Terms and Conditions
Sales, Delivery and Payment Terms of Walter Binde Optik GmbH & Co. KG
1. General Provisions
The following conditions shall be the basis for any and all deliveries and services. Any differently worded general terms and conditions by the customer, any deviations or oral side arrangements shall only be binding if they are either in accordance with mandatory law or have been explicitly confirmed by us in writing. Even in case of the invalidity of individual provisions, the contract shall remain binding in its remaining parts. Within a reasonable scope, the contracting parties shall replace, in good faith, any invalid provisions by such regulations which best do justice to the economic purpose of the contract without essentially changing the contents of the contract. The same shall apply if an explicit regulation is missing for any circumstance requiring regulation. The contract shall be invalid if adherence to it presents an unreasonable hardship for a contracting party.
2. Contract and Scope of Performance
Our offers shall be non-binding. Orders shall only be binding for us after we have confirmed them in writing. If a written confirmation is missing, it shall be replaced by the issued invoice or delivery note. Our written confirmation alone shall be decisive for the scope of the performance owed. Catalog information, illustrations, product descriptions, etc. shall be considered to be merely approximate. Any minor and/or customary deviations shall be reserved – such as those within the scope of continuous product improvement – which do not impair usability and which are reasonable for the customer.
3. Prices and Terms of Payment
Prices shall be in Euro ex works Minden excluding packaging, plus the respectively applicable sales tax. Payments shall be made without deductions within 30 days from the date of invoice; or minus a 2 % discount if payment is made within 10 days from the date of invoice. Payments shall be made free seller's domicile. For contracts with enterprises, when the payment term is culpably exceeded, we may demand late interest in the amount of 8 % above the respectively valid basic interest rate according to § 247 BGB (German Civil Code). If the customer is in arrears with a rather substantial part of the payment, or if checks or bills go to protest, or if the prerequisites for granting credits are no longer applicable, any and all our receivables from him shall be due for immediate payment. This shall also apply for initially deferred invoices, as well as for bills or checks which are due and payable later. If the customer's financial situation deteriorates considerably after contract conclusion or if any already existing credit unworthiness becomes noticeable only after contract conclusion, we shall be entitled to refuse any deliveries not yet performed or, respectively, demand adequate prepayments or provisions of security if the valuable consideration or quid pro quo is jeopardized. The customer can only offset with such receivables which are uncontested or unappealably declared. Any right of retention may only be considered by the customer insofar as claims under the same contractual relationship are concerned.
Delivery periods shall begin with the contract conclusion and can only be bindingly agreed upon in writing. The delivery period shall be reasonably extended if the buyer delays or refrains from performing any required and/or stipulated acts of cooperation or does not comply with the stipulated payment terms. Analogously, the same shall apply in case of measures upon the onset of unforeseen obstacles which are outside of our sphere, e.g. delays of delivery by one of our suppliers, traffic and operating failures, shortages of material or energy, etc. Also, any customer-induced changes in the goods to be supplied shall result in a reasonable extension of the delivery period. We shall be entitled to partial deliveries as far as the customer can reasonably be expected to accept it. We shall reserve the right of rescission of the contract in case of any prolonged non-availability of the service or performance.
5. Dispatch and Passage of Risk
When dispatching the goods, the risk of accidental loss and accidental deterioration of the goods shall pass to the customer when the goods are delivered to the person conducting the transport or when the goods have left our warehouse for the purpose of dispatch. Unless otherwise agreed upon, the mode of dispatch, the transport route, etc. shall not be at our discretion. The customer shall bear the costs for any deviating customer requests. Additional insurance for transport damage shall only be concluded upon the customer's demand and costs. Please note: Any parcels or small parcels without prepaid postage shall not be accepted by Binde Optik GmbH & Co. KG.
6. Liability for Defects
The statutory provisions shall apply for the limitation of claims for defects. In case of defects, the customer may primarily demand supplementary performance according to § 439 BGB (German Civil Code). We shall be entitled to choose between the remedy of defects and the delivery of non-defective goods. Please note: Warranty claims shall initially be limited to two times supplementary performance, with company Binde Optik GmbH & Co. KG having knowledge of the supplementary performance. A right of rescission from the purchase agreement exists if the supplementary performance fails. Warranty claims shall not exist in case of any insignificant deviation from the stipulated quality; in case of an insignificant impairment of usability; in case of natural wear or defects resulting – after the passage of risk – due to faulty or negligent treatment, excessive demands or stress, improper use, lack of care, etc. Also, if the customer or third parties provide improper modifications or handling/processing, no warranty claims shall exist for them and for the consequences resulting therefrom. We shall be liable for damages according to the statutory provisions if the customer lodges claims which are based on malice, intent or gross negligence on our part; on injury to life, limb or health; or on any breach of duty essential for the contract. If we are not charged with any intentional or grossly negligent breach of contract, we shall only be liable for replacing the typically foreseeable damage. Liability shall be excluded for any damages which did not occur on the delivery object; unless injuries of life, limb or health are concerned which are based on any breach of duty committed by us, or on an intentional or negligent breach of duty by our legal representative or vicarious agent. As for the rest, liability for damages shall be excluded.
7. Reservation of Ownership
We shall reserve ownership in all delivered goods until complete payment. In legal relations with business persons or merchants, the reservation of ownership shall also apply until any and all, even future and conditional, claims or receivables under the business relationship have been satisfied. The customer shall only be entitled to further sales in the proper course of business and shall now already assign to us its receivables from the further sales. We shall accept the assignment. Even after the assignment, the customer shall remain authorized to collect this receivable. This shall not affect our authority to collect the receivable ourselves. We agree not to collect the receivable ourselves as long as the customer meets its payment obligations in accordance with the contract. The customer shall not be entitled to pledge any goods under reservation of ownership or to transfer ownership of such goods by way of security. We shall be notified without delay of any third-party influences on these goods, in particular seizures. We may revoke the authority to further sales if the customer does not properly meet its obligations under the contract. Upon the customer's request, we shall be obligated to release any granted securities at our option as far as their value exceeds our receivables by more than 10 %.
8. Recourse by the Entrepreneur
No setting of a period shall be required for the customer's assertion of claims for defects versus us if the customer sells – within the scope of its business operation – the newly manufactured goods further to a consumer, and if the customer had to take back the goods as a result of their defectiveness or if the consumer reduced the purchase price. In that case, the customer can demand from us compensation for the expenditures which customer had to bear in relation to the consumer if the defect claimed by the consumer had already existed upon the passage of risk to the customer. The customer shall have no claim for damages within the course of this entrepreneurial recourse.
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10. Final Provisions
If the customer is a business person or merchant, a legal entity under public law, or a public law special fund, the place of jurisdiction for any disputes arising under this contractual relationship shall be the place of court for our registered office. Place of performance shall be Minden/Westphalia. German law shall apply for all contracts or agreements. Pursuant to § 13 BGB (German Civil Code), "consumer" within the meaning of these provisions shall be any natural person who concludes the transaction for a purpose which cannot be attributed to either the person's vocational or its self-employed occupational activities. Registered office of the KG: Minden, HRA (Commercial Register) 3533 Bad Oeynhausen Personally liable partner: Binde-Beteiligungs-GmbH Minden, HRB (Commercial Register) 5095 Bad Oeynhausen; Managing directors: Dietmar Binde, Jörn Binde