General Terms and Conditions of Sale of OMNI ELEKTRONIK GmbH

§ 1 Validity of these GTC; defence clause

(1) These General Terms and Conditions of Sale (GTC) apply to all our business relationships with our customers. They apply in particular to contracts for the sale and/or delivery of movable goods, regardless of whether we manufacture these ourselves or purchase them from suppliers or subcontractors. However, they only apply if the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.

(2) Our GTCS apply exclusively, even if we accept orders without reservation, provide services or refer directly or indirectly to letters etc. containing the customer’s terms and conditions or third-party terms and conditions, despite being aware of the customer’s terms and conditions. We only recognise conflicting, deviating or supplementary terms and conditions of the customer if we expressly agree to their validity in writing.

(3) Our GTC, in their current version, shall also apply as a framework agreement (Section 305 (3) BGB) to future offers and contracts for the sale and/or delivery of movable goods to the same customer, without us having to refer to them again in each individual case; in this case, we shall inform the customer immediately of any changes to our GTC.

§ 2 Conclusion and content of the contract; written form; representation

(1) Our offers are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period.

(2) The order placed by the customer is considered a legally binding offer to conclude a contract. Unless otherwise specified, we may accept it within ten (10) working days (Monday to Friday, regardless of public holidays) of receipt.

(3) Our acceptance shall be made in writing (e.g. by means of our order confirmation or our shipping/collection readiness notification). The content of the written declaration shall be decisive for the content of the contract. Legally relevant declarations and notifications made to us by the customer after conclusion of the contract (e.g. setting of deadlines, reminders, complaints, etc.) must be made in writing to be effective.

(4) Transmission by fax or e-mail is also sufficient to comply with the written form requirement within the meaning of these GTC.

(5) The written contract, including these GTC, which form an integral part of the written contract, fully reflect all agreements made between us and the customer regarding the subject matter of the contract. Any verbal agreements made prior to the conclusion of the written contract are not legally binding and are completely superseded by the written contract, unless it is expressly stated in each case that they shall continue to be binding.

(6) Individual contractual agreements, including any verbal agreements, shall take precedence over these GTC. A written contract or our written confirmation shall be decisive for proving the content.

(7) With the exception of our managing director and other employees expressly designated as contact persons by the customer – in each case in a representative capacity – our employees are not authorised to conclude contracts, make individual written or verbal agreements or give other commitments; any such statements or acceptances of statements are irrelevant and not binding on us.

(8) With the exception of guarantees expressly agreed as such in the contract, there are no guarantees of any kind.

§ 3 Reservation of rights; confidentiality

(1) All documents, materials and other items provided by us to the customer (e.g. quotations, catalogues, price lists, cost estimates, plans, drawings, illustrations, calculations, product descriptions and specifications, samples, models and other physical and/or electronic documents, information and items), we reserve all property rights, copyrights and intellectual property rights.

(2) The customer may not make the aforementioned documents, materials and other items available or disclose them to third parties, either as such or in terms of their content, or exploit, reproduce or modify them without our prior written consent. The customer shall use them exclusively for the contractual purposes and, at our request, return them to us in full and destroy (or delete) any existing copies (including electronic copies) insofar as they are no longer required by the customer in the ordinary course of business and in accordance with statutory retention obligations. Upon our request, they must confirm the completeness of the return and destruction/deletion or explain which of the above-mentioned documents, materials or items they still consider necessary for which reasons.

§ 4 “EXW Incoterms (2020)” and other delivery terms; transfer of risk; default of acceptance, cooperation, etc.; lump-sum compensation

(1) Unless otherwise agreed, all our deliveries are subject to “EXW Incoterms (2020)” (referring to the warehouse from which we deliver).

(2) Goods will only be insured by us against theft, breakage, transport, fire or water damage or other insurable risks if expressly agreed with the customer and then exclusively at their expense.

(3) Unless otherwise agreed with the customer, we shall ship the goods to the destination specified by the customer. This shall be at the customer’s expense, including with regard to packaging. We shall be entitled to determine the type of shipment (in particular the transport company and the shipping route) and the packaging at our discretion. In the cases referred to in sentence 1 of this paragraph, the risk shall pass to the customer upon receipt of our notification of readiness for dispatch or – if the latter is not provided for in the contract – at the latest upon handover of the goods to the forwarding agent, carrier or other transport person. This shall also apply if partial deliveries are made or if we have assumed other services (e.g. the aforementioned shipping or transport or assembly). Otherwise, paragraph (1) and the General Terms and Conditions of Sale of OMNI ELEKTRONIK GmbH shall remain unaffected by the provisions on the place of performance (§ 14 of these GTC).

(4) If the customer is in default of acceptance, fails to provide the necessary cooperation or delays our performance for other reasons for which the customer is responsible, we shall be entitled to charge for the resulting damage, including our additional expenses (e.g. in particular storage costs). For this, we shall charge a flat-rate compensation of 0.25% of the net invoice amount of the delayed performance per full calendar week that has elapsed; this time calculation shall only commence 30 calendar days after the date agreed for our performance, i.e. after receipt of our notification of readiness for dispatch/collection by the customer or, if agreed, after the date scheduled for handover to the transport company. Proof of higher damages and our legal rights remain unaffected, but any lump-sum compensation we receive shall be offset against our claims. The customer is entitled to prove that we have incurred no damage at all or only significantly less damage than the lump-sum compensation.

§ 5 Prices and contribution to expenses for tools, payment, retention of goods; exclusion of rights of set-off and retention

(1) Unless otherwise agreed, our current net prices at the time of conclusion of the contract plus statutory value added tax shall always apply. Prices are quoted “EXW Incoterms (2020)” (see § 4(1) of these GTC). Any insurance, transport and packaging costs (see § 4(2) and § 4(3) of these GTC) as well as any other taxes and duties shall be added, unless otherwise agreed.

(2) If the agreed prices are our list prices, no fixed (unchangeable) price has been agreed and, in addition, our delivery is not due to take place until more than four (4) months after conclusion of the contract, our prices current at the time of delivery shall apply. Any agreed percentage or fixed discounts shall be deducted unchanged from the price current at the time of delivery. In all other respects, paragraph (1) shall apply.

(3) We shall invoice the customer for 1/3 of the costs to be borne by the customer for tools upon conclusion of the contract, 1/3 upon presentation of the sample and 1/3 after approval of the first sample part by the customer.

(4) Unless otherwise agreed, our invoices are payable within ten (10) calendar days of delivery and receipt of the invoice with a 2% discount or within 30 calendar days of delivery and receipt of the invoice without any deduction and in euros (€). Invoices for tools and services are not eligible for discounts. Delivery means handover to the customer or, if shipping has been agreed, handover to the transport company. If acceptance has been agreed, the time of acceptance shall take the place of delivery. The date of receipt of payment shall be decisive for compliance with the payment deadline. We may combine our invoice with the aforementioned notification of readiness for dispatch/collection.

(5) Upon expiry of the 30-day payment period specified in paragraph (3), the customer shall automatically be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. In the event of default, we shall also be entitled to the statutory default lump sum pursuant to Section 288 (5) sentence 1 of the German Civil Code (BGB). We reserve the right to assert further claims for damages caused by default. In any case, our statutory claim against merchants for commercial interest on arrears (Sections 352, 353 HGB) from the due date remains unaffected.

(6) The customer is only entitled to offset and assert a right of retention if
(a) their counterclaim is either undisputed or has been legally established, or
(b) in the case of a procedural claim, it is ready for decision at the time of the last oral hearing, or
(c) it is reciprocal (synallagma) to the main claim. § 8 (10) of these GTC remains unaffected.

§ 6 Delivery periods, possible extension; reservations for force majeure, self-supply, etc.; partial deliveries; excess and short deliveries for custom-made products

(1) Unless delivery periods have been expressly agreed, the delivery times/dates (delivery periods) specified by us shall apply to our deliveries and services.

(2) A delivery period for the delivery of goods shall be deemed to have been met if the customer has received our notification of readiness for dispatch/collection by the end of the delivery period or – if agreed – we have handed over the goods to the carrier.

(3) We shall not be liable for the impossibility or delay of our services if these circumstances are due to force majeure or other events that were unforeseeable at the time of conclusion of the contract and for which we are not responsible (e.g. operational disruptions of any kind, fire, natural disasters, weather, floods, war, insurrection, terrorism, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, delays in the granting of any necessary official approvals, official/sovereign measures). Such an event also includes incorrect or late delivery by one of our suppliers, if we are not responsible for this and had concluded a congruent covering transaction with the respective supplier at the time of concluding the contract with the customer. This also applies if we conclude the covering transaction immediately after the transaction with the customer. In such cases, the delivery periods shall be automatically extended by the duration of the event plus a reasonable start-up period.

(4) Delivery periods shall be extended automatically to a reasonable extent if the customer fails to fulfil its contractual obligations or other duties of cooperation or obligations. In particular, the customer is responsible for providing us with all documents, information, samples, specimens and other information and items to be provided by it in good time and in the correct format.

(5) We shall be entitled to make partial deliveries if (a) a partial delivery is usable for the customer within the scope of the contractual purpose, (b) the provision of the remaining services is ensured, and (c) the partial delivery does not result in significant additional expense for the customer.

(6) In the case of contracts for custom-made products, the customer shall accept excess or short deliveries of up to three (3) per cent of the quantity ordered. The customer shall pay for the quantities of custom-made products actually delivered by us.

(7) Our statutory rights, in particular with regard to the possible exclusion of our obligation to perform (e.g. due to the impossibility or unreasonableness of performance and/or subsequent performance) and due to acceptance or default of performance on the part of the customer, remain unaffected.

(8) If we are in default with a delivery or service or if it becomes impossible for us to perform for any reason whatsoever, our liability for damages shall be limited in accordance with § 10 of these GTC.

§ 7 Retention of title

(1) The retention of title agreed here serves to secure our claims against the customer arising solely from the respective contractual relationship and, in addition, any current account balance claims we may have at the time of conclusion of the respective contract (together the “secured claims”).

(2) The goods delivered by us to the customer remain our property until all secured claims have been paid in full. These goods and the items replacing them in accordance with the following provisions, which are also covered by the retention of title, are hereinafter referred to as “reserved goods”. If the customer intends to transfer the reserved goods to a location outside the Federal Republic of Germany, they are obliged to immediately fulfil all legal requirements for the creation and maintenance of our retention of title at their own expense and to inform us immediately after forming the aforementioned intention.

(3) The customer shall store the reserved goods for us free of charge. They must treat them with care and insure them adequately at their own expense at replacement value. If maintenance, repair or inspection work becomes necessary (this does not include any (subsequent) performance to be provided by us), the customer must carry this out in good time at their own expense.

(4) The customer is not entitled to pledge the goods subject to retention of title or to transfer them as security. In the event of seizure of the goods subject to retention of title by third parties or other access by third parties, the customer must clearly indicate our ownership and notify us immediately in writing so that we can pursue our property rights. If the third party is unable to reimburse us for the judicial or extrajudicial costs incurred by us in this connection, the customer shall be liable to us for these costs.

(5) The customer is entitled to use, process/transform, combine, mix and/or sell the goods subject to retention of title in the ordinary course of business until the event of realisation (para. (9)) occurs.

(6) If the goods subject to retention of title are processed or transformed by the customer (§ 950 BGB), this processing shall always be carried out for us as the manufacturer in our name and for our account, and that we shall immediately acquire ownership or – if the processing or transformation is carried out using materials belonging to several owners, or if the value of the newly created item is higher than the value of the goods subject to retention of title – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title (gross invoice value) to the value of this newly created item. In the event that, for any reason, we do not acquire such ownership or co-ownership, the customer hereby transfers to us his future ownership or (in the aforementioned ratio) co-ownership of the newly created item as security; we hereby accept this transfer. If the goods subject to retention of title are combined with other items not belonging to us within the meaning of Section 947 of the German Civil Code (BGB) or mixed or blended within the meaning of Section 948 of the German Civil Code (BGB), we shall acquire co-ownership of the newly created item in the ratio of the value of the goods subject to retention of title (gross invoice value) to the value of the other combined, mixed or blended items at the time of combination, If the goods subject to retention of title are to be regarded as the main item, we shall acquire sole ownership (Section 947 (2) BGB). If one of the other items is to be regarded as the main item, the customer shall, insofar as the main item belongs to him, hereby transfer to us the proportionate co-ownership of the uniform item in the aforementioned ratio. We hereby accept this transfer. The customer shall hold our sole ownership or co-ownership of an item arising in accordance with the above provisions in safekeeping for us free of charge.

(7) The customer’s claims for payment against its customers arising from the resale of the goods subject to retention of title, as well as those claims of the customer relating to the goods subject to retention of title which arise against its customers or third parties on other legal grounds (in particular claims arising from tort and claims for insurance benefits), including all balance claims from current accounts, are hereby assigned to us by the customer as security – in the case of our co-ownership of the goods subject to retention of title, proportionally in accordance with our co-ownership share. We hereby accept these assignments. We hereby revocably authorise the customer to collect the claims assigned to us in his own name on our behalf. Our right to collect these claims ourselves remains unaffected. However, we will not collect them ourselves and will not revoke the authorisation to collect as long as the customer duly meets his payment obligations to us (in particular, does not fall into arrears), as long as no application has been made to open insolvency proceedings against the customer’s assets and as long as the customer is not unable to perform (§ 321 (1) sentence 1 BGB). If one of the aforementioned cases occurs, we may demand that the customer informs us of the assigned claims and the respective debtors, notifies the respective debtors of the assignment (which we may also do ourselves at our discretion) and hands over to us all documents and provides us with all information we need to assert the claims. Paragraph (4) shall apply mutatis mutandis to the assigned claims.

(8) If the customer so requests, we shall be obliged to release the goods subject to retention of title and the items and claims replacing them to the extent that their estimated value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released shall be at our discretion.

(9) If we withdraw from the contract in accordance with the statutory provisions due to the customer’s breach of contract – in particular due to his default in payment – (case of realisation), we shall be entitled to demand the return of the goods subject to retention of title from the customer. Our declaration of withdrawal shall be included in our demand for return at the latest. The transport costs incurred for the return shall be borne by the customer. Any seizure of the goods subject to retention of title by us shall also constitute a declaration of withdrawal.

§ 8 Warranty for defects

(1) The customer’s rights in the event of material defects and defects of title (including incorrect and short deliveries, faulty assembly or instructions) shall be governed by the statutory provisions, unless otherwise specified or supplemented in these GTC (including § 9). In any case, the special statutory provisions for final delivery of the goods to a consumer (supplier recourse in accordance with § 478 in conjunction with §§ 445a, 445b BGB) remain unaffected.

(2) Except in the cases specified in § 10 (2), (3) (a) and (b) and (4) of these GTC, we shall not be liable for any warranty claims for material defects in the event of any agreed delivery of used products. Furthermore, we shall not be liable for any warranty if the customer has modified the goods or had them modified without our consent and this makes repair impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of repair resulting from the modification. The goods shall not be deemed to have been modified if they are installed in another item or attached to another item in accordance with their intended use.

(3) Unless expressly agreed otherwise, (a) our products and services must comply exclusively with the legal requirements applicable in Germany and (b) the customer is solely responsible for integrating the products into their existing technical, structural and organisational conditions (customer’s system integration responsibility). The use of our products in the medical or medical technology sector, in particular in the context of life-supporting applications or peripheral systems for life-supporting applications, is the sole responsibility of the customer. Only the specifications stated by us in the respective contract documents apply. The possible general suitability of our products for applications in the medical or medical technology sector does not release the customer from their system integration responsibility.

(4) Unless acceptance has been expressly agreed, the customer is obliged to inspect the delivered goods immediately after delivery to them or to a third party designated by them and to report any defects without delay. Sections 377 and 381 of the German Commercial Code (HGB) and the provisions in this paragraph apply in this regard. The prompt notification of defects requires that it be sent within seven (7) working days of delivery at the latest or, in the case of a defect that was not apparent during the inspection (Section 377 (2) and (3) HGB), within three (3) working days of discovery of the defect at the latest.

(5) At our request, goods subject to complaint must first be returned to us immediately at the customer’s expense. If the complaint is justified, we will reimburse the customer for the costs of the cheapest shipping method; this does not apply if the costs increase because the goods are located at a place other than the place of intended use. Paragraph (7) (Granting the necessary time and opportunity to examine complaints and other objections) remains unaffected.

(6) If the customer fails to carry out the proper inspection and/or complaint, our warranty obligation and other liability for the defect in question shall be excluded.

(7) In any case, the customer must give us the time and opportunity necessary to examine complaints and other objections and to perform the subsequent performance owed, in particular to make the goods concerned available to us for the aforementioned purposes or – in the case of their fixed installation or similar local fixation – to provide access to them.

(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, if a defect actually exists. However, if the customer’s request to remedy the defect proves to be unjustified, we may demand reimbursement of the costs incurred by us from the customer.

(9) If the delivered item is defective, we shall first be entitled and obliged, at our discretion within a reasonable period of time, to remedy the defect (repair) or to deliver a defect-free item (replacement delivery). In the event of a replacement delivery, the customer must return the item to be replaced to us in accordance with the statutory provisions. In urgent cases (e.g. if operational safety is at risk or to prevent disproportionate damage) and only after prior consultation with us, the customer shall have the right to remedy a defect themselves and to demand reimbursement from us for the objectively necessary expenses incurred in doing so. The right to remedy the defect themselves shall not apply if we would be entitled to refuse corresponding subsequent performance in accordance with the statutory provisions.

(10) We shall be entitled to make the subsequent performance owed by us contingent upon the customer paying the purchase price due or, if applicable, the currently due instalment, whereby the customer shall, however, be entitled to retain a portion of the payment due that is reasonable in relation to the defect.

(11) If subsequent performance is impossible or has failed, or if a reasonable period of time to be set by the customer for subsequent performance has expired without success or is dispensable according to the statutory provisions, the customer may, at his discretion, withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an insignificant defect.

(12) In the event of a breach of duty by us that does not constitute a defect in the goods, the customer may only withdraw from or terminate the contract if we are responsible for the breach of duty; otherwise, the statutory provisions shall apply. The customer shall not have a free right of termination, in particular in accordance with Sections 651 and 649 of the British Civil Code.

(13) Any claims for damages shall only exist in accordance with § 10 of these GTC.

§ 9 Warranty for freedom from third-party property rights

(1) In accordance with this Section 9, we guarantee that the goods are free from third-party industrial property rights or copyrights. Each party shall immediately notify the other in writing if claims are asserted against it for the infringement of such rights.

(2) Claims for infringement of industrial property rights or copyrights of third parties are excluded if such infringement is based on an instruction by the customer, an unauthorised modification or use of the goods by the customer that is not in accordance with the contract.

(3) In the event that the goods infringe a third party’s industrial property right or copyright, we shall, at our discretion and at our expense, modify or replace the goods in such a way that no third party rights are infringed, but the goods continue to fulfil the contractually agreed functions, or procure the right of use for the customer by concluding a licence agreement. If we do not succeed in doing so within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately.

(4) In the event of infringements of rights by products from other manufacturers or suppliers delivered by us, we shall, at our discretion, assert our warranty claims against these manufacturers and suppliers on behalf of the customer or assign them to the customer.

(5) Any claims for damages shall only exist in accordance with § 10 of these GTC.

§ 10 Liability for damages

(1) Unless otherwise specified in these GTC, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2) We shall be liable without limitation – regardless of the legal basis – for damages resulting from an intentional or grossly negligent breach of duty by us or one of our legal representatives or vicarious agents.

(3) In the event of a simple or slightly negligent breach of duty by us or one of our legal representatives or vicarious agents, we shall only be liable
a) – albeit without limitation – for damages resulting from injury to life, limb or health;
b) for damages resulting from the breach of essential contractual obligations. Essential contractual obligations are those obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer regularly relies and may rely. In this case, however, our liability is limited to the amount of damage typical for the contract and foreseeable at the time of conclusion of the contract.

(4) The limitations of liability resulting from paragraph (3) shall not apply if we have fraudulently concealed a defect, have assumed a guarantee for the quality of the goods or have assumed a procurement risk. Furthermore, any mandatory statutory liability, in particular under the Product Liability Act, remains unaffected.

(5) The customer may only claim contractual penalties and lump-sum damages owed by the customer to third parties in connection with goods delivered by us as damages – subject to all other requirements – if this has been expressly agreed with us in writing or if the customer has notified us of this risk in writing prior to the conclusion of our contract with the customer.

(6) Insofar as our liability is excluded or limited in accordance with the above provisions, this shall also apply to the personal liability of our organs, legal representatives, employees, staff and vicarious agents.

§ 11 Limitation period

(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the limitation period for claims – including non-contractual claims – for material defects and defects of title shall be one (1) year from delivery; however, this shall not apply to the cases specified in Section 10 (2), (3) (a) and (b) and (4) of these GTC. In these cases, the relevant statutory limitation period shall apply instead.

(2) Delivery within the meaning of clause (1) sentence 1 refers to the handover to the customer or, if agreed, the handover to the transport person. If acceptance has been agreed, the limitation period shall not commence until acceptance has taken place.

(3) If the goods are a structure or an item that has been used for a structure in accordance with its normal use and has caused its defectiveness (building materials and components), the limitation period shall be five (5) years from delivery in accordance with the statutory provision (Section 438 (1) No. 2 lit. a or b BGB). Furthermore, the statutory provisions for third-party claims for surrender of property (§ 438 (1) No. 1 BGB), for our fraudulent concealment of a defect (§ 438 (3) BGB) and for claims in supplier recourse in the case of final delivery to a consumer (Section 478 in conjunction with Section 445b BGB).

§ 12 Special right of withdrawal in the event of suspension of payments, etc.

We have a special right to withdraw from the contract in the following cases: (a) The customer suspends payments to its creditors; (b) it applies for the opening of insolvency proceedings against its assets;
(c) it is lawfully applied for by us or another creditor; (d) provisional insolvency proceedings are opened;
(e) final proceedings are opened; or
(f ) the application is rejected due to lack of assets.

§ 13 Duty to provide information on safety measures

If product safety measures relating to our products are taken at or against the customer (e.g. official market surveillance measures, such as an order to withdraw or recall a product) or if the customer intends to take such measures themselves (e.g. reports to market surveillance authorities), they shall inform us immediately in writing.

§ 14 Place of performance

The place of performance for our deliveries is the warehouse from which we deliver. If we also owe the assembly, installation, commissioning, setup/adjustment or similar services, the place of performance is the location where this is to be carried out in accordance with the contractual provisions.

§ 15 Choice of law and place of jurisdiction

The business relationship between us and the customer is governed exclusively by the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) does not apply. If the customer is a merchant, a legal entity under public law or a special fund under public law, or if they do not have a general place of jurisdiction in the Federal Republic of Germany, the exclusive – including international – place of jurisdiction for all disputes arising from or in connection with the business relationship between us and the customer shall be the court responsible for our registered office. However, we are also entitled to sue the customer at their place of business or at the place of performance (§ 14 of these GTC). Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected.

§ 16 Severability clause

Should provisions of these GTC be or become wholly or partially void or ineffective, this shall not affect the validity of the remaining provisions. Insofar as provisions have not become part of the contract or are ineffective, the content of the contract shall be governed primarily by the statutory provisions (§ 306 (2) BGB). Only in other respects and insofar as no supplementary interpretation of the contract takes precedence or is possible shall the parties agree on a valid provision in place of the void or invalid provision which comes as close as possible to it in economic terms.