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Terms of Service

(01.02.2021) For reasons of better readability, the use of different forms of language has been dis-pensed with. All designations apply to all genders.

1. General

1.1. These General Terms and Conditions shall only apply to companies (§ 14 German Civil Code, BGB), legal entities under public law and special funds under public law.

1.2. These terms and conditions shall apply exclusively to our online part optimizations. Any deviating or additional terms and conditions of the customer shall not be binding on us, even if we do not object to them in individual cases, unless we expressly acknowledge them. In this case, they shall only apply to the respective individual contract. Any special agreements made individually between us and the customer shall remain unaffected.

1.3. Due to the technical design, in particular the availability of our services via the inter-net, there may be interruptions in the availability and periods of non-availability of our services, e.g. due to disruptions in the public communication networks or power failures. We are not obligated to permanent availability. In addition, our services may be completely or partially unavailable or delayed during maintenance periods (e.g. during the installation of new software).

1.4. Any written form required by these General Terms and Conditions shall also be com-plied with by text form, such as e-mail and fax in particular, unless otherwise ex-pressly stipulated.

2. Conclusion of the contract of use

2.1. Before using our services, the customer must first register with us and conclude a user agreement. There is no right to the conclusion of the user contract. We are en-titled to refuse the registration. When registering, the customer must provide cor-rect and complete information.

2.2. The customer has to keep the registration data chosen by the customer (user name, password) carefully and not to disclose them to third parties. In its own interest, the customer should inform us immediately in text form if a third party has obtained or may have obtained unauthorized knowledge of the login data. We will not disclose the password to third parties and will not ask the customer for the password outside the log-in process.

2.3. If mandatory information is missing during registration, the customer will be notified. The customer can change and correct its entries by clicking the corresponding but-tons. Before sending the application, we show the customer all data again, which can be changed and corrected if necessary by clicking the corresponding buttons. By clicking the button "Order with obligation to pay", the customer submits a binding application to conclude the contract of use with us. The receipt of the application will be confirmed to the customer immediately by e-mail. Only when the customer re-ceives our registration confirmation by e-mail, the contract of use is concluded.

2.4. The registration data of the customer will be stored by us. The customer can print out this data during the registration process, for example in the registration confir-mation.

2.5. The contract language is English.

3. Terms of payment

3.1. The agreed remuneration will be invoiced electronically and is payable without deduc-tion in Euro (EUR).

3.2. Unless otherwise agreed, the customer shall be granted the right to order online part optimizations from us up to an agreed number per invoicing period. Online part op-timizations exceeding this number will be invoiced separately at our current rates. The monthly remuneration shall also be due if less than the agreed number or no online part optimizations are used.

3.3. The customer shall only have the right to offset if its counterclaim has been legally established or is undisputed. This prohibition of set-off shall not apply to a counter-claim due to a defect which is based on the same contractual relationship as our claim. The customer shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.

4. Execution of the online part optimization, obligation to perform and cooper-ate

4.1. The customer shall use the online form provided by us for uploading its part data. In the online form, the customer can change and correct its entries before uploading.

4.2. The customer is responsible for checking its part data for completeness, correctness and suitability for the intended purpose. In particular, the customer must ensure that the online part optimization is approved and suitable for the purpose intended by the customer.

4.3. We are obligated to the service as specified in the respective service description. Generally, the online part optimization can only be viewed online and will only be made available for download as a file on our website if expressly agreed in the ser-vice description. Only if expressly stated in the agreed service description, the online part optimization includes a redesign of a part analyzed by us. Under no circum-stances are we obligated to advice the customer on the use of the part, nor do we provide any advice.

4.4. The customer must always review the online part optimization itself and on its own responsibility for its suitability for its intended use, in particular with regard to ther-mal or other load-bearing capacity, strength and rigidity. The customer must also carry out the necessary simulations itself. The customer is responsible for deciding whether and how to incorporate the online part optimization into a redesign or use of its part.

4.5. The customer shall ensure that all cooperation and provisions required for the per-formance of our services are provided in a complete, error-free, timely manner and in accordance with the state of the art; this applies in particular to the provision of drawings and other data. The customer shall provide its cooperation and materials at its own expense and risk. If the customer culpably violates its duties to cooperate and provide and if this results in a delay in our performance, we shall be entitled to compensation for the damage incurred by us in this respect, including any additional expenses.

4.6. The customer may not enter or upload any illegal or immoral content into our sys-tem.

4.7. It is the customer's responsibility to ensure that the technical and actual require-ments for online part optimization are met on its side.

4.8. If we provide the customer with software for uploading its data, the customer shall only receive a simple, non-exclusive right to use this software for the duration of the contract.

5. Infringement of property rights

The customer shall be responsible for ensuring that no third-party rights are in-fringed by the use of its data for online part optimization in accordance with the agreement. The customer shall indemnify us in the event of claims by third parties, unless the customer is not responsible for the infringement.

6. Claims due to defects, limitation of claims for defects and compensation claims

6.1. Subsequent performance shall be effected, at our discretion, either by remedying the defect or by providing a new service.

6.2. The limitation period for claims of the customer due to defects in performance shall be reduced to one year. The limitation period shall also be one year for claims of the customer for damages and reimbursement of expenses which are not based on a defect in the performance.

6.3. These shortened limitation periods shall not apply, however, to claims by the cus-tomer for injury to life, limb or health or to claims based on intentional or grossly negligent breach of duty.

7. Liability for damages and reimbursement of expenses

7.1. Our liability for damages and reimbursement of expenses for slight negligence shall be excluded, in particular for breach of obligations arising from the contractual rela-tionship and from tort, unless we have breached a material contractual obligation, i.e. an obligation whose fulfillment is a prerequisite for the proper performance of the contract or on whose fulfillment the customer may regularly rely. In this case, our liability shall be limited to the damage typical for the contract, the occurrence of which we had to expect at the time of conclusion of the contract due to the circum-stances known to us. A strict liability for defects already existing at the time of con-clusion of the contract is excluded.

7.2. However, our liability for damages arising from injury to body, life or health, for intent and gross negligence, for the absence of a guaranteed quality and under the Product Liability Act (Produkthaftungsgesetz) shall be unlimited.

7.3. The aforementioned liability regulations shall apply to the same extent in favour of our bodies, legal representatives, employees and other vicarious agents.

8. Confidentiality

We shall treat the customer's commercial and technical information of which we be-come aware through the business relationship with the customer confidentially and shall not disclose it to third parties as long as and to the extent that the information is not or does not become generally known. We shall carefully store the confidential information and protect it from unauthorized access by third parties.  

9. Termination of the User Agreement

Both we and the customer may terminate the usage agreement at any time in text form to billing@optimate.de with a notice period of two weeks to the end of each month of usage. The right to terminate without notice for good cause remains unaffected for both parties. 

9.2. Upon termination of the user contract, the customer account shall be deactivated. The customer account and all stored data of the customer will be deleted as soon as they are no longer required to fulfill the purpose of the contract, but no later than six months after termination of the contract. This does not apply to data that we are legally obligated to store or for which we have a legitimate interest.

10. Final provisions

10.1. If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from and in connection with the contractual relationship shall be our place of business or, at our discretion, the place of business of the customer. This shall also apply in cases in which the customer does not have a general place of jurisdiction in Germany, has relocated its domicile or habitual residence abroad after conclusion of the contract or if neither the domicile nor the habitual residence of the customer are known at the time the action is brought.

10.2. German law shall apply; the application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

10.3. Should any provision of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions.