1. General, scope
1.1. VIVATEQ deliveries, services and quotations are solely governed by these
General Terms and Conditions. They are a component of all contracts concluded
between us and our customers for goods supplied by us. These General Terms and
Conditions in their current version shall also apply as a master agreement for
future contracts concerning the sale and/or supply of moveable property with the
same buyer, even if not expressly agreed on subsequent occasions, provided said
goods were received by the buyer as part of a prior confirmed order. By
submitting the order the contractual partner declares being familiar with the
Business Terms and Conditions and to agree to them.
1.2. Divergent, conflicting or supplemental Terms and Conditions shall not
become components of the contract, even with knowledge thereof and not objected
to by VIVATEQ, unless expressly agreed in writing as applicable.
1.3. These General Terms and Conditions apply only to companies, legal
entities under public law and special funds under public law within the meaning
of § 310 Para. 1 of the German Civil Code.
2. Quotation and conclusion of contract
2.1. Unless expressly indicated otherwise, all VIVATEQ quotations are subject
to confirmation and non-binding. Documentation associated with the quotation,
such as figures, drawings, weights and dimensions, are only approximate unless
expressly indicated as binding. VIVATEQ reserves all ownership and copyrights in
quotations, drawings and any other documents, and these may not be made
accessible to third parties.
2.2. By placing an order the buyer bindingly declares his desire to purchase
the goods ordered.
2.3. VIVATEQ is entitled to accept the offer to enter into a contract by
means of the order within 2 weeks of receipt thereof. Such acceptance may be
declared to the buyer either in writing or by delivery of goods. Information
provided by VIVATEQ concerning goods and services shall only be deemed a
component of the contract when specified in a binding quotation, written order
confirmation or a written contract. Information and quotations refer to normal,
standard quality and styles. General information concerning quality and style
are deemed to be mean values. Subsidiary agreements and amendments require the
written confirmation of VIVATEQ.
2.4. Discrepancies between the invoice or the delivery receipt and the actual
goods delivered must promptly be reported by the buyer, no later than 3 days
upon receipt of goods.
2.5. The contract is concluded subject to correct and timely delivery by
VIVATEQ's suppliers. This applies only where the failure to deliver is beyond
the control of VIVATEQ, in particular if VIVATEQ contracts a congruent hedging
transaction with the sub-contracting supplier. The buyer will promptly be
notified of such non-availability of the service. Any consideration shall be
refunded without delay.
3. Pricing
3.1. Products distributed by VIVATEQ are subject to the price list valid on
the date of delivery.
3.2. Prices are ex warehouse, not including packing, transport, insurance and
installation.
3.3. Shipping and insurance costs pursuant to item 5 of the Terms and
Conditions are payable by the buyer unless expressly agreed otherwise in
writing.
3.4. Orders valued at less than € 100.00 (except replacement parts and
additional deliveries) are subject to a processing fee of € 10.00.
3.5. All prices are net and subject to statutory Value Added Tax currently in
force. VIVATEQ price lists do not constitute an offer to enter into a contract.
4. Conditions of delivery and passing of risk
4.1. Delivery deadlines or periods, whether binding or non-binding, must be
indicated in writing.
4.2. The delivery period begins upon submission of the order confirmation,
but not before the buyer has provided the necessary documents, permissions and
approvals, nor before receipt of an agreed advance payment.
4.3. The agreed delivery period has been met when the despatched goods have
left the warehouse or are ready for despatch within said period and the buyer
has been notified thereof.
4.4. The delivery commitment ceases if the delivery has been rendered
impossible in whole or in part by force majeure or any other unforeseeable
events. This shall also apply if such circumstances occur with one of our
delivery contractors. In these cases VIVATEQ shall be entitled to, at its
discretion, withdraw from the contract or postpone delivery by the duration of
the hindrance plus a reasonable lead period. In the latter case the buyer shall
not be entitled to cancel orders, refuse partial deliveries or to assert claims
for damages of any type. VIVATEQ may only invoke aforesaid circumstances if the
customer was promptly notified.
4.5. The risk shall pass to the buyer upon the shipment leaving the VIVATEQ
warehouse, in the case of pick-up, or when goods are shipped, upon being handed
over to the freight forwarder, carrier or the person otherwise designated for
despatch. This also applies if VIVATEQ is assuming shipping costs by special
agreement, or if goods are shipped via VIVATEQ vehicles.
4.6. In the event despatch of goods becomes impossible through no fault of
VIVATEQ, the risk shall pass to the buyer upon the buyer being notified of the
goods being ready for despatch. Hand-over or acceptance is considered made if
the buyer is delayed in acceptance.
5. Insurance
5.1. Subject to specific information from the customer, VIVATEQ shall insure
all deliveries against loss, theft or other transit damage at the customer's
expense.
5.2. The customer is responsible for taking any measures required under local
law to allow a claim for transport damages to be settled.
6. Payment
6.1. VIVATEQ invoices are payable within 30 days net cash. This does not
apply to invoices for services, e.g. repairs, programming, training,
commissioning, etc. In these cases the payment term is 8 days net cash.
6.2. If dunning becomes necessary upon expiration of the payment deadline,
the customer will be charged for costs thereby incurred.
6.3. VIVATEQ shall be entitled to charge default interest in the amount of 8%
above the current bank rate of the European Central Bank, starting on the
payment due date. Interest shall be set at a lower rate if the customer
substantiates a lesser liability. A higher rate of interest may be charged if
substantiated by VIVATEQ.
6.4. In the event a customer defaults in the payment of an invoice, all other
open invoices shall become due for immediate payment irrespective of their due
date.
6.5. VIVATEQ shall be entitled to offset payments in the first instance
against such older debts regardless of contrary buyer terms. If interest and
costs have already been accrued, VIVATEQ shall be entitled to first offset the
payment against said costs, then against interest, and finally against the
principal service. VIVATEQ shall notify the contractual partner as to how
offsetting will be applied.
6.6. In the event the customer fails to comply with his obligations to pay,
in particular if a cheque or bill of exchange is not honoured or payment thereof
stopped, or VIVATEQ subsequently becomes aware of unfavourable pecuniary
circumstances or the credit-worthiness of the contractual partner, VIVATEQ shall
be entitled to demand payments in advance or provision of securities for all
other contracts. If the buyer fails to pay the purchase price or provide
securities within 2 weeks of such demand being made by VIVATEQ, VIVATEQ shall be
entitled to withdraw from the contract. VIVATEQ shall be entitled to indemnity
in the amount of 25% of the agreed purchase price. The customer shall be
entitled to substantiate a lesser damage.
6.7. The buyer shall only be entitled to set-off or retention, insofar as a
claim is legally enforceable or undisputed. In the event of defect of goods the
rights of reciprocity, particular pursuant to § 8 Item 3 of these GTCs, shall
remain unaffected.
7. Retention of title
7.1. The goods delivered by VIVATEQ shall remain the property of VIVATEQ
until the debt arising from the contractual relationship has been paid in full,
in particular until any current account balance has been satisfied and, in the
case of payment by cheque or bill of exchange, until such payment has been
successfully redeemed.
7.2. In the event the buyer violates the contract, particularly in the event
of payment default, VIVATEQ shall be entitled to retract the delivery object,
and the buyer shall be obliged to surrender said. Unless provisions of the
Consumer Credit Act apply, VIVATEQ retracting such delivery object shall not
constitute a withdrawal from the contract unless expressly specified by VIVATEQ
in writing. If the goods are machined or processed by the customer, or linked or
mixed with third party items, VIVATEQ's retention of title shall extend to these
new articles or to the claims arising from them. In this respect VIVATEQ shall
also be deemed manufacturer of the goods, and shall acquire title to said
pursuant to §§ 947, 948 and 950 Of the German Civil Code. If the delivery object
is processed with other objects not the property of VIVATEQ, VIVATEQ shall
acquire the joint title to the new articles in proportion to the invoiced amount
of the goods subject to retention of title to the other objects processed at the
time of the processing.
7.3. The goods may not be pledged, assigned as security, or otherwise
encumbered by third party rights until all debts have been paid in full. VIVATEQ
must promptly be notified in writing of said goods being seized by third
parties.
7.4. The buyer may resell the delivered goods - whether unprocessed,
processed or mingled – through ordinary course of business, unless in default of
payment.
7.5. As a precaution, the buyer shall at this time assign to VIVATEQ the
debts due the buyer arising from the resale of the goods or from any other legal
ground related to the goods (including all balance claims on a current account).
If, in this case, the buyer fails to fulfil his duty of payment, VIVATEQ shall
be entitled to notify the buyer's buyers of such, and to demand payment to
VIVATEQ. The buyer shall then be obliged to provide VIVATEQ any evidence,
documents and information required to assert this claim without delay.
7.6. VIVATEQ shall grant the buyer revocable authorisation to collect the
debts assigned to VIVATEQ for said invoice in his own name. This direct debit
authorisation may only be revoked, if the buyer fails to comply with his payment
obligations.
7.7. The consent to resale does not, however, extend to reselling the goods
to a third party making the assignment of debts owed by him dependent on his
approval.
7.8. VIVATEQ agrees to release the securities due them at the buyer’s request
when they are no longer required on more than a temporary basis, in particular
when they exceed the value of the debt to be secured by more than 20% in the
long term.
8. Warranty
8.1. VIVATEQ warrants the goods delivered to be free from substantial
manufacturing defects or faulty materials. VIVATEQ grants no warranty for
immaterial discrepancies due to the manufacturing process which impair neither
the outward appearance nor the functionality.
8.2. Our liability for defects is first and foremost based on the agreed
properties and condition of the goods. The designated VIVATEQ Product
Specifications shall apply as an agreement on the properties and condition of
the goods. Public statements (e.g. advertising messages), or manufacturer or
third party product descriptions shall not represent any indication of quality
of the goods as specified in this contract. VIVATEQ accepts no liability for
such statements.
8.3. In the event correction of the defect or replacement fails, the buyer
shall be entitled to demand a reduction in the purchase price (discount) or
rescission of the contract. In the case of a merely immaterial infringement of
the contract, particularly in the case of immaterial defects, the buyer shall
however not be entitled to withdraw from the contract. Replaced parts are deemed
the property of VIVATEQ.
8.4. The buyer shall notify VIVATEQ of obvious defects within 10 days of
receipt of goods or, if the defect only becomes apparent at a later time, within
10 days upon discovery of the defect; asserting a warranty claim is otherwise
excluded. Timely despatch of such notice shall suffice to comply with the term.
The buyer shall bear the full burden of proof for all conditions of entitlement,
in particular for the defect itself, for the exact time of the assessment of the
defect, and for the timeliness of the notice of defect.
8.5. If the buyer decides to withdraw from the contract by reason of a defect
in title or a defect in quality, he shall not also be entitled to a claim for
compensation for damages. If, after supplementary performance has failed, the
buyer decides to claim compensation for damages, the goods shall remain at the
buyer’s premises where reasonable. Compensation for damages shall be limited to
the difference between the purchase price and the value of the defective
article. This shall not apply where VIVATEQ has maliciously breached the
contract.
8.6. The warranty shall be valid for 1 year from the passing of risk on the
goods. A warranty for pre-owned products and batteries and illuminants, etc. is
excluded. The warranty for work performed and services is 1 year from the time
of transfer.
8.7. If the buyer receives a defective assembly instructions manual, VIVATEQ
shall be obliged only to deliver an assembly instructions manual free from
defects, and only if the defect in the assembly instructions manual conflicts
with proper assembly.
8.8. No guarantee shall granted for damage for the following reasons:
improper or inappropriate use, incorrect assembly by the buyer or a third party,
normal wear and tear, incorrect or negligent handling, unsuitable manufacturing
equipment, substitute materials, faulty processing, improper foundation,
chemical, electro-chemical or electrical impacts unless traceable to a culpable
fault by VIVATEQ.
8.9. The buyer must allow VIVATEQ the time and opportunity necessary to carry
out any rectifications of defects as coordinated with, and deemed necessary at
VIVATEQ’s reasonable discretion. VIVATEQ shall otherwise be released from
liability for defects. Only in urgent cases jeopardising operational safety and
to avert disproportionate damage, in which case VIVATEQ must be notified
immediately, or if VIVATEQ is late in rectifying the defect, is the buyer
entitled to rectify the defect himself or to have it rectified by third parties,
and to demand reimbursement of the necessary costs from VIVATEQ.
8.10. Modifications or corrective maintenance incorrectly performed by the
buyer or a third party without the prior authorisation of VIVATEQ will void any
liability and warranty.
9. Limitation of liability
9.1. Claims for compensation of damages arising from impossibility of
performing the service, positive violation of contractual duty, culpa in
contrahendo, or tort, are excluded both against VIVATEQ and against their
vicarious agents and assistants, except in the event of intentional or grossly
negligent conduct. This shall also apply to claims for compensation of damages
due to nonfulfillment; however if compensation for indirect or consequential
harm caused by a defect is demanded, liability shall be in form of an assurance
to safeguard the buyer against the risk of such damages. VIVATEQ shall not be
liable in the case of slightly negligent breach of immaterial contractual
duties.
9.2. In the case of ordinary negligence, VIVATEQ shall be liable for damages
arising from injury to life, limb or health, for damages arising from the breach
of a material contractual duty (an obligation, the fulfilment of which is
essential to the proper execution of contract and the compliance of which the
contractual partner routinely relies and may rely); in this case however,
liability shall be limited to the replacement of foreseeable damages typically
occurring.
9.3. The limitations of liability arising from item 9.2 shall not apply if
VIVATEQ has fraudulently concealed a defect or has granted a guarantee for the
properties and condition of the goods. The same shall apply for claims under the
Product Liability Act.
9.4. The buyer may only withdraw or give notice of withdrawing from the
contract for breach of duty not constituting a defect, if VIVATEQ is responsible
for the breach of duty. The buyer is not granted free right of termination.
9.5. Claims for compensation of damages by the buyer by reason of a defect
are limited to a period of one year from the acceptance of goods. This does not
apply if VIVATEQ committed gross negligence, both in the case of personal injury
and injury to health, attributable to VIVATEQ, or in the case of the buyer’s
loss of life. The statute of limitations under the Product Liability Act remains
unaffected.
10. Returns
10.1. With the exception of justified complaints as
specified under item 8, goods may only be returned with the prior consent of
VIVATEQ. The invoice number and date must be referenced. 10.2. Insofar as
VIVATEQ issues a credit, a minimum deduction in the amount of 5% of the purchase
value, but no less than € 40.00 and Value Added Tax will be deducted, based on
the condition of the goods (new, in original packaging, pre-owned). The customer
shall remain at liberty to prove no depreciation in value or expense in this
amount has been incurred. 10.3. Goods being accepted for return does not
constitute a withdrawal from the contract, but payment in lieu of performance by
the customer within the context of the contract. 10.4. VIVATEQ does not supply
goods for trial.
11. Data protection
11.1. VIVATEQ shall be entitled to store and to
process data related to the buyer obtained regarding or in conjunction with the
business relationship within the meaning of the Federal German Data Protection
Act, irrespective whether these were provided by the customer himself or third
parties.
12. Place of performance, court of jurisdiction, partial invalidity
12.1. These General Terms and Conditions and the entire legal relationship
between VIVATEQ and business partners shall solely be subject to the law of the
Federal Republic of Germany. The application of the United Nations Convention on
Contracts for the International Sale of Goods is excluded.
12.2. The place of performance and court of jurisdiction for any disputes
arising from the contractual relationship with general merchants, legal entities
under public law or special funds under public law shall be the registered
office of VIVATEQ.
12.3. VIVATEQ, however, shall be entitled to lodge an action at the buyer’s
general Court of jurisdiction.
12.4. In the event individual provisions of the contract including the
General Terms and Conditions are or become invalid in whole or in part, the
validity of the remaining provisions shall not be affected.
VIVATEQ Vertriebsgesellschaft für Communication Technology mbH
Uhingen/Fils
July 2013
