General Terms of Sale and Delivery of
SVS-Vistek GmbH, Muehlbachstrasse 20, 82229 Seefeld, Germany
The present General Terms of Sale and Delivery shall apply to any product ("the product") sold by SVS-Vistek to a purchaser ("the purchaser").
The above shall apply irrespective of any contradictory or deviating provisions in the Purchaser`s order or order acknowledgement, including the Purchaser`s general terms of purchase, if any, applying to the Purchaser`s placing and acknowledgement of order, and including other documents prepared by the purchaser.
2. Product Specifications and Prices
Product specifications as stated in brochures etc. and price lists are intended as a guide, and shall only be binding upon SVS-Vistek
where expressly stated in the agreement.
Unless noted differently, all prices are given in EURO. All prices given shall be exclusive of VAT and any other direct and indirect taxes chargeable on Products such as the Product both in Germany and abroad and may in case of changes in such taxes, exchange rates, or similar changes in expenditure, be adjusted by SVS-Vistek until the date of payment.
Where no specific term of acceptance of an offer is indicated, the term of acceptance shall be 30 days from the date of the offer.
4. Technical Documents and Other Documentation
- All technical document concerning the Product or the production thereof or any other documentation, including offers, which are handed over to the Purchaser prior to or after the conclusion of the agreement shall be SVS-Vistek` s property.
- The documentation mentioned in clause 4. may not without SVS-Vistek` s permission be used for purposes other than the one agreed, and may not be copied, reproduced, handed over to, or in any other way be brought to the knowledge of any third party.
Unless otherwise agreed in writing between the parties, delivery of the product shall be effected "EX works SVS-Vistek" in accordance with the
Incotems in force at the time of contracting (at present Incoterms 2012).
When delivering the Product, SVS-Vistek shall be entitled to add handling costs to the agreed purchase price.
In cases where the parties agree to another way of delivery than mentioned in clause 5.1. SVS-Vistek shall be entitled to add all transport costs to the agreed purchase price, such as shipment, packaging and - if applicable- insurance cost.
6. Time of Delivery - Default in Delivery
Shipping dates are approximate and based on receipt of all necessary information.
In cases of default in delivery due to force majeure, cf. clause 14, or due to circumstances for which the Purchaser can be held liable, the time of delivery may be extended within reasonable limits. The time of delivery may be extended even where the event of default occurs after the expiry of the time of delivery first agreed.
Where SVS-Vistek fails to effect punctual delivery, the Purchaser may request in writing that delivery be effected and stipulate a last, reasonable time-limit of not less than thirty (30) days. Should SVS-Vistek fail once or more to make delivery within the stipulated time-limit, and where this default is not caused by force majeure, cf. clause 14 or circumstances, for which the Purchaser can be held liable, the Purchaser shall be entitled to rescind the order by written notification to SVS-Vistek with respect to such a part of the Product as cannot be put to the intended use.
The purchaser shall in no event be entitled to claim compensation for any default on the part of SVS-Vistek, irrespective of whether such a default is attributable to SVS-Vistek.
7. Right to Return
Goods held in stock may only be returned subject to prior agreement with SVS-Vistek and only where such particulars as the number of the delivery note
and the invoice as well as the invoice date are given, and where the returned goods are in working order, operational and still in the original packaging.
Return of goods shall be at the Purchaser`s account and risk. Upon return, SVS-Vistek shall be entitled to deduct overheads which at present amount to 25
per cent of the purchase price.
The right to return does not apply to goods not held in stock or to goods specifically developed for the Purchaser.
- The agreed purchase price shall be payable in cash on delivery. All payments shall be made to SVS-Vistek`s address.
- In the event that the Purchaser fails to effect punctual payment, SVS-Vistek shall be entitled to interest on overdue payment at the rate of 2 per cent for each commenced month.
- SVS-Vistek shall also be entitled to withhold any other placed, but nor yet effected, and/or part deliveries not yet effected, or prevent the actual handing over of goods delivered, until he Purchaser has settled all outstanding amounts, inclusive of interest and expenses.
- In case the Purchaser has not settled his account two (2) months later the due date, SVS-Vistek shall be entitled to rescind the agreement by giving the Purchaser written notification thereof. Regardless of whether other terms of payment have been agreed, SVS-Vistek shall in such case be entitled to make future deliveries contingent upon payment in cash or, with regard to goods specifically developed for the Purchaser, to demand payment in advance.
- In the event of default in payment on the part of the Purchaser, SVS-Vistek shall further enjoy any right conferred by the general rules of the law in force at the relevant time.
9. Retention of Title
The Product shall remain SVS-Vistek` s property until the dull purchase price, including interest and costs, as well as all claims with respect to transportation, and any amounts to which SVS-Vistek is entitled pursuant to the parties` contractual relationship, have been settled in full.
- In case of defect in the Product, SVS-Vistek shall ne obliged without undue delay to make good any defect that results from faulty design, material or manufacture.
- SVS-Vistek shall only be liable for defects occurring within two (2) years of the date of invoicing. In case the Product is put to use more intensively than agreed or presumed at the time of contracting, the above tow-year period shall be shortened accordingly.
- For parts replaced or repaired according to clause 10.1, SVS-Vistek shall for at period of one year undertake the same obligations as apply to the original Product. As for the remainder of he Product, the period mentioned in clause 10.2. shall be extended only by the period of time in which the Product has been unfit for use as a result of defects mentioned in clause 10.1.
- In the event that the Product is defective, the Purchaser shall without undue delay notify SVS-Vistek thereof in writing. Such notification shall in no event be given later than to weeks after the expiry of the time-limit mentioned in clause 10.2, cf. clause 10.3. and 10.8. and shall indicate the nature of the defect in question. Where the Purchaser has reason to believe that the defect may result in damage, such notification shall be given promptly. Should the Purchaser fail to notify SVS-Vistek in writing of the defect in question within the time-limit mentioned in clause, the Purchaser shall no longer be entitled to claim compensation as a result of the defect.
- The reparation or replacement delivery, of a defective part of the Product or the entire Product shall be carried out at SVS-Vistek` s address, unless where SVS-Vistek finds it expedient that reparation is effected at the Purchaser` s address, and where the Purchaser approves thereof. If reparation is made at SVS-Vistek` s address, the transportation from Purchaser to SVS-Vistek shall be at Purchaser` s account and risk, while transportation from SVS-VISTEL to Purchaser shall be at SVS-Vistek` s account and Purchaser` s risk. If reparation is made at Purchaser` s address, Purchaser shall pay SVS-Vistek` s travelling and accommodation expenses as well as additional expenses, if any, in connection with the reparation at Purchaser` s address.
- Prior to selling software or products in which software from part, SVS-Vistek has, while carrying out a test run , found that the software is free of virus. Should the software, however, be contaminated with virus, SVS-Vistek shall neither be liable for this nor for any defects, direct or consequential, resulting from the use of the software.
- SVS-Vistek shall not be liable for defects caused by materials provided by the Purchaser, or by installations prescribed or specified by the Purchaser, or caused by events occurring after the actual delivery, e.g. inadequate maintenance, faulty installation on the part of the Purchaser, alterations made without SVS-Vistek` s written consent, reparations not carried out by SVS-Vistek` s authorized experts, ordinary wear and tear, etc. Further, SVS-Vistek shall not be liable for defects, which the Purchaser or the Purchaser` s representative should have discovered.
- Notwithstanding the provision of clauses 10.1-10.7. SVS-Vistek` s liability for defects shall not apply to any part of the Product once two years from the date of the original delivery have lapsed. Warranty terms are available on request.
SVS-Vistek shall not be liable for defects other than as stated in clauses 10.1.-10.8. This shall also apply to liability for damages as a result of defects unless where such defects may be attributed to gross negligence on the party of SVS-Vistek. SVS-Vistek shall in no event be liable for operating losses, los of profits or other consequential financial losses, even if such losses might be attributable to SVS-Vistek.
Makes no other Warranties, express or implied. And specifically, SVS-Vistek makes no warranty of merchantabilityof Fitness for particular purpose.
- By "service" is understood the situation where Purchaser is in need of having the Product checked and/or repaired by SVS-Vistek` s technician without such check and/or repair being based on defects, cf. clause 11.
- If Purchaser wishes. SVS-Vistek` s technicians to carry out service on the Product, Purchaser shall pay all costs in this connection including travel and accommodation expenses of SVS-Vistek` s technicians, transportation of the Product as well as salaries and spare parts pursuant SVS-Vistek` s price lists in force at any time.
- What is stated in clause 12.2. also applies in case of reparations which SVS-Vistek has undertaken to carry out according to separate guarantee.
13. Liability for Damage to property (Product Liability)
- The Purchaser shall indemnify SVS-Vistek to the extent that SVS-Vistek is made responsible towards third parties for any damage or loss, for which SVS-Vistek is not responsible towards the Purchaser according to clause to 13.2.
- SVS-Vistek shall not be liable for any damage caused by the Product with respect to:
a) damage to real or personal property occurring while the Product is in Purchaser` s possession; or
b) damage to products made by the Purchaser, or to products In which these form party, or damage to real or personal property caused by such products as a consequence of the Product.
SVS-Vistek shall no event be liable for any operating losses, loss of profits or any other consequential financial loss.
The restrictions in SVS-Vistek` s liability provided for in this present clause 13.2. shall not apply in the event of gross negligence on SVS-Vistek` s part. However, SVS-Vistek` s liability shall in no event exceed USD 150,000 for each case of damage.
- If a claim is advanced by a third party against one of the two parties according to clauses 13.1. and 13.2. the relevant party shall forthwith notify the other party thereof. SVS-Vistek and the Purchaser shall be under a mutual obligation to accept legal proceedings at any court or arbitral tribunal which try claims for compensation made against either of the parties on the grounds of damage or loss allegedly caused by events described in clauses 13.2. However, any dispute between the Purchaser and SVS-Vistek shall at all times ne settled by the Commercial court of Munich, Federal Republic of Germany, in accordance with clause 16.
14. Force Majeure
- SVS-Vistek shall not be liable for the following causes or events where such causes or events hinder the performance of the agreement or make the performance thereof unreasonably onerous to SVS-Vistek: Industrial disputes and any other cause or event beyond SVS-Vistek`s control, including, but not limited to, fire, war, mobilizations or calling up for military service to a similar extent, riots, commotions, requisitions, confiscation, exchange control restrictions, transport hindrances, power restrictions, embargoes on imports or exports and defaults in delivery on the part of sub-contractors caused by causes or events as mentioned above.
- SVS-Vistek Irrespective of the provisions of the present General Terms of Sale and Delivery, either party may rescind the agreement by written notification to the other party should the fulfilment of the agreement be hindered for more than four months by a case of force majeure as described in clause 14.1.
The Purchaser may resell or re-export the PRODUCT only in compliance with EU and US ECCN regulations. It's in Purchaser sole responsibility to fulfil such regulations.
16. Consumer Arbitration
In the event of any legal conflicts with consumers (Section 13 of the German Civil Code, SVS-Vistek GmbH agrees to take part in consumer arbitration proceedings in accordance with the German Consumer Dispute Settlement Act. The consumer arbitration office responsible for SVS-Vistek GmbH is
Allgemeine Verbraucherschlichtungsstelle des Zentrums für Schlichtung e.V.
Straßburger Straße 8, 77694 Kehl am Rhein
Telephone 07851 / 795 79 40
Fax 07851 / 795 79 41
Web site: www.verbraucher-schlichter.de
Any dispute arising under the agreement or in relation to the Product shall be settled by Commercial court of Munich, Federal Republic of Germany.
Seefeld, January 2017