AGB EN

General Terms and Conditions
§ 1 Application

(1) These general terms and conditions shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing.

(2) These general terms and conditions shall also govern all future transactions between the parties and shall also apply if we perform delivery or provide services despite our knowledge of differing or contrary terms.

(3) These general terms and conditions shall only apply vis á vis merchants, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code).

§ 2 Order, Offer, Acceptance

(1) Our offers are non-binding and subject to confirmation. The contract comes into being only by way of our written confirmation of order or our delivery of the goods.

(2) Insofar as the order constitutes an offer within the meaning of § 145 BGB we are entitled to accept the offer within two weeks.

§ 3 Prices, Payment

(1) Our prices are ex our warehouse in Munich, Germany exclusive of the respective statutory VAT and exclusive of costs for packaging and shipping, except as otherwise expressly agreed.

(2) The purchase price is due and payable net within 14 days from the date of the invoice. From the due date the statutory interest in the applicable amount (currently in the amount of 8% above the respective base interest rate p. a.) shall accrue. We reserve all rights to claim further damages for delay.

(3) In the absence of a differing written agreement, the following payment terms shall apply.

– Domestic orders: deliveries which do not exceed the amount of 1000,- Euro are made per delivery note and accounted for on collective invoices. Collective invoices are issued at the end of each calendar month or when the individual deliveries made per delivery note accrue to a total exceeding the amount if 5000,- Euro. Payment is made by direct debit. The purchaser is obliged to provide a corresponding direct debit mandate. If the delivery is made not per delivery note, so-called direct invoices shall be issued. Direct invoices have to be balanced within the deadline specified in § 3 para 2.
– Foreign orders: These shall be paid for via bank transfer and must be balanced within the deadline specified in § 3 para 2. Orders of 5000,- Euro or more are due immediately after receipt. The amount is due before delivery in cases of special orders (e.g. special lenses1) or special designs. The purchaser will be notified as soon as the goods are ready for shipment.

§ 4 Offset, Retainer

The purchaser shall be entitled to offset only insofar as the purchaser’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. The purchaser is entitled to claim retainer rights only to the extent that such rights are based on the same transaction.

§ 5 Delivery

(1) Delivery is conditioned upon timely and proper performance of all duties of the purchaser. Defences based on non-performance of the contract are reserved.

(2) In case of default in acceptance or other breach of duties to cooperate by the purchaser we are entitled to claim any resulting damage including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the purchaser at the time of such default or breach of duty to cooperate.

(3) Delivery dates and deadlines are binding only if they have been confirmed in advance by our side in writing.

(4) The shipping costs shall be born by the purchaser. Their amount shall be individually agreed based on the expenditures.

(5) Unless otherwise agreed, we determine the method of shipment. We are entitled to carry out partial deliveries.

(6) If a binding delivery date is not met as agreed, the purchaser is obliged to warn us in writing. In this warning the purchaser must provide a reasonable deadline for subsequent delivery and must also explicitly state that he will refuse to accept the goods after the set deadline expires. Withdrawal from the contract shall only be permissible if the deadline for subsequent delivery is exceeded by more than 8 days.

(7) Unforeseen obstacles of delivery including those met by sub-suppliers are not our responsibility and we reserve the right to reasonably extend the delivery deadline.

(8) Our obligations of delivery are at all times subject to our timely and proper receipt of supplies, unless we are at fault for the untimely or improper delivery of our supplies.

(9) § 9 is applicable to issues of liability including default of delivery.

§ 6 Passing of Risk, Shipment

The delivery is made ex our warehouse in Munich, Germany or another warehouse within Germany named in our confirmation of order. The risk of loss or damage to the goods during their shipment passes to the purchaser upon dispatch.

§ 7 Retention of Title

(1) We retain the title to the goods until all our demands arising from our business relationship with the purchaser are fully met and paid.

(2) The purchaser shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.

(3) As long as the purchase price has not been completely paid, the purchaser shall immediately inform us in writing if the goods become subject to rights of third persons or other encumbrances.

(4) The purchaser may resell goods subject to the above retention of title only in the course of his regular business. For this case, the purchaser hereby assigns all claims arising out of such resale, whether the goods have been processed or not, to us. Notwithstanding our right to claim direct payment the purchaser shall be entitled to receive the payment on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the purchaser complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.

(5) Insofar as the above securities exceed the secured claim by more than 10%, we are obligated, upon our election, to release such securities upon the purchaser’s request.

§ 8 Warranty

(1) Precondition for any warranty claim of the purchaser is the purchaser’s full compliance with all requirements regarding inspection and objection established by sec. 377 HGB (German Commercial Code).

(2) The purchaser must examine the goods for completeness or eventual defects immediately upon receipt of delivery and must immediately give a notice of defect in case of non-conformity. Should the purchaser fail to give a notice of defect, then the goods are deemed approved unless there are any hidden defects. In the case of hidden defects, a notice must be given immediately after the defect is discovered within the deadline for warranty claims, otherwise the goods are deemed approved also in consideration of this defect.

(3) Warranty claims shall be time-barred after 12 months of the delivery. Should the purchaser engage in the professional sale of the goods in received (sale of consumer goods), § 479 BGB shall apply additionally.

(4) In case of non-conformity of the goods the purchaser is entitled to alternative performance in the form of remedy of the defect or delivery of conforming goods. In accordance with § 439 para 3 BGB we are entitled to deny alternative performance if the method allowed by the purchaser can only be realized with disproportionate costs. If such alternative performance has failed, the purchaser is entitled to reduce the purchase price or to withdraw from the contract. However, withdrawal is exempted if the defect of the goods is minor and immaterial.

(5) No warranties can be provided for defects due to improper use of or above-average strain on the goods exerted by the purchaser as well as for any parts subject to wear.

§ 9 Liability

(1) In case of intent or gross negligence on our part or by our agents or assistants in performance we are liable according to the provisions of applicable law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract is unintentionally our liability for damages shall be limited to the typically predictable damage.

(2) Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected.

(3) Any liability not expressly provided for above shall be disclaimed.

§ 10 Return of goods

(1) The goods may only be returned within 8 weeks after the delivery date and subject to prior agreement.

(2) The following cannot be returned:

– special designs
– special orders (e.g. special lenses1)
– articles that have become unusable due to incorrect handling (e.g. contaminated, damaged, inscribed, opened or labeled with stickers)
– articles with an expiration date of less than 13 months

(3) The restrictions in paras 1 and 2 do not apply to warranty issues.

§ 11 Applicable law, Jurisdiction

(1) This contract shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods).

(2) Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Munich, Germany.

§ 12 Final provisions

Should any one of the provisions of these general terms and conditions be invalid or ineffective, this shall not affect the validity and effect of the general terms and conditions. The eliminated clause shall be replaced in mutual agreement with a provision with which the aim originally sought from an economic perspective can be achieved as closely as possible. If no agreement is reached, the statutory provisions shall replace the invalid or ineffective provision. The same applies to any gaps in the contract.
Date 01.05.2011
trendOptic Handels und Verwaltungs GmbH
Hiltenspergerstr. 11
80798 München

1 e.g. toric, multifocal, coloured, soft conventional or gas permeable contact lenses

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