OF SALE AND DELIVERY
of LEICA EYECARE GMBH
1. Scope, contract conclusion
1.1. These Terms & Conditions of Sale and Delivery (“T&C”) are applicable, even if no express notice is given of their applicability, to all goods and services delivered by Leica Eyecare GmbH (“LEICA Eyecare”) to its Contract Partner until the Contract Partner is informed by LEICA Eyecare of a new version of the T&C These T&C do not apply to consumers.
1.2. Quotations are not binding. Orders shall only become effective upon confirmation by LEICA Eyecare or upon full or partial delivery of the order by LEICA Eyecare.
1.3. Any conflicting or supplementary terms and conditions of the Contract Partner are excluded, unless LEICA Eyecare expressly agrees that they shall apply. This shall also apply if the Contract Partner has made reference to its own general terms and conditions of business.
2. Delivery, risk transfer, packaging, insurance
2.1. Delivery dates and delivery periods shall only be binding if they are specified as binding in the contract, the Contract Partner has promptly provided LEICA Eyecare with all the information or documents necessary for the performance of such a delivery and any agreed advance payments have been made in the manner and to the extent agreed between the parties. The delivery periods agreed between the parties shall commence on the order confirmation date.
2.2. Events that are unforeseen, unavoidable or beyond the control and influence of LEICA Eyecare and for which LEICA Eyecare is not responsible, such as force majeure, natural disasters, pandemics or industrial disputes, shall release Leica Deutschland from its obligation to deliver or perform on time for the duration of such events. Delivery and performance periods or dates shall be extended or postponed by the duration of such disruption and the other party shall be notified immediately of the occurrence of such disruption. Both parties have the right to cancel the contract if the end of such disruption is unforeseeable or if disruption lasts longer than two months.
2.3. If deliveries are delayed, the Contract Partner shall only be entitled to withdraw if (i) LEICA Eyecare is responsible for the delay and (ii) a reasonable grace period set by the Contract Partner has expired.
2.4. The risk passes to the Contract Partner when the goods are handed over to the carrier. If the Contract Partner defaults on acceptance, the risk passes to the Contract Partner at the time of default. In the event of default in acceptance, LEICA Eyecare is entitled (i) to store the goods or have them stored at the risk and expense of the Contract Partner and (ii) to withdraw from the contract in accordance with the provisions of the law.
2.5. In justified cases, LEICA Eyecare may make partial deliveries if this is reasonable for the Contract Partner.
2.6. Unless expressly agreed otherwise, the Contract Partner shall bear the costs of delivery in the form of payment of a flat rate for shipping per delivery day. The Contract Partner shall be informed of the amount of the flat rate either in the quotation or the order confirmation.
2.7. . LEICA Eyecare takes out insurance to cover the usual risks associated with transporting and shipping.
2.8. In the event of damage, the Contract Partner is obliged to obtain written confirmation of the damage or loss from the transport company, stating the quantity and nature of the goods; if the transport company refuses to provide such confirmation, the Contract Partner must refuse to accept delivery. If the damage is only discovered after the packaging has been opened, the goods must be left in the packaging in the condition in which they were found, and the Contract Partner must ask the transport company to certify the damage and take responsibility for it. The Contract Partner must immediately inform LEICA Eyecare of such damage and provide LEICA Eyecare with the documents necessary to settle the claim.
3. Prices, terms of payment
3.1. Unless expressly agreed otherwise, the applicable prices are the LEICA Eyecare list prices in force at the time the contract is concluded. Applicable prices are quoted in euro, net, ex works LEICA Eyecare warehouse, in accordance with INCOTERMS 2020, excluding packaging. All incidental costs, including shipping, insurance, transportation, import/export and other permits and certificates shall be borne by the Contract Partner. All taxes, fees and customs duties shall be borne by the Contract Partner.
3.2. Unless expressly agreed otherwise, invoices shall be payable without deduction within 30 days of invoice date after which the Contract Partner enters into default. Payments by the Contract Partner shall only be deemed to have been made when LEICA Eyecare has received the payment. The Contract Partner shall be granted a 2% discount for payments made within 14 days of the invoice date and a 3% discount for payments made by SEPA business-to-business direct debit.
3.3. LEICA Eyecare is entitled to issue partial invoices for partial deliveries in accordance with Clause 2.5.
3.4. The Contract Partner must make payments in euro.
3.5. . The Contract Partner’s customer number, invoice date and invoice number must be quoted on all payments.
3.6. The Contract Partner shall only be entitled to offset counterclaims if its counterclaim is undisputed, ripe for adjudication or legally established. The Contract Partner shall only be entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship and is undisputed, ripe for adjudication or has been legally established.
3.7. If the Contract Partner is in default, LEICA Eyecare is entitled to charge interest on the overdue payment at a rate of 9% above the base rate set by the European Central Bank. Interest payments do not relieve the Contract Partner of its obligation to pay as provided for in these Conditions. This shall not affect any further claims for damages arising from the delay.
3.8. If the Contract Partner enters into default with a payment obligation, or if LEICA Eyecare becomes aware of a risk that the Contract Partner will be unable to pay after conclusion of the contract, LEICA Eyecare is entitled to make any outstanding deliveries dependent on advance payment or the provision of collateral. If, after a reasonable period of grace, the advance payments have not been made or the collateral has not been provided, LEICA Eyecare may withdraw from individual or all affected contracts in whole or in part. LEICA Eyecare reserves the right to assert additional rights.
4. Retention of title
The goods remain the property of LEICA Eyecare until full payment of the purchase price and all ancillary costs is made, including (but not limited to) bank charges and charges for cheques or bills of exchange. If the national law to which the Contract Partner is subject does not recognise retention of title, but grants LEICA Eyecare an equivalent right as set out below, then LEICA Eyecare is entitled to assert such other available rights to safeguard ownership of the goods, and the Contract Partner shall take all measures to grant LEICA Eyecare such rights immediately for safeguarding purposes. The Contract Partner is obliged to assist in all necessary and expedient measures, such as registration, notification, etc., in relation to the validity and enforceability of such rights for safeguarding purposes.
4.2. By virtue of its processing the Contract Partner shall not acquire ownership of the Goods produced in whole or in part (“Goods”); the processing shall be carried out free of charge exclusively for LEICA Eyecare as manufacturer within the meaning of Sec. 950 German Civil Code (BGB). Should the retention of title of LEICA Eyecare nevertheless lapse as a result of any circumstances, the Contract Partner and LEICA Eyecare hereby agree that title to the Goods shall be transferred to LEICA Eyecare upon their processing, LEICA Eyecare shall accept such transfer of title and the Contract Partner shall remain the unremunerated custodian of the Goods.
4.3. Until payment in full of the purchase price and all ancillary costs, goods subject to retention of title may be sold in the ordinary course of business, but may not be pledged or assigned as collateral, nor transferred, pledged or otherwise encumbered with the third-party rights. In the event of their sale, the Contract Partner assigns to LEICA Eyecare the purchase price realised up to the amount owed to LEICA Eyecare by the Contract Partner; LEICA Eyecare accepts this assignment. The Contract Partner is revocably authorised to collect the trade receivables assigned to LEICA Eyecare in its own name on a fiduciary basis. LEICA Eyecare may revoke this authorisation and the right to resell the goods if the Contract Partner is in breach of material obligations, such as its payment obligations.
4.4. The Contract Partner must inform LEICA Eyecare immediately of the commencement of composition or insolvency proceedings, seizure or other measures taken by third parties in relation to the Goods subject to the retention of title and must provide LEICA Eyecare on request with information on said Goods or on the trade receivables assigned to LEICA Eyecare. At the same time, the Contract Partner shall inform third parties of the retention of title of LEICA Eyecare. The Contract Partner shall bear the costs incurred by the defence against seizure or claims by third parties.
4.5. If the Contract Partner is in default of material obligations, such as payment obligations, and if LEICA Eyecare withdraws from the contract, LEICA Eyecare may, without prejudice to any other rights, demand the return of the Goods subject to retention of title and use them for the purpose of otherwise satisfying due claims against the Contract Partner. In such a case, the Contract Partner must grant LEICA Eyecare or its agents immediate access to the goods subject to retention of title and return them.
4.6. . If the realisable value of the collateral exceeds all the claims by LEICA Eyecare to be secured by more than 10%, the Contract Partner is entitled to demand the release of collateral to the extent of such excess.
5. Rights of the Contract Partner in the event of defects
5.1. The goods supplied by LEICA Eyecare are manufactured and inspected in accordance with specific quality specifications.
5.2. LEICA Eyecare warrants that the goods are free from defects at the time of transfer of risk.
5.3. The Contract Partner shall only be entitled to rights in respect of defects if the Contract Partner has inspected the goods immediately upon receipt and has notified LEICA Eyecare in writing of any defects within ten working days of receipt of the goods. If the defect could not be detected during a normal inspection, LEICA Eyecare must be notified in writing of the defect within ten working days of its discovery.
5.4. At the request of LEICA Eyecare, the Contract Partner must immediately return the rejected goods to LEICA Eyecare. If it transpires that the Contract Partner’s report of defects was without basis, and that the Contract Partner so noticed, or through negligence failed to so notice, before the report of defects was made, then the Contract Partner is obliged to reimburse LEICA Eyecare for all such resulting expenses as travel or shipping costs.
5.5. LEICA Eyecare shall, at its discretion, remedy defects by repairing the defect at no cost to the Contract Partner or by supplying a defect-free replacement free of charge (collectively referred to as “subsequent performance”). The Contract Partner shall grant LEICA Eyecare the reasonable time and opportunity necessary for such subsequent performance. Parts replaced by LEICA Eyecare must be returned to LEICA Eyecare on request.
5.6 . The Contract Partner’s rights in respect of defects are excluded if the defect is due to natural wear or to circumstances for which the Contract Partner is responsible, such as (i) improper handling, repair or alteration of the goods by the Contract Partner, end customers or third parties, (ii) incorrect use (e.g. excessive use) or (iii) the use of unsuitable accessories, tools or replacement parts.
5.7. If the supplementary performance fails, is unreasonable for the Contract Partner or has been refused by LEICA Eyecare in accordance with Sec. 439 (3) German Civil Code (BGB), the Contract Partner may, at its discretion and in accordance with the statutory provisions, withdraw from the contract or reduce the purchase price and/or claim damages in accordance with Clause 6 or reimbursement of its futile expenses.
5.8. The limitation period for the rights of the Contract Partner in respect of defects is twelve months from delivery of the goods to the Contract Partner.
5.9. The terms and conditions which apply to the original goods also apply to replacements.
6.1. The liability of LEICA Eyecare for damages shall be limited as follows:
a) For breach of material contractual obligations, the liability of LEICA Eyecare shall be limited to the amount of damage typically foreseeable at the time the contract is concluded. LEICA Eyecare is not liable for the breach of non-material contractual obligations.
b) The foregoing limitation of liability shall not apply in the case of damage caused by intent or gross negligence, culpably caused bodily injury, liability under the Product Liability Act (ProdHaftG) or in the case of other compelling circumstances giving rise to liability. It shall also not apply if and insofar as LEICA Eyecare has given a warranty.
6.2. The Contract Partner is obliged to take reasonable measures to prevent and minimise damage.
7. Return of goods
7.1. Goods that are returned must be accompanied by the Contract Partner’s customer number and the invoice date and invoice number.
7.2. LEICA Eyecare will not be able to issue a credit note or accept a claim for Goods returned without the Contract Partner’s customer number, and the invoice date and invoice number. LEICA Eyecare shall return such Goods to the Contract Partner at the Contract Partner’s expense and risk.
8. Right of termination
If payments are suspended or if composition or insolvency proceedings are opened, LEICA Eyecare is entitled to withdraw from the contract, notwithstanding having granted a reasonable period of grace if the situation is remediable. Further rights remain unaffected.
9. Place of performance
Place of performance for deliveries is Heuchelheim, Germany.
10. Promotional materials, trademarks
10.1. The disclosure of promotional materials is not permitted in any circumstances. LEICA Eyecare reserves the right to demand the return of promotional materials at any time.
10.2. Any use of LEICA Eyecare trademarks (whether or not LEICA Eyecare is the owner or licensee of such trademark) requires the prior express written consent of LEICA Eyecare. The concept for the intended use must be included with the request for authorisation.
11. Jurisdiction, applicable law
11.1. The exclusive place of jurisdiction for all disputes arising out of or in connection with this contract or any purchase contracts entered into in performance thereof shall be the registered office of LEICA Eyecare. However, LEICA Eyecare shall also be entitled to institute legal proceedings before the court with jurisdiction over the registered office of the Contract Partner.
11.2. These T&C and all contracts entered into in accordance with these and Conditions shall be governed by German law under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
12. General Conditions
12.1. The Contract Partner shall comply with all relevant laws and regulations, including anti-corruption laws and export control laws, in relation to the object of the contract.
12.2. . If any part of these T&C is found to be invalid or unenforceable, it shall not affect the validity of the remaining T&C.
12.3. Amendments and supplements to the contract and/or to these T&C or to ancillary agreements must be made in writing. The same applies to any change to the written form requirement.
Heuchelheim, Germany, January 2023