Perfect Visual Solutions
Perfect Visual Solutions
§1 Scope of Terms and Conditions, Exclusion of Conflicting Terms and Conditions
(1) Our General Terms and Conditions shall apply to all our offers, deliveries and services. The following Terms and Conditions shall only apply to entrepreneurs according to Section 14 German Civil Code, legal entities under public law or an asset under public law (hereinafter referred to as the „Customer").
(2) Within a permanent business relationship, our General Terms and Conditions shall also apply to all our future offers, deliveries and performances relating to the Customer without requiring any further reference or agreement.
(3) Our General Terms and Conditions shall apply exclusively. We shall not accept different general terms and conditions of the Customer unless they have been confirmed by us in writing.
§2 Conclusion of Contract, Scope of the Delivery, Prohibition of Assignment
(1) As a general rule, our offers are free of charge and non-binding, unless agreed upon otherwise in writing. Our offers are subject to change and are non-binding. Any deal or agreement requires our written acceptance of order or our delivery of the goods. The same shall apply to any amendments, changes or side agreements.
(2) Our written acceptance of order or, in the event of lack of such acceptance of order, our offer shall be authoritative for the scope of delivery and the service to be rendered.
(3) All information about our products, in particular pictures, sizes, performance criteria and any other technical data contained in our offers and brochures shall be regarded as approximate average values. Tolerances in quantity, weight, number of pieces and dimensions customary in this line of business are expressly reserved.
(4) All documents and data on which our offer is based, such as technical drawings, illustrations, descriptions, weights and sizes, shall only be binding if expressly agreed upon in writing. We reserve the right to make minor changes and modifications to the extent such changes or modifications do not substantially impair the purpose of the contract and the delivery. All our documents and data remain our property. Such documents may neither be retained nor copied or otherwise reproduced or made available to third par-ties by the Customer and have to be handed out to us immediately upon our request. Even if we leave these documents to the Customer, our intellectual property rights remain unaffected hereby.
(5) The Customer shall not be entitled to assign any claims against us without our prior written consent. The same shall apply to any of the Customer's claims against us in connection with the contractual relationship which have arisen by operation of law.
§ 3 Delivery Times
(1) The delivery period arises from the agreements of the contract parties.
(2) The term of delivery agreed upon shall be considered as a term of delivery aimed at, unless agreed upon otherwise in writing.
(3) The term of delivery agreed upon shall begin at the earliest with the date of conclusion of contract, however, not before complete clarification of all commercial and technical questions and not before delivery of all necessary documents and approvals to be provided by the Customer and/or receipt of any advance payments that may have been agreed upon.
(4) The adherence to a delivery deadline shall require a proper and timely de-livery on the part of our suppliers.
(5) Delivery is made ex works, Incoterms 2010. The Customer shall be obliged to collect the goods immediately after notification that the goods are ready for shipment from our works.
(6) The term of delivery concerning delivery ex works, Incoterms 2010, shall be deemed complied with if the item to be delivered has been set aside and this has been notified to the Customer. In the case of a sale involving the carriage of goods, the term of delivery shall be deemed complied with if, within the period agreed, the item that has to be delivered has been handed over to a person in charge of the transport or the item has been ready for handing over and could not be handed over without our fault.
(7) A term of delivery shall be extended appropriately in the event of Force Majeure or any unforeseen obstacles which affect us or our suppliers. Such an unforeseen and extraordinary obstacle shall be particularly given in the event of unrest, strike, lock-out, fire, confiscation, embargo, statutory or official orders and constraints or incorrect and/or delayed self-supply, if and to the extent such obstacles have not been culpably caused by us and such obstacles have influence on our ability to timely fulfil our obligations under the contract. If due to such circumstances the term of delivery shall be ex-tended for a commensurate period of time, the Customer shall be entitled to withdraw from the contract after expiry of such extended term of delivery. If the Customer is interested in partial performance of the contract, he may withdraw from such part of the contract that is yet unfulfilled. If we have al-ready performed in part, the Customer may only withdraw from the entire contract if the Customer can evidence that he has no interest in partial de-livery and/or service by us. Further statutory or contractual rights to with-draw from the contract remain unaffected hereby.
(8) If the Customer is in default in accepting delivery or can otherwise be held responsible for a delay in dispatch, we shall be entitled to store the products at the risk and expense of the Customer. If we set the Customer a deadline for accepting the products, but to no avail, then we may withdraw from the contract and demand compensation for damages in lieu of performance, without prejudice to further rights.
(9) If we should be in delay of delivery and after a reasonable grace period de-fined by the Customer has expired unsuccessfully, the Customer shall be entitled to withdraw from the entire contract or, if the Customer is interested in partial performance of the contract, withdraw from such part of the contract that is yet unfulfilled. Further claims of any kind, in particular claims for damages based on bad performance or damage caused by delay, are excluded. § 8 remains unaffected hereby. If and to the extent we are liable for damages caused by delay according to § 8, the Customer is entitled to claim compensation for the default, which shall amount to 0,5% of the contract price for every full week of the delay, but not more than 5% in the aggregate amount, for that part of the delivery which cannot be used in time because of the delay. The parties are free to demonstrate that the actual damage actually incurred was higher or lower than this amount.
(10) We are entitled to deliver before the expiry of the delivery date and to de-liver in partial deliveries, unless agreed upon otherwise in writing.
§4 Prices, Payments, Partial Payments
(1) Our stipulated prices shall be on an Ex Works Reutlingen basis and are net prices excluding VAT at the rate applicable at a time (even if not separately shown), costs for packaging, freight, assembly, postal charges, insurance costs, customs duties, any costs for bank or payment transactions as well as any other additional costs will have to be paid in addition.
(2) Unless agreed upon otherwise, the following payment terms shall apply:
- 45 % of the agreed amount at the time of the conclusion of the contract
- 45 % of the agreed amount upon notification of readiness to deliver
- 10 % of the agreed amount upon acceptance, at the latest 4 weeks after delivery or notification of readiness, if the delivery is delayed for reasons for which the Customer is responsible.
(3) Our invoices are immediately due for payment without any deduction.
(4) At the latest 30 days after the receipt of the invoice the Customer shall be deemed in delay unless circumstances exist (e.g. reminder or a shorter payment term or a payment term determinable by calendar) that cause the Customer to be deemed in delay earlier. When the Customers is in delay of payment, the Customer shall pay interest at a rate of annually 8 percentage points above the base interest rate.
(5) In the event of delay of payment we are entitled to make any further deliveries dependant on the complete settlement of such outstanding payments.
(6) Unless agreed upon otherwise in writing, we are entitled to unilaterally raise the prices and/or charges for freight in the event of substantial increases of salaries, prices of raw materials and supplies, energy costs, costs for freight and customs duties or other materials. The same shall apply to contracts for the performance of a continuing obligation.
(7) Furthermore, we are entitled to refuse our performance if and to the extent circumstances become known after the conclusion of the contract that give cause to reasonable doubts that the Customer will - in total or in part - not duly or timely perform, unless the Customer has provided adequate securities. This applies in particular if our commercial credit insurer refuses to in-sure the risk of non-payment of the purchase price after the conclusion of the contract.
(8) The Customer may only offset receivables due to us with counter claims, if such counter claims are undisputed or have been established by a court of law in an unappealable manner.
(9) Cheques and drafts will only be accepted as means of payment after previous agreement in writing. Any costs incurred by us resulting from such a payment shall be borne by the Customer.
§5 Passing of Risk, Dispatch, Packaging
(1) Unless agreed upon otherwise, it is agreed that our deliveries shall be carried out on an "ex works" basis, Incoterms 2010. Accordingly, the risk of accidental deterioration or accidental loss shall pass to the Customer as soon as the Customer is notified of the readiness for dispatch and the delivery item is set aside. This shall also apply if we have provided additional services such as loading, transport or unloading. If the performance is delayed due to reasons caused by the Customer, we shall be entitled to store the goods for the account and at the risk of the Customer at our own discretion and to then calculate the price of the goods ex works.
(2) If a sale of dispatch is agreed upon, the risk of accidental deterioration or accidental loss shall pass to the Customer no later than with the dispatch of the delivery item respectively when the delivery item is handed over to the person in charge of the transport ex works or at the place of dispatch. If the delivery is delayed due to reasons caused by the Customer, the risk shall al-ready pass with the notification of readiness for dispatch. § 5 subsection (1) sentence 4 shall apply accordingly.
(3) If a transport and/or a packaging to be performed by us is agreed upon, we may at our discretion determine the method of packaging and dispatch.
(4) Upon the Customer´s request, we shall insure the respective shipment in its name and at its costs against theft, breakage, transportation, fire and water damages. A corresponding authority shall be deemed given to us by expression of the demand in the aforementioned sense.
§6 Retention of Title
(1) We retain the title to all goods delivered by us until complete fulfilment of all claims resulting from the business connection with the Customer including claims resulting from cheques and drafts. If payment is agreed upon with the Customer on the basis of cheque-draft-procedure, the retention of title shall last until the danger of recourse has ceased to exist.
(2) The Customer shall handle the goods subject to retention of title with care; in particular, he shall adequately insure these goods at replacement value against damages caused by fire, water and theft. If and to the extent maintenance and inspection services are required, these services shall be effected by the Customer in a timely manner.
(3) The Customer shall, at any time upon our request and in the event of an in-solvency application clearly mark the goods subject to retention of title as "property of eyevis Gesellschaft für Projektions- und Großbildtechnik mbH".
(4) Any processing of the delivered goods by the Customer will be done for us as producer according to § 950 German Civil Code. If the delivered item is processed or inseperably connected with other items not belonging to us, we acquire joint ownership of the new goods. The share of the joint ownership corresponds to the relation of the invoice value of the delivered item to the invoice values of the other used items. The Customer is authorized to process the delivered item in the ordinary course of business, provided that the aforementioned security interests are preserved.
(5) The Customer is entitled to sell the delivered items in the ordinary course of business provided that the extended retention of title (assignment of claims according to subsection (6) below) is ensured. Any other acts of disposal, in particular transfer, transfer by way of security, pledge or the like shall not be permitted.
(6) The Customer hereby assigns to us all claims resulting from the resale of the delivered goods to third parties. We hereby accept this assignment. If the good subject to retention of title is jointly owned by us, such assignment shall only relate to the amount of our claims against the Customer.
(7) The Customer is authorized to collect the assigned claims for the account of us in his own name in the ordinary course of business and only revocably. Any revocation may only occur if the Customer has not correctly fulfilled his duties, in particular his payment duties, if he is insolvent or unable to pay, if he has applied for the opening of an insolvency proceeding or the opening of such proceeding has been refused due to lack of sufficient as-sets. If the permission to collect has been revoked, the Customer shall notify the debtor of the assignment. Furthermore we are entitled to disclose the ex-tended retention of title to the Customer's client.
(8) The Customer's authorization to dispose of, to process or to collect the as-signed claims shall terminate without express revocation in the event an in-solvency proceeding is opened or the opening is refused due to lack of sufficient assets, cessation of payments, a filing for insolvency concerning the Customer's assets by the Customer or a third party or in the event of establishment of inability to pay or over-indebtedness. In these events as well as in the events of § 6 subsection (7) we are entitled to withdraw from the contract and to request the return of the good subject to retention of title after reminder and fruitless expiry of an appropriate additional respite. The Customer is obliged to release such goods. The proceeds resulting from the collection of the goods subject to retention of title minus the collection costs shall be deducted from the obligations vis-à-vis us.
(9) In the event the Customer's authorization to collect the assigned claims is revoked, the Customer shall immediately disclose to us in writing the name of the assigned claim's debtor and the amount of the claims.
(10) If the realisable value of the securities allowed according to the above-stated regulations exceeds our claims more than 20 %, we will at our discretion release our securities upon the Customer's request.
(11) The Customer shall immediately inform us in writing about third parties' access to the goods subject to retention of title, the assigned claims or any other documents and data. Any costs incurred by a legal defence of the goods subject to retention of title including costs vis-à-vis third parties shall be borne by the Customer.
(1) We are to be held responsible for material defects and defects of title existing at the time of the passing of risk according to the following provisions.
(2) Any warranty rights are available to the original purchaser only and may not be assigned to a third party without our consent.
(3) Certain characteristics are only considered as warranted if expressly con-firmed in writing. A guarantee shall only be deemed issued if a characteristic is expressly denominated as „guaranteed" in writing.
(4) The Customer shall immediately give notice in writing of any kind of obvious material defects, deviations in quantity and false deliveries, at the latest within one week after delivery, in any case before connection, mixture, processing or installation; otherwise, the goods are considered to be approved despite these defects, unless we, our legal agents or our vicarious agents have acted with fraudulent intent. The Customer shall immediately give notice in writing of any hidden material defects, at the latest within 7 days after their discovery. In addition, Sections 377, 378 German Commercial Code shall apply.
(5) The Customer shall give us the opportunity to jointly assess the notified complaints and to be present at any withdrawal for material examination.
(6) If the delivered item is used for a building according to its intended use and has caused the building's defectiveness, the limitation period shall be 5 years after the delivery date. All other claims for defects are subject to a limitation period of 12 months after the delivery date.
(7) Our warranty for defects of quality and defects of title shall be limited to supplementary performance. Within the scope of our supplementary performance obligation, we are entitled, at our discretion, either to remedy the defect (supplementary performance) or to the delivery of faultless material (replacement). If our supplementary performance is delayed beyond a commensurate period of time or if the supplementary performance is unsuccessful despite repeated efforts, the Customer is entitled to reduce the purchase price or to withdraw from the contract. A withdrawal from the contract is excluded if the defect is irrelevant. Furthermore, in the event of faultless partial deliveries, the Customer may only withdraw from the entire contract if he can evidence that he has no interest in the partial performance. Further claims, in particular claims for reimbursement of expenses and claims for damages, are excluded unless provided otherwise in the following § 8. We shall take title to the replaced parts or, as the case may be, they remain our property and they shall be returned to us upon our request.
(8) The Customer shall return the defective good to us for subsequent improvement or replacement at his own risk, unless a reshipment is not possible because of the kind of delivery. We shall bear the costs for transportation due to supplementary performance, however only from the place where the good has been delivered to according to the terms of con-tract and limited by the amount of the purchase price.
(9) The Customer has to give us the necessary time and opportunity for subsequent improvement or replacement. Only in the event of urgent cases of risk to the plant safety, the protection against unreasonably high damages or de-lay with the removal of defects, the Customer shall be entitled to cure the defect by himself or by a third party after prior notice and to demand from us restitution of the necessary costs.
(10) Claims for recourse according to Sections 478, 479 German Civil Code are excluded, unless the claim by the consumer was legitimate and only within the limits of statutory regulations except for gestures of goodwill which were not coordinated with us. Such claims require the observation of own duties of the person entitled to recourse, in particular the observation of the requirement to make a complaint in respect of a defect immediately on receipt of goods.
(11) The processing or installation of delivered items is always deemed to be a waiver of the notice of defects to the extent the defect was obvious.
(12) In the event of legitimate notices of defects, payments by the Customer may only be withheld in an adequate proportion to the material defects occurred. In the event of an unjustified notice of defects, we are entitled to demand from the Customer reimbursement of the expenses resulting therefrom.
(13) Claims based on defects are excluded in the event of minor deviations from the agreed or usual characteristics or utility, e.g. minor differences in colour, dimension and/or quality or performance features of the products.
(14) The recognition of a material defect always requires the written form.
(15) There shall be no warranty obligation if the intended use of the delivery item by the Customer deviates from the common use, unless agreed upon in writing.
(16) The warranty rights only extent to new products. Unless agreed upon otherwise, used products are sold as is under exclusion of any warranty rights.
(17) Any Customer who is a reseller shall keep a sufficient stock of spare parts in order to react quickly when removing a defective part.
(18) Fair wear and tear, damage caused by the buyer's or any third party's de-fault, negligence or misuse of the Products, including the accidental or de-liberate destruction of or damage to the Products is not subject to any warranty rights.
(19) Additional warranty and service programs may be agreed upon from case to case, including, but not limited to warranty extensions, hotline programs and maintenance programs.
(1) Our liability for damages, out of which legal reasons whatsoever, is limited to
a) our acts of intent or gross negligence including acts of our legal agents and vicarious agents
b) culpable injury of life, body, health
c) culpable material breach of contract
d) if we have intentionally misrepresented the defect by silence or if we have guaranteed the absence of defects
e) to the extent we are liable for personal and material damages with respect to privately used items under the German Product Liability Act.
Further claims for damages are excluded.
(2) A contractual obligation shall be material if its fulfilment is a precondition for the proper performance of the contract and on the observance of which the contractual partner generally relies and may rely.
(3) In the event of a culpable breach of a material contractual obligation, our liability is limited to losses reasonably foreseeable and typical for this kind of contract.
(4) The foreseeable loss typical for this kind of contract shall generally be the amount of the contract value of the particular performance.
§ 9 Installation and Commissioning
(1) If an installation and commissioning is subject of the Agreement, our prices are based on the condition that a smooth installation process is ensured. If additional costs incur to us due to the following circumstances, we will in-voice them to the Customer at the installation rates as applicable at a time:
a) costs for overtime work;
b) interruption of the installation so that new arrivals and departures be-come necessary;
c) the chaining with devices which are not within the scope of delivery;
d) the construction of foundations and works on the foundation;
e) air and electrical supply of the equipment;
f) waiting periods;
g) necessary works which have to be effected onsite or on Customer's side which have not been executed in time or incorrectly;
h) a workplace which is not prepared or not tidied up;
i) if parts or components of the equipment cannot be unloaded at the installation site in time or as agreed upon;
j) if we are supplied with components for testing which are defective, non-conforming or which deviate from drawings;
§10 Installation Conditions
If installation services are subject of the agreement, the following conditions shall apply in addition:
(1) The Customer shall ensure that a cleaned installation site is provided to our staff.
(2) Maintenance staff and system operators of the Customer shall be present in order to support our personnel.
(3) The Customers shall place additional workers, tools, equipment, lubricants, energy supply, water and the like at our disposal, as far as it is necessary for the installation work.
(4) The Customer shall provide our personnel with a lockable room for the safe storage of our tools. The Customer shall insure our tools against theft, fire and water damages.
(5) The Customer guarantees that the installation works will not be carried out under dangerous or unhealthy conditions, and shall take all necessary measures to protect our personnel against all security or health risks.
(6) The Customer further guarantees that our personnel is correctly and completely informed about the applicable safety requirements at the installation site.
(7) The Customer shall be responsible for the operation of the system during remote maintenance. The Customer shall examine whether the performances required by us are not in conflict with the situation of the system. This shall also apply during the warranty period of the system. This shall not ap-ply in the event the system is operated by our personnel onsite.
(8) The Customer shall inform us about the applicable statutory, official and other regulations which apply to the installation works and the operation of the system as well as to health protection and accident prevention.
(9) The Customer shall assist our personnel in carrying out the services at its own cost.
(10) The Customer shall take necessary special measures for protection of per-sons and property at the installation site and to advise our installation manager of any existing special safety regulations such as may be of significance to our personnel.
(11) The Customer's technical assistance shall ensure that installation can commence immediately upon the arrival of our personnel and can be continued without delay until the Customer's acceptance.
(12) If the Customer does not adhere to its obligations, we are entitled, but not obliged, to take actions on behalf of the Customer and at the Customer's cost. This shall not affect any of our statutory rights and claims.
(13) The Customer is not entitled to engage our personnel in any non-contractual services without our prior written consent.
(14) The Customer shall be responsible for a regular data backup. In the event of a loss of data caused by the Customer, our liability shall therefore - subject to § 8 - be limited to the costs which would have occurred in case of a proper data backup of the Customer, especially costs for copies of data of safety copies and the recovery of data, which would have been lost also in the case of a correctly executed backup.
(15) The Customer guarantees the proper disposal of the material, which has to be disposed after the completion of the work.
§11 Terms for Preliminary Acceptance and Final Acceptance
(1) If a preliminary acceptance is agreed upon at our works, this shall occur in consultation with the Costumer. The result of preliminary acceptance shall be recorded in a written preliminary acceptance protocol.
(2) If a preliminary acceptance cannot take place due to reasons the Costumer is reasonable for, our internal acceptance protocol shall be deemed to be the preliminary acceptance protocol.
(3) If a final acceptance is agreed upon, this shall take place in consultation with the Costumer at the Costumer's works.
(4) The Costumer shall be required to accept our works upon our notification of their completion and, if applicable, after any contractually agreed testing has been conducted.
(5) The Customer shall inform us about any deviations from the specifications or the agreed characteristics immediately upon their discovery in text form. The notification shall contain a sufficiently precise description of the observed deviation in order to allow us to identify and eliminate the deviation.
(6) The Costumer may not refuse the final acceptance due to minor defects. Such defects shall be remedied within the scope of our warranty obligations.
(7) Substantial defects shall be rectified as soon as possible and shall be submitted to the Customer for acceptance; the new acceptance test shall be limited to the assessment of the removal of the defects. Minor defects shall be documented in the acceptance protocol in writing and shall be remedied within the scope of our warranty obligations.
(8) Should the Customer refuse acceptance without justification or without giving any reasons, we reserve the right to set a 14 days period of time for acceptance. The acceptance shall be deemed to have been granted if the Customer has not accepted the work within this period of time or if the Customer hasn't specified any substantial defects in writing.
(9) In any case, the work result shall be deemed accepted if the Costumer is using it or could use it productively. From such time, the warranty period shall start and we have a claim for payment of the outstanding balance.
(10) The Customer shall not be entitled to refuse final acceptance due to disruptions during final acceptance for which we are not responsible.
(11) The Customer shall provide skilled operating personnel necessary for the final acceptance in due time and free of charge.
(12) Our liability for obvious defects ceases to exist upon final acceptance unless the Costumer has explicitly reserved the right to assert a claim for a defect known to the Customer.
§12 Export Control, Import and Export Trade
(1) The fulfilment of the contract shall be subject to the proviso that all necessary export permits are issued and that no other legal obstacles based on German, European or other applicable export regulations exist. The Customer shall observe all applicable export regulations.
(2) We are entitled to withdraw from an import- or export contract, if we or our suppliers have not obtained the required approvals or if the implementation of the contract is or becomes impossible due to official prohibitions. The Customer is not entitled to derive any rights therefrom.
§13 Place of Performance, Place of Jurisdiction, Applicable Law
(1) For all claims arising out of the business relationship between the Customer and us, the place of performance shall be Reutlingen, Germany.
(2) The exclusive place of jurisdiction for all claims resulting from the business relationship including claims from cheques and drafts shall be the place of performance. We are also authorized, however, to sue our Customer at his general place of jurisdiction.
(3) All disputes arising from contracts to which these General Terms and Conditions apply and all disputes arising from business relationship between us and our Customer shall exclusively be governed by German law excluding the rules of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and international private law.
§14 Final Clauses
Should one or another provision of these General Terms and Conditions be or become fully or partly invalid, the validity of the remaining provisions shall re-main unaffected hereby.
eyevis Gesellschaft für Projektions- und Großbildtechnik GmbH
As at: April 8th, 2014