General Terms & Conditions
General terms and conditions of:
Orion Additive Manufacturing GmbH
Bandelstrasse 24
10559 Berlin
Germany
as of 2021.10.14
§ 1 Validity
(1) All deliveries, services and offers are made exclusively on the basis of these general terms of delivery. These are part of all contracts that Orion Additive Manufacturing GmbH, hereinafter referred to as ORION, concludes with the customer for the deliveries or services it offers. They also apply to all future deliveries, services and offers to the customer, even if they are not separately agreed. Deviating, conflicting or supplementary general delivery conditions are not part of the contract, unless their validity is expressly agreed in writing.
(2) Terms and conditions of the customer or third parties do not apply, even if ORION does not separately object to their validity in individual cases. Even if ORION refers to a letter that contains or refers to the terms and conditions of the customer or a third party, this does not constitute consent to the validity of those terms and conditions.
§ 2 Offer and conclusion of contract
(1) All offers from ORION are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The presentation of our range on the Internet does not represent an offer in the sense of §§ 145 ff. BGB. By ordering by e-mail, fax or telephone, the customer makes a binding declaration to purchase the goods ordered. If the customer orders electronically, ORION will immediately confirm receipt of the order. The confirmation of receipt does not yet constitute a binding acceptance of the order. ORION can accept orders within fourteen days of receipt. The acceptance can be declared either in writing or by delivering the goods to the customer.
(2) Acceptance is subject to the reservation of the availability of the goods, in particular subject to correct and timely self-delivery by the suppliers of ORION, provided that ORION is not responsible for the non-delivery. The customer will be informed immediately about the unavailability of the goods. The consideration already paid will be reimbursed immediately.
(3) Information provided by ORION on the subject of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and images) are only approximate unless the Usability for the contractually intended purpose requires an exact match. They are not guaranteed characteristics, but rather descriptions or identifications of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with parts of equal value, are permissible as long as they do not impair the usability for the contractually intended purpose.
(4) Complaints procedure via online dispute resolution for consumers (OS): http://ec.europa.eu/consumers/odr/ . We are not willing and not obliged to take part in a dispute settlement procedure before a consumer arbitration board.
§ 3 Prices and Payment
(1) The prices apply to the scope of services and delivery listed in the order confirmations. Additional or special services will be charged separately. The prices are ex works plus packaging and the applicable statutory value added tax. In WEB shops, which are aimed exclusively at consumers within the meaning of Section 13, BGB, the prices are ex works plus packaging and shipping costs.
(2) Insofar as the agreed prices are based on the list prices of ORION and the delivery is only to take place more than four months after the conclusion of the contract, the list prices of ORION valid at the time of delivery apply (less an agreed percentage or fixed discount).
(3) Invoice amounts are to be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of receipt by ORION is decisive for the date of payment. Checks are only valid as payment after they have been cashed. If the customer does not pay by the due date, the outstanding amounts are subject to interest at 5% pa from the due date; the assertion of higher interest and further damage in the event of default remains unaffected.
(4) Offsetting against counterclaims of the customer or the withholding of payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established.
(5) ORION is entitled to carry out or provide outstanding deliveries or services only against advance payment or security if it becomes aware of circumstances after the conclusion of the contract which are likely to significantly reduce the creditworthiness of the customer and through which the payment of the open claims of ORION by the customer from the respective contractual relationship (including from other individual orders for which the same framework agreement applies) is at risk.
(6) Purchase on account via our external partner Billpay
When purchasing on account, the invoice amount is due on the calendar day stated in the invoice (20 or 30 calendar days after the invoice date) for payment to our external partner Billpay GmbH [more information at https://www.billpay.de/endkunden/]. The payment method purchase on account via Billpay does not exist for all offers and requires, among other things, a successful credit check by Billpay GmbH. If the customer is allowed to purchase on account via Billpay for certain offers after checking the creditworthiness, the processing of the payment takes place in cooperation with Billpay GmbH, to which we assign our payment claim. In this case, the customer can only pay to Billpay GmbH with a debt-discharging effect. We remain responsible for general customer inquiries (e.g. about goods, delivery time, dispatch), returns, complaints, declarations of revocation and returns or credit notes when purchasing on account via Billpay. The general terms and conditions [more information at https://www.billpay.de/allgemein/datenschutz/] of Billpay GmbH apply.
(7) Purchase by direct debit via Billpay; Direct debit authorization; Processing
fee for returned direct debits (a) When purchasing by direct debit via Billpay, the payment amount is immediately available for payment by direct debit by our external partner Billpay GmbH [more information at https://www.billpay.de/endkunden/] from the current account specified in the order process the bank specified there (the current account). You hereby revocably authorize Billpay GmbH to collect the payments to be made by direct debit from your current account through direct debit. If the checking account does not have the necessary funds, the bank holding the account is not obliged to redeem it. Partial redemptions are not made in the direct debit procedure.
(b) The payment method purchase by direct debit via Billpay does not exist for all offers and requires, among other things, a successful credit check by Billpay GmbH and a current account in Germany. If the customer is allowed to purchase certain offers by direct debit via Billpay after checking the creditworthiness, the payment is processed in cooperation with Billpay GmbH, to which we assign our payment claim. In this case, the customer can only pay to Billpay GmbH with a debt-discharging effect. Even when buying by direct debit via Billpay, we remain responsible for general customer inquiries (e.g. about goods, delivery time, dispatch), returns, complaints, declarations of revocation and returns or credits. The general terms and conditions apply [more information on https:
(c) By specifying the current account, you confirm that you are entitled to direct debit via the relevant current account and that you will ensure that you have sufficient funds. Return debits are associated with a lot of effort and costs for us and Billpay GmbH. In the case of a return debit (due to insufficient funds in the current account, due to expiry of the current account or unjustified objection by the account holder), you authorize Billpay GmbH to submit the direct debit one more time for the respective payment obligation. In such a case, you are obliged to pay the costs arising from the return debit. We reserve the right to make further claims. You will be given the opportunity to provide evidence that the return debit resulted in lower costs or no costs at all. In view of the effort and costs for return debits and to avoid the processing fee, we ask you not to object to the direct debit in the event of a revocation or withdrawal from the purchase contract, a return or a complaint. In such a case, after consultation with us, the payment will be reversed by transferring the corresponding amount back or by crediting it.
(8) Insofar as the agreed prices are based on the list prices of ORION and the delivery is only to take place more than four months after the conclusion of the contract, the list prices of ORION valid at the time of delivery apply (less an agreed percentage or fixed discount).
§ 4 Delivery and delivery time
(1) Deliveries are made ex works.
(2) Deadlines and dates for deliveries and services promised by ORION are always approximate, unless a fixed period or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(3) Without prejudice to its rights in the event of default by the purchaser, ORION can request an extension of delivery and service deadlines or a postponement of delivery and service dates by the period in which the purchaser fails to meet his contractual obligations towards ORION.
(4) ORION is not liable for impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of all kinds, transport delays or the absence, incorrect or timely Delivery by suppliers) for which ORION is not responsible. If such events of ORION make the delivery or service significantly more difficult or impossible and the hindrance is not only of temporary duration, ORION is entitled to withdraw from the contract. In the case of temporary obstacles, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot be expected to accept the delivery or service as a result of the delay, they can withdraw from the contract by means of an immediate written declaration to ORION.
(5) ORION is only entitled to make partial deliveries if the partial delivery can be used by the customer within the scope of the contractual intended purpose, the delivery of the remaining goods ordered is ensured and the customer does not incur any significant additional effort or costs as a result (unless ORION agrees to assume these costs).
(6) If ORION is in default with a delivery or service or if a delivery or service becomes impossible for whatever reason, its liability is limited to compensation in accordance with Section 8 of these General Terms and Conditions of Delivery.
§ 5 Place of performance, dispatch, packaging, transfer of risk, acceptance
(1) The place of performance for all obligations arising from the contractual relationship is Berlin, unless otherwise specified. If ORION also owes the installation, the place of performance is the place where the installation has to take place.
(2) The type of dispatch and the packaging are subject to the dutiful discretion of ORION.
(3) The risk is transferred to the customer at the latest with the handover of the delivery item (whereby the beginning of the loading process is decisive) to the forwarding agent, carrier or other third party appointed to carry out the shipment. This also applies if partial deliveries are made or ORION has taken on other services (e.g. shipping or installation). If the dispatch or the handover is delayed due to a circumstance, the cause of which lies with the customer, the risk is transferred to the customer from the day on which ORION is ready for dispatch and has notified the customer of this.
(4) Storage costs after the transfer of risk are borne by the customer. In the case of storage by ORION, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored for each past week. The right to assert and provide evidence of additional or lower storage costs is reserved.
(5) The shipment will only be insured by ORION at the express request of the customer and at his own expense against theft, breakage, transport, fire and water damage or other insurable risks.
§ 6 Warranty
(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance.
(2) The delivered items are to be carefully examined immediately after delivery to the customer or to a third party appointed by them. They are considered approved if ORION does not submit a notice of defects with regard to obvious defects or other defects that were recognizable during an immediate, careful examination within seven working days after delivery of the delivery item, or otherwise within seven working days after the defect was discovered or the time , in which the defect was recognizable for the customer with normal use of the delivery item without closer examination, has been received in writing. At the request of ORION, the delivery item that is the subject of the complaint must be returned to the customer carriage paid. If the complaint is justified, ORION will reimburse the cost of the cheapest shipping route; this does not apply if the costs increase because the delivery item is located at a location other than the location of its intended use.
(3) In the event of material defects in the delivered items, ORION is initially obliged and entitled to either repair or replace the item, according to its choice, which is to be made within a reasonable period. In the event of failure, ie impossibility, unreasonableness, refusal or unreasonable delay in subsequent improvement or replacement delivery, the customer can withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is due to the negligence of ORION, the customer can claim damages under the conditions specified in § 8 below.
(5) In the event of defects in components from other manufacturers that ORION cannot eliminate for licensing or factual reasons, ORION will, at its option, assert its warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. Warranty claims against ORION only exist in the event of such defects under the other conditions and in accordance with these general terms and conditions of delivery if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example, due to insolvency, is futile. For the duration of the legal dispute, the statute of limitations for the relevant warranty claims of the customer against ORION is suspended.
(6) The warranty does not apply if the customer changes the delivery item or has it changed by a third party without the consent of ORION and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the purchaser has to bear the additional costs of remedying the defect resulting from the change.
(7) Any delivery of used items agreed with the customer on a case-by-case basis takes place under the exclusion of any warranty.
§ 7 Property Rights
(1) In accordance with this Section 7, ORION guarantees that the delivery item is free from industrial property rights or third-party copyrights. Each contractual partner will immediately notify the other contractual partner in writing if claims are made against them due to the violation of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, ORION will, at its option and at its own expense, modify or replace the delivery item in such a way that no third party rights are infringed, but the delivery item continues to do so fulfills contractually agreed functions or provides the customer with the right of use by concluding a license agreement. If this cannot be accomplished within a reasonable period of time, the customer is entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the customer are subject to the restrictions of Section 8 of these General Terms of Delivery.
(3) In the event of legal violations by products from other manufacturers supplied by ORION, ORION will, at its option, assert its claims against the manufacturer and sub-suppliers for the account of the customer or assign them to the customer. Claims against ORION in these cases in accordance with this § 7 only exist if the judicial enforcement of the aforementioned claims against the manufacturer and sub-suppliers was unsuccessful or, for example, due to insolvency, is futile.
§ 8 Liability for damages due to negligence
(1) The liability of ORION for damages, regardless of the legal reason, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and unlawful acts, insofar as fault is relevant, is in accordance with the stipulations this Section 8 is restricted.
(2) ORION is not liable in the event of simple negligence on the part of its entity, legal representatives, employees or other vicarious agents as long as there is no breach of essential contractual obligations. Essential to the contract are the obligation to timely, faultless delivery and installation as well as advisory, protection and custody obligations, which are intended to enable the customer to use the delivery item in accordance with the contract or to protect the life and limb of the customer's personnel or third parties or the customer's property from significant Purpose of damage.
(3) Insofar as ORION is fundamentally liable for damages in accordance with Section 8 (2), this liability is limited to damage that ORION foresaw as a possible consequence of a breach of contract when the contract was concluded or taking into account the circumstances that were known to it or which it should have known, should have foreseen if the due care had been exercised. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation if such damage is typically to be expected when the delivery item is used as intended.
(4) The above exclusions and limitations of liability apply to the same extent in favor of the bodies, legal representatives, employees and other vicarious agents of ORION.
(5) Insofar as ORION provides technical information or acts in an advisory capacity and this information or advice does not belong to the contractually agreed scope of services owed by it, this is done free of charge and with the exclusion of any liability.
(6) The restrictions of this § 8 do not apply to the liability of ORION due to willful behavior, for guaranteed characteristics, due to injury to life, body or health or according to the product liability law.
§ 9 Retention of title
(1) The goods delivered by ORION to the customer (reserved goods) remain the property of ORION until all secured claims have been paid in full.
(2) The customer keeps the reserved goods free of charge for ORION.
(3) If the reserved goods are combined with other items and if one of the other items is to be regarded as the main item, it is agreed that ORION shall have joint ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item acquires.
(4) In the event of resale of the reserved goods, the customer hereby assigns to ORION by way of security the resulting claim against the purchaser in the event of co-ownership of ORION in the reserved goods in proportion to the co-ownership share. The same applies to other claims that take the place of the reserved goods or otherwise arise with respect to the reserved goods, such as insurance claims or claims in tort for loss or destruction. ORION revocably authorizes the customer to collect the claims assigned to ORION in his own name for the account of ORION. ORION may only revoke this collection authorization in the event of utilization.
5) If third parties access the reserved goods, in particular through seizure, the customer will immediately inform them of the ownership of ORION and inform ORION of this in order to enable them to enforce their property rights. If the third party is not able to reimburse ORION for the judicial or extrajudicial costs incurred in this connection, the customer of ORION is liable for this.
(6) ORION will release the goods subject to retention of title as well as the items or claims replacing them upon request at its discretion, insofar as their value exceeds the amount of the secured claims by more than 50%.
(7) If ORION withdraws from the contract in the event of breach of contract by the customer, in particular default in payment (liquidation event), it is entitled to demand the return of the reserved goods.
§ 10 Software Usage rights
(1) Insofar as the subject matter of the delivery transaction is (also) the permanent transfer of software, the customer acquires a non-exclusive, spatially and temporally unlimited right to use the software on a device. The program may only be copied for the purpose of making a program copy that is used for program backup, unless a backup copy is included in the scope of delivery. If the hardware is changed, the software on the previously used hardware must be deleted.
(2) The customer is entitled to sell or give away the software to third parties on a permanent basis, provided that the acquiring third party agrees to the continued application of the conditions of Section 10 (1) to them as well.
(3) In the event of transfer, the software on the hardware used by the customer is to be deleted and all program copies, including any backup copies, are to be handed over to the third party, or data carriers that have not been handed over are to be destroyed.
§ 11 Notes on data protection
(1) ORION collects data from the customer as part of the processing of contracts. In doing so, it complies with the provisions of the Federal Data Protection Act and - if applicable - the Teleservices Data Protection Act. Without the consent of the buyer, ORION will only collect, process or use inventory and usage data insofar as this is necessary for the execution of the contractual relationship and, if necessary, for the use and billing of teleservices.
§ 12 Final provisions
(1) The place of jurisdiction for any disputes arising from the business relationship between ORION and the customer is, at the option of ORION, Berlin or the customer's registered office. Berlin is the exclusive place of jurisdiction for lawsuits against ORION. Mandatory legal provisions on exclusive places of jurisdiction remain unaffected by this regulation.
(2) The relationships between ORION and the customer are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) does not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes, which the contractual partners would have agreed according to the economic objectives of the contract and the purpose of these General Terms of Delivery if they had known the loopholes.