General Terms and Conditions

General Terms and Conditions of OpenCelium GmbH – hereinafter referred to as “OpenCelium” – as at 23.09.2023

1.1.1 These Terms and Conditions shall apply to the present business relationship between OpenCelium and the contracting party, unless otherwise agreed in the individual case.

1.1.2 All deliveries, services, offers, etc. provided by OpenCelium shall be subject exclusively to these Terms and Conditions. These shall also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed to have been accepted at the latest upon receipt of the goods or the service. Counter-confirmations of the contractual partner with reference to his terms and conditions are hereby contradicted.

1.2 Prices, due date and payment

1.2.1 Unless otherwise stated, OpenCelium shall be bound by the prices contained in its offers for 30 days from the date of the offer.

Otherwise, the prices stated in the order confirmation of OpenCelium shall be decisive.

1.2.2 The respective statutory value added tax shall be added to the prices stated.

1.2.3 Additional deliveries and services shall be charged separately.

1.2.4 The invoice amount shall become due upon receipt of the invoice and shall be paid immediately without deduction. In case of default, OpenCelium shall charge default interest in the amount of the statutory provisions.

OpenCelium shall be at liberty to prove a higher damage caused by delay, just as the contracting party shall be at liberty to prove that a lower burden was incurred.

1.2.5 OpenCelium shall be entitled, despite any provisions of the contracting party to the contrary, to set off payments first against the contracting party’s older debts and shall inform the contracting party about the type of set-off effected. If costs and interest have already been incurred, OpenCelium shall be entitled to credit the payment first against the costs, then against the interest and finally against the main performance.

1.2.6 OpenCelium expressly reserves the right to reject checks or bills of exchange. Acceptance is always on account of payment only. Discount and bill charges shall be borne by the contracting party and are due immediately. A payment shall only be deemed to have been made when OpenCelium can dispose of the amount. In the case of checks, payment shall be deemed made only when the check is cashed.

1.2.7 OpenCelium employees are not authorized to collect cash. Payments with discharging effect may only be made directly to OpenCelium or to a bank or postal check account specified by OpenCelium.

1.2.8 If OpenCelium becomes aware of circumstances that call into question the creditworthiness of the contracting party, in particular if a check is not honored or payments are stopped, OpenCelium shall be entitled to call due the entire remaining debt, even if OpenCelium has accepted checks. In this case, OpenCelium shall also be entitled to demand advance payments or the provision of security.

1.3 Offsetting

The contractual partner shall only be entitled to set-off, retention or reduction, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. However, the contractual partner shall also be entitled to withhold payment on the basis of counterclaims arising from the same contractual relationship.

1.4 Liability

1.4.1 Claims for damages shall be excluded irrespective of the type of breach of duty, including tortious acts, except in cases of intent or gross negligence.

1.4.2 In the event of a breach of material contractual obligations, OpenCelium shall be liable for any negligence, but only up to the amount of the foreseeable direct damage typical for the contract. Claims for loss of profit, saved expenses, from claims for damages by third parties as well as for other indirect and consequential damages cannot be demanded, unless a quality feature guaranteed by OpenCelium has the specific purpose of protecting the contracting party against such damages.

1.4.3 The limitations and exclusions of liability under 1.4.1 and 1.4.2 shall not apply to claims arising from fraudulent conduct by OpenCelium, to claims under the Product Liability Act and to damage arising from injury to life, body or health.

1.4.4 Insofar as OpenCelium’s liability is excluded or limited, this shall also apply to employees, representatives and vicarious agents of OpenCelium.

1.5 Secrecy

1.5.1 Unless expressly agreed otherwise in writing, the information submitted to OpenCelium in connection with orders or inquiries shall not be deemed confidential.

1.5.2 The employees of OpenCelium shall be obliged to keep confidential business matters or matters requiring secrecy.

1.6 Application of law, place of jurisdiction, severability clause

1.6.1 These Terms and Conditions and the entire legal relationship between OpenCelium and the contracting party shall be governed by the laws of the Federal Republic of Germany. Provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.

1.6.2 Amendments and supplements to these Terms and Conditions as well as to all contracts between OpenCelium and the contracting party shall require written confirmation by OpenCelium to be effective. This also applies to the waiver of the written form requirement.

1.6.3 If the business partner is a merchant, a legal entity under public law or a special fund under public law, Munich shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. To the extent permitted by law, the place of performance shall be OpenCelium’s registered office.

1.6.4 Should any provision of these Terms and Conditions or of the underlying contract be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. Rather, the contracting parties shall cooperate to replace the invalid or unenforceable provision with a legally permissible and valid provision or an enforceable provision that is suitable to achieve the success intended by the invalid or unenforceable provision. The same applies to the filling of contractual gaps.

2.1 Offer, conclusion of contract, prices

2.1.1 The offers of OpenCelium are subject to change and non-binding. Declarations of acceptance and all orders must be confirmed by OpenCelium in writing or by telex in order to be legally effective.

2.1.2 OpenCelium’s sales employees are not authorized to make verbal collateral agreements or to give verbal assurances that go beyond the content of the written contract.

2.1.3 Drawings, illustrations, dimensions, weights or other performance data shall only be binding if this is expressly agreed in writing.

2.1.4 The prices quoted are ex warehouse including normal packaging, unless otherwise stated.

2.2 Delivery, delivery times and transfer of risk

2.2.1 Binding delivery dates or deadlines must be in writing.

2.2.2 In the event of a delay in delivery for which OpenCelium is responsible, the duration of the period of grace to be set by the contracting party by law shall be fixed at two weeks, which shall commence upon receipt by OpenCelium of the notice of the period of grace.

2.2.3 OpenCelium shall not be responsible for delays in delivery and performance due to force majeure and due to events which make delivery substantially more difficult or impossible for OpenCelium not only temporarily – this includes in particular strike, lockout, official orders, etc., even if they occur at suppliers of OpenCelium or their sub-suppliers – even in case of bindingly agreed periods and dates. They entitle OpenCelium to postpone the delivery or service by the duration of the impediment plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled.

2.2.4 OpenCelium shall be entitled to make partial deliveries and render partial services at any time, unless the partial delivery or partial service is of no interest to the contracting party.

2.2.5 If the contracting party is in default of acceptance, OpenCelium shall be entitled to claim compensation for the damage incurred by it; upon occurrence of the default of acceptance, the risk of accidental deterioration and accidental loss shall pass to the Buyer.

2.2.6 The risk shall pass to the contracting party as soon as the consignment has been handed over to the person performing the transport or has left OpenCelium’s warehouse for the purpose of shipment. If shipment is delayed at the request of the contracting party, the risk shall pass to the contracting party upon notification of readiness for shipment.

2.3 Rights of the contractual partner due to defects

2.3.1 The products shall be delivered free of manufacturing and material defects; the period for asserting claims for defects and further claims shall be one year from delivery of the products if the contracting party is a merchant, two years if the contracting party is a consumer. In case of sale of used goods, any warranty is excluded if the contracting party is an entrepreneur, if it is a consumer, the period is one year.

2.3.2 If operating or maintenance instructions of OpenCelium or otherwise enclosed are not followed, modifications are made to the products, parts are exchanged or consumables are used that do not comply with the original specifications, claims due to defects of the products shall be forfeited if the contracting party does not refute a correspondingly substantiated claim that only one of these circumstances caused the defect.

2.3.3 If the contracting party is a merchant, it shall notify OpenCelium of any defects in writing without undue delay, however, no later than within one week after receipt of the delivery item. Defects which cannot be discovered within this period even after careful inspection shall be notified to OpenCelium in writing immediately after discovery.

2.3.4 In the event of a notification by the contracting party that the sold items have a defect, OpenCelium shall demand, at its option and at its expense, that – the defective part or device is sent to OpenCelium for repair and subsequent return;

– the contracting party keeps the defective part or device ready and a service technician from OpenCelium is sent to the contracting party to carry out the repair;

– the supplementary performance takes place by subsequent delivery of a defect-free item. Multiple subsequent deliveries are permissible.

2.3.5 If the contracting party requests that rectification work be carried out at a location determined by it, OpenCelium may comply with this request, whereby replaced parts shall not be charged, while working time and travel expenses shall be paid at OpenCelium’s standard rates.

2.3.6 If two attempts at subsequent performance fail, the contracting party may, at its option, reduce the purchase price appropriately or withdraw from the contract.

2.3.7 Liability for normal wear and tear is excluded.

2.3.8 Ansprüche gegen OpenCelium wegen Mängeln stehen nur dem unmittelbaren Vertragspartner zu und sind nicht abtretbar.

2.4 Retention of title

2.4.1 OpenCelium shall retain title to the delivered goods (reserved goods) until all claims to which OpenCelium is entitled against the contracting party now or in the future for any legal reason have been satisfied. 2.4.1 OpenCelium shall retain title to the delivered goods (reserved goods) until all claims to which OpenCelium is entitled against the contracting party now or in the future for any legal reason have been satisfied.

2.4.2 In case of third party access to the Reserved Goods, in particular seizure, the contracting party shall point out OpenCelium’s ownership and notify OpenCelium immediately so that OpenCelium can enforce its ownership rights. Insofar as the third party is not in a position to reimburse OpenCelium for the judicial or extrajudicial costs incurred in this connection, the contracting party shall be liable for such costs.

2.4.3 In the event of a breach of contract by the contracting party – in particular in the event of default in payment – OpenCelium shall be entitled to withdraw from the contract and to demand the return of the Reserved Goods.

2.4.4 The goods shall remain the property of OpenCelium. Processing or transformation shall always be carried out for OpenCelium, but without any obligation for it. If the (co-)ownership of OpenCelium expires due to combination, it is already now agreed that the (co-)ownership of the contracting party in the uniform item shall pass to OpenCelium pro rata (invoice value). The contracting party shall keep OpenCelium’s (co-)ownership free of charge.

2.4.5 The contracting party shall be entitled to process and sell the goods encumbered with OpenCelium’s property rights in the ordinary course of business as long as it is not in default. Pledges or transfers of ownership by way of security are not permitted. The contracting party hereby assigns to OpenCelium by way of security all claims arising from the resale or any other legal ground (insurance, tort) with respect to these goods (including all balance claims from current account). OpenCelium revocably authorizes him to collect the claims assigned to OpenCelium for its account in his own name. This authorization to collect may only be revoked if the contracting party fails to properly meet its payment obligations.