General Terms and Conditions
for customers not resident in Germany
as of 08 March 2022
I. Scope of application
1. These International Conditions of Sale apply to all customers of Omtec Vertriebs GmbH – hereinafter referred to as Omtec – whose relevant place of business is not in Germany. For customers whose place of business is in Germany, the German Allgemeine Geschäftsbedingungen of Omtec do apply. In each case, the relevant place of business is the one which concludes the contract in its own name.
2. These International Conditions of Sale apply to all contracts whose preponderant object is the supply of goods and/or software to the customer. Additional obligations assumed by Omtec do not affect the application of these General Terms and Conditions for customers not resident in Germany.
3. Conflicting or differing terms of business of the customer do not bind Omtec, even if Omtec does not object to them or even if Omtec unconditionally renders performance or accepts the customer's performance. The provisions of this paragraph equally apply insofar as the terms of business of the customer, irrespective of the contents of these International Conditions of Sale, deviate from statutory provisions.
4. These International Conditions of Sale do not apply, if the customer buys the goods for personal, family or household use and if Omtec knew or should have known that at the time of the formation of the contract.
II. Formation of the Contract
1. The customer is under an obligation to give written notice to Omtec prior to the formation of a contract if the goods to be delivered are to be fit not only for normal use or will be used in circumstances which are unusual or which present a particular risk to health, safety or the environment, or which require a more demanding use or if there is a risk of atypical damages or unusual amounts of loss of which the customer is or ought to have been aware.
2. Orders of the customer are to be put in writing. If the customer's order deviates from the proposal or the tender submitted by Omtec, the customer will emphasize the differences as such.
3. All orders, also those received by employees of Omtec, will take effect exclusively if followed by a written acknowledgement of the order by Omtec. The actual delivery of the goods ordered, any other conduct of Omtec or silence on the part of Omtec does not allow the customer to assume the formation of the contract. Omtec can dispatch such written acknowledgement of the order up to and including fourteen (14) calendar days after the customer's order has been received by Omtec. Until this time, the customer's order is irrevocable.
4. The written acknowledgement of the order by Omtec shall be received in time if it is received by the customer within fourteen (14) calendar days after its date of issue. The customer will inform Omtec without delay if the written acknowledgement of the order is received with some delay. If, however, Omtec requests in writing a signature by the customer of the acknowledgement of the order by Omtec, the contract only comes into effect if Omtec receives a copy of the acknowledgement of the order legally signed by the customer, within fourteen (14) calendar days from the date of the written acknowledgement of the order.
5. The written acknowledgement of the order by Omtec sets out all the terms of the contract and brings the contract into effect even if – except for the price for the goods and the quantity to be delivered – the written acknowledgement is not consistent with the declarations of the customer in every respect, especially with reference to the exclusive application of these General Terms and Conditions. Wishes of the customer, namely warranties, with reference to the goods or the performance of the contract therefore require express written confirmation by Omtec in every case. The contract will only fail to come into existence if the customer objects in writing that the acknowledgement of the order by Omtec is not completely consistent with the declarations of the customer, the customer specifies the deviations in writing and if the objection is received by Omtec within a short time, at the latest seven (7) calendar days, after receipt of the written acknowledgement of the order by the customer.
6. Confirmations produced by the customer are of no effect without any objection by Omtec being necessary. Neither the actual delivery of the goods, any other conduct of Omtec or silence on the part of Omtec shall give rise to any belief by the customer in the relevance of his confirmation.
7. Employees, commercial agents, or other sales intermediaries of Omtec are not authorized to dispense with the requirement of a written acknowledgement of the order by Omtec or to make promises which differ from its content. If and to what extent such persons are authorized to make or receive declarations with effect for or against Omtec, is to be determined according to German law.
8. Amendments to the concluded contract always require written confirmation by Omtec.
III. Obligations of Omtec
1. Subject to an exemption according to section VII.-1. b) Omtec must deliver the goods specified in the written acknowledgement of the order and transfer the property in the goods. Omtec is not obliged to perform obligations not stated in the written acknowledgment of the order by Omtec or in these General Terms and Conditions. Omtec is under no obligation if not explicitly agreed upon in writing to furnish information, documents, or certificates, or to deliver accessories, to install additional safety devices, to carry out assemblies or to advise the customer.
2. Omtec’s obligations under the contract made with the customer are owed only to the customer. Third parties not involved in the formation of the contract, in particular the customer's clients, are not entitled to request delivery to be made to them or to assert any other claim arising from the customer’s contract with Omtec. The customer gives Omtec an unlimited indemnity against all claims made by third parties against Omtec out of the contract made with the customer. The customer's responsibility to take delivery continues to exist even if he assigns rights to third parties.
3. Taking account of the customary tolerances, Omtec undertakes to deliver to the customer goods of the agreed kind and quantity which meet the common standards in Germany. Performance specifications given by Omtec are subject to good operational conditions, particularly in view of the materials to be processed and the personnel used, as well as the exclusive use of original spare parts and to appropriate maintenance. Omtec is entitled to make part deliveries and to invoice them separately and ensures that at the time of delivery the goods are free from rights or claims of third parties which could prevent its use within the European Union.
4. If further specification is required in relation to the goods to be delivered, Omtec will carry this out having regard to his own interests and to the identifiable and legitimate interests of the customer. A request to the customer to specify the goods, or to participate in the specification, is not required. Omtec does not undertake to inform the customer of the specification he has made or to give the customer the option of a differing specification.
5. Omtec undertakes to place the goods packaged and marked according to Omtec’s standard at disposal for collection by the customer FCA (Incoterms 2010) at the place of delivery indicated in the written acknowledgement of the order or – if a place of delivery is not indicated – at the premises in 26316 Varel/Germany at the agreed time of delivery. Previous separation or marking of the goods or notification to the customer of the goods being placed at disposal is not required. Under no circumstances, not even when other Incoterms are agreed is Omtec obliged to inform the customer of the delivery, to examine the goods with respect to their conformity with the contract on the occasion of delivery, to check the operational safety of the means of transport and the transportation safe loading or to furnish proof of the delivery being effected. The agreement of other Incoterms or of clauses such as "delivery free......." or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
6. The organization of the transport and the insurance of the goods beyond the place of delivery decisive according to section III.-5. is none of Omtec’s obligations but is incumbent upon the customer. If the customer does not give a counter instruction in writing in time, Omtec is entitled – without the customer asking for it or without such a commercial practice existing – to contract on terms usual in Germany in the customer’s name and at the customer’s risk and expense for carriage and/or insurance of the goods to the destination indicated in writing by the customer and – if such a destination is not indicated – to the place of business of the customer.
7. Agreed delivery time periods or delivery dates are subject to the customer's procuring any required documents, releases, permits, approvals, licenses, or any other authorizations or consents in sufficient time, opening letters of credit and/or making down-payments as agreed and performing all other obligations incumbent upon him properly and in good time and subject to no delay caused by pre-shipment inspections mandated by authorities. Moreover, agreed delivery time-periods begin on the date of the written acknowledgement of the order by Omtec. Omtec is entitled to deliver earlier than at the agreed delivery time or to select the date of delivery within the agreed period for delivery.
8. Without prejudice to his continuing legal rights, Omtec is entitled to fulfil his obligations after the delivery time agreed upon if the customer is informed that Omtec will exceed the delivery time limit and the time for supplementary performance. Subject to aforesaid conditions, Omtec is entitled to make repeated attempts at supplementary performance. The customer can object to supplementary performance within reasonable time if the supplementary performance is unreasonable. An objection is only effective if it is received by Omtec before commencing supplementary performance. Omtec will reimburse necessary additional expenditure, proven and incurred by the customer as a result of exceeding the delivery time to the extent that Omtec is liable for this under the provisions laid down in section VII.
9. Risks as to price and performance even in relation to goods which are not clearly identifiable to the contract and without it being necessary for Omtec to give notice, pass to the customer with delivery pursuant to section III.-5., albeit irrespective of delivery as soon as the title to the goods has passed to the customer. The agreement of other Incoterms or of clauses such as "delivery free......." or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these General Terms and Conditions remain applicable.
10. Omtec is not obliged to clear the goods for export or to take care of their security clearance. However, Omtec will apply for necessary export licenses and customs formalities necessary for the export after the customer has provided Omtec with the data essential for the export in a written notice attending to this purpose exclusively. If the goods are not cleared for export without any fault on the part of Omtec, Omtec is entitled to avoid the contract of sale in whole or in part without compensation. The agreement of other Incoterms or of clauses such as "delivery free......." or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these General Terms and Conditions remain applicable.
11. Omtec is not obliged to procure documents or certificates not expressly agreed or to obtain any licenses, authorizations, or other documents necessary for the export, transit, or import. The agreement of other Incoterms or of clauses such as "delivery free......." or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these General Terms and Conditions remain applicable.
12. Omtec is in no case liable to perform duties associated with the making available of the goods on the market outside Germany, to bear levies, duties and charges accruing outside Germany, to comply with weight and measuring systems, packaging, labelling, or marking requirements or registration or certification obligations applicable outside Germany or to comply with any other legal provisions applicable to the goods outside Germany. The customer will arrange for translations in any language other than German of instructions, safety information, performance declarations or other written materials about the goods required by law or called for otherwise at his risk and expense.
13. Without prejudice to his continuing legal rights and without a previous notice to the customer being necessary, Omtec is entitled to suspend the performance of his obligations if, in the opinion of Omtec, there are reasons for concern that the customer will wholly or partly fail to fulfil his obligations in accordance with the contract. In particular, the right to suspend arises if the customer insufficiently performs his obligations to enable payment to Omtec or a third party or pays late or if the limit set by a credit insurer has been exceeded or will be exceeded with the forthcoming delivery. Instead of suspending performance Omtec is entitled at his own discretion to make future deliveries, even if confirmed, conditional on payment in advance or on opening of a letter of credit confirmed by a German commercial bank. Omtec is not required to continue with performance of his obligations if an assurance given by the customer to avoid the suspension does not provide adequate security or could be challenged pursuant to an applicable law.
14. Except as provided in section III.-8., Omtec is only obliged to inform the customer of possible disruption in performance, once the commencement of the disruption is certain for Omtec.
IV. Obligations of the Customer
1. Irrespective of continuing obligations of the customer to guarantee or to enable payment, the customer undertakes to pay the agreed price for the goods in the currency specified in the written acknowledgement of the order transferring it without deduction and free of expenses and costs to one of the financial institutions designated by Omtec. As far as a price for the goods has not been agreed on, the price which is at the agreed time of delivery Omtec's usual price for the goods will apply. Omtec's employees, commercial agents or other sales intermediaries are not authorized to accept payments.
2. The payment to be made by the customer is in any event due for payment at the time specified in the written acknowledgement of the order or – if a time for payment is not indicated – on receipt of the invoice. The due date for payment arises without any further pre-condition and does not depend on whether the customer has already taken delivery of the goods and/or the documents and/or has had an opportunity to examine the goods. The periods granted for payment will cease to apply and outstanding accounts will be due for immediate payment, if insolvency proceedings relating to the assets of the customer are applied for, if the customer without providing a justifiable reason does not meet fundamental obligations due towards Omtec or towards third parties, if the customer has provided inaccurate information regarding his creditworthiness or to the extent that the cover given by a credit insurer for the customer is reduced on reasons for which Omtec is not responsible.
3. The customer warrants that all legal requirements and documentations for the handling regarding customs laws and value added tax of the delivery and/or any service will be fulfilled according to the applicable provision in Germany. In case Omtec must pay German and/or foreign customs duties and/or value added tax, the customer will indemnify Omtec in all and every respect without prejudice to any continuing claim by Omtec. The indemnity is granted by the customer waiving any further requirements or other defences, in particular waiving the defence of limitation or prescription and includes the reimbursement of the expenses incurred by Omtec.
4. Regardless of the currency and of the jurisdiction of any court, Omtec is entitled at his own discretion to set off incoming payments against claims existing against the customer by virtue of his own or assigned rights at the time of payment.
5. Any statutory rights of the customer to set-off against claims of Omtec, to withhold payment or taking delivery of the goods, to suspend the performance of his obligations or to raise defences or counterclaims are excluded, except where the corresponding claim of the customer against Omtec is in the same currency, is founded in the customer's own right and is either due and undisputed or has been finally adjudicated or where despite written warning by the customer Omtec has committed a fundamental breach of his obligations due and arising out of the same contractual relationship, and has not offered any adequate assurance.
6. The customer undertakes to provide Omtec with the data to apply for the customs formalities according to section III.-10. reasonable time ahead, to take delivery of the goods either by himself or by a person appointed by him to Omtec at the delivery time without taking any additional time and at the place of delivery resulting from section III.-5. and shall fulfil all the duties imposed by the contract, by these General Terms and Conditions, by the rules of the ICC for the use of Incoterms® 2010 and by statutory provisions. The customer is only entitled to refuse to take delivery of the goods if he avoids the contract in accordance with the rules in section VI.-1.
7. Irrespective of any statutory provisions, the customer shall at his own cost take care of or in any other way ensure renewed utilization, material recycling or otherwise prescribed waste-disposal of the goods delivered by Omtec to the customer and of the packaging material.
8. The customer will not enter or perform any business with the goods purchased from Omtec, if such business is forbidden under the applicable provisions, including the U.S. export control regulations. To the extent that the customer is unsure whether such prohibitions exist, the customer shall seek consultation with Omtec in writing.
V. Delivery of non-conforming Goods or Goods with Defective Title
1. Without prejudice to any exclusion or reduction of liability of the seller provided by law, goods do not conform with the contract if the customer proves that, taking into account the terms in section III., at the time the risk passes the packaging, quantity, quality or the description of the goods is significantly different to the specifications laid down in the written acknowledgement of the order, or in the absence of agreed specifications, the goods are not fit for the purpose which is usual in Germany. Regardless of the stipulation established in sentence 1, the goods shall be deemed to conform with the contract to the extent that the legal regulations applicable at the place of business of the customer do not prevent the usual use of the goods.
2. As far as the written acknowledgement of the order by Omtec does not contain an explicit statement to the contrary, Omtec is not liable for the goods being fit for a purpose which is not usual in Germany or for complying with inappropriate expectations of the customer or for possessing the qualities of a sample or a model or for their compliance with the legal regulations existing outside Germany, for instance in the customer's country. Omtec shall also not be liable for any non-conformity with the contract that did not exist at the time the risk has passed. To the extent that the customer, either himself or through third parties, initiates the removal of non-conformities without the prior consent of Omtec in writing, Omtec will be released from his liability.
3. The customer is obligated to Omtec to examine or to have examined every single delivery comprehensively for any discoverable or typical lack of conformity with the contract and moreover as required by law.
4. Without prejudice to any exclusion or reduction of liability of the seller provided by law, goods have a deficiency in title if the customer proves that the goods are not free from enforceable rights or claims of third parties at the time risk passes. Without prejudice to further legal requirements, third parties’ rights or claims founded on industrial or other intellectual property constitute a deficiency in title only to the extent that the rights are registered, made public and in legal force in Germany and prevent the usual use of the goods in Germany. Regardless of the stipulation established in sentence 1, title to the goods shall be deemed not to be defective to the extent that the legal regulations applicable at the place of business of the customer do not prevent the usual use of the goods.
5. Without prejudice to the statutory obligations of the customer to give notice within reasonable time, the customer is obligated to Omtec to give notice to Omtec of any lack of conformity with the contract or any deficiency in title at the latest within one (1) year after taking delivery in accordance with section IV.6. Such notice must be made in writing and directly to Omtec and to be formulated in such a precise manner as to enable Omtec to effect remedy measures without need for further inquiries from the customer and to secure claims against Omtec’s suppliers and moreover as required by law. Omtec’s employees, commercial agents or other sales intermediaries are not authorized to accept notices outside Omtec’s premises or to make any statements concerning lack of conformity with the contract or of title and its consequences.
International Conditions of Sale
6. Following due notice according to section V.-5., the customer can rely on the remedies provided by these General Terms and Conditions. The customer has no other rights or claims whatsoever and no claims of a non-contractual nature. In the event of notice not having been properly given, the customer may only rely on remedies if Omtec has fraudulently concealed the lack of conformity with the contract or the deficiency in title. Statements by Omtec as to the lack of conformity with the contract or as to the deficiency in title are for the purpose of explaining the factual position only, but do not entail any waiver by Omtec of the requirement of proper notice.
7. The customer is not entitled to remedies for delivery of non-conforming goods or goods with a deficiency in title, insofar as the customer is obligated to third parties for conditions of the goods or their fitness for a use which are not subject of the agreement with Omtec, or if the customer’s claim is based on foreign law not applicable in Germany.
8. To the extent that the customer in accordance with the terms of these International Conditions of Sale is entitled to remedies because of delivery of non-conforming goods or goods with defective title, he is entitled to demand in accordance with the terms of the UN Sales Convention delivery of substitute goods or repair of Omtec or to reduce the price for the goods. The delivery of substitute goods or repair does not lead to a recommencement of the limitation period. The reduction of the price for the goods is limited to the damages suffered by the customer. Further claims for performance are not available to the customer. Irrespective of the customer’s remedies, Omtec is always entitled in accordance with the provision in section III.-8. to repair goods which do not conform with the contract or to supply substitute goods or to avert the customer's remedies by giving him a credit note of an appropriate amount.
9. For commercial customers, the warranty period for new goods is 1 year after the date of transfer of risk.
10. For commercial customers, the warranty period for pre-owned goods is 1 year after the date of transfer of risk.
11. In addition to Chapter II, Paragraph 1 of these General Terms and Conditions, reference is made to commercial customers obligation to give notice of defects pursuant to § 377 of the Handelsgesetzbuch (“German Commercial Code”). Commercial customers must inspect received goods immediately and report defects to Omtec without any delay. If this obligation is violated, warranty claims shall lapse.
12. For private customers, the warranty period for new goods is 2 years after the date of transfer of risk.
13. For private customers, the warranty period for pre-owned goods shall be 1 year.
14. For trading transactions with private and commercial customers with date of purchase from 01.01.2022, Omtec is liable for the burden of proof for non-existence of a defect at date of transfer of risk in the first 12 months after the transfer of risk. Thereafter, the burden of proof for the existence of a defect at date of transfer of risk shall pass to the customer. For trading transactions with private and commercial customers with date of purchase date until 31.12.2021, Omtec is liable for the burden of proof for non-existence of a defect at date of transfer of risk in the first 6 months after the transfer of risk. Thereafter, the burden of proof for the existence of a defect at the date of transfer of risk shall pass to the customer.
15. The warranty only covers material or manufacturing defects. No warranty claims can be asserted for damage caused by improper handling or by non-compliance with the operating instructions.
16. Parts subject to wear and tear are not covered by warranty. Normal wear and tear customary in the product does not constitute a material defect and does not justify a claim under the warranty.
17. The warranty is invalid in the event of unauthorised opening of goods.
VI. Avoidance of the Contract
1. The customer is entitled to declare the contract avoided, if the respective applicable legal requirements are complied with, after he has threatened Omtec with avoidance of the contract in writing and an additional period of time of reasonable length for performance fixed in writing has expired to no avail. If the customer claims delivery of substitute goods, repair or other performance, he is bound for a reasonable period of time to the chosen remedy, without being able to exercise the right of declaring the contract avoided. In any event, the customer must give notice of avoidance of the contract within reasonable time in writing and to Omtec directly.
2. Without prejudice to his continuing legal rights, Omtec is entitled to avoid the contract in whole or in part if the customer objects to the application of these International Conditions of Sale, if on grounds for which Omtec is not responsible the written acknowledgement of the order by Omtec is received by the customer more than fourteen (14) calendar days after its date of issue, if insolvency proceedings relating to the assets of the customer are applied for, if Omtec through no fault of his own does not receive supplies properly or on time, or if for other reasons Omtec cannot be expected to fulfil his obligations by means which - taking into consideration his own interests and that of the customer as far as ascertainable and legitimate at the time of formation of the contract - are unreasonable, in particular in relation to the agreed counter-performance. Likewise, Omtec is entitled to avoid the contract after prior warning if the customer does not furnish Omtec with the data necessary to apply for customs formalities in due time, if the customer without providing a justifiable reason does not meet fundamental obligations due towards Omtec or towards third parties, if the customer has provided inaccurate information regarding his creditworthiness or to the extent that the cover given by a credit insurer is reduced on grounds for which Omtec is not responsible.
1. Without waiving the legal requirements, Omtec is only obliged to pay damages due to the violation of obligations resulting from the contract with the customer, the contractual negotiations carried on with the customer or the business relation with the customer in accordance with the following provisions:
a) The customer is required in the first instance to rely on other remedies and can only claim damages in the event of a continuing deficiency. The customer cannot claim damages as an alternative to other remedies.
b) Omtec is not liable for the conduct of suppliers, subcontractors, carriers, or freight-forwarders or for damages to which the customer has contributed. Neither is Omtec liable for impediments which occur, as a consequence of natural or political events, acts of state, industrial disputes, sabotage, accidents, terrorism, biological, physical or chemical processes or comparable circumstances and which cannot be controlled by Omtec with reasonable means. Moreover, Omtec is only liable to the extent that the customer proves that the executive bodies or members of staff of Omtec have deliberately or negligently breached contractual obligations owed to the customer.
c) In the event of liability, Omtec will compensate within the limits of lit. d) the losses of the customer to the extent that the customer proves that he has suffered an unavoidable loss caused by the breach of obligations owed to the customer by Omtec and foreseeable to Omtec, at the time of the formation of the contract in respect of the occurrence of the loss and its amount. Moreover, the customer is required to mitigate his loss as soon as a breach of contract is or ought to be known.
d) Omtec is not liable for loss of profit or damage to reputation. Moreover, the amount of damages for late or non-existent delivery is limited to 0.5 per cent for each full week of delay, up to a maximum of 5 per cent, and in case of remedies because of delivery of non-conforming goods and/or goods with a deficiency in title is limited to an amount of 200 per cent of the value of the non-conforming part of the contract. However, this subparagraph does not apply to injury of life, body, or health, to fraudulent concealment of the non-conformity or deficiency in title of the goods and to other breaches of contractual obligations due to intentional harm or gross negligence.
e) For breach of contractual, pre-contractual and/or obligations resulting from the business relation owed to the customer, Omtec is obliged to pay damages exclusively in accordance with the provisions of these International Conditions of Sale. Any recourse to concurrent bases of claim, in particular of a non-contractual nature, is excluded. Equally excluded is any recourse against Omtec’s company organs, employees, servants, members of staff, representatives and/or those employed by Omtec in the performance of his obligations on grounds of breach of contractual obligations owed by Omtec.
f) Insofar as the limitation period may not already have barred the claim, claims for damages brought by the customer are excluded after six (6) months beginning with the rejection of the claim for damages by Omtec.
2. Irrespective of continuing legal or contractual claims, the customer is obliged to pay damages to Omtec as follows:
a) In the event of delay in payment, the customer will pay the costs of judicial and extra-judicial means and proceedings, usual and accruing within the country and abroad, as well as (without evidence being necessary) interest at the rate applicable in 26316 Varel/Germany for unsecured short-term loans in the agreed currency, at least however interest at 8 per-cent points over the base rate of the German Federal Bank (Deutsche Bundesbank).
b) In the case of a failure to take delivery of the goods by the customer or of seriously late taking delivery of the goods by the customer, Omtec is entitled to claim damages without evidence being necessary of up to 15 per cent of the value of the goods to be delivered.
3. Within the bounds of what is legally possible as well as within what is usual in the trade, the customer is in his commercial relationships with his clients obliged to limit his liability both in principle and in amount.
VIII. Other Provisions
1. Title of the goods that have been delivered remains with Omtec until settlement of all claims existing against the customer. The allocation of risk as to price and performance in section III.-9. is not affected by the reservation of title.
2. The customer shall, without any demand being necessary, inform Omtec in writing if Omtec must observe any particular duties of reporting or registration or providing information or prior notification or retaining documents or any other requirements for access to market, under the provisions in force in the customer’s country or in the country where the goods are to be used. Moreover, the customer will monitor the delivered goods in the market and inform Omtec directly and in writing of any concern that the goods might pose a risk to third parties.
3. Without prejudice to Omtec's continuing claims, the customer will indemnify Omtec without limit against all claims of third parties which are brought against Omtec on the grounds of product liability or similar provisions, to the extent that the liability is based on circumstances which - such as, for example, the presentation of the product - were caused by the customer or other third parties without express written consent of Omtec. In particular, the indemnity also includes the reimbursement for expenses incurred by Omtec and is granted by the customer waiving further conditions or other objections, in particular without requiring compliance with control and recall obligations and waiving any defence of limitation.
4. In relation to pictures, drawings, calculations, and other documents as well as computer-software, which have been made available by Omtec in a material or electronic form, the latter reserves all proprietary rights, copyrights, other industrial property rights as well as know-how rights.
5. All communications, declarations, notices etc. are to be drawn up exclusively in German or English. Communications by means of fax or e-mail fulfil the requirement of being in writing.
6. The customer has a non-exclusive right to use the software delivered with the goods. The use of the software independently from the delivered goods or the passing on of the software to third parties is not permitted.
IX. General Basis of Contracts
1. The place of delivery results from section III.-5. of these International Conditions of Sale and applies likewise to the delivery of substitute goods or the repair of delivered goods. The place of payment and performance for all remaining obligations arising from the legal relationship between Omtec and the customer is 26316 Varel/Germany. These provisions also apply if Omtec assumes the costs of money remittance, renders performance for the customer somewhere else or payment is to be made in exchange of documents or goods or in the case of restitution of performances already rendered. The agreement of other Incoterms or of clauses such as "delivery free......." or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
2. The United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (UN Sales Convention / CISG) in the English version governs the legal relationship with the customer. The UN Sales Convention applies, above and beyond its own area of application, and regardless of reservations adopted by other states, to all contracts to which these International Conditions of Sale are to be applied according to the provisions of section I. Where standard terms of business are used, in case of doubt the Incoterms® 2010 of the International Chamber of Commerce apply taking into account the provisions stipulated in these International Conditions of Sale.
3. The formation of contract, including agreements as to the jurisdiction of courts and arbitrators, and the contractual rights and obligations of the parties, also including the liability for death or personal injury caused by the goods to any person and breach of pre-contractual and collateral obligations, as well as the interpretation are exclusively governed by the UN Sales Convention together with these International Conditions of Sale. Subject to differing provisions in these International Conditions of Sale, the rest of the legal relationship between the parties is governed by the Swiss Code of Obligations.
4. All contractual and non-contractual disputes as well as disputes under insolvency law, arising out of or in connection with contracts to which these International Conditions of Sale apply, including their validity, invalidity, violation or cancellation as well as other disputes arising out of the business relationship with the customer shall be finally resolved, without recourse to the ordinary courts of law, by arbitration according with those Rules of Arbitration of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtbarkeit e.V. , DIS) in force on the date when the notice of arbitration is received in accordance with these rules. The tribunal shall consist of three (3) arbitrators and, in case of disputes with a value in dispute of less than € 150,000, one (1) arbitrator. The language(s) used in the arbitral action shall be German and/or English. If this arbitration agreement is or should become invalid, the local and international exclusive jurisdiction of the courts having jurisdiction for D-26316 Varel is agreed instead. Omtec shall be entitled, instead of bringing an action to arbitration and irrespective of the validity of the arbitration agreement, also to bring an action to the court having jurisdiction for D-26316 Varel, to the courts at the place of business of the customer or other competent state courts. Omtec is not obliged to participate in a mediation procedure at a consumer arbitration board.
5. If provisions of these International Conditions of Sale should be or become partly or wholly ineffective, the remaining arrangements will continue to apply. The parties are bound to replace the ineffective provision with a legally valid provision, as close as possible to the commercial meaning and purpose of the ineffective provision.