status 04/2023)
1. Validity of these terms and conditions
1.1 All offers, deliveries and services of Opto GmbH ("Opto") are made exclusively on the basis of these general terms and conditions; this also applies to all future business transactions, even if the validity of these terms and conditions is not expressly agreed again there. The customer agrees to the validity of these general terms and conditions of business at the latest with the uncontradicted acceptance of the delivery or service. General terms and conditions of the customer only apply insofar as they are in agreement with these general terms and conditions of Opto; otherwise the general terms and conditions of the customer do not apply, even if Opto does not expressly contradict them. The term customer in the sense of these general terms and conditions also includes client, orderer, buyer, purchaser, recipient of services.
1.2 Deviations from these general terms and conditions are only effective if they are agreed in writing or confirmed in writing by Opto to the customer.
1.3 These General Terms and Conditions shall only apply in Opto's business transactions with customers who are entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law.
1.4 The General Terms and Conditions of Opto shall apply in the version valid at the time of the conclusion of the respective contract with the customer, which is published on the Opto website/homepage https://www.opto.de.
2. Offer and conclusion of contract
2.1 All offers from Opto are subject to change, in particular with regard to price, quantity, delivery period and delivery possibilities. Declarations of acceptance by Opto regarding orders or commissions from the customer are only binding if confirmed by Opto in writing, by fax or e-mail. The same applies to changes or additions to an order. Orders of the customer can be accepted by Opto within 14 days from receipt by written, faxed or e-mailed confirmation of order or confirmation of dispatch or by delivery of the ordered product or goods (hereinafter also: "subject matter of the contract") or by provision of the ordered service. The mere acceptance of orders or commissions from the customer does not constitute an acceptance or order confirmation and therefore does not constitute the conclusion of a contract.
2.2 Opto reserves the right to make changes to the form, construction and design of the subject matter of the contract, insofar as the quality and suitability for use of the subject matter of the contract is not impaired thereby or the deviation is not unreasonable for other reasons.
2.3 Dimensions, colours, weights, illustrations or other information regarding the properties of the subject matter of the contract from Opto are only binding if this is expressly agreed in writing. Errors and colour deviations are reserved.
3. Delivery and performance time / partial delivery
3.1 Partial performance and partial deliveries are permissible and oblige the customer to pay the pro rata remuneration unless the partial performance or partial delivery is unreasonable for him.
3.2 Insofar as services or deliveries are to be provided by Opto on call of the customer, the customer is obliged - unless otherwise agreed - to accept partial deliveries or partial services in approximately equal quantities. Otherwise the entire service or delivery shall be deemed to have been called by the customer one calendar month after the expiry of the period agreed for the call or, in the absence of an agreed period, three calendar months after conclusion of the contract.
3.3 Unless otherwise expressly agreed in writing, the delivery or service deadlines stated by Opto are non-binding and subject to change. If the delivery is delayed due to circumstances for which the customer is responsible, the agreed delivery period or delivery date shall be extended accordingly. In cases of special circumstances and events pursuant to Clauses 12.1 and 12.2, the provisions in Clause 12 shall apply.
3.3 The start of a delivery or performance time stated by Opto requires the prior clarification of all technical questions.
3.4 Compliance with the delivery and performance obligation further presupposes the timely and proper fulfilment of the customer's obligations. The defence of non-performance of the contract remains reserved.
3.5 Delivery deadlines shall be deemed to have been met if the subject matter of the contract has been dispatched by Opto by the expiry of the deadline or the customer has been notified of readiness for dispatch.
3.6 If the customer is in default of acceptance or culpably breaches other duties to cooperate, Opto is entitled to demand compensation for the damage it has suffered, including any additional expenses. The risk of accidental loss or accidental deterioration of the subject matter of the contract shall pass to the customer at the time the customer is in default of acceptance. If dispatch or delivery is delayed at the request of the customer by more than one month after notification of readiness for dispatch, Opto is entitled to charge storage fees amounting to 0.5% of the price of the contract goods to be delivered for each month or part thereof, up to a maximum of 5% in total. Opto and the customer reserve the right to prove higher or lower storage costs.
3.7 Opto is entitled at any time to make a delivery or dispatch of the subject matter of the contract dependent on a deposit or advance payment by the customer and will inform the customer of this by e-mail before delivery / dispatch. Opto also reserves the right to demand payment on account.
4. Prices / Terms of payment / Transfer of risk / Offsetting / Right of retention
4.1 Unless otherwise agreed, Opto's prices and remuneration are ex works D-82116 Gräfelfing, plus the respective statutory value added tax. The customer shall bear the costs of shipment with a carrier/forwarding agent selected by Opto, including packaging.
4.2 All prices stated in offers and price lists can be changed by Opto without prior notice. The prices valid on the day of delivery will be charged.
4.3 Price or remuneration changes are permissible for Opto if there are more than 6 weeks between the conclusion of the contract and the agreed service or delivery date. In the case of permissible price or remuneration changes the following applies: If wages, material costs or market purchase or procurement prices (list prices) increase or exchange rates change before the contractual service or delivery is provided, Opto is entitled to increase the price or remuneration appropriately according to the cost increases.
4.4 Unless otherwise agreed in writing or stated in the order confirmation or invoice, Opto's invoices shall be payable within 30 days of the invoice date and delivery or service at the latest. Invoices for repairs and maintenance work are payable immediately, without deduction. Invoices in debit or direct debit procedure are due for payment on the day the invoice is issued. Should a discount be granted, it is a prerequisite for such a discount that all previous invoices have been settled. If the applicable payment deadline is exceeded, the customer shall be in default without further reminder. If the customer is in arrears with payment, Opto can charge interest at a rate of 9 percentage points p.a. above the base rate (§ 247 BGB). Payment by bill of exchange is excluded. If Opto accepts cheques, this is only on account of performance; Opto reserves the right to return cheques if necessary and to demand immediate payment or the provision of another security instead, if it is to be feared that the cheques do not provide sufficient security. All possible costs of payments, transfers or cheque payments shall be borne by the customer.
4.5 If Opto becomes aware of circumstances which suggest that the financial circumstances of the customer have deteriorated significantly after the contract has been concluded, in particular if the customer is in default of payment, and therefore claims for payment by Opto are at risk, Opto is entitled to demand that deliveries or orders are only made against full or partial payment concurrently or against provision of security. If in the event of the occurrence of a significant deterioration in the financial position of the customer, the continuation of contracts is unreasonable for Opto, then Opto is entitled to withdraw from all contracts not yet fully executed or to terminate these with immediate effect. This applies in particular if the customer, in the case of a significant deterioration in assets, does not comply with the request for security or full advance payment despite the setting of a deadline and the threat of withdrawal or termination.
4.6 The customer is only entitled to set-off against claims of Opto if the counterclaim is undisputed, recognised, legally established or ready for decision. This applies accordingly to the assertion of rights of retention on the part of the customer.
4.7 The risk shall pass to the customer at the latest when the subject matter of the contract is handed over to the forwarding agent/transporter or another transport person or when it is handed over for dispatch at the post office or DHL; the risk shall also pass to the customer, as aforesaid, if Opto takes over the forwarding costs on the basis of a special written agreement. The risk also passes to the customer if the subject matter of the contract is stored at the request of the customer at Opto's premises or at the premises of a third party commissioned by Opto.
4.8 Unless otherwise instructed by the customer, all deliveries dispatched shall be insured by Opto against general transport risks to the usual extent at the customer's expense. Transport damages are to be reported to Opto as well as the delivering forwarding agent or carrier immediately by e-mail.
4.9 The customer is responsible for compliance with any import, customs and foreign trade regulations applicable to him, in particular concerning any existing import restrictions, registration and documentation obligations, at his own expense and shall indemnify Opto against any liability as well as any disadvantages, expenses and costs due to non-compliance or non-fulfilment of such regulations.
5. Cooperation obligations of the customer / acceptance
5.1 The customer is obliged to provide Opto free of charge and in good time with all documents or details required by the customer for the performance of the service or fulfilment of the order. Opto is, as far as not expressly differently agreed, not obligated to the contentwise examination of the documents left by the customer, performed data and desired requirements (specifications, functions and technical details) on possible errors and/or injury of rights third by conversion of the described requirements.
5.2 Insofar as the customer provides its own services or services are provided by third parties (including deliveries of goods), the customer shall bear the responsibility for the coordination of the individual work processes and for compliance with the relevant safety regulations and accident prevention regulations.
5.3 If the customer does not fulfil his obligations to cooperate to the required extent, Opto is released from its obligations to perform for the duration of the disruption and to the extent of its effect and can demand appropriate compensation for the additional expenditure caused by this. In such a case Opto will take into account what Opto saves in expenses or can acquire through other orders.
5.4 Insofar as Opto owes the customer a work performance or work delivery, the customer is obliged to carry out the acceptance of the delivery or performance within two weeks from the transfer of risk (cf. Sections 3.6, 4.7). If this does not occur, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place if the delivery has been put into use - if applicable after completion of an agreed test phase.
6. Retention of Title / Retention of Ownership Security
6.1 Opto retains ownership of the subject matter of the contract (hereinafter also: "goods subject to retention of title") until receipt of all payments arising from the business relationship with the customer and the companies associated with the customer within the meaning of §§ 15 ff of the German Stock Corporation Act (AktG). In the event of breach of contract by the customer, in particular default of payment, Opto is entitled to take back the subject matter of the contract; whereby the taking back of the goods constitutes a withdrawal from the contract. Opto is entitled to enter the customer's premises or storage rooms/areas for the purpose of taking back or marking the goods subject to retention of title. After taking back the subject matter of the contract Opto shall be entitled to realise it, the realisation proceeds shall be credited against the customer's liabilities - less reasonable realisation costs.
6.2 As long as the retention of title exists, the customer is obliged to treat the subject matter of the contract with care; in particular, he is obliged to sufficiently insure it at his own expense against fire, water and theft damage and other natural hazards at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
6.3 In the event of seizure or other access by third parties to the goods subject to retention of title, the customer must draw attention to Opto's ownership and inform Opto immediately by email so that Opto can take measures to secure its rights. Any damages or costs arising due to or in connection with seizures or other access by third parties shall be borne by the customer.
6.4 The customer is entitled to resell the subject matter of the contract in the ordinary course of business; however, he already now assigns to Opto all claims amounting to the final invoice amount (including VAT) of the respective claim to which he is entitled from the resale against his customers or third parties, irrespective of whether the subject matter of the contract has been resold without or after processing. The customer remains authorised to collect this claim even after the assignment. The authority of Opto to collect the claim itself remains unaffected.
However, Opto undertakes not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and in particular no application for the opening of insolvency proceedings or similar proceedings has been made or payments have been suspended or there has been any other significant deterioration in the customer's assets. If this is the case, Opto can demand that the customer informs Opto of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors or third parties of the assignment. The customer is not entitled to pledge the reserved goods to third parties or to assign them as security.
6.5 The processing or transformation of the subject matter of the contract by the customer is always carried out for Opto. If the subject matter of the contract is processed with other items not belonging to Opto, Opto acquires co-ownership of the new item in the ratio of the value of the subject matter of the contract (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same applies to the object created by the processing as to the contractual object delivered under reservation.
6.6 If the subject matter of the contract is inseparably mixed with other items not belonging to Opto, Opto acquires co-ownership of the new item in the ratio of the value of the subject matter of the contract (final invoice amount, including VAT) to the other mixed items at the time of mixing. In the event that the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is hereby agreed that the customer transfers co-ownership to Opto on a pro rata basis. The customer shall keep the sole ownership or co-ownership thus created for Opto.
6.7 Opto undertakes to release securities to which Opto is entitled on written request of the customer insofar as the realisable value of the securities exceeds Opto's claims to be secured by more than 10%; the choice of the securities to be released is Opto's responsibility.
7. Samples / sample products / rights of use / industrial property rights / know-how
7.1 Quotation documents, cost estimates, drafts, drawings and calculations or similar documents ("documents") prepared by Opto remain the sole property of Opto and may not be reproduced, used or exploited or made available to third parties without the written consent of Opto. If an order does not come about, the documents are to be returned to Opto immediately and completely and any copies made are to be destroyed. The foregoing applies accordingly to samples, prototypes, demonstration models, sample templates or sample goods ("samples") made available to the customer by Opto. Duplication, reproduction, replication and imitation, in whatever form, of documents and samples as well as of delivered contractual items are prohibited without the prior express written consent of Opto.
7.2 If Opto provides the customer with a sample product, a prototype, a test copy or a demonstration model (collectively: "sample product") free of charge for examination, testing, inspection or trial operation, a loan contract for the sample product shall be concluded in this respect. In this case, the customer must return the sample product, including packaging, in the condition in which it was received at its own risk within 21 days, unless a different period has been agreed in writing or by e-mail. The customer shall be liable to Opto for any damage, repair or destruction of the loaned sample product during the loan period and the return to Opto; with the exception of normal wear and tear during the loan period. The customer is not entitled to change the borrowed sample product or to hand it over to third parties.
7.3 The handing over or delivery of samples, sample goods, sample products or other subjects of the contract does not constitute a granting by Opto of any rights of use or licence of any kind whatsoever concerning the protectable intellectual property embodied in the samples, in the sample goods, sample products or in the subject of the contract (in particular no granting of rights of use or licence concerning know-how, copyrights, utility model rights and/or design rights, patents or other intellectual property rights). in the subject matter of the contract (in particular no granting of rights of use or licence rights concerning know-how, copyrights, utility model rights and/or design rights, patents or other industrial property rights of any kind) and no transfer of rights to intellectual property of Opto to the customer.
7.4 Any transfer of intellectual property of whatever kind (in particular know-how, copyright, utility model and/or design rights, patents or other industrial property rights of whatever kind) or the granting of rights of use, exploitation or licence of whatever kind thereto by Opto always requires an express written agreement.
7.5 If inventions are made by Opto within the framework of the business relationship or within the framework of the fulfilment of contracts with the customer, Opto shall have the sole right to exploit the rights derivable therefrom, in particular patents and utility models and other industrial property rights.
8. Data protection
8.1 Regarding information on data protection within the meaning of Art. 13 DSGVO, please refer to Opto's data protection declaration at www.opto.de.
8.2 Opto is entitled to process (in particular to store and to use in business dealings) the personal data of the customer and the contact persons there for Opto received in the context of the business relationship with the customer or in connection with it, irrespective of whether this data originates from the customer itself or from third parties, in compliance with the provisions of the DSGVO and the BDSG (as amended from time to time) and to use it, without the requirement of further notice or consent, for further offers, advertising measures and other contacts with the customer. The customer has to observe the regulations of the DSGVO and the BDSG (as amended from time to time) when processing the personal data of Opto and the customer's contact persons there (in particular storage and use in business transactions).
9. Warranty / Defect Claims
9.1 As the delivery is made in the course of commercial business, the customer must inspect the subject matter of the contract delivered by Opto immediately after its receipt and notify Opto of any defects and quantity discrepancies discovered in the process by e-mail within 3 working days after discovery of the defect at the latest. Obvious defects must be notified to Opto within 3 working days of receipt of the subject matter of the contract at the latest. If defects occur later within the warranty period which could not have been detected during careful incoming inspection, the customer must notify us of these defects by e-mail within 3 working days of discovery; the limitation period for claims by the customer shall in no case be extended by the aforementioned notification periods. In the event of a complaint not being made in due time, the customer shall have no claims for defects. In the event of failure to inspect the goods immediately after receipt, the customer shall have no claims for defects. The burden of proof for the time of detection of the defects or quantity deviations or the non-detectability in the case of careful incoming inspection shall lie with the customer. Changes made to deliveries and services without Opto's consent shall exclude any legal claim for subsequent performance as well as other warranty claims.
9.2 In the case of justified notices of defect, Opto may, at its discretion, remedy the defect or supply a replacement free of defects as supplementary performance. The return of the defective subject matter of the contract to Opto shall be free of postage or freight charges. In the event of a defect, Opto shall bear the costs of the cheapest return shipment by the customer within Germany. Opto is only obliged to supplementary performance, irrespective of the intended place of use of the subject matter of the contract, at the place of performance in accordance with Clause 13.3. If, by way of exception, the supplementary performance is carried out at another location on the basis of a separate agreement to be made by e-mail, the customer shall bear the travel and transport costs incurred for this purpose as well as all expenses (in particular hotel costs, etc.) and shall make an advance payment for this purpose. If such subsequent performance (rectification or replacement delivery) does not come about or fails twice for reasons for which the customer is not responsible, the customer may demand the cancellation of the contract (withdrawal) or reduction of the remuneration (reduction). In the event of minor defects, the customer shall not be entitled to withdraw from the contract. For statutory rights of withdrawal, § 350 BGB shall apply accordingly. Subsequent performance or replacement delivery shall take place without recognition of a legal obligation and shall not suspend the limitation period for claims for defects for the subject matter of the contract and shall also not lead to the restart of the limitation period for claims for defects.
9.3 The customer shall bear the full burden of proof for all prerequisites for claims for defects and other claims against Opto, in particular also for the timeliness of the notification of defects.
9.4 Further claims for defects of any kind whatsoever are excluded, subject to any claims for damages limited in accordance with Clause 10.
9.5 A guarantee or assurance with regard to the subject matter of the contract only exists if this is expressly declared by Opto in writing. Product descriptions, explanations of function, operating instructions or similar and advertising information, in whatever form, do not constitute a guarantee or assurance of characteristics of the subject matter of the contract.
9.6 Opto shall not be liable for improper or unsuitable use of the subject matter of the contract, in particular excessive stress, faulty assembly or faulty use by the purchaser or third parties, extraordinary external influences, normal wear and tear, faulty and negligent treatment and handling, in particular by untrained personnel.
10. Limitation of liability
10.1 Opto shall only be liable for any damages, irrespective of the legal grounds, if
a) Opto has culpably (i.e. at least negligently) breached an essential contractual obligation (cardinal obligation) in a way that endangers the purpose of the contract or
b) the damage was caused by gross negligence or intent on the part of Opto or
c) Opto has given an explicit or written guarantee.
10.2 In the following cases, Opto's liability is limited to the foreseeable damage typical for the contract:
a) In the event of culpable breach of material contractual obligations (cardinal obligations) which is not due to gross negligence or intent,
b) in the case of grossly negligent or negligent breach of other (non-contractual) obligations by employees or agents of Opto, who are not organs, legal representatives or executives, as well as
c) in the event of the assumption of a guarantee, unless a guarantee for the quality of the subject matter of the contract has been expressly assumed.
10.3 Opto's liability to pay compensation in respect of foreseeable damage typical of the contract is limited in case 10.2 a) to 10% of the order value of the respective delivery (net, without VAT). The aforementioned limitation of liability shall also apply in cases 10.2 b) and c). In the cases 10.2 a) to c) there shall furthermore be no liability on the part of Opto for indirect damage, consequential damage caused by a defect, other consequential damage and loss of profit.
10.4 In addition to the liability for simple negligence in the event of a breach of a material contractual obligation as set out in Clauses 10.1 a) and 10.2 a) above, Opto's liability is excluded in the event of damage caused by simple negligence.
10.5 Opto's liability towards the customer on the basis of or in connection with deliveries and services is furthermore limited in all cases of gross negligence on the part of Opto, insofar as the limitation of liability in Clause 10.2 b) does not already apply, to an amount of 20% of the order value of the respective delivery (net, without VAT).
10.6 Opto's liability for indirect damage, consequential damage or loss of profit, irrespective of the legal grounds, is excluded.
10.7 The provisions in Clause 10 shall also apply if a subject matter of the contract is only defined by its type.
10.8 The provisions in Clause 10 shall also apply in the event of any claims for damages by the customer against Opto's organs, legal representatives, executive staff, employees, subcontractors, agents and other vicarious agents.
10.9 If in individual cases it is disputed whether Opto is liable, the customer shall bear the burden of proof for all conditions of entitlement.
10.10 Any liability of Opto towards the customer beyond the regulation in clause 10 is excluded.
10.11 The limitations of liability in this clause 10 do not apply to Opto's liability under the German Product Liability Act, for injury to life, limb and health, for fraudulent concealment of a defect and the assumption of a guarantee for the quality of the subject matter of the contract.
10.12 The customer shall take all necessary and reasonable measures to avert or mitigate any damage.
11. Limitation / preclusion periods
11.1 The period of limitation for all claims of the customer against Opto, in particular due to material defects and/or defects of title or non-fulfilment or inadequate fulfilment of performance obligations as well as due to other breaches of duty, shall be 12 months from the statutory commencement of the period of limitation. The statutory limitation periods shall apply to intentional and grossly negligent breaches of duty, fraudulent concealment of defects, claims arising from tort, the absence of guaranteed characteristics, injury to a person and claims under the Product Liability Act.
11.2 Claims and formative rights (e.g. withdrawal, termination) of the customer against Opto, irrespective of the legal grounds, are excluded, insofar as these are not asserted in writing against Opto within 3 months of knowledge. All claims and rights of the customer against Opto, in particular due to material defects and/or defects of title of the delivered subject matter of the contract, are furthermore excluded if the customer has not asserted the alleged claim or the alleged right of action in court within 3 months from a rejection of the claim or right of action by Opto in writing, by fax or by e-mail.
12. Force majeure
12.1 The fulfilment of the contract on the part of Opto is subject to the proviso that no obstacles due to national or international regulations of foreign trade law (in particular: export restrictions) as well as no embargos and/or other sanctions, security checks, or official or judicial measures or legal regulations which have come into force after the order or conclusion of the contract stand in the way of the fulfilment. Due to effects of such obstacles on the fulfilment of the contract on the part of Opto, no claims or rights of the customer, no matter on which legal ground, exist against Opto.
12.2 Effects of work stoppages (strikes, lockouts, work stoppages), operational disruptions, operational restrictions, cases of force majeure (e.g. natural disasters, major fire, earthquakes, exceptional weather conditions or events, terrorism, pandemic events, SARS-Covid / Corona, etc.) on the fulfilment of the contract shall release Opto from its contractual obligations towards the customer for the duration of the aforementioned circumstances or events and to the extent of their effect.
12.3 Should special circumstances or events according to clauses 12.1 and 12.2 occur at Opto, Opto will inform the customer immediately. Opto is entitled in the cases of the Ziff. 12.1 and/or Ziff. 12.2 under consideration of the interests of the customer to the supply of a contractual item, which is equivalent to the contractual item ordered by the customer. Should special circumstances or events according to clauses 12.1 and 12.2 occur at the customer, the customer has to inform Opto immediately. Should such special circumstances or events last longer than 12 weeks, both Opto and the customer are entitled to withdraw in whole or in part from existing contracts (only because of the part of the respective contract not yet fulfilled) or to terminate them. In this case the customer has no claims for damages, reimbursement of costs and expenses, of whatever kind, and for loss of profit.
13. Applicable Law / Place of Jurisdiction / Severability Clause / Written Form
13.1 Insofar as the written form is required for declarations or agreements in these General Terms and Conditions, this requires compliance with the written form pursuant to Section 126 (1) or (2) of the German Civil Code (BGB).
13.2 The exclusive place of jurisdiction for all legal disputes arising from or in connection with contractual and business relations between Opto and the customer is the registered office of Opto entered in the commercial register at the time the action is brought. The same place of jurisdiction applies if the customer has no general place of jurisdiction in Germany at the time the action is brought.
13.3 Unless otherwise stated in the order confirmation, the place of performance shall be Opto's registered office as recorded in the Commercial Register.
13.4 The law of the Federal Republic of Germany shall apply exclusively; this to the exclusion of German international private law and to the exclusion of references to foreign or international law. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
13.4 Insofar as a provision of these General Terms and Conditions should be or become invalid, this shall not affect the validity of the remaining provisions.