General Terms and Conditions for Businesspersons
1.1. These General Terms and Conditions (hereinafter: “Terms and Conditions”) shall apply to all business transactions between VIVATEQ GmbH (hereinafter: “VIVATEQ”) and the customer, even if they are not referred to in subsequent contracts. Terms and conditions of the customer that conflict with, supplement, or deviate from these Terms and Conditions shall not become part of the contract unless their application is expressly approved by VIVATEQ in writing. These Terms and Conditions shall apply even if VIVATEQ makes a delivery to the customer without reservations whilst being aware of the customer’s conflicting or deviating terms and conditions.
1.2. Agreements which supplement or deviate from these Terms and Conditions and which are made between VIVATEQ and the customer for the performance of a contract must be set out in writing in the contract. This shall also apply to the cancellation of this requirement of the written form.
1.3. Any rights beyond these Terms and Conditions to which VIVATEQ is entitled by law shall remain unaffected.
2. Offer and formation of contract
2.1. Offers from VIVATEQ shall be subject to change and non-binding unless they are expressly stated to be binding. Pictures, drawings and information about weight, performance and measurement shall be approximations only unless they are expressly stated to be binding. Such items shall not constitute an agreement on, or guarantee of, an according quality of the goods. VIVATEQ retains all property rights and copyrights in all offer documents. Such documents may not be made available to third parties.
2.2. Orders shall not become binding until they have been confirmed by VIVATEQ by means of a written order confirmation. Order confirmations that are generated using automatic devices and, therefore, do not contain a name and signature shall be deemed written order confirmations. If VIVATEQ does not respond to offers, orders, requests or other declarations from the customer, this shall only be deemed approval if an express written agreement to this effect has been made between VIVATEQ and the customer. To the extent that an order confirmation contains obvious errors, clerical mistakes or calculation errors, it shall not be binding upon VIVATEQ.
2.3. The formation of any contract shall be conditional upon VIVATEQ being correctly and timely supplied by its own suppliers. This shall only apply, however, if VIVATEQ is not responsible for the non-delivery, in particular, if VIVATEQ has made a corresponding covering transaction with its supplier. VIVATEQ shall notify the customer without undue delay if goods or services are not available. In such cases, the consideration shall be refunded without undue delay.
2.4. Supplementary to VIVATEQ‘s General Terms and Conditions, the special licence and other terms of the respective manufacturer are valid for offers and orders of software, digital content and goods with included third party products. The customer independently advises his buyer of the manufacturers’ End User Licence Agreement (“EULA”).
3.1. Prices shall be charged on the basis of the price list that is valid on the date of delivery, plus value-added tax.
3.2. Unless specifically otherwise agreed, all prices are “ex works” (EXW pursuant to Incoterms® 2010), excluding packaging, transport, insurance and installation.
4. Terms of delivery and transfer of risk
4.1. The scope of the delivery shall be as set out in the written order confirmation from VIVATEQ. Any changes to the scope of the delivery must be approved by VIVATEQ in writing to be valid. VIVATEQ reserves the right to make changes to the construction or form of the goods to the extent that such changes are insignificant and not unreasonable for the customer. VIVATEQ shall have the right to make partial deliveries.
4.2. Delivery periods must be agreed in writing and shall be non-binding unless they are expressly stated to be binding.
4.3. The delivery period shall commence upon dispatch of the order confirmation by VIVATEQ, but not before all documents, permits and approvals to be obtained by the customer have been provided in full, all technical issues have been clarified and the agreed down-payment, if any, has been received.
4.4. The agreed delivery period shall be deemed met if the goods have left the warehouse by the time the delivery period expires or – if the customer has announced that it will refuse acceptance and the goods have not, therefore, left the warehouse – VIVATEQ has given notice that the goods are ready for dispatch. The delivery shall be conditional upon VIVATEQ being timely and properly supplied by its own suppliers.
4.5. If the failure to comply with delivery periods is due to force majeure or other obstacles for which VIVATEQ is not responsible, such as war, terrorist attacks or import and export restrictions, including restrictions affecting VIVATEQ’s suppliers, the agreed delivery periods shall be extended for the duration of the existence of such obstacles. This shall also apply to any industrial action which affects VIVATEQ and/or its suppliers.
4.6. Unless expressly otherwise agreed, delivery shall be “ex works” (EXW pursuant to Incoterms® 2010), which means that the risk of accidental loss or destruction of, or of an accidental deterioration in, the goods shall pass to the customer as soon as the goods have been handed over to the person in charge of carrying out the transport or have left the warehouse of VIVATEQ for shipment. This shall also apply if partial deliveries are made or VIVATEQ has assumed further obligations, such as the transport costs or the assembly of the goods at the customer’s place. At the request and expense of the customer, VIVATEQ shall insure the goods against the risks specified by the customer by taking out a transport insurance policy.
4.7. If the customer defaults on acceptance of the goods or breaches other duties to cooperate, VIVATEQ may claim damages for the losses suffered, including additional expenses, if any, in the sum of 0.5% of the price of the goods included in the delivery, at maximum, however, in the total sum of 5% of the price of the goods included in the delivery. The contracting parties may prove that a larger or smaller amount of additional expenses was actually incurred. The risk of accidental loss or destruction of, or of an accidental deterioration in, the goods shall pass to the customer at the time the customer starts to be in default of acceptance.
4.8. The customer shall – without prejudice to the customer’s claims for defects, if any – be obliged to accept the goods supplied even if they contain minor defects.
5. Terms of payment
5.1. Unless otherwise agreed, the gross price plus the cost of packaging, freight and insurance, where applicable, shall be paid in advance, within 15 days after the order confirmation has been received. Invoices for services provided by VIVATEQ, such as repairs, programming, training, initial operation, etc., shall be payable without deductions within 8 days of the invoice date. Any deduction of a discount for prompt payment must be agreed in writing.
5.2. A payment shall be deemed made when VIVATEQ is able to dispose of the amount at its place of business. If VIVATEQ accepts means of payment other than cash, payment shall also be deemed made when the relevant sum has been credited unconditionally to the bank account of VIVATEQ and/or when VIVATEQ is able to dispose of the sum owed.
5.3. If requests for payment become necessary after the time allowed for payment has expired, the costs incurred in making any such requests for payment shall be charged to the customer.
5.4. VIVATEQ may charge default interest at the rate of 9% above the base rate of the European Central Bank from the due date. This shall not affect VIVATEQ’s right to assert further claims for damages.
5.5. If the customer defaults on payment, VIVATEQ may demand immediate payment in cash of all claims which result from the business relationship and are due and not subject to any defences.
5.6. VIVATEQ shall have the right to make the performance of outstanding deliveries or services contingent upon prepayment or the provision of security if, after the contract has been entered into, circumstances become known which could significantly reduce the customer’s creditworthiness and jeopardize the payment of outstanding claims of VIVATEQ under the relevant contract by the customer. This shall apply accordingly if the customer refuses to pay, or fails to pay, outstanding claims of VIVATEQ and undisputed objections against VIVATEQ’s claims, or objections which have been established by a judgment that cannot be appealed against, do not exist. The customer shall have no right to set its claims off against claims of VIVATEQ or exercise a right to retain with regard to its claims unless the customer’s claims are undisputed or have been established by a judgment that cannot be appealed against. Furthermore, the customer may only exercise a right to retain if the customer’s claims and the claims of VIVATEQ are based on the same contract.
6. Retention of title
6.1. The goods supplied by VIVATEQ shall remain the property of VIVATEQ until all claims resulting from the business relationship have been paid in full. The customer shall be obliged to handle the goods which are subject to this retention-of-title clause with due care for as long as title is retained. In particular, the customer shall be obliged to insure the goods at the customer’s own expense sufficiently, at their replacement value, against damage by fire, water and theft. The customer hereby assigns to VIVATEQ all claims for compensation arising from such insurance. VIVATEQ hereby accepts this assignment. If assigning such claims is not allowed, the customer hereby instructs the insurer to make payments, if any, only to the supplier. This shall not affect any further claims of VIVATEQ. Upon request, the customer shall provide VIVATEQ with evidence of the conclusion of the insurance contract.
6.2. The customer may sell the goods which are subject to this retention-of-title clause only in the ordinary course of business. The customer shall not be authorized to pledge the goods which are subject to this retention-of-title clause, to transfer them by way of security or to make any other dispositions which jeopardize the ownership of VIVATEQ. In the event of attachments or other encroachments by third parties, the customer must notify VIVATEQ without undue delay in writing and provide all the information needed, advise the third party of VIVATEQ’s property rights and assist with the measures taken by VIVATEQ to protect the goods which are subject to this retention-of-title clause.
6.3. The customer hereby assigns to VIVATEQ its claims arising from the resale of the goods, along with all ancillary rights, irrespective of whether the goods which are subject to this retention-of-title clause are resold without or after further processing. VIVATEQ hereby accepts this assignment. If assigning such claims is not allowed, the customer hereby irrevocably instructs the third-party debtor to make payments, if any, only to VIVATEQ. The customer shall be authorized, subject to revocation, to collect the claims which have been assigned to VIVATEQ in its own name as a trustee on behalf of VIVATEQ. All amounts collected must immediately be remitted to VIVATEQ. VIVATEQ may revoke the customer’s authority to collect claims and the customer’s authority to resell the goods if the customer fails to properly perform its payment obligations to VIVATEQ, defaults on payment or stops payment, or if a petition is filed to institute insolvency proceedings against the assets of the customer.
6.4. Any processing or alteration by the customer of the goods which are subject to this retention-of-title clause shall always be carried out on behalf of VIVATEQ. The customer’s right to acquire ownership of the goods which are subject to this retention-of-title clause shall continue to exist as a right to acquire ownership of the processed or altered item. If the goods are processed together with items that are not owned by VIVATEQ, VIVATEQ shall acquire co-ownership of the new item in a proportion that corresponds to the ratio of the value of the goods supplied and the value of the other items processed at the time of processing. In all other respects, the item created through processing or alteration shall be governed by the same provisions that also apply to the goods which are subject to this retention-of-title clause.
6.5. At the request of the customer, VIVATEQ shall be obliged to release the security interests to which VIVATEQ is entitled to the extent that the realizable value of such security interests exceeds VIVATEQ’s claims arising from the business relationship with the customer by more than 10%, upon deduction of the mark-downs customary in the banking business. VIVATEQ may choose which security interests to release.
6.6. In the event that goods are supplied to destinations with other legal systems where the retention-of-title provisions set out in clauses 6.1 to 6.5 above do not provide the same degree of protection as they offer in the Federal Republic of Germany, the customer hereby grants VIVATEQ an equivalent security interest. If the creation of such security interest requires further measures, the customer shall do whatever is necessary to grant VIVATEQ such security interest without undue delay. The customer shall assist with all measures required for, and conducive to, the validity and enforceability of such security interests.
7. Warranty and liability
7.1. The customer’s rights arising from defects shall be contingent upon the customer performing its statutory obligations to inspect and give notice of defects (Sections 377 and 381 German Commercial Code), in particular, on the customer inspecting all goods supplied upon receipt and notifying VIVATEQ upon receipt of the goods without undue delay in writing of any obvious defects and defects that could be identified during such inspection. Hidden defects must be reported to VIVATEQ by the customer in writing without undue delay after such defects have been discovered. In order for the notification to be deemed without undue delay, it must be made within 10 working days if the defects are obvious or could be identified during a proper inspection, and within 10 working days upon discovery if the defects were hidden; this deadline is met if the notification or complaint is received by VIVATEQ before the expiry of the aforesaid period. If the customer fails to carry out a proper inspection and/or give notice of defects, VIVATEQ shall not be liable for the defect. When reporting defects to VIVATEQ, the customer must provide a written description of the defects.
7.2. All claims for remedial action shall be excluded in the event of minor deviations in quality, colour, width, weight, equipment or design which cannot be avoided technically.
7.3. If the goods contain defects, VIVATEQ may, at its option, take remedial action by remedying the defects or delivering goods which are free from defects.
7.4. The customer’s statutory right to rescind the contract shall be excluded if the customer is unable to return the goods or services received and this is not due to the fact that returning the goods or services received is impossible because of their nature, VIVATEQ is not responsible for such inability or the defect is only showed during the processing or alteration of the products. The customer’s right to rescind the contract shall further be excluded if VIVATEQ is not responsible for the defect and if, instead of the goods or services received being returned by the customer, VIVATEQ must pay compensation for the loss of value.
7.5. If the item supplied is not at the place of delivery, the customer shall bear all additional costs and expenses which VIVATEQ incurs as a result of this fact when remedying defects unless such relocation is in line with the agreed use.
7.6. Rights arising from defects shall not exist
- in the event of natural wear and tear (primarily, but not exclusive batteries and illuminates);
- if the relevant quality of the goods or the damage is due to improper handling, storage or maintenance, or to excessive strain or use;
- if the relevant quality of the goods or the damage is due to force majeure, to particular external impacts not intended according to the contract, or to the goods being used in a manner which does not correspond to their contractually intended or customary use.
VIVATEQ shall not be liable for any quality of the goods which is due to their processing or the materials chosen if the design or the material requested by the customer was not included in the range of possible designs or materials offered by VIVATEQ.
7.7. VIVATEQ shall be liable without limitation for damage resulting from breach of guarantee or from death, bodily injury or damage to health. The same shall apply to wilful misconduct and gross negligence, mandatory statutory liability for product defects (especially under the German Product Liability Act), and liability if defects were concealed with fraudulent intent. In cases of slight negligence, VIVATEQ shall only be liable if material obligations are violated which result from the nature of the contract and are of particular importance for achieving the purpose of the contract. If such obligations are violated, and also in the event of default or if performance is impossible, VIVATEQ’s liability shall be limited to the damage that can typically be expected with such contract.
7.8. The limitation period for the customer’s claims for defects shall be 12 months and shall commence when the goods are delivered (transfer of risk). The limitation period for the customer’s claims for defects of used goods shall be 6 months and shall also commence when the goods are delivered (transfer of risk). Except where agreed out of goodwill, the limitation period shall not start anew as a result of a repair or replacement delivery. The above limitation period shall also apply to tort claims which are based on a defect of the goods. VIVATEQ’s unlimited liability for damage resulting from breach of guarantee or from death, bodily injury or damage to health, for wilful misconduct and gross negligence and for product defects shall remain unaffected. The customer’s rights of recourse under Sections 478 and 479 German Civil Code in the event that newly manufactured items are sold to a consumer shall also remain unaffected.
8.1. If the customer breaches the contract, in particular, if the customer defaults on its payment obligations, VIVATEQ shall – without prejudice to its other contractual and statutory rights – have the right to rescind the contract after a reasonable additional period of time set for performance has expired.
8.2. VIVATEQ shall have the right to rescind the contract without setting an additional period of time for performance if the customer stops payment, files for insolvency or applies for the institution of similar proceedings against its assets for debt settlement purposes.
8.3. After notice of rescission has been given, the customer shall grant VIVATEQ or VIVATEQ’s agents without undue delay access to the goods which are subject to the retention-of-title clause and surrender such goods. After a timely announcement to this effect, VIVATEQ may otherwise sell the goods which are subject to the retention-of-title clause in order to achieve the settlement of its due claims against the customer. Upon deduction of reasonable selling costs, the proceeds from sale shall be credited against the customer’s liabilities.
8.4. The provisions of this clause 8 shall not operate to limit statutory rights or claims.
9. Return of goods
9.1. Except in the case of justified complaints pursuant to clause 7 above, goods may only be returned with the prior consent of VIVATEQ. When returning goods, the customer must state the invoice number and the date of the invoice.
9.2. If VIVATEQ issues a credit note, a mark-down of at least 5% of the sales price, in any case, however, EUR 40.00, plus value added tax at the rate applicable from time to time shall be deducted, depending on the state of the goods (new, original packaging, used). The customer may prove that the loss in value or the amount of expenses actually incurred is smaller.
9.3. If VIVATEQ agrees to take back goods, this shall not constitute a rescission of the contract but the customer’s fulfilment of an obligation in lieu of performance under the sales contract.
9.4. VIVATEQ shall not supply goods for test purposes, unless expressly otherwise agreed.
10. Export Regulation
10.1. All products and technical know-how are supplied by VIVATEQ in compliance with the provisions of the German Act on Foreign Trade and Payments (AWG) / the German Foreign Trade and Payments Regulation (AWV) / the EC Dual Use Regulation and the US export provisions currently in force and effect, and are intended for use and to remain in the country of destination agreed with the customer. If the customer intends to re-export products, the customer is obliged to comply with national, European and US American export regulations.
10.2. The customer obtains details of the provisions and regulations currently in force on his own initiative (Bundesamt für Wirtschaft und Ausfuhrkontrolle, [German Federal Office of Economics and Export Controls], 65760 Eschborn/Taunus or Bureau of Industry and Security, Washington, DC 20230). Irrespective of whether the customer indicates the final destination for the products supplied, the customer shall be obliged, on his own responsibility, to obtain any license or permit which may be necessary from the relevant foreign trade authority responsible prior to exporting such products. VIVATEQ has no duty to provide information.
10.3. Any onward supply of products to third parties by the customer with or without VIVATEQ’s knowledge may require the simultaneous transfer of the export license conditions. The customer shall be fully liable in case of noncompliance with the relevant regulations.
11. Final provisions
11.1. The legal relationship between the customer and VIVATEQ shall be governed exclusively by the laws of the Federal Republic of Germany, without regard to the United Nations Convention on Contracts for the International Sale of Goods (CISG).
11.2. The exclusive place of jurisdiction for all claims against businesspersons and legal persons under public law arising out of the business relationship shall be VIVATEQ’s place of business. However, VIVATEQ shall additionally have the right to sue the customer at the customer’s place of business or at any other permissible place of jurisdiction.
11.3. If goods or services are delivered to a place outside of Germany, VIVATEQ’s place of business shall be the exclusive place of jurisdiction for all disputes arising out of the contractual relationship (Article 23 of Council Regulation (EC) No 44/2001). However, VIVATEQ reserves the right to sue the customer at the customer’s general place of jurisdiction or before any other court of competent jurisdiction pursuant to Council Regulation (EC) No 44/2001.
11.4. The place of performance for all obligations that are to be performed by the customer and by VIVATEQ shall be VIVATEQ’s place of business.
11.5. Any assignment by the customer of its rights and obligations, or any part thereof, to a third party shall be subject to written approval by VIVATEQ.
Uhingen/Fils January 2017