General Terms and Conditions of OPK Europe GmbH

Valid from 01.01.2018

Scope of application – Europe

 

§ 1 Quotations and order processing

Our quotations are non-binding and subject to change until the conclusion of contract, unless we have explicitly indicated that they shall be binding. The acceptance of orders shall be confirmed in writing. Orders may be regarded as accepted only after we have issued our order confirmation. Data is stored upon receiving inquiries, requests for catalogues and when accepting orders.

§ 2 Prices

Prices for the delivery are stated in Euro and apply ex place of performance, and are subject to value-added tax at the rate applicable of the date of delivery.

§ 3 Place of performance

The place of performance for the payment of the purchase price and for all other performance required of the customer is Horb. The place of performance for our delivery is the place at which the goods are located for the purpose of consignment or for any agreed transfer of possession to the customer.

§ 4 Consignment and packaging

Consignments are made “ex works” and exclude packaging. For orders worth less than EUR 150.00 net, a flat-rate processing charge of EUR 25.00 shall be added. In the case of goods not delivered “ex works”, we shall reserve the right to decide the method of dispatch. No claims may be derived on the basis of the choice we make. A EUR 5.00 surcharge will be charged for orders requiring the delivery of partial packaging units. A handling charge of EUR xxxxx will be added for direct deliveries to a particular addressee.

§ 5 Risks during transport

Irrespective of Paragraph 4, the transfer of risk shall take place with the hand-over to the individual, firm or institution commissioned with performing the consignment.

§ 6 Scope of performance

No information provided in images, brochures, catalogues, advertising or the product description shall constitute a description of the quality of the goods. Such information shall only be binding, if it has been agreed that this represents the quality of the goods. In the case of custom-made products, for technical reasons it shall be permissible to perform excess or short deliveries of up to 10%. 

§ 7 Delivery time – duty to deliver

Unless explicitly agreed as binding, delivery dates or periods are wholly non-binding. The delivery period is fulfilled if, prior to its expiry, the goods have been dispatched from the place of consignment, or if readiness for shipment has been announced. The delivery period shall be reasonably extended in the event of labour disputes, operational interruptions, raw material scarcities, transport disruptions, governmental orders, all instances of force majeure as well as the occurrence of unforeseen impediments outside of our control, insofar as such impediments demonstrably have a significant impact on the manufacture or delivery of goods. The same applies if such events are experienced by our sub-suppliers or contracted suppliers. Insofar as these circumstances also result in a significant change to the substance of our performance, this shall release us from our obligation to delivery for as long as the interruption exists and to the extent that its affects our performance. If insufficient information concerning the customer is available, we shall be entitled to completely or partly cancel concluded contracts and delivery commitments.

§ 8 Offset and retention

The customer may not exercise an offset, unless in connection with undisputed and judicially confirmed (res judicata) counter-claims. This likewise applies to commercial transactions, including the withholding of payments.

§ 9 Notification of defects (complaints)

With regard to complaints concerning the type, quality or the quantity of the delivered goods, we shall only accept liability if the customer has checked the goods to ensure they are flawless and complete, and only if it promptly notifies us of any defects discovered at this time; the notification must be in writing and contain a precise description of the defect. If the customer fails to promptly examine the goods or to report the defect, the delivered goods shall be deemed to be accepted, unless the defect was not apparent during the inspection. Subsequently discovered defects must likewise be reported to us promptly, otherwise the goods shall be deemed to have been accepted including with respect to this defect. The limitation period for warranty entitlements and claims for damages is 2 years from the delivery of the goods. No warranty is extended for incorrect assembly or operational start-up performed by the customer or other parties, nor for incorrect, negligent or improper handling, the use of unsuitable operating equipment or replacement parts, defective built-in components or for faults caused by electronic or electrical influences or other similar circumstances. Nor shall any warranty be available if the customer or any other party performs modifications or repairs without our permission. In the case of legitimate complaints, we may choose to perform either subsequent improvement or a substitute delivery. If the subsequent improvement or substitute delivery fails, the customer shall have the choice of demanding a reduction of payment or a rescission of the agreement. If the customer chooses to rescind the agreement, it waives the assertion of compensation claims. We shall assume costs connected with our subsequent performance, only insofar as these are reasonable in the specific case, and they must be proportionate to the purchase price of the goods, and may not in any case exceed 150% of the value of the goods. We shall only assume additional costs, such as those connected with the installation and dismantling of the defective item, in accordance with these terms and conditions.

§ 10 Claims for damages

We accept no liability, regardless of the legal basis, for a slightly negligent breach of duties on our part, or that of our statutory representatives or vicarious agents. In the case of the slightly negligent breach of material obligations, our liability shall be limited to the foreseeable losses typical for this type of agreement. We shall not be liable for delays or impossibility caused by our slight negligence. This does not apply in cases of strict liability.

§ 11 Payment, arrears, due date of payment

Invoices are payable in advance with a discount of 2%. If the customer is in arrears with a payment, we may choose to rescind the agreement and retake possession of goods delivered less the costs incurred (usually 20% of the merchandise value). Any claims for damages shall in any case remain unaffected by these measures. If we receive notice of a deterioration in the financial circumstances of the customer, or if the customer has pledged stocks of goods or accounts receivable as collateral for other creditors, we shall have the right to revoke all payment agreements, demand cash payment or the return of the goods, rescind the agreement or demand payment in advance or cash on delivery. 

§ 12 Confirmation of arrival

In the case of delivery of goods within the rest of the EU, the customer must, upon request, present a confirmation of receipt or an alternative form of proof. If it fails to produce such a document, we reserve the right to charge value-added tax at the rate applicable in the Federal Republic of Germany.

 § 13 Retention of title

We will retain the title to the goods until full payments of all our receivables, including ancillary claims and until such time as any cheques and bills have been honoured. Subject to the following provisions, the customer shall be entitled to sell and process the goods. The power of the customer to process the goods subject to retention of title as part of its normal business activities shall end at the time it ceases to service its debts or in the event that application is made for the commencement of insolvency proceedings against its assets. Through processing the goods subject to retention of title, the customer shall not acquire ownership in the new items in accordance with Section 950 German Civil Code (Bürgerliches Gesetzbuch, “BGB”). If the goods subject to retention of title are processed together with other items, we shall acquire co-ownership in the new article, this being for a value equal to the ratio of the invoice value of our goods subject to retention of title compared to the invoice value of the other processed articles. The customer hereby assigns us the receivable due from the resale of the goods subject to retention of title, together with all ancillary rights, this assignment again being a proportional one, insofar as the goods have been processed and we have acquired co-ownership up to the amount of the invoice value. In respect of this assignment, we shall be entitled to that fraction of the relevant purchase price receivable, the amount of which is for a value based on the ratio of the invoice value of our goods subject to retention of title compared to the invoice value of the new article. If the customer has disposed of the receivable by way of a genuine factoring arrangement, it shall assign to us the new claim established against the factor. We accept said assignments. The customer shall be entitled to personally collect the receivables, provided it continues to fulfil its duties of payment to us, and insofar as we have not issued it with any other instructions. If we so demand, the customer shall be obliged to provide us with a precise list of the receivables due to us, together with the name and address of the relevant customer, the amount of the individual receivables, the invoice date etc., and to notify its customers of the assignment and to provide us with all information we require in order to assert the assigned receivables. The retention of title shall likewise continue even if we consolidate our individual receivables into one current account, for which the balance is drawn up and recognised. Our retention of title is valid not only for accepted and “abstract” closing balance, but also with regard to the “causal” balance. We here and now release all deliveries fully paid for, if the collateral arranged through the retention of title, exceeds the secured receivable by more than 10%. We shall have the choice of which collateral securities should be released. It is prohibited to pledge the goods subject to retention of title, or to use them as collateral security, nor may the customer dispose of the assigned receivables or engage in any pseudo factoring arrangements. If our goods are pledged or otherwise claimed by other parties, the customer must promptly notify us of this fact, confirm the fact of our ownership both to the third parties and to us, and assist us in claiming our property. In the event that we reclaim possession of our goods on the basis of our retention of title, this shall only constitute a cancellation of the agreement if we have issued an explicit declaration to this effect. The customer shall put the goods subject to retention of title into safekeeping on our behalf. It must insure said goods against fire, theft and water damage up to their reinstatement value. The customer hereby assigns to us its claims for compensation against insurance companies or other liable parties in connection with such damage as described in sentence 2; this assignment shall be for the amount of our receivables. We accept this assignment.

§ 14 Legal venue

Irrespective of the value in dispute, the exclusive legal venue shall be the court with jurisdiction for the town of Horb, provided the customer is a merchant or a public law corporation or a public law special fund.

§ 15 Acknowledgement

The preceding terms and conditions shall apply to all sales. The customer acknowledges them by concluding the purchase and by accepting our order confirmation without reservation. Contrary terms and conditions shall not be acknowledged, unless we have confirmed these in writing.