§ 1 Validity of Terms and Conditions
- All deliveries, performances, and offerings by VISION TEC GmbH (here in after referred to as 'Visiontec') shall be made exclusively in accordance with these terms and conditions. They shall thus extend to all future business transactions and shall be applicable even if they are not explicitly agreed upon once more. These terms and conditions are considered to have been accepted at the latest upon receipt of delivery of goods or services. Applicability of purchaser‘s terms, and specifically of purchasing conditions, is hereby expressly excluded. Such terms and conditions shall not be recognised under any circumstances, regardless of whether Visiontec explicitly repeats such exclusion upon receipt of purchaser‘s terms and conditions.
- Modifications or alterations of these terms and conditions are subject to a written confirmation from us in order to be legally effective.
§ 2 Offer and Acceptance
- An acceptances and orders require our written or electronic confirmation in order to be legally effective. Any additions, amendments, or covenants shall also require confirmation in writing. For orders fulfilled immediately, the written confirmation may be substituted by an invoice.
- Drawings, illustrations, measurements, weights, and any other information provided are to be considered as approximations only and represent no binding warranty of such characteristics unless such warranty is explicitly made in writing.
- Sales staff in the employ of Visiontec are not empowered to make oral agreements or provide oral guarantees that go beyond the terms of the written contract.
- If, through purchaser's order from Visiontec, purchaser's credit limit should be exceeded, Visiontec shall be absolved of any duty to fulfil such order. In such circumstances, however, purchaser shall be offered the chance to complete the transaction through payment in cash.
- To the extent that these terms and conditions are retroactively incorporated, a contract shall be considered void if the conditions of Clause 2, Section 1 above have not been met.
§ 3 Pricing
- Unless otherwise stated, Visiontec guarantees the sales prices of the items offered in its promotional materials for 7 days after the date such offers were made. The prices listed in Visiontec's order confirmation shall be binding. Additional deliveries and services will be charged separately.
- Offers made by Visiontec are non-binding and subject to change without notice. Price increases for undelivered but ordered merchandise resulting from changes in exchange rates will be passed on to purchaser.
- Unless otherwise agreed, prices do not include packaging, environmental fee, COD (if applicable), shipping, highway tolls, insurance; plus VAT (assessed at the rate in force on the day of delivery ex warehouse or, for direct shipments, at the German border or port of entry).
- For 'freight paid' shipments with a value of less than € 300.00, Visiontec will assess a small-volume surcharge.
§ 4 Delivery and Performance Period
- Delivery dates and periods are subject to change, unless otherwise agreed in writing. The indication of particular delivery dates and periods by Visiontec is subject to Visiontec's receiving correct and timely delivery from suppliers and manufacturers.
- In the event of delays or defaults in delivery or service performance resulting from acts of God or other unforeseeable events which make such delivery or provision by Visiontec difficult or impossible and for which Visiontec bears no responsibility (including, but not limited to, war, warlike events, piracy, regulatory action, denial of export, import, or transit permits, national restrictions upon trade, strikes, lockouts and business disruptions of any kind, traffic disturbances, and acts of nature, whether affecting Visiontec, its suppliers, or its sub-suppliers), Visiontec reserves the right to postpone shipment or service provision for a period equal to the delay incurred plus a reasonable lead time, or to the extent that the contract remains unfulfilled to abrogate the contract in whole or in part.
- If such impediment and resulting default should last longer than 3 months, purchaser shall be entitled to abrogate the contract, in whole or in part, provided that a reasonable deadline extension was granted (minimum 14 days). For delays in delivery resulting from events covered in Section 2 above, or if Visiontec has been otherwise released from its obligations, purchaser has no right to indemnity by Visiontec. Such release from liability of Visiontec shall apply only if Visiontec has given timely notice to purchaser of an expected delay or default.
- To the extent that Visiontec is responsible for a failure to abide by contractually agreed dates, periods and deadlines and is currently in default, purchaser has the right to demand a late payment penalty of 0.25% for each full week of such default, limited to a maximum of 5% of the net invoice value of the deliveries and services affected by the default. Any claims in excess of this value are exempted, unless the delay or default is the result of gross negligence on the part of Visiontec.
- Visiontec reserves the right to make partial deliveries and performance of services. In the case of delivery contracts, each partial delivery or partial performance is considered a separate performance. The agreed-upon delivery date or period shall be extended by any such period of time during which purchaser is in default of its contractual obligations.
- Unless the date of delivery or service performance is separately noted on our invoice, such date shall be the invoice date.
§ 5 Default of Acceptance
- For any period of default of acceptance by purchaser, Visiontec Media Store reserves the right to store the merchandise to be delivered, at the risk and expense of purchaser. Visiontec may store such merchandise itself, or engage the services of a freight forwarder or warehouse.
- For such period while purchaser is in default of acceptance, purchaser agrees to compensate Visiontec for storage costs incurred thereby at a flat rate of 1% of total invoice value, not to exceed 50 EUR, per week, unless purchaser can demonstrate that such amount exceeds actual storage costs. If storage costs exceed the amount as calculated herein, Visiontec may demand reimbursement for all such excess costs from purchaser, provided that proof of such excess costs is provided.
- If, after expiry of any grace period offered, purchaser refuses to accept the merchandise to be delivered, fails to respond to written requests for acceptance, or issues a declaration that the merchandise will not be accepted, Visiontec reserves the right to refuse to fulfil the contract, abrogate the contract, and seek damages for non-fulfilment. Visiontec may – at its option – demand liquidated damages of 25% of the gross contract purchase amount, unless purchaser can demonstrate that such sum exceeds actual damages, or demand payment by purchaser of Visiontec's actual damage or loss.
§ 6 Delivery Quantity / Mistaken Delivery
Visible errors in the quantity of goods delivered must be reported in writing to both Visiontec and the freight carrier immediately upon receipt of the goods in question, or within 4 days in the case of delivery errors not immediately noticeable. Acceptance of the merchandise by the forwarding agent or carrier shall be considered evidence of correct quantity, sound packaging, and proper loading of goods. The purchaser further undertakes to provide written notification to Visiontec within 14 days of delivery of any merchandise not order by purchaser, and to hold such merchandise in readiness for collection by a forwarding agent or carrier to be determined by Visiontec.
If such written notification of mistaken delivery is not made, or is not made within the 14-day period described above, the delivery shall be considered to have been accepted, and the purchaser shall be obligated to remit to Visiontec the usual and appropriate purchase price for the merchandise.
§ 7 Transfer of Risk
Risk shall transfer from Visiontec to purchaser when a shipment of merchandise is accepted by the forwarding agent or carrier, or when it has left the warehouse of Visiontec for the purpose of shipment. If shipment should be delayed or prevented through no fault of Visiontec, risk shall transfer to purchaser at the time notice of shipment readiness is given. Any agreement under which Visiontec shall assume transport costs shall not affect the transfer of risk.
§ 8 Liability for Defects
- Any claims on the part of purchaser for allegedly defective merchandise are subject to the requirement that purchaser has properly conformed with its duties of inspection and notification under Section 377 HGB (German Commercial Code).
- If any merchandise is found to be defective, purchaser is entitled to demand subsequent improvement. Such subsequent improvement may take the form of curing of the defect or delivery of a nondefective item, at the choice of Visiontec. Visiontec shall be entitled to two attempts to remedy a defect. Purchaser shall be liable for any additional costs of curing such defect incurred as a result of purchaser having moved the merchandise to a location other than the place of performance.
- If all attempts at supplementary performance fail, purchaser may request either rescission of the transaction or a reduction in the sales price.
- Visiontec shall accept liability to the extent of applicable law for damage claims made by purchaser on the basis of gross negligence or wilful intent on the part of Visiontec, our representatives or vicarious agents. Unless a wilful breach of contract by Visiontec is alleged, Visiontec's liability shall be limited to such damages as were reasonably foreseeable.
- Visiontec shall accept liability to the extent of applicable law for any culpable violation by Visiontec of material contractual terms; in such case, Visiontec's liability shall be limited to such damages as were reasonably foreseeable.
- To the extent that purchaser has a right to payment of damages rather than (complete) performance, Visiontec's liability under Section 3 above shall be limited to compensation for such losses as were reasonably foreseeable.
- Liability for culpable injury of life, physical condition, or health shall not be limited by this clause. Compulsory liability under the Product Liability Law shall also remain unaffected.
- All liability not governed expressly by the above provisions of this clause is excluded.
- The period of limitation for defect claims shall be 12 months, measured from the transfer of risk from Visiontec to purchaser.
§ 9 Joint and Several Liability
- Liability for damages exceeding that foreseen in Clause 8.6 above shall be excluded, regard-less of the legal nature of the claim concerned. This applies in particular to damage claims arising from errors made at the inception of a contract, from other breaches of duty, or from tort claims governed by Section 823 BGB (German Civil Code).
- The limitations of Section 1 above also apply to cases in which purchaser, rather than asserting a claim to compensation for damages, demands compensation for wasted expenditures rather than full performance of the contract.
- All limitation or exclusion of liability applicable to Visiontec also extends to the personal liability of our employees, workers, representatives, and vicarious agents.
§ 10 Returns/Supplementary Performance Procedures
Defective products are to be returned, along with model number, serial number, a copy of the delivery or invoice documents, and a precise description of the nature of the defect, to
VISION TEC GmbH
If previously agreed, they may also be sent or delivered to the supplier. The replacement of individual parts, components, assemblies or entire devices creates no new obligations on the part of Visiontec to extend the existing period of warranty against defect, with the exception of warranties related to the service life of specific parts repaired or replaced in the course of the warranty repair. Purchaser shall be required to regularly and properly perform data storage and maintenance, and is responsible for ensuring that data has been secured before merchandise is sent.
Visiontec shall assume no liability for lost data and any losses resulting therefrom. Visiontec shall not be responsible for any costs of data storage or the reinstallation of software or hardware resulting from the repair or replacement to be carried out.
§ 11 Reservation of Proprietary Rights
- Until the satisfaction of all claims against the purchaser to which Visiontec is currently or shall in future be entitled, regardless of legal basis, the purchaser grants Visiontec the security interests described below. At the request of the purchaser, Visiontec shall upon the purchaser's request put at the purchaser's disposal such securities whose value exceeds and can be expected to remain in excess of 20% of the purchaser's claim.
- Merchandise remains the property of Visiontec (goods subject to reservation of title). Any processing or handling shall be carried out on behalf of Visiontec as the manufacturer under the terms of Section 950 BGB (German Civil Code), without Visiontec assuming any obligations thereby. If items subject to reservation of title are processed or combined with other merchandise, Visiontec shall thereby acquire co-proprietary rights to the newly created goods in the proportion of the value of the merchandise subject to reservation of title to the value of the merchandise not so encumbered. Should the purchaser become the sole owner of the merchandise, s/he shall automatically concede to Visiontec co-proprietorship to the extent described above and agrees to store the merchandise at her/his own cost. If the merchandise created as a result of such additional processing or handling is sold to a third party, the advance assignment hereby agreed shall apply only to the extent of the value of the merchandise subject to reservation of title.
- Purchaser has the right to use and resell as part of the normal course of business merchandise subject to reservation of title provided purchaser is not currently in default of payment to Visiontec. Bailments, pledges, or transfers of such merchandise to third parties as a security interest are not permitted. All claims (including any balance due on current accounts) deriving from the resale of merchandise subject to reservation or from any other cause in law (insurance, tort), are hereby subrogated to Visiontec as a security interest. Purchaser shall undertake to collect on such claims subrogated by Visiontec in his own name and at his own cost, unless and until receiving written notice from Visiontec that Visiontec wishes to assume collection responsibility. The right of collection may only be revoked if purchaser defaults on his own payment obligations. Claims deriving from the resale of merchandise subject to reservation of title shall not extinguish by the purchaser or purchaser's resale customer offsetting such claims against a current account balance.
- Should any third party take possession of merchandise subject to reservation of title, purchaser shall advise such party of Visiontec's ownership interest and immediately notify Visiontec.
- If purchaser should default on payment, if such default becomes imminent, if its creditworthiness suffers impairment, or if the purchaser otherwise culpably fails to meet his/her material contractual obligations, Visiontec reserves the right to repossess merchandise subject to reservation of title or, as the case may be, demand the assignment of purchaser's rights of repossession against third parties.
- For security purposes, Visiontec shall have access to the purchaser's premises and delivery and bookkeeping documents. In particular, Visiontec shall receive upon first request a copy of all accounts receivable, with balances and customer addresses.
- Any repossession or seizure of merchandise subject to reservation of title on the part of Visiontec shall not be construed as a rescission of the contract, unless otherwise dictated by the Consumer Credit Law.
- Visiontec's security interest extend to merchandise that has been unilaterally claimed or acquired according to the decision of the insolvency administrator or bankruptcy trustee in the course of insolvency proceedings.
- Assignments of legal rights shall be accepted.
§ 12 Payment
- Invoices are payable by bank draft and due immediately, unless otherwise agreed. The cost of delivery is to be borne by purchaser, whether by parcel service, freight forwarder, or the purchaser's own vehicle, unless otherwise agreed upon in writing. Goods may be insured against damage in transit for a small fee.
- Visiontec calculates payment in accordance with applicable commercial regulations (Sections 366, 367 BGB/German Civil Code).
- A payment is only considered to have been made once Visiontec has control of the sum paid. Checks are only accepted on account of performance, and payment will only be considered to have been made once irrevocably received.
- Any cash discounts granted may only be made if all outstanding accounts have been paid up and are not in arrears. The decisive date shall be receipt of payment by Visiontec.
- All outstanding claims shall become due upon any default of payment by purchaser, upon purchaser's failure to abide by any other material term of the contract, or upon Visiontec's receiving information of circumstances that can be expected to negatively affect purchaser's creditworthiness, in particular stoppage of payments or the initiation of insolvency proceedings. In such cases, Visiontec reserves the right to suspend deliveries still pending, or to complete or deliver them only after receiving payment in full or other adequate security.
- Purchaser shall only be entitled to offset or exercise a right of retention if his counterclaims are res judicata or indisputable.
§ 13 Non-Assignment Clause
Claims against us may not be assigned to third parties without our explicit written consent. Such consent shall be given if the purchaser demonstrates material interests outweighing our interest in maintaining its prohibition on the assignment of claims.
§ 14 Use of Products
The products are intended for regular, normal commercial use in accordance with the operating instructions. They are not to be used in critical security systems, nuclear plants, military installations, life-sustaining medical devices, or in the production of weapons. Visiontec disclaims all liability for any such use.
§ 15 Industrial Property Rights
All industrial property rights concerning the products are and shall remain the property of the supplier. Any use shall require the supplier's permission. Any software provided by Visiontec in fulfilment of an order to a commercial purchaser is provided solely for one-time resale, and to an end user solely for his or her own use. Such software may not be copied, modified, or provided for the use of third parties. Any multiple user licence must be granted in writing. The software is provided subject to the supplier's licensing agreements; purchaser hereby agrees to abide by all such agreements. Visiontec assumes no liability for any infringement of industrial property rights resulting from the export of any product from a country supplied by Visiontec to any third country, as no guarantee can be provided that all such rights shall be protected there.
§ 16 Confidentiality
Purchaser undertakes to keep confidential all information it might acquire in conjunction with any delivery from Visiontec which is for any reason clearly understood to be confidential business information of Visiontec. Such confidentiality is to be maintained for an unlimited period of time, and – unless necessary to accomplish the purpose of the contract – may not be stored, recorded, transferred to third parties, or used in any manner.
§ 17 Data Protection and Storage
Visiontec reserves the right to make use of customer data concerning business transactions or acquired in the course of such transactions, whether directly from the customer or via a third party, in accordance with the provisions of the German Federal Data Protection Law. Customer data shall be stored in compliance with Section 33 BDSG (German Federal Data Protection Law).
§ 18 Export
Any re-export from the Federal Republic of Germany is subject to the export regulations of Germany, the European Union, and the United States of America. Purchaser bears sole responsibility for obtaining necessary export permits from the Federal Export Office in Eschborn, Germany. S/he shall also be responsible for ensuring compliance with all such regulations until delivery to the end user.
§ 19 Applicable Law
- These terms and conditions, as well as all legal relations between Visiontec and purchaser, shall be governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. If purchaser is a registered trader under the terms of the HGB (German Commercial Code), a body corporate organised under public law, or a special fund under public law, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Braunschweig, Germany. However, Visiontec reserves the right to file suit against purchaser in any other jurisdiction of its choice. Braunschweig shall remain the place of performance and of delivery under the terms of the German Packaging Ordinance.
- Should one or more provisions of these general terms and conditions be found to be invalid, or should they be found to contain any unintended omission, the contracting parties agree to enter into good faith negotiations with the objective of replacing the invalid or incomplete provision by a suitable individual agreement or amendment that most closely approximates the economic purpose of the provision as originally intended. The validity of all other contractual provisions shall not be affected by such additions or modifications.
§ 20 Project Business/Volume Discounts
If a manufacturer offers special prices for project business, purchaser must provide Visiontec, within 10 days of Visiontec's request, with a documentary copy of proof of delivery and of the end customer invoice. Purchaser is obligated to abide by the applicable guidelines for project business. This also applies to all obligations imposed by commercial and tax law to preserve records relating to the project business. If purchaser violates the manufacturer's or Visiontec's policies pertaining to project business, Visiontec reserves the right to demand repayment of the amounts wrongly granted and to exclude purchaser from consideration for future project business pricing.
§ 21 Advertising
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