I. Conclusion of contract, scope of contract
1. All sales, supplies and services from VITRACOM are based exclusively on the current general terms and conditions for sales and supply unless this is expressly deviated from in writing. These contract conditions apply for all future contracts without expressly being referenced. Any deviating conditions of purchase on the part of the buyer do not become part of this contract, even on confirmation of the order or on carrying out the contract.
2. The offers from VITRACOM are non-binding insofar as this is not expressly deviated from in writing. In the absence of any special arrangement, conclusion of contract comes about with the written contract confirmation from VITRACOM, at the latest however, with the supply or service from VITRACOM.
3. VITRACOM reserves all rights of ownership and copyright in patterns, cost estimates, drawings and other information in tangible or intangible form – including electronic form – and these may not be made accessible to third parties.
II. Use of the software
1. The purchaser is granted a non-exclusive right to use the software supplied, including its documentation. It is relinquished for use on the on the device that it is intended for. Use of the software on more than one system is not allowed.
2. The purchaser is only allowed to sell the software on if he refrains from further use of the software and the third party commits himself, by way of written declaration to VITRACOM, only to use the software within the limits of the right of use as granted to the purchaser. The purchaser commits himself not to remove any manufacturer’s information, especially any copyright notices, or make changes without previous explicit consent from VITRACOM.
3. All other rights to the software and the documentation, including any copies thereof, remain with VITRACOM. The granting of further licenses by the purchaser or any third parties is not allowed.
III. Price quotations and terms of payment
1. In the absence of any special agreement, the prices apply ex works including loading on our site, excluding statutory value added tax, freight, packaging, transport insurance, unloading and installation.
2. The purchaser may offset against any undisputed or legally determined counterclaims. A right of retention is only due to the purchaser if it is included in the same contract.
3. In the absence of any special agreement, any amounts invoiced by VITRACOM are to be paid in full as follows: a) For the purchase of up to five devices from VITRACOM, the whole price is due immediately. b) For the purchase of more than five devices from VITRACOM, payment is to be made in the following instalments: 33% of the total price on receipt of the order confirmation; 33% on notification of readiness for shipment to the purchaser; the remainder within a month of transfer of risk or, if an installation or adaptation of the software has been agreed, on notification of the conclusion of such an installation or adaptation by VITRACOM.
4. VITRACOM retains its right of retention with any default of payment.
IV. The purchaser’s cooperation
1. The purchaser shall ensure that the devices supplied are protected against damp, moisture, heat and cold as well as any variations in electricity supply or other operational hazards.
2. When agreeing on any installation or adaptation of the devices, the purchaser is obliged to render his cooperation without charge. In particular, the cooperation duties include issuing information on the exact deployment conditions of the devices as well as making employees, workrooms, data and telecommunication facilities available.
3. The purchaser undertakes the safeguarding of their data using state-of-the-art technology. Unless any expressly written statements to the contrary are made, the purchaser’s employees must always be able to assume that all the data they come in contact with is safeguarded.
4. The task of appropriate monitoring of the devices and checking the results, if necessary by taking out maintenance contracts, is the responsibility of the purchaser.
5. The purchaser carries all the disadvantages and additional costs that may result from any breach of the obligations as set out above.
V. Delivery times and delays in delivery
1. The delivery time is agreed between the contract parties. Compliance with this by VITRACOM assumes clarification of all commercial and technical issues between the parties to the contract and fulfilment of the obligations under the responsibility of the purchaser, such as payment of a deposit, for example. Should this not be the case, the delivery time extends itself accordingly. This does not apply if the delay is attributable to VITRACOM.
2. Observance of the delivery deadline is subject to the complete and punctual supply of parts to us on the part of our own suppliers.
3. The delivery deadline is considered to have been met if the delivery item has left the works or the branch of VITRACOM, or its readiness for delivery has been announced, before the deadline expires. If there is to be an acceptance of the delivery, except with a justified refusal of acceptance, the acceptance date is decisive, or alternatively the notification of readiness to accept.
4. If the dispatch or handover of the delivery item is delayed for reasons that are attributable to the purchaser, the costs that accrue in consequence of the delay are charged to the purchaser.
5. The delivery time is extended as deemed reasonable, if failure to meet the deadline is attributable to force majeure, industrial disputes or other events that are outside the area of influence of VITRACOM. VITRACOM will notify the purchaser of the commencement and cessation of such circumstances on an ongoing basis.
VI. Transfer of risk
1. The risk is transferred to the purchaser as soon as the delivery item has left the works or branch of VITRACOM, this also applies with part deliveries or the adoption of further services such as shipping costs, delivery, installation or adaptation by VITRACOM.
2. Part deliveries are acceptable, as long as they are considered fair by the purchaser.
VII. Retention of ownership
1. The delivery item remains the property of VITRACOM until the balance of all invoices from the business relationship with the purchaser has been paid.
2. VITRACOM is entitled to insure the delivery item against theft, breakage, fire, water and other damage at the purchaser’s expense, if the purchaser does not verify that he has taken out appropriate insurance cover.
3. The purchaser may only sell on, pawn or pledge the delivery item as security when he has purchased the ownership thereof. In cases of seizure, confiscation or any other access by third parties, the purchaser is obliged to inform VITRACOM of this immediately.
4. In any behaviour on the part of the Purchaser that is in violation of the contract, especially in default of payment, after sending reminders and setting a deadline, VITRACOM is entitled to withdraw from the contract. The requirement for setting a period of grace no-longer applies in the cases provided for by law.
5. On application to open insolvency procedures on the purchaser’s assets or the filing of a statutory declaration on the part of the purchaser, VITRACOM is entitled to withdraw from the contract and demand the immediate return of the delivery item.
1. All warranty claims lapse within one year after delivery.
2. If a flaw appears in a delivery item within the period set out in item 1., VITRACOM is entitled to choose between repairing the item or supplying a flawless such item. Any replaced parts become the property of VITRACOM.
3. As long as VITRACOM meets its obligations for subsequent fulfilment, in particular by eliminating defects or supplying a flawless item, the purchaser has no right to demand a decrease in payment or to declare a withdrawal from the contract, as long as the subsequent fulfilment has not failed.
4. Any warranty claims are particularly ruled out in the following cases: Unsuitable or inappropriate use, defective installation and/or putting in service by the purchaser or third parties, technical deterioration or wear, defective or negligent handling, improper maintenance, defective processing, unsuitable environments, chemical, electrochemical or electrical influences – as long as they are not attributable to VITRACOM.
5. VITRACOM does not accept any liability for the consequences of an inappropriate repair by the purchaser or a third party, or for any changes made to the delivery item without previous consent from VITRACOM.
6. If the purchaser has firmly attached the delivery item to other objects (in an installation or by bolting on etc.) or housed it in a location where the delivery item is not freely accessible (e.g. above a false ceiling), he then has to bear the costs for its removal. VITRACOM accepts no liability in connection with such a removal.
1. Claims for damages exist on the part of the purchaser where the statutory requirements are met, only – through intent or gross negligence on the part of VITRACOM or its subcontractors, – through culpable injury to life, body or health, – through defects that VITRACOM has maliciously concealed or the absence of which has been guaranteed by VITRACOM, – through defects in the delivery item, for which liability exists for personal or material damage to objects in private use according to product liability law – and provided that the purchaser meets his obligations to cooperate as set out in section IV. in these contract conditions.
2. In the event of a culpable breach of material contractual obligations, VITRACOM is also liable in cases of simple negligence, limited however to the foreseeable damage typical of this type of contract and excluding the risk of any consequential damages.
3. Any further claims are ruled out. With the regulations set out above, the burden of proof is not modified to the disadvantage of the purchaser.
X. Applicable law, unworkability of individual clauses, jurisdiction
1. For all the legal relationships between VITRACOM and its customers, the laws of the Federal Republic of Germany apply exclusively, to the exclusion of the UN convention on the sale of goods (the CISG). In the event that any individual clauses in these contract conditions are wholly or partially unworkable, the effectiveness of the remaining contract conditions is unaffected. Any wholly or partially unworkable clause is replaced by a regulation that is economically consistent with the unworkable clause, while taking the interests of both parties into account. The same applies in the case of a gap in the regulation.
2. Place of fulfilment and sole court of jurisdiction is the company headquarters of VITRACOM. VITRACOM is nonetheless entitled to also take legal action in other places of jurisdiction.