General trade conditions for delivery and service
biolitec Vista GmbH, Kleingeschaidt 42a, D-90562 Heroldsberg, Germany
1.1 Our General Terms and Conditions shall only apply to entrepreneurs within the meaning of § 14 BGB (German Civil Code) as well as to legal entities under public law and special funds under public law.
1.2 Our terms and conditions shall apply exclusively; we shall not recognise any conflicting or deviating terms and conditions of the customer unless we agree to their validity in writing. Our terms and conditions shall also apply if we unconditionally perform the delivery or service to the customer in the knowledge that the customer's terms and conditions conflict with or deviate from our terms and conditions.
1.3 All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
1.4 Our terms and conditions shall also apply to all future transactions with the customer.
2. Scope of application
The following conditions apply to the delivery of goods of any kind by biolitec Vista GmbH to the customer (hereinafter uniformly referred to as "delivery") as well as to the provision of other services by biolitec Vista GmbH for the customer (hereinafter uniformly referred to as "service").
3. Offer, conclusion of contract, offer documents
3.1 Our offers are non-binding unless the binding nature of the offer has been expressly stated.
3.2 If the customer's order qualifies as an offer within the meaning of § 145 BGB (German Civil Code), we can accept it within 4 weeks.
3.3 We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are designated as "confidential". The customer requires our express written consent before passing them on to third parties.
3.4 The weight and dimension specifications made in the offer as well as other technical data are approximate unless they are expressly designated as binding.
3.4 Should it turn out that the goods according to the offer are not available in this form, biolitec Vista GmbH is entitled to deliver other goods, as long as they are of the same type and quality and the customer does not object immediately.
4. Prices, terms of payment
4.1 Unless otherwise stated, we shall be bound by the prices contained in our offers marked as binding for four weeks from the date of the offer.
4.2 Our prices apply "ex works" (EXW). Packaging will be invoiced separately.
4.3 The statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
4.4 Payments to us shall be made without deduction and free of charges on the agreed due date, but no later than 30 days from the date of invoicing. In the case of payment to our account, the date on which the amount is credited to the account shall be decisive.
4.5 Payments shall first be credited against costs and interest and then offset against the oldest claims.
4.6 If the customer is in default of payment, we shall be entitled to demand default interest at a rate of nine percentage points above the base interest rate p.a.. The assertion of higher interest rates or further damages is possible with the provision of corresponding evidence.
5. Right to refuse performance, set-off, retention
5.1 We may refuse delivery or performance if, after conclusion of the contract with the customer, it becomes apparent that our claim to payment of the price for our delivery or performance is jeopardised by the customer's lack of ability to pay, in particular if the customer's financial circumstances deteriorate significantly. Our right to refuse delivery or performance shall only lapse when the price for our delivery or performance has been paid or security has been provided for it. We reserve all further statutory rights, in particular the right to withdraw from the contract under the statutory conditions.
5.2 The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. In addition, he shall only be entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
6. Delivery periods, delay in delivery, partial deliveries
6.1 Delivery or service periods and dates shall only be binding if they have been expressly confirmed by us in writing. The delivery date shall be deemed to have been met if readiness for dispatch has been notified.
6.2 Compliance with our delivery and performance obligations shall be subject to the timely and proper fulfilment of the customer's obligations and the clarification of all technical questions. The execution periods shall be extended appropriately if the customer is responsible for an obstruction or if the customer has omitted or failed to perform a cooperative action incumbent upon him in due time, unless we are responsible for the delay.
6.3 The period or deadline for delivery or performance shall be extended by a reasonable period in the event of measures within the framework of industrial disputes, in particular strikes and lock-outs, as well as in the event of unforeseen hindrances through no fault of our own, such as operational disruptions or delays in the delivery of essential materials. This shall also apply if the circumstances occur at subcontractors.
6.4 If we are in default with the delivery or service, the customer may only withdraw from the contract within the framework of the statutory provisions if we are solely responsible for the delay in the delivery or service. In the event of insignificant breaches of duty, withdrawal from the contract shall be excluded. A change in the burden of proof to the disadvantage of the customer is not associated with the above provisions.
6.5 At our request, the customer shall be obliged to declare within a reasonable period of time whether he will withdraw from the contract due to the delay in delivery or performance or insist on delivery or performance.
6.6 Partial deliveries and partial services shall be permissible within the delivery periods stated by us, insofar as this does not result in any disadvantages for the use. If the payment of a partial delivery or service is delayed, we may suspend the further execution of the order at our reasonable discretion without deriving any compensation or claim for damages on the part of the customer.
7. Transfer of risk, transport insurance, acceptance
7.1 We are not obliged to take out transport insurance, even in the case of foreign business. In the event of damage to or loss of the goods during transport, the customer must immediately arrange for the carrier to record the facts and is obliged to exercise his and our rights to reduce or eliminate the damage.
7.2 If acceptance is required, this shall be decisive for the transfer of risk. It must be carried out by the customer immediately on the acceptance date, alternatively after notification by us that the goods are ready for acceptance. Acceptance cannot be refused due to minor defects. If acceptance is not necessary, risk shall pass upon transfer to the carrier.
7.3 If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the delivery or service shall pass to the customer at that time.
8. Warranty - material defects
8.1 Insofar as a defect in the delivery or service was present at the transfer of risk, we shall be entitled, at our option, to remedy the defect or to deliver/manufacture a defect-free item (subsequent performance).
8.2 Claims of the Customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded to the extent that such expenses increase because the object of delivery has subsequently been moved to a location other than the Customer's branch office.
8.3 If the subsequent performance fails, the customer may reduce the remuneration or withdraw from the contract at his discretion.
8.4 Warranty claims shall not exist in the event of insignificant deviations from the agreed quality, in the event of insignificant impairment of usability, in the event of natural wear and tear or damage arising after the transfer of risk as a result of faulty or negligent handling, excessive strain, unsuitable equipment or as a result of special influences not assumed under the contract, as well as in the event of non-reproducible software errors. If the Customer or third parties carry out improper modifications or repair work, the Customer's warranty claims shall be excluded.
8.5 The warranty period for claims of the customer against us due to a defect in the delivery or service shall be twelve months from the beginning of the statutory limitation period, with the exception of the cases of § 438 para. 1 no. 1 and no. 2 BGB and § 634a para. 1 no. 2 and no. 3 BGB.
8.6 Insofar as liability is assumed for loss of data, liability shall be limited to the typical cost of recovery that would have been incurred if the customer had regularly backed up the data in a manner commensurate with the risks involved.
9. Industrial property rights and copyrights - defects of title
9.1 Unless otherwise agreed, we meet the requirements for industrial property rights and copyrights of third parties (hereinafter referred to as "property rights") only in the country of manufacture.
9.2 Insofar as a third party asserts justified claims against the customer due to the infringement of industrial property rights by deliveries made by us and used in accordance with the contract, we shall be liable to the customer within the period specified in Section 8, Paragraph 5 of these Terms and Conditions as follows: At our discretion, we shall initially have the right either to procure the necessary licenses with respect to the allegedly infringed rights or to make available to the customer a modified delivery item or parts thereof which, in the event of exchange against the infringing delivery item or part thereof, eliminate the accusation of infringement with respect to the delivery item. If this subsequent performance fails, the Customer shall be entitled to the statutory rights; in particular, he shall be entitled to reduce the purchase price or, at his discretion, to withdraw from the contract. Otherwise, in the event of infringements of industrial property rights, the provisions of Section 8 of these Terms and Conditions shall apply accordingly.
9.3 The aforementioned obligations shall only apply to us to the extent that we reserve the right to take all defensive and extrajudicial measures.
9.4 Claims of the customer are excluded insofar as he is responsible for the infringement of property rights.
9.5 Claims of the customer are also excluded if the infringement of property rights is caused by special specifications of the customer, by an application by the customer which we could not have foreseen or by the fact that the delivery was modified by the customer or used together with products not delivered by us.
9.6 Further claims of the customer against us and our vicarious agents due to a defect in title or claims other than those regulated in this Clause 9 are excluded.
9.7 The customer shall not be entitled to any further or other claims due to the infringement of industrial property rights of third parties. In particular, the Supplier shall not compensate any consequential damages such as loss of production or use or loss of profit.
10. Claims for damages
10.1 We shall be liable in accordance with the statutory provisions for damages resulting from injury to life, limb or health and for damages resulting from an intentional or grossly negligent breach of duty by us and our vicarious agents.
10.2 We shall be liable for culpable breach of essential contractual obligations. In this case the liability is limited to the foreseeable, typically occurring damage.
10.3 Further claims for damages and reimbursement of expenses by the customer against us, irrespective of the legal basis, are excluded.
10.4 Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
11. Retention of title
11.1 We retain title to the delivered goods until receipt of all claims, irrespective of the legal basis, arising from the business relationship with the customer. The retention of title also applies to claims from previous and future legal transactions and to balance claims from any existing current account relationship.
11.2 The customer is entitled to resell the delivery items in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the delivery price agreed between us and the customer (including value added tax) which accrue to him from the resale against his customers or third parties, irrespective of whether the delivery item has been resold without or after processing. The claim assigned to us by the customer in advance also refers to the acknowledged balance and, in the event of the insolvency of the customer, to the then existing "causal" balance. We accept the assignment, but can independently enforce our claims directly against the customer. The customer is authorized to collect the claims after their assignment. Our authority to collect the claims ourselves remains unaffected; however, we undertake not to collect the claims as long as the customer duly meets his payment obligations, is not in default of payment and, in particular, no petition for the opening of insolvency proceedings has been filed. However, if this is the case, we may demand that the customer discloses the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
11.3 The customer may neither pledge the delivery items nor assign them by way of security. Enforcement officers or third parties must be informed of our ownership.
11.4 The processing or transformation of the delivery items by the customer shall always be carried out on our behalf. If the delivery items are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery items (including value added tax) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the items delivered subject to reservation of title.
11.5 If the delivery items are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the delivery items (including value added tax) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer assigns co-ownership to us on a pro rata basis. The customer shall keep the sole ownership or co-ownership thus created in safe custody for us.
11.6 The customer shall be obliged to treat the delivery item with care; in particular he shall be obliged to insure it sufficiently at replacement value against fire, water and theft at his own expense. Insofar as maintenance and inspection work is necessary, the customer must carry this out in good time at his own expense.
11.7 In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can file a suit in accordance with § 771 ZPO (Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
11.8 In the event of conduct on the part of the customer in breach of contract, in particular default in payment, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and subsequently to take back the delivery items. The assertion of claims for damages shall remain unaffected.
11.9 We undertake to release the securities to which we are entitled under this Clause 11 at the request of the Customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released shall be incumbent on us.
The parties are obliged to keep strictly confidential all confidential documents and information as well as all commercial and technical details related to the business relationship. Such information may only be disclosed to third parties with the express consent of the other contracting party. The obligation to maintain secrecy shall also apply after this contract has been completed. It shall not apply if and to the extent that the knowledge contained in the documents and information or the commercial and technical details have become generally known or have already been known to the other party without a breach of contract by the other party being the cause thereof.
13. Data storage
13.1 The client agrees that his data relevant for the fulfilment of the contract shall be stored by us and also expressly gives his consent that in the event of non-payment, the information necessary for the assertion of the claim shall be transmitted to Creditreform Nürnberg Aumüller KG, Theodorstraße 11, 90489 Nürnberg in compliance with the data protection guidelines. The client is hereby informed that if Creditreform collects a claim, his personal data will be stored there and that this declaration is deemed to be a notification in accordance with § 33 BDSG.
14. Jurisdiction, Applicable Law, Severability Clause, Translations of these Terms and Conditions
14.1 If the customer is a merchant, a legal entity under public law or a special fund under public law, our place of business shall be the exclusive place of jurisdiction. However, we shall also be entitled to sue the customer at the court having jurisdiction for his place of business.
14.2 The laws of the Federal Republic of Germany shall apply exclusively to the exclusion of international sales law, even if the customer has its registered office abroad.
14.3 Should any provision be or become invalid, the remaining provisions shall remain valid.
14.4 The English version of these General Terms and Conditions is for information purposes only. Only the German contract text is binding.