I. Application of the International Conditions of Sale
- These International Conditions of Sale apply to all customers of OLIGO Lichttechnik GmbH – hereinafter referred to as OLIGO – if the place of business of the customer concluding the contract is not in Germany. For customers whose place of business is in Germany, the General Conditions of Sale (Allgemeine Verkaufsbedingungen) of OLIGO apply, which will be forwarded on request.
- These International Conditions of Sale apply to all contracts made on or after 1 October 2023 whose preponderant object is the sale of goods to the customer. Additional obligations assumed by OLIGO do not affect the application of these International Conditions of Sale.
- Conflicting or deviating terms of business of the customer do not bind OLIGO, even if OLIGO does not separately object or unconditionally renders performance or accepts the customer’s performance. Similarly, OLIGO shall not be bound if the customer’s terms of business, irrespective of the contents of these International Conditions of Sale, deviate from statutory provisions.
- These International Conditions of Sale do not apply, if the customer buys the goods for personal, family or household use and if OLIGO knew or should have known that at the time of the formation of the contract.
II. Formation of the Contract
- The customer is under an obligation to give written notice to OLIGO prior to the formation of a contract if
- he concludes the contract for a third, undisclosed person, or
- the goods to be delivered are to be fit not only for normal use or the customer orders on the assumption of a particular purpose or his expectations are based on public statements, advertising messages or other circumstances outside the specific contract, or
- the goods to be delivered will be used in circumstances which are unusual, or which present a particular risk to health, safety or the environment, or which require a more demanding use, or
- there is a risk of atypical damages or unusual amounts of loss, in particular exceeding the limits set up in section VII.-1.-e), of which the customer is or ought to be aware, or
- the goods to be delivered are intended for use in a region/country subject to economic sanctions by the EU or one of its Member States or the US, or in case of resale such use cannot be excluded, or
- the goods to be delivered are intended for use by a natural or legal person, entity or body listed on a sanctions list of the EU or one of its Member States or the US or is 50% or more owned or otherwise controlled by one or more persons listed therein, or in case of resale such use cannot be excluded, or
- the customer is involved in proceedings for violation of foreign trade regulations, or
- the customer acquires the goods for the sole purpose of end use.
- Orders of the customer are to be put in writing. If the customer’s order deviates from the proposal or the tender submitted by OLIGO, the customer will emphasize the differences as such.
- All orders, in particular also those received by employees of OLIGO, will take effect exclusively if followed by a written acknowledgement of the order by OLIGO. The written acknowledgement of the order can be put down as well as delivery note. The actual delivery of the goods ordered, any other conduct of OLIGO or silence on the part of OLIGO does not allow the customer to assume the formation of the contract. OLIGO can dispatch such written acknowledgement of the order up to and including fourteen (14) calendar days after the customer’s order has been received by OLIGO. Until this time, the customer’s order is irrevocable.
- The written acknowledgement of the order by OLIGO shall be received in time if it is received by the customer within fourteen (14) calendar days after its date of issue. If, however, OLIGO requests a signature by the customer of the acknowledgement of the order, the contract only comes into effect if OLIGO receives a copy of the acknowledgement of the order legally signed by the customer, within fourteen (14) calendar days from the date of the written acknowledgement of the order. The customer will inform OLIGO without delay in writing if the written acknowledgement of the order is received with delay.
- The written acknowledgement of the order by OLIGO sets out all the terms of the contract and brings the contract into effect even if – except for the description, the price for the goods and the quantity to be delivered – the written acknowledgement is not consistent with the declarations of the customer in every respect, especially with reference to the exclusive application of these International Conditions of Sale. There are no verbal collateral agreements. The contract will fail to come into existence if the customer objects in writing that the acknowledgement of the order by OLIGO is not completely consistent with his declarations, the customer specifies the deviations not accepted by him in writing and if the objection is received by OLIGO within a short time, at the latest seven (7) calendar days, after receipt of the written acknowledgement of the order by the customer.
- Particular wishes of the customer, namely particular expectations of the customer regarding the usage or the condition of the goods, guarantees or warranties with reference to the goods or the performance of the contract, as well as performance declarations, instruction manuals or safety-related information requested by the customer, require express written confirmation by OLIGO in every case.
- Confirmations of the contract produced by the customer are of no effect without any objection by OLIGO being necessary. In particular, neither the actual delivery of the goods, any other conduct of OLIGO or silence on the part of OLIGO shall give rise to any belief by the customer in the relevance of his confirmation.
- OLIGO´s employees, consultants, commercial agents, or other sales intermediaries are not authorized to dispense with the requirement of a written acknowledgement of the order by OLIGO or to make promises which differ from its content or guarantees. If and to what extent such persons are authorized to make or receive declarations with effect for or against OLIGO, is to be determined according to German law.
- Amendments to the concluded contract always require written confirmation by OLIGO.
III. Obligations of OLIGO
- Subject to a failure of delivery on part of his suppliers irrespective of a congruent covering transaction or to an exemption according to section VII.-1. c) OLIGO must deliver the goods specified in the written acknowledgement of the order and transfer the property in the goods. OLIGO is not obliged to perform obligations not stated in the written acknowledgment of the order by OLIGO or in these International Conditions of Sale, in particular OLIGO is under no obligation if not explicitly agreed upon in writing to furnish documents or certificates regarding the goods, to deliver accessories, or to advise the customer.
- OLIGO’s obligations under the contract made with the customer are owed only to him. Third parties not involved in the formation of the contract, in particular the customer’s clients, are not entitled to assert any claim arising from the customer’s contract with OLIGO. The customer’s entitlement to take delivery continues to exist even if he assigns rights to third parties.
- Taking account of the tolerances customary in trade, OLIGO undertakes to deliver to the customer goods of the agreed description and quantity in a quality that corresponds to the standards customary in Germany and ensures that at the time of delivery the goods are free from rights or claims of private third parties which could prevent its use within the European Union. If the goods cannot be delivered in the condition offered at the time of the formation of the contract because technical improvements to goods of series production were made, OLIGO is entitled to deliver the goods with the technical improvements. OLIGO is entitled to make part deliveries and to invoice them separately.
- If further specification is required in relation to the goods to be delivered, OLIGO will carry this out having regard to his own interests and to the identifiable and legitimate interests of the customer. A request to the customer to specify the goods, or to participate in the specification, is not required. OLIGO does not undertake to inform the customer of the specification he has made or to give the customer the option of a differing specification.
- OLIGO undertakes to place the goods in the packaging customary at OLIGO and with the markings and labels customary in Germany at disposal for collection by the customer FCA (Incoterms 2020) at the place of delivery indicated in the written acknowledgement of the order or – if a place of delivery is not indicated – at the premises in 19309 Lenzen/Germany at the agreed time of delivery. Previous separation or marking of the goods or notification to the customer of the goods being placed at disposal is not required. Under no circumstances is OLIGO obliged to inform the customer of the delivery or a failure to take delivery of the goods in time, to examine the goods with respect to their conformity with the contract on the occasion of delivery, to check the operational safety of the means of transport and the transportation safe loading or to furnish proof of the delivery being effected. The agreement of other clauses of the Incoterms or of clauses such as “delivery free…….” or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
- The transport and the insurance of the goods are none of OLIGO’s obligations. If the customer does not give a counter instruction in writing in time, OLIGO is entitled to contract in the customer’s name and at the customer’s expense on terms usual in Germany for carriage of the goods at the customer’s risk and for reasonable insurance of the transport to the destination indicated by the customer and – if such a destination is not indicated – to the place of business of the customer.
- Compliance with agreed delivery times shall be conditional upon the customer providing containers for the transport of the goods in good time, providing documents, releases, permits, approvals, licences or any other authorizations or consents to be obtained in good time, opening letters of credit and making down-payments as agreed and performing all other obligations incumbent upon him properly and in good time, public documents being able to be obtained in good time and official pre-shipments inspections not causing any delay. In case of doubt, agreed delivery time-periods begin on the date of the written acknowledgement of the order by OLIGO. Notifying the customer of the delivery date OLIGO is entitled to deliver earlier than at the agreed delivery time or to select the date of delivery within the agreed period for delivery.
- Without prejudice to his continuing legal rights, OLIGO is entitled to fulfil his obligations after the time agreed upon, if the customer is informed that OLIGO will exceed the time limit and of the time period for late performance. Subject to aforesaid conditions, OLIGO is entitled to make repeated attempts at late performance. The customer can object to late performance within reasonable time if the late performance is unreasonable. An objection is only effective if it is received by OLIGO before commencing late performance. OLIGO will reimburse necessary additional expenditure, proven and incurred by the customer as a result of exceeding the time agreed upon to the extent that OLIGO is liable for this under the provisions laid down in section VII.
- Risks as to price and performance even in relation to goods which are not clearly identifiable to the contract and without it being necessary for OLIGO to give notice to the customer about the goods being placed at disposal, pass to the customer with delivery pursuant to section III.-5., albeit irrespective thereof with readiness for delivery by OLIGO according to the originally agreed delivery times, if these are postponed for reasons for which the customer is responsible, or as soon as the title to the goods has passed to the customer. The agreement of other clauses of the Incoterms or of clauses such as “delivery free…….” or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
- OLIGO is neither obliged to clear the goods for export nor to take care of customs advance declarations. However, OLIGO will apply for necessary export licences and operate customs formalities necessary for the export if the customer has requested OLIGO to do so and has furnished OLIGO with the data essential for the export in a written notice dealing with this purpose exclusively. If the goods are not cleared for export without any intentional or grossly negligent fault on the part of OLIGO, OLIGO is entitled to avoid the contract in whole or in part without compensation. The agreement of other clauses of the Incoterms or of clauses such as “delivery free…….” or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
- Unless expressly agreed otherwise in written form, OLIGO is not obliged to obtain proves of delivery, certificates of origin, documents, certificates, licences, or other authorizations necessary for the export, transit or import, or to achieve security clearance of the goods required for the carriage or otherwise or to render assistance to the customer in obtaining them. The agreement of other clauses of the Incoterms or of clauses such as “delivery free…….” or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
- OLIGO is in no case liable to perform duties associated with the making available of the goods on the market outside Germany, to bear levies, duties and charges accruing outside Germany, to comply with weight and measuring systems, packaging, labelling, or marking requirements or registration or certification obligations applicable outside Germany or to comply with any other legal provisions applicable to the goods outside Germany. The customer will arrange for translations in any language other than German of instructions, safety information, performance declarations or other written materials about the goods at his risk and expense.
- Without prejudice to his continuing legal rights and without a previous notice to the customer being necessary, OLIGO is entitled to suspend the performance of his obligations as long as, in the opinion of OLIGO, there are grounds for concern that the customer will wholly or partly fail to fulfil his obligations in accordance with the contract. In particular, the right to suspend arises if the customer insufficiently performs his obligations to enable payment to OLIGO or a third party or pays late or if the limit set by a credit insurer has been exceeded or will be exceeded with the forthcoming delivery. Instead of suspending performance OLIGO may at his own discretion make future deliveries, even if confirmed, conditional on payment in advance or on opening of a letter of credit confirmed by a major German commercial bank. OLIGO is not required to continue with performance of his obligations if an assurance given by the customer to avoid the suspension does not provide adequate security or could be challenged pursuant to an applicable law.
- Except as provided in section III.-8., OLIGO is only obliged to inform the customer of possible disruptions in performance, once the commencement of the disruption is unavoidably definite for OLIGO.
IV. Obligations of the Customer
- Irrespective of continuing obligations of the customer to guarantee or to enable payment, the customer undertakes to pay the agreed price for the goods in the currency specified in the written acknowledgement of the order transferring it without deduction and free of expenses and costs to one of the financial institutions designated by OLIGO. To the extent that a price for the goods has not been agreed, the price which is at the time of delivery OLIGO’s usual selling price for the goods will apply. OLIGO’s employees, consultants, commercial agents or other sales intermediaries are not authorized to accept payments.
- The payment to be made by the customer is in any event due for payment at the time specified in the written acknowledgement of the order or – if a time for payment is not indicated – on receipt of the invoice. The due time for payment arises without any further pre-condition and, in particular, does not depend on whether the customer has already taken delivery of the goods or the documents or has had an opportunity to examine the goods. The periods granted for payment will cease to apply and outstanding accounts will be due for immediate payment, if insolvency proceedings relating to the assets of the customer are applied for, if the customer without providing a justifiable reason does not meet fundamental obligations due towards OLIGO or towards third parties, if the customer has provided inaccurate information regarding his creditworthiness or to the extent that the cover given by a credit insurer for the customer is reduced on grounds for which OLIGO is not responsible.
- Regardless of the currency and of the jurisdiction of any arbitral tribunal or court, OLIGO is entitled at his own discretion to set off incoming payments against claims existing against the customer by virtue of his own or assigned rights at the time of payment.
- The customer undertakes to provide OLIGO with the data for applying for customs formalities according to section III.-10. in reasonable time ahead and in writing, to make agreed call-offs, to take delivery of the goods at the place of delivery resulting from section III.-5. and at the delivery time without taking any additional period of time and shall fulfil all the duties imposed by the contract and these International Conditions of Sale and insofar as not regulated therein by the rules of the ICC for the use of the agreed clause of the Incoterms® 2020 and by statutory provisions. The customer is only entitled to refuse to take delivery of the goods if he avoids the contract in accordance with the provisions in section VI.-1.
- The loading of the goods and their transport and insurance from the relevant place of delivery according to section III.-5. are the responsibility of the customer unless the contracts for the transport and insurance of the goods are concluded by OLIGO according to section III.-6. sentence 2. The customer shall ensure that the carrier is obliged to load and stow or to check the loading or stowage of the goods carried out by OLIGO or third parties.
- The customer warrants to have the goods transported abroad, not to transfer the right of disposal to third parties as long as the goods are in Germany, and to fulfil all legal requirements and documentations for the handling regarding customs laws and value added tax of the delivery or any service according to the applicable provisions in Germany. To the extent that OLIGO has to pay German or foreign customs duties or German or foreign value added tax, the customer will indemnify OLIGO in all and every respect without prejudice to any continuing claim by OLIGO. The indemnity is granted by the customer waiving any further requirements or other defences, in particular waiving the defence of limitation or prescription and includes the reimbursement of the expenses incurred by OLIGO.
- The customer will not agree to or undertake any actions in relation to the goods purchased from OLIGO which are prohibited under applicable laws or by the terms of an export license issued for the contract. In particular, the customer undertakes to act in accordance with all applicable (re-)export control and sanctions regulations – including regulations of third countries – insofar as this does not conflict with German or EU law. To the extent that the customer is unsure whether such prohibitions exist, the customer shall seek consultation with OLIGO in writing.
- The customer will monitor the goods purchased from OLIGO in the market and will inform OLIGO without delay in writing of any concern that the goods might pose a risk for third parties. Moreover, the customer will, without any demand being necessary, inform OLIGO in writing if OLIGO has to observe any particular duties of reporting or registration or providing information or prior notification or other requirements for access to market or has to comply with obligations to retain documents, under the provisions which apply in the country of the customer or of the use of the goods initiated by the customer.
- Any statutory rights of the customer to set-off against claims of OLIGO, to withhold payment or taking delivery of the goods, to suspend the performance of his obligations or to raise defences or counterclaims are excluded, except where the corresponding claim of the customer against OLIGO is in the same currency, is founded in the customer’s own right and is either due and undisputed or has been finally adjudicated or where despite written warning by the customer OLIGO has committed a fundamental breach of his obligations due and arising out of the same contract, and has not offered any adequate assurance.
- Irrespective of any statutory provisions, the customer shall at his own cost take care of or in any other way ensure renewed utilization, material recycling or otherwise pre-scribed waste-disposal of the goods delivered by OLIGO to the customer and of the packaging material.
- The customer is not entitled to imitate the goods or to apply to register or to assert claims in respect of trademarks or name rights or industrial property rights for the goods delivered by OLIGO. The customer shall further desist from any challenge to the trademarks or name rights, industrial property rights or the know-how of OLIGO.
V. Delivery of non-conforming Goods or Goods with Defective Title
- Without prejudice to any reduction of liability of the seller provided by law, goods do not conform with the contract if the customer proves that, taking into account the terms in section III., at the time the risk passes the packaging, quantity, quality or the description of the goods is significantly different to the specifications laid down in the written acknowledgement of the order, or in the absence of agreed specifications, the goods are not fit for the purpose which is usual in Germany. Regardless of the stipulation established in sentence 1, the goods shall be deemed to conform with the contract to the extent that the regulations applicable at the place of business of the customer do not prevent the usual use of the goods. Second-hand goods are delivered without any liability for their conformity.
- To the extent that the written acknowledgement of the order by OLIGO does not contain an explicit statement to the contrary, OLIGO is in particular not liable for the goods being fit for a purpose which is not usual in Germany or for complying with further reaching expectations of the customer or for possessing the qualities of a sample or a model or for their compliance with the legal regulations existing outside Germany, for instance in the customer’s country. OLIGO shall also not be liable for any non-conformity with the contract that occur after the transfer of risk. To the extent that the customer makes attempts not coordinated with OLIGO to remove non-conformities OLIGO will be released from his liability. OLIGO´s employees, consultants, commercial agents or other sales intermediaries are not authorized to give assurances or guarantees or declarations regarding the employment or the economy of the goods.
- The customer is obliged vis-à-vis OLIGO to examine or to have examined every single delivery comprehensively for any discoverable or typical lack of conformity with the contract and moreover as required by law.
- Without prejudice to any reduction of liability of the seller provided by law, goods have a deficiency in title if the customer proves that the goods are not free from enforceable rights or claims of private third parties at the time risk passes. Without prejudice to further legal requirements, third parties’ rights or claims founded on industrial or other intellectual property constitute a deficiency in title only to the extent that the rights are registered, made public and in legal force in the European Union and prevent the usual use of the goods in the European Union. Regardless of the stipulation established in sentence 1, title to the goods shall be deemed not to be defective to the extent that the regulations applicable at the place of business of the customer do not prevent the usual use of the goods.
- Without prejudice to the statutory obligations of the customer to give notice within reasonable time, the customer is obliged to give notice to OLIGO of any lack of conformity with the contract or any deficiency in title at the latest within one (1) year after taking delivery in accordance with section IV.-4. Such notice must be made in writing and directly to OLIGO, formulated in such a precise manner as to enable OLIGO to effect remedy measures and to secure claims against OLIGO’s suppliers, specify the root cause of the nonconformity to the extent possible, and moreover as required by law. OLIGO’s employees, consultants, commercial agents or other sales intermediaries are not authorised to accept notices outside OLIGO’s premises or to make any statements concerning lack of conformity with the contract or of title and its consequences. Statements by OLIGO as to the lack of conformity with the contract or as to the deficiency in title are for the purpose of explaining the factual position only, but do not entail any waiver by OLIGO of the requirement of proper notice.
- After correct notification in accordance with clause V.-5., the customer may demand in accordance with the terms of the UN Sales Convention delivery of substitute goods or repair of OLIGO or reduce the price for the goods. The delivery of substitute goods or repair does not lead to a recommencement of the limitation period. The reduction of the price for the goods is limited to the damages suffered by the customer. The customer shall have no remedies not provided for in these International Conditions of Sale or claims of a non-contractual nature. OLIGO is always entitled in accordance with the provision in section III.-8. to repair goods which do not conform with the contract or to supply substitute goods or to avert the customer’s remedies by giving him a credit note of an appropriate amount.
- The customer is not entitled to remedies for delivery of non-conforming goods or goods with a deficiency in title, insofar as the customer is liable vis-à-vis third parties for conditions of the goods or their fitness for a use which are not subject of the agreement with OLIGO, or if the customer’s claim is based on foreign law.
- In the event of notice not having been properly given, the customer may only rely on remedies if OLIGO has intentionally concealed the lack of conformity with the contract or the deficiency in title.
- In case of unjustified assertion of remedies for delivery of non-conforming goods or goods with a deficiency in title, although the customer is or ought to have been aware that a non-conformity or a deficiency in title does not exist or that the cause for such non-conformity or deficiency in title claimed are not to be attributed to OLIGO, the customer is obliged to reimburse OLIGO for expenses incurred due to the unjustified assertion of claims.
VI. Avoidance of the Contract
- The customer is entitled to declare the contract avoided, if the applicable legal requirements are complied with, after he has threatened OLIGO in reasonable time after the facts justifying the avoidance of the contract had occurred with avoidance of the contract in writing and an additional period of time of reasonable length for performance fixed in writing has expired to no avail. In any event, the customer must give notice of avoidance of the contract within reasonable time after the additional period of time has expired in writing and to OLIGO directly. If the customer claims delivery of substitute goods, repair or other performance, he is bound for a reasonable period of time to the chosen remedy, without being able to exercise the right of declaring the contract avoided.
- Without prejudice to his continuing legal rights, OLIGO is entitled to avoid the contract in whole or in part if the customer objects to the application of these International Conditions of Sale, if the implementation or performance of the contract is or becomes prohibited by law in whole or in part, if on grounds for which OLIGO is not responsible the written acknowledgement of the order by OLIGO is received by the customer more than fourteen (14) calendar days after its date of issue, if insolvency proceedings relating to the assets of the customer are applied for, or if for other reasons OLIGO cannot be expected to fulfil his obligations by means which – taking into consideration his own interests and that of the customer as far as ascertainable and legitimate at the time of formation of the contract – are unreasonable, in particular in relation to the agreed counter-performance and efforts to reach an amicable solution have failed.
- Without prejudice to his continuing legal rights, OLIGO is entitled to avoid the contract in whole or in part after prior warning if the customer does not place call off orders as agreed, if he does not furnish OLIGO with the data necessary to apply for customs formalities in due time, if without providing a justifiable reason he does not meet fundamental obligations due towards OLIGO or towards third parties, if he has provided inaccurate information regarding his creditworthiness or to the extent that the cover given by a credit insurer is reduced on grounds for which OLIGO is not responsible.
- Without waiving the legal requirements, OLIGO is only obliged to pay damages due to the breach of obligations resulting from contracts concluded with the customer, contractual negotiations carried on with the customer or the business relation with the customer in accordance with the following provisions. These provisions apply equally for all of OLIGO’s obligations to reimburse expenses or to pay penalties or liquidated damages.
a) The customer is obliged in the first instance to claim damages from other parties and can only claim damages from OLIGO to the extent that compensation cannot be obtained from another party.
b) The customer is required in the first instance to rely on other remedies and can only claim damages in the event of a continuing deficiency. The customer cannot claim damages as an alternative to other remedies.
c) OLIGO is not liable for the conduct of suppliers, subcontractors, carriers, or freight-forwarders, for damages to which the customer has contributed or for the consequences of customer interference with the security and/or safety measures of the delivered goods. OLIGO is not liable if the contract cannot be performed as agreed at the time of its formation due to statutory or sovereign measures. Neither is OLIGO liable for impediments which occur, as a consequence of natural or political events, pandemics, industrial disputes, sabotage, accidents, terrorism, biological, physical or chemical processes or comparable circumstances and which cannot be controlled by OLIGO with reasonable means. Moreover, OLIGO is only liable for injury culpably caused to life, body or health of persons or to the extent that the customer proves that the executive bodies or members of staff of OLIGO have deliberately or grossly negligent breached obligations owed to the customer.
d) In the event of liability, OLIGO will compensate within the limits of lit. e) the losses of the customer to the extent that the customer proves that he has suffered losses that cannot be avoided in any other way, that this loss was caused by a breach of an obligation owed to the customer by OLIGO and that the occurrence of the loss and the amount of the loss were foreseeable for OLIGO as a result of the breach of obligation when the contract was concluded. Moreover, the customer is required to mitigate his loss as soon as a breach of contract is or ought to be known.
e) OLIGO is not liable for loss of profit or damage to reputation. Moreover, the amount of damages for late or non-delivery is limited to 0.5 per cent for each full week of delay, up to a maximum of 5 per cent, and in case of remedies because of delivery of non-conforming goods and/or goods with a deficiency in title is limited to an amount of 200 per cent of the value of the non-conforming part of the contract. However, this subparagraph does not apply to injury of life, body or health of persons or to intentional concealment of the non-conformity or deficiency in title of the goods.
f) For breach of contractual, pre-contractual or obligations resulting from the business relation owed to the customer, OLIGO is obliged to pay damages exclusively in accordance with the provisions of these International Conditions of Sale. Any recourse to concurrent bases of claim, in particular of a non-contractual nature, is excluded. Equally excluded is any recourse against OLIGO’s company organs, employees, servants, members of staff, representatives and/or those employed by OLIGO in the performance of his obligations on grounds of breach of obligations owed by OLIGO.
g) Insofar as the limitation period may not already have barred the claim or subject to damage caused intentionally, claims for damages brought by the customer are excluded after six (6) months beginning with the rejection of the claim for damages by OLIGO.
- Irrespective of continuing statutory or contractual claims, the customer is obliged to pay damages to OLIGO as follows:
a) In the event of delay in payment, the customer will pay a lump sum of EUR 50.00, the costs of arbitral, judicial and extra-judicial means and proceedings, usual and accruing within the country and abroad, as well as (without evidence being necessary) interest at the rate applicable in 19309 Lenzen/Germany for unsecured short-term loans in the agreed currency, at least however interest at 9 percent points over the base rate of the German Federal Bank (Deutsche Bundesbank).
b) In the case of a late taking delivery of the goods by the customer by more than two (2) weeks, OLIGO is entitled to claim damages without evidence being necessary of 5 per cent of the value of the goods to be delivered. In the case of a late taking delivery of the goods by the customer by more than six (6) weeks or an entire failure to take delivery as well as in the event of non-delivery due to a breach of contract by the customer, OLIGO is entitled to claim damages without evidence being necessary of 20 per cent of the value of the goods to be delivered.
c) In the event of other breaches of obligations, the customer shall pay damages in accordance with the statutory provisions.
d) If the contract has been avoided by the customer without justification, OLIGO is entitled, insofar as he consents to the avoidance, to claim damages without evidence being necessary in the amount of 20 per cent of the value of the goods to be delivered.
- Within the bounds of what is legally possible as well as within what is usual in the trade, the customer is in his commercial relationships with his clients obliged to limit his liability both in principle and in amount.
VIII. Other Provisions
- Title of the goods that have been delivered remains with OLIGO until settlement of all claims existing against the customer. The allocation of risk as to price and performance in section III.-9. is not affected by the reservation of title.
- Irrespective of continuing statutory or contractual claims, the customer will indemnify OLIGO without limit against all claims of third parties which are brought against OLIGO on the grounds of product liability or similar provisions, to the extent that the liability is based on circumstances which – such as, for example, the presentation of the product – were caused by the customer or other third parties without express written consent of OLIGO. In particular, the indemnity also includes the reimbursement for expenses incurred by OLIGO and is granted by the customer waiving further conditions or other objections, in particular without requiring compliance with control and recall obligations and waiving any defence of limitation.
- The place of delivery results from section III.-5. of these International Conditions of Sale and applies likewise to the delivery of substitute goods or the repair of delivered goods. The place of payment and performance for all remaining obligations arising from the legal relationship between OLIGO and the customer is 19309 Lenzen/Germany. These provisions also apply if OLIGO assumes the costs of money remittance, renders performance for the customer somewhere else or payment is to be made in exchange of documents or goods or in the case of restitution of performances already rendered. The agreement of other clauses of the Incoterms or of clauses such as “delivery free…….” or similar ones merely involve a varia¬tion of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
- In relation to pictures, drawings, calculations and other documents and computer-software, which have been made available by OLIGO in a material or electronic form, the latter reserves all proprietary rights, copyrights, other industrial property rights as well as know-how rights.
- Within the scope of the negotiation, performance and termination of the contract concluded with OLIGO, the client shall ensure compliance with Regulation (EU) 2016/679 (General Data Protection Regulation) and other legal requirements applicable to the processing of personal data in the specific case, i.e. in particular the lawfulness and transparency of the processing and the transfer to third countries. In case of transfer of personal data from one party to the other, the responsibility of the receiving party starts from the moment of transfer of the personal data.
- Data attachments to e-mails in pdf or TXT format shall be deemed to have been received upon receipt of the e-mail. The transmission of electronic documents (EDI) requires special agreements
- All communications, declarations, notices etc. are to be drawn up exclusively in German or English. Communications by means of fax or e-mail fulfil the requirement of being in writing.
IX. General Basis of Contracts
- The United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (UN Sales Convention / CISG) in the English version governs the legal relationship with the customer. The UN Sales Convention applies above and beyond its own area of application and regardless of reservations adopted by any state, to all contracts to which these International Conditions of Sale are to be applied according to the provisions of section I. above. Where commercial terms are used, in case of doubt the Incoterms® 2020 of the International Chamber of Commerce apply taking into account the provisions stipulated in these International Conditions of Sale.
- The formation of contract, including but not limited to agreements as to the jurisdiction of courts or arbitral tribunals, its amendments or alterations, and the contractual rights and obligations of the parties, also including but not limited to the liability for death or personal injury caused by the goods to any person and for non-compliance with pre-contractual and collateral obligations, as well as the interpretation are exclusively governed by the UN Sales Convention specified in section IX.-1. together with these International Conditions of Sale. Subject to differing provisions in these International Conditions of Sale, the rest of the legal relationship between the parties is governed by the Swiss Code of Obligations (Obligationenrecht).
- All contractual and extra-contractual disputes as well as disputes under insolvency law, arising out of or in connection with contracts to which these International Conditions of Sale apply, including but not limited to their validity, invalidity, or cancellation as well as other disputes arising out of the business relationship with the customer shall be submitted to the Swiss Arbitration Centre and shall be finally resolved, without recourse to the ordinary courts of law, by arbitration according to the Swiss Rules of International Arbitration (Swiss Rules) in force on the date when the Notice of Arbitration is received in accordance with these Rules. The Tribunal shall consist of three (3) arbitrators, one (1) of them shall be nominated by the claimant, one (1) of them by the respondent and the chairman of the Tribunal shall be designated by the two arbitrators so nominated, or if the amount in dispute is inferior to € 250.000 (EURO two hundred and fifty thousand), there shall be one (1) arbitrator appointed according to the Swiss Rules of International Arbitration. The place of the arbitration shall be Zurich/Switzerland, the languages used in the arbitral proceedings shall be German and/or English. The competence of the Arbitral Tribunal excludes especially every statutory competence of state courts, which is provided by reason of a personal or substantive relation. If this arbitration clause is ineffective or ceases to be effective, the non-exclusive local and international jurisdiction of the courts which have jurisdiction for 19309 Lenzen/Germany is agreed for any dispute instead. If the place of business of the customer is within the European Economic Area (EWR) or Switzerland, irrespective of any ineffectiveness of the arbitration clause and instead of bringing an action before the Arbitral Tribunal, OLIGO is also entitled to bring an action before the State Court which has jurisdiction for 19309 Lenzen/Germany or the State Court of the customer’s place of business, or any national court with jurisdiction according to domestic or foreign law.
- If provisions of these International Conditions of Sale should be or become partly or wholly ineffective, the remaining arrangements will continue to apply. The parties are bound to replace the ineffective provision with a legally valid provision as close as possible to the commercial meaning and purpose of the ineffective provision.
Stand: October 12th, 2023.