General Terms and Conditions of Sale of New and Used Products and Service
(Valid from April, 1st 2012)
1.1. These terms and conditions of sale shall govern all expressions of intent and all legal declarations that refer to entering or executing any kind of sales or service agreement between Eyesight&Vision GmbH and its purchasers.
1.2. These terms and conditions of sale will be incorporated (i) by an explicit agreement or, (ii) if such an explicit agreement is, due to the nature of sales or service agreement, difficult to enter in and the purchasers accepts these terms and conditions, by entering into the sales or service agreement. If the purchaser is an entrepreneur under sec. 14 German Civil Code (BGB) these terms and conditions of sale shall also govern all future transactions between the parties without any further incorporation agreement.
2. Conclusion of Contracts
2.1. All public or published offers of Eyesight&Vision GmbH do not legally bind Eyesight&Vision GmbH. Offers made to individual purchasers will bind Eyesight&Vision GmbH for a 30-days-period.
3.1. All agreed prices are fix prices. Prices are ex works, exclusive of the respective statutory VAT and exclusive of costs for packaging, customs, duties, shipping, insurance and other related costs, except as otherwise expressly agreed upon.
3.2. Additional service which is not included in the sales price (e.g. training or software installation) will be charged separately. Such an additional charge will be due and payable upon finishing the additional service.
3.3. Eyesight&Vision GmbH is entitled to charge the purchaser with cost increases arising in the meantime if the period between order and proper delivery exceeds four months. The purchaser is entitled to cancel his sales order within one week from receiving the message about the surcharge.
3.4. Unless otherwise agreed upon the agreed purchase price becomes due and payable within two weeks from receiving the invoice without any further note by Eyesight&Vision GmbH.
3.5. Unless otherwise expressly defined by the purchasers all payments of the purchaser will be regarded as made to the elder claims of Eyesight&Vision GmbH at first. Sec. 367 of German Civil Code (BGB) shall, however, prevail.
3.6. In case of delay by purchaser’s payments Eyesight&Vision GmbH is entitled to collect due date interest in the amount of 8 per cent above the respective base interest rate p. a. (acc. sec. 247 and 288 German Civil Code (BGB). Eyesight&Vision GmbH reserves all rights to claim further damages for delay.
3.7. The purchaser shall be entitled to offset only insofar as the purchaser’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgment. The purchaser is entitled to claim retainer rights only to the extent such rights are based on the same transaction.
4. Reservation of Right of Modification
4.1. Eyesight&Vision GmbH is entitled to make its own choice between several products equal to the sold product until the product will be delivered at the purchaser.
4.2. Eyesight&Vision GmbH is entitled to deliver another product than the ordered product if (i) the delivered product is of similar quality and value and (ii) the purchaser will not be unreasonably interfered with such a switch.
5. Delivery/Default of Delivery
5.1. Part-deliveries by Eyesight&Vision GmbH are hereby agreed upon. As far as such part-deliveries concern a separate position of purchaser’s order the part-deliveries shall be deemed separate delivery.
5.2. Unless otherwise agreed in a written way Eyesight&Vision GmbH shall deliver its products within 30 days from receiving the order. In the event that a pre-payment by the purchaser has been agreed the 30-days-period shall start from receiving the full pre-payment. In case of default of delivery the purchaser has to grant a reasonable extension. If Eyesight&Vision GmbH does not deliver within such an extension the purchaser may cancel the sale’s contract and may collect all his pre-payments. Any further claims against Eyesight&Vision GmbH shall be excluded unless intent or gross negligence have governed the delay.
5.3. Eyesight&Vision GmbH shall be released from its delivery obligations if (i) a supplier of Eyesight&Vision GmbH is not able to supply Eyesight&Vision GmbH or (ii) Eyesight&Vision GmbH cannot be supplied due to any kind of force majeure unless these circumstances have been entered prior to entering into the sale’s contract. If such circumstances occur Eyesight&Vision GmbH will inform the purchaser immediately and will repay any pre-payments to the purchaser; all further claims of the purchaser shall be excluded.
6. Passing of Risk
6.1. The risk of loss or damage to the goods passes to the purchaser upon dispatch unless a consumer business under sec. 474 German Civil Code (BGB) can be assumed.
7. Default in Acceptance
7.1. In case of default in acceptance or other breach of duties to cooperate by the purchaser Eyesight&Vision GmbH is entitled to claim any resulting damage.
7.2. As damage compensation Eyesight&Vision GmbH is entitled to claim a lump-sum compensation of 20 per cent of the agreed purchase price unless the purchaser gives evidence that the damage of Eyesight&Vision GmbH is lower. Further damages are reserved in the event that Eyesight&Vision GmbH AG can state a damage exceeding the 20 per cent of the purchase price.
7.3. In case of default in acceptance for a period longer than 30 days Eyesight&Vision GmbH may claim from 0.5 per cent up to 15 per cent of the purchase price per month as a storage charge, at minimum however 40.00 EURO, unless the purchaser gives evidence that the damage of Eyesight&Vision GmbH is lower.
8.1. The warranty of Eyesight&Vision GmbH shall be governed by the following terms exclusively.
8.2. Warranty for new goods
8.2.1. In case of non-conformity of the product the purchaser is entitled, but also limited, to alternative performance in the form of remedy of the defect unless a consumer business under sec. 474 German Civil Code (BGB) can be assumed. In this case Eyesight&Vision GmbH may, at its sole discretion, select between repair or delivery of conforming goods. Both have to be completed within one week. If such alternative performance has failed, the purchaser is entitled to reduce the purchase price or to withdraw from the contract. If Eyesight&Vision GmbH spends spare parts or complete goods Eyesight&Vision GmbH becomes owner of the replaced parts and goods. Furthermore, the purchaser has to pay Eyesight&Vision GmbH reasonably for the period of use.
8.2.2. In case of remedy a defect the purchaser is obliged to keep the product ready at his location for remedy the defect. If such a remedy of defect is impossible the purchaser is obliged, according to request of Eyesight&Vision GmbH, to let the product be re-delivered to Eyesight&Vision GmbH.
8.2.3. Warranty claims arise upon purchaser’s receipt of the goods and shall be time-barred after 12 months from such a receipt. In the event that a consumer business under sec. 474 German Civil Code (BGB) can be assumed, the statute limitation will come up after two years.
8.3. Warranty for used goods
8.3.1. For used goods (including goods repaired or renewed by Eyesight&Vision GmbH) all kind of warranty obligations and damage compensations of Eyesight&Vision GmbH shall be excluded unless (i) Eyesight&Vision GmbH has been acted provably with malice or (ii) Eyesight&Vision GmbH has expressly assumed a guarantee.
8.3.2. In the event Eyesight&Vision GmbH has assumed a guarantee or has to accept warranty claims under clause no. 10.1 all claims of the purchaser will be time-barred after four weeks. In the event that a consumer business under sec. 474 German Civil Code (BGB) can be assumed the statute limitation will come up after one year.
8.4. Common terms for new and for used goods
8.4.1. Regardless of all other duties under this clause no.8.4 the purchaser has to inform Eyesight&Vision GmbH by written note within 14 days from receipt of the goods. Perceptible damages of the packaging have to be mentioned on the shipment documents and to be announced within 48 hours to Eyesight&Vision GmbH by the purchaser. If the purchaser fails with these obligations his warranty claims will be forfeited.
8.4.2. Precondition for any warranty claim of the purchaser is the purchaser’s full compliance with all requirements regarding inspection and objection established by sec.377 German Commercial Code (HGB). The announcement of any defect by the purchaser has to be made within 48 hours from discovery of the defect.
8.4.3. The warranty of Eyesight&Vision GmbH does not cover those defects which occur after delivery by wear and tear, humidity, unreasonable heat, influences of weather, missing maintenance or unreasonable treatment. Interferences into the product or the software by the purchaser himself or by other unauthorized persons shall be deemed unreasonable treatment under this clause. Furthermore, the warranty of Eyesight&Vision GmbH does not cover defects caused by use of unauthorized accessories unless Eyesight&Vision GmbH has released these accessories. Finally, Eyesight&Vision GmbH does not guarantee for compatibility with products of other suppliers.
9. Retention of Title
9.1. Eyesight&Vision GmbH retains title to the goods until receipt of all payments owed by the purchaser to Eyesight&Vision GmbH in full. Any kind of resale, pledge or encumbrances shall be legally invalid unless Eyesight&Vision GmbH has given its prior consent by written note.
9.2. The purchaser may, however, resell goods subject to the above retention of title only in the course of his regular business without the consent of Eyesight&Vision GmbH. For this case, the purchaser hereby assigns all claims arising out of such resale to Eyesight&Vision GmbH.
9.3. In case of levy of execution purchaser has to inform Eyesight&Vision GmbH immediately to enable Eyesight&Vision GmbH to intervene against such a levy of execution. The costs of such intervention have to be borne by the purchaser.
9.4. The purchaser shall handle the goods with due care.
9.5. Eyesight&Vision GmbH is entitled to assign its retention of title and its claim from sales and services (including the pre-assigned claims according to clause 9.2) to third parties.
9.6. The purchaser shall maintain suitable insurance for the goods covering damages by theft, by fire and by water on his own cost. In case of an event insured purchaser hereby assigns his claims against the insurance to Eyesight&Vision GmbH.
10.1. All kind of damage claims of the purchaser, regardless of the legal construction, shall be excluded unless
10.1.1. the damages arisen from injuries of life, body or health if such damages have been caused by intent or negligence of Eyesight&Vision GmbH or by agents or assistants in performance of Eyesight&Vision GmbH, or
10.1.2. the damages have been caused by intent or gross negligence of Eyesight&Vision GmbH or by agents or assistants in performance of Eyesight&Vision GmbH, or
10.1.3. the damages have been caused by intent or gross negligence of Eyesight&Vision GmbH or by agents or assistants in performance of Eyesight&Vision GmbH regarding the breach of a main obligation of Eyesight&Vision GmbH out of the contract.
10.2. If Eyesight&Vision GmbH is liable under these terms the liability shall be limited to those damages that typically occur. As far as the liability of Eyesight&Vision GmbH is excluded under these terms the exclusion shall also be valid on behalf of employees, agents and assistants in performance of Eyesight&Vision GmbH. In the event that purchaser does not claim for his damages, but for the expenses he made by trusting the sales and service performance of Eyesight&Vision GmbH, such expenses will be reimbursed in a reasonable volume.
11. Place of Performance/Applicable Law/Jurisdiction
11.1. Place of performance shall be Nuremberg/Germany.
11.2. Independent of purchaser’s nationality and residence this contract shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods).
11.3. If purchaser is a salesman (Kaufmann) under German Commercial Law (HGB) exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Nuremberg/Germany.
12. Data Protection
12.1. Eyesight&Vision GmbH will make use from all personal data of purchaser, such as name, address, phone number, for delivery and service purposes only. Any disclosure of these personal data towards third parties shall only happen with purchaser’s express consent.
13.1. The copyright of all kind of documentation delivered to purchaser in executing a purchase contract (i.e. for software) shall remain at Eyesight&Vision GmbH. Purchaser, however, may use the copyright as a licensee with the non-exclusive and the nontransferable right to use the products of Eyesight&Vision GmbH.
14. Amendments/Written Note
14.1. Additional terms and conditions, supplementing or amending these terms and conditions have to be agreed by written note. This request can only be amended by written note.
15. Collision Clause
15.1. Differing or contrary terms of purchaser shall not apply except if expressly agreed by Eyesight&Vision GmbH upon in writing.
15.2. In the event that differing terms cause the application of optional legal rules sec. 9.1 shall remain valid in each case.
15.3. The German version of these terms and conditions shall prevail all other versions in case of collision.
16.1. Should any or more of these terms and conditions be invalid, the parties shall agree on a replacement term that comes as closely as possible to the commercial meaning and purpose of the invalid term.