Terms and Conditions
1. General
1.1. Our General Terms and Conditions only apply to organisations defined by § 14 BGB (German Civil Code) as well as to legal entities and separate estates defined by the public law.
1.2. Our Terms and Conditions apply exclusively; regulations to the contrary or differing terms of our customers will not be admitted by us unless we have accepted them in writing explicitly. Our Terms and Conditions will even apply if we execute the service or delivery implicitly under notice of regulations to the contrary and discrepancy of our customers terms. Supplementary Terms and Conditions of our customers will not be accepted.
1.3. All agreements, which are made between us and the customer to fulfil the contract, have to be formulated and accepted in writing.
1.4. Our Terms and Conditions also apply to all future business dealings with the customer.
2. Scope
The following Terms and Conditions apply to the supply of all goods of any description delivered by LightGuideOptics Germany GmbH to the customer (hereinafter described consistently as “delivery”) as well as to the supply of other services by LightGuideOptics Germany GmbH to the customer (hereinafter described consistently as “services”).
3. Offer, Finalisation of Contract, Bidding Documents
3.1. Our offers are not binding and are made without obligation, unless the validity of the offer is otherwise stated explicitly.
3.2. If the customer’s order can be qualified in terms of § 145 BGB (German Civil Code) as resulting from a binding offer we can accept it within 4 weeks of its issue.
3.3. We reserve the industrial and intellectual property rights for any kind of illustrations, drawings, cost estimations and other documentation. This also applies to supporting written documents that are marked as confidential. Before passing on confidential documents to a third party the customer requires our prior explicit written agreement.
4. Prices and Payment Terms
4.1. Unless otherwise stated, we are bound to the prices stated in our offers qualified as binding offers for 4 weeks as from the quotation date.
4.2. Freight and packing costs have to be paid by the customer and will be shown separately on the invoice.
4.3. The Value Added Tax is not included in our prices; the VAT will be shown separately at the rate legally valid on the date of issue of the invoice.
4.4. Payment has to be made, unless otherwise agreed, without deductions or set off whatsoever within 21 days of the invoice date. Payments into the company accounts shall reach the nominated account by the agreed date of payment. Time for payment is of the essence.
4.5. Any cash discount or deduction has to be agreed in a written form.
4.6. If the customer delays payment we reserve the right to charge interest on a daily basis at 8 % p. a. above the current base rate. The claim for a higher interest rate or for resulting damages is not excluded.
4.7. For late payment we will charge interest from maturity at the rate of 5 % above the current base rate.
5. Non Delivery, Setting Off, Right of Lien
5.1. We may refuse delivery of goods and services after conclusion of the contract if it is recognised that we are at risk or that the customer cannot make payment for our delivery of goods and services, in particular if the customer’s liquidity considerably reduces. Our right to reject the delivery of goods and services will only then not be applicable if the price for our delivery of goods and services is paid, or if security is provided. Notwithstanding all legal rights, we specially reserve the right in this event to enforce legal proceedings for cancellation of the contract.
5.2. The customer is only entitled to his right of setting off if his counterclaims are legally binding, undisputed or approved by us. In this respect he is only entitled to exercise such liberty, if his counterclaim is based on the same contractual relationship.
6. Delivery Lead Times, Late Delivery, Part Delivery
6.1. Delivery and service lead times and delivery dates are only binding if they have been explicitly written and agreed upon.
6.2. Our compliance with delivery commitments and contractual obligations implies the timely and due performance commitment of the customer and the clarification of all technical questions. The agreed lead times extend in proportion to the delay caused by the customer or if the customer’s duty of participation is omitted or he does not perform services in due time, unless we have caused the delay.
6.3. The delivery lead time extends in the event of industrial action in particular strikes and lockouts as well as due to the result of any circumstances or event beyond reasonable control including (without limitation) interruption of operations, difficulty in obtaining essential materials provided the effects are demonstrable to have an effect on the delivery of the goods and services. This does not apply if the interferences or disruption is caused by an industrial action where we have acted unlawfully. The above regulation would apply even if the circumstances arose with the subcontractors. The time for delivery extends accordingly to the duration of such sanctions and hindrances. The above-mentioned circumstances do not even then affect us if they arise during an already existing delay. We inform the customer as soon as possible about the occurrences and their result.
6.4. If we delay delivery or goods and services the customer may only withdraw from the contract within the scope of the legal regulations when the delay of delivery and goods and services is caused by us. By immaterial breach of duty the cancellation of the contract is excluded. A change of onus of proof to the disadvantage of the customer is not related to the above-mentioned regulations.
6.5 The customer must declare on our demand within a reasonable period of time whether he wants to withdraw from a delayed contract or whether he insists on the delivery.
6.6. Part delivery and partial supply of services are acceptable within the stated time of delivery so far no disadvantages for the use of the product occur.
7. Passing of Risk, Inspection, Transport Insurance
7.1. As long as no other agreements or conditions exist the place of performance of the contract and the passing of risk is the registered office of LightGuideOptics Germany GmbH.
7.2. If the customer wishes, we will cover the delivery period with a transport insurance and the customer will meet the costs according to the offer.
7.3. If an inspection is necessary it is decisive for the passing of risk. It has to be conducted immediately at the appointed time by the customer, alternatively immediately after advice by us that the goods are ready for inspection. The inspection cannot be failed because of immaterial failings. Furthermore the rules and regulations of § 377 HGB (German Commercial Code) apply.
7.4. If the customer delays the inspection or culpably breaches his involvement we will be entitled to claim damages for the incidental costs including any additional expenditure. In this case the risk of an accidental break-up or an accidental deterioration of performance will be passed to the customer at the time when he is in default of acceptance or any other delay. We reserve the right to claim consequential damages.
8. Warranties
8.1. When a fault in the delivery of goods and services existed at the time of passing of risk we have the choice either to correct the faults or to produce a product free of defects (re-fulfilment of the contract).
8.2. In the case of the re-fulfilment of the contract we are liable to pay all additional expenses in particular the costs for transport, labour and material as far as they do not increase because the delivery is sent to a different location to the place of original delivery.
8.3. In the case of our default in the re-fulfilment the customer can chose to reduce the payment or cancel the contract without prejudice of any damages being made for non-performance as provided in 10 of these General Terms and Conditions.
8.4. The right for compensation does not exist in the case of immaterial discrepancy of the agreed quality, immaterial damage of the usability, wear and tear or damages which arise due to incorrect handling careless handling, excessive operational demands, or use of unsuitable equipment or which arises because of particular influences, which were not made known until after the contract as well as by non-reproducible software faults. If the customer or a third party made improper changes or improper repairs then there is no right of compensation possible in this case and for accruing consequences.
8.5. The warranty period in which a claim can be made by the customer because of a faulty delivery or supply of faulty goods and services is with exception of § 438 Abs. 1 Nr. 1 and Nr. 2 BGB (German Civil Code) and of 634a Abs. 1 Nr. 2 and Nr. 3 BGB twelve months as from the legal beginning of the limitation of claim. This shortening of the warranty period does not apply for injuries to the body, the general health or those resulting in the loss of life, for deliberate or wanton negligent breach of duties or for fundamental and culpable breach of duties caused by us. It also does not apply if we maliciously kept a fault secret or if we took over the warranty for the quality of the delivery or goods and services. Contingent customer’s demands out of § 479 BGB will remain unaffected.
8.6. As far as we are liable for data loss the liability is restricted to the expenses for the typical regeneration from regular and accordant data backup by the customer.
8.7. Claims against our compliances and us for damages and for reimbursements of expenses are regulated in section 10. Further claims or claims other than those regulated in section 10 are excluded.
9. Industrial property rights and intellectual property rights – defects of title
9.1. Unless otherwise agreed we are bound to provide for delivery of products into the country of the named place of delivery free of industrial property rights and intellectual property rights of a third party (hereinafter described consistently as “property rights”).
9.2. Provided that a third party raises a legitimate claim to the infringement of property rights against our customer, which was caused by us, we are liable within section 8 article 5 of our General Terms and Conditions within a period of time as follows: First we have the right either to obtain the necessary license concerning the supposed infringed property rights or to provide our customer with an amended delivery item or parts of it to revoke the accusation of infringed property rights. In the case of our default in the re-fulfilment the customer is entitled to his legal rights; in particular he can choose to reduce the payment or cancel the contract. In the case of infringements of property rights the regulations in section 8 of these General Terms and Conditions apply accordingly. Our obligation to award damages conform to section 10 of these General Terms and Conditions.
9.3. The above mentioned obligations only affect us if the customer does not accept the infringement and passes on all defence actions and extrajudicial measures to us. Particularly, the customer may not conclude private settlements or arrangements with third parties without the approval of the user as long as the customer intends to claim settlement from the user based on the above mentioned obligations.
9.4. Demands of the customer are excluded if he caused the infringement of property rights.
9.5. Again, the demands of the customer are excluded if the infringement of property rights were caused through special information given by the customer’, through an unforeseen application of the delivery by the customer or caused by a change to the delivery or their combination with products not supplied by us.
9.6. In the event of other legal defects the regulations of section 8 and 10 of these General Terms and Conditions apply accordingly.
9.7. On going claims or claims other than those regulated in this section 9 against us and our contractual partners are excluded.
10. Claims for damages
10.1. We are liable for the legal requirements for damages caused by injuries, to the body, the general health and the loss of life.
10.2. We are liable for the legal requirements for damages for deliberate or wanton, negligent breach of duties caused by us, our agents or deputies. As long as we are not accused of deliberate breach of duty the claim for damages is restricted to the predictable, typically incurred damage.
10.3. We are liable for the legal requirements for damages for fundamental and culpable breach of duties; in this case the claim for damages is restricted to the predictable, typically incurred damage.
10.4. We are liable for the legal requirements for damages if we concealed a fault maliciously or if we took over a guarantee despite the quality of the delivery and services.
10.5. The same applies to the liability if it is coercive to the regulations for product liability.
10.6. On going claims for damages and reimbursement of expenses of the customer against us are excluded regardless of the legal ground.
10.7. As far as the liability for damages against us is excluded or constricted this also applies to the personal liability of our workers, employees, and staff members, agents and deputies as well.
10.8. A change of onus of proof to the customer’s disadvantage is not connected to the above-mentioned regulations.
11. Retentions of title
11.1. We retain title to the goods delivered until all payments due from the contract with the purchaser regardless of the legal basis are received in full. The retention of title also applies to receivables due from past and future legal transactions and from possible contingent liabilities.
11.2. The purchaser is authorised to alienate (trade with) the delivered goods in a fair and orderly manner but in doing so immediately assigns to us the full amount of the contract price (including VAT) which results from the selling on to his customer or other third party regardless of whether the delivered goods are sold on with or without further processing. The advanced assignation of receivables from the purchaser is related to (placed on) the current balance and in the event of insolvency of the purchaser is related to (placed on) the then available “casual” account. We will accept the assignation but irrespective of that we may claim from the purchaser directly. The purchaser is authorized for collection of receivables after their subrogation. Our authority for collection of receivables will remain unaffected but we are obliged not to collect receivables as long as the purchaser fulfils his payment obligations accordingly, does not get into delayed payment and particularly that no application for the opening of insolvency proceedings has been made. Should this be the case however, we may demand that the customer gives us details of the assignment and their debtors’ name, makes all necessary information for collection available, and hands over the corresponding documents and informs the debtor (third party) about the assignation.
11.3. The customer may not pledge the delivered goods nor conduct a transfer by way of security. Enforcement officers and third parties are to be alluded to (made aware of) our property.
11.4. The processing or reworking of the delivered goods by the purchaser will always be executed on our behalf. If the delivered goods are processed with other objects that do not belong to us, we acquire the ownership of the new object proportionally to the value of the delivered goods (including VAT) to the other processed objects at the time of processing. Regarding the retention of title the same applies to the object emerging from processing as for the originally supplied objects.
11.5. If the delivered goods are inseparably compounded with objects which do not belong to us, we acquire the ownership of the new object proportionally to the value of the delivered goods (including VAT) to the other compounded objects at the time of compounding. If the compounding occurs such that the purchaser’s object is to be seen as the essential object it is agreed that the purchaser transfers us a proportionate joint ownership. Thus the purchaser acts as custodian for the sole or part property rights for us.
11.6. The purchaser is obliged to handle the delivered goods with care; he is particularly obliged to insure them sufficiently for the replacement value as new against fire, water damage and theft, at his own expense. If maintenance or inspection work is necessary the customer has to execute this in good time and at his own expenses.
11.7. In the case of seizure or other interventions of third parties the purchaser has to inform us immediately in writing, in order that we can claim according to § 771 ZPO (German Civil Process Order). If the third party is not able to refund our legal and extra judicial expenses according to § 771 ZPO the purchaser will be liable for the arisen loss.
11.8. By adverse contractual behaviour of the purchaser in particular by default of payment we are entitled to withdraw from the contract according to the legal regulations and subsequently to withdraw the delivered items. The assertion (right) to claim for damages will remain unaffected.
11.9. We bind ourselves to release our entitled securities according to this condition 11 by demand of the customer purchaser when the realisable value of our securities is at least 10 % over the assigned values; the choice of the released securities rests with us.
12. Secrecy
The contracting parties are obliged to keep strictly secret all confidential documents and information as well as all commercial and technical specifications relating to the business connection. Such information is only permitted for access by a third party with the explicit consent of the other contracting party. Even after the completion of the order the obligation of secrecy applies. It does not apply if the knowledge contained in the documents or the commercial and technical specifications have become a matter of common knowledge or was already known by the other party, but without default of the other party.
13. Jurisdiction, Applicable Law, Severability Clause, Translation of these General Terms and Conditions
13.1. Provided the customer is a businessman, legal entity or separate estate as defined by the public law, our registered address is the exclusive place of jurisdiction. However we are entitled to accuse the customer at the court having jurisdiction at the customer’s registered address.
13.2. Even if the customer’s registered office is abroad the law of the Federal Republic of Germany to the exclusion of the international Trade Law applies.
13.3. Should a regulation be or become ineffective all the other regulations remain effective.
13.4. The English version of these general Terms and Conditions is used simply for information. Only the German wording is binding.
12.5.2004