General Terms and Conditions of VisiConsult X-ray Systems & Solutions GmbH (VisiConsult)

1.) General
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.) Prices
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.

9.) Warranty (Hardware)
9.1) VisiConsult warrants that the delivered goods do not contain any materials or processing errors that would eliminate or impair the value or suitability of the goods for their usual or contractually agreed upon utilization. The right to file claims under the warranty shall be contingent upon the deficiencies not having been caused by improper use or excessive use.
9.2) The warranty period shall be one year as of the date of receipt of the goods by the Buyer.
9.3) Transportation damages or short shipments shall be reported in writing within 8 days after the receipt of the goods; failure to do so shall result in the forfeiture of the right to file claims.
The timely sending of the claim shall suffice to ensure its timeliness.
The burden of proof shall be on the Buyer for all claim contingencies,
In particular for the defect as such, the time the defect was detected and the timeliness of the claim of deficiency.
9.4) In the event of a justified claim for deficiencies, VisiConsult shall have the right to decide at its discretion whether it shall take corrective action or deliver a replacement; depending on the defect this may also apply multiple times. If the corrective action should fail, the Buyer shall have the right to demand reduction or the rescission of the Agreement. However, in the event of a minimal violation of the Agreement, in particular if the defects are only minor, the Buyer shall not be entitled to rescission.
9.5) The corrective action shall be taken on the company premises of
VisiConsult.
9.6) VisiConsult shall not assume any warranties for defects in the purchased object caused by accidents, improper use, negligence, modifications, improper installation, repairs or improper testing measures by the Buyer or Buyer’s agents.
9.7) Buyer’s claims for damages based on a defect shall be subject to a statute of limitations of one year after the delivery of the goods. This shall not apply if the user may be cited for maliciousness.

10.) Warranty (Software)
10.1) If the software developed by VisiConsult should not be compatible with the use contemplated in the Agreement and if a complaint for deviations is filed, VisiConsult shall undertake to take complimentary remedial action within 12 months.
10.2) Deviations that result in the creation of products that are market novelties shall not be considered defects. The Buyer shall be entitled to software services and updates only if a farther-reaching Agreement covering these services has been signed.
10.3) Damage compensation entitlements based on defects shall be subject to a statute of limitations of one year after receipt of the goods (program). The above shall not apply if the user may be cited for maliciousness.

11.) Installation
11.1) If VisiConsult should perform an installation at the Buyer’s end, or upon Buyer’s commissioning at a different location, all customer-end requirements shall be put in place prior to the delivery date (e.g. cable laying, telephone lines, construction work). Any added costs incurred as a result of the fact that this work was not performed in due time or not performed adequately, shall be absorbed by the Buyer.
11.2) If special protective gear should be required at the installation location (e.g. helmet, safety shoes), the Buyer shall provide this equipment.
11.3) If special medical precautions should have to be taken at the installation site, the Buyer shall disclose this fact in writing already at the time the Agreement is executed.
11.4) If special certifications, visas and work permits should be required at the installation site, the Buyer shall disclose this fact in writing at the time of placing the order.
11.5) The costs of 11.3 and 11.4 shall be absorbed by the Buyer.

12.) Copyrights
VisiConsult’s drafts and quotations shall be protected by applicable copyright laws. They must not be duplicated or made available to any third parties. Any sharing of these documents shall be subject to VisiConsult’s prior written consent in all cases.
12.1) VisiConsult shall transfer to the Principal any copyrights or intellectual property rights only to the extent that this is necessary for the use of the work compiled by VisiConsult.

13.) Liability
13.1) VisiConsult GmbH, its executive management and its workforce shall assume liability within the scope of § 280 BGB (German Civil Code, Breach of Obligations Arising from a Contract), for acts of default, impossibility, illegal acts or any other legal grounds only in the event that those acts were committed intentionally or as a result of gross negligence. In the event of culpable damages causing the loss of life, physical injury or health damages, or the culpable breach of cardinal contractual obligations (core contractual obligations) or in the event of malicious deceit or replacement entitlements pursuant to § 437 Section 2 BGB, liability shall be assumed within the scope of the statutory provisions.
In the event of breach of cardinal obligations (important obligations the proper fulfillment of the Agreement is actually contingent upon and in the fulfillment of which customers may regularly have confidence in), liability shall be limited to the typical foreseeable damages.
In the event of default, commercial clients shall have the right to rescind from the Agreement in lieu of filing a claim for compensation of damages.
13.2) In the event of data loss, liability shall be assumed only if the Buyer has backed up the databases on a regular basis – verifiably at least once a day. Liability for data losses shall be limited to the recovery value in the event that a back-up copy does exist, with the exception of cases where data losses have been caused as a result of intentional or grossly negligent acts of VisiConsult GmbH or its employees. In all other cases, with the exception of intent or gross neglect, liability shall principally be excluded.
13.3) This shall be without prejudice to VisiConsult’s scope of liability according to the product liability act.
13.4) The above provisions represent the complete scope of liability of VisiConsult, its executive management and its employees.

14.) Final Provisions
14.1) This Agreement shall be governed by the laws of the Federal Republic of Germany. The provisions of the UN Convention on the International Sale of Goods (CSIG) shall not apply.
14.2) The place of jurisdiction and fulfillment for all disputes arising from the contractual relationship shall be Lübeck, if permitted by law. The same shall apply in the event that the Buyer does not have a general place of jurisdiction in Germany or a German place of residence or if the common place of dwelling should be unknown at the time a lawsuit is brought against the Buyer.
14.3) German law shall exclusively apply.

15.) Miscellaneous
15.1) If Buyer should fail to meet the obligations arising from the Purchase Contract, VisiConsult shall have the option to refuse to perform any further deliveries, any further claiming of other rights notwithstanding.
15.2) If one of the provisions of these General Terms and Conditions is declared ineffective by a court of law in full or in part, this shall not affect the validity of the remaining provisions. The entirely or partially ineffective provision shall be deemed to have been superseded by a provision that meets the content of the provisions that has been rendered ineffective as closely as possible as far as the business result is concerned and that accommodates the rights of the Parties involved.