The following terms and conditions are the basis for all deliveries and services of Optimate to the customer as well as other legal relations between Optimate and the customer, if the customer is located in Germany at the time of conclusion of the contract and are part of the contract between Optimate and the customer. The customer’s own terms and conditions will not become part of the contract even if Optimate does not expressly object them when accepting the order.
There are no verbal collateral agreements to concluded contract. Subsidiary agreements and contract amendments must be made in writing to be effective. This formal requirement may not be waived or invalidated either verbally or tacitly.
The legal relationship between Optimate and the customer is governed exclusively by German law, under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and German international private law.
Place of jurisdiction for all disputes between the customer and Optimate is the registered office of Optimate, as far as no other exclusive jurisdiction exists. Optimate reserves the right to take legal action at any other permissible place of jurisdiction.
Optimate is entitled to make technical changes at any time if they serve an improvement.
The processing of contact and interaction data of contact persons of the customer is required for the initiation and execution of contracts. Optimate processes this personal data based on a legitimate interest in ensuring the traceability of the business relationships and to support communication in the processing of the contractual relationship.
For the initiation and processing of contracts as well as later services Optimate transmits employee contact data to the customer, in order to enable an orderly communication and service processing. The customer may only use this data to carry out the respective contractual relationship with Optimate.
The personal data provided will be stored for as long as a mutual interest in the business relationship is evident. If Optimate has no ongoing legitimate business need to process your personal information, Optimate will either delete or make it anonymous or, if this is not possible (for example, because your personal information has been stored in backup archives), your personal information will be kept secure and isolated from any further processing until deletion is possible.
The professional contact details are stored and processed for the purpose of justifying and executing orders for Optimate products (Article 6 paragraph 1 letter b) GDPR) as well as to comply legal requirements (Article 6 paragraph1 letter c) GDPR).
The data is stored and processed in a secure environment. This ensures that the transmission, storage and processing of data is fully protected against unauthorized access and complies with current data security standards.
The customer agrees that data may be transmitted, processed and permanently used by Optimate. Optimate may occasionally use external service providers to process the data. They are obliged to confidentiality and only receive anonymous data.
The delivery/performance time results from the agreements between Optimate and the customer. It is only binding as a fixed date if this has been expressly agreed. Their observance by Optimate requires that all commercial and technical contract details between the parties to the contract have been finally clarified and that the customer has fulfilled all obligations incumbent upon him, such as special cooperation, provision of materials or down payments. If this is not the case, the delivery/service period shall be extended accordingly. If changes to the scope of delivery/service become necessary later or are requested by the Customer, the delivery/service period shall also be extended accordingly.
If a delay in delivery/service is due to unforeseeable circumstances for which Optimate is not responsible, Optimate is not liable for the delay; the delivery/service time is extended accordingly. This also applies in case of defective or untimely self-supply if Optimate has made an equivalent covering purchase and is not at fault for the defective or untimely self-supply. Optimate will inform the customer of the beginning and end of such circumstances as soon as possible.
If unforeseeable circumstances not caused by Optimate in terms of paragraph 2 make it difficult for Optimate to fulfil the contract for an unforeseeable period of time or for a period of time which endangers the purpose of the contract and the obstacle to performance for Optimate cannot be overcome with reasonable expenses, Optimate has the right to withdraw from the contract. In such cases, Optimate is obliged to inform the customer immediately about the aggravating circumstances and, after exercising the withdrawal, to reimburse the customer immediately for any consideration already received. Claims of the customer exceeding the claims for reimbursement are excluded.
Unless otherwise agreed, all invoices issued by Optimate are payable within 30 days of receipt by the customer without deduction to the account specified by Optimate. The date on which Optimate’s account is credited is decisive for the timeliness of payment.
Optimate reserves the right to demand advance payment or a deposit from the customer.
Unless otherwise stated, agreed prices are net prices without any statutory value added tax at the rate applicable at the time of delivery or performance.
Optimate reserves the right of ownership of the object of the sales contract, contract for work and materials or contract for work and services until the complete fulfilment of all payment obligations – also for any additional services owed – from the respective contract.
The customer may not sell, pledge or assign by way of security the item subject to retention of title until all payment obligations have been met in full.
The customer in only entitled to process or sell the goods in the ordinary course of business, but not to pledge them or assign them by way of security, before all payment obligations have been met in full, if he has ordered the goods recognisably as an integrator or other intermediary and as long as he is not in default of payment or there is no reason to apply for insolvency. The customer hereby assigns all claims against third parties arising from the processing or sale to Optimate in advance to secure the payment claims of Optimate. This assignment shall apply regardless of whether the reserved goods have been sold without or after processing. Notwithstanding the assignment, the customer remains entitled to collect the claim and Optimate will not collect the claim if the customer is not in default of payment or there is no reason to apply for insolvency. The processing and connection of the reserved goods by the customer takes place exclusively for Optimate. In case of combination with other movable items not belonging to Optimate, Optimate is entitled to co-ownership of the new item in the ratio of the acquisition value of the reserved goods and the other items connected with it at the time of processing.
The customer must inform Optimate immediately in case of seizure, confiscation or other disposals by third parties.
If there are already defects in the purchase object or work performance at the time of transfer of risk, Optimate is liable under exclusion of further claims, but subject to the liability for damages in accordance with Section VI, only under the following provisions:
As far as the subject matter of the contract violates industrial property rights or copyrights of third parties in Germany, Optimate will, at ist own expense, procure the right for further use for the customer or modify the subject matter of the contract in a reasonable way for the customer so that the violation of property rights no longer exists. If this is not possible at economically reasonable conditions or within a reasonable period of time, both the customer and Optimate are entitled to withdraw from the contract.
The above-mentioned obligations of Optimate are- subject to Section VI – final in the event of an infringement of property rights or copyrights. They exist only insofar as
The exclusion of the customer’s rights due to obvious or recognized defects which were not immediately notified (§ 377 HBG) remains unaffected.
If the customer, with the required consent of Optimate, carries out actions on his own to eliminate defects, which Optimate would be obliged to do according to the above regulations, the customer is not considered to be a vicarious agent of Optimate. Optimate is only liable for the consequences of self-remedy if the customer has acted according to Optimate’s instructions. Optimate will reimburse the customer for the costs of the self-repair up to the amount Optimate would have had to bear without the self-repair by the customer.
Claims of the customer due to fraudulently concealed defects or due to a quality or durability guarantee assumed by Optimate always remain unaffected.
Optimate is only liable – for whatever legal reasons – for damages that did not occur on the subject matter of the contract itself:
In case of culpable violation of essential contractual obligations (especially the obligation to deliver on time and free of defects) Optimate is also liable for gross negligence of non-leading vicarious agents as well as slight negligence, in the latter case limited to the contract-typical, reasonably foreseeable damage.
Further claims are excluded.
Optimate’s liability is excluded in the following cases in particular, insofar as they are not the responsibility of Optimate: Unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, normal wear and tear, faulty or negligent handling, improper maintenance, unsuitable equipment, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences. In the customer or a third-party repair improperly, Optimate is not liable for the resulting consequences. The same applies to changes to the object of purchase/service without prior release by Optimate.