Terms and Conditions
General Terms and Conditions of Sale of Oculyze GmbH
1. Application
The following General Terms and Conditions (hereinafter referred to as “Terms of Sale”) shall apply exclusively to all contracts concluded by and between Oculyze GmbH (“Oculyze” or “we”) and its customer who is not a consumer in the sense of § 13 German Civil Code or other applicable law (“Customer”), for the sale of goods by Oculyze, i.e. microscopes to use the services of Oculyze, unless otherwise provided in written agreement between the parties in individual cases.
These Terms of Sale shall also apply to any and all future business transactions for the sale of goods between the parties, and even if we carry out the delivery of goods with knowledge of different or conflicting terms and conditions of the Customer. Terms and conditions of the Customer shall only be applicable if and to the extent we have expressly agreed to such terms in writing.
2. Conclusion of Contract
(1) The Customer will receive an offer for sale of goods upon request. This offer shall be accepted by a manual or digital signature. The contract will be concluded when the Customer accepts the offer within the time limit specified in the offer; a late acceptance shall be regarded as a new binding offer by the Customer, which may be accepted by Oculyze with 14 days.
(2) The presentation of goods on the website does not constitute a legally binding offer by Oculyze, but the invitation to submit the offer (invitatio ad offerendum). By clicking on the button “Binding Order”, the customer makes a binding offer to Oculyze to conclude a sales contract. The customer then receives a message confirming the receipt of his order at Oculyze. This order confirmation does not constitute acceptance of the offer. The contract is concluded as soon as Oculyze transmits the acceptance via email, fax or message in the customer account (confirmation of acceptance), at the latest however with the dispatch of the ordered goods to the Customer.
(3) The Customer will receive a reference to these Terms of Sale along with the offer and can save them at any time or print.
(4) The Customer assures that all information (such as name, company, address, E-Mail address, bank account, etc.) entered in the order or at the registration is accurate and true. Any changes shall be brought to Oculyze’s attention without undue delay.
(5) The conclusion of the contract and subsequent deliveries to the Customer are subject to national or international regulations of foreign trade law, embargoes or other legal prohibitions. The contractual obligations of Oculyze shall cease to exist insofar as they conflict with applicable national or international regulations of foreign trade and / or embargo and / or other sanctions.
(6) The Customer undertakes to refrain from doing business with UN / EU embargo states or persons, organizations or institutions that are on a sanction list in accordance with EC regulations or US export regulations, and also transactions that do not have the necessary approval. The Customer is liable for all expenses and damages incurred to Oculyze from any infringement.
3. Delivery of Third-Party Goods
(1) Goods of third-party, such as compatible smartphones, may be added to the delivery subject to respective agreement between the parties. The Customer can freely decide from whom he may acquire a compatible smartphone.
(2) Any claims of warranty for the goods of a third party are subject to and to be raised within the scope of the respective manufacturer’s warranty. Oculyze assumes no further warranty or liability for defects in such products. As soon as Oculyze assigns its contractual claims against the third party arising from the defective products to the Customer, the Customer automatically releases Oculyze from all liability with respect to such goods.
4. Prices and Shipping Costs
Unless otherwise agreed, prices shall be ex works (EXW; Incoterms 2010) at Oculyze’s place of business, and exclude packing and unloading, freight, postage and insurance, plus all applicable value added, sales, use and other similar tax.
The prices and shipping costs will be stated in the offer sent to the Customer.
5. Payment
(1) The payment shall be made in accordance with the offer, which the Customer has received from Oculyze separately.
(2) For the Customer with its principal place of business in Germany: A payment on bill can be arranged upon agreement. In this case, the purchase price shall be paid within 30 days of the invoice, unless expressly otherwise agreed in writing. Upon expiry of the term, a default penalty shall be charged in amount of 9 percentage points above the base interest rate (§ 247 German Civil Code) per annum. Oculyze is further entitled to claim compensation for any higher losses caused by default.
Where the Customer is in default of payment, or the credit unworthiness of the Customer becomes noticeable in other ways, all further claims against the Customer shall become due immediately upon notification of Oculyze.
(3) For the Customer with its principal place of business outside Germany: The purchase price is due immediately upon Customer’s submitting an order. The obligation of Oculyze to perform arises only upon the receipt of full amount of purchase price and all other amounts hereunder.
(4) The Customer may only set-off with undisputed claims, or claims finally settled by jurisdiction, against Oculyze. The Customer is entitled to exercise retention right if and to the extent that its counterclaim arises from the same contractual relationship.
6. Delivery; Transfer of risk
(1) Time of delivery specified by us are based on assessment according to previous experience and are generally not to be deemed as binding delivery date, unless explicitly stated as such. Delivery requires the timely and ordinary fulfilment of the obligations by the Customer. We reserve the right of retention of goods with respect to unperformed contract.
We are entitled to perform partial deliveries to a reasonable extent.
(2) In the case that the ordered goods are not available for a reason out of our scope of responsibility due to late or incorrect delivery (including the short delivery) by our suppliers despite the supply contract for the ordered goods between us and our suppliers, or for other causes outside our reasonable control, we are not obligated to deliver. In this case we commit ourselves to inform the Customer immediately about the non-availability of the goods ordered and provide the Customer with a refund of the payments received forthwith.
(3) Where the Customer is in default of acceptance or other culpable violation of its duty to cooperate, we are entitled to claim damages, including any additional expenses. We also reserve the right to further claims for remedies. The risk of accidental loss of or damage to the goods shall pass to the Customer at latest at the time of default of acceptance or other violation of duty to cooperate to the buyer.
The risk of accidental loss of and damage to the goods shall pass to the Customer at the time of pickup by the Customer at Oculyze’s place of business, or upon dispatch from Oculyze’s place of business in case of delivery of the goods on request of the Customer.
7. Retention of Title
(1) The delivered goods remain our property until the payment are received in full amount.
(2) The Customer shall immediately notify us of any request of third parties to possess the goods subject to the retention of title. The Customer is liable for all costs incurred for the repeal of such requests, in particular for raising third-party counterclaims or opposition complaints, if and to the extent that the costs are not reimbursed by the relevant third parties.
8. Defect Claims
(1) In the case that the purchased goods are defective, the statutory provisions shall apply. The Customer is entitled to raise defect claims only if it has duly fulfilled its inspection and opposition duty according to § 377 German Commercial Code (HGB). Oculyze has to be informed of any defect claims immediately after detection. The regulations under paragraph 9 shall apply in addition to the statutory requirements for claims for damages in the case of a defect of the goods.
(2) All claims on the grounds of defects shall become time-barred 12 months after transfer of risk pursuant to sec. 6 (3).
9. Claim for Damages
The following disclaimers and limitations shall apply to a liability of Oculyze for damages without prejudice to Oculyze’s other legal rights and remedies.
(1) Oculyze is liable for intentional misconduct and gross negligence. The liability for slight negligence shall be limited to the cases where an obligation essential for the achievement of the contract purpose (so-called cardinal obligation) is violated.
Any further liabilities for damages of any kind, no matter on which legal grounds, including the liability for negligence in the course of conclusion of the contract, shall be excluded.
(2) Should Oculyze be liable in accordance with paragraph 1 for simple negligence, the liability of Oculyze shall be limited to the amount of damage which is typical according to the nature of the relevant business and was foreseeable to Oculyze at the time of the conclusion of the contract.
(3) The foregoing disclaimers and limitations of liability shall apply neither to the case of an express guarantee provided for the features of the goods, nor to the damage caused to life, body or health; any mandatory claims under the German Product Liability Act shall remain unaffected.
(4) The foregoing disclaimers and limitations of liability shall also apply in favor of the employees, and other agents of Oculyze and/or other third parties engaged by Oculyze to perform the contract.
10. Data Protection
(1) Oculyze collects and stores the data of the Customer insofar as required for the business. It adheres to the legal data protection regulations.
(2) The Customer grants Oculyze for the purposes of the contract performance the right to process the data to be stored by Oculyze, insofar as this is necessary to provide the contractual services.
(3) Further information about the collection, use and protection of personal data is to be found in the privacy policy of Oculyze published on the website https://www.oculyze.de/datenschutz .
(4) The Customer may receive information about its stored personal data on request at any time.
11. Applicable Law; Place of Jurisdiction
(1) For these Terms as well as the entire contractual relationship between Oculyze and the Customer, the law of the Federal Republic of Germany (not including the UN Convention on Contracts for the Sale of Goods) shall apply.
(2) For the Customer with its principal place of business in Germany, Austria or Switzerland, the following jurisdiction shall apply: Place of jurisdiction is the principal place of business of the Provider. The court has jurisdiction over all disputes arising from or in connection with these Terms and contract(s) between the parties. Before raising the claim in legal proceeding, the parties shall endeavor to resolve the dispute through negotiation.
(3) For the Customer with its principal place of business outside Germany, Austria and Switzerland, the following arbitration agreement shall apply: All disputes arising out of or in connection with these Terms and contract(s) between the parties or the validity thereof shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The place of arbitration is the principal place of business of the Provider. Language of the arbitration shall be English.
12. Final Provisions
(1) The contract contains all agreements between the parties on the subject of the contract. Verbal collateral agreements do not exist. This contract can only be amended in writing, signed by the parties.
(2) Should any provision of these Terms of Sale be or become, totally or partially, invalid or ineffective, the validity of the remaining provisions shall not be affected. Where the legislative rules are not available or not sufficient to close the gap, the Parties shall strive to substitute the invalid provision with a valid one which as closely as possible achieves the economic purpose of the invalid provision.