Terms and Conditions

Section 1 – Scope of application

(1) The sales and delivery conditions of OMS Antriebstechnik GmbH (hereinafter referred to as “OMS”) apply exclusively; OMS does not recognize any sales and delivery conditions of the customer which deviate from OMS’s conditions, unless we have expressly agreed to their validity in writing. The sales and delivery conditions of OMS also apply even if OMS completes its delivery to the customer unconditionally and with awareness of the customer’s conditions which deviate from the sales and delivery conditions of OMS.

(2) All agreements concluded between OMS and the customer for the purpose of carrying out this agreement are recorded in writing in this agreement.

(3) OMS’s sales and delivery conditions only apply to companies in the sense of Sections 310 para. 1 BGB, 14 BGB (German Civil Code).

Section 2 Offer – Offer documents

(1) If an order by a customer is considered to be an offer in accordance with Sec. 145 BGB, OMS can accept it within 2 weeks; acceptance should generally be issued in writing.

(2) OMS reserves rights of ownership and copyrights to images, drawings, calculations, and other documents. This is also true of written documents that have been designated as “confidential.” The customer must have written approval from OMS before transmitting their data to third parties.

(3) If OMS submits an offer, this offer shall be non-binding unless otherwise indicated in the order confirmation.

(4) A contract shall only come about once OMS accepts your offer through a declaration of acceptance or by delivering the ordered goods.

Section 3 Prices – Payment conditions

(1) If not otherwise established in the order confirmation, OMS’s prices shall be deemed “ex works,” excluding packaging, which will be invoiced separately.

(2) OMS reserves the right to change its prices accordingly, if costs increase or decrease after the contract is concluded, in particular due to collective wage agreements or changes in material prices. OMS shall verify this to the customer upon request.

(3) The statutory VAT is not included in OMS’s prices; it is to be listed separately on the invoice at the statutory rate valid on the date of invoicing.

(4) Discount deductions shall require a separate written agreement.

(5) If not otherwise established in the order confirmation, the purchase price shall be due for payment in its net amount (without discount) within 30 days from the invoice date. Statutory regulations establishing the consequences of delayed payments shall apply.

(6) The customer shall only be entitled to rights of offset if its counterclaims have been legally established, or are uncontested or recognized by OMS. In addition, the customer shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.

Section 4 Delivery time

(1) All technical questions shall be clarified before the start of the delivery term established by OMS.
(2) The customer must furthermore fulfill its obligations properly and promptly in order for OMS to uphold its delivery obligations. We reserve the right to object if the Agreement is not fulfilled.

(3) If the customer is in default of acceptance, or if it culpably violates its other cooperative obligations, OMS shall be entitled to demand reimbursement of any damages we incur in this regarding, including any additional expenses. We reserve the right to assert further claims.

(4) If the requirements from para. (3) have been fulfilled, the risk of accidental loss or accidental deterioration of the purchased products, shall be transferred to the customer at the time the customer falls into default of acceptance or payment.

(5) OMS shall be liable in accordance with statutory provisions, insofar as the underlying purchasing agreement is a fixed date transaction in the sens of Sec. 286 para. 2 no. 4 BGB or Sec. 376 HGB. OMS shall also be liable in accordance with statutory provisions insofar as the customer is entitled to assert that it no longer has any interest in continued contractual fulfillment, due to a delay of delivery for which OMS is responsible.

(6) OMS shall furthermore be liable in accordance with statutory provisions, insofar as the delay of delivery is due to an intentional or grossly negligent contractual violation for which OMS is responsible; any culpability of a representative or agent of OMS shall be attributed to OMS. Insofar as the delayed delivery is due to an intentional contractual violation for which OMS is not responsible, OMS’s liability for damages shall be restricted to foreseeable and typical damages.

(7) OMS shall also be liable in accordance with statutory provisions, insofar as the delayed delivery for which OMS is responsible is based on the culpable violation of a key contractual obligation; however, in this case the liability for damages shall be restricted to foreseeable and typical damages.

(8) Further statutory claims and rights of the customer shall remain unaffected.

Section 5 Transfer of risk – Packaging costs

(1) Unless otherwise stated in the order confirmation, delivery “ex works” is hereby agreed.

(2) Separate agreements apply for regulations on taking back packaging.

(3) If requested by the customer, OMS shall cover the delivery with transportation insurance, and the customer shall bear relevant costs.

Section 6 Third-party processing orders

(1) If the customer issues processing orders to third parties for preliminary products produced and delivered by it, then the customer shall be responsible for providing full specifications on its delivered material and the specific processing requirements. OMS shall be liable in this respect for completing the commissioned work in a professional manner with respect to the services to be performed, but not for the success desired by the customer. OMS’s liability for the damage or destruction of the preliminary products provided, therefore, shall be limited to instances of gross negligence or intentional action. In case of simple negligence, OMS’s liability shall therefore be restricted to typical, foreseeable damages, and at most to the order value for the services to be performed by us.

Section 7 Liability for defects

(1) In order for the customer to have any defect rights, the customer must have properly fulfilled its duties of inspection and filing of complaints in accordance with Sec. 377 HGB.

(2) If there is a defect in the purchased object, the customer shall be entitled to supplementary fulfillment through correction of the defect or delivery of a new, defect-free object, at its discretion. In case of a correction of defects, we are obligated to bear all costs associated with correcting the defect, in particular transportation, travel, work, and material costs, as long as these do not increase because the purchased object was moved to another location besides the place of fulfillment. In case of a correction of defects, we will bear expenses only up to the amount of the purchase price.

(3) If supplementary fulfillment is not successful, the customer is entitled to withdraw from the agreement or request a reduction in the fee, at its discretion.

(4) OMS shall be liable in accordance with statutory provisions, insofar as the customer asserts claims for damages based on intentional or grossly negligent behavior, including intentional or grossly negligent behavior by OMS’s commissioned representatives or agents. Insofar as OMS is not accused of committing any intentional contractual violation, its liability for claims for damages shall be limited to foreseeable and typical damages.

(5) OMS shall be liable by law if we violate a significant contractual obligation in a culpable manner. In this case, however, claims for damages shall be limited to foreseeable and typical damages.

(6) Liability due to culpable injury to life, body, or health shall remain unaffected; this shall also apply to liability required under the Product Liability Act.

(7) If not otherwise regulated above, any further liability shall be excluded.

(8) The statute of limitations for claims resulting from defects shall be 24 months, calculated from the transfer of risk.

(9) The statute of limitations in the case of delivery recourse in accordance with sections 478, 479 BGB shall remain unaffected; this is two years from the time the defective goods were delivered.

Section 8 General liability

(1) Any further liability for reimbursement of damages beyond that in Sec. 7 shall be excluded, regardless of the legal nature of the asserted claim. This applies in particular to claims for damages due to culpability when the contract is concluded, due to other breaches of duty or due to tortious claims for reimbursement of property damage according to Sec. 823 et seqq. BGB.

(2) The limitation in para. (1) also applies if the customer requests reimbursement for wasted expenditures in place of reimbursement of damages instead of the service.

(3) Insofar as a liability for claims for damages against OMS is excluded or restricted, this exclusion or restriction shall also apply to the personal liability for damages of OMS’s executives, employees, staff members, representatives, and agents.

Section 9 Securing the reservation of title

(1) OMS shall retain ownership of the purchased goods until it has received all payments resulting from the business relationship with the customer.

(2) The customer is obligated to treat purchased goods carefully; in particular, it shall be obligated to insure them sufficiently against fire and water damage as well as theft at their new value and at its own cost. Insofar as maintenance or inspection work is required, the customer must complete such work promptly and at its own cost.

(3) In case of seizure or other intervention by third parties, the customer must inform OMS of incidents promptly and in writing so that we may lodge a claim in accordance with Sec. 771 ZPO (Code of Civil Procedure). If the third party is not able to compensate OMS for the judicial and extra judicial costs of a suit in accordance with Sec. 771 ZPO, then the customer shall be liable for costs incurred by OMS.

(4) The customer is entitled to re-sell the purchased goods in the normal course of business; however, it hereby already assigns all claims to OMS, up to their final invoiced amount (including VAT), which result from the further sale to its purchasers or to third parties, regardless of whether the purchased goods are re-sold without or in accordance with the agreement. Customer shall continue to be entitled to collect this claim, even after assignment. OMS’s right to collect the claim ourselves shall remain unaffected. However, OMS undertakes not to collect the claim as long as the customer fulfills its payment obligations from earnings received, is not in default of payment, and in particular as long as no motion has been filed to open settlement or insolvency proceedings, and the customer has not ceased payments. However, if this is the case, OMS may demand that the customer disclose the assigned claims and their debtors to us, provide all information required to collect such claims, provides us with associated documents, and inform the debtors (third parties) of the assignment.

(5) Any processing or conversion of the purchased goods by the customer is always undertaken on behalf of OMS. If the purchased goods are processed using other objects not belonging to OMS, then OMS shall obtain co-ownership of the new object in relation to the value of the purchased goods (final invoiced amount, including VAT) to the other processed objects at the time of processing. Furthermore, the same conditions shall apply to the product produced through processing as those that apply to the purchased goods delivered on a conditional basis.

(6) If the purchased goods are irrevocably mixed with other objects not belonging to OMS, then OMS shall obtain co-ownership of the new object in relation to the value of the purchased goods (final invoiced amount, including VAT) to the other mixed objects at the time of mixing. If mixing is completed in such a way that the materials belonging to the customer are to be seen as the main materials, then the parties agree that the customer shall transfer partial co-ownership to OMS. The customer shall therefore preserve the resulting sole ownership or co-ownership for OMS.

(7) The customer shall also assign OMS the claims to secure our claims against it resulting from the combination of the purchased goods with a property against a third party; OMS shall accept the assignment.

(8) OMS hereby undertakes to release the securities to which OMS is entitled at the request of the customer insofar as the realizable value of our securities exceeds the claims to be secured by more than 10 %; OMS shall be entitled to select the securities to be released.

Section 10 Place of jurisdiction – Place of fulfillment

(1) If the customer is a merchant, the headquarters of OMS is the place of jurisdiction. However, OMS is also entitled to file suit against the customer in its local court.

(2) The contract is subject to German law, excluding UN Sales Law and German international private law.

(3) Unless otherwise indicated in the order confirmation, the headquarters of OMS is the place of fulfillment.