1. General, Scope of Application
1.1. Deliveries, services and offers of the company VIVATEQ GmbH (hereinafter
referred to as VIVATEQ) shall be effected solely on the basis of the present
Terms and Conditions of Business. Consequently, the said Terms and Conditions of
Business shall also apply to all future business relations, even if they are not
expressly agreed upon again, provided that the purchaser has received the said
Terms and Conditions as part of a previous order that was confirmed by VIVATEQ.
In placing the order the contracting partner declares that he has knowledge of
the Terms and Conditions of Business and that he agrees to the said Terms and
Conditions.
1.2. Even if VIVATEQ has knowledge of divergent, contradictory or
supplementary general terms and conditions of business and does not object to
them, these shall not become part of the contract unless their validity has been
expressly consented to in writing.
2. Offer and Conclusion of the Contract
2.1. Unless expressly designated otherwise, VIVATEQ’s offers shall be subject
to confirmation and non-binding. Unless expressly designated as binding, the
documents relating to the offer such as images, drawings and information on
weight and measurements shall be deemed merely approximate. VIVATEQ shall
reserve all property rights and copyrights to cost estimates, drawings and other
documents and these may not be made accessible to third parties.
2.2. In placing the purchase order the purchaser issues a binding declaration
that it wishes to purchase the ordered goods.
2.3. VIVATEQ shall be entitled to accept the contract offer contained in the
purchase order within 2 weeks of receipt. Acceptance may be declared in writing
or by delivering the goods to the purchaser. Information relating to goods and
services that is provided by VIVATEQ shall only become part of the contract if
it is stated in a binding offer, a written order confirmation or a written
contract. Information and offers refer to normal standard quality and execution.
General details on quality and execution should only be considered average
values. Subsidiary agreements and amendments shall require written confirmation
by VIVATEQ.
2.4. Discrepancies between invoice or delivery note and the actual goods
delivered must be notified by the purchaser promptly in writing, at the latest 3
days after receipt of the goods.
2.5. The contract shall be concluded subject to VIVATEQ’s suppliers supplying
VIVATEQ with goods correctly and on time. This shall only apply where
non-delivery is not attributable to VIVATEQ, especially where congruent cover
business is concluded with VIVATEQ’s supplier. The purchaser shall be informed
promptly that performance cannot be provided. The consideration shall be
reimbursed promptly.
3. Prices
3.1. Products sold by VIVATEQ shall be sold on the basis of the price list
valid on the date on which delivery is effected.
3.2. Prices shall be ex warehouse, exclusive of packaging, transport,
insurance and installation.
3.3. Dispatch costs and the insurance costs pursuant to No. 5 of the Terms
and Conditions of Business shall be borne by the customer unless a different
arrangement is expressly agreed; any such arrangement must be agreed in writing.
3.4. An administration charge of € 10.00 shall be applied to orders less than
¤ 100.00 (excluding spare parts and subsequent deliveries).
3.5. All prices are quoted exclusive of the respective applicable statutory
rate of value added tax. VIVATEQ price lists shall not constitute a contractual
offer.
4. Terms and Conditions of Delivery and Transfer of Risk
4.1. Binding or non-binding delivery dates or periods must be agreed in
writing.
4.2. The delivery period shall commence when the order confirmation is sent,
but not, however, before the documents, permits and approvals to be provided by
the ordering customer have been received and not before any agreed advance
payment has been received.
4.3. The agreed delivery period shall be deemed to have been complied with if
the consignments have left the warehouse or if they are ready for dispatch
within the delivery period and the purchaser has been notified accordingly.
4.4. The delivery obligation shall end if delivery becomes either wholly or
partially impossible due to force majeure or due to other unforeseeable events.
This shall also apply if such circumstances affect one of our suppliers. In such
cases VIVATEQ may choose either to withdraw from the contract or to postpone the
delivery for the duration of the hindrance plus a reasonable start-up period. In
the last instance the purchaser shall not be entitled to withdraw orders, reject
partial deliveries or assert any form of claims for damages. VIVATEQ may only
rely on the aforementioned circumstances if it has informed the customer of such
circumstances promptly.
4.5. If the delivery is being collected, risk shall pass to the purchaser
once the delivery has left VIVATEQ’s warehouse; if it is to be dispatched, risk
shall pass to the purchaser once the delivery has been handed over to the
carrier or forwarder. This shall also apply if VIVATEQ has assumed the dispatch
costs under a special agreement or if the goods are dispatched using VIVATEQ's
vehicles.
4.6. If dispatch is not possible and if this is not the fault of VIVATEQ,
risk shall be transferred to the purchaser when it is notified that the goods
are ready for dispatch.
5. Insurance
5.1. Subject to special instructions by the customer, VIVATEQ shall at the
customer’s expense insure all deliveries against loss, theft or other damages
during transport.
5.2. The customer shall be obliged to take the necessary measures required
under local law in order to enable settlement of damages arising during
transport.
6. Payment
6.1. VIVATEQ invoices shall be payable net cash within 30 days. In order for
the cash discount to apply the purchaser must not be in default with any other
payments. This shall not include invoices for services such as repairs,
programming, training, commissioning, etc. Those invoices shall be payable net
cash within 8 days.
6.2. If it is necessary to issue demands for payment after expiry of
the payment period any resulting costs shall be charged to the customer.
6.3. From the date on which payment becomes due VIVATEQ shall be
entitled to charge default interest at 8% above the respective valid discount
rate of the European Central Bank; for consumers it shall be entitled to charge
default interest at 5% above the respective valid discount rate of the European
Central Bank.
6.4. IN the event default in payment an invoice, all other outstanding
invoices shall become payable immediately, regardless of their respective due
dates.
6.5. Even where the purchaser has conflicting provisions, VIVATEQ shall
first be entitled to allocate payments to older debts of the purchaser. If
interest and costs have already arisen, VIVATEQ shall be entitled to allocate
payment firstly to settlement of the costs, then to settlement of the interest
and finally to settlement of the principal performance. VIVATEQ shall inform the
contracting partner of how the payment has been allocated.
6.6. VIVATEQ shall be entitled to demand advance payment or the
provision of collateral for all other contracts where the customer fails to
fulfill its payment obligations and in particular where it fails to honor a
check or bill and suspends payments or VIVATEQ subsequently becomes aware of
unfavorable circumstances regarding the financial position or credit-worthiness
of the contracting partner. If, in such case, the purchaser fails to pay the
purchase price or collateral within two weeks of a corresponding request by
VIVATEQ, then VIVATEQ shall be entitled to withdraw from the contract. VIVATEQ
shall then be entitled to compensation amounting to 25% of the agreed purchase
price. The customer shall be entitled to prove lesser damage.
6.7. The purchaser shall only be entitled to offset amounts if its
counter-claims are undisputed or have been established by a court of law. The
purchaser may only exert a right of retention if its counterclaim is based on
the same contractual relationship and if the counterclaim is undisputed or has
been established by a court of law
7. Reservation of ownership
7.1. The goods supplied by VIVATEQ shall remain the property of VIVATEQ until
payment of the entire debt under the contractual relationship, and in particular
until settlement of any open account balance and in the case of payment by check
or bill until such check or bill has been honored in full.
7.2. Where the purchaser acts in breach of the contract, including in
particular if it defaults on payments, VIVATEQ shall be entitled to take back
the item delivered and the purchaser shall be obliged to hand the item back.
Unless provisions of the Consumer Credit Act [Verbraucherkreditgesetz] apply, in
cases where VIVATEQ takes back an item that has been delivered this shall not
constitute a withdrawal from the contract unless VIVATEQ has expressly stated
this in writing. In cases where goods have been treated or processed by the
purchaser or have been combined or mixed with other objects, VIVATEQ's
reservation of ownership shall also extend to these new objects or to the
resulting debts. To this extent, VIVATEQ shall be deemed the manufacturer and
shall acquire ownership of such objects in accordance with §§ 947, 948, 950 of
the German Civil Code [BGB]. If the item that has been delivered is processed
with other objects that do not belong to VIVATEQ then VIVATEQ shall acquire
proportionate co-ownership of the new object based on the ratio between the
final invoice amount for the goods subject to reservation of ownership and the
other items that have been processed; such calculation shall be based on the
respective values at the time the processing was carried out.
7.3. Until full payment of all debts the goods may not be pledged,
transferred by way of collateral or otherwise encumbered with third-party
rights. VIVATEQ must be informed promptly by registered letter of any such
attachments by third parties.
7.4. Irrespective of whether they are unprocessed or have been processed or
combined with other items, the purchaser may only re-sell delivered goods in the
ordinary course of its business provided it is not in default.
7.5. By way of security the purchaser here and now assigns to VIVATEQ any
claims (including all claims relating to balances under open account
relationships) to which it is entitled as a result of the goods being resold or
based on any other legal grounds. If in such case the purchaser fails to fulfill
its payment obligation VIVATEQ shall be entitled to inform the purchaser’s
customer of this and demand that payment be made to VIVATEQ. In such case the
purchaser shall be obliged to give VIVATEQ prompt access to all evidence,
documents and information required to assert such claims.
7.6. VIVATEQ revocably authorizes the purchaser to collect any claims in
respect of its invoices that have been assigned to VIVATEQ and to collect these
in its own name. This collection authority may only be revoked if the purchaser
fails properly to fulfill its payment obligations.
7.7. However, the consent in respect of resale shall not extend to the sale
of goods to a third party that makes the assignment of debts owed by it subject
to its approval.
7.8. VIVATEQ undertakes that, at the purchaser’s request, it will release
collateral provided to it where such collateral is no longer required on either
a temporary or a general basis for securing the purchaser’s debts and in
particular where, on a long-term basis, such collateral exceeds the debts to be
secured by more than 20%.
8. Warranty
8.1. VIVATEQ shall not assume any warranty for insignificant,
manufacturing-based deviations that impair neither external appearance nor
functioning.
8.2. VIVATEQ warrants that the goods delivered are free of significant
manufacturing or material defects.
8.3. The warranty shall be limited to subsequent improvement or substitute
performance, as chosen by VIVATEQ. If subsequent improvement or substitute
performance fails, the purchaser shall be entitled to demand a reduction in the
purchase price (reduction) or revocation of the contract (cancellation).
However, the purchaser shall not be entitled to withdraw from the contract in
the event of a minor breach of contract, especially where the defects are only
minor. Any parts that are replaced shall become the property of VIVATEQ.
8.4. The purchaser shall be obliged to notify VIVATEQ in writing of any
obvious defects within 10 days of receiving the goods, or if the defect is only
discernible at a later date, within 10 days of discovering the defect;
otherwise, the assertion of any warranty claims shall be ruled out. The period
for asserting such claims shall be deemed to have been complied with if the
notice of defects is sent on time. The full burden of proving all claim
requirements shall lie with the purchaser, especially as regards the defect
itself, the time at which the defect was identified and timely notification of
the complaint.
8.5 In the event of a defect in title or defect in quality, if subsequent
performance fails and the purchaser chooses to withdraw from the contract, then
the purchaser shall not be entitled to claim any further compensation in respect
of the defect. If subsequent performance fails and the purchaser elects to
receive compensation, then the goods shall remain with the purchaser provided
this can be reasonably expected of the latter. Compensation shall be limited to
the difference between the purchase price and the value of the defective item.
This shall not apply if VIVATEQ has malevolently caused the breach of contract.
8.6. The warranty period shall amount to one year from the date on which risk
for the goods is transferred. No warranty shall be given on batteries, lamps and
second-hand products.The warranty period for services shall amount to one year
from date of hand over.
8.7. With regard to the properties of the goods, it is agreed that in
principle only the manufacturer’s product description shall be authoritative.
Additional public statements, sales talk or advertising by the manufacturer
shall not constitute any contractual properties for the goods. If the purchaser
receives erroneous assembly instructions VIVATEQ shall only be obliged to supply
assembly instructions that are free of errors and this shall only apply if the
error in the assembly instructions prevents proper assembly.
8.8. No warranty shall be assumed for damages arising for the following
reasons: Unsuitable or incorrect use, incorrect assembly and/or commissioning by
the purchaser or third parties, natural wear and tear, incorrect or negligent
handling, unsuitable operating resources, replacement materials, defective
processing, unsuitable foundations, chemical, electrochemical or electrical
influences, provided they are not attributable to fault on the part of VIVATEQ.
8.9. After consultation with VIVATEQ, the purchaser must allow VIVATEQ the
necessary time and opportunity to carry out all subsequent improvements and
substitute performances that VIVATEQ, in its reasonable judgment, considers
necessary. If this is not the case, VIVATEQ shall be exempt from any liability
in respect of defects. The purchaser may only rectify the defect itself or have
the defect rectified by third parties and demand reimbursement of the necessary
costs from VIVATEQ in urgent cases where operating safety is jeopardized and in
order to avoid disproportionately high damages (in which case VIVATEQ must be
notified immediately) or if VIVATEQ defaults on rectification of the defect.
8.10. Modification or repair work that is carried out by the purchaser or by
third parties incorrectly and without the prior approval of VIVATEQ shall
invalidate any liability and warranty.
9. Limitations of liability
9.1. No claims for damages relating to impossibility of performance, breach
of contract, culpa in contrahendo and tortious acts may be asserted against
VIVATEQ, its vicarious agents or persons it employs in performance of its
obligations unless intent or gross negligence applies. This shall also apply to
claims for damages in respect of non-performance, but only to the extent that
compensation is claimed for indirect damage or consequential damage due to
defects, unless liability is based on an assurance intended to safeguard the
purchaser against the risk of such damage. VIVATEQ shall not assume any
liability for slightly negligent infringement of immaterial contractual
obligations.
9.2. With merchants, however, no compensation shall be paid in cases of gross
negligence for damage that is not typical for the contract and that was not
foreseeable at the time the contract was concluded, unless compensation is to be
paid for an assured property.
9.3. The above restrictions on liability shall not affect any claims of the
purchaser relating to product liability. Furthermore, the limitations of
liability shall not apply to imputable injury to body and health or in the event
of loss of life on the part of the purchaser.
9.4. Claims for compensation on the part of the purchaser that relate to a
defect shall become time-barred one year after the goods are taken over. This
shall not apply if VIVATEQ is guilty of gross fault and in cases where injury to
body and health is attributable to VIVATEQ or in the event of loss of life on
the part of the purchaser.
10. Return of goods
10.1. Except in cases of justified complaints as specified in No. 10, goods
may only be returned with the prior consent of VIVATEQ. The invoice number and
invoice date must be quoted.
10.2. If VIVATEQ issues a credit note, then depending on the condition of the
goods (new, in the original packaging, used), a deduction shall be applied in a
minimum amount of 5% of the sales value subject to a minimum of € 40.00 plus the
applicable rate of value added tax. The customer shall be entitled to prove a
lesser reduction in value or lower expenses.
10.3. If goods are taken back this shall not constitute withdrawal from the
contract, but shall instead constitute a substitute counter-performance on the
part of the customer within the framework of the purchase contract.
10.4. VIVATEQ shall not supply any goods on approval.
11. Data protection
11.1. 11.1. Irrespective of whether such data originates from the purchaser
itself or from third parties, data on the purchaser that is received by VIVATEQ
and that concerns the business relationship or that is connected with the
business relationship may be stored and processed by VIVATEQ in accordance with
the Federal Data Protection Act [Bundesdatenschutzgesetz].
12. Place of performance, place of jurisdiction, partial invalidity
12.1. The present Terms and Conditions of Business and the entire legal
relationship between VIVATEQ and the business partners shall be governed
exclusively by the laws of the Federal Republic of Germany. The UN Convention
Relating to a Uniform Law on the International Sale of Goods shall not apply.
12.2. For all disputes arising under the contractual relationship the place
of performance and place of jurisdiction for contracts with merchants entered in
the Commercial Register, with public law entities or with special funds under
public law shall be the registered office of VIVATEQ.
12.3. The same shall apply if, after conclusion of the contract, the
contracting partner transfers its place of domicile or usual place of residence
to another country or if its place of domicile or usual place of residence is
not known.
12.4. If individual provisions of the contract including the present General
Terms and Conditions are or become invalid either in whole or in part, this
shall not affect the validity of the remaining provisions. The provision that is
either wholly or partly invalid is to be replaced by a provision whose economic
outcome approximates as closely as possible to that of the invalid provision.
VIVATEQ GmbH Uhingen/Fils July 2007
