§1 Scope of these Terms and Conditions
Quotations, goods and services shall be supplied by LaLu-Optics GmbH exclusively on the basis of these General Terms and Conditions of Business (T&C), which shall thus also apply for all future business dealings, even if not expressly agreed on again. These T&C shall be deemed accepted at the latest on receipt of the item or the service. Any return confirmation from the buyer invoking its own terms and conditions or its trade or purchase prices is hereby expressly refuted.
§2 Quotation, Contract Closure
- In order to acquire legal effect, orders have to be confirmed by LaLu-Optics GmbH in writing, by fax or telex, or by telephone.
- Ancillary agreements, amendments and supplements shall only be valid if confirmed in writing by LaLu-Optics GmbH.
- If a time and date for installation on location is agreed between the buyer and LaLu-Optics GmbH, such time and date shall be binding. Any cancellation or postponement by the buyer must be made at least 48 hours before the agreed time and date. Failure to do so shall entitle LaLu-Optics GmbH to charge cancellation fees, compensation for expenses, or the installation price by way of indemnity. Waiver of such charge shall be at the discretion of LaLu-Optics GmbH.
- Those prices given in LaLu-Optics GmbH’s confirmation of order shall be decisive.
- Unless otherwise agreed, prices shall be ex warehouse LaLu-Optics GmbH, plus packaging costs and shipping costs at the amounts actually incurred.
- Insofar as a period of more than two months lapses between the date of contract closure and the agreed and/or actual delivery date, LaLu-Optics GmbH shall be entitled to adjust the agreed prices. If the new prices exceed those initially agreed by more than 10%, the buyer shall be entitled to withdraw from the contract.
§4 Delivery Period, Place of Performance
- Delivery dates or periods, which can be agreed either with binding effect or without obligation, must be documented in writing.
- Even if periods and dates have been agreed with binding effect, LaLu-Optics GmbH shall not be held responsible for delays to deliveries of goods and services that are caused by force majeure or are owing to events that render delivery by LaLu-Optics GmbH substantially more difficult or impossible – this shall include strikes, lockouts, government orders, etc., also if they occur at LaLu-Optics GmbH’s own suppliers or at their sub-suppliers.
- Other than this, if bindingly agreed delivery dates are exceeded the buyer shall have the right to fix a subsequent deadline of reasonable duration. On expiry of such subsequent deadline, the buyer shall be entitled to withdraw from the contract. If the delivery period is extended, or if LaLu-Optics GmbH is released from its obligation to perform, the buyer may not derive any claims to damages from this.
- Place of performance shall in all events be LaLu-Optics GmbH’s registered business. For assembly work carried out on site, the place of performance for subsequent improvements shall be the installation location where the goods are assembled and which was agreed with the buyer.
- Items supplied must be accepted by the buyer even if they have immaterial defects. Part-deliveries of goods and services are admissible.
§5 Shipment, Bearing of Risk
- Delivery and shipment shall be done excluding all liability whatsoever and for the buyer’s account and at the buyer’s risk at all times. The delivery route and method shall be chosen at LaLu-Optics GmbH’s discretion.
- 3. If dispatch becomes impossible through no fault of LaLu-Optics GmbH or is delayed at the buyer’s request, the risk shall pass to the buyer on notification being issued that the goods are ready for dispatch.
§6 Acceptance, Default in Acceptance
- The buyer is under obligation to accept the goods on the agreed date. If the buyer refuses acceptance, the risk of the goods’ destruction or deterioration shall immediately pass to the buyer. In this case LaLu-Optics GmbH shall be entitled to put the goods into storage at the buyer’s expense and risk.
- If the buyer finally refuses to accept all or part of performance, or if the contract fails to be implemented for some reason for which the buyer is responsible, then in lieu of payment of the purchase price the seller may demand compensation amounting to 25% of the value of the contract, and withdraw from the contract at the same time.
- 3. This shall not affect either LaLu-Optics GmbH’s right to withdraw from the contract after stipulating a subsequent deadline and threatening to reject performance, or its right to demand compensation for non-performance.
§7 Goods Manufacturers, Design of the Goods
- The photos of the goods offered are only specimen examples. Slight differences in shape, design and colour shall give the customer no grounds to return the goods.
- Changes made in the path of technical progress shall constitute no reason for returning the goods.
- LaLu-Optics GmbH reserves the right to switch goods manufacturers (does not apply for goods from OEMs), insofar as the technical and/or optical features are comparable.
- LaLu-Optics GmbH markets both accessories from OEMs and a wide range of accessories from other manufacturers.
- Items are delivered without the decoration shown on some of the illustrations.
- LaLu-Optics GmbH’s prior approval is required for returning and exchanging goods. Under no circumstances can customised items be returned.
- Returning goods is exclusively at the buyer’s own risk. The consignment must be sent carriage paid. Consignments for which carriage is not paid or is underpaid shall definitely not be accepted by LaLu-Optics GmbH.
- On returning goods, deferred payment cannot be claimed for invoiced amounts already due. Insofar as LaLu-Optics GmbH acknowledges items returned, the date of invoice and the number of the order confirmation to which the delivery belonged must be stated; without this information, no credit entry can be made.
- The costs for inspecting and where necessary repairing the returned item shall be deducted from the credited amount, or billed separately.
- LaLu-Optics GmbH reserves the right to assert further claims for damaged or over-used items.
- LaLu-Optics GmbH seals the packaging of the items. If the seal is broken, the packaging is deemed to have been opened. It will then on no account be possible for LaLu-Optics GmbH to take back the item. Returning items which have been opened (original packaging) is ruled out generally (guarantee rights are excluded here – see §9). Items and accessories subject to extreme wear and tear cannot be taken back.
- LaLu-Optics GmbH will only take back goods if not satisfied or if ordered in error by the customer in exceptional cases by prior arrangement and as a gesture of good will. The goods must be undamaged and in the unopened original packaging. At LaLu-Optics GmbH’s discretion, repayment of the purchase price shall be made via bank transfer or also as a credit entry/voucher. For processing the goods and putting them back into storage, LaLu-Optics GmbH shall be entitled to deduct a sum of up to 15% of the purchase price. Moreover, entitlement to claim a refund of the shipping costs exists neither for purchases nor for returns.
§9 Guarantee, Liability
- Unless otherwise stated or agreed, the guarantee period is 12 months and commences on the date of delivery. For items with a restricted useful life, the guarantee period is limited to the item’s minimum useful life, or to the above guarantee period if the item’s minimum useful life has not yet expired. The buyer must furnish proof as to whether the minimum useful life has expired, which means proving the actual number of hours in operation. Any manipulation of the device, the guarantee seals or mechanisms for ascertaining the actual number of hours in operation shall lead to forfeiture of claims under the guarantee.
- Claims under the guarantee are only possible if proof of guarantee is furnished when the device is handed in.
- If the object of delivery is defective or lacks warranted characteristics or becomes faulty during the guarantee period owing to manufacturing defects or defective materials, LaLu-Optics GmbH may – at its own discretion – carry out repairs or deliver a replacement, excluding any other guarantee claims. Multiple attempts at subsequent improvement are admissible. If repeated attempts at subsequent improvement prove to no avail after the buyer has set a further reasonable deadline, the buyer may – at its own discretion – demand a reduction in the price or rescission of the purchase contract, excluding compensation claims. If subsequent improvements are made, this shall not lead to the guarantee period being extended either for replaced parts or for the device.
- Claims under the guarantee and compensation claims can relate solely to the goods supplied by LaLu-Optics GmbH and to the service rendered by LaLu-Optics GmbH. No claims to compensation shall exist for any consequential damage ensuing therefrom.
- The foregoing provisions of this paragraph do not apply for used devices that are delivered excluding any guarantee whatsoever. If a guarantee is granted for used devices, it shall be governed solely by the agreements documented in writing in the purchase contract.
- Obvious defects must be reported to LaLu-Optics GmbH in writing without delay, and at the latest within 8 days of delivery. The defective items supplied must be kept ready for inspection by LaLu-Optics GmbH in the condition they were in at the time when the defect was discovered. Any breach of this obligation shall result in exclusion of all guarantee claims vis-à-vis LaLu-Optics GmbH.
- The right to guarantee claims shall become extinct if the buyer or a third party interferes with the device without express permission from LaLu-Optics GmbH, or if the serial number on the device has been removed or rendered illegible. The right to guarantee claims shall likewise lapse if one or more guarantee seals is damaged or removed.
- The following are excluded from any guarantee whatsoever: transport damage; faults caused by inappropriate handling, by external factors, by infiltrating liquids or other substances, by wrong connection or by wrong operation by the buyer or a third party; damage due to force majeure (e.g. lightning); damage caused by using exhausted, unsuitable or leaking batteries or wrong feed voltage; and faults resulting from dirt or from wear and tear from over-use.
- Claims for compensation against both LaLu-Optics GmbH and its vicarious agents that are based on impossibility of performance, non-performance, positive breach of contract, culpa in contrahendo and tort are excluded, unless the damage has been caused with intent or by gross negligence.
- Place of performance shall in all events be LaLu-Optics GmbH’s registered business. For assembly work carried out on site, the place of performance for subsequent improvements shall be the installation location where the goods are assembled and which was agreed with the customer.
- Consumables, such as e.g. powerpacks, are excluded from the guarantee.
§10 Terms of Repair (Outside the Guarantee)
- Unless a cost estimate is expressly requested, repairs are carried out charging the rate applying on the date of the repair assignment. If a repair assignment fails to be placed in the light of the cost estimate requested, LaLu-Optics GmbH shall charge the processing costs incurred.
- If customer service work is done on the buyer’s premises or on third-party premises or at some location of the buyer’s or third party’s choosing, the round trip travelling times, the costs for overnight accommodation and the travelling expenses shall all be at the customer’s expense. The costs for submitting and returning devices sent for repair and the packaging costs shall be borne by the customer.
- Complaints about faulty repairs must be filed in writing and are only permissible within 8 days of the goods arriving at their designated destination. Repairs for which a charge is made shall only be carried out against payment in cash. For customers with a customer ID, repair costs can also be settled via billing or direct debit procedure with written consent from LaLu-Optics GmbH.
- If a device in need of repair is forwarded to a repair shop, such forwarding shall be done at the customer’s risk.
§11 Retention of Title
- The goods delivered shall remain LaLu-Optics GmbH’s property until full payment has been made, and in the case of payment by cheque until the invoiced amount has been credited. This retention of title shall cover all goods supplied by LaLu-Optics GmbH until such time as all receivables accruing from the overall business relationship – for whatsoever legal cause – have been paid.
- Retention of title shall still persist even if the goods delivered have already been further processed or installed (e.g. a laser installed in a plant or building), whereby it is immaterial whether the item has been installed by LaLu-Optics GmbH or by the buyer.
- The buyer can resell the reserved goods in regular business dealings, provided it is not in arrears with payments. For the duration of the retention of title, pledging, assignment by way of security and other measures encumbering the goods are not permitted. The buyer here and now assigns to LaLu-Optics GmbH by way of security the entire receivables that accrue on resale of the reserved goods, or that accrue for any other legal reason (insurance, tort) pertaining to the reserved goods; LaLu-Optics GmbH accepts the foregoing assignment. The buyer shall be authorised until further notice to collect in its own name those assigned receivables that accrue on resale. LaLu-Optics GmbH shall be entitled to revoke this authorisation if the buyer fails to honour its payment obligations or suffers a deterioration of assets.
- If third parties interfere with reserved goods, in particular if the goods are attached, the buyer shall be under obligation to immediately notify LaLu-Optics GmbH accordingly and to draw attention to LaLu-Optics GmbH’s title.
- If the buyer acts in breach of contract, and in particular defaults in payment, LaLu-Optics GmbH shall be entitled to take back the reserved goods and where applicable to demand assignment of the buyer’s claims to repossession vis-à-vis third parties. If LaLu-Optics GmbH repossesses or attaches reserved goods, this shall not constitute withdrawal from the contract, provided the German Hire Purchase Act (Abzahlungsgesetz) does not apply.
- As a matter of principle, goods, services and similar shall be delivered specifying a 30-day payment deadline, unless otherwise agreed. Deliveries to new customers can be made against advance payment only. Costs exceeding the contract value, such as remittance costs for international bank transfers, shall likewise be borne by the buyer in addition to the amount owing for the contract. Other arrangements can be agreed in writing, taking these T&C into account.
- Unless otherwise agreed, invoices issued by LaLu-Optics GmbH are payable without deduction. Notwithstanding any provision to the contrary on the buyer’s part, LaLu-Optics GmbH shall be entitled to offset payments against the buyer’s longest-standing debts first of all. If costs and interest have already accrued, LaLu-Optics GmbH shall be entitled to offset payments first of all against the costs, then against the interest, and only last against the principal.
- A payment shall only be deemed effected once LaLu-Optics GmbH is able to dispose over the amount.
- LaLu-Optics GmbH expressly reserves the right to refuse cheques or bills of exchange. Acceptance shall be as per the payment deadline at all times. All charges for discounting and for bills shall be at the buyer’s expense and shall fall due immediately.
- If the buyer defaults in payment, LaLu-Optics GmbH shall be entitled to charge the buyer costs as from the relevant date and up to the amount of LaLu-Optics GmbH’s actual interest losses. These costs shall be assessed lower if the buyer furnishes proof that the burden is smaller.
- If the buyer does not perform its payment obligations, and in particular fails to honour a cheque or discontinues payments, or if LaLu-Optics GmbH gains knowledge of other circumstances which cast doubt on the buyer’s credit standing, LaLu-Optics GmbH shall be entitled to declare that the entire residual amount due is payable immediately, even if other payment deadlines have been agreed or cheques have been accepted.
- The buyer is only entitled to effect setoff or retention or make a price reduction – even if complaints about defects or counterclaims have been filed – if the counterclaims have been declared res judicata or are undisputed.
- These T&C and all legal terms applying between LaLu-Optics GmbH and the customer shall be governed by the laws of the Federal Republic of Germany.
- If any provision in these T&C or in other agreements is or becomes inoperative, this shall not affect the validity of all the remaining provisions or agreements. For any paragraph no longer applying, an arrangement is to be agreed which most closely reflects the meaning of such paragraph and which LaLu-Optics GmbH at its own discretion deems most efficient for its purposes.
- Place of performance or place of jurisdiction for all and any disputes arising from the contractual relationship shall be Freising (Germany) or Munich (Germany), whereby LaLu-Optics GmbH reserves the right to choose the place.
- Ancillary agreements must be documented in writing. Oral ancillary agreements shall not become an integral part of the contract.
- In the event of discrepancies between the English and German version of the respective terms and conditions, the German version prevails.