General Terms and Conditions
General Terms and Conditions of Vienco GmbH
As of: November 17, 2017
Section 1 General - scope
- Our Terms and Conditions of Delivery shall apply exclusively; contradictory and/or deviating supplemental terms and conditions of the purchaser from our Terms and Conditions of Delivery shall not be acknowledged by us, unless we have explicitly consented to their validity in writing. Our Terms and Conditions of Delivery shall also apply if we perform the delivery to the purchaser without reservation in awareness of contradictory, supplemental or deviating conditions of the purchaser from our Terms and Conditions of Delivery.
- All agreements that are concluded between us and the purchaser for the purpose of executing this contract shall be laid down in writing in this contract.
- Our Terms and Conditions of Delivery are only valid vis-à-vis companies and/or public-law legal entities or a special public-law fund within the meaning of Section 310 Subsection 1 BGB [German Civil Code] and also for all future transactions with the purchaser.
- Concluded contracts obligate the purchaser to accept and remunerate the ordered deliveries and services.
Section 2 Offer - offer documentation
- Our offers are subject to confirmation. Technical changes and modifications to shape, color and/or weight remain reserved within reasonableness.
- When ordering goods, the purchaser is bound in accordance with Section 145 BGB [German Civil Code]. We are entitled to accept the contract offer in the order within four weeks after receipt by us. The acceptance exclusively takes place by means of a written order confirmation.
- If the order is placed electronically, we will confirm receipt of the order without delay. However, the confirmation of receipt shall not be deemed a binding acceptance of the order. The confirmation of receipt may also be related to the acceptance declaration.
- The conclusion of the contract with the purchaser takes place subject to correct and timely self-delivery by our upstream suppliers. The effectiveness of the reservation of self-delivery depends on a congruent legal transaction having been concluded with the supplier and on us not being at fault for the non-delivery. The purchaser shall be informed without delay about the non-availability of the services. The consideration will be refunded by us without delay, insofar as it has already been paid.
Section 3 Prices — payment terms
- Unless specified otherwise in the order confirmation, our prices are stated “ex works” exclusive of packaging; this is billed separately.
- The respective arranged price is decisive. The statutory sales tax is not included in our prices; it is stated separately in the statutory amount on the date of billing.
- The deduction of a cash discount requires a separate written agreement.
- For deliveries and services, which are not delivered or provided within a period of three months after conclusion of contract, we have the right to adjust the price in accordance with the wage and material cost increases, which have occurred in the meantime. The same applies, notwithstanding the delivery and performance period, for deliveries and services, which are provided within the context of a continuing obligation. If we have arranged the prices with the purchaser on the basis of specific price factors, such as raw material prices, changes to the price factors may also lead to relevant price adjustments, regardless of the delivery and performance period.
- The purchaser undertakes to pay our remuneration net (without any deductions) within 14 days of the bill date. However, we are authorized to arrange installment payments or cash in advance with the purchaser, if no previous business relationship has existed with him, deliveries are to be made abroad, the purchaser has his business address abroad or other reasons exist, which give reason to doubt timely payment after delivery.
- The payment is deemed as having been made on such date on which we can dispose of the owed amount. With the acceptance of checks, the payment is deemed as having been made, if after availability of the check, it is redeemed and credited to us.
- In the event of payment default by the purchaser, we shall be authorized to demand default interest in the amount of 8% above the respective base interest rate. Our right to assert a further default loss remains unaffected by this.
- If a significant deterioration of the purchaser’s financial situation occurs after conclusion of contract or if such deterioration of the financial situation is identifiable after conclusion of contract and our payment claims are therefore at risk, we are authorized to refuse the continued execution of the contract, until the purchaser pays the consideration or provides collateral for it. If the purchaser enters into default with payments, all claims against him shall immediately fall due for payment, regardless of whether they have already been billed or not.
- The purchaser shall only be entitled to set-off rights, if his counter-claims are legally established, undisputed or acknowledged by us. Furthermore, he is only authorized to exercise a right of retention to the extent that his counter-claim is based on the same contractual relationship; furthermore, all rights of retention in commercial transactions are excluded with respect to us - regardless of the underlying legal relationship. The purchaser’s rights are only assignable with our written consent.
Section 4 Delivery period — scope of delivery
- If the time limit for the fulfillment of the order is specified by us and/or arranged with the purchaser, this shall begin with the receipt of our order confirmation, however not prior to the receipt of all documentation, approvals, releases or other information to be provided by the purchaser for order processing, particularly not prior to the clarification of all technical issues.
- The stated delivery periods are non-binding.
- Insofar as we are hindered in timely contract fulfillment due to special circumstances, such as energy shortages, traffic disruptions, strikes, lockouts, unforeseen technical difficulties, delays due to customs law/export law inspection and/or approval processes or other procurement, manufacturing or delivery disruptions, which lie outside of our area of responsibility and verifiably have a significant influence on our fulfillment of the performance obligation, the delivery period for the fulfillment of the order shall extend by the respective time period between the emergence and elimination of this obstacle. This shall also apply, if such circumstances occur with our suppliers or sub-contractors. In the event of an obstacle to performance, we undertake to notify the purchaser without delay, about the emergence, as well as the rectification of the obstacle. The arrangement of the self-delivery reservation in accordance with Section 2 Subsection 4 is not affected by the subsection above.
- Subsequent requests for change and/or amendment by the purchaser, which are arranged with us, lead to an appropriate extension of arranged dates and deadlines.
- We are authorized to provide reasonable partial deliveries and partial services. Premature deliveries or services are permitted, unless explicitly agreed otherwise with you.
- The purchaser undertakes to accept the delivery within an adequate grace period, in the event of delays to the delivery.
- For production technology reasons, we reserve the right to surplus or shortfall deliveries of up to 10% of the ordered number of units, however, at least of one unit.
- If the call-offs are not made by the purchaser within the arranged deadlines for call orders, we are authorized to deliver and bill the quantity that is not called off.
Section 5 Transfer of risk
- Unless agreed otherwise in written form, the risk of accidental loss and accidental deterioration of the goods shall transfer upon handover and, insofar as the shipping is requested, upon delivery of the object to the freight forwarder, the freight carrier or other persons or institutions specified for executing the shipment.
- If the purchaser enters into acceptance default or infringes other cooperation duties, we are authorized to demand the damages incurred by us, including any extra costs. In this case, the risk of accidental loss or accidental deterioration of the purchased object shall transfer to the purchaser at the time when he enters into acceptance default.
Section 6 Cooperation by the purchaser
- The purchaser shall notify us of a contact person, a postal address and an e-mail address, at which the reachability of the contact person is guaranteed. This contact person must be authorized by the purchaser to make or immediately bring about the necessary decisions within the context of order processing. Equally, we shall provide the purchaser with the name of a contact person, who can make or immediately bring about the required decisions for order processing.
- If no contact person has been named in a separate form. The authorized representative of the purchaser stated in the order shall be deemed as the contact person regulated in accordance with Clause 1.
- If the provision of arranged services requires the purchaser’s cooperation, he shall ensure that all required and appropriate information and data are provided in good time and in the necessary quantity.
- If the purchaser fails to fulfill his cooperation duties at all, not fully or not in good time, the performance period shall extend accordingly, until the purchaser satisfies his cooperation duties. Furthermore, the purchaser shall compensate us for costs and damages caused by him, unless the purchaser is not at fault for his breach of duty.
Section 7 Delivery object
- Our details about measurements, weights, services and materials are provided with due care and attention, but without any obligation, unless they are explicitly designated as being binding. The same applies to official design details and proposals. We reserve the right to changes due to technical development.
- Drawings, samples and documentation remain our property. They are not permitted to be disclosed without our explicit consent. In this respect, we refer to the existence of industrial property rights and/or copyrights. Models, tools and other facilities for executing an order shall remain our property at all times, even if we bill the costs proportionally. We are not obligated to retain tools and devices after the delivery of an order.
- A functional final inspection of our products is only part of the delivery item, insofar as this has been arranged separately. In the absence of a separate arrangement, the final functional inspection is incumbent upon the purchaser.
Section 8 Warranty for defects
- The purchaser’s warranty rights require that he has properly fulfilled his investigation and complaint obligations in accordance with Section 377 of the HGB [German Commercial Code].
- We warrant that our products are manufactured in accordance with the latest state-of-the-art and using conscientious working methods. However, defects in respect of our products in terms of hardware and software design, as well as with the production processes, are not always avoidable. For unavoidable defects in this sense, we are only liable for subsequent delivery and/or repair (supplementary performance); in these cases, warranty rights by the purchaser over and above this are excluded. The same applies to functional defects of our products, if we are only obligated to perform a visual inspection and not also a functional inspection and the functional defect could have been discovered in a functional inspection.
- Designated purposes of the purchaser, which go beyond the conventional use of the products or which require a condition, which deviates from the usual, particularly safety-relevant applications, such as aviation and aerospace or automotive use, must be contractually arranged.
- Normal wear and tear from typical use does not constitute a defect. The purchaser shall follow our/the manufacturer’s operational, storage and/or maintenance recommendations. Only authorized changes may be made, proper spare parts must be used as replacement and proper consumable materials must be used, which comply with the required specifications. If infringements of these obligations by the purchaser or third parties directly or indirectly lead to a defect, we shall not accept liability for this.
- We warrant the condition regulated in accordance with Section 7 — except for insignificant discrepancies — with subsequent delivery of a non-defective product or by remedying of the defective condition, at our own discretion, after the purchaser has set an adequate grace period. If we choose supplementary performance by means of remedying the defect, the purchaser shall only have further warranty rights if the remedying of the defect has failed twice. The adequate grace period shall not start before the defect and our contractual obligation are established and proven.
- If the supplementary performance ultimately fails, the purchaser may basically demand reduction of the remuneration (reduction) or cancellation of the contract (withdrawal), at his option. However, the purchaser is not entitled to any right of withdrawal for minor non-conformity with the contract, particularly for only minor defects. With respect to the assertion of a right of withdrawal, as well as a claim for damages, we refer to Section 9.
- The purchaser bears the full burden of proof for all prerequisites for claims, particularly for the defect itself, for the time of ascertainment of the defect and for the timeliness of the notification of defects. At our request, the purchaser shall provide devices or parts for examination and supplementary performance.
- Unless specified otherwise in written form, the warranty period for all products delivered by us is one year. However, it shall lapse prematurely, as soon as the purchaser has attempted to make repairs or alterations and/or if operating instructions have not been followed. The warranty begins with the date of delivery.
- The parts that are replaced within the context of repair or subsequent delivery shall transfer to our ownership and shall be returned by the purchaser, at our request and expense.
- If it emerges that we are providing services on the basis of defects asserted by the purchaser, without a warranty claim having existed, the purchaser shall compensate us for the cost incurred, unless the purchaser is not at fault for this.
- Public statements, promotions or advertising of the manufacturer in particular in prospectuses, brochures etc. shall not constitute any additional specification of quality according to the contract.
- The purchaser is hereby informed that the condition details described in the specifications do not constitute guarantees in the legal sense. Condition details and guarantees over and above product descriptions, as well as guarantees, are only valid as having been declared vis-à-vis the purchaser, if they have been recorded by us in written form.
Section 9 Purchaser’s right of withdrawal and other liability by the seller
- The purchaser may withdraw from the contract, insofar as the entire service ultimately becomes impossible prior to transfer of risk in accordance with Section 5 or the delivery does not take place within an adequate time limit, which may not be less than one month, unless the obstacle to performance is at least mainly caused by the purchaser or it involves a case in accordance with Section 4 Subsection 3 of the provisions at hand. If partial services are possible, which are also otherwise usable by the purchaser after termination of the contract, the right of withdrawal is limited to the parts that have not yet been provided.
- If the impossibility occurs during the acceptance default or due to fault by the purchaser, he shall remain liable for consideration. If partial services have already been provided within the meaning of Subsection 1, a remuneration claim also exists in this respect.
- If the purchaser or a third party makes changes to, or performs repairs on the delivery item without our prior written consent, our liability shall lapse for the resulting consequences. The regulation of Section 8 remains unaffected by this.
- We are liable in the full amount for damages caused with intent.
- We are liable for damages culpably caused by us in cases of gross negligence and for negligent infringement of a duty, which is of major significance for the achievement of the contractual purpose, in the amount of the typical and foreseeable damages. We only assume liability over and above this within the scope of cover of our business liability insurance.
- Liability for damages, which do not occur on the delivery item is excluded, except in cases of intent and gross negligence. Liability for aviation risks, which are directly or indirectly related to the delivery item, is also excluded.
- Liability for personal injury, for the lack of a condition, which we have assumed a guarantee for, as well as for liability under the Product Liability Act, remains unaffected by Subsection 5 and Subsection 6.
- For all claims that are asserted against us for compensation of damages or compensation of futile expenditures in contractual and extra-contractual liability — except in cases of premeditation or for personal injury — a limitation period of one year applies. This time limit begins at the time specified in Section 199 Subsection 2 BGB [German Civil Code]. It occurs no later than with the expiry of the maximum time limits specified in Section 199 Subsection 3 and Subsection 4 BGB [German Civil Code]. The regulation of Section 8 Subsection 7 remains unaffected by this.
- Use of RoHS-compliant alternative articles for the production of the delivery item by us is permitted in each individual case, even without a relevant approval by the purchaser, under the proviso that the technical product specification as such, apart from the process engineering (e.g. processing temperatures) and technical material (RoHs substance limit values) unavoidable modifications, remains unchanged for the respective alternative articles used by us for the production of the delivery item. We point out that the purchaser is obligated to observe the provisions of EU Regulation 2002/95/EG (RoHS) and 2002/96/EG (WEEE), as well as their issued national implementing regulations (Germany: ElektroG [German Electrical and Electronic Equipment Act]) and is particularly responsible for compliance with the corresponding directives for use and disposal.
- Under his own responsibility, the purchaser must ensure that the products sourced by him from us, or parts thereof, are not subject to national and/or international export and/or import restrictions. If products or parts thereof should be subject to an export and/or import restriction, the purchaser shall acquire the necessary export and/or import licenses at his own expense. The purchaser explicitly indemnifies us for any liability and responsibility in respect of third parties in the case of ascertained infringements of export and/or import restrictions — regardless of the legal grounds. In the case of infringement, the purchaser shall furthermore bear all resulting damages. We assume no liability for delivery delays, which result from national and/or international export restrictions or from a delivery not being executed at all, due to national and/or international export restrictions. In this case, we are not liable for any obligation to pay compensation or damages.
§ 10 Reservation of ownership
- We reserve the ownership of the delivery item until receipt of all payments from the business transaction with the purchaser. In the event of anti-contractual behavior by the purchaser, particularly payment default, we are entitled to demand the return of the delivery item. Our taking back of the delivery item shall not constitute a withdrawal from the contract, unless we explicitly declared this in written form. However, our pledging of the delivery item always constitutes a withdrawal from the contract. After taking back the delivery item, we are authorized to dispose of it; the disposal proceeds shall be offset from the purchaser’s liabilities, after deducting appropriate realization costs.
- The purchaser is required to handle the purchased item with care: he is particularly obligated to insure it sufficiently against fire, water and theft damages for the reinstatement value at his own expense. Insofar as servicing and inspection activities are necessary, the purchaser must perform these promptly at his own expense.
- In the case of pledges or other interventions by third parties, the purchaser shall immediately notify us in written form, so that we can file legal action in accordance with Section 771 ZPO [German Code of Civil Procedure]. Insofar as the third party is not able to compensate us for the judicial and extra-judicial costs of a lawsuit in accordance with Section 771 ZPO [German Code of Civil Procedure], the purchaser is liable for the losses which we have incurred.
- The purchaser is entitled to sell the delivery item on in the ordinary course of business; however, he now already assigns to us, all claims in the amount of the final bill (including sales tax), which he generates from the onward sale against his purchasers or third parties, regardless of whether the delivery item has been sold on without or after processing. The purchaser also remains entitled to collect this claim after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake to refrain from collecting the claim, as long as the purchaser fulfills his payment obligations from the received proceeds, he is not in payment default and particularly, no application is filed for the instigation of insolvency proceedings or cessation of payments exists. However, if one of these cases exists, we may demand that the purchaser discloses the assigned claims and their debtors, provides all necessary details for collection, provides the related documentation and notifies the debtors (third parties) about the assignment.
- If the delivery item is inseparably combined with other items, which do not belong to us, we shall acquire the co-ownership of the new item in the proportion of the value of the delivery item to the other combined items, in such a manner that the purchaser’s item is regarded as the main item and that it is deemed as agreed that the purchaser transfers the proportional co-ownership to us. The purchaser shall maintain custody of the sole ownership or co-ownership created in this way for us. The purchaser also assigns to us, the claim to secure our claims against him, which are generated by combining the delivered item with a property against a third party.
- We undertake to release the security to which we are entitled upon request by the purchaser, to the extent that the value of our security exceeds the value of the claims being secured by more than 20%; the selection of the security to be released is at our discretion.
Section 11 Proprietary rights
- All proprietary rights, particularly copyrights or industrial property rights, such as patents, trademarks or industrial designs, as well as right to inventions and know-how, remain exclusively with us.
- If a third party asserts claims, which are contradictory to a basic right of use granted to the purchaser, the purchaser shall notify us about this in written form without delay. The purchaser shall not acknowledge third-party claims without our consent. We shall review the defense of the third-party claims.
Section 12 Rights of use to software
- All rights to software, which is delivered to, or produced for, the purchaser, particularly copyrights, ancillary copyrights and related proprietary rights, shall remain with us and/or the respective rights holder. This also applies if the software has been produced in accordance with specifications, with the involvement of the purchaser.
- If we use the purchaser’s software, all copyrights and other rights remain with the purchaser. We shall only use this software for the contractually arranged purposes. If we require the source code of this software for changes or rectification of defects, the purchaser shall make it available to us free of charge.
- The purchaser is prohibited from any duplication, dissemination, passing on, modification, translation, upgrading and/or other alteration of the software provided by us, as well as decompiling and use of the software as a basis for the development of similar software, provided that this is not explicitly permitted contractually or by law. Ceteris paribus, the respective separate licensing terms and conditions of the software apply.
- The purchaser shall only receive a basic right of use to the software, within the scope required by the contractual purpose. Any use of the software, which goes beyond the respective licensing terms and conditions of the manufacturer and/or us, the contractual arrangements or the contractually agreed purposes, requires our written consent.
- For data backup, the purchaser is permitted to create backup copies, unless the respective license agreement specifies otherwise. Backup copies on mobile data media shall be labeled as such and marked with the copyright notice of the original data medium.
- In the event of unlawful use, which exceeds the granted, basic right of use, we reserve the right, also the software manufacturer, if applicable, to assert claims for damages.
Section 13 Data privacy – non-disclosure
- We point out to the purchaser that the data recorded within the context of conclusion of the contract are collected, processed and used by us in compliance with the regulations of the Federal Data Protection Act (BDSG) to fulfill the duties from the contracts concluded with the purchaser. For the purpose of contract fulfillment and creditworthiness checking, these data may also be sent to affiliated companies or to the parties assigned with fulfillment.
- The contracting parties undertakes to treat all commercial and technical data, which they receive or become aware of from the respective other contracting party during contract execution as business secrets, as long as the other contracting party does not make these publicly accessible.
Section 14 Legal jurisdiction — place of performance
- If the purchaser is a registered trader, our registered office is the legal jurisdiction; however, we are also authorized to sue the purchaser at the court of his place of residence.
- Unless specified otherwise in the order confirmation, our registered office is also the place of performance.
- The law of the Federal Republic of Germany applies. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (UN Sales Convention: CISG) is excluded.
Section 15 Partial invalidity
If a provision of this agreement should be or become invalid or unenforceable, this shall not otherwise affect the validity of the provision. In fact, in place of the invalid and/or unenforceable provision, the parties undertake to arrange such a provision, which comes closest to what was economically intended. The same procedure shall apply for closing any contractual loopholes.