1.1 The following General Terms and Conditions apply to all deliveries, repairs, and other services of Allied Vision Technologies GmbH (henceforth called “AVT GmbH”). They also apply to all future business transactions even if they are not specifically mentioned. AVT GmbH shall not recognize any purchasing terms or other general terms and conditions of business of the customer, unless AVT GmbH specifically agrees to them in writing.
1.2 Alterations and supplements to the Contract, unless no other provisions stating the contrary have been agreed upon, must be made in writing.
2 Signing an Contract, Order, and Order Confirmation
2.1 Our offers are non-binding and take place on the condition of deliverability. The Contract shall only become valid with our written order confirmation.
2.2 The mutual written declarations shall determine the scope of delivery and services. If a Contract has been signed without such mutual declarations, than either the written order confirmation from AVT GmbH or – if no such confirmation has been provided – the written order of the ordering party shall determine the scope of delivery and services.
3 Scope of Services
3.1 The customers shall acquire from AVT GmbH the components or other services described in the written order confirmation, as well as the required operating software and technical documentation if these are part of the delivery.
3.2 Deliveries shall be made in the order in which the orders were received and within the individual customer’s credit limit. If there are overdue invoices, no delivery shall be made until the total invoice amount has been paid in full. AVT GmbH shall not be liable for delivery delays due to force majeure, operating or transport delays.
3.3 AVT GmbH reserves all property rights and copyrights to quotes, drawings, and other documents; they may be made available to third parties only upon prior written approval by AVT GmbH. If the order is not placed with AVT GmbH, drawings and other documents pertaining to quotes shall be returned promptly upon request. Conversely, this shall also apply to the customer’s documents. These, however, may be made accessible to third parties to whom AVT GmbH has permissibly transferred deliveries and services.
3.4 If technical improvements are introduced after orders have been received, AVT GmbH shall reserve the right to deliver the improved products.
3.5 In as much as the scope of the shipment includes software, the customer shall be granted a non-exclusive right to use the delivered software including its documentation for purposes specified in the Contract. The software shall be specifically provided to the customer for sole use on the delivered merchandise. All further rights shall be reserved.
3.6 The customer acknowledges that software products are by nature complex and not entirely error-free. If the customer has received software as part of the delivery of the merchandise, they also acknowledge that AVT GmbH shall not assume any guarantees, warranties, assurances, and liability for the absence of software errors.
4 Delivery and Delivery Time
4.1 Delivery shall be made ex works. We shall reserve the right to make partial shipments. Delivery dates and delivery deadlines shall be confirmed separately by us or agreed upon with the customer in writing, and shall only be binding in these cases. Early delivery shall be permissible.
4.2 The beginning of our stated delivery time requires the prior clarification of all technical questions.
4.3 Furthermore, keeping our delivery obligations requires that the customer meets all contractual obligations properly and in time. The exception to the unfulfilled Contract shall be reserved.
4.4 In the event the customer is in default of acceptance, or if they culpably violate other obligations of cooperation, we shall be entitled to demand compensation for the resulting damage, including any additional expenses. We reserve the right to make further claims.
4.5 In the case of unpredictable, extraordinary events which were unavoidable even though all appropriate and reasonable care was taken, such as disruption of operations, strikes and lockouts, export and import embargos, and failure to receive permits, the delivery time shall be appropriately extended. This shall also apply if one of the above mentioned events occur for one of the suppliers or other manufacturers, or they fall behind schedule with a service to be provided to us.
5 Prices and Payment Terms
5.1 Our prices are always those stated on our most current price list and are ex works Stadtroda, Germany. They are exclusive of the applicable sales tax on the day of the delivery, set-up, and assembly. The prices include packaging, if the packaging does not exceed 0.5% of the value of the merchandise per shipment.
5.2 We shall deliver the goods in standard sales packaging suitable for regular shipment. In the event the customer requests special packaging, it shall be billed at the customer’s expense. Shipping costs and transportation insurance shall be billed to the customer at cost.
5.3 Invoices of AVT GmbH are payable within 10 days at a 2% cash discount and net within 30 days after invoice date. Payments for repairs are due within 14 days without a cash discount. In order that a payment is considered on time, AVT GmbH must be able to dispose of the credited amount without restrictions. If the customer is late with a payment, the legal regulations shall apply.
5.4 The prices confirmed in our order confirmation shall apply only if the agreed upon order quantity is accepted.
5.5 If the agreed upon time between signing the Contract and the deadline for the entire or partial delivery is more than four months, and if there are cost increases of more than 5% for the ordered item after signing the Contract, in particular due to our suppliers’ price increases, AVT GmbH shall be entitled to increase the price appropriately for partial shipments that are still open. If the price increase by AVT GmbH is more than 5% of the price of the total shipment, them the customer shall be entitled to withdraw from the Contract within two weeks after receiving the notice about the price change from AVT GmbH.
6 Shipment and Transfer of Risk
6.1 Unless other agreements have explicitly been made, we shall only deliver on account at the customer’s cost and risk.
6.2 The risk of accidental loss or deterioration shall automatically pass to the customer with the transfer to the carrier. This shall also apply to partial deliveries and the exceptional event where we bear the delivery costs.
6.3 It shall be agreed that the risk also passes to the customer if AVT GmbH is prepared to make the delivery but fails to dispatch the shipment for reasons beyond the responsibility of AVT GmbH. In this case, the transfer of risk shall require that the customer has received notice that the delivery is ready to be made.
7 Reservation of Ownership
7.1 The merchandise shall remain the property of AVT GmbH until the receipt of full payment of the invoiced amount as well as other, already existing claims by AVT GmbH towards the customer (satisfaction of all claims towards the ordering party arising from the business relationship).
7.2 If the customer is a reseller, they shall have the right to sell the goods in the normal course of business, provided they are not in default. By way of security, the customer hereby assigns to us, in full, all claims arising from the resale or based on other legal grounds (insurance, tort) which relate to the goods subject to the reservation of title, whether or not the goods subject to the reservation of title have been resold without, or after, being processed. We hereby grant the customer authorization to collect all claims assigned to us for our account and on our behalf provided that we do not revoke this authorization to collect claims. AVT GmbH shall be entitled to revoke the authorization to collect claims if the customer is in default, stops making payments or makes an application to open bankruptcy proceedings.
7.3 In the event that the realizable value of the assigned claims exceeds the claims towards AVT GmbH by more than 20%, AVT GmbH shall release the surplus amount of the securities upon the customer’s request.
7.4 In the event that the goods are processed, AVT GmbH shall remain the manufacturer pursuant to Art. 960 BGB (German Civil Code), and the customer shall store the merchandise for us with due care.
7.5 In the event of seizures in execution or other third-party encroachments, the customer must inform us thereof in writing without delay so we can file suit pursuant to Art. 771 ZPO (German Code of Civil Procedure). Inasmuch as the third party is unable to reimburse us for the court and out-of-court costs of a suit pursuant to Art. 771 ZPO, the customer shall be liable for the loss incurred by us.
8 Liability for Defects
8.1 Claims of the customer arising from defects presuppose that the customer has properly met their duty to inspect and rebuke pursuant to Art. 377 HGB (German Commercial Code) in accordance with regulations, and that it has informed us of the specific defects in writing.
8.2 We shall not be liable for defects or damages resulting from improper use or handling, natural wear and tear, unsuitable operating equipment, the use of replacement materials, as well as chemical, electric, or electrochemical influences outside the range of our services and our sphere of influence, or from flawed assembly, operation, attempts to repair, or modifications of the merchandise by the customer or by third parties.
8.3 Inasmuch as the purchased item is defective, the customer shall have the right to receive, according to our choice, supplementary performance in the form of removal of the defect or the delivery of a new, defect-free item. In the case of a removal of the defect, we shall be obliged to bear all expenses required for removing the defect, in particular, transportation, transportation infrastructure, labour, and material costs, unless these costs are increased by having moved the purchased item to a place other than the place of delivery.
8.4 If the supplementary performance fails, the customer shall be entitled to demand withdrawal from the Contract or a price reduction, according to their choice.
8.5 If the use of the delivered item results in the violation of domestic commercial copyrights, AVT GmbH will generally procure for the customer, at ATV GmbH’s expense, the right to further use. If this is economically unreasonable, the customer shall have the right to withdraw from the Contract.
8.6 Liability due to non-accidental injury to life, person, or health shall remain unaffected. This also applies to mandatory liability in accordance with the Production Liability Law.
8.7 The statute of limitation for claims arising from defects is 24 months from the time of transfer of risk. We refer to Clause 9.1.
9 General Liability
9.1 Further damage compensation liability than that provided for in Articles 6 and 8 is excluded, regardless of the statutory form of the asserted claim, unless it is based on intention or gross negligence, including the intention or gross negligence on the part of our representatives or agents, or on the culpable violation of essential contractual obligations.
9.2 This also applies inasmuch as the ordering party has a claim for replacement of the damage rather than the service. Inasmuch as we are not charged with intentional breach of Contract, the liability for damage claims shall be limited to the predictable, typically occurring damage. This shall apply in particular to damage compensation claims arising from default at close of Contract, due to other to other breaches of obligation, or to claims for material damage compensation arising from tort in accordance with Art. 823 BGB.
9.3 To the extent that damage compensation liability against us is excluded or limited, this shall also apply in respect to personal damage compensation of our salaried employees, employees, staff members, representatives, and agents.
10 Data Protection, Data Storage
Pursuant to Art. 33 BDSG (German Data Protection Law), AVT GmbH indicates that it stores personal data connected to the business relationship. The data shall be processed in observance of the German Data Protection Law.
11 Applicable Law, Place of Execution, and Place of Jurisdiction
11.1 These General Terms and Conditions are governed by the laws of the Federal Republic of Germany. The applicability of CISG (UN Purchase Law) is explicitly excluded.
11.2 Place of execution for all liabilities arising from the contractual relationship shall be STADTRODA, Germany.
11.3 Place of jurisdiction for all disputes arising from the contractual relationship as well as its preparation and execution, inasmuch as the customer is a merchant or has no general place of jurisdiction, shall be STADTRODA, Germany. In the event of a check or bill-of-exchange grievance, the legal place of jurisdiction shall also apply.
Effective: 1 July 2007