General Terms and Conditions of Business for VISTAN BRILLEN GmbH, Wilhelmstraße 16, D-73525 Schwäbisch Gmünd
I. Sphere of validity
1. The following terms and conditions of business shall apply for all current and future business relationships and shall constitute an integral part of the contract.
2. The general terms and conditions of business of the other party shall not be recognized, not even by implication.
3. Side agreements and amendments to these terms and conditions of business shall be subject to written confirmation by us.
II. Offer / Entering into a contract
1. Our offers shall be subject to change without notice. We shall reserve the right to effect changes concerning performance, the period of time allowed for performance and prices until the contract is finally signed. Cost estimates made by us shall not be binding.
2. The documents forming part of the offer (Diagrams, dimensions etc.) shall only be binding if this has been expressly confirmed in writing. Assurances with regard to a specific feature of the item purchased must be confirmed in writing by us.
3. In so far as the party entering into a contract with us places orders by electronic means, the text of the contract will be saved by us and forwarded to him at his request together with these terms and conditions of business by e-mail.
III. Delivery period
1. Delivery periods are not binding, unless they have been expressly confirmed by us in writing as contractual periods.
2. We shall not be responsible for delays in supplying goods and services caused by force majeure and events making it much more difficult or impossible to render performance – e.g. strike, lock-out, official instructions etc. even if they affect our suppliers. They will entitle us to postpone the supply of goods or rendering a service by the duration of the hindrance plus a reasonable start-up period or to withdraw partly or completely from that part of the contract not yet fulfilled. If the hindrance lasts for more than 3 months, the other party shall be entitled, having set a reasonable period of grace of at least two weeks, to withdraw from that part of the contract not yet fulfilled.
3. Compliance with the delivery period by us shall require the other party to have fulfilled his contractual obligations.
4. We shall be entitled to supply part-deliveries and to render part-consignments.
IV. Prices / Terms and conditions of payment
1. Unless agreed otherwise, our prices shall be net prices, that is, the rate of value added tax in force on the date on which the invoice is raised shall have to be added. Costs for packing, carriage, insurance are not included and shall be charged separately.
2. The overtime, night work, work carried out on Sundays and public holidays not agreed when a contract is signed shall be charged at the collectively agreed rates for such work, or, if no such rates have been agreed, the normal rates / supplements at that location shall be charged.
3. We shall allow a prompt payment discount of 2% for payments made within 14 days. When payment is made by bank transfer, it shall be the date on which a payment is credited to our account, and if payment is made by cheque, it shall be the date on which the cheque is received by us, which shall determine whether the payment qualifies for a prompt payment discount or not.
V. Inspection / Duty to notify defects
1. Business customers have to notify us in writing of any manifest defects within a period of 2 weeks of receipt of the goods, otherwise claims made under warranty shall be void. It shall suffice that the notification is sent on time for it to comply with this period. The other party shall bear the burden of proof for all preconditions that have to be satisfied by him prior to lodging a claim. This shall not apply if we have acted with fraudulent intent.
2. Transport damage is to be notified in writing immediately with confirmation by the haulier / transport company appointed.
VI. Reservation of title
1. The supplied item shall remain our property until all the claims against the other party to which we are entitled from the business relationship have been fulfilled. In the event that the other party is in breach of his contractual duties – in particular if he is in default with payment, we shall, once a reasonable period of grace set for the other party to render performance has expired unsuccessfully, be entitled to withdraw from the contract and to demand the return of the supplied item. The statutory cases in which a period of grace does not have to be set shall not be affected by the foregoing.
2. In so far as the items supplied by us are processed or worked, or combined or blended with other products not belonging to us, the other party shall assign to us here and now the ownership and co-ownership rights to them. We accept the assignment.
3. The other party to the contract shall be entitled to dispose of the supplied item in a proper commercial transaction. He may not pledge supplied goods nor assign them by bill of sale as a security. The other party shall assign to us here and now in full the claims created by reselling the supplied item or those claims created by other legal reasons to us here and now as a security. We accept the assignment. The other party shall be irrevocably entitled to collect the claims assigned to us for his own account and in his own name. If we make use of our security rights ourselves, the other party shall have to tell us the name and address of the third party and pass over all the information we need to assert our rights.
4. If the value of the security held by us exceeds our total claim by more than 10%, we shall, at the request of the other party, be obliged to reassign to him the security held by us.
VII. The other party’s obligation to collaborate with us
1. The other party’s obligation to collaborate with us, agreed either expressly or by implication in keeping with this contract, shall not attract any separate remuneration, unless an express agreement to this effect has been made otherwise in writing.
2. The services to be rendered by us shall be based upon the other party’s specifications (specifications, sketches, drawings or similar). The other party to the contract shall be responsible for such specifications being correct and complete. In so far that some or all of the material is provided by the other party to the contract, he shall be responsible for the material being free of defects and suitable for the work to be carried out. However, we shall have to notify him of any reservations we may harbour in the event that there are manifest defects and point out such defects to him.
3. As part of an ongoing business relationship the other party to the contract shall be obliged to inform us in writing of all modifications to his product without having to be asked to do so.
VIII. Passing of risk
The risk of accidental loss or deterioration of the product shall pass over to the other party when the products are handed over to the haulier, freight forwarder or other person or organisation appointed to deliver the consignment.
If the other party is in default with taking delivery of the goods this shall be the equivalent of the goods being handed over.
1. The provisions of the contract for works and services law in the German Civil Code shall apply for the statutory warranty, unless an agreement is not made otherwise subsequently.
2. If, in an individual case, the other party is entitled to withdraw from a contract and if he exercises this right, the other party shall not be entitled to claim compensation for damages on account of the defect in addition to withdrawal.
3. If, in an individual case, the other party chooses to demand compensation for damages, the product shall be retained by the other party if this can reasonably be expected of him. Compensation for damages shall be limited to the difference between remuneration and the value of the defective thing. This shall not apply if we are guilty of fraudulent intent.
4. Generally only the manufacturer’s product description shall be agreed as constituting a product quality description. Public statements, sales promotion or advertising by the manufacturer shall not be counted as additional contractual statements about product quality description of the goods.
5. A warranty shall be rejected by us if a product defect or damage is attributable to natural wear and tear or such a defect or damage arises as a result of
- the other party to the contract failing to notify us of the defect immediately following discovery, or
- the other party fails to allow us an opportunity to rectify the defect straight away in spite of being asked to do so, or
- the subject-matter of the contract has been improperly handled or overloaded, or
- the subject-matter of the contract has previously been improperly repaired, serviced or maintained, or
- parts have been fitted in the product the use of which has not been authorised by the manufacturer, or
- the product or parts thereof have been modified in a manner not authorised by the manufacturer, or
- the other party has not obeyed the regulations governing product handling, servicing or maintenance.
X. Limitations of liability
1. We shall not be liable for ordinary negligence in so far as only a minor contractual duty has been breached.
2. Claims asserted by the other party on account of a defect being concealed by us with intent to deceive him, or on account of furnishing a warranty or a procurement risk and in accordance with the German Product Liability Act shall not be affected by this. Limitation of liability shall not apply in the event of loss of life, personal injury or physical harm.
XI. Passing over information and items belonging to us
1. The other party shall handle all information not in the public domain, and in particular drawings, models, patterns, software as well as other data carriers provided to the other party by us in a confidential manner and he shall not pass them on to third parties or make copies of them, unless he needs to do so for the purposes of rendering his contractual performance. The other party shall likewise oblige the persons working for him or other parties to the contract to maintain secrecy.
2. The other party to the contract may only refer to his work for us for advertising purposes if we have given our prior written consent.
3. Subject-matter of the contract manufactured in accordance with our specifications, drawings or models must not be offered, supplied in sample form or as a whole to third parties, unless we have expressly granted our written consent to this in advance.
XII. Premature termination
If the contractual relationship is terminated prematurely for reasons for which the other party is to blame, we shall be entitled to charge a lump sum amounting to 5% of the gross order value as compensation for damages. Regardless of this, we shall reserve the right to prove that we have suffered a higher loss in a specific case and assert a claim for it. Likewise the other party shall be expressly allowed to prove in a specific case that we have not suffered a loss or that the loss suffered is less than 5%.
XIII. Offsetting / Right of retention
1. The other party shall only be entitled to offset with his counter claims if the counter-claim is not contested by us or if it has been declared final and absolute in a court of law.
2. The other party may only exercise rights of retention if his counter-claim is based on the same contractual relationship.
XIV. Prohibition of assignment
The other party to the contract is not entitled to assign his claims under the business relationship and the contractual obligations resulting thereof to third parties without our written consent.
1. Should individual provisions in this agreement be, or become invalid, the validity of the remaining provisions shall not be affected as a result of this. The invalid provision is to be replaced by a valid one coming closest to the desired economic objective.
2. All contractual relationships shall be governed by the law of the Federal Republic of Germany. The provisions of the UN law on sales shall not apply.
3. As far as allowed by law, it shall be agreed that Schwäbisch Gmünd shall be the place of jurisdiction for all disputes arising from the contractual relationship.