1.1) These General Terms and Conditions shall apply to all current and future business relationships between VisiConsult and the Buyer. Any other terms and conditions, in particular general purchasing terms and conditions of the Buyer shall not apply, even if VisiConsult should not explicitly object to them.
1.2) By placing the order, the Buyer acknowledges the applicability of these General Terms and Conditions.
1.3) Under the definitions of these General Terms and Conditions, Buyers shall be all legal or natural entities or legally competent partnerships VisiConsult enters into business relationships with and who exercise their rights as professional commercial or independent entrepreneurs.
2.) Quotations and Orders
2.1) Quotations submitted by VisiConsult shall be subject to change unless their binding applicability has been confirmed in writing. The right to make technical modifications within a reasonable scope shall be expressly reserved.
2.2) For the results of any contractual negotiations between the Parties, any agreements made verbally over the phone or any other covenants, in particular changes to orders to be effective, same shall be subject to written agreements made between both parties and if they deviate from the original purchase agreement, they shall be subject to a written confirmation of amendments.
2.3) Orders the Buyer places with VisiConsult shall not be legally binding until they have been confirmed in writing by the executive management of VisiConsult.
2.4) Written order confirmations shall be replaced by the invoice if the order should be promptly fulfilled.
2.5) These General Terms and Conditions shall be integral components of every VisiConsult quotation.
2.6) Principally, as a matter of law, VisiConsult shall not extend any warranties to the Buyer. This shall be without prejudice to manufacturers’ warranties. Guarantees pertaining to the condition of the product shall become integral components of the Agreement only if they have been expressly confirmed in writing.
2.7) The Agreement shall be made subject to the reservation of true and timely delivery by VisiConsult’s suppliers. The above shall apply only in the event that VisiConsult is not responsible for the failure to deliver and in particular in the event that a congruent coverage transaction has been arranged with a supplier.
3.1) Quoted purchase prices shall be binding.
3.2) All prices are quoted in EUR and shall be subject to the addition of value added tax at the rate in effect at the time the invoice issued plus any other statutory fees due for deliveries. The shipping costs ex Lübeck and packaging are not included in the purchase price and shall be billed separately.
4.) Shipment And Transfer of Risk
4.1) The shipment shall be dispatched for Buyer’s account and risk.
VisiConsult shall obtain transportation insurance coverage up to the handover destination designated by the Buyer for a coverage amount equivalent to the purchase price. The premium shall be billed, unless the customer excludes it by writing.
4.2) VisiConsult shall have the right to make partial deliveries.
5.) Payment Terms
5.1) Payments shall be due within 30 days after the date of invoice and
delivery, net, without any deductions. Upon expiration of the payment
term, Buyer shall be in default of payment.
For the period of default, Buyer shall incur late payment interest at the rate of 8 % above the prime interest rate.
5.2) Payments made shall first be set off against the oldest debt due plus any related late payment interest and litigation fees and last as payments against the purchase price.
5.3) Bank drafts shall not be accepted for payment.
5.4) In the event that Buyer should fail to meet Buyer’s payment obligations and / or any other obligations pursuant to these General Terms and Conditions, or if Buyer should suspend the making of payments or if Buyer’s assets or the assets of Buyer’s statutory representatives should become the target of an initiated bankruptcy proceeding, the entire remaining debt shall be due for immediate payment. In this case VisiConsult shall have the right to rescind from all remaining contracts and seize previously shipped merchandise under title retention and to demand reimbursement of all costs incurred that are originally affiliated with the rescission (e.g. return transportation costs, value reduction).
5.5) Any right to withhold against the entitlement to payment on the grounds of entitlements that are not directly affiliated with the delivered item shall be excluded. The offsetting of claims against the purchase price payable shall be possible only if those claims have been found legally final by a court of law or have been accepted by VisiConsult.
6.) Title Retention, Attachment and Assignment
6.1) VisiConsult shall retain title to all merchandise delivered until all of Buyer’s accounts payable from the current business relationship have been paid.
6.2) The Buyer shall undertake to treat the goods provided with care and in particular, shall refrain from making any modifications that have not been authorized. If maintenance should be necessary (hardware), Buyer shall have those performed at Buyer’s own expense.
6.3) Until title for the goods delivered to the Buyer by VisiConsult has transferred to the Buyer, Buyer shall neither be authorized to attach nor assign such goods to any third parties as collateral. If the goods should be attached or seized, Buyer shall undertake to promptly notify VisiConsult and to absorb any and all costs arising in connection with the release of the goods. Buyer’s right to sell the goods delivered by VisiConsult shall end as soon as the Buyer is in default of payment or if the Buyer should become insolvent. In these cases, Buyer shall have the right to make dispositions related to the goods only subject to VisiConsult’s written consent.
Buyer shall promptly notify VisiConsult of any change of proprietorship of the goods or Buyer’s change of domicile. The same shall apply to any damage to or the destruction of the goods.
6.4) In the event that Buyer should act in violation of the Agreement, in particular in the event of default of payment or the breach of a duty pursuant to Sect. 6.3, VisiConsult shall have the right to rescind from the Agreement and demand the return of the goods.
7.) Delivery Times
7.1) Given that VisiConsult is not the actual manufacturer of the components it uses in its systems, VisiConsult is in a position to specify delivery times only for goods in stock. Moreover, all delivery times quoted shall be anticipated delivery times without any commitment, such as a fixed delivery date. VisiConsult shall undertake to communicate any expected delays in the delivery dates in writing as soon as possible.
7.2) If an estimated anticipated delivery date should be delayed in such a manner that it is untenable for the Buyer, the Buyer shall have the right to set a reasonable remedial period for VisiConsult that comprises a minimum of four weeks. Upon unsuccessful expiration of this remedial period, the Buyer shall have the right to rescind from the Agreement as a whole or in part. Any further claims shall be excluded, including claims for damages due to non-fulfillment, unless a statutory representative or agent of VisiConsult has verifiably committed an act of intent or gross neglect.
7.3) The anticipated original delivery time contemplated in writing in the Purchase Agreement shall be reasonably extended in the event of operational issues, strike, lockout, non-delivery from suppliers, etc., which are beyond VisiConsult’s control.
7.4.) If the parties have agreed upon specific delivery times, compliance with these shall be contingent upon the Buyer meeting any participation obligations in due time. If VisiConsult should make adaptations to programs to meet the Buyer’s wishes or individual program customizations, only written wishes and requests made by the Buyer shall be binding upon VisiConsult. Any interfaces shall be disclosed.
8.) Cancelation of Orders
8.1) If the Customer should cancel orders in full or in part and fail to meet Customer’s acceptance obligations, VisiConsult shall have the right to demand lump sum damage compensation. The Buyer shall have the right to document that no damages or much lower damages than the lump sum demanded have been incurred.
8.2) Items to be delivered that have already been produced at the time of Buyer’s rescission from the Agreement shall be subject to full payment of the purchase price by the Buyer. For any products not yet manufactured at the time of cancelation, Buyer shall owe VisiConsult a lump sum reimbursement of 60% of the purchase price if the cancelation notice was given within a time period of 30 days prior to the anticipated delivery date. In all other cases, the Buyer shall owe VisiConsult a lump sum compensation amount of 40% of the purchase price.
8.3) If the item to be delivered comprises development services, the hours already worked shall be reimbursed based on the applicable per hour rate.