GENERAL TERMS AND CONDITIONS

1. General Provisions

These general sales and delivery terms apply to all contracts concluded between Fritz Ruck GmbH Ophthalmologische Systeme GmbH, Eschweiler (hereinafter also referred to as „Ruck“), and the customer, as well as to all other deliveries and services. They also apply to all future business relations with the customer, even if they are not expressly agreed upon again. By placing an order, or at the latest by accepting the goods or services, the customer acknowledges the following conditions. Customer conditions that are not expressly recognized by Ruck are non-binding for Ruck, even if Ruck does not explicitly object to them. Only Ruck’s authorized officers and managing directors are authorized to make oral changes to a contract or to agree on terms that deviate from these conditions.

2. Offers and Conclusion of Contract

Offers from Ruck are non-binding and without obligation. The customer is bound to their order (purchase order) for 8 weeks from the time it is received by Ruck. A contract is concluded when Ruck confirms acceptance of the offer in writing or executes the order. Issuance of an invoice is equivalent to an order confirmation. In the interest of technical and medical advancement, Ruck reserves the right to make design and execution changes even after acceptance of the order, provided this is reasonable for the customer.

3. Prices

The price list valid at the time of the contract conclusion applies, subject to errors and misprints, plus statutory value-added tax. Prices are in Euros. If Ruck has exceptionally agreed on a fixed price with the buyer, Ruck is entitled to adjust the agreed price accordingly if at least four months elapse between the order and the delivery date, and during this period there is a significant change in either Ruck’s labor, transport, and/or material costs, or the sales price of Ruck’s suppliers, or if the amount of taxes to be paid by Ruck has significantly changed due to legal regulations or ordinances, and these changes have led to a changed cost or tax burden for Ruck at the end of the 4-month period. Simultaneous increases and decreases in the various costs and taxes shall be mutually offset in this calculation. Only if a significant change has occurred as a result is Ruck entitled to adjust the price accordingly, disclosing the cost development. In this case, the customer may withdraw from the contract exceptionally.

4. Payments/Payment Default/Set-Off

Our invoices are to be paid within 30 days of the invoice date, without any deductions. Ruck may refuse to accept payment instructions, checks, and promissory notes at any time. If accepted, it is done solely for the purpose of performance. All related bank charges are the responsibility of the customer. Performance occurs only when the debt amount is credited to Ruck’s account. Deductions for postage, transfer, or similar fees are excluded. Ruck is entitled, even for partial deliveries, to request advance payment at any time.

If the customer defaults on payments, Ruck is entitled to charge default interest of up to 10% above the base rate according to § 247 BGB (German Civil Code). Ruck reserves the right to claim additional rights and other damages in this case. The customer is entitled to provide evidence of a lower default damage to Ruck.

If the customer defaults on a payment obligation amounting to at least 15% of all, including non-due claims, Ruck’s claims become immediately due. All payment deferrals – including those for accepted bills of exchange – will end. During the period of default as described above, Ruck is entitled to make the delivery of goods dependent on a down payment equal to the respective value of the goods. Ruck may suspend further processing of the order and make its continuation contingent upon the customer providing security for the total order value. If the customer does not provide corresponding security within a reasonable period set by Ruck, Ruck is entitled to withdraw from the contract and claim damages instead of performance.

If the customer defaults on a payment obligation that does not reach the afore mentioned threshold, only the statutory regulations apply. The buyer may only set off against undisputed, legally established, or disputed but ready-to-be-decided claims. A right of retention is only valid insofar as it is based on the same contractual relationship. Ruck is entitled to assign claims arising from its business relationships.

5. Delivery

Delivery dates are only binding if they are confirmed. Freight, postage, packaging, and insurance, even for partial deliveries, are charged separately. In the event of our failure to deliver or a delay in delivery, the customer may declare withdrawal from the contract after setting a reasonable grace period, which should not be less than one month. The assertion of a claim for damages is limited according to section 13 of these terms and conditions. Events of force majeure, particularly due to strikes, lockouts, operational disruptions, and a shortage of suitable labor, raw materials, or supplies of any kind, traffic disruptions, etc., entitle Ruck to postpone delivery for the duration of the hindrance and/or to withdraw from the contract if delivery becomes impossible. Partial deliveries may be made by Ruck and must be accepted by the customer.

6. Transfer of Risk and Shipping

The place of performance is Ruck’s business location. The customer has the right to inspect the contractual item at the agreed place of acceptance within eight days of receiving a notice of readiness and is obligated to accept the item within this period. If the customer fails to do so, they are in default of acceptance. Upon default of acceptance, the risk of accidental loss and accidental deterioration passes to the customer. If Ruck ships the sold item to a location other than the place of performance at the request of the buyer, the risk passes to the customer as soon as the seller hands over the item to the carrier, freight forwarder, or the person or institution otherwise designated to carry out the shipment. This applies even if Ruck has assumed the transport costs. The conclusion of transport or other insurance remains the responsibility of the customer. If the customer does not accept the contractual item within fourteen days of receiving the notice of readiness, Ruck may set a further deadline of fourteen days for the customer in writing, with the declaration that Ruck will refuse acceptance after this period expires. After the unsuccessful expiration of this additional period, Ruck is entitled to withdraw from the contract by written declaration and/or to claim damages. Setting a grace period is not necessary if the customer has seriously and definitively refused acceptance or is evidently unable to pay the contract price even within this time. If Ruck claims damages, this amounts to 25% of the order value unless Ruck proves a higher or the customer proves a lower damage. If Ruck does not exercise its right to withdraw from the contract and/or claim damages, Ruck may freely dispose of the contractual item and, in its place, deliver a similar contractual item under the contract conditions.

7. Retention of Title

Delivered goods remain the property of Ruck until the purchase price is fully paid and all claims arising from the business relationship are settled. Any processing or transformation of the goods subject to retention of title by the customer is always carried out for Ruck. If the goods subject to retention of title are processed or mixed with other items not belonging to Ruck, Ruck acquires co-ownership of the new item in proportion to the value of the goods subject to retention of title to the other processed items at the time of processing or mixing. If the customer’s item is considered the main item, the customer must transfer co-ownership to Ruck proportionally. The customer then stores the item free of charge for Ruck. The buyer is obliged to inform Ruck on request about the scope and location of the goods subject to retention of title in their possession. The buyer may resell goods subject to retention of title in the ordinary course of business under retention of title. Without Ruck’s approval, the customer may not pledge the goods subject to retention of title or transfer them as security. The customer hereby assigns to Ruck, by way of security, all claims arising from the resale or any other legal reason (e.g., insurance, tort) regarding the goods subject to retention of title, including all balance claims from the current account, in full. Ruck authorizes the customer to collect the claims assigned to Ruck for Ruck’s account in their own name, revocably. Ruck may revoke the customer’s authority to resell the goods subject to retention of title and to collect the assigned claim if it becomes apparent that Ruck’s claim to the consideration is at risk due to the customer’s lack of ability to perform. Ruck is then entitled to request information about the goods recipient, to inform them of the assignment of the claim, and to collect the customer’s claim against the goods recipient. If the customer does not settle all due claims after a reminder in the event of payment default, Ruck is entitled, without prejudice to further rights, to demand the immediate return of all goods subject to retention of title that are still in Ruck’s ownership. The customer is not entitled to retain in this case. The customer already grants Ruck the irrevocable right to immediately collect the goods subject to retention of title and, for this purpose, to enter the customer’s business and storage premises without hindrance during normal business hours. Ruck clarifies that the exercise of these rights is solely for security purposes and does not constitute a withdrawal from the contract. If the value of the securities provided to Ruck exceeds the total amount of Ruck’s claims by more than 20%, the customer can request the release of securities at Ruck’s discretion.

8. Complaints

(This provision does not apply to consumers as defined by § 13 BGB) The customer is obligated to inspect delivered goods immediately upon receipt. Ruck will only consider complaints if the customer notifies Ruck in writing without delay. Hidden defects must also be reported immediately in writing. The key factor for meeting the deadlines is the receipt of the notice by Ruck. If these deadlines are missed, the goods are considered approved, and warranty claims are excluded. Complaints do not affect the due date of the purchase price. In the event of loss or damage to the delivery/goods during transport, a certificate from the relevant transport company must be submitted.

9. Warranty

The customer is generally entitled to the statutory warranty rights. The limitation period for these warranty rights is one year if the customer is a business, but two years if the customer is a consumer. For reusable accessories exposed to disinfection or sterilization processes, the warranty is only 6 months. The warranty expires if third parties make interventions or repairs without express permission. Ruck does not provide a warranty for defects caused by improper handling by the buyer, especially during transport and storage, or by improper use of the item. The agreement on quality characteristics as well as the assumption of quality and durability guarantees require express agreement. If a delivery of goods is defective, Ruck is generally only obligated to remedy the defect or deliver a replacement free of defects (supplementary performance). The buyer is entitled to other warranty claims, in particular the right to withdraw from the contract or reduce the purchase price, only if Ruck does not remedy the defect or deliver defect-free goods within a reasonable period set by the buyer. Ruck is not obligated to provide supplementary performance and/or warranty as long as the buyer is in default of fulfilling essential contractual obligations. This does not apply if the buyer has a right to refuse performance or retain payment. The buyer can withhold payment or assert other rights to refuse performance due to defects only to the extent that the amount withheld is reasonably proportionate to the extent of the defect. Ruck may refuse the type of supplementary performance chosen by the customer if it is only possible at disproportionately high costs, notwithstanding § 275 paragraphs 2 and 3 BGB. In this case, the customer’s claim is limited to the other type of supplementary performance. Ruck’s right to refuse supplementary performance due to disproportionately high costs remains unaffected under these circumstances. If the supplementary performance fails, or if Ruck is unwilling or unable to perform it, the customer may withdraw from the contract or reduce the purchase price. The supplementary performance is considered failed after the second unsuccessful attempt unless otherwise indicated by the nature of the item, the defect, or other circumstances. In the case of a minor breach of contract, particularly with only minor defects, the customer does not have the right to withdraw. If the customer also asserts a claim for damages due to a legal or material defect, the customer is only entitled to compensation according to § 13 of these terms and conditions. Warranty obligations do not exist if the defects that have occurred are causally related to the customer’s failure to report a defect in accordance with section 8 and to give prompt opportunity for supplementary performance or if the contractual item has been improperly handled or overused, the customer has not followed our operating or maintenance instructions, or the contractual item has been previously repaired, maintained, or serviced in another operation than ours or an authorized one, or if parts have been installed in the contractual item or parts or accessories have been used with the contractual item that we have not approved, or if the contractual item has been otherwise modified by the customer in a way not approved by us. These provisions do not apply to quality and durability guarantees or in cases of fraudulent concealment of a defect or fraudulent misrepresentation of a non-existent quality. In the event that a guarantee is not met, Ruck’s liability is limited to the replacement of foreseeable and direct damages that were intended to be prevented by the guarantee; unless the guarantee explicitly covers the replacement of further damages. The assignment of warranty claims requires the express prior consent of Ruck.

10. Return of Non-Defective Goods

A right to return goods is generally excluded. If a return is accepted in individual cases, it only applies to new and originally packaged goods. Returns always require prior coordination with Ruck. Goods that Ruck no longer carries in its program or that were manufactured or procured at the special request of the customer will not be accepted, even in exceptional cases. If Ruck agrees to a return, 20% of the value of the goods will be charged as a verification and handling fee.

11. Repair and Service Orders

Cost estimates are provided without any guarantee of their accuracy. They are also subject to a fee. Our current service prices apply.

12. Repair Location

Repairs are generally carried out at our premises or at appropriately authorized facilities. If the customer requests that the repair be carried out on-site, they must cover the associated costs. Costs for shipping and packaging for repairs outside of warranty cases are the responsibility of the customer.

13. Liability

13.1. We are liable according to legal regulations; however, our liability for damages is limited as follows:

     13.1.1. In cases of simple negligence, liability is limited to damages for injury to life, body, or health.

     13.1.2. In cases of intentional misconduct by simple vicarious agents or gross negligence by legal representatives, employees, or vicarious agents, liability is limited to the foreseeable, typically occurring damage. This limitation does not apply to damages resulting from injury to life, body, or health, nor does it apply to consumers.

     13.1.3. In the event of a breach of a cardinal obligation, we are also liable in cases of simple negligence, but this liability is limited as described under 13.1.2. A cardinal obligation is one whose fulfillment is essential for the proper execution of the contract and on which the contractual partner regularly relies.

13.2. The mandatory provisions of the Product Liability Act and liability in cases of guarantees remain unaffected. We do not assume any further liability than stated above for any other breach of duty, particularly for culpability at the time of contract conclusion, delay, or tort.

13.3. Our legal representatives, senior employees, and ordinary employees are not liable beyond our own liability.

14. Confidentiality and Trademark Protection

Offer, sales, and other documents, including image, sound, and other data carriers, may not be handed over to third parties or unauthorized persons, either in original or copy, nor used in any way that harms our interests, without our permission. Furthermore, the conditions granted in an offer, particularly prices, may not be disclosed to third parties, whether in writing or orally. The customer is not permitted to use or otherwise employ the name „Fritz Ruck,“ the trademark „Fritz Ruck,“ the logo, or any other signs or designations of Ruck without our written permission.

15. Withdrawal

Until the shipment of the goods, we are entitled to withdraw from the contract if the customer significantly breaches the contract, experiences a substantial deterioration in their financial situation, or if there is a significant change in the circumstances underlying the contract.

16. International Deliveries

Due to existing international agreements, products purchased from us may only be exported with our explicit written consent.

17. Place of Performance and Jurisdiction

The place of performance for all contractual and non-contractual claims is Aachen. For delivery and performance to foreign countries or to foreign customers and for all types of contracts, only German law applies. The provisions of the UN Sales Convention (CISG) and the referral norms of German international private law concerning contractual obligations are excluded. If the customer is a merchant, legal entity, or special fund under public law, Aachen is the exclusive place of jurisdiction. However, Ruck is entitled to sue the customer at its own place of business.

18. Data

We are entitled to process data related to business relationships or in connection with them concerning the customer, whether these data come from the customer or from third parties, in accordance with the provisions of the Federal Data Protection Act. The invalidity of individual points of the contract with the customer does not affect the validity of the remaining provisions.

 

Eschweiler, October 2023 – Fritz Ruck GmbH