General Terms and Customer Information

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
Fax: +49 821 - 2 49 24 – 929
E-mail: info-osi@rosenberger.com

Managing partners:
Thomas Schmidt
Hans Rosenberger

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) Following General Terms and Conditions shall apply to every business relationsһip between the Seller and the Customer according to the version valid at the time of the order. The General Terms and Conditions in their respective version shall also apply as a framework agreement for future contracts with the same Customer, without any need for the Seller to refer to them again in each individual case. In addition, the General Conditions for the Supply of Products and Services of the Electrical and Electronics Industry ("Grüne Lieferbedingungen") shall apply in their respective valid version.

(2) Customer means, in terms of these General Terms and Conditions, exclusively natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of its trade, business or profession (entrepreneur § 14 BGB) as well as legal persons under public law.

Customers have to prove tһeir entrepreneurial status by providing a VAT identification number.

(3) Individual contract agreements have priority ante these general terms and conditions. Diverging, conflicting or complementary general terms and conditions do not become a part of the contract, unless, their validity is expressly agreed. The present General Terms and Conditions shall also apply in case the Seller carries out the delivery to the Customer without reservation in the knowledge that the Customer's terms and conditions are contrary to or deviate from these Terms and Conditions.

§ 2 Conclusion of the contract

(1) The presentation of the goods on the website of the Seller does not constitute an offer in the legal sense, but only an invitation to the Customer to place an offer in the legal sense. The ordered goods can, due to different technical factors, slightly diverge from the goods shown on the Site, in particular this may lead to colour variations, as far as reasonable.

(2) By clicking on the button "order with obligation to pay”, the Customer submits a binding order of the goods contained in the shopping cart. The Seller will immediately confirm the entrance of the Customer’s order by e-mail.

(3) In case of payment by credit card or PayPal, the conclusion of the contract occurs already with the Customer’s payment order. Prerequisite for an effective conclusion of the contract is always that the order process is concluded with the dispatch of the order.

(4) The conclusion of the contract is subject to correct and punctual supply to the Seller. This is valid only for the case that the non-delivery is not the fault of the Seller, who has accurately negotiated a hedging transaction with the supplier. The Seller will undertake all reasonable strains to purchase the products. Otherwise the quid pro quo is immediately refund-ed. In case of non-availability or just partial availability of the goods the Customer is immediately informed.

(5) The conclusion of the contract shall occur in English language.

(6) The Customer may amend his entries at any time during the ordering process by clicking on the "Back" button in the browser and subsequently making the appropriate changes. In the order overview, the Customer may amend the billing and delivery address by clicking the "Change address" button and the payment metһod by clicking the "Change" button. By closing the web browser, the Customer may cancel the entire order process at any time.

(7) After conclusion of the contract, the contract text shall be stored by the Seller and sent to the Customer by e-mail with the legally effective terms and conditions

§ 3 Retention of title and rescission

(1) The Seller reserves himself the property of the product up to the entire settlement of debt from a current business relation.

(2) For the duration of the retention of title, the Customer is obliged to treat the purchased item with care. The Customer shall insure the goods at his own expense against fire, water and theft sufficiently to their replacement value. The Customer hereby assigns to the Seller all claims arising in case of damage up to the invoice amount.

(3) In case of damage or destruction of the goods, the Customer must notify the Seller immediately in written form. The same applies to seizures or other interventions by third parties. Should the third party not be in a position to reimburse the Seller for the court and extrajudicial costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the Customer shall be liable for the loss incurred to the Seller.

(4) The Customer shall be entitled to resell the purchased items in the regular course of the business; he hereby assigns to the Seller all claims up to the invoice amount, which he may obtain from the resale towards his buyers or third parties, irrespective of whether the purchased item has been resold without of after processing. The Customer shall remain entitled to collect this claim even after the assignment. The Seller's authority to collect the claim himself remains unaffected. However, the Seller undertakes to refrain from collecting the claim as long as the Customer meets his payment obligations from the acquired profits, is not in default of payment and, in particular, no application for opening of settlement or insolvency proceedings has been made neither payments have been suspended. In these cases, the Seller may require the Customer to disclose to the Seller the assigned claims and their debtors, to provide all information necessary for collection, to hand over the relevant documents and to inform his debtors (third parties) of the assignment. If the Customer has sold the claim within the scope of real factoring, the Customer shall transfer to the Seller the substitute claim against the factor.

(5) The Seller accepts the above assignment.

(6) The Seller commits himself to flout the entitled securities when required by the Customer when the realizable value of the securities of the Seller exceeds the demand to be protected about more than 10%. The choice of the securities to be flouted is incumbent upon the Seller.

§ 4 Deterioration in the financial circumstances of the Customer

(1) If, after the conclusion of the contract, the Seller becomes aware of indications of a significant deterioration in the Customer's financial circumstances which lead to the expectation that the Customer will probably not be in a position to fulfil the existing payment obligations at the time of maturity, the Seller may demand full payment of all invoices and declare invoices not yet due for payment.

(2) If legal settlement proceedings or insolvency proceedings are opened over the assets of the Customer, the Seller shall be entitled to witһdraw from the contract and to demand the return of the goods if the Customer has not yet or not completely fulfilled the payment. Any claims for damages of the Seller shall remain unaffected by this. After taking back the purchased items, the Seller shall be entitled to process them. The liquidation proceeds shall be credited to the Customer's debts - after deduction of reasonable liquidation costs.

§ 5 Prices

(1) The quоted purchase price is binding. Purchase prices include statutory Value Added Tax. Incurred shipping costs are included on following delivery cost report of the Seller "Shipping & delivery". Packaging costs are already included in this delivery costs.

(2) During the default, the Customer has to pay interest at a rate 9 points above the prime rate. The Customer owes a lump sum payment of 40 euros in case of default with a claim for payment. This shall also apply if the Customer is in default with an advance payment or other instalment payment. The Seller reserves himself to apply higher damage caused by delay. The lump sum according to sentence 5 shall be charged to a claim for damages if the damage is justified in costs of legal proceedings.

(3) The Customer shall only be entitled to set off in case that his counterclaims are legally established, accepted or are not denied by the Seller. The right of the Customer to set off with contractual and other claims arose from the creation or execution of this contractual relationship shall remain hereby unaffected. The Customer can carry out a right of retention only if his counterclaim is based on the same contract relation.

§ 6 Payment terms

(1) Customers may pay by credit card or PayPal. Payment by invoice may be made on request

(2) In case of payment by credit card, the Customer shall transmit his credit card data as part of the order process. After appropriate legitimation, the Seller will request the credit card company to initiate the payment transaction. The payment transaction is automatically carried out by the credit card company and the credit card will be 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 goods will be delivered only to the countries specified on “Shipping & Delivery”.

(2) The delivery time for deliveries shall be indicated on the respective offer site. The date of dispatch shall be determined (depending on the chosen payment) as in paragraphs 3 – 5.

(3) In the case of payment by credit card or PayPal, the delivery period begins one day after effecting the payment order. For all other payment methods, the delivery period begins one day after placing the order.

(4) In case that the period begins or ends on a Saturday, Sunday or public holidays, that period shall then be postponed to the next working day.

(5) Concerning the subject to correct and punctual supply, the Seller refers to § 2 (4) of these Terms and Conditions.

(6) Unless expressly agreed otherwise, the Seller shall determine the appropriate sһipping method 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 goods cannot be delivered or cannot be delivered on time when the order is placed, the Seller shall inform the Customer immediately and notify him of the expected delivery date. Concerning the reservation of proper self-delivery, the Seller refers to § 2 (4).

(9) The Seller shall not be liable if delivery dates cannot be met due to force majeure. Force majeure shall be deemed to be mobilisation, war, riot, strike, lockout, environmental catastrophes or comparable unforeseeable events that do not fall within the Seller's sphere of responsibility. In these cases, the delivery period shall be extended accordingly; furthermore, the Seller and the Customer shall be entitled to withdraw from the contract one month after the occurrence of the force majeure, provided that the event of force majeure continues until then.

(10) The statutory rights of the Customer due to delay in delivery shall not be affected by the above provision.

(11) The Seller is entitled to deliver in partial deliveries, as far as reasonable taking into consideration that any conflicting interests of the Customer are not affected. This has no influence on the content of the contract, in particular on the performance owed by the Seller or on the agreed performance period. In case a partial delivery, no additional costs will be originated for the Customer.

(11) The delivery by forwarding agent is carried out to the kerb or ramp. The Customer shall inform the Seller of any special features of the delivery, such as delivery times, limited clearance heights, maximum vehicle lengths, delivery by lifting platform or maximum pallet height, prior to conclusion of the contract, but at the latest in sufficient time before delivery.

§ 8 Product return

(1) The Seller offers following, voluntary product return right. Following conditions shall apply:

The products of the Seller may be returned by the Customer without giving any reason within 14 days from the invoice date. The customer shall then be reimbursed the purchase price. Articles which are produced on demand (desired lengths or not available in stock) are excluded from the return service.

(2) The goods can be returned to the Seller's registered office (Endorferstr. 6, 86167 Augsburg) or they can be sent back at the Customer's expense. The return shipment shall be made to: Rosenberger-OSI GmbH & Co OHG, Endorferstr. 6, 86167 Augsburg.

(3) The original purchase invoice and the filled-in and printed out return form must be presented at the Seller's registered office when the goods are handed in or must be enclosed with the consignment when the goods are returned.

(4) Of course, all defects of the products are covered by the warranty (§ 10). The Customer may also return goods under warranty via the return service.

(5) Employees of Rosenberger-OSI GmbH & Co OHG are excluded from this product return right.

(6) For the reimbursement, the Seller shall use the same means of payment that the Customer used for the original transaction, unless expressly agreed otherwise with the Customer. Only for non-euro payments: Possible losses due to currency fluctuations will not be refunded.

(7) If the Customer returns the item(s) of an order in accordance with this voluntary product return right, the Seller will refund the purchase price paid. Shipping costs will not be refunded. If the present conditions of the right of return are not fulfilled, the purchase price paid will not be refunded.

(8) The warranty rights of the buyer by the above regulations remain unaffected.

§ 9 Passing of risk

(1) The risk of accidental lоss and accidental deterioration of the sold product shall pass to the Customer once the goods have been given to the shipper, carrier or to the forwarding agent or company.

(2) The passing of risk shall apply even if the Customer is in default of acceptance. If the Customer is in default of acceptance, the Seller shall be entitled to demand compensation for the additional expenses which he had to bear in connection with the failed offer and for the storage and maintenance of the items to be delivered.

(3) Provided that the Customer is not in default, the Seller shall assign to the Customer all claims against the forwarding agent or carrier.

§ 10 Warranty

(1) The delivered products can slightly diverse within the scope of reasonableness from the products shown on the internet, in catalogues or other product descriptions. § 2 (1) from these Terms and Conditions refers to it.

(2) The goods shall be examined immediately for deviations in quality and quantity and obvious defects shall be notified to the Seller within a period of two weeks at the latest from receipt of the goods; otherwise the enforcement of warranty claims shall be excluded. Timely dispatch or notification shall be sufficient to meet the deadline. The Customer shall bear the full burden of proof for all conditions of entitlement, in particular for the defect itself, for the time of detection of the defect and for the timeliness of the notice of defects. For merchants § 377 HGB (German Commercial Code) shall apply.

(3) The Seller is entitled to choose by himself the form of remedy of supplementary performance or delivery. The compensation of unnecessary expenses within the scope of § 284 BGB (German Civil Code) is excluded.

(4) A withdraw from the contract is excluded – taking into consideration the interest of both parties – if the defect is irrelevant. In case of damage compensation in lieu of performance the Customer shall agree with the restrictions of liability § 11.

(6) The basis of the Seller's liability for defects is mainly the agreement reached on the quality of the goods. The quality of the goods is generally only deemed to be the product description (also of the manufacturer) designated as such, which was provided to the Customer prior to his order or was included in the contract in the same way as these General Terms and Conditions, unless expressly otherwise agreed.

If the quality has not been agreed upon, the legal regulation shall be applied to determine whether a defect is present or not (§ 434 para. 1, sentences 2 and 3 BGB-German Civil Code). The Seller shall not be liable for public statements made by the manufacturer or other third parties (e.g. advertising statements). This shall not apply if the Seller is manufacturer of the goods himself.

(7) The warranty period shall be one year from delivery of the goods in deviation from the statutory regulation. The warranty period shall commence upon transfer of risk in accordance with § 9. The one-year-old warranty period does not apply wһen the Seller is accusable of gross culpability or fraudulent intent, further not in case of personal injury, impairment to health and death of the Customer, in case of a guarantee as well as in case of a delivery recourse in accordance with § 478 BGB (German Civil Code). The liability of the Seller according to the Product Liability Act remains unaffected.

§ 11 Liability

(1) The Seller is not liable for slightly negligent violation of inessential contractual obligations. This is also valid to slightly negligent breaches of duty of the statutory agents or assistant or agent of the Seller. However, the Seller is liable for the violation of the Customer’s essential contract obligated legal positions. Essential contract obligated legal positions are those which the contract has to grant to the Customer according to the subject matter and purposes of the contract. The Seller is further liable for the violation of liabilities whose fulfilment allows the proper realisation of the contract and in whose realisation the Customer shall trust.

(2) The preceding restrictions of liability do not concern Customer’s claims from guarantees and/or product liability. The restrictions of liability will not be applied in case of fraudulent intent, violation the essential contractual obligations nor if the Seller is accusable of personal injury, impairment to health and death of the Customer.

(3) The Seller is only liable for the own contents of his online shop on the website. As far as access to other web pages by means of links is possible, the Seller is not responsible for the external content. The Seller does not embrace the external content. In case that the Seller is informed about illegal contents on external web pages, he will immediately block the access to those sites, as far as this is technically possible and reasonable.

§ 12 Final Clause

(1) This agreement shall be governed by the laws of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods.

(2) If the client is a mercһant, statutory juristic person or public law special legal estate, the jurisdiction for all litigations from this contract shall be the Court in which the Seller’s business location has its seat, provided that an exclusive jurisdiction is not given. The Seller is also entitled to sue the merchant at his residence or place of business Court.

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