General Terms and Conditions of VISTAN BRILLEN GmbH, Wilhelmstraße 16, D-73525 Schwäbisch Gmünd
1. All our deliveries and services are exclusively provided on the basis of these General Terms and Conditions. These form an integral part of all contracts which we enter into with our contractual partners for the deliveries or services offered by us. These shall also apply to all future deliveries, services or offers to our contractual partners, even if they are not separately agreed again.
2. The terms and conditions of our contractual partners or third parties shall not apply, even if we do not separately object to their validity in individual cases. Even in the event of reference to a letter that contains or refers to the terms and conditions of our contractual partner or a third party, this shall not constitute an agreement to the validity of those terms and conditions.
3. Additions and amendments to the agreement, including these General Terms and Conditions, must be made in writing in order to be effective. With the exception of managing directors or authorised signatories, the Seller's employees are not entitled to conclude verbal agreements deviating from this.
II. Offer/Conclusion of agreement
1. Our offers are invitations to enter into an agreement, i.e., subject to amendments and non-binding, unless expressly marked as binding or contain a specific acceptance period. We can accept orders or commissions within 14 days of receipt. Cost estimates are non-binding.
2. The documents belonging to the offer (illustrations, dimensions, etc.) are only binding if this has been expressly confirmed in writing.
3.For the purposes of the legal relationship between us and the contractual partner, the order and the order confirmation, including these General Terms and Conditions, shall apply only. These fully reflect all agreements between the contracting parties on the subject matter of the agreement. Regulations in the order confirmation take precedence over these General Terms and Conditions. Oral promises made by us prior to the conclusion of this agreement are not legally binding and oral agreements between the contracting parties shall be replaced by the written contract, unless it is expressly provided in individual case that they shall continue to be in force.
III. Delivery and delivery time
1. If not otherwise agreed deliveries are EXW Incoterms 2020, Wilhelmsstr. 16, Schäwbisch Gmünd, Germany. Deadlines and dates for deliveries and services we provide are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.
2. We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, pandemics, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which we are not responsible. If such events make it considerably more difficult or impossible for us to deliver or perform and the hindrance is not only of temporary duration, we are entitled to withdraw from the agreement. In the event of temporary hindrances, the delivery or service deadlines shall be extended or postponed by the period of the hindrance plus a reasonable start-up period. Insofar as our contractual partner cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the agreement by means of an immediate written declaration to us.
3. Without prejudice to our rights arising from default of the contractual partner, we may demand to our contractual partner an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period of time during which the contractual partner fails to fulfil its obligations.
4. We are entitled to make partial deliveries if (a) the partial delivery is usable for the contractual partner within the scope of the contractual purpose, (b) the delivery of the remaining ordered goods is ensured and (c) the contractual partner does not incur significant additional expenses or costs as a result (unless we agree to bear these costs).
IV. Prices / Terms of payment
1. Our prices shall be deemed ex works and, unless otherwise agreed, net, i.e., the value added tax valid on the day of invoicing must still be added. Costs for packaging, freight, insurance are not included and will be charged separately.
2. Offsetting against counterclaims of the Client or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established. The contractual partner may only exercise rights of retention if its counterclaim is based on the same contractual relationship.
3. We grant a discount of 2% for payment within 14 days. The timeliness of all payments depends on the crediting of the payment amount to our account in the case of bank transfers, and on the receipt of the cheque in our company in the case of payment by cheque.
4. We are entitled to execute or provide outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, we become aware of circumstances which are likely to substantially reduce the creditworthiness of the contractual partner and as a result of which the payment of our outstanding claims by the contractual partner from the respective contractual relationship (including from other individual orders to which the same framework agreement applies) is jeopardised.
V. Place of performance, transfer of risk
1. Our registered office shall be the place of performance for all obligations arising from the contractual relationship. In accordance with Clause III, Paragraph 1 of these General Terms and Conditions, the risk shall be transferred to the contractual partner at the latest when the delivery item is made available to the forwarder, carrier or other third party designated to carry out the shipment. We have no obligation vis-à-vis the contractual partner to conclude an insurance contract. If dispatch or handover is delayed as a result of a circumstance the cause of which lies with the contractual partner, the risk shall pass to the contractual partner when the delivery item is ready for dispatch and we have notified the contractual partner of this.
2. Storage costs after transfer of risk shall be borne by the contractual partner. In the event of storage by us, the storage costs shall amount to 0.25 % of the invoice amount of the delivery items to be stored per expired week. We reserve the right to claim further and allow the proof of lower storage costs.
VI. Retention of title
1. The delivery item remains our property (“Reserved Goods”) until it has been paid for in full. In the event of breaches of duty by our contractual partner, in particular in the event of default in payment, we shall be entitled - after the unsuccessful expiry of a reasonable deadline set for the contractual partner to perform - to withdraw from the agreement and to demand surrender of the delivery item; the statutory cases concerning the dispensability of setting a deadline shall remain unaffected.
2. If the goods subject to retention of title are processed by the contractual partner, it is agreed that the processing shall be carried out in our name and for our account as manufacturer and that we shall acquire direct ownership or - if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the goods subject to retention of title - the co-ownership (fractional ownership) of the newly created item, in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that no such acquisition of ownership should occur on our part, the contractual partner shall as of now transfer its future ownership or - in the above-mentioned ratio - co-ownership of the newly created item to us as security. If the Reserved Goods are combined with other items to form a uniform item or are inseparably mixed and if one of the other items is to be regarded as the main item, the contractual partner shall transfer to us pro rata co-ownership of the item in the above-mentioned ratio insofar as this main item belongs to it.
3. Our contractual partner is entitled to dispose of the delivery item in the ordinary course of business. Pledges or transfers of ownership by way of security are not permitted. The claims arising from the resale or any other legal ground with regard to the delivery item are assigned to us by our contractual partner in full by way of security. We accept the assignment. Our contractual partner is entitled to collect the claim assigned to us for its account in its own name. This right can be revoked. If we make use of our securities ourselves, the contractual partner shall indicate the name and address of the third party and provide all notifications required to assert the rights.
4. If the value of the security exceeds our total claim by more than 10%, we shall retransfer it at the request of the contractual partner.
VII. Warranty, liability
1. The delivered items are to be carefully inspected immediately after delivery to the contractual partner or to the designated third party. With regard to obvious defects or other defects which would have been recognisable in the course of an immediate, careful examination, they shall be deemed to have been approved by the contractual partner if we do not receive a written notice of defects within seven working days after delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the contractual partner if we do not receive notification of the defect within seven working days after the time at which the defect became apparent; however, if the defect was already apparent at an earlier time during normal use, this earlier time shall be decisive for the commencement of the notice period. At our request, a rejected delivery item shall be returned to us free of carriage costs. In the event of a justified complaint, we shall reimburse the costs of the most favourable shipping route; this shall not apply insofar as the costs increase because the delivery item is located at a place other than the place of intended use.
2. The provisions of the German Civil Code shall apply to the warranty, unless otherwise agreed below.
3. In the event of material defects in the delivered items, we shall be obliged and entitled to rectify the defect or to make a replacement delivery at our discretion within a reasonable period of time. In the event of failure, i.e., impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the contractual partner may withdraw from the contract or reduce the purchase price appropriately.
4. The limitation period for warranty rights is 12 months from delivery. The reduction of the limitation period does not apply to claims on account of wrongful intent or gross negligence or claims for damages due to culpable injury to life, body, health, to claims due to fraudulent concealment of a defect, within the scope of a given guarantee or in the event of the assumption of a procurement risk and not to recourse claims in the event of resales within the meaning of §§ 445a, 445b German Civil Code (BGB).
5. We shall be liable for damages in the event of intent and gross negligence, culpable injury to life, limb or health, in the event of defects which we have fraudulently concealed, within the scope of any warranty promise or assumption of a procurement risk, in the event of delay insofar as a fixed delivery date was agreed and in the event of liability under the Product Liability Act. In the event of culpable breach of material contractual obligations (the fulfilment of which is a prerequisite for the proper performance of the agreement and compliance with which the client may regularly rely on), we shall also be liable in the event of slightly negligent breach, but then limited to the reasonably foreseeable damage typical for the agreement. Further claims for damages, on whatever legal grounds, are excluded. The limitation of liability applies to claims for reimbursement of expenses according to § 284 German Civil Code (BGB).
VIIa Obligations of the contracting party to comply with the EU Medical Devices Regulation
1. Before providing the spectacle frames or lenses supplied by us, the contractual partner is obliged to check whether the product or its packaging bears a CE marking and the product is identifiable. Insofar as the contractual partner uses a sampling procedure to fulfil its inspection obligations for our products in accordance with Article 14 (2) of Regulation (EU) 2017/745, the application of such procedure shall be its own responsibility.
2. If the contractual partner receives information from the market that a product supplied by us is the subject of a complaint, it shall inform us immediately. The contractual partner shall provide us with all necessary information about the product and, if applicable, the end user from its customer register in accordance with data protection regulations. The contractual partner shall carry out the procedure set out in Art. 14(5) of Regulation (EU) 2017/745 itself.
3. The contractual partner shall store spectacle lenses and spectacle frames in a closed, dry and, if necessary, temperature-controlled room or transport them in suitable packaging.
4. The contractual partner shall inform us immediately if it is of the opinion or has reason to believe that a product supplied by us does not comply with the EU Medical Devices Regulation and/or the product poses a serious risk. When acquiring such a product, the contractual partner shall cooperate with us to ensure that, if necessary, the necessary corrective measures are taken to bring the product into conformity, to withdraw it from the market or to recall it.
5. Insofar as the contractual partner obtains products from us for resale for which no instructions for use exist or are enclosed, the contractual partner shall instruct its customers in the intended use including the correct care and handling. Furthermore, the contractual partner shall inform its customers of the possible restrictions of use and risks. These include, in particular, restrictions on driving a motor vehicle and the information that spectacle lenses are generally not unbreakable.
6. Any subsequent processing of a spectacle lens by the contractual partner (tinting, hard lacquer coating, anti-reflective coating, etc.), which goes beyond the rim of the spectacle lens in accordance with the frame, shall be carried out at the contractual partner's own responsibility.
7. Insofar as we affix the contractual partner's own trademark to the spectacle frame for the benefit of the contractual partner, on the occasion of the sale and purchase transaction, an agreement pursuant to Art. 16 (1) lit. a of Regulation (EU) 2017/745 shall be concluded, under which we shall indicate our manufacturer status on the packaging and shall be responsible for compliance with the requirements applicable to manufacturers pursuant to Regulation (EU) 2017/745.
VIII. Disclosure of information and contractual items
1. Our contractual partner shall treat as confidential all information that is not in the public domain, in particular drawings, templates, models, software as well as other data carriers that we make available to our contractual partner and shall not pass it on to third parties or reproduce it unless this is necessary for the performance of the contractual service. Our contractual partner shall accordingly ensure that the persons employed by it or further contractual partners are bound by confidentiality.
2. Our contractual partner may only advertise its business relationship with us with our prior written consent.
3. Contractual items which have been manufactured according to information, drawings or models provided by us may not be offered, sampled or delivered to third parties unless we have expressly given our prior written consent to this.
IX. Final provisions
1. Should individual provisions of this agreement be or become invalid, this shall not affect the validity of the remaining provisions. Insofar as the agreement or these General Terms and Conditions contain gaps, those legally effective provisions shall be deemed agreed to fill these gaps which the contractual partner would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had known about the gap.
2. The contractual partner may not assign claims arising from our business relationship and the contractual obligations resulting therefrom to third parties without our written consent.
3. The law of the Federal Republic of Germany shall apply to all contractual relationships. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
4. For all disputes arising from and in connection with the contractual relationship between us and the contractual partner, irrespective of the legal grounds, the place of jurisdiction shall be, at our discretion, the competent court at our registered office or at the registered office of the contractual partner. In case of actions against us, however, the competent court at the place of our registered office shall be the exclusive place of jurisdiction. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.