phil-vision GmbH – General terms and conditions
(Version 1.0.5, 27.09.2021)
I. Scope of application
1. These terms and conditions shall apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). We shall only recognise terms and conditions of the purchaser that conflict with or deviate from our terms and conditions if we explicitly agree to their validity in writing.
2. These terms and conditions shall also apply to all future business transactions with the purchaser, insofar as these are legal transactions of a related nature.
3. Individual agreements made with the buyer in individual cases (including side agreements, supplements and amendments) shall in all cases take precedence over these terms and conditions. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
II. Offer and conclusion of contract
Insofar as an order is to be regarded as an offer in accordance with section 145 of the German Civil Code (BGB), we may accept it within two weeks.
III. Documents provided
We reserve the property rights and copyrights to all documents provided to the customer in connection with the order, including in electronic form, such as calculations, drawings, etc. These documents may not be made accessible to third parties unless we give our expressed written consent to do so. If we do not accept the orderer's offer within the period specified in Section II, these documents must be returned to us without delay.
IV. Prices and payment
1. Unless otherwise agreed in writing, our prices are ex works excluding packaging and plus value added tax at the applicable rate. Costs for packaging and shipping will be invoiced separately.
2. Payment of the purchase price shall be made exclusively to the account specified overleaf. The deduction of a discount is only permissible with a special written agreement.
3. Unless otherwise agreed, the purchase price shall be payable within 14 days after invoicing. Interest on arrears shall be charged at a rate of 8 % above the respective base interest rate p.a.. We reserve the right to assert a higher damage caused by default.
4. Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries that take place 3 months or later after conclusion of the contract.
V. Rights of retention
The purchaser shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
VI. Delivery time
1. The commencement of the delivery period specified by us presupposes the timely and proper fulfilment of the customer's obligations. We reserve the right to plead non-performance of the contract.
2. If the purchaser is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. If the above conditions are met, the risk of accidental destruction or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
3. Further legal claims and rights of the purchaser due to a delay in delivery remain unaffected.
VII. Transfer of risk in case of shipment
If the goods are shipped to the customer at the customer's request, the risk of accidental destruction or accidental deterioration of the goods shall pass to the customer upon dispatch to the purchaser, at the latest upon leaving the factory/warehouse. This applies regardless of whether the goods are dispatched from the place of performance or who bears the freight costs.
VIII. Retention of title
1. We retain title to the delivered item until full payment of all claims arising from the delivery contract. This also applies to all future deliveries, even if we do not always explicitly refer to this. We shall be entitled to reclaim the object of sale if the purchaser behaves in breach of contract.
2. As long as ownership has not yet passed to them, the purchaser is obliged to treat the object of sale with care. In particular, they are obliged to insure it adequately at replacement value against theft, fire and water damage at their own expense. If maintenance and inspection work has to be done, the purchaser shall carry this out in good time at his own expense. As long as ownership has not yet been transferred, the purchaser must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as third parties are not in a position to reimburse us for the court and out-of-court costs of an action in accordance with section 771 of the German Code of Civil Procedure (ZPO), the purchasers shall be liable for the loss incurred by us.
3. The purchasers are entitled to resell the goods subject to retention of title in the normal course of business. The purchaser hereby assigns to us the claims against the customer arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing. The purchaser shall remain authorised to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we shall not collect the claim as long as the purchaser meets his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
4. The processing or transformation of the object of sale by the purchaser shall always be carried out in our name and on our behalf. In this case, the purchaser's expectant right to the object of sale shall continue in the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the object of the purchaser is to be regarded as the main object, it shall be deemed agreed that the purchaser transfers co-ownership to us on a pro rata basis and holds the sole ownership or co-ownership thus created in safe custody for us. In order to secure our claims against the ordering party, the ordering party shall also assign to us such claims against a third party which accrue to it as a result of the combination of the reserved goods with a property; we already accept this assignment now.
5. We undertake to release the securities to which we are entitled at the request of the purchaser insofar as their value exceeds the claims to be secured by more than 20 %.
IX. Warranty and notice of defects as well as recourse/manufacturer recourse
1. Warranty rights of the purchaser presuppose that the purchaser has duly complied with his inspection and complaint obligations pursuant to Section 377 of the German Commercial Code (HGB). In the case of the provision of software, the obligation to inspect extends in particular to the completeness of the data carriers and documentation supplied as well as the functionality of basic software functions.
2. Claims for defects shall become statute-barred 12 months after delivery of the goods supplied by us to our purchasers. The statutory limitation period shall apply to claims for damages in the event of intent and gross negligence as well as in the event of injury to life, limb and health which are based on an intentional or negligent breach of duty on the part of the user.
Insofar as the law in accordance with Section 438 Paragraph 1 No. 2 BGB (buildings and items for buildings), Section 445b BGB (right of recourse) and Section 634a Paragraph 1 BGB (construction defects) prescribes longer periods, these periods shall apply. Our consent must be obtained before any goods are returned.
3. If, despite all due care, the delivered goods have a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall always be given the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision without restriction.
4. If the supplementary performance fails, the purchaser may – irrespective of any claims for damages – withdraw from the contract or reduce the remuneration.
5. Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear and in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, defective construction work, unsuitable building ground or due to special external influences which are not assumed under the contract. If the purchasers or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.
6. Claims by the purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, including any dismantling and installation costs, shall be excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a place other than the purchaser's place of business.
7. The purchaser's right of recourse against us shall only exist insofar as the purchaser has not made any agreements with their customers that go beyond the statutory mandatory claims for defects. Furthermore, paragraph 6 shall apply accordingly to the scope of the right of recourse of the purchaser against the supplier.
X. Software licencing
Software licences are generally recognised by the purchasers as being protectable by copyright.
1. Scope of use
The software, whether in whole or in part, may only be used on the PC or network for which it was purchased and only on the number of workstations for which a licence exists. Modifications, extensions or other interventions of any kind are not permitted.
2. Reproduction rights and access protection
The customers may only reproduce the delivered software if the respective reproduction is necessary for the use of the software. Necessary copies include the installation of the software from the original data carrier to the mass storage device of the hardware used and the loading of the software into the main memory. In addition, the customer may make a copy for backup purposes. Backup copies shall only be made in the number absolutely necessary and may only be used for purely archival purposes. The data carriers concerned must also be labelled accordingly. Clients may not make any further copies. If the customer has purchased a network licence, simultaneous access by users is only permitted up to the number of licences purchased.
3. Disclosure to third parties
The customer may not make the software and the documentation provided accessible to third parties or use the software or parts thereof for the purposes of third parties or allow third parties to inspect the documents. No further rights to the software shall be transferred to the customer.
4. Contractual penalties
In the event of a breach of the licence conditions, the customer shall pay a contractual penalty of 25.000,00 EURO per breach.
phil-vision GmbH shall be liable – irrespective of the legal grounds –
1) for damages caused by gross negligence and intent
2) in the event of slight negligence on the part of legal representatives and/or vicarious agents in the event of a breach of material contractual obligations (cardinal obligations), as well as
3) for damages arising from injury to life, limb or health due to a negligent breach of duty by phil-vision GmbH or a legal representative and/or vicarious agent of phil-vision GmbH, or
4) for claims arising from the Product Liability Act and fraudulent misrepresentation.
1. Liability in case of slight negligence, limitation of liability
In the event of a breach of material contractual obligations due to slight negligence, the obligation to pay compensation shall be limited to the typical damage incurred. Furthermore, the liability of phil-vision GmbH for loss of data is limited to the typical restoration costs that would have been incurred if back-up copies had been made regularly and in accordance with the risk.
2. Liability disclaimer
In all other cases, the liability of phil-vision GmbH – irrespective of the legal grounds – is excluded. This also applies to the liability of employees, representatives and vicarious agents of phil-vision GmbH.
Insofar as software that phil-vision GmbH produces or licenses has defects that were unavoidable according to the state of the art at the time of the conclusion of the contract and phil-vision GmbH can prove this in a suitable manner, all claims arising from a contractual breach of duty shall lapse.
1. This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
2. The place of performance and exclusive place of jurisdiction and for all disputes arising from this contract is our registered office, unless otherwise stated in the order confirmation.
3. All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
In the event that individual provisions of this contract are invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, the validity of the rest of the contract shall remain unaffected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects most closely approximate the economic objective pursued by the contracting parties with the invalid or unenforceable provision.
Your right to the protection of personal data is important to us. Please find our data protection statements at: https://www.phil-vision.com/en/privacy
© phil-vision GmbH, Zeppelinstraße 5, 82178 Puchheim, Germany, Version: 09-2021