General Terms and Conditions and Customer Information
of
Rosenberger-OSI GmbH & Co. OHG
Optical Solutions & Infrastructure
Endorferstr. 6
86167 Augsburg
Phone: +49 821 - 2 49 24 – 0
E-mail: info-osi@rosenberger.com
Managing partners:
Thomas Schmidt
Eric Küppers
Legal form: OHG
Register court: Local Court Augsburg
Register number: HRA 13822
VAT Identification number pursuant to § 27 a German VAT Act (UStG): DE 213 475 162
WEEE-Register number: 27194259
EORI number: DE 322 7979
D-U-N-S number: 331629936
hereinafter referred to as „Seller“.
- Please note, these Terms and Conditions were issued first in the German language, the following are a translation from German into English -
§ 1 General and Application
(1) The following General Terms and Conditions (GTCs) apply to the business relationship between the Seller and the Customer as amended by the time of the order. The GTCs (as amended) shall also apply as a framework agreement for future contracts with the same Customer without the Seller having to refer to them again in each individual case. Besides, the General Terms and Conditions for the Supply of Products and Services of the Electrical Industry ("Green Terms and Conditions"), as amended from time to time, shall apply.
(2) Customers within the meaning of these GTCs are exclusively natural or legal persons or partnerships with legal capacity with whom business relations are entered into and who act in the exercise of their commercial or independent professional activity (entrepreneurs within the meaning of Section 14 of the German Civil Code [BGB]) as well as legal persons under public law.
Customers have to prove tһeir entrepreneurial status by providing a VAT identification number.
(3) Individual contractual agreements shall take precedence over these General Terms and Conditions. Deviating, conflicting or supplementary general terms and conditions shall not become part of the contract unless their validity is expressly agreed. These Terms and Conditions shall also apply if the Seller delivers their products and/or services to the Customer without reservation knowing that the Customer's terms and conditions conflict with or deviate from these General Terms and Conditions.
§ 2 Conclusion of the contract
(1) The presentation of the products on the Seller's website does not constitute an offer within the meaning of the law, but merely an invitation to the Customer to make an offer within the meaning of the law. Due to the technical limitations of presentation, the ordered products may look slightly different from those shown on the Internet. Therefore, the delivered products may deviate in colour from those presented on the Internet.
(2) The Customer places a binding order for the products in the shopping basket by clicking on the button "Zahlungspflichtig bestellen" ("Order subject to payment"). The Seller shall confirm receipt of the Customer's order immediately by email.
(3) If the Customer uses a credit card or PayPal, the contract is already concluded upon the Customer issuing the payment order. A contract shall only be validly concluded, if and when the Customer has completed the order process by sending the order.
(4) The contract shall not be deemed to have been validly concluded if the Seller does not receive the products to be delivered to the Customer by Seller’s suppliers. This shall only apply in the event that the Seller is not responsible for the non-delivery and has exercised due diligence by concluding a specific transaction with the supplier to be able to fulfil its obligations in case of non-delivery by the supplier. The Seller will make all reasonable efforts to procure the products ordered by the Customer. Otherwise, the Seller shall refund immediately any consideration received by the Seller. If the ordered products are not available, the Seller shall inform the Customer immediately.
(5) The contract shall be concluded in German.
(6) The Customer can correct the entries made during the ordering process at any time during the ordering process by clicking on the "back" button in the browser and then making the corresponding change. In the order overview, the Customer can correct the billing and delivery address by clicking the "Adresse ändern" ("Change address") button and the payment method by clicking the "Ändern” ("Change") button. The Customer can cancel the entire ordering process at any time by closing the web browser.
(7) The Seller shall store and send to the Customer the text of the contract together with the legally effective General Terms and Conditions by email after conclusion of the contract.
§ 3 Retention of title and withdrawal
(1) The Seller shall retain title to the products until all claims arising from an ongoing business relationship with the Customer have been settled in full.
(2) The Customer agrees to treat the purchased items with care for the duration of the retention of title. The Customer shall take out sufficiently insure the products at their own expense against any losses and damages caused by fire, water and theft; the insurance shall cover the replacement value of the products. The Customer hereby assigns to the Seller all claims incurred by the Seller in the event of such a loss or damage; the claims shall be assigned in the amount of the respective invoice amount.
(3) In the event of a damage to or destruction of the products, the Customer shall immediately notify the Seller thereof in writing. The same shall apply to seizures or other interventions by third parties. To the extent the respective third party is not in a position to reimburse the Seller for the court and out-of-court costs of an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO), the Customer shall be liable for the loss incurred by the Seller.
(4) The Customer shall be entitled to resell the object of sale in the ordinary course of business; the Customer hereby assigns to the Seller all claims in the amount of the invoice amount accruing to the Customer against its customers or any third parties from the resale, whether the object of sale has been resold without or after having been processed. The Customer remains authorized to collect from its customers and/or any third party the respective invoice amount even after this assignment. This shall not affect the Seller's right to collect the amount itself. However, the Seller agrees not to collect the amount as long as the Customer meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for a composition or insolvency proceedings has been filed and no payments have been suspended. In any of these cases, the Seller may demand that the Customer discloses to the Seller the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and notifies its debtors (third parties) of the assignment. If the Customer has sold the claim under a non-recourse factoring agreement, the Customer shall assign to the Seller the claim against the factor that has resulted from the assignment of the original claim to the factor.
(5) The Seller accepts the above assignment.
(6) The Seller agrees to release the securities to which the Seller is entitled at the Customer's request to the extent that the realizable value of the securities exceeds the claims to be secured by more than 10%; the Seller shall be responsible for selecting the securities to be released.
§ 4 Deterioration of the Customer's financial situation
(1) If, after the conclusion of the contract, the Seller becomes aware of a potentially significant deterioration in the Customer's financial situation which lead to the expectation that the Customer will probably not be in a position to meet the its payment obligations at the time they become due and payable, the Seller may demand full payment of all unpaid invoices and declare due and payable any invoices that have not become due and payable yet.
(2) If judicial composition proceedings or insolvency proceedings are instituted against the Customer's assets, the Seller shall be entitled to withdraw from the contract and demand the return of the products, provided that the Customer has not paid the consideration or has not paid the consideration in full. Any claims for damages of the Seller shall remain unaffected by this. After taking back the object of sale, the Seller shall be entitled to sell it. The proceeds of the sale shall be credited against the Customer's liabilities - less any reasonable costs of sale.
§ 5 Remuneration
(1) The stated purchase price shall be binding. The purchase price includes the statutory VAT. The additional shipping costs incurred during shipping are reflected in the overview "Versand & Lieferung" ("Shipping & Delivery"). Any costs for packing are already included in the shipping costs.
(2) If the Customer is in default, they shall pay default interests at a rate of 9 percentage points above the base lending rate. In addition to this, the Seller is entitled to a lump-sum payment of €40 if the Customer does not pay an owed amount when it becomes due and payable. This shall also apply if the Customer is in default with a partial payment or any other instalment. The Seller reserves the right to claim a higher damage caused by delay. The lump-sum payment pursuant to sentence 5 shall be set off against any claim for damages owed by the Customer if the damages correspond to any costs of legal prosecution.
(3) The Customer shall only have a right of set-off if their counterclaims have been legally established, acknowledged or not disputed by the Seller. The right of the Customer to set off any contractual and other claims arising from the initiation or performance of this contractual relationship shall remain unaffected. The Customer may only exercise a right of retention if their counterclaim is based on the same contractual relationship.
§ 6 Payment option
(1) The Customer can pay the purchase price by using a by credit card or PayPal. Upon request, payments may be made by invoice.
(2) In case of payment by credit card, the Customer will have to submit their credit card data during the order process. After appropriate legitimation, the Seller requests the credit card company to initiate the payment transaction as soon as the Customer has completed the order process. The payment transaction is automatically carried out by the credit card company and the credit card is charged.
(3) In case of payment via PayPal, the Customer has to register under www.paypal.de. The terms and conditions of www.paypal.de shall apply.
(4) Further information regarding the terms of payment may be found in the overview "Payment methods" and in the Privacy Policy on the Seller's website.
§ 7 Delivery
(1) The Seller delivers their products and services exclusively to the countries specified in the "Versand & Lieferung" ("Shipping & Delivery") overview.
(2) The shipping time for deliveries is indicated on the respective offer page. The start of the shipping period is determined according to paragraphs 3 to 5 depending on the selected payment option.
(3) If payment is made by credit card or PayPal, the shipping time begins one day after the payment order is made. For all other payment options, the shipping time starts one day after the order.
(4) If the start or end of the shipping time falls on a Saturday, Sunday or a public holiday, the start or end of the shipping time shall be postponed to the following working day.
(5) Reference is made to § 2 para. 4 of these GTCs that provides for a reservation in case the Seller does not receive the products to be delivered to the Customer by Seller’s suppliers.
(6) Unless expressly agreed otherwise, the Seller shall determine the appropriate mode of shipment and the transport company at its reasonable discretion.
(7) The Seller is only responsible for the timely and prоper delivery of the goods to the transport company and is not responsible for delays caused by the transport company.
(8) If the products are not available or not available in time at the time of the order, the Seller shall inform the Customer immediately and notify the Customer of the expected delivery date. Reference is made to § 2 para. 4 of these GTCs that provides for a reservation in case the Seller does not receive the products to be delivered to the Customer by Seller’s suppliers.
(9) The Seller shall not be liable if delivery dates cannot be met due to force majeure. Force majeure shall be deemed to exist in the event of mobilization, war, riot, strike, lockout, environmental disasters or comparable unforeseeable events that do not fall within the Seller 's sphere of responsibility. In such cases, the delivery period shall be extended by a reasonable period of time; furthermore, the Seller and the Customer shall be entitled to withdraw from the contract one month after the occurrence of the force majeure event, provided that the force majeure event continues until then.
(10) The Customer's statutory rights due to default in delivery shall not be affected by the above provision.
(11) The Seller shall be entitled to make a partial delivery, if such a partial delivery is reasonable for the Customer, taking into account the Customer's interests. This shall have no influence on the content of the contract, in particular on the performance owed by the Seller or on the agreed time of performance. No partial delivery will cause additional costs for the Customer.
(11) Delivery is made through a forwarding agent to the curb or ramp. The Customer shall inform the Seller of any special delivery requirements, such as delivery times, limited clearance heights, maximum vehicle lengths, delivery by lifting platform or maximum pallet heights, prior to conclusion of the contract, but at the latest in good time prior to delivery.
§ 8 Right of return
(1) The Seller offers the following voluntary right of return. This right of return is subject to the following conditions:
The Customer can return the products to the Seller without giving any reason within 14 days from the date of invoice; in this case, the Seller shall refund the purchase price to the Customer. Items that are produced to order (e.g. products cut to desired lengths or not in stock) are excluded from such a return.
(2) The products can be delivered at the registered office of the Seller (Endorferstr. 6, 86167 Augsburg) or they may be returned by shipment at the Customer's expense. The return shipment shall be made to: Rosenberger-OSI GmbH & Co. OHG, Endorferstr. 6, 86167 Augsburg.
(3) The original invoice reflecting the purchase as well as the completed return form must be presented at the time of delivery of the products to the Seller's registered office or enclosed with the consignment when returning the products.
(4) Any defects of the products shall be covered by the warranty pursuant to § 10. The Customer can also make use of the return service to return products under warranty.
(5) Employees of Rosenberger-OSI GmbH & Co. OHG are excluded from this right of return.
(6) For the repayment, the Seller shall use the same means of payment used by the Customer in the original transaction, unless expressly agreed otherwise with the Customer. Only valid for non-euro payments: Any losses due to currency fluctuations will not be reimbursed.
(7) If the Customer returns the item(s) of an order in accordance with this voluntary right of return, the Seller shall refund the purchase price paid. However, any shipping costs will not be refunded. If these conditions on the right of return are not respected, the paid purchase price will not be refunded.
(8) The warranty rights of the Customer shall remain unaffected by the above provisions.
§ 9 Transfer of risk
(1) The risk of accidental loss and accidental deterioration of the products shall pass to the Customer upon delivery or, in the case of a sale by shipment, when the products are handed over to the forwarding agent, carrier or any other person or institution designated to carry out the shipment.
(2) The products shall be deemed validly delivered, even if the Customer is in default of acceptance. If the Customer is in default of acceptance, the Seller is entitled to compensation for any additional expenses caused by the unsuccessful delivery attempt as well as for the storage and preservation of the items to be delivered.
(3) Unless the Customer is in default, the Seller assigns to the Customer any claims against the forwarding agent or carrier.
§ 10 Warranty
(1) The delivered products may differ slightly in colour from the products presented on the Internet, in catalogues or in other product descriptions. Reference is made to § 2 para. 1 of these General Terms and Conditions.
(2) The products must be inspected immediately for deviations in quality and quantity and any obvious defects must be reported to the Seller within a period of two weeks from receipt of the products at the latest; otherwise the assertion of a warranty claim is excluded. Timely dispatch or notification shall be sufficient to meet the deadline of two weeks. The Customer shall bear the full burden of proof for all prerequisites to be met for a claim to become valid, in particular for the existence of the defect, the time of discovery of any defect and the timeliness of the notice. Businessmen are subject to Section 377 HGB (German Commercial Code).
(3) The Seller shall, at their discretion, repair or replace the defective items. Compensation for futile expenses within the scope of Section 284 BGB (German Civil Code) is excluded.
(4) In the event of merely insignificant defects, the interests of both parties shall be taken into account and the Customer shall not be entitled to withdraw from the contract. If the Customer opts for compensation for damages instead of performance, the limitations of liability pursuant to § 11 shall apply.
(6) The basis of the Seller's liability for defects is primarily the agreement reached on the quality of the products. Basically, only the product description designated as such (including that of the manufacturer) and provided to the Customer prior to their order or included in the contract in the same way as these GTCs, shall be deemed to be agreed, unless expressly agreed otherwise.
If no agreement has been made regarding the quality of the products, any competent court shall decide whether a defect exists or not pursuant to the applicable laws and regulations (Section 434 para. 1 sentence 2 and 3 BGB [German Civil Code]). The Seller shall not be liable for public statements made by the manufacturer or any other third parties (e.g. advertising statements). This shall not apply if the Seller has manufactured the products.
(7) The limitation period is 1 year from delivery. The one-year warranty period shall not apply in case of gross negligence by the Seller, if the Seller has fraudulently concealed a defect, in case of bodily injury or damage to health or death of the entrepreneur attributable to the Seller, in the case of a guarantee or in the case of delivery recourse pursuant to Section 478 BGB (German Civil Code). The liability of the Seller according to the product liability law shall remain unaffected.
§ 11 Limitations of liability
(1) The Seller shall not be liable in the event of a slightly negligent breach of immaterial contractual obligations. This also applies to slightly negligent breaches of duty by the legal representatives or vicarious agents of the Seller. The Seller shall be liable for the violation of essential contractual legal positions of the Customer. Legal positions essential to the contract are those to be granted by the contract to the Customer according to the content and purpose of the contract. Furthermore, the Seller shall be liable for the breach of obligations if the obligations are a prerequisite for the proper execution of the contract and if the Customer can expect the Seller to comply with these obligations.
(2) The above limitations of liability do not affect claims of the Customer arising from guarantees and/or product liability. Furthermore, the limitations of liability shall not apply in case of fraudulent intent or if a bodily injury or damage to health or the death of the Customer can be attributed to the Seller.
(3) The Seller shall only be liable for their own content on their website. To the extent any links provide access to other websites, the Seller is not responsible for the third-party content of these websites. The Seller does not adopt the external content as their own. If the Seller becomes aware of illegal content on external websites, they will immediately block access to these websites, if this is technically possible and reasonable.
§ 12 Final provisions
(1) These GTCs shall be governed by the laws of the Federal Republic of Germany; the applicability of the UN Convention on Contracts for the International Sale of Goods is hereby excluded.
(2) If the Customer is a businessman, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from this contract shall be the court responsible for the Seller's place of business, unless there is an exclusive place of jurisdiction. However, the Seller is also entitled to sue the businessman at the court of their place of residence or business.