General terms of sale and delivery

1. Scope

Wetzlich Optik Präzision GmbH (hereinafter referred to as “Wetzlich”) exclusively delivers according to the sales and delivery conditions listed below, regardless of whether we manufacture the goods ourselves or purchase them from suppliers. Contradictory or divergent conditions of the buyer are only recognized if expressly confirmed by Wetzlich. This requirement for approval applies in any case, for example, even if we execute the delivery to him without reservation, knowing the buyer’s terms and conditions. Unless otherwise agreed, the sales and delivery conditions in the version valid at the time of the buyer’s order or, in any case, the version last communicated to him in writing, apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case. Even in the case of orders to be executed at short notice and not confirmed orally or in writing by us, the buyer expressly agrees to these terms and conditions. In individual cases, specific agreements with the buyer (including subsidiary agreements, additions, and amendments) take precedence over these sales and delivery conditions in any case. The content of such agreements is, subject to counter-evidence, determined by a written contract or our written confirmation.

2. Offer and Conclusion of Contract

All offers from Wetzlich are non-binding and subject to change. The conclusion of a contract with us occurs in the case of oral or telephone orders through the oral or telephone acceptance declaration by Wetzlich or the delivery of the goods. In the case of written orders, the conclusion of the contract takes place upon receipt of the order by Wetzlich, unless Wetzlich objects within 2 working days.

If there is a acceptance contract between the buyer and Wetzlich, employees and representatives of Wetzlich are not authorized to make verbal subsidiary agreements, give verbal commitments, or make verbal agreements to change the acceptance contract. Such agreements, subsidiary agreements, or commitments only bind Wetzlich after corresponding written confirmation by Wetzlich.

3. Prices

Our stated prices are in Euros ex Korschenbroich, as unit prices for cylindrical eyeglass lenses. The decisive factor is the respective list prices valid on the day of order receipt, plus the statutory value-added tax. Otherwise, the prices stated in the invoices or delivery notes, plus the statutory value-added tax, apply unless different individual agreements have been made in writing. For the custom manufacturing of products not listed in Wetzlich’s price lists, special arrangements are made.
In the case of a sale involving shipment, the buyer bears the transport costs from the warehouse and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes, and other public charges are borne by the buyer.

4. Payment

Invoices are payable within 30 days net without deduction. For payments made within 14 days from the invoice date, Wetzlich grants a 1% discount on the invoice amount. In the case of direct debit, Wetzlich grants a 2% discount on the invoice amount.
Payment is made by direct debit or bank transfer. The fulfillment of the payment obligation occurs on the day when Wetzlich can fully dispose of the payment, regardless of the type of payment.

If the buyer defaults on payment obligations, any discounts granted in accordance with the agreement will be suspended and initially used to cover the financing of the costs incurred by Wetzlich due to the buyer’s payment delay.

In the event of payment default attributable to the buyer, Wetzlich is entitled, in the case of deferral, to declare the entire remaining debt due immediately. If the buyer is in default of payment, the purchase price is to be charged with interest at the respective applicable statutory default interest rate during the default period. The assertion of further damages remains expressly reserved.

The buyer is precluded from offsetting Wetzlich’s claims against his own claims unless these are legally established or undisputed, or in a close synallagmatic relationship to Wetzlich’s claim. Wetzlich is entitled, even in the course of an ongoing business relationship, to deliver goods only against advance payment. We declare such a reservation at the latest with the order confirmation.

If, after the conclusion of the contract, it becomes apparent (for example, through an application for the opening of insolvency proceedings) that our claim to the purchase price is jeopardized by the buyer’s insufficient performance capability, we are entitled, in accordance with statutory provisions, to refuse performance and, if necessary, to set a grace period for withdrawal from the contract. In contracts for the manufacture of unique items (custom-made), we can declare withdrawal immediately; the statutory regulations regarding the dispensability of setting a deadline remain unaffected.

5. Delivery

Delivery is ex works Korschenbroich, where the place of performance for delivery and any subsequent fulfillment is also located. At the buyer’s request and expense, the goods will be shipped to another destination. Unless otherwise agreed, we are entitled to determine the type of shipment (in particular, the transport company, shipping route, packaging) ourselves.

The risk of accidental loss and deterioration of the goods passes to the buyer at the latest upon handover. However, in the case of a sale involving shipment, the risk of accidental loss and deterioration of the goods, as well as the risk of delay, passes with the delivery of the goods to the carrier, the freight forwarder, or any other person or institution designated to carry out the shipment. If acceptance has been agreed upon, it is decisive for the transfer of risk.

The assertion of a higher damage and our legal claims (in particular, compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum is to be credited against further monetary claims. The buyer is permitted to provide evidence that no damage or significantly lower damage has occurred than the lump sum mentioned above.

Delivery and performance delays due to force majeure and events that significantly impede or make delivery impossible for Wetzlich, despite observing all reasonable care, including war, governmental intervention, strikes/labor disputes at Wetzlich or suppliers, fire, shortage of raw materials or energy, traffic disruptions, as well as unforeseeable consequences of operational disruptions, entitle Wetzlich to deliver with a corresponding delay.

The delivery period is extended accordingly to the duration of such events and obstacles. The same applies if the performance hindrances listed above were present before the conclusion of the contract but were unknown to Wetzlich. The start and end of such performance hindrances will be communicated to the buyer as soon as possible. Partial deliveries are permissible within the specified delivery periods unless expressly agreed otherwise.

6. Transfer of Risk

The risk passes to the buyer as soon as the shipment has been handed over to the transport company or has left Wetzlich’s premises for the purpose of shipping. If shipment becomes impossible without Wetzlich’s fault, the risk passes to the buyer upon notification of readiness for shipment.

The buyer must promptly notify Wetzlich in writing or in text form of any defects in the goods after receiving the delivery.
Defects that cannot be immediately discovered even with careful inspection must be reported to Wetzlich immediately after discovery in the same manner.

7. Warranty

The buyer’s rights for defects in quality and legal defects are subject to statutory regulations, unless otherwise specified below. Claims for supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur, for example, by being incorporated into another product.

The basis of our liability for defects is primarily the agreement on the quality of the goods. All product descriptions and manufacturer information that are the subject of the individual contract or were publicly disclosed by us (especially in catalogs or on our website) at the time of the conclusion of the contract are considered an agreement on the quality of the goods.
If the quality has not been agreed upon, it is to be assessed whether there is a defect based on legal regulations or the corresponding DIN EN ISO standards. However, we assume no liability for published statements by the manufacturer or other third parties (e.g., advertising statements) to which the buyer has not specifically pointed out as decisive for his purchase.
The buyer’s warranty claims presuppose that he has fulfilled his statutory inspection and complaint obligations. For all goods intended for installation or other processing, an inspection must be carried out immediately before processing in any case. If a defect becomes apparent during delivery, inspection, or at any later time, immediate written or text-form notification must be made to us. In any case, obvious defects must be reported within 7 working days of delivery, and defects not recognizable during inspection must be reported in writing or in text form within the same period from discovery. If the buyer fails to carry out a proper inspection and/or report a defect, our liability for defects not or not timely or properly reported is excluded in accordance with statutory regulations.

If the delivered item is defective, we can also choose whether to fulfill our warranty obligation by rectifying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent improvement under the statutory conditions remains unaffected.

We are entitled to make the owed subsequent improvement dependent on the buyer paying the due purchase price. However, the buyer is entitled to withhold a reasonable portion of the purchase price in relation to the defect.
The buyer must provide us with the necessary time and opportunity for the owed subsequent improvement, in particular by handing over the goods complained of for inspection purposes. In the case of replacement delivery, the buyer must return the defective item to us in accordance with statutory regulations. Subsequent improvement does not include the removal of the defective item or its reinstallation if we were not originally obligated to install it.

The expenses required for examination and subsequent improvement, in particular, transport costs, are borne or reimbursed by us in accordance with statutory regulations if a defect actually exists. Otherwise, we can demand reimbursement from the buyer for costs incurred as a result of an unjustified request for defect rectification (in particular, examination and transport costs), unless the lack of defectiveness was not recognizable to the buyer. If subsequent improvement has failed or if a reasonable deadline set by the buyer for subsequent improvement has expired unsuccessfully or is dispensable according to statutory regulations, the buyer can withdraw from the purchase contract or reduce the purchase price. There is no right of withdrawal for minor defects.

The buyer’s claims for damages or reimbursement of futile expenses exist only according to clause 8 and are otherwise excluded.
Contrary to § 438 para. 1 No. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. This does not affect statutory special regulations regarding the limitation period (especially § 438 para. 1 No. 1, para. 3, §§ 444, 445b BGB).

8. Liability

Unless otherwise provided in these sales and delivery conditions, we are liable for breaches of contractual and non-contractual obligations in accordance with statutory provisions.

We are liable for damages – irrespective of the legal basis – in cases of intent and gross negligence within the scope of tortious liability. In cases of ordinary negligence, we are liable, subject to legal limitations of liability (e.g., carelessness in our own affairs; minor breach of duty), only:

  1. a) for damages resulting from injury to life, body, or health, 
  2. b) for damages resulting from a breach of a material contractual obligation (an obligation whose fulfillment enables the proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, our liability is limited to the compensation of foreseeable, typically occurring damages.

The above-mentioned limitations of liability arising from the reasons mentioned also apply to breaches of duty by or in favor of persons whose fault we are liable for under statutory provisions. They do not apply in cases where we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods, and for the buyer’s claims under the Product Liability Act.

For a breach of duty that does not consist of a defect, the buyer can only withdraw or terminate the contract if we are responsible for the breach of duty. The buyer does not have a right to terminate the contract at will. Otherwise, the statutory prerequisites and consequences apply.

9. Retention of Title

Until full payment of all current and future claims from the purchase contract and an ongoing business relationship (secured claims), we reserve ownership of the goods sold.

Goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been fully paid. The buyer must notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third-party interventions (e.g., seizures) occur on the goods owned by us.

In the event of the buyer’s contractually non-compliant behavior, especially in the case of non-payment of the due purchase price, we are entitled to withdraw from the contract and/or demand the return of the goods based on the retention of title, following the statutory provisions. The demand for return does not simultaneously imply a declaration of withdrawal; rather, we are entitled to demand only the return of the goods and reserve the right to withdraw. If the buyer does not pay the due purchase price, we may only assert these rights if we have previously set the buyer an unsuccessful reasonable deadline for payment or if such a deadline is dispensable according to statutory regulations.
Until revoked according to the regulations below, the buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions apply additionally.

The retention of title extends to the products resulting from the processing, mixing, or combining of our goods to their full value, with us being deemed the manufacturer. If, in the processing, mixing, or combining with third-party goods, the ownership right of the third party remains, we acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. Otherwise, the same applies to the resulting product as for the goods delivered under retention of title.

The buyer hereby assigns to us as security the claims arising from the resale of the goods or the resulting product to third parties in their entirety or in the amount of our co-ownership share as per the preceding paragraph. We accept the assignment. The buyer’s obligations mentioned in paragraph 2 also apply regarding the assigned claims.

The buyer remains authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the buyer meets their payment obligations to us, there is no impairment of their performance capability, and we do not assert the retention of title by exercising a right according to the rules mentioned above. However, if this is the case, we can demand that the buyer informs us of the assigned claims and their debtors, provides all necessary information for collection, hands over the associated documents, and notifies the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the buyer’s authorization to further sell and process goods subject to retention of title.

If the realizable value of the collateral exceeds our claims by more than 10%, we will release collateral of our choice at the buyer’s request.

10. Export License and Obtaining Regulatory Approval

Any approvals from the Federal Office for Economic Affairs and Export Control (Bundesamt für Wirtschaft und Ausfuhrkontrolle) that may be necessary for the export of the delivered goods must be obtained by the buyer in their own name and at their own expense. The denial of such an export license does not entitle the buyer to withdraw from the contract. If the buyer requires a regulatory approval for the introduction of the goods, for example, in their country, the buyer must also obtain this approval in their own name and at their own expense. The denial of such approval does not entitle the buyer to withdraw from the contract.

11. Data Protection

Wetzlich Optik Präzision GmbH informs the buyer that it will store product-related, order-related, and personal data of the buyer for the purpose of processing their order. This is done only within the framework of applicable legal regulations. Details can be found in the privacy policy available on our website..

12. Final Provisions

If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of Wetzlich. However, Wetzlich is also entitled to file a lawsuit at the place of performance of the delivery obligation according to these terms and conditions or a prior individual agreement or at the general place of jurisdiction of the buyer in all cases. Priority statutory provisions, especially regarding exclusive jurisdictions, remain unaffected.

The contract is governed by German law, excluding the UN Convention on Contracts for the International Sale of Goods, even if the buyer has its registered office abroad.

As of: Juli 2019 | WETZLICH – Optik-Präzision GmbH