General Terms of Business
§ 1 Scope of Validity
1. These terms and conditions apply to all existing and future business dealings with entrepreneurs.
Entrepreneurs, as defined by the general terms and conditions, are either natural or legal persons or partnerships acting in a legal capacity, who enter into business relationships, and who undertake professional activities in a commercial or independent capacity.
These terms and conditions do not apply to consumers.
2. Any general terms and conditions that deviate, contradict or are an amendment to the existing terms and conditions shall, if not stated in writing, only become a component of the contract to the extent that they do not contradict any of the present general terms and conditions, even if they are applied in the future or are expressly made known to us.
§ 2 Concluding the Contract
1. Our offers are not binding. Technical modifications that result from enhancements or improvements, which could include changes to the shape, colour and/or weight, shall be considered as being within the realm of reasonable changes.
2. By placing the order, the customer makes a binding offer to purchase the goods. After we receive the contract offer, which is part of the order, we have two weeks to agree to it. We can notify the customer that we have accepted it either in writing or by delivering the goods to the customer.
3. The final contract is subject to correct and timely delivery by our suppliers. This only applies if we are not responsible for a non-delivery, especially if a congruent hedging transaction has been entered into with our supplier.
Customer is immediately informed of the non-availability of goods. The payment will be refunded immediately.
4. Framework agreements and contracts with longer delivery times may be cancelled partially or in full by us, if the product can not longer be manufactured or for what ever reasons is no more available. When possible we will deliver partially or totally the outstanding volume as a single shipment with immediate payment. All further claims are satisfied with this.
§ 3 Prices
1. Unless otherwise agreed in writing, all prices are ex-works plus VAT, shipping and packaging, including any legal duties and taxes that apply.
2. We reserve the right to re-adjust the already indicated EUR-prices at time of delivery, due to high volatility of the EUR/USD exchange rate in justified cases (variation exceeds 3%) and/or modified technical specifications of the products.
3. We also reserve the right to re-adjust the prices with max. 5% due to changes in production or delivery process, if time of order and time of delivery are more than 4 weeks apart.
§ 4 Right to Retention of Property
1. In our contract transactions with entrepreneurs, we retain ownership of the goods until all claims from the current business relationship have been completely settled. The customer has the right to resell these goods in the regular course of doing business. He assigns to us all accounts receivable in the amount of the gross invoice amount that arise through resale to a third party. We accept this transfer to us of his accounts receivable. After transfer or assignment, the customer is authorized to collect the debt. We reserve the right to collect the debt ourselves as soon as the customer cannot properly meet his debts and defaults on making payments.
2. Handling and processing the goods by the customer is always carried out in our name and on our behalf. If items are processed that do not belong to us, we shall acquire co-ownership of the new object in the same ratio as the delivered goods at the other processed items. The same shall apply if the goods have been mixed in with other items that do not belong to us.
3. The customer is obligated to handle the goods with care; if maintenance or inspection work is required, the customer himself is responsible for paying a qualified professional to carry out this maintenance and inspection work on a regular basis.
4. Customer is obligated to immediately notify us if a third-party has been given access to the goods, or if any damage has occurred to the goods or if they have been destroyed. The customer must immediately notify us if the goods change ownership or if his own registered office changes.
§ 5 Payment Terms and Conditions and Compensation
1. The invoice amount is net 30 at the latest after receipt of the invoice, or according to individual agreements. Beyond this date the customer is considered in default of payment. The customer is responsible for paying any costs related to payment processing.
2. Drafts and checks are not accepted.
3. While he is in default, the customer must pay interest at eight percentage points above the current base rate. Interest paid on defaults is payable and due immediately. The right to evidence of even greater damage due to default remains reserved.
4. The customer has a right to compensation only if his claims were legally established or acknowledged by us in writing. The customer can exercise a right of retention only if his counterclaim is based on the same contract.
§ 6 Delivery – Transfer of Risk – Shipment
1. The delivery period starts the day the agreement on all contract conditions is reached. Delivery times are determined in good faith, but are nonetheless non-binding.
2. The right to partial deliveries is reserved.
3. The risk of accidental loss and accidental deterioration of the goods passes to the customer with delivery, in case of sale by delivery it is passed with the handover to the shipper, the carrier or otherwise defined dispatch person or institution responsible for completing the shipment. The transfer is the same if the customer is in default of acceptance.
In all individual cases an explicit customer order is required to get transportation insurance.
4. If we owe the delivery of goods with installation, then the transfer of risk passes to the customer if the goods are located on his property.
5. The risk passes to the customer if delivery has been postponed at his request, and we have indicated or are indicating our readiness to deliver or readiness to ship.
§ 7 Cancellation and Delay in Delivery
1. We reserve the right to cancel a contract if we harbour serious doubts about a customer's ability to pay. Of course, this does not apply if the customer has paid in advance.
2. We are entitled to withdraw from the contract due to any disruptions as long as they were not brought about by gross negligence or wilful misconduct.
3. Claims for damages by the customer for delay in delivery are limited to the invoice amount of the order. Any other claims shall be excluded.
§ 8 Defects – Warranty
1. We carefully test and inspect our goods before shipment. The customer is obligated to also review and inspect the goods as soon as he takes receipt of them. If the customer discovers any defects, he must notify us immediately in writing – within eight days at the latest. If the customer does not notify us of any defects, then even if the goods do exhibit a defect, they will be considered as stipulated within the confines of the contract.
2. If software is the subject matter of the contract, then the customer is required to examine it within two weeks of delivery to make sure it is functioning properly; we are responsible for checking and testing the installation within two weeks of installation. We are particularly responsible for making sure that the software is complete and fully functional. We must be notified in writing within one additional week if any other defects are discovered, or they are ones that are obviously apparent. If the customer does not notify us of any defects, then the software shall be considered as falling within the confines of the contract, even if the software exhibits defects/a defect.
3. If there are defects that the customer was not able to find despite properly reviewing and testing the software, then these must be reported to us immediately in writing, or within eight days at the latest of discovering the defect, or starting with the date of the negligent ignorance. If such an indication is not received on time or in proper form, then the goods or software shall be considered as being as stipulated in the contract.
4. It is the customer's responsibility to ensure that the software's work environment is working properly. We shall assume no responsibility for the application, usability or functionality of the goods or software we deliver that they or it will work properly with other hardware in other systems, equipment, etc. We do not comprehensively guarantee the compatibility of goods and software we deliver to work properly with other software or other systems. Any incompatibility shall not be considered a defect.
5. For entrepreneurs, we shall at our discretion first try to repair the defect or replace the goods or software. If we're not able to make good on the repair or replacement, then the purchaser has the right to demand a reduction or to withdraw from the contract. The customer may not withdraw from the contract if the defects are minor. If the customer chooses to withdraw from the contract because repair or replacement was not possible, then the purchaser has no further rights to compensation for damages due to the defect(s). If the repair or replacement is unsuccessful, and the purchaser chooses to enforce a claim for damages, then the goods shall remain at the customer's site, if this is a reasonable option. Claims for damages are restricted to the difference between the purchase price and the value of the defective goods. This does not apply the breach was fraudulently concealed.
6. For entrepreneurs, the quality of the goods and/or software is basically just our product description and the manufacturer's product description as agreed. Public statements, recommendations or advertising by the manufacturer do not constitute a contractual warranty of quality of the goods.
7. If the customer receives defective assembly or installation instructions, we are only obligated to supply him with a correct and proper set of instructions. We are only obligated to provide a proper and correct set of instructions if the installation or assembly from being carried out properly without them. Any other claims shall be excluded.
8. In general, we do not issue guarantees in the legal sense to the customer. All manufacturer warranties remain unaffected. Warranties can be agreed upon in writing in individual cases.
9. The statutory period for claims for defects is 2 years and begins with the delivery of the goods. For software, the statutory two-week period starts with the date stated in § 8 section 2. This deadline applies only to claims that fall under the warranty. Claims based on separate warranties shall remain unaffected. In this case, warranties in the warranty period are based on the respective, relevant Vision Systems' warranty statement.
10. We use components from well known manufacturers. If contrary to checked specifications one of such parts exhibits deviating behaviour and influences the overall function of the system, then this is considered a general risk and as such not covered by the warranty.
§ 9 Limitations on Liability
We shall be liable for all damages – for whatever legal reason, including breach of contract (including legal and factual defects) and tort – only in accordance with the following provisions, subject to the rules accordingly for claims reimbursement of expenses. The regulation of the § 8 No. 5 of these terms and conditions shall not be affected.
1. We shall only be liable for intent, claims under the Product Liability Act, liability for injury to life, limb and health as they are stated in statutory provisions. The same applies in case of fraudulent concealment of a defect and insofar as we have adopted a conflicting guarantee of one of the following limitations for the quality of acceptable performance.
2. If gross negligence has occurred, then our liability shall be restricted to replacement of and making good on typical and predictable damage. This restriction does not apply if the damage has been caused by legal representatives or senior executives.
3. In the event of only slightly negligent breaches of duty or in the event of simple negligence, we are only liable if an essential and fundamental obligation of the contract has been violated. In these types of cases, our liability is limited to predictable, standard loss typical of this type of damage. This also applies to minor or simple negligence by our legal representatives or agents. Liability is excluded in all other cases involving minor and simple negligence.
4. Our liability – irrespective of who is to blame – shall be limited to the foreseeable, typical, direct average damage in the event of deterioration of goods that occurs during a delay, or the loss or decline of the purchased goods that occurs during the delay.
5. Regarding compensation claims based on material defects or defects of the goods delivered, these claims shall lapse unless a case related to § 9, No. 1 is presented within two years of the date of delivery or the date of software installation. Provision in paragraph 1, No. 1 a) of 438 of the German Civil Code remains unaffected. All other claims for damages against us shall expire if no case related to § 9, No. 1 is present, or if we are not imputed for gross negligence, within two years of the close of the calendar year in which the claim arose, and in which the customer learned of it, or had to obtain knowledge of it. Without regard to the knowledge of the customer, or in the event of gross negligent ignorance, any and all such claims shall expire within 6 years of their origination.
§ 10 Export
We would like to point out that some products that are listed in our offers, order confirmations or price lists, require or may require approval for an export license under the laws of the Federal Republic of Germany. The customer bears the risk if an export license is not issued. Information regarding the existence of an obligation to obtain a permit through us is non-binding and does not constitute contractual or any other claims.
§ 11 Final Provisions
1. Federal German law shall apply. Provisions associated with the UN Sale of Goods do not apply.
2. Jurisdiction for all disputes arising from this contract is Norderstedt, unless the customer is a merchant, legal entity under public law or under public law special fund assets. This shall also apply if the customer does not belong to any general jurisdiction in Germany or have any domicile in Germany, or if it is not known whether the customer has habitual residence in Germany at the time the legal action is taken. We are nevertheless entitled to sue the customer at his usual place of jurisdiction.
3. The validity of the remaining provisions shall not be affected if any provision of the contract with the customer, including these terms and conditions in whole or in part, should prove or become invalid. The wholly or partially invalid provision shall be replaced by a provision whose profitable effect approximates the invalid provision as closely as possible.
As of January 2017