Terms and conditions
Terms and Conditions for One Click Metal GmbH
A. General part: Terms and conditions that apply to all legal relationships between OCM and the customer
I. General
II. Delivery / Performance Time, Delivery / Performance Delays
III. Shipping Conditions, Terms of Payment, Prices
IV. Retention of Title
V. Claims due to defects („Warranty“)
VI. Liability for damages
VII. Warranty period, other limitation periods
VIII. General terms for machines, equipment, lasers and laser systems
B. Special part: Terms and conditions that apply to specific deliveries and services in addition to the General Section
VIII. Determination for machines, equipment, lasers and laser systems
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A. General part:
Terms and conditions applicable to all legal relations between OCM and the customer.
I. General
1. The following terms and conditions form the basis of all deliveries and services of One Click Metal GmbH (hereinafter referred to as OCM) to the customer as well as other legal relationships between OCM and the customer if the customer has its registered office in the European Union at the time of conclusion of the contract, and are deemed to be an integral part of the contract concluded between OCM and the customer. The customer's own terms and conditions will not become part of the contract even if OCM does not expressly object to them when accepting the order.
2. Verbal subsidiary agreements to concluded contracts do not exist. Subsidiary agreements and amendments to the contract must be in writing to be effective. This formal requirement may not be waived or set aside either verbally or tacitly.
3. The legal relationship between OCM and the customer shall be governed exclusively by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and German private international law.
4. The place of jurisdiction for all disputes between the customer and OCM is the registered office of OCM, unless a different exclusive jurisdiction exists. OCM reserves the right to bring an action at any other permissible place of jurisdiction.
5. The customer shall only have the right to withhold payments or other services of its own or to offset them against counterclaims to the extent that its right of retention or its counterclaims are undisputed, have been finally determined by a court of law or are ready for a decision in favor of the customer. The customer shall be entitled to the defense of non-performance of the contract..
6. OCM is entitled to make technical changes at any time, insofar as they serve to improve the product.
7. When initiating and executing a contract, the processing of contact and interaction data of contact persons of the customer is necessary. OCM processes this personal data on the basis of a legitimate interest to ensure the traceability of the business relationship and to support communication during the execution of the contractual relationship. For detailed information on data protection, OCM refers to the data protection information on the website.
8. For the initiation and processing of the contracts as well as subsequent services, OCM transmits employee contact data to the customer to enable orderly communication and service processing. The customer may only use this data for the execution of the respective contractual relationship with OCM.
II. Delivery / Performance Time, Delivery / Performance Delays
1. The delivery/performance time results from the agreements between OCM and the customer. It is only binding as a fixed date if this has been expressly agreed. OCM's compliance with the delivery/performance time requires that all commercial and technical details of the contract have been conclusively clarified between the contracting parties and that the customer has fulfilled all obligations incumbent upon him, such as special acts of cooperation, provision of materials or down payments. If this is not the case, the delivery/performance time shall be extended accordingly. In the event that changes to the scope of delivery/service become necessary at a later date or are requested by the customer, the delivery/service period shall also be extended appropriately.
2. Insofar as a delay in delivery/service is due to unforeseeable circumstances for which OCM is not responsible, OCM is not liable for the delay; the delivery/service period is extended accordingly. This also applies in the event of defective or untimely self-delivery, provided OCM has made an equivalent covering purchase and is not at fault for the defective or untimely self-delivery. OCM will inform the customer of the beginning and end of such circumstances as soon as possible.
3. If unforeseeable circumstances for which OCM is not responsible within the meaning of paragraph 2 make it difficult for OCM to fulfill the contract for an unforeseeable period of time or for a period of time that jeopardizes the purpose of the contract, and if the impediment to performance cannot be overcome by OCM at reasonable expense, OCM has the right to withdraw from the contract. In such cases, OCM is obligated to inform the customer immediately of the circumstances that impede performance and, after exercising the right of withdrawal, to reimburse the customer immediately for any consideration already received. Any claims of the customer beyond the claims for reimbursement are excluded.
III. Shipping Conditions, Terms of Payment, Prices
1. The INCOTERMS shipping clauses in their most current version shall be deemed to be contractually included for the shipment of goods by OCM to the customer. Unless otherwise agreed, all shipping deliveries by OCM shall be made in accordance with the INCOTERMS shipping clause "EXW (Ex Works) OCM Manufacturer's Works". Insofar as it is agreed that OCM shall insure the transport, this shall only cover the transport from the manufacturer's works to the border of the customer's premises.
2. Unless otherwise agreed, all invoices issued by OCM are payable within 14 days of receipt by the customer without deduction to the account specified by OCM in each case. The date on which payment is credited to OCM's account is decisive for the timeliness of payment.
3. OCM reserves the right to demand advance payment or a deposit from the customer. Unless otherwise stated, agreed prices are net prices excluding any statutory value added tax at the rate applicable at the time of delivery or performance..
IV. Retention of Title
1. OCM retains ownership of the object of the purchase contract, contract for work and materials or contract for work and services until all payment obligations - including any additional ancillary services owed - arising from the respective contract have been fulfilled in full.
2. The customer may not sell, pledge or assign by way of security the item subject to retention of title until all payment obligations have been met in full.
3. The customer is only entitled to process or sell the goods in the ordinary course of business, but not to pledge or assign them by way of security, before all payment obligations have been met in full, if it has recognizably ordered the goods as an integrator or other intermediary and as long as it is not in default of payment or there is no reason to file for insolvency. The customer hereby assigns to OCM in advance all claims against third parties arising from the processing or sale as security for OCM's payment claims. This assignment applies regardless of whether the reserved goods have been sold without or after processing. Notwithstanding the assignment, the customer remains entitled to collect the claim and OCM will not collect the claim as long as the customer is not in default of payment or a reason for filing for insolvency exists. The processing and combination of the reserved goods by the customer takes place exclusively for OCM. In the event of combination with other movable items not belonging to OCM, OCM is entitled to co-ownership of the new item in the ratio of the acquisition values of the goods subject to retention of title and the other items combined with them at the time of processing.
4. In the event of seizure, confiscation or other dispositions by third parties, the customer must notify OCM immediately.
5. If the customer acts in breach of contract, in particular in the event of default in payment, OCM is entitled to take back the item after the contract has been rescinded and the customer is obliged to surrender the item. In this case, OCM may, at its own discretion, demand that the customer deliver the item to OCM's place of business at its own expense and risk or allow OCM to collect the item on site. If OCM chooses to collect the item, the customer must allow OCM unhindered access to the site and access to the item for the duration of the de-installation and collection and remove any obstacles to collection at its own expense. OCM may demand reimbursement from the customer for the costs of uninstallation and collection in addition to compensation for other damages.
V. Claims due to defects ("Warranty")
1. Insofar as defects already exist in the object of purchase or in the work performance at the time of the transfer of risk, OCM shall be liable, to the exclusion of further claims, but subject to liability for damages pursuant to Section VI, only in accordance with the following determination:
1.1 OCM shall, at its own discretion, remedy all defective parts of the subject matter of the contract free of charge or replace them free of defects ("subsequent performance"). In doing so, OCM shall choose the form of subsequent performance that is appropriate in view of the overall circumstances and proportionate in view of the associated costs. In the event of a replacement delivery, the customer shall compensate OCM for the use of the replaced original delivery item (§§ 346 - 348 BGB).
1.2 The place of performance for subsequent performance is the agreed destination of the subject matter of the contract. OCM reserves the right to carry out repair work, if necessary, at OCM's factory. OCM shall bear the expenses of subsequent performance as a rule, including transport, travel, labor and material costs (including removal and installation or attachment within the meaning of Section 439 (3) of the German Civil Code, insofar as the subject matter of the contract was installed in another item or attached to another item in accordance with its type and its contractually intended use) up to the place of performance of subsequent performance. In this context, OCM is free to reduce the expenses of subsequent performance (including removal and installation or attachment within the meaning of Section 439 (3) of the German Civil Code (BGB)) by carrying out all necessary work itself, insofar as this is reasonable for the customer. OCM reserves the right to refuse subsequent performance or the expenses of subsequent performance insofar as these are associated with disproportionate costs within the meaning of Section 439 (4) of the German Civil Code (BGB). If the object of the contract has been taken by the customer to a place other than the contractually agreed destination and the expenses of subsequent performance increase as a result, the additional expenses will be borne by the customer on the basis of OCM's price list valid at the time of performance, which will be handed over to the customer on request. Insofar as additional costs incurred abroad are to be borne by the customer, these shall be based on the charging rates applicable in the respective country.
1.3 The customer is only entitled to withdraw from the contract or to reduce the contract price due to a defect if OCM - subject to the statutory exceptions - has allowed a reasonable deadline set for the rectification or replacement delivery to expire fruitlessly or if the subsequent performance has repeatedly failed and the customer cannot reasonably be expected to make a further attempt at subsequent performance. In these cases, the right to withdraw from the contract is limited to defects that restrict the usability of the goods.
1.4 Claims for damages may only be asserted in accordance with Section VI.
1.5 Normal wear and tear of components or tools (e.g. lenses, nozzles) within the scope of intended use does not constitute grounds for claims for defects.
1.6 The assertion of claims for defects is excluded if the defect is based on the fact that the customer has not followed the installation or operating instructions, has failed to carry out the required maintenance of the contractual object or has carried out maintenance contrary to the maintenance instructions (operating instructions). Original OCM spare and wear parts must always be used for maintenance.
1.7 If the subject matter of the contract infringes the industrial property rights or copyrights of third parties in Germany, OCM will, at its own expense, procure the right for the customer to continue to use the subject matter of the contract or modify the subject matter of the contract in a manner that is reasonable for the customer so that the infringement of industrial property rights no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, both the customer and OCM are entitled to withdraw from the contract. The aforementioned obligations of OCM are - subject to Section VI - conclusive for the case of infringement of property rights or copyrights. They exist only insofar as
1. the customer has not contributed to an increase of the damage by a delayed notification of the asserted property right or copyright infringements,
2. the customer supports OCM to a reasonable extent in defending the asserted claims and enables OCM to carry out the modification measures in accordance with the preceding paragraph,
3. OCM reserves the right to all defensive measures, including out-of-court settlements; and
4. the defect of title or the infringement of rights is not based on a cause set by the customer itself, in particular on a specification of the customer or on the fact that the customer has modified the subject matter of the contract without authorization or has used it in a manner not in accordance with the contract.
1.8 For software, the provisions in the General Software License Terms apply in addition.
1.9 The exclusion of rights of the customer due to obvious or recognized defects which were not immediately notified (§ 377 HGB) remains unaffected..
2. If the customer, with the necessary consent of OCM, undertakes actions to remedy defects itself, which OCM would be obliged to do in accordance with the above provisions, the customer is not deemed to be a vicarious agent of OCM in this respect. OCM is liable for the consequences of self-performance only insofar as the customer has acted in accordance with OCM's instructions. OCM will reimburse the customer for the costs of self-performance up to the amount of the expenses that OCM would have had to bear if the customer had not performed self-performance.
3. In the case of purchase of used items, liability for defects is excluded, unless otherwise agreed upon.
4. Claims of the customer due to fraudulently concealed defects or due to a guarantee of quality or durability assumed by OCM shall always remain unaffected..
VI. Liability for damages
1. OCM shall only be liable - for whatever legal reasons - for damage that has not occurred to the subject matter of the contract itself:
§ in the case of intent, or
§ in the event of gross negligence on the part of the owner, the legal representatives, the organs or executive vicarious agents, or
§ in case of culpable injury to life, body, health, or
§ in the case of defects which OCM has fraudulently concealed, or
§ within the scope of a guarantee commitment, or
§ to the extent that liability is mandatory under the Product Liability Act for personal injury or property damage. In the event of culpable breach of essential contractual obligations (in particular the obligation to deliver on time and free of defects), OCM shall also be liable in the event of gross negligence on the part of non-executive vicarious agents as well as in the event of slight negligence, in the latter case limited to reasonably foreseeable damage typical for the contract, but not exceeding the order value of the delivery item concerned.
Further claims are excluded
2. OCM's liability is excluded in particular in the following cases, insofar as OCM is not responsible for them: Unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, normal wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences. If the customer or a third party carries out improper repairs, OCM shall not be liable for the resulting consequences. The same applies to changes to the object of purchase/service without prior approval by OCM.
3. For the limitation of claims for damages by the customer based on defects in the object of purchase/service, the provisions under Section VII shall apply.
4. For software, the regulations in the General Software License Terms shall apply in addition.
VII. Warranty period, other limitation periods
1. Unless otherwise agreed, claims based on defects, irrespective of the legal grounds, become statute-barred twelve months after a) delivery (in the case of a purchase without an obligation on the part of OCM to install or erect the subject matter of the contract), b) acceptance of the subject matter of the contract (see Section VIII.5.) by the customer (in the case of a purchase with an obligation on the part of OCM to install or erect the subject matter of the contract, see Section VIII, and in the case of work and services that do not involve the erection of a building or structure).
2. Insofar as OCM provides services for subsequent performance, the limitation period for claims for defects shall only start anew if OCM has unconditionally acknowledged the obligation to provide subsequent performance. An acknowledgement by OCM of the obligation to provide supplementary performance shall cause the period of limitation to recommence only with respect to the acknowledged defects. Any supplementary performance provided by OCM as a gesture of goodwill shall not constitute an acknowledgement of the defects complained of which would cause the period of limitation to recommence.
3. In all other respects, all other claims of the customer against OCM - irrespective of the legal grounds - shall become statute-barred twelve months after the customer has become aware of them or should have become aware of them without gross negligence.
4. The statutory limitation periods in the case of claims under a right of recourse based on supplier recourse
(§ 445b BGB), in the case of intent, in the case of claims under the Product Liability Act or in the case of work performance involving a structure shall remain unaffected.
For certain deliveries and services, the provisions of the following pages shall apply in addition.
B. Special part:
Terms and conditions that apply to specific deliveries and services in addition to the General Section
VIII. General terms for machines, equipment, lasers and laser systems
1. Pre-acceptance: If a preliminary acceptance test has been agreed at OCM's factory prior to delivery of the contractual object, a standard procedure defined by OCM will be carried out to verify functionality. A protocol will be drawn up on this, which is to be signed by both parties. If necessary, the customer must provide sample parts for test runs in good time before the preliminary acceptance.
2. Receiving: The customer may refuse to take delivery of the subject matter of the contract - without prejudice to other claims based on defects - only in the event of a material defect. Partial deliveries are permissible insofar as they are reasonable for the customer.
3. Insertion: OCM is only obliged to bring the object of the contract (= transfer of the delivery item from the means of transport to the place of installation) if this has been expressly agreed. If OCM has agreed to bring in the object of the contract, OCM owes the following services and bears the risk limited by the following obligations to cooperate on the part of the customer for the duration of the bringing in: The subject matter of the contract, including all accessories, is unloaded from the transport vehicle by a transport company commissioned by OCM, transported to the installation site and positioned at the installation site. All necessary lifting and transport equipment is included in the scope of OCM's placement. Customer shall assist OCM with the placement at no charge and shall ensure that (a) the installation site is free of obstructions, (b) the transport route does not exceed a length of 200m, and (c) the transport route is level in one piece and free of interfering contours. Lifting the contractual item again at the installation site (e.g. due to oil pan or base) is not included in the scope of services.
4. Set-up: The set-up of the subject matter of the contract is only owed by OCM if this has been expressly agreed. If installation by OCM is agreed, the parties owe each other the following services and acts of cooperation:
4.1 The set-up of the subject matter of the contract at the Final installation site is carried out by an OCM expert or by a partner commissioned by OCM. All requirements to be fulfilled by the customer can be found in the installation and operating conditions as well as the OCM installation plan, which OCM will hand over to the customer with the order confirmation, and must be fulfilled by the customer on time. In order to ensure a speedy and smooth process, the customer must provide the service technician responsible for the installation with appropriate auxiliary personnel and, if necessary, available lifting equipment free of charge.
4.2 After the set-up, commissioning including functional testing is performed by an OCM expert within the framework of a standard procedure defined by OCM. If the machine is an "incomplete machine" in the sense of the EC Machinery Directive 2006/42/EC, only the functional test is carried out, but not the commissioning by OCM.
5. Acceptance: If acceptance is contractually agreed or required by law, acceptance of the subject matter of the contract shall take place within the framework of a standard procedure defined by OCM.
5.1 The customer is obligated to accept as soon as the functional test has been completed, unless there is a defect that restricts the usability. Insofar as partial functions of the subject matter of the contract can be used independently for production purposes and are ready for acceptance, the customer shall be obliged to perform partial acceptance. A record of the (partial) acceptance shall be drawn up and signed by both parties.
5.2 The (Partial) acceptance shall also be deemed to have taken place if the customer - does not declare acceptance within a reasonable period of time set for it despite an existing obligation to accept (see paragraph 5.1) or refuses acceptance even after repeated requests by OCM or - delays commissioning or functional testing without substantial cause and OCM has thereupon set the customer a reasonable period of time to cooperate, which period of time has expired to no avail, or - puts the subject matter of the contract into operation for production purposes.
6. Instruction: If separately agreed, an instruction of the customer in the operation of the subject matter of the contract shall take place on site at the same time, in principle for a maximum of one day..
7. Impediments to performance during insertion, installation, commissioning, functional testing or instruction:
7.1 Unforeseen obstacles or technical faults must be eliminated immediately by the customer. Additional services required over and above the services owed or waiting times of OCM that cannot be used for other purposes are to be paid for separately by the customer in accordance with OCM's price list valid at the time of performance; additional costs of the third party commissioned by OCM are to be reimbursed by the customer. This does not apply if the additional services, waiting times or additional costs are due to circumstances for which OCM or the third party commissioned by OCM is responsible.
7.2 If the performance of the services is delayed for reasons for which neither OCM nor the third party commissioned by OCM is responsible, OCM may set the customer a reasonable deadline to remedy the obstacles. After unsuccessful expiry of the deadline, OCM may refuse to perform the services; the customer may not plead that the services have not been performed. OCM may demand payment of the agreed remuneration after deducting the expenses saved and the income from any other use of its own labor.
8. Insofar as OCM is responsible for a delay in delivery and the customer incurs damage as a result, the customer is entitled to demand a lump-sum compensation for delay from the second week after the delay occurred. This shall amount to 0.5% for each full week of delay, but in total not more than 5% of the value of that part of the total delivery which was not provided on time as a result of the delay in delivery. Any further claim for damages due to delay shall only exist if one of the exceptions to the limitations of liability set forth in Section VI applies.
9. The import, export or other transfer of the delivery item or individual components may be subject to a permit requirement in Germany or abroad under certain conditions. The customer is responsible for obtaining the necessary official permits in good time.
Since machines, equipment, lasers and laser systems are typically supplied with software, please also refer to the supplementary General Software License Conditions..
