General Terms and Conditions of STEINER-Optik GmbH

I. Scope of application

1.
These General Terms and Conditions apply exclusively to entrepreneurs, legal persons under public law, or public special funds as defined by sentence 1 of section 310(1) of the German Civil Code (BGB). We do not recognise terms of our Customer that conflict with or deviate from our General Terms and Conditions, unless we have expressly consented in writing to their application. If an order is placed with us in deviation from our General Terms and Conditions, our General Terms and Conditions shall apply in this case even if we did not object to those deviating order terms at the time when the order was placed and/or when rendering performance in terms of the order.

2.
These General Terms and Conditions shall also apply to all future transactions with our Customers, even if we make no express reference to our General Terms and Conditions

II. Offers, orders and conclusion of contract

1.
Our offers are binding for a period of 14 days, counting from the date of the offer. This does not apply to offers marked expressly as 'non-binding'. Customers shall be bound by orders that amount to an offer pursuant to section 145 BGB for a period of 2 weeks.

2.
A contract shall be concluded when we receive an order from our Customer and accept the offer on which this order is based. An express declaration of acceptance on our part is not required. Acceptance can be expressed by a written order confirmation, by delivery of the ordered goods or by issuing an invoice..

3.
The goods and prices presented by us on the Internet, in brochures and catalogues, as well as descriptions of articles do not amount to an offer within the meaning of section 145 BGB.ar.

III. Prices and terms of payment

1.
Unless otherwise agreed with us in writing, our prices shall apply ex works, excluding packaging and shipping plus value-added tax at the applicable rate.

2.
Only the prices stipulated in our order confirmation apply.

3.
The purchase price must be paid exclusively on the account stipulated in the invoice. Early-payment discounts apply only if agreed expressly in writing.

4.
Unless otherwise agreed with our Customer, our invoices are payable without delay after receipt, however, at the latest within 7 days after the date of invoice. In cases where advance payment has been agreed, we shall be entitled to withhold delivery of the ordered goods entirely or in part until full payment of the purchase price is made. Default interest shall be charged at the rate of 8 percentage points above the applicable base interest rate p.a. We reserve the right to claim further default damage. In the event of a default on the part of the Buyer, all liabilities of the Buyer vis-à-vis us existing at that time shall become immediately due for payment.

5.
To simplify the processing of payments, we have assigned all claims accrued to us under the business relationship with the Customer to BNP Paribas Factor GmbH, Willstätterstraße 15, 40549 Düsseldorf. Accordingly, payments can only be made with a debt-discharging effect to BNP Paribas Factor GmbH. The corresponding bank details are stated in our respective invoices.

IV. Right of retention and set-off

The Customer is only entitled to exercise a right of retention if the Customer's counter-claim is based on the same contractual relationship and if the right of retention is asserted based on acknowledged claims or claims that have been established with final and binding effect. Set-off against our claim is only permitted on the basis of acknowledged counter-claims or claims that have been established with final and binding effect and that arise from the same contractual relationship.

V. Passing of risk

If the goods are shipped to our Customer at the latter's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the Customer upon dispatch to the Customer, however, at the latest when the goods leave the factory/warehouse. This shall apply irrespective of whether the goods are shipped from the place of performance or of which party is obliged to bear the costs of shipping.

VI. Retention of title

Delivery by us is based in all instances on the retention of title described hereafter. This shall apply also to all future deliveries, even if we do not always expressly refer to the retention of title.

1.
We reserve title to the supplied goods until full payment of all outstanding claims resulting from the supply agreement. We are entitled to claim return of the goods delivered if the Buyer acts in breach of the contract.

2.
Buyer is obliged to treat the goods with care until such time as the title is transferred to them. Buyer is obliged in particular to adequately insure the goods at their own expense against theft, fire and water damage at replacement value. If maintenance and inspection works are required, then the Buyer shall carry out such work at their own expense and in good time. Until such time as the title has been transferred, Buyer shall notify us in writing and without undue delay if the delivered goods have been seized or exposed to any other interference by third parties. If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of a claim pursuant to section 771 of the German Code of Civil Procedure (ZPO), the Buyer shall be liable instead for the costs incurred by us.

3.
The Buyer is entitled to resell the goods subject to retention of title in the ordinary course of business. Buyer assigns already now the receivables resulting from the resale of the goods subject to retention of tile to us in the amount of the agreed total invoice amount, including value-added tax. This assignment is effective irrespective of whether the contract item has been resold without or after processing. Buyer remains entitled to collect the receivables even after the assignment. Our right to collect the receivables ourselves is not affected. However, we undertake not to collect the receivables as long as the Buyer satisfies their payment obligations, is not in default of payment and in particular as long as no application to commence insolvency proceedings has been filed in regard to the assets of the Buyer or as long as the Buyer has not suspended payments.

4.
Any processing or transformation of the goods by the Buyer should always be made in our name and on our behalf. In this case, the Buyer's vested right in the goods passes to the processed article. If the goods sold are processed with other goods that do not belong to us, we shall acquire co-ownership in the newly created goods at the ratio of the objective value of the goods sold by us to value of the other processed items at the time of the processing.

5.
We undertake to release all securities to which we are entitled at the request of the Buyer provided that the realisable value of our securities exceeds not merely temporarily the value of the claims that are to be secured by more than 20 %;

6.
The Customer is obliged to inform us without undue delay about any request to open insolvency proceedings or seizure of the goods subject to retention of title by third parties. If our Customer suspends payments before the goods delivered subject to retention of title are paid in full, we shall be entitled to assert especially - but not limited to - the rights in terms of sections 47, 48 of the German Insolvency Code (InsO) to separation and separation extending to the consideration.

7.
Even in the absence of a withdrawal from the contract on our part, we shall be entitled to assert the rights in terms of the retention of title.

VII.  Warranty, notification of defects and recourse / Manufacturer recourse

1.
Warranty claims of our Customers require that Customers have properly complied with their duties of inspection and notification of defects in accordance with Section 377 of the German Commercial Code (HGB). The notification period pursuant to section 377 HGB is 8 days. Notification must be made in writing (also by fax).

2.
Claims for defects expire 12 months after delivery of the goods supplied by us to our Customers. Claims for damages in case of intent or gross negligence or in case of loss of life, limb or health based on an intentional or negligent breach of duty on our part are subject to the statutory limitation period.

3.
If, despite all due care, the goods supplied contain a defect that already existed at the time of transfer of risk, we shall repair or replace the goods as we see fit, provided that timely notification of the defect was made. In any event, however, we shall be given a reasonable grace period to cure the defect. Claims for recourse nonetheless remain unaffected. If a Customer asserts a warranty-based claim, they shall send us the goods concerned in their original or equivalent packaging for inspection.

4.
If the attempt to cure the defect fails, our Customer may - notwithstanding any claims for damages - withdraw from the contract or reduce the remuneration. The cure shall be deemed to have failed when two reasonable grace periods set by our Customers have expired unsuccessfully.

5.
Claims for defects based on merely insignificant deviations from the agreed quality shall not be entertained. Likewise not in case of merely minor impairment of usefulness, of natural wear and tear and damage, after the transfer of risk, resulting from faulty or negligent handling, excessive use, unsuitable equipment, or due to special external influences not envisaged in terms of the contract. In cases where our Customers or third parties have performed improper repairs or modifications, no claims for warranty shall be entertained for such repairs or modifications and the resulting consequences. Warranty claims are also excluded in case of failure to adhere to our operating and maintenance instructions. The same applies if consumables that do not meet the original specifications were used. However, in those cases, the Customer remains entitled to show that the defect was not caused by such use.

6.
All information about our products, especially the illustrations, drawings, as well as details about weight, dimensions and performance, shall be taken to be approximated average values. This information does not amount to guaranteed characteristics, but is a description or identification of the goods.

7.
Claims by our Customer arising out of expenses necessary for the purpose of curing a defect, in particular shipping, travel, labour and material costs, are excluded if the expenses increase because the goods supplied by us are subsequently taken to a location other than the customer's premises.

8.
Customer's claims for recourse against us shall be entertained only insofar as the Customer has not concluded agreements with their customers exceeding the mandatory statutory warranty claims.

9.
If and to the extent that we have agreed with our Customers to supply a used product, we also provide a two-year warranty for that used product.

10.
Our sales representatives are not authorised to conclude warranty-related agreements that deviate from the above terms of warranty.

VIII. Limitation of liability

1.
In case of a pre-contractual, contractual or non-contractual breach of duty or in case of a defective delivery - including defective delivery of fungibles - also tort and product liability, we shall be liable for damages and incurred expenses - subject to further contractual or statutory prerequisites for liability - only in case of intent, gross negligence and in case of slight negligence in the breach of an essential contractual obligation (contractual obligation, the breach of which places the achievement of the contractual purpose at risk). However, except in the case of intent, our liability is limited to the contract-typical damage foreseeable upon conclusion of contract.

2.
In the event that the Customer exceptionally cannot use the goods supplied as intended by the contract through our fault as a result of a failure to implement or correctly implement any suggestion made or advice given before or after conclusion of the contract or by the breach of any other accessory obligation, especially instructions on the operation and maintenance of the goods supplied, then the provisions of §§ 1 and 7 apply shall apply to the exclusion of any further claims by the Customer. Likewise the provisions in 'VIII. Warranty, notification of defects and recourse / Manufacturer recourse' shall apply.

3.
Our liability for delays caused by slight negligence shall be limited to 5 per cent of the contractually agreed purchase price.

4.
Except in the case of essential contractual obligations, any liability for slight negligence is excluded.

5.
The exclusions and limitations of liability stipulated in paras. 1 to 4 do not apply in cases where we have assumed a guarantee for the quality of the goods within the meaning of section 444 BGB, if a defect was fraudulently concealed, in case of damage resulting from the loss of life, limb or health or in case of strict liability under the Product Liability Act.

6.
All claims for damages against us, shall expire - irrespective of their legal basis - not later than one year after delivery of the goods to the Customer; in case of liability for tort, the limitation period shall begin with knowledge (or grossly negligent ignorance) of the circumstances on which the claim is based and of the identity of the person liable to provide compensation. In case of liability for intent and the cases stipulated in para. 5, the provisions of this paragraph shall not apply; instead, the statutory provisions shall apply. Any shorter statutory limitation periods shall prevail.

7.
If the Customer is an intermediary agent for the goods supplied to them, and if the end user of the goods is a consumer, then the statutory provisions shall apply to the limitation of any claim for recourse of the Customer against us.

X. Guarantee claims

For a number of our products, we grant a 10-year, respectively, a 30-year warranty. This voluntary manufacturer's guarantee is directed at our end users and extend the warranty rights provided to consumers, which are not limited by this guarantee. With this guarantee, we assume liability for the claim that the products made by us are of the quality- at the time of delivery - as described in our product description for such product. Wear and tear, excessive use or improper use is not covered by this guarantee. The same applies to damage caused by unprofessional repair or repairs not carried out by us. As part of the guarantee, we will remedy existing defects either - at our discretion - by cure or by subsequent performance. Any shipping, labour and material costs in this connection shall be borne by us. This voluntary guarantee does not cover any further claims.

XI. Consignment on approval and returns

1.
In cases where we have agreed with our Customer that we would send them goods on consignment for approval, we will charge a flat-rate handling fee in the amount of EUR 20.00 plus applicable VAT. If the Customer decides within a period of four week after receipt of the goods on approval, a short message to us, which we will deem to be acceptance of the offered purchase agreement, shall be sufficient. In this case, the advanced handling fee of EUR 20.00 plus VAT shall be deducted from the agreed purchase price. Unless our Customer decides not to purchase the goods after receipt of the goods on approval, the goods have to be returned to us within four weeks free of charge.

2.
Unless otherwise stipulated by law, goods sold by us to our Customers may be returned to us only subject to our prior written consent. A return of current goods is generally only possible if the goods are undamaged and in a resalable condition. If the goods returned show defects, we are entitled to reject the return despite our prior written consent or to reduce the credit note by an amount corresponding to the reduction in value of the damaged goods. Shipping costs for the returned goods shall be borne in any event by the Customer.

Goods returned to us without our prior written consent will not be processed and returned to the sender carriage forward.

XII. Export control

Some of our products are subject to German export control regulations. Our Customers are therefore obliged to inform us in good time about any export control regulations that may apply. If regulatory approval is required, we will undertake all reasonable efforts to obtain such approval. Our Customer is obliged to provide us with all necessary documents and information as quickly as possible. Due to regulatory approvals that may be required, our Customers are also not permitted to supply - without our express written consent - goods delivered by us to Buyers that are not located in the same country as our Customer.

The contracts concluded with us are therefore subject to the condition precedent of the existence of an export control-related regulatory export licence/exemption from export-related approval. If any regulatory approval that may be required for the export of the ordered goods is not granted within a period of 12 months after the date of conclusion of the contract, the condition precedent is finally deemed to have not been fulfilled. Any payments made / down payments by the Customer will in this case be reimbursed, unless we have already performed for the benefit of the Customer. If the regulatory approval is not granted, any claims of the Customer for indemnification, compensation of expenses or similar are excluded. The Customer shall be responsible for procuring any required import licence.

XIII. Place of jurisdiction / Arbitration / Miscellaneous and final provisions

1.
This contract and all legal relationships  between the Parties are subject to the laws  of the Federal Republic of Germany, excluding the UN Convention on  Contracts for the International Sale of  Goods (CISG).

2.
a)
Unless stipulated otherwise in the order confirmation, the place of performance and exclusive place of jurisdiction for all disputes with Customers whose registered office is located in Germany shall be the location of our registered office. In this case, we are, however, entitled to also file action against our Customer in the ordinary court having jurisdiction over the Customer.
b)
All disputes with our Customers, whose registered office is located in another European country/country outside Europe, shall be decided by arbitration according to the rules of the ICC (International Chamber of Commerce). The place of the arbitral proceedings shall be Munich. The language of the arbitral proceedings is German. Disputes shall be settled conclusively and bindingly by an arbitrator without recourse to the ordinary courts of law.

3.
The contract language shall be German. In the event that multilingual contract versions exist, the German version shall prevail in case of deviations/doubt.

4.
Modifications or supplements to these General Terms and Conditions, as well as contracts concluded with us must be in writing. The same applies to any waiver of the written form requirement. No oral side agreements to this contract have been concluded.

5.
If a provision of these General Terms and Conditions is or becomes invalid, this will not affect the validity of the remaining provisions.

XIV. Image rights and copyright

All graphics and images are subject to German copyright law. Such copyright rests with us or with our partners. Any use of them without our express consent is not permitted. The same applies to the product description drafted by us or our partners.

XV. Data protection

We collect, save and process data in the course of initiation, conclusion, processing and rescission of a contract. The personal data of our Customers communicated to us as part of an order, will be used only for the purpose for which those data were provided to us (e.g. for the processing of an order). We will transmit those data, i.a. to the shipping company commissioned to deliver the goods, if this is necessary to fulfil our contractual obligations.

To process payments, we transmit the data provided to us to the company commissioned to process the payment. Based on the commercial and tax law-related archiving obligations, personal or company-related data communicated to us will be stored for a period of at least 10 years.

These General Terms and Conditions haven been compiled in German and English. In case of conflict, the German version shall prevail. The English version serves for information purposes only.