General Terms and Conditions of Sale of VISCO JET Rührsysteme GmbH, Mittlere Greut 2, 79790 Küssaberg,
Germany for use with companies
1. Scope
1.1 The following General Terms and Conditions of Sale (hereinafter referred to only as Terms and Conditions) shall apply exclusively to all deliveries — including future deliveries — to the customers referred to in Clause 1.2, unless otherwise agreed. The customer's own terms and conditions shall not become part of the contract, even if we do not expressly object to them.
1.2 These Terms and Conditions shall only apply to companies within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law (hereinafter referred to as "Customers").
2. Executing the contract, contents of the contract
2.1 Our offers are non-binding. The customer is bound to their order for a period of 14 days from when we receive it, unless otherwise stated in the order. The contract is executied if we confirm the order in writing of deliver it within this period.
2.2 Verbal subsidiary agreements or undertakings by our employees which go beyond the content of the written contract or which amend these terms and conditions to our disadvantage shall only be effective after written confirmation.
2.3 Our illustrations, drawings, colour, weight and dimensions are only approximate values, unless they are a) expressly designated as binding or b) essential.
2.4 Our product descriptions do not constitute guarantees.
3. Price
3.1 In accordance with EXW Mittlere Greut 2, 79790 Küssaberg, Germany, Incoterms® 2020, our prices are net in EUR plus packaging costs and the currently applicable VAT.
3.2 In the case of delivery periods of more than 2 months, we are entitled to increase the agreed prices accordingly, insofar as significant changes in salary, material, energy or raw material costs have occurred after executing the contract, and we are not responsible for this change. Any price increase will not exceed 5%.
4. Payment
4.1 Unless otherwise agreed, payments are to be transferred to our account within 14 days net from the date of invoice without any deduction and free of charge. Receipt of payment is decisive for the timeliness of payment.
4.2 In the event of default in payment, we shall charge interest at a rate of 9 percentage points above the base rate, but at least 10%.
4.3 The customer may only offset or assert a right of retention insofar as their counter-claim is undisputed or has been legally established. Furthermore, the customer is only authorised to exercise the right of retention insofar as their counter-claim is based on the same contractual relationship.
5. Delivery and transfer of risk, reservation of self-delivery, partial deliveries
5.1 Delivery shall be carried out in accordance with EXW Mittlere Greut 2, 79790 Küssaberg, Germany, Incoterms® 2020.
5.2 The risk shall pass to the customer in accordance with EXW Mittlere Greut 2, 79790 Küssaberg, Germany, Incoterms® 2020, even if we have exceptionally assumed other services, e.g. the shipping costs or shipping, also by our own transport personnel.
5.3 Our delivery obligation is subject to timely and correct delivery to us from our suppliers, unless the incorrect or delayed delivery is our fault. In these cases we can withdraw from the contract.
5.4 Partial deliveries are permitted within reason.
6. Delivery time
6.1 Delivery periods stated in the order confirmation or otherwise are approximate and consequently non-binding.
In the event that the customer has to approve a drawing, the final delivery date can only be specified after receipt of the customer's release declaration.
6.2 The delivery period begins with the receipt of the order confirmation, but not before clarification of all details of the order execution and technical questions, the provision of the documents, approvals, releases necessary for the delivery to be procured by the customer as well as receipt of an agreed down payment or payment security.
The delivery deadline shall be deemed to have been met if the goods are ready for dispatch by the deadline.
6.3 Change requests by the customer extend the delivery period until we have checked their feasibility and by the period of time required to implement the new specifications in production. If the change request interrupts an ongoing production, run we can bring forward and complete other orders. We are not obliged to keep production capacities free during the delay.
6.4 In the event of a delay in delivery, our liability in the case of simple negligence shall be limited to 0.5% per completed week of delay, but in total to a maximum of 5% of the net invoice amount of the part of the delivery affected by the delay. The claim for damages in lieu of performance pursuant to Clause 10 shall not be affected thereby.
6.5 If dispatch is delayed due to circumstances for which we are not responsible, we shall charge at least 0.5% of the net invoice amount of the stored delivery per month if the goods are stored at our factory.
7. Force majeure
7.1 Unforeseen, unavoidable events for which we are not responsible (e.g. epidemics, pandemics, operational disruptions due to force majeure, strikes or lockouts, difficulties in procuring materials or energy, transport delays, shortages of labour, energy or raw materials, measures taken by public authorities, as well as difficulties in obtaining permits, in particular import or export licences) shall extend the delivery period by the duration of the disruption and its effects. This shall also apply if the obstacles occur at our suppliers or during an existing delay.
7.2 If the impediment is not only of temporary duration, both contracting parties are entitled to withdraw from the contract. Claims for damages are not permitted in the cases mentioned in Clause 7.1.
8. Liability for defects
8.1 The customer may only assert any rights due to material defects if they have duly fulfilled their obligations to inspect and give notice of defects in respect of the delivered goods in accordance with § 377 of the German Commercial Code (HGB).
8.2 The infringement of third-party rights shall only constitute a defect if these property rights exist in the Federal Republic of Germany.
8.3 In the event of justified notices of defect, we shall, at our discretion, deliver a replacement or repair the goods. Should the supplementary performance fail, the customer may demand a reduction of the price or — in the case of significant defects — withdraw from the contract. In the event of failure of subsequent performance, the customer shall also be entitled to claim damages in lieu of performance in accordance with clause 10.1.
8.4 Costs of supplementary performance arising from the fact that the purchased item was taken to a place other than the customer's commercial establishment after delivery shall not be borne.
8.5 Insofar as the defect has been caused by an essential third-party product, we shall be entitled to limit our liability initially to the assignment of the defect liability claims and rights to which we are entitled against the supplier of this third-party product, unless satisfaction from the assigned claim or right fails or cannot be enforced for other reasons. In this case, the customer shall again be entitled to the rights under clause 8.3.
9. Retention of title
9.1 We retain title to the delivered goods until receipt of all payments and irrevocable crediting of accepted cheques and bills of exchange from the business relationship with the customer. If a current account relationship exists, the retention of title shall extend to the recognised balance.
9.2 The customer is obliged to treat the goods subject to retention of title with care and to maintain them. In particular, they are obliged to insure them adequately at their own expense against loss and damage at the replacement value. The insurance policy and proof of payment of the premiums must be submitted to us on request. He hereby assigns to us any claims arising from the insurance relationship subject to the condition subsequent to the transfer of ownership. We accept the assignment.
9.3 The processing and treatment of the reserved goods by the customer shall always be carried out for us without any obligation on our part. In the event of combination with other goods, we shall acquire co-ownership of the new goods in the ratio of the net invoice value of the reserved goods to that of the other materials.
9.4 The customer is entitled to resell the goods subject to retention of title or the new goods in the ordinary course of business; however, they assign to us, in advance, all claims in the full amount accruing to them from the resale or further use.
9.5 The customer is entitled to collect the claims assigned to us as long as they meet their payment obligations from the proceeds collected.
9.6 If the customer no longer meets his payment obligations, we may revoke the authorisation for resale and further use and demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs their debtors of the assignment. The repossession of goods subject to retention of title does not constitute withdrawal from the contract. If we declare withdrawal, we shall be entitled to sell the goods on the open market.
9.7 We must be informed immediately of any access by third parties to the goods subject to retention of title. The customer shall bear the costs incurred by preventing access, insofar as they cannot be recovered from the third party.
9.8 If the value of the securities exceeds our claims by more than 10%, we may at our discretion release the securities at the Customer's request.
10 General liability
10.1 We shall be liable in the event of intent or gross negligence, fraudulent concealment of defects, injury to life, limb or health or under the Product Liability Act in accordance with the law. In the event of an assumed guarantee, we shall be liable in accordance with any guarantee provisions.
10.2 In the event of simple negligence, we shall only be liable in the event of a breach of a material contractual obligation, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the customer regularly relies and may rely, and — unless otherwise provided for in section 6.4 for damage caused by delay — limited to compensation for the foreseeable and typical damage. In all other cases, our liability is excluded.
10.3 Claims of the customer due to defects shall become statute barred after 12 months from the transfer of risk, other claims after 12 months from the statutory commencement of the limitation period. Notwithstanding section 1 of this Clause 10.3, in the event of our liability due to the assumption of a guarantee, the guarantee provisions shall apply and in the event of fraudulent concealment of a defect as well as in the event of claims for damages under the Product Liability Act, due to injury to life, body or health and due to intentional or grossly negligent breach of obligations, the statutory limitation provisions shall apply.
11. Packaging
We will take back our packaging that is produced in Germany but not by private end consumers within the meaning of the Packaging Act (VerpackG) at our place of business during normal business hours. The customer shall bear the costs of the return shipment. The packaging must be returned clean, free of foreign matter and sorted by type.
12. Place of performance, place of jurisdiction, applicable law
12.1 The place of performance for all services arising from the delivery contracts is our registered office.
12.2 The exclusive place of jurisdiction for all disputes arising from the delivery contract is our registered office. However, we are also entitled to sue at the customer's place of business.
12.3 German law shall apply. The UN Convention on Contracts for the International Sale of Goods of 11/04/1980 (CISG) does not apply.
Last updated January 2022
