Standard Terms of Sale VIDEOR E. Hartig GmbH
following General Terms of Sale of VIDEOR E. Hartig GmbH (hereinafter: VIDEOR) shall only apply
towards entrepreneurs, legal entities under public law and special funds under public law within the
meaning of Sections 14 and 310 (1) BGB [German Civil Code] (hereinafter: Orderer).
1.2. Exclusively these General Terms of Sale shall apply to the legal relationships between VIDEOR and the Orderer in connection with the deliveries and/or services (hereinafter: Deliveries) of VIDEOR. These shall also apply to future business transactions. Terms and conditions of the Orderer shall only apply if VIDEOR has explicitly approved these in writing. This approval requirement shall apply in any case, for example also if VIDEOR carries out the delivery to it without reservation in the knowledge of the Orderer’s terms and conditions.
1.3. VIDEOR shall reserve its rights of use and exploitation under property and copyright law to offers, cost estimates, drawings and other documents (hereinafter: Documents) to an unlimited extent. The Documents may only be made accessible to third parties by the Orderer after obtaining the prior consent of VIDEOR and are, if the order is not placed with VIDEOR, to be returned by the Orderer to VIDEOR without delay, at the request of VIDEOR respectively in case of electronic documents to be erased from the Orderer’s systems.
1.4. The Orderer has the non-exclusive right of use to standard software and firmware with the agreed performance features in an unchanged form on the agreed devices. The Orderer may create a backup copy of the standard software without an explicit agreement.
1.5. All agreements, collateral agreements, reservations, amendments or addendums to the contract shall require a written form in order to be legally valid as well as a written confirmation by VIDEOR. This shall also apply to the waiver of the written form requirement.
1.6. The term “claims for damages” in these General Terms of Sale shall also comprise claims for reimbursement of fruitless expenses.
2.1 All prices include delivery EXW (Incoterms 2020) to VIDEOR's warehouse in Rödermark and are stated in EUR net of statutory VAT applicable on the date of delivery.
2.2 The prices stated in the order confirmation sent by VIDEOR to the CUSTOMER shall apply; otherwise the prices specified in VIDEOR's price list on the date the order is accepted shall apply. Insofar as VIDEOR has not quoted fixed prices, the prices shall be based on the costs prevailing at the time the order is confirmed. If the item is delivered later than four months after the order was placed and the total material, energy, purchasing and other costs have increased during that time, VIDEOR shall be entitled pursuant to section 315 BGB to assess a reasonable surcharge based on the original calculation to compensate for the total increase in costs.
2.3 If VIDEOR makes Deliveries subject to special pricing, any special pricing terms defined by VIDEOR and/or the upstream supplier shall apply in addition to these Standard Terms and Conditions of Sale. The CUSTOMER accepts said special pricing terms upon placing the order subject to special pricing. If the CUSTOMER fails to comply with the special pricing terms, VIDEOR may demand a refund of the discounts and/or allowances offered by VIDEOR under those special pricing transactions or subsequently invoice the CUSTOMER for the difference as compared to the standard pricing offered to the CUSTOMER. The CUSTOMER shall indemnify VIDEOR against any and all claims asserted against it by upstream suppliers for non-compliance with the special pricing terms and compensate VIDEOR for all loss or damage incurred as a result of such non-compliance.
3 Payment, default
3.1 Payment shall generally be due when the Delivery is collected. If in the exceptional case the Delivery is shipped, payment shall be due when VIDEOR hands over the Delivery to the freight forwarder or carrier. All payments of the CUSTOMER must be made in full and payable to the order of VIDEOR.
3.2 VIDEOR reserves the right to refuse to accept bills of exchange or cheques. Bills of exchange or cheques are accepted solely as conditional performance (zahlungshalber); no liability is assumed for timely presentation or protest. All expenses and other costs incurred in connection with cheques or bills of exchange shall be borne by the CUSTOMER and paid by the CUSTOMER to the third party invoicing said expenses or other costs or, in the event of payment by VIDEOR, to VIDEOR immediately following notice thereof by VIDEOR.
3.3 If the CUSTOMER misses any payment deadline agreed with VIDEOR, VIDEOR may, without prejudice to any other rights it may have, charge the CUSTOMER default interest in the statutory amount. If the CUSTOMER is in default of payment, discontinues payment, or petitions for insolvency, all outstanding receivables of VIDEOR against the CUSTOMER shall be due and payable immediately. In such cases, VIDEOR shall remain entitled to prohibit the CUSTOMER from using the delivered items. This shall not constitute any rescission of the agreement. Section 449 (2) BGB shall remain unaffected. During the period of default, the purchase price shall be subject to default interest at the applicable statutory rate. The statutory flat charge for default (section 288 (5) BGB) shall be payable in addition. VIDEOR reserves the right to assert further damage for default. The foregoing shall have no bearing on VIDEOR's statutory claim to commercial interest on maturity as against merchants (sections 352, 353 of the German Commercial Code (Handelsgesetzbuch, "HGB")).
3.4 If the CUSTOMER is unable to meet the payment obligations owed to VIDEOR, VIDEOR shall be within its rights to terminate existing contracts with the CUSTOMER without notice. The foregoing shall also apply if the CUSTOMER petitions for insolvency. Section 321 BGB and section 112 of the German Insolvency Code (Insolvenzordnung, "InsO") shall remain unaffected. The CUSTOMER shall notify VIDEOR in writing in due time of any imminent insolvency.
4 Offer, acceptance
4.1 VIDEOR's offers and cost estimates, whether in writing, oral or electronic form, do not constitute an offer in the legal sense, they are merely an invitation to treat made to the CUSTOMER. Before declaring its intention to accept, the CUSTOMER must advise VIDEOR of any obvious errors (e.g., spelling or calculation errors) or missing information in VIDEOR's offers, including any related Documents, to allow VIDEOR to correct and/or complete the offer; otherwise no contract shall be formed.
4.2 Once VIDEOR receives the order, the CUSTOMER will generally receive a confirmation of receipt. However, this does not in itself operate to form a contract. The CUSTOMER shall be bound by its order for three weeks from the date on which VIDEOR receives it. A contract shall be formed only if and when VIDEOR confirms acceptance thereof in writing or effects delivery within the CUSTOMER's three-week commitment period.
4.3 Any offers, costs estimates and order confirmations VIDEOR sends to the CUSTOMER are subject to VIDEOR's timely and proper receipt of deliveries from its upstream suppliers and a positive credit assessment of the CUSTOMER.
4.4 With the exception of VIDEOR's managing directors, commercial attorneys-in-fact (Prokuristen) and other employees expressly designated and notified to the CUSTOMER as contact persons (in each case in their capacity as authorised representative), VIDEOR's employees shall not be authorised to make offers, enter into contracts, make written or oral agreements, promises or commitments. Any such statements (or acceptance of statements) shall be without force and effect and shall not be binding on VIDEOR.
4.5 No guaranties or assumptions of risk exist except those contractual guaranties and/or assumptions of procurement risk which have been expressly agreed as such.
4.6 Insofar as VIDEOR allows the CUSTOMER to place orders via VIDEOR's website, the following provisions shall apply:
(a) The CUSTOMER will receive access permission for the Online order system on the VIDEOR website ("Order System"). As a rule, each CUSTOMER will be assigned one access permission. However, if the scope of the business relationship warrants setting up multiple access permissions, the CUSTOMER shall designate an employee to manage the access permissions for the CUSTOMER.
(b) VIDEOR's electronic offers and stated prices are non-binding and subject to change. The CUSTOMER may not assume that VIDEOR has received and is processing an electronic order placed by it unless or until it receives an electronic or written order confirmation from VIDEOR.
(c) The purchase agreement shall only be formed upon receipt of an electronic or written order confirmation from VIDEOR, at the latest upon the CUSTOMER's acceptance of the Delivery. For electronic orders of goods, the current value and any other conditions (e.g., freight charges, packaging costs or customer discounts) stated in the electronic or written order confirmation from VIDEOR shall apply. The CUSTOMER shall be responsible for monitoring incoming order confirmations and undertakes to promptly check these and raise any objections where necessary.
5 Reservation of title, commercial credit insurance
5.1 Title in the goods delivered (for purposes of this clause 5 hereinafter: "RoT Goods") shall rest with VIDEOR until such time as all VIDEOR's claims against the CUSTOMER arising out of the business relationship have been satisfied in full ("Retention of Title"). The CUSTOMER shall inspect and treat the RoT Goods with the due care of a prudent merchant and adequately insure them against loss or damage from fire, water and theft at its own expense. The CUSTOMER shall report to VIDEOR without undue delay any damage to the RoT Goods identified or caused by the CUSTOMER which occurs after the risk of loss has passed to the CUSTOMER. The CUSTOMER shall consult with VIDEOR without undue delay about any repairs that become necessary while the goods are subject to Retention of Title and, should VIDEOR so request, perform such repairs immediately at the CUSTOMER's expense.
5.2 While the goods are subject to Retention of Title, the CUSTOMER shall be prohibited from disposing, pledging, transferring title as security, leasing or otherwise transferring the RoT Goods to third parties so as to compromise the rights of VIDEOR therein; it shall furthermore be prohibited from modifying, processing, mixing or combining or putting them into operation without VIDEOR's prior written consent. To the extent that VIDEOR grants its consent, the following provisions shall apply in addition to any further provisions stipulated by VIDEOR at the time such consent is granted. If the CUSTOMER intends to ship the RoT Goods to a destination outside of Germany, it must ensure at its expense that all the conditions for establishing and maintaining VIDEOR's Rentention of Title are met and notify VIDEOR of its intention to do so without undue delay.
(a) Subject to VIDEOR's prior consent, the CUSTOMER may only re-sell the RoT Goods in the ordinary course of business and only on the condition that the CUSTOMER receives payment form its customer or stipulates that title will not pass to the CUSTOMER's customer unless or until the customer has met its payment obligations to the CUSTOMER in full. If rights relating to the RoT Goods are lawfully transferred to the customer, the CUSTOMER shall furthermore be required to advise its customers in writing of VIDEOR's Retention of Title. If the CUSTOMER re-sells the RoT Goods, the CUSTOMER hereby assigns by way of security to VIDEOR, without the need for any other specific action, its future receivables against its customer from the re-sale, together with all ancillary rights, including any accounts receivable; VIDEOR hereby accepts said assignment. If the RoT Goods are re-sold together with other items without an individual price for the RoT Goods having been agreed, the CUSTOMER shall assign to VIDEOR the portion of its total receivable against its customer representing the price of the RoT Goods invoiced by VIDEOR to the CUSTOMER. VIDEOR hereby accepts the foregoing assignment as well.
(b) Subject to VIDEOR's prior consent, the CUSTOMER shall be permitted to process the RoT Goods or mix or combine them with other items. Processing is done on VIDEOR's behalf as manufacturer within the meaning of section 950 BGB without obligating VIDEOR. VIDEOR and the CUSTOMER hereby agree that if RoT Goods are combined and mixed with other items not owned by VIDEOR, VIDEOR shall in any case hold a co-ownership interest in the new item equivalent to the interest resulting from the ratio of the value of the combined or mixed RoT Goods to the value of the other goods at the time they were combined or mixed. New items created in the process of processing, mixing or combining items shall constitute RoT Goods. The CUSTOMER shall hold in custody the new items created on VIDEOR's behalf with the due care of a prudent merchant. The provisions set out under clause 5.2 (a) relating to the assignment of receivables in the event of re-sale of RoT Goods shall also apply to the new items. However, they may only be assigned up to the amount of the value of the processed, combined or mixed RoT Goods invoiced by VIDEOR.
(c) If the CUSTOMER combines the RoT Goods with real property or chattel subject to VIDEOR's prior consent, it also assigns to VIDEOR by way of security, without the need for any other specific action, the receivable to which it is entitled as remuneration for the combination, including all ancillary rights, in the amount of the ratio of the value of the combined RoT Goods to the other combined goods at the time they were combined.
(d) VIDEOR reserves the right to cancel the CUSTOMER's access to the Order System at any time without stating reasons.
5.3 Until revocation, the CUSTOMER shall be authorised to recover receivables from the re-sale assigned to VIDEOR. If good cause exists, in particular in the event of default of payment, stoppage of payment, institution of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the CUSTOMER, VIDEOR may revoke the CUSTOMER's authorisation to recover the assigned receivables. Subject to prior notice and compliance with a reasonable deadline, VIDEOR may furthermore disclose the assignment by way of security, liquidate the assigned receivables, and also require that the CUSTOMER disclose the assignment by way of security to its customer. The CUSTOMER shall provide VIDEOR with any and all information necessary in order to recover the assigned receivables.
5.4 The CUSTOMER shall notify VIDEOR in writing without undue delay in the event of attachments, seizures or other disposals or third party interventions involving the RoT Goods or the receivables assigned in advance. If a legitimate interest is shown, the CUSTOMER shall provide VIDEOR with the information required to assert the rights and hand over the necessary documents without undue delay. Any costs incurred by VIDEOR which cannot be recovered from the third parties shall be borne by the CUSTOMER.
5.5 If the CUSTOMER is in breach of its obligations, particularly if it defaults on payment or is in breach of its obligations with respect to the RoT Goods, VIDEOR may, after having set the CUSTOMER a reasonable grace period to cure performance without result, rescind the agreement in addition to taking back the goods. The foregoing shall not affect the statutory provisions on the right to dispense with setting a grace period for performance. In such case, the CUSTOMER shall be obligated to return the goods. If VIDEOR takes back the goods or asserts its Retention of Title or attaches the RoT Goods, this shall not constitute a rescission of the agreement unless expressly so stated by VIDEOR. VIDEOR's right to rescind the agreement and require the return of the RoT Goods subject to the requirements of section 323 BGB, shall include all items which still constitute RoT Goods of VIDEOR as at the date of rescission. The CUSTOMER shall bear the costs of VIDEOR taking back and selling the RoT Goods. The costs of taking back and selling the RoT Goods are deemed to be 10% of the sales proceeds plus any value added tax, without any specific proof being required. Each party reserves the right to demonstrate that the costs of taking back and selling the RoT Goods are higher or lower. The sales proceeds and any down payments already made towards the purchase price shall be reduced by the costs and other receivables of VIDEOR associated with the agreement and then offset against VIDEOR's receivables. Any amount remaining shall be refunded to the CUSTOMER.
5.6 If the value of all security interests in favour of VIDEOR under the above provisions exceeds the value of all secured claims by 20% on a not merely temporary basis, VIDEOR will release an appropriate portion of the security interests at the CUSTOMER's request. VIDEOR may decide which of the various security interests to release at its discretion.
5.7 VIDEOR will maintain commercial credit insurance with an insurance company at its expense to cover itself against the failure of CUSTOMERS to honour their debts. If the CUSTOMER exceeds the credit terms, and as a result further Deliveries by VIDEOR to the CUSTOMER are not insured (any longer) and/or the CUSTOMER is fully or partially excluded from the insurance cover, the CUSTOMER shall, after receiving a written request from VIDEOR to this effect, furnish VIDEOR with alternative security of equivalent value (e.g., guarantee, aval) without undue delay, however at the latest within three weeks of receiving VIDEOR's request. If the CUSTOMER fails to provide security of equivalent value, VIDEOR may rescind the agreement that gave rise to the outstanding receivable for which insurance cover no longer applies. The foregoing is without prejudice to VIDEOR's other rights.
6 Delivery, nature of goods, late delivery
6.1 Unless stated otherwise by VIDEOR in writing, the terms of delivery shall be EXW from VIDEOR's warehouse in Rödermark (Incoterms 2020). The CUSTOMER is responsible for packaging, loading, shipping and transport costs. With the exception of pallets, transport and other packaging will not be taken back as provided in the German Packaging Regulation (Verpackungsordnung). The CUSTOMER bears the costs of disposing of transport and other packaging. The CUSTOMER is also responsible for complying with limitation periods under transport, freight and forwarding law.
6.2 By way of derogation from clause 6.1 and only if agreed, VIDEOR will send the goods to the destination nominated by the CUSTOMER. This will be done at the CUSTOMER's expense, including the packaging. VIDEOR may determine the shipping method (particularly the transport firm and route) and the packaging in its reasonably exercised discretion.
The risk of accidental loss shall pass to the CUSTOMER upon its receipt of VIDEOR's notification that the goods are ready for shipment or, if no such notification is required under the agreement, by no later than handover of the goods to the freight forwarder or carrier or other person responsible for transport. The foregoing applies even in the case of partial deliveries or if VIDEOR has other contractual obligations (e.g., is responsible for said shipping or transport or assembly). Clause 6.1 and the terms governing the place of performance (clause 17 below) otherwise remain unaffected.
6.3 Delivery times and deadlines must be agreed in writing. Subject to any express written agreements stating otherwise, statements relating to delivery times and deadlines are non-binding only and are contingent upon VIDEOR receiving correct and timely delivery from its upstream suppliers.
6.4 Partial delivery and invoicing for partial deliveries are permitted if reasonable for the CUSTOMER.
6.5 VIDEOR may, but is not required to, take out transport insurance to cover the Delivery in the name and for the account of the CUSTOMER, unless the CUSTOMER objects to such insurance.
6.6 Adherence to deadlines and dates is contingent upon the timely receipt of all documents, necessary permits and clearances to be provided by the CUSTOMER, particularly including plans, as well as the CUSTOMER's compliance with the agreed payment terms and other obligations. If these conditions are not met on time, the dates will be reasonably extended. The foregoing does not apply if VIDEOR is responsible for the delay. If the failure to meet delivery dates is due to:
(a) force majeure (particularly including general military mobilisation, war, acts of terror, riots, fire, flood, storm, earthquake, epidemics/pandemics, government travel warnings);
(b) viruses or other third party attacks on VIDEOR's IT systems;
(c) barriers under national, European or international foreign trade law or impediments due to other circumstances for which VIDEOR is not responsible; or
(d) the failure of VIDEOR's upstream suppliers to deliver properly or on time, provided VIDEOR entered into an agreement with the upstream supplier to cover the transaction with the CUSTOMER either before or directly after entering into the agreement with the CUSTOMER;
the dates will be reasonably extended.
6.7 If delivery by VIDEOR is delayed, the CUSTOMER may, provided it is able to prove that it suffered loss as a result, claim compensation for each full week of the delay in the amount of 0.5% per week, but no more than a total of 5% of the price for the portion of the Deliveries unable to be used for their intended purpose because of the delay.
6.8 To the extent permitted by law, in all cases involving late delivery, including after the expiry of any [grace] period set for delivery by VIDEOR, the CUSTOMER is precluded from claiming either damages for late delivery or damages in lieu of performance that exceed the limits specified in clause 6.9. The foregoing does not apply to liability for intentional or grossly negligent acts or omissions or liability for fatal injury, bodily injury or injury to health. The CUSTOMER may only rescind the agreement in accordance with the statutory provisions if VIDEOR was responsible for the delay in delivery. The above provisions do not operate to shift the onus of proof to the detriment of the CUSTOMER.
6.9 At VIDEOR's request, the CUSTOMER shall give notice within a reasonable period as to whether it wishes to rescind the agreement on account of the delay or will insist on delivery.
6.10 It is explicitly emphasised that unless expressly agreed otherwise in the specific case, the software was neither developed nor intended or manufactured for use in dangerous environments in which faultless operation is absolutely essential in order to protect against bodily injury, fatal injury or damage to health or the environment. The software is not suitable for use in or in connection with power plants, air traffic navigation or communication, air traffic control, other traffic control, to operate or monitor medical or other instruments that are vital for survival or support or preserve life, weapons systems or in similar dangerous environments in which product faults may directly or indirectly lead to death, bodily injury or health complications or serious physical, biological or environmental damage ("High Risk Activities"). The CUSTOMER shall refrain from using the software for High Risk Activities.
7 Acceptance/order for shipment, transfer of risk, inspection of received goods, receipt of delivery
7.1 Within eight days of receiving notification from VIDEOR that the goods are ready, the CUSTOMER must collect them or issue an order for them to be shipped ("Supply Window"). Shipping shall be arranged in the name of, on the account of and at the risk of the CUSTOMER. VIDEOR may charge flat rate freight charges to cover freight costs.
7.2 If the CUSTOMER fails to accept the goods within two weeks of receiving the notification that the goods are ready, VIDEOR may issue a written notice to the CUSTOMER setting a grace period of eight days. If the grace period expires without result, VIDEOR may give written notice rescinding the agreement and/or claiming damages. If VIDEOR claims damages in lieu of performance, the quantum of such damages shall be 20% of the price of the delivered goods. Both parties reserve the right to demonstrate that the loss suffered was greater or less.
7.3 The risk associated with the delivered goods, including the risk of accidental loss or deterioration, shall pass from VIDEOR to the CUSTOMER upon expiry of the Supply Window or (in the case of shipment) upon handover to the transport provider, however no later than when the goods leave VIDEOR's distribution centre.
7.4 Unless an acceptance testing procedure has been expressly agreed, the CUSTOMER has an obligation to inspect the delivered goods without undue delay after delivery to its premises or to the third party nominated by it and to report any defects to VIDEOR without undue delay. The provisions of sections 377 and 381 HGB shall supplement the terms of this clause in this regard. The notice of defects must be in writing, whereby fax or e-mail will suffice in the interests of saving time. In order to be considered sent without undue delay, the notice must have been sent within no more than seven (7) working days of delivery (section 377 (1) HGB) or, if the notice concerns a defect that was not identifiable on inspection (section 377 (2) and (3) HGB), within no more than five (5) working days after the defect was discovered. If this latter type of defect described above would have been identifiable at an earlier date had the goods been used normally, the period for giving notice of the defect referred to above shall begin on this earlier date. The inspection of the delivered goods after their delivery must not be limited to an inspection of their external appearance and the delivery documents, but must also include a reasonable inspection of quality and functionality, at least including reasonable random sampling. If the CUSTOMER fails to properly inspect and/or give notice of defects, VIDEOR shall be released from its warranty obligations and any other liability for the defect concerned. No statements, acts or omissions of VIDEOR are to be construed as a waiver of the requirements and legal consequences under sections 377 and 381 HGB and/or this clause. The CUSTOMER may not refuse to take receipt of Deliveries on the basis of minor defects.
8. Defects in quality
8.1 Conforming tender of the items shall be determined based on the agreement of their quality/condition. To the extent that the parties have agreed on a specific quality/condition of the items delivered, objective requirements for those items shall not apply in this respect. All product descriptions and manufacturer's specifications governing the individual order or published by VIDEOR (in particular in catalogues or on its website) as at the date of contracting shall constitute an agreement on the quality/condition of the items delivered. VIDEOR reserves the right to change their design, form or colour and the scope of delivery subject to changes thereto by our upstream suppliers, provided that the items delivered are not materially changed and the changes are reasonable for the CUSTOMER. In its sole discretion, VIDEOR may change model numbers and designations for administrative reasons from time to time. If certain model designations or numbers for the delivered items are used or changed, this shall not give rise to any rights against VIDEOR. VIDEOR shall only be obligated to provide updates to the extent this has been expressly agreed separately with the CUSTOMER.
8.2 No warranty claims shall exist for non-material deviations from the agreed quality/conditions, non-material impairment in fitness for use, natural wear and tear or damage occurring after the risk of loss has transferred as a result of improper or negligent handling, excessive stress, improper operating equipment or special external factors not stipulated under the agreement, as well as in the event of non-reproducible software errors. If the CUSTOMER or third parties make improper modifications or perform improper installation/removal or repair work, no warranty claims for this or the resulting consequences shall exist.
8.3 If a manufacturer's warranty exists, the CUSTOMER shall make every attempt to enforce its claims under the manufacturer's warranty first before seeking recourse against VIDEOR. VIDEOR shall support the CUSTOMER in enforcing claims under the manufacturer's warranty. The foregoing shall not affect the CUSTOMER's other warranty claims.
8.4 In the event of defects in the third-party products (in particular components) delivered by VIDEOR, which VIDEOR is not permitted to remedy for licensing or factual reasons, VIDEOR shall at its option assert the warranty claims against such third parties for the account of the CUSTOMER or assign them to it. In the case of such defects, warranty claims against VIDEOR shall only arise (subject to the other conditions and in accordance with these Standard Terms and Conditions of Sale) if judicial enforcement of the aforementioned claims against the third parties was unsuccessful or had no prospect for success or (e.g., for timing reasons) is otherwise unreasonable for the CUSTOMER. For the period during which claims against third parties are being asserted (including if only out of court) by VIDEOR or the CUSTOMER, the limitation period for the relevant warranty claims of the CUSTOMER against VIDEOR shall be suspended.
8.5 The CUSTOMER may only assert warranty claims provided that it has duly met its obligations to inspect and give notice of defects. Warranty claims of the CUSTOMER must be asserted in accordance with the provisions of clause 7.4. They must be reported to VIDEOR in a clear and detailed form, stating all pertinent information necessary for identifying and analysing the defects. In particular, the steps in the work process that led to the defect, how the defect manifests and the impact of the defect must be specified using the forms and procedures provided by VIDEOR for this purpose.
8.6 Upon request, the CUSTOMER shall assist VIDEOR with assessing and asserting claims against third parties in connection with the Deliveries.
8.7 At its option, VIDEOR shall either repair, re-deliver or replace free of charge all those delivered items containing a defect, provided that the cause originated prior to the date on which the risk of loss was transferred. In the case of re-delivery or replacement, the replaced items shall be the property of VIDEOR and the CUSTOMER must return them to VIDEOR.
8.8 Claims for cure shall be time-barred 12 months from commencement of the statutory limitation period; the foregoing shall also apply to claims for rescission or a reduction in the contract price. The limitation period shall not apply where longer periods are prescribed by law, in the event of intentional or fraudulent concealment of the defect or failure to comply with an express, written warranty of quality. The CUSTOMER's claims to reimbursement of expenses under section 445a BGB shall also be time-barred 12 months from commencement of the statutory limitation period, provided that the last contract in the supply chain did not involve a purchase of consumer goods. VIDEOR's processing of a notice of defect by the CUSTOMER shall not constitute an acknowledgement by VIDEOR of the existence of any defect. Processing a notice of defect will only result in a suspension of the limitation period, provided that the statutory requirements for this are met. This shall not result in re-commencement of the limitation period. The foregoing shall also apply if VIDEOR takes action to cure performance (repair or replacement) in response to a notice of defect by the CUSTOMER. Any action to repair the defect will only affect the limitation period as relates to the defect triggering the repair. The CUSTOMER's rights under sections 478, 479 BGB as well as the statutory provisions on the suspension of expiry, suspension and re-commencement of the limitations period shall remain unaffected.
8.9 However, the suspension of expiry under section 445b (2) BGB ends at the latest five years from the date on which VIDEOR delivered the item to the CUSTOMER; the foregoing shall not apply to the extent that the last contract in the supply chain involved a purchase of consumer goods.
8.10 Delivery within the meaning of paragraph (1) means receipt by the CUSTOMER of our notice of availability for collection or, if shipping has been agreed, handover to the transport agent. If formal acceptance has been agreed, the limitation period shall commence upon acceptance.
8.11 If used items are delivered, the CUSTOMER's warranty claims under section 437 BGB shall be wholly precluded.
8.12 In the event of claims for defects, payments by the CUSTOMER may be withheld to an extent which is in reasonable proportion to the defects in quality which have occurred. The CUSTOMER shall have no right to withhold payments if its claims for defects are time-barred.
8.13 VIDEOR must be given the opportunity to cure performance within a reasonable period.
8.14 If the attempt to effect cure fails, the CUSTOMER may rescind the agreement or claim a reduction in the contract price; these remedies shall be without prejudice to any claims for damages.
8.15 If the CUSTOMER intends to install or mount the items delivered, it must inspect the properties of the items delivered upon receipt to ascertain whether they are suited for installation or mounting and the subsequent intended use and notify VIDEOR of any defects without undue delay, provided that an inspection of those properties is reasonable at that time in view of the type and quality/condition of the items delivered. If no notice of defects is given with respect to the aforementioned properties despite even though an inspection would have been reasonable, the items delivered shall be deemed accepted. In such case, the CUSTOMER shall have no warranty claims with respect to those defects. To the extent that the CUSTOMER fails to inspect the relevant external and internal properties of the items delivered to ascertain whether they are suited for installation or mounting and the subsequent intended use prior to their installation or mounting, the CUSTOMER shall be deemed to be acting with gross negligence. In such case, it may only assert warranty claims relating to such properties if the relevant defect was fraudulently concealed or VIDEOR has assumed a warranty of quality for the item in question.
8.16 Claims of the CUSTOMER for necessary expenses incurred for the purpose of curing defects, in particular for transport, travel, labour and materials, are precluded to the extent that the increase in expenses is due to the fact that the item delivered was subsequently shipped to location other than the Customer's branch office, unless the shipment is in keeping with its intended use. The foregoing shall also apply mutatis mutandis to the CUSTOMER's claims to reimbursement of expenses under section 445a BGB, provided that the last contract in the supply chain did not involve a purchase of consumer goods.
8.17 The CUSTOMER shall only have claims to recourse against VIDEOR under section 445a BGB if the CUSTOMER has not made any agreements with its customers that exceed the scope of statutory claims for defects.
8.18 The CUSTOMER's claims for damages for defects in quality shall be precluded. The foregoing shall not apply in the event of fraudulent concealment of a defect, failure to comply with a warranty of quality, injury to life, limb or heath or an intentional or grossly negligent breach of duty on the part of VIDEOR. The above provisions do not operate to shift the onus of proof to the detriment of the CUSTOMER. Further or other claims of the CUSTOMER for defects in quality are precluded.
8.19 VIDEOR may charge the CUSTOMER for expenses incurred for processing notices of defects in those cases where VIDEOR processes a notice of defects by the CUSTOMER but no defect actually existed, unless the CUSTOMER was unable to detect with reasonable effort that no defect existed, or is unable to reproduce a notified defect or otherwise demonstrate the existence of a defect, or where additional expenses are incurred due to the CUSTOMER's failure to duly perform its obligations.
8.20 The warranty period for software is 12 months. The foregoing does not apply to recourse claims under section 478 III BGB and sections 327u BGB.
8.21 Only demonstrable and reproducible deviations from the description in the software documentation valid as at the date of contracting (available on VIDEOR's website),
occurring when the software is used in accordance with the agreement shall constitute defects not amounting to a defect in title. Unless appearing in the user documentation, any technical data, specifications and performance data referred to in public statements, particularly promotional material, shall not constitute representations as to features or quality. The warranty given for defects in quality does not apply to defects that occur because the software is used on hardware and/or in a software environment that does not meet the requirements stated in the user documentation.
9 Set-off and right to withhold payments, assignment of claims
right to offset or retention of the Orderer is excluded unless its counter-claims are undisputed by
VIDEOR or have been declared final and binding.
9.2. The assignment of all claims of the Orderer against VIDEOR from the business relationship shall require the written consent of VIDEOR in order to be valid.
In the event of returns these are to be sent by the Orderer carriage paid to VIDEOR E. Hartig GmbH, Carl-Zeiss-Straße 8, 63322 Rödermark. Returns will be accepted subject to our examination. Returns can only be processed by VIDEOR if the Orderer applies for a return shipment number at VIDEOR before returning the goods and this number was issued by VIDEOR the returns form made available by VIDEOR and completed by the Orderer in full is enclosed with the return shipment. Information relating to the request of return shipment numbers is available under www.videor.com/warenruecksendung. The issue of a return shipment number by VIDEOR does not mean a recognition of a defect or any other complaint of the Orderer. The risk for the return shipment shall be borne by the Orderer. Reasonable return shipment costs in case of defective objects of the deliveries will only be reimbursed by VIDEOR if these exceed 5% of the price invoiced to the Orderer by VIDEOR of the returned objects of the deliveries. The rights of the Orderer from Section 478 (2) BGB shall remain unaffected. In case of returns for which the Orderer is responsible, in particular in the event of the refusal of acceptance, VIDEOR reserves the right to invoice the Orderer a flat rate for return to storage.
11 Software licence
11.1 The software (program, program code, software documentation and user guide) is subject to legal protection. As between the parties, VIDEOR alone holds all rights under copyright, patent and trademark law and all other related rights in the software and any other items that VIDEO provides or makes available to the CUSTOMER in the course of negotiating and implementing the agreement. Where third parties hold the rights and do not grant the CUSTOMER a licence directly, VIDEOR has purchased or licensed the necessary rights of use and exploitation. Subject to full payment, VIDEOR grants the CUSTOMER the right to use the software to the extent stipulated in the agreement. Unless agreed that the software may be used in a different environment, the above right entails a non-exclusive, perpetual licence to operate the software at one workstation on one computer unit (single user licence). For the agreed duration of this right, the CUSTOMER is therefore authorised to install, load and run the software on the agreed maximum number of devices.
11.2 The software is delivered in executable form only (object code) together with a user guide in the language stated in the product description and installation instructions. Unless expressly agreed otherwise, no other documentation is required to be provided. The user guide and installation instructions may be provided electronically, particularly online as files available for download.
11.3 The software will be delivered on a data storage medium or, if agreed or requested by the CUSTOMER, made available for download from the Internet via a link provided by VIDEOR.
11.4 Every computer unit with a CPU is deemed a computer. Use within a network is only permitted if expressly agreed (multi-user licence). In the case of multi-user licences, the maximum number of concurrent users must be specified. This applies even if the software is not copied within the network. Unless expressly agreed, the software may not be used by way of an arrangement involving its transfer to third parties, particularly pursuant to an application service providing (ASP) arrangement.
11.5 The concurrent use of the software on more than the agreed number of workstations (overuse) is not permitted. The CUSTOMER must report any overuse without undue delay. For the period of overuse, i.e., from when overuse begins until the conclusion of an appropriate agreement or until the overuse ceases, the CUSTOMER must pay compensation for the overuse, which shall be calculated based on the duration of the overuse charged at double the price for the used software according to the price list applicable at the time of the breach of contract, whereby the parties will assume straight line depreciation over three years for the purpose of calculating the compensation. All rights to claim damages in addition to this contractual penalty (Vertragsstrafe) are reserved. The CUSTOMER remains entitled to demonstrate that a lower amount of loss was suffered.
11.6 The CUSTOMER may transfer the licence to use the software to a third party if it completely ceases to use the software itself, in particular it must delete or destroy all documentation, copies etc. or hand them over to the third party at the time of transferring the rights. Where a multi-user licence was granted, it may only be transferred in its entirety. Any transfer of individual workplace permissions under a multi-user licence constitutes an extension/intensification of use that was not agreed and is expressly prohibited. Clause 11.5 applies mutatis mutandis. The grant of sub-licences is prohibited.
11.7 If the licence is transferred to third parties, e.g. in connection with a resale, the CUSTOMER will notify VIDEOR of the name and address of the recipient and specifically
refer the recipient to clause 3 (no High Risk Activities) and to the scope of the licence according to clause 11 hereof.
11.8 VIDEOR may implement reasonable and effective measures to prevent unlawful reproduction or any other unauthorised use. VIDEOR will refer to such measures in the product description prior to contracting. VIDEOR is specifically authorised to make use of the software dependent on the use of uniquely identified hardware (e.g., dongle/hard-lock). This means that in technical terms the software can only be used in conjunction with that hardware part. VIDEOR is also authorised to make use of the software dependent on prior individual user registration through an online registration system operated by the software manufacturer. The CUSTOMER'S rights under section 69d (2) and (3) and section 69e of the German Copyright Act (Urheberrechtsgesetz, "UrhG") remain unaffected.
11.9 The CUSTOMER will notify VIDEOR in writing without undue delay if third parties attempt to enforce intellectual property rights (e.g., rights under copyright or patent law) against it. The CUSTOMER will not acknowledge any infringements of intellectual property rights alleged by third parties, and will either leave the conduct of any dispute to VIDEOR, including any out-of-court settlements, or conduct proceedings exclusively in consultation with VIDEOR. VIDEOR will assume the necessary court costs and lawyers' fees incurred by the CUSTOMER in connection with its legal defence. If the CUSTOMER itself is responsible for the infringement of intellectual property rights, all claims against VIDEOR are excluded.
11.10 The CUSTOMER is responsible for ensuring that programs and data are regularly backed up. The CUSTOMER will put reasonable arrangements in place in case the program does not work properly (e.g., data back-up, error diagnostics, regular review of results). It is the CUSTOMER'S responsibility to ensure that the program's operating environment is working VIDEOR will not be liable for any ensuing loss or damage if the CUSTOMER breaches these obligations. In particular, VIDEOR will not be liable for recovering lost or damaged data or programs.
11.11 The above grant of rights is subject to full payment of the purchase price (condition precedent).
12 Intellectual property rights and copyright, defects in title
12.1 The delivered items and related Documents are generally subject to intellectual property rights and copyrights of manufacturers and licensors (hereinafter: IP Rights). The CUSTOMER may not modify, cover or remove notices referring to IP Rights. The CUSTOMER must refer its customers to IP Rights and licence conditions, particularly the restrictions they entail.
12.2 Unless agreed otherwise in writing, VIDEOR has an obligation to deliver without infringing IP Rights, but only within the country of the delivery address. Where a third party brings legitimate claims against the CUSTOMER because VIDEOR's Deliveries infringe IP Rights despite being used in accordance with the agreement, VIDEOR will be liable to the CUSTOMER as follows, subject to compliance with the periods stipulated in clause 8.5:
(a) VIDEOR will either, at its discretion and at its expense, procure a licence for the affected Deliveries, modify them so they no longer infringe IP Rights, or replace them. If it is not possible for VIDEOR to do this on reasonable terms, the CUSTOMER will be entitled to exercise its statutory rights of rescission or rights to a reduction of the contract price.
(b) Clause 14 governs VIDEOR's duty to pay damages.
(c) The above obligations only apply to VIDEOR if the CUSTOMER informs VIDEOR about the claims brought by third parties in writing without undue delay, does not acknowledge any infringement, and all legal defence measures and settlement negotiations are reserved for VIDEOR. If the CUSTOMER ceases using the Delivery in order to mitigate damage or for other legitimate reasons, it must advise the third party that the cessation of use is not to be construed as an acknowledgement of any infringement of IP Rights.
12.3 Claims by the CUSTOMER are precluded if it is responsible for the infringement of IP Rights.
12.4 Claims by the CUSTOMER will also be precluded if the infringement of IP Rights is due to special requirements of the CUSTOMER, a use that VIDEOR could not have foreseen, or the CUSTOMER'S modification of the Delivery or use of the Delivery with hardware or software not supplied by VIDEOR.
12.5 If IP Rights are infringed, clauses 8.7., 8.8., 8.13., 8.14. will otherwise apply mutatis mutandis to the CUSTOMER'S claims under clause 11.2. (a).
12.6 The terms of clause 8 apply mutatis mutandis to any other defects in title.
12.7 Any further or other claims by the CUSTOMER against VIDEOR or its vicarious agents under this clause on the grounds of a defect in title are precluded.
12.8 If the CUSTOMER uses the Order System, it is granted the right until further notice to import the information provided in connection with the online Order System, except for electronic data sheets, into its electronic inventory management system at any time. This information may only be used in connection with and for the purposes of updating the CUSTOMER'S own electronic inventory management database. In view of this potential use, however, the CUSTOMER is not permitted to disclose VIDEOR logos or text or the availability of products at VIDEOR to third parties. The CUSTOMER is prohibited from using the data for any other purpose. It will impose a corresponding obligation on its employees.
13 Performance condition
Performance of the agreement is subject to the condition that there are no obstacles impeding performance under national, EU or international (particularly U.S.) rules, laws, directives or regulations, and no embargoes or other sanctions impeding performance. The CUSTOMER shall provide all information and documents necessary for export, shipment and/or import.
14 Impossibility, amendments
14.1 If Delivery is impossible, the CUSTOMER may claim damages, unless VIDEOR was not responsible for the impossibility. However, the CUSTOMER'S claim for damages is limited to 10% of the portion of the Delivery unable to be used for its intended purpose because of the impossibility. This limitation does not apply to liability for intentional or grossly negligent acts or omissions or liability for fatal injury, bodily injury or injury to health. This does not operate to shift the onus of proof to the detriment of the CUSTOMER. The foregoing does not affect the CUSTOMER'S right to rescind the agreement.
14.2 Where events of the type described in clause 6.7 (a) to (c) substantially change the commercial significance or substance of the Delivery of substantially interfere with VIDEOR'S operations, the parties agree to make reasonable amendments in good faith. If this is not commercially feasible, VIDEOR has the right to rescind the agreement. The same applies if necessary export licences are not issued or cannot be usefully used. If VIDEOR intends to exercise this right of rescission, VIDEOR must notify the CUSTOMER without undue delay after becoming aware of the event's implications, even if an extension of the delivery time was initially agreed with the CUSTOMER.
15 Liability and other damages claims
15.1 Unless these Standard Terms and Conditions of Sale provide otherwise (including clause 14 hereof), VIDEOR's liability for breach of contractual and non-contractual duties is governed by the statutory provisions.
15.2 Regardless of the legal basis for liability, VIDEOR'S liability for damages is unlimited in the event of loss or damage caused by an intentional or grossly negligent breach of duty by VIDEOR or one of VIDEOR'S legal representatives or vicarious agents.
15.3 Subject to any lesser standard of liability provided by statute, in the event of a negligent breach of duty by VIDEOR or its legal representatives or vicarious agents, VIDEOR shall only be liable:
(a) - for ensuing fatal injury, bodily injury or injury to health, whereby liability shall be unlimited in these cases;
(b) for loss or damage caused by the breach of material contractual obligations. Material contractual obligations are those that must necessarily be complied with for the
proper performance of the agreement, and which the CUSTOMER may ordinarily and reasonably expect to be complied with. In this case, however, VIDEOR'S liability is limited to typically foreseeable loss or damage at the time of contracting.
15.4 The limitations on liability under clause 14.3 do not apply if VIDEOR fraudulently conceals a defect, has warranted certain features or characteristics of the goods subject to a penalty for non-compliance, or has assumed a procurement risk. Furthermore, any strict liability such as liability under the German Product Liability Act (Produkthaftungsgesetz) remains unaffected.
15.5 Where VIDEOR'S liability is excluded or limited under the foregoing provisions, the exclusion or limitation also applies to the personal liability of VIDEOR'S governing bodies, legal representatives, employees, workers and vicarious agents.
15.6 Subject to any other requirements, the CUSTOMER may only claim damages for contractual penalties or liquidated damages it is liable to pay to third parties in connection with the goods supplied by VIDEOR if this has been expressly agreed [in writing] with VIDEOR, or the CUSTOMER referred VIDEOR to this risk in writing before contracting.
15.7 All damages claims on the part of the CUSTOMER, irrespective of the legal basis, will become time-barred upon the expiry of the limitation period applicable to claims based on defects in quality under clause 8. The statutory limitation periods apply in the event of fatal injury, bodily injury or injury to health, intentional or grossly negligent acts or omissions and damages claims under the German Product Liability Act.
15.8 The CUSTOMER shall give written notice without undue delay of any loss or damage for which VIDEOR must assume liability, or have such loss or damage recorded by VIDEOR'S agent without undue delay.
15.9 The above provisions do not operate to shift the onus of proof to the detriment of the CUSTOMER.
15.10 VIDEOR assumes no liability for the substantive accuracy of the data and information provided in the context of the Order System. Clause 4.6 (c) shall apply mutatis mutandis.
16 Compliance, import and export
16.1 VIDEOR will deliver the goods in conformity with currently applicable German and EU rules, laws, directives and regulations and, for items imported from the USA, currently applicable U.S. export regulations.
16.2 VIDEOR's Deliveries are intended for use in the country in which the delivery address is located and are intended to remain there. If the CUSTOMER intends to re-export the items delivered to it by VIDEOR, the CUSTOMER shall comply with national, EU and international (particularly U.S.) rules, laws, directives and regulations. The CUSTOMER is prohibited from re-exporting the items delivered to it by VIDEOR in breach of these provisions, regardless of whether the items are re-exported in unaltered form or are integrated in other systems.
16.3 The CUSTOMER is independently responsible for observing and complying with national, EU and international (particularly U.S.) import and export rules, laws, directives and regulations. The CUSTOMER will also assume responsibility for and the costs of statutory or regulatory proceedings in connection with cross-border Deliveries.
16.4 It is the CUSTOMER'S responsibility to independently familiarise itself with the applicable national, EU and international (particularly U.S.) import and export rules, laws, directives and regulations. The CUSTOMER is also independently responsible for obtaining the necessary import and export licences from the competent authorities at its expense prior to importing or exporting goods. The foregoing applies regardless of whether the CUSTOMER has communicated the final destination of the items for delivery to VIDEOR. VIDEOR has no duties to provide information.
16.5 Every re-supply of the delivered items by the CUSTOMER to third parties, with or without VIDEOR's knowledge, is conditional upon the concurrent imposition of the conditions of the export licence. The CUSTOMER is fully liable in the event of non-compliance.
16.6 The CUSTOMER is not permitted to directly or indirectly re-supply the items delivered to it by VIDEOR to countries that are subject to any national, EU or international embargoes or other sanctions, or to natural persons or legal entities of such countries or national persons or legal entities appearing on national, EU or international sanctions lists, unless the CUSTOMER has obtained the relevant government approval beforehand. In addition, the CUSTOMER is not permitted to directly or indirectly re-supply the delivered goods to natural persons or legal entities that are in any way involved in supporting, developing, producing or using chemical, biological or nuclear weapons of mass destruction.
17 Data protection, confidentiality
the event of the processing of personal data of the respective other party VIDEOR and the Orderer
undertake to comply with the applicable data protection laws, in particular the Federal Data
Protection Act and the EU General Data Protection Regulation.
16.2. If VIDEOR processes personal data as a contract data processor by order of the Orderer as data controller within the scope of deliveries, VIDEOR and the Orderer undertake to conclude an agreement regarding the contract data processing pursuant to Article 28 of the EU General Data Protection Regulation. The same shall apply in the vice versa case.
16.3. The privacy statement of VIDEOR is available under www.videor.com/en/privacy-policy. Enquiries or requests in this respect are to be addressed to [email protected].
18 Place of performance, jurisdiction; governing law
18.1 Place of performance for all obligations arising out of the contractual relationship is Rödermark, Federal Republic of Germany.
18.2 Exclusive place of jurisdiction for any and all legal disputes arising directly or indirectly out of the contractual relationship is Frankfurt am Main, Federal Republic of Germany. However, VIDEOR shall also be entitled to bring suit against the CUSTOMER at the latter's registered office.
18.3 This agreement shall be governed and construed solely in accordance with the laws of the Federal Republic of Germany, excluding the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).
contract shall also remain binding in its other parts with the legal invalidity of individual
provisions. This shall not apply if the adherence to the contract would represent an unreasonable
hardship for one contractual party.