General terms and conditions of sale and delivery of OMC Owen Management Consulting GmbH, Glanstr. 33, D-66869 Rammelsbach (short OMC)
§1 General Conditions
1. Deliveries are made exclusively in accordance with the following general terms and conditions. Conflicting conditions of the customer will only be recognized if this has been expressly agreed and confirmed in writing by OMC.
2. These conditions also apply to follow-up business and repairs to deliveries, even if this is not pointed out again.
3. Subsidiary agreements as well as changes and additions to the contract require written confirmation by OMC.
§2 Binding nature of offers and conclusion of contract, offer documents.
1. OMC's offers are always non-binding. A contract is only concluded when we confirm an order from the customer in writing.
2. Cost estimates, drawings and other offer documents remain the property of OMC. OMC alone is entitled to copyright exploitation rights.
3. Improvements or changes to the services are permitted insofar as they are reasonable for the customer, taking into account the interests of OMC.
§3 prices
1. Unless otherwise expressly agreed, prices are generally understood to be freight collect ex works, excluding packaging / postage and plus the applicable value added tax.
2. OMC reserves the right to send cash on delivery or prepayment. Invoicing is possible with a positive credit report.
3. If there are more than four months between the order and delivery, the prices of the latest price list or notification apply, provided that a price increase is not unreasonable.
4. For orders under € 150.00, the postage and packaging costs including small quantity surcharge are at least € 25.00.
5. Unpredictable changes in customs duties, import and export fees and currency parities entitle to a corresponding price adjustment.
§4 delivery of the service, delay, impossibility
1. Delivery agreements must be made in writing, delivery periods begin on the date of our order confirmation. Without giving reasons, the specified delivery time can increase slightly without this resulting in any changes to the sales contract.
2. All delivery obligations are subject to our own timely delivery.
3. Delay in delivery does not occur in the event of force majeure, riot, business interruption, strike, etc.
4. Part deliveries are permitted. In the case of long-term supply contracts, each partial delivery is considered an independent service.
5. In the event of default by OMC, the customer can withdraw from the contract after a reasonable grace period set in writing and a threat of rejection.
6. The customer can only demand damage caused by delay and compensation for non-performance if OMC can be proven to have acted with intent or gross negligence. For ordinary negligence, liability is limited to the usual damage.
7. If we are responsible for the impossibility of performance, the customer can withdraw from the contract. Claims for damages only arise in the case of gross negligence or willful misconduct.
§5 Dispatches and Transfer of Risk
1. In the case of dispatch, the risk of payment and performance is transferred to the customer upon delivery of the goods to the freight forwarder, the carrier or to another person appointed to carry out the dispatch. This also applies in the case of carriage paid delivery. 2. At the request of the buyer, it is possible to take out appropriate insurance.
§6 terms of payment
1. All deliveries are, subject to a positive credit check, to be paid net cash to the paying agent to OMC within 14 days of the invoice date. In the case of special prices, payment applies immediately after receipt of the invoice. For new customers or a negative credit check, prepayment, payment on delivery or cash on delivery is required.
2. Checks are only accepted on account of performance and are only considered payment after they have been cashed.
3. Unless otherwise agreed, the following terms of payment apply to orders for deliveries and systems as well as order values over € 500,000:
33% upon order confirmation
33% upon delivery
34% 14 days after the invoice has been issued.
4. Part deliveries can be invoiced separately.
5. Offsetting by the customer is only permitted with undisputed or legally established counterclaims.
6. In the event of default in payment, OMC is entitled, without prejudice to its other statutory rights, to charge default interest from the due date of payment in the amount of the bank interest charged by us, but at least 3% above the Lombard rate. Interest is due immediately.
7. The flat rate for reminder fees is € 8.00 including VAT per reminder.
8. If the customer defaults on a payment, OMC can withdraw from the contract after setting a reasonable grace period or demand compensation for non-performance. A threat of rejection is not required. 9. If the customer's investment deteriorates significantly, all claims arising from the business relationship are due for payment immediately.
§7 retention of title and assignment in advance
1. The delivered goods remain the property of OMC until all, including future claims, from this contract and from the entire business relationship have been met. Deliveries are made exclusively under extended retention of title
2. The customer may resell the goods subject to retention of title in the ordinary course of business. He is not entitled to transfer by way of security or pledge. If third parties access the reserved goods, the customer will point out the ownership of OMC and notify us immediately. The customer has to fend off access by third parties.
3. If the reserved goods are combined or mixed with goods that do not belong to us, we acquire co-ownership in the proportionate ratio of the invoice value of the reserved goods to the remaining goods. Processing of the reserved goods is carried out for us as a manufacturer within the meaning of § 950 BGB, without obliging us, in this case we acquire co-ownership in the proportionate amount of the invoice value of the relevant reserved goods to the total value of the new goods.
4. In the event of default in payment, including from future deliveries and services, or in the event of the customer's financial loss, the company OMC may, without prejudice to other rights, after asserting the retention of title, take the reserved goods by entering the customer's business premises.
5. The assertion of the retention of title or the seizure of a delivery item by OMC does not count as a withdrawal from the contract.
6. The customer already now assigns the claims from the resale of the reserved goods up to the amount of the open purchase price to OMC as security. The customer is entitled to collect in the normal course of business. We can also revoke this permission for legitimate interests. Upon our request, the customer will provide information about assigned claims and their debtors. The assignment may at any time be disclosed.
7. If the value of the collateral exceeds our payment claims by more than 20%, we will release the excess of the collateral at the customer's request.
§8 Notification of Defects
1. Complaints due to incomplete or incorrect delivery or complaints due to recognizable defects that are verifiably established as a result of a circumstance prior to the transfer of risk, in particular in a faulty design, poor material or poor workmanship, must be reported immediately, no later than 8 days after receipt of the goods. The return or withholding of pending payments is only permitted with the consent of an authorized representative of OMC.
2. In the case of a justified complaint, a retention of payment is only permissible in an appropriate and reasonable relationship between the defect and the purchase price. If the commercial transaction is one of these among merchants, the buyer can only withhold payments if a notice of defects is asserted whose justification there is no doubt. The assertion of justified notifications of defects does not interrupt or inhibit the course of the rest of the warranty period.
3. In the event of damage that requires the product to be returned, the customer must bear the costs of transport. If the damage occurs during the guarantee period, OMC will bear the costs for the return transport of the repaired goods.
§9 warranty
1. For not insignificant deficiencies in the service at the time of the transfer of risk, OMC can only choose to provide a guarantee by repairing or replacing the affected parts. If this guarantee has failed several times, the customer can change or reduce the price. Claims for compensation from culpable breach of the obligation to repair or due to delay in repair are excluded; in these cases, the customer can convert or reduce after a reasonable grace period.
2. Warranty claims are not transferable.
3. The warranty period is 6 months from delivery to the customer unless otherwise agreed.
4. If the customer is in default of acceptance or if he does not fulfill his obligations to cooperate, the warranty begins with the default of acceptance or 1 month after OMC declares readiness for installation, if this has been agreed. 5. Notices of defects must be made immediately in writing. At OMC's discretion, the services complained of are to be transported to their headquarters or made available to the customer for inspection.
6. The guarantee does not apply if the delivery item is used improperly or changed without the written consent of OMC, unless the defect can be proven to exist at the time of delivery.
7. For devices that are obtained from sub-suppliers, the warranty is limited to the scope of the warranty obligation as it exists between OMC and the sub-supplier. At our discretion, the guarantee extends to repair or replacement of the rejected parts or devices. If repairs or a replacement delivery fail, the customer has the right to change or reduce the price. In all cases there is only a warranty obligation for the directly delivered products by OMC. Any consequential damage that may have occurred does not justify a claim for damages resulting therefrom under any circumstances.
§10 liability for guaranteed properties
1. The only warranted properties are those which have been expressly agreed as such with an authorized representative of OMC.
2. Insofar as an assurance concerned the conformity of the goods with the contract, the customer's warranty claims are limited to rectification, and if they fail, to conversion or reduction in accordance with Section 9 of these General Terms and Conditions.
3. The company OMC is only liable for the replacement of extensive damage if the assurance is intended to protect against such damage.
4. Without prejudice to these claims, in the event of damage, the customer must allow OMC to carry out repairs and, from a technical point of view, follow the instructions.
5. The maximum amount of liability in the case of section 3 of these conditions is twice the order value, but not more than € 500,000.
§11 Other claims for damages
1. We are only liable for claims for damages resulting from positive breach of contract, unlawful acts, organizational negligence, negligence when concluding the contract if we or our vicarious agents have acted with intent or gross negligence.
2. In the event of a breach of particularly important contractual obligations (cardinal obligations), OMC is liable for itself and its vicarious agents without the restriction of Section 1 of this condition.
3. We are not liable for indirect damage, consequential damage and lost profit.
4. In each case of damage, liability is limited to twice the order value, but not more than € 500,000.
5. Claims for damages against OMC expire within 12 months.
§12 Software
1. Software license
1.1 Licensed software including subsequent new versions as well as parts thereof and the associated documentation may only be used on the central unit on which it was first installed. The software may only be copied for backup purposes and with the inclusion of the copyright notice of the original copy and only for use on this central unit. The customer protects the software from access by third parties. Third parties are not considered to be persons who violate the customer's right to use these license terms on behalf of the customer; we are entitled to terminate the license after an unsuccessful warning and to request the return of the software and all parts and copies thereof.
1.2 The license is deemed to have been granted upon delivery of the software. At the same time, the applicable license fee is due. With the acceptance of the delivery, the software properties are considered recognized.
1.3 The provision of source programs requires a special written agreement.
2. Software warranty In addition to the provisions in § 9, 10 and 11 of these terms and conditions for software:
2.1 According to the current state of technology, the structure of the software is free of errors. In the case of significant defects, the instruction to bypass the effects of the defect is also deemed to be sufficient subsequent improvement.
2.2 OMC does not guarantee that the program function will meet the customer's requirements or that the selection made by him will work together. According to the state of the art, interruption or error-free operation or the complete elimination of all possible errors within the framework of the program service cannot be guaranteed.
2.3 Any warranty for the replacement or loss of data that has arisen as a result of a software delivery is excluded. The customer is obliged to back up his data accordingly.
2.4 Due to the special features of the individual programs, the scope of the respective warranty can be communicated to the customer in a legally binding manner in the offer or in a product description.
§13 property rights
1. OMC releases the customer from all payment obligations that have been legally established or created with the consent of OMC, the reason for which is the alleged violation of a German patent or other property right by a product supplied by OMC. The prerequisite for this is that the customer immediately notifies OMC in writing of all claims made against him and of the following proceedings, grants OMC the authority to independently conduct and terminate the legal dispute and provide OMC with appropriate support.
2. OMC can - at its own discretion - provide the customer with the right to continue using the product. - to replace the product or to change it in such a way that there is no longer any infringement of property rights. -if the above measures are not possible for us under economically reasonable conditions, to take back the product and credit the customer with the reduced value according to the depreciation principles.
3. The customer is not entitled to any other claims than those mentioned above in connection with infringement of property rights.
§14 Foreign Trade
1. Products and knowledge supplied by OMC may be subject to certain national export restrictions; they cannot be exported to all economic regions. If the customer intends to re-export the product to sensitive economic areas, it is up to him to obtain the necessary permits. It is assumed that the customer has knowledge of the German foreign trade law and "US export regulations". § 15 Final Provisions 1. The customer's rights under this contract are non-transferable without the consent of OMC.
2. Ineffectiveness of individual provisions does not affect the effectiveness of the others. Ineffective provisions are to be replaced by effective provisions that come as close as possible to the intended purpose.
3. If a customer falls under the personal protection area of the Data Protection Act, he declares that he agrees to the processing of his data, insofar as it is necessary for the purpose of the contract. The customer can revoke this declaration of consent at any time.
§16 Place of fulfillment - place of jurisdiction
1. In the event of disputes, including those relating to the validity of the contract or these general terms and conditions of sale and delivery, the place of jurisdiction for registered traders is Kusel.
2. The legal relationships between OMC and the buyer are subject to the law of the Federal Republic of Germany, excluding any other national rights. The conditions of the UN Sales Convention apply to international contracts (Federal Law Gazette II p.588)
Export restriction
Information and permits issued under German law by the Federal Office for Commercial Economics, 65760 Eschborn / Ts. 1 under US law the Department of Commerce Office of Export Administration (Washington, DC 20230)
Supplier declaration according to EC regulation 3351/83
We declare that the goods listed in our invoices - unless otherwise stated - have been manufactured in the Federal Republic of Germany and comply with the rules governing the provisions of the term "originating products" (EG-CH / IS / IN /) for those in the movement of goods Preferential conditions apply.
Export restrictions
Informations and Authorizations are provided by: The Federal Office for Trade an Industry Eschborn/Ts. 1, -(German law); The US Department of Commerce Office of Export Administration, Washington D. C. 20230 (US law).
Suppliers Declaration according to regulation (ECC) no. 3351/83 We declare that the goods listed in our invoices not declared differently were oblained in the Federal Rebublic of Germany and satisfy the rules on the definition of the concept of "originality" products governing the following preferential trade EEC-CH/IS/IN
