GD Optical Competence GmbH
General terms and conditions
§ 1 Scope, data protection
- If the customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code), the following General Terms and Conditions shall apply exclusively to the business relationship between us and the customer in the version valid at the time of the order. We do not recognize any deviating terms and conditions of the customer unless we have expressly agreed to their validity in writing.
- An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity. A partnership with legal capacity is a partnership endowed with the capacity to acquire rights and incur liabilities.
- Insofar as necessary for business, we are authorized to store and process the customer's data by EDP within the framework of the data protection laws (in particular § 28 BDSG). When collecting, processing and using personal data, we will only use employees who are bound to data secrecy.
- If the customer commissions us to perform work services, in particular assembly work, calculations, customer-specific own designs, the provisions in §§ 13-16 shall apply in addition to and with priority over the provisions in §§ 2-12.
§ 2 Offers, amendments, commercial clauses
- Our offers are subject to change; a contract is only concluded by our order confirmation in text form (§ 126b BGB) or when orders have been executed by us.
- Amendments, supplements and/or the cancellation of a contract or these terms and conditions require text form.
- Insofar as commercial clauses in accordance with the International Commercial Terms (INCOTERMS) have been agreed, INCOTERMS 2000, 6th revision shall apply.
§ 3 Transfer of risk, mode of shipment, delivery dates
- Unless otherwise agreed, we shall deliver and perform EXW (ex works) our warehouse; in this context, we shall determine the shipping method, shipping route and carrier.
- Partial deliveries or services are permissible, provided that they are not unreasonable for the customer.
- The commencement of the delivery or performance time stated by us shall be subject to the clarification of all technical issues and the timely and proper fulfillment of the customer's obligations.
- If an agreed delivery or performance date is exceeded for reasons for which we are responsible, the customer shall set us a reasonable grace period for delivery or performance in writing. This period of grace shall be at least three weeks. If the delivery or service does not take place after expiry of the grace period and if the customer wishes to withdraw from the contract for this reason or to claim damages instead of the service, he shall be obliged to notify us of this expressly in writing beforehand, setting a further reasonable grace period and requesting delivery or service. At our request, the customer shall be obliged to declare within a reasonable period of time whether it will withdraw from the contract due to the delay in delivery or performance and/or demand damages instead of performance or insist on the delivery or performance.
§ 4 Force majeure
In the event of force majeure, our delivery or performance obligations shall be suspended; if a significant change occurs in the circumstances existing at the time of conclusion of the contract, we shall be entitled to withdraw from the contract. Force majeure shall be deemed to include all circumstances for which we are not responsible and which make it significantly more difficult or impossible for us to provide the delivery or service, irrespective of whether these circumstances occur at our premises or those of a supplier or vicarious agent.
§ 5 Prices, payment, set-off, retention
- For orders without a price agreement, customary market prices shall be deemed to have been agreed.
- Our prices are EXW (ex works) our place of business. Unless otherwise agreed, our prices do not include the costs of packaging, insurance, freight and VAT. If customer-specific packaging is ordered, we are entitled to produce this ourselves or have it produced by third parties and to charge the customer for the costs and expenses associated with this.
- If the date of delivery or performance is later than three months after the conclusion of the contract, we are entitled, after timely notification of the customer and prior to the performance of the service or delivery of the goods, to adjust the price of the goods or services in such a way as is necessary due to general price developments beyond our control (such as exchange rate fluctuations, currency regulations, changes in customs duties, significant increase in material or manufacturing costs) or due to changes in suppliers. For deliveries or services within three months, the price valid on the day of the conclusion of the contract shall apply in any case. In the case of framework agreements with price agreements, the three-month period shall commence upon conclusion of the framework agreement.
- Unless otherwise agreed, the customer shall pay the agreed remuneration to us 30 days after delivery of the goods or performance of the service. Discount agreements shall only apply on the basis of a separate written agreement. After expiry of this period, the customer shall be in default pursuant to Section 286 (2) No. 2 of the German Civil Code (BGB).
- We may demand partial payments or advance payment if the customer is ordering from us for the first time, if the customer is domiciled abroad or if the delivery is to be made abroad, or if there are reasons to doubt the timely or complete payment by the customer. If one of the above conditions occurs after the conclusion of the contract, we are entitled to revoke agreed payment terms and to make payments due immediately.
- The customer may only set off counterclaims that are undisputed or have become res judicata. The customer shall only be entitled to rights of retention insofar as they are based on the same legal transaction.
§ 6 Retention of title
- Sold goods remain our property until all claims arising from the business relationship have been fulfilled.
- If the goods are processed by the customer, our retention of title shall extend to the entire new item. If the goods are processed, combined or mixed with other items by the customer, we shall acquire co-ownership to the fraction corresponding to the ratio of the invoice value of our goods to that of the other items used by the customer at the time of processing, combination or mixing.
- If the goods subject to retention of title are combined or mixed with a main item of the customer or a third party, the customer shall furthermore transfer to us already now its rights to the new item. If the customer combines or mixes the goods subject to retention of title with a main item of a third party against payment, he hereby assigns to us his claims for compensation against the third party.
- The customer shall be entitled to resell the goods subject to retention of title in the ordinary course of business. If the customer sells these goods on his part without receiving the full purchase price in advance or step by step against handover of the purchased goods, he shall agree a reservation of title with his customer in accordance with these conditions. The customer hereby assigns to us his claims arising from this resale as well as the rights arising from the retention of title agreed by him. At our request, he shall be obliged to notify the purchasers of the assignment and to provide us with the information and documents required to assert our rights against the purchasers. Despite the assignment, the customer shall only be authorized to collect the claims arising from the resale as long as he duly fulfills his obligations towards us.
- If the value of the securities provided to us exceeds our claims by more than 20 percent in total, we shall be obliged to release securities of our choice at the customer's request.
§ 7 Tools, molds and devices
- If we manufacture or have manufactured special tools, molds or devices (hereinafter: tools) for the customer's products, we shall be entitled to charge the customer for the associated costs as part of the initial order. In this context, we shall only invoice the tool costs actually incurred on a pro rata basis. We would like to point out that tools are usually developed and manufactured individually and are only suitable for use in our in-house machines. Prices for tool production agreed upon at the time of conclusion of the contract are only approximate values. If, during the development or production of the tool, an expense arises which was not foreseeable at the time the contract was concluded, we shall be entitled to charge the customer for the additional costs involved.
- All tools are and remain our property and possession.
- Unless otherwise agreed, the tools shall be used exclusively for the customer's orders and shall be stored by us for possible follow-up orders for a maximum of ten years after completion of the last order. After expiry of this period or if the customer has agreed to this, we are entitled to destroy the tools.
§ 8 Rights of the customer in case of defects
- The products supplied by us comply with the applicable German regulations and standards. We do not assume any liability for compliance with other national regulations. The customer undertakes, when using the products abroad, to check the conformity of the products with the relevant legal systems and standards himself and to make any necessary adjustments.
- The customer may not assert any rights on account of defects in our delivery and performance insofar as the value or the suitability of the delivery and performance is only insignificantly reduced.
- Insofar as the delivery or service is defective and the customer has complied with the inspection and notification obligations of § 377 of the German Commercial Code (HGB), we shall, at our discretion, make a subsequent delivery or rectify the defect (subsequent performance). The customer shall grant us the opportunity to do so within a reasonable period of at least 15 working days.
- The customer may demand reimbursement of the expenses incurred for the purpose of subsequent performance, provided that the expenses are not increased because the subject matter of the delivery has subsequently been taken to a place other than the original place of delivery, unless the transfer is in accordance with its intended use.
- If the subsequent performance fails, the customer may reduce the remuneration or withdraw from the contract. However, withdrawal from the contract shall only be permissible if the customer expressly threatens us with this beforehand in writing with a reasonable further period of grace.
- The customer shall only have a right of recourse against us pursuant to Section 478 of the German Civil Code (BGB) to the extent that the customer has not entered into any agreements with its customer that go beyond the statutory claims for defects.
§ 9 Liability for damages
- Unless otherwise stated below, any claims of the customer beyond the provisions of § 8 - irrespective of the legal grounds - shall be excluded. We shall therefore not be liable for any damage that has not occurred to the delivery item itself; in particular, we shall not be liable for loss of profit or for any other financial loss suffered by the customer. Insofar as our contractual liability is excluded or limited, this shall also apply to the personal liability of employees, representatives and vicarious agents.
- The above limitation of liability shall not apply insofar as the cause of the damage is based on intent or gross negligence or in the event of personal injury. The same shall apply insofar as we have assumed a guarantee for the quality of the contractual performance contrary to the limitation of liability.
- If we negligently breach an essential contractual obligation, the obligation to pay compensation for damage to property shall be limited to the damage that typically occurs. Material contractual obligations are those which provide the customer with legal positions which the contract is intended to grant him according to its content and purpose, and those whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the customer relies and may rely.
- Furthermore, we shall only be liable within the scope of the insurance coverage we have, insofar as we are insured against the damage that has occurred and subject to the condition precedent of the insurance benefit.
- Otherwise, our liability for damages is excluded.
- The exclusion or limitation of liability shall not apply insofar as we are compulsorily liable by law or for other reasons in the event of injury to life, limb or health or for damage to privately used property.
- The assignment of the claims of the customer regulated in §§ 8, 9 paragraph (1) to (6) is excluded; § 354a HGB remains unaffected.
§ 10 Limitation
The limitation period for claims based on defects of our deliveries and services as well as for claims based on our liability for damages shall be one year. This shall not apply insofar as longer periods are prescribed in accordance with §§ 438 Para. 1 No. 2 (buildings and items for buildings), 479 Para. 1 (right of recourse) and 634a Para. 1 No. 2 BGB (German Civil Code) (construction defects) as well as in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty on our part and in the event of claims for damages under the Product Liability Act.
§ 11 Property rights
Industrial property rights and copyrights to our work performances shall remain with us. Unless otherwise agreed, we grant the customer only simple rights of use limited to use in the Federal Republic of Germany and for the duration of the contract. In particular, this does not include the right to reproduce and process the subject matter of the contract.
§ 12 Secrecy
- The parties shall not disclose to third parties or make unauthorized use for their own business purposes of confidential information, including know-how and business ideas of the respective other contractual partner, which is entrusted to them or becomes known to them on the occasion of the cooperation, during the term and after termination of the contractual relationship. This shall apply accordingly to the conclusion and content of this contract. The parties shall also impose this obligation on their employees.
- This obligation to maintain secrecy shall not apply to information that was
- already known to the other party outside the contractual relationship;
- have been lawfully acquired from third parties;
- are or become generally known or state of the art;
- are released by the releasing contractual partner.
The confidentiality obligation for technical information ends 5 years after the termination of the cooperation of the parties.
- After termination of this contractual relationship, the parties shall return all documents and information requiring secrecy without being requested to do so or destroy them at the request of the issuing party and provide proof thereof.
- The parties shall comply with the rules of data protection, in particular when they are granted access to the other party's operations or hardware and software. They shall ensure that their vicarious agents also comply with these provisions, in particular they shall oblige them to maintain data secrecy before commencing their activities. The parties do not intend to process or use personal data on behalf of the other party. Rather, a transfer of personal data shall only occur in exceptional cases as a secondary consequence of the contractual services of the parties. The personal data shall be handled by the parties in accordance with the provisions of data protection law.
§ 13 Extended lien for work performance
If work performances (e.g. calculations or customer-specific own designs) have been commissioned, we shall be entitled to a contractual lien on the items that have come into our possession on the basis of the contract because of our claim arising from the contract. The contractual lien may also be asserted on account of claims arising from work previously carried out, spare parts deliveries and other services, insofar as they are connected with the subject matter of the contract. For other claims arising from the business relationship, the contractual lien shall only apply insofar as these are undisputed or a legally binding title exists and the subject matter of the contract belongs to the customer.
§ 14 Subcontractors
We are entitled to use subcontractors.
§ 15 Acceptance
- If work performances (e.g. calculations or customer-specific own designs) are ordered and we demand acceptance of the performance after completion - if necessary also before expiry of the agreed execution period - the customer shall carry this out within 12 working days; a different period may be agreed. Upon request, self-contained parts of the performance shall be accepted separately. Acceptance may only be refused due to significant defects until they have been remedied.
- If no acceptance is requested, the service shall be deemed to have been accepted upon expiry of 12 working days after written notification of completion of the service. If no acceptance is requested and the customer has used the service or a part of the service, acceptance shall be deemed to have taken place after the expiry of 6 working days after the start of use, unless otherwise agreed.
- Reservations due to known defects or due to contractual penalties must be made by the customer at the latest at the times specified in paragraphs 1 and 2.
- Upon acceptance, the risk shall pass to the customer, unless it is already borne by the customer pursuant to § 3 para. 1.
§ 16 Start of limitation period
If work performances (e.g. calculations or customer-specific own designs) are commissioned, the limitation period for claims due to defects of our work performances as well as for claims due to our liability for damages shall commence with the acceptance of the performance. Insofar as several independently removable work performances are involved, the limitation period shall commence with respect to these partial performances upon their acceptance.
§ 17 Other
- If the customer is a merchant, the place of jurisdiction shall be Sinn; if we bring an action, the customer's general place of jurisdiction shall also apply.
- The law of the Federal Republic of Germany shall apply to all legal relationships between the customer and us.
- Should individual provisions of this contract be or become invalid, the parties shall agree on a legally valid replacement provision that comes as close as possible to the invalid provision in economic and legal terms. The same shall apply in the event of a gap in the contract.
Status: May 2009
Do you have any questions about our general terms and conditions, our delivery conditions or prices? Then please feel free to contact us by phone or send us an email via our contact form.
GD Optics is one of the leading international suppliers for the development and production of innovative and high-precision optical components for high-tech applications. We fully cover the entire process chain up to the production and packaging of the optics.
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GD Optical Competence GmbH
Herborner Straße 13 | 35764 Sinn
Telephone: + 49 2772 5744 - 0
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