Terms and Conditions - Omega-Tools GmbH

General Terms and Conditions of Business and Delivery

§ 1 Scope of application, form

These General Terms and Conditions of Delivery apply to all our business relationships with our customers (“Purchaser” or “Customer”). The Terms and Conditions of Delivery shall only apply if the Customer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
The Terms of Delivery apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 651 BGB). Unless otherwise agreed, the Terms and Conditions of Delivery in the version valid at the time of the Customer’s order or in any case in the version last communicated to him in text form shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.
Our terms of delivery apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the customer without reservation in the knowledge of the customer’s general terms and conditions.
Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these Terms and Conditions of Delivery. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
Legally relevant declarations and notifications by the customer in relation to the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declaring party, remain unaffected.
References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these Terms and Conditions of Delivery.

§ 2 Offer and conclusion of contract

All our offers are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. We can accept orders or commissions within fourteen days of receipt.
The legal relationship between the seller and the customer shall be governed solely by the purchase contract concluded in writing, including these General Terms and Conditions of Delivery. This fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal promises made by us prior to the conclusion of this contract are not legally binding and verbal agreements between the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.
Additions and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing to be effective. With the exception of managing directors or authorized signatories, our employees are not entitled to make verbal agreements deviating from this. To comply with the written form requirement, transmission by telecommunication, in particular by fax or e-mail, shall suffice, provided that a copy of the signed declaration is transmitted.
Information provided by us on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
We reserve the right of ownership or copyright to all offers and cost estimates submitted by us as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the client. The client may not make these items accessible to third parties, disclose them, use them himself or through third parties or reproduce them without our express consent. At our request, he must return these items to us in full and destroy any copies made 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 is the storage of electronically provided data for the purpose of normal data backup.

§ 3 Prices, terms of payment and offsetting

Prices are ex works excluding packaging plus the applicable statutory value added tax.
If we have undertaken the installation or assembly and unless otherwise agreed, the customer shall bear all necessary ancillary costs such as travel and transportation costs and allowances in addition to the agreed remuneration. Unless otherwise agreed, work shall be remunerated at an hourly rate of EUR 65.00 per hour for fitters and EUR 88.00 per hour for technicians or engineers.
If the agreed prices are based on our list prices and delivery is to take place more than four months after conclusion of the contract, our list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
Payments shall be made free Supplier’s paying agent.
The customer may only offset claims that are undisputed or have been legally established.

§ 4 Retention of title

We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access to the goods belonging to us (e.g. seizures).
If the customer acts in breach of contract, 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 on the basis of the retention of title. The demand for the return of the goods does not at the same time include the declaration of withdrawal; we are rather entitled to merely demand the return of the goods and reserve the right to withdraw from the contract. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
Until revoked in accordance with (c) below, the customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
a. The retention of title shall extend to the full value of the products created by processing, mixing or combining our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered subject to retention of title.
b. The customer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer stated in para. 2 shall also apply with regard to the assigned claims.
c. The customer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the customer fulfills his payment obligations to us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to para. 2. Para. 3. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, we shall also be entitled to revoke the customer’s authorization to resell and process the goods subject to retention of title.
d. If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer’s request.

§ 5 Delivery, delay, impossibility

Compliance with deadlines for deliveries requires the timely receipt of all documents to be supplied by the customer, necessary approvals and releases, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the customer. If these conditions are not fulfilled in good time, the deadlines shall be extended accordingly; this shall not apply if we are responsible for the delay.
We shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which we are not responsible. If such events make delivery or performance significantly more difficult or impossible for us and the hindrance is not only of a temporary nature, we are entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to us.
If we are in default, the customer may demand compensation of 0.5% for each completed week of delay, but no more than a total of 5% of the price for the part of the deliveries that could not be used for the intended purpose due to the delay, provided that he can credibly demonstrate that he has suffered damage as a result.
The customer’s claim for compensation for damages caused by delay shall be limited to the damage typically foreseeable for us or announced in the specific case before the start of the delay, unless our delay is due to gross negligence or intent. Any claim for damages to which the customer is entitled due to the delay instead of performance shall be limited to a maximum of the order value, unless we are responsible for the delay at least due to gross negligence.
At the Supplier’s request, the Customer shall be obliged to declare within a reasonable period of time whether it is withdrawing from the contract due to the delay in delivery or insisting on delivery.
If dispatch or delivery is delayed at the request of the Purchaser by more than one month after notification of readiness for dispatch, the Purchaser may be charged a storage fee of 0.5% of the price of the items of the Supplies for each additional month or part thereof, but not more than a total of 5%. The contracting parties are at liberty to prove higher or lower storage costs.
We are entitled to conclude covering transactions with third parties for the parts and materials ordered and to make all arrangements for our timely delivery ourselves. We shall not be liable if the delivery is not made on time, properly or at all by the third party for reasons for which we are not responsible.
We are entitled to make partial deliveries if
– the partial delivery can be used by the customer within the scope of the contractual purpose,
– the delivery of the remaining ordered goods is ensured and
– the customer does not incur any significant additional expenses or additional costs as a result (unless we have agreed to bear these costs).

§ 6 Transfer of risk

The place of performance for all obligations arising from the contractual relationship is Ritterhude, unless otherwise agreed. If we also owe the installation, the place of performance shall be the place where the installation is to be carried out.
The shipping method and packaging are subject to our dutiful discretion.
The risk shall pass to the customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if we have assumed other services (e.g. shipment or installation). If dispatch or handover is delayed as a result of a circumstance for which the customer is responsible, the risk shall pass to the customer from the day on which the delivery item is ready for dispatch and we have notified the customer of this.
The seller shall only insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at the customer’s expense.
Insofar as acceptance is to take place, the item shall be deemed to have been accepted if
– the delivery and, if we also owe the installation, the installation has been completed,
– we have informed the customer of this with reference to the presumption of acceptance according to this § 6 paragraph 5 and have requested him to accept the goods,
– twelve (12) working days have passed since delivery or installation or the customer has started to use the item (e.g. has put the delivered system into operation) and in this case six (6) working days have passed since delivery or installation or
– the customer has failed to accept the goods within this period for a reason other than a defect notified to us which makes the use of the purchased goods impossible or significantly impairs them.

§ 7 Installation and assembly

Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly:

The customer shall be responsible for and provide in good time at his own expense
a) all earthwork, construction work and other ancillary work outside the industry, including the necessary skilled and unskilled labor, building materials and tools,
b) the items and materials required for assembly and commissioning, such as scaffolding, lifting equipment and other devices, fuels and lubricants,
c) energy and water at the place of use, including connections, heating and lighting,
d) at the assembly site for the storage of machine parts, equipment, materials, tools, etc., sufficiently large, suitable, dry and lockable rooms and for the assembly personnel. sufficiently large, suitable, dry and lockable rooms and adequate working and recreation rooms for the assembly personnel, including sanitary facilities appropriate to the circumstances. In addition, the customer shall take the same measures to protect our property and the assembly personnel on the construction site as he would take to protect his own property,
e) protective clothing and protective devices which are necessary due to special circumstances at the assembly site.
Before the start of the installation work, the customer must provide the necessary information on the location of concealed electricity, gas and water pipes or similar installations as well as the necessary structural data without being requested to do so.
Prior to the start of installation or assembly, the orders and objects required for the start of the work must be at the installation or assembly site and all preparatory work must have progressed to such an extent that the installation or assembly can be started as agreed and carried out without interruption. Access routes and the installation or assembly site must be leveled and cleared.
If the installation, assembly or commissioning is delayed due to circumstances for which we are not responsible, the customer shall bear the reasonable costs for waiting time and any additional travel required by us or our assembly personnel.
The customer shall immediately certify to us on a weekly basis the duration of the working time of the installation personnel as well as the completion of the installation, assembly or commissioning.

§ 8 Material defects and warranty

The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by us or our vicarious agents, which shall in each case become time-barred in accordance with the statutory provisions.
The delivered items must be carefully inspected immediately after delivery to the customer or to the third party designated by the customer. With regard to obvious defects or other defects that would have been recognizable during an immediate, careful inspection, they shall be deemed to have been approved by the customer if we do not receive a written notice of defects within seven (7) working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Customer if we do not receive the notice of defects within seven (7) working days of the time at which the defect became apparent; however, if the defect was already recognizable to the Customer at an earlier time during normal use, this earlier time shall be decisive for the start of the period for giving notice of defects. At our request, a rejected delivery item must be returned to us carriage paid. In the event of a justified notice of defects, we shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
In the event of material defects in the delivered items, we shall initially be obliged and entitled to rectify the defect or make a replacement delivery at our discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the customer may withdraw from the contract or reduce the purchase price appropriately.
If a defect is due to our fault, the customer may demand compensation under the conditions specified in § 10.
In the event of defects in components from other manufacturers which we are unable to remedy for licensing or factual reasons, we shall, at our discretion, assert our warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. Warranty claims against us for such defects shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the customer against us shall be suspended.
The warranty shall not apply if the customer modifies the delivery item or has it modified by a third party without our consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.
Any delivery of used items agreed with the customer in individual cases shall be made to the exclusion of any warranty for material defects.

§ 9 Industrial property rights and copyrights

In accordance with the provisions of this § 9, we guarantee that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.
In the event that the delivery item infringes an industrial property right or copyright of a third party, we shall, at our discretion and at our expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed, but the delivery item continues to fulfill the contractually agreed functions, or procure the right of use for the customer by concluding a license agreement. If we do not succeed in doing so within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages on the part of the customer are subject to the limitations of § 10 of these General Terms and Conditions of Delivery.
In the event of infringements of rights by products of other manufacturers supplied by us, we shall, at our discretion, assert our claims against the manufacturers and upstream suppliers for the account of the customer or assign them to the customer. In these cases, claims against us shall only exist in accordance with this § 9 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, for example due to insolvency.

§ 10 Liability for damages due to fault

Our liability for damages, irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with this § 10 insofar as fault is involved.
We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item on time, its freedom from defects of title and such material defects that impair its functionality or usability more than insignificantly, as well as obligations to provide advice, protection and care that are intended to enable the customer to use the delivery item in accordance with the contract or are intended to protect the life and limb of the customer’s personnel or to protect the customer’s property from significant damage.
Insofar as we are liable for damages on the merits in accordance with this § 10 clause 2, this liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen if we had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation if such damage is typically to be expected when the delivery item is used as intended.
In the event of liability for simple negligence, our obligation to pay compensation for property damage and any resulting further financial losses shall be limited to an amount of EUR 2,000,000 per claim (corresponding to the current cover of our product liability insurance or liability insurance), even if it is a breach of material contractual obligations.
The above exclusions and limitations of liability shall apply to the same extent in favor of our executive bodies, legal representatives, employees and other vicarious agents.
Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this is done free of charge and to the exclusion of any liability.
The limitations of this § 10 do not apply to our liability for
– intentional behavior,
– for guaranteed characteristics,
– for injury to life, limb or health or
– under the Product Liability Act.

§ 11 Place of jurisdiction, applicable law, final provisions

If the customer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office. However, we shall also be entitled to take legal action at the customer’s registered office.
This contract, including its interpretation, shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.

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