Terms & Conditions
General Terms and Conditions
visiomatic International GmbH
§ 1 Area of application
These general terms and conditions in the newest edition apply to all visiomatic International deliveries. This excludes software deliveries, for which visiomatic International general terms and conditions for the transfer of software is applicable. These general terms and conditions also apply to future deliveries. Buyer's purchasing terms are hereby ruled out Deviating agreements apply only if agreed upon in written form as an endorsement to these general terms and conditions. This also applies to deliveries carried out while fully aware of the customer’s deviating terms and conditions.
§ 2 Size of delivery
(1) A confirmation of order is authoritative in terms of the size of delivery. The visiomatic International offer determines the extent of the delivery in the case of a limited offer which the customer agreed upon within the given time frame. Changes and additions in regard to visiomatic International’s written agreement or offer require a written confirmation.
(2) visiomatic International quotes, drawings and other documents remain unreservedly protected under visiomatic International property and execution rights until conclusion of contract and full agreement upon payment. Until such time these documents may only be shown to third parties with visiomatic International’s written consent. In case of non-conclusion of contract the documents are to be turned over to visiomatic International upon request.
(3) The installation of these is incumbent upon the customer’s responsibility unless otherwise stated within visiomatic International’s offer or order confirmation in case of delivery of hardware and/or hardware components.
(4) The customer is responsible for proper data protection.
(5) Technical changes or modifications of the delivered items may be carried out by visiomatic International at any time, if this does not affect the technical functionality of the delivered items.
(6) Technical changes or modifications of the software may be carried out by visiomatic International at any time if this does not affect the technical functionality of the delivered items.
(7) visiomatic International is only obligated to convey the source code if specifically stated within the confirmation of order.
(8) The customer will receive software of a preliminary version to begin with. The full version will become available upon registration and full payment of the price of purchase and any fees for customer related changes.
§ 3 Right of use
visiomatic International software is copyrighted. It is provided to the customer for intended use. The complexity of the intended use as well as the constitution and complexity of the right of use are determined in the order confirmation. If no other rights of use are determined within, visiomatic International agrees to the following rights of use of the software by the customer:
- The non exclusive right of use,
- The right of use within an arbitrary system environment,
- The transferable right of use within the limitations of VII.,
- The permanent and irredeemable right of use within the limitations of VII.
§ 4 Right of reproduction and access protection
(1) The customer may reproduce the software for as long as the reproduction is necessary for exercising the granted rights of use. The installation of software from the original data processing medium to the mass storage device of the applied hardware as well as the installation of software onto the main memory is considered necessary reproduction.
(2) Moreover the customer may create one copy for backup reasons. Only one backup copy may be produced and stored. This copy needs to be labelled accordingly.
(3) The customer may reproduce backup copies in the amount mandatory if the periodic backup of the entire database including the applied software is necessary for reasons of data protection or securing a fast reactivation of the computer system due to a total blackout, the internal revision or an audit. The data storage medium in question is to be labelled accordingly. Backup copies are merely to be made for archival purposes.
(4) Other reproduction of the software, including the issuance of the program code on a printer or the photocopy of the user manual is strictly forbidden. Any user manuals for employees are to be obtained from visiomatic International.
§ 5 Multiple-shift usage
(1) The customer may use the software installed on the hardware provided to him. In case of replacement of the hardware, the software is to be deleted from the hardware previously used.
(2) Simultaneous storage, detainments and use on multiple hardware are prohibited. In the event that the customer needs to use the software on several hardware configurations simultaneously, i.e. the use by several employees, the purchase of several software licences will be necessary.
(3) The use of the software within a network or a multi station computer system is prohibited, if this enables the simultaneous use of the program. If the customer chooses to use the software within a network or a multi station computer system the customer is to prevent simultaneous use by applying access protection or pay a network fee (multi usage licence) which is based on the amount of users connected to the system. The customer will be informed of the purchase price in the individual case as soon as we are informed of the planned network application and the amount of users connected to the system in written form. The use on the network is not valid until complete payment of the multi usage licence is received.
§ 6 Recompilation and changes to the software by the customer
(1) On principle the customer is not authorized to translate the delivered software back to its source code or into another form or to convert it into another computer language, to edit or process the software as well as multiply it outside the frame mentioned in IV.
(2) In the event that the warranty deed is not performed within an adequate timeframe, the customer is authorized to rectify the defect himself on this exception. The customer is further authorized to analyse the delivered software and change it insofar as this is necessary to enable compatibility with an independently created computer program for as long as the customer complies with these stipulations:
- All analysis or editing is merely performed by the customer, his employees or a third person authorized explicitly by the customer.
- The necessary information for the production of the interoperability are not available to the customer or the authorized third party without recompilation and were not made available to him by visiomatic International although requested and a reasonable time set.
- The analysis and editing of the customer are limited to the aspects of the software requested for the creation of interoperability.
- The customer may not use the created information for use other than that of creation of interoperability of the independently created program, especially for the development, manufacture and commercialization of a program with fundamentally similar form of expression and other copyright infringing activities. He is particularly not authorized to pass such information on to a third party unless the transmission is necessary for the production of the interoperability of the independently created program.
(3) If the customer is not able to or willing to perform the aforesaid authorized exceptional handlings himself or by his own employees, he will give visiomatic International the opportunity to perform the desired tasks to enable interoperability within a reasonable time for a reasonable compensation for the customer.
(4) In the event that visiomatic International surrenders part of the source code for a part of the software within a separate written agreement, the customer is obliged to use this source code for purposes within the aforesaid limitations (i.e. removal of faults, manufacture of interoperability) only. In the event of such an agreement, the customer will use the source code to be delivered for his own use- application of the software within the scope of the agreement – only.
§ 7 Surrendering software to third parties
(1) The customer may assign the software including the user manual and other accompanying materials on to third parties continually if the third party agrees to the general terms and conditions on hand. The existing customer must hand over all copies of the software including applicable existing back ups or will destroy non surrendered copies or will deliver these to us. The customer looses all rights of use due to the transfer. He is obligated to inform visiomatic International of the transfer.
(2) The customer may assign the software including the user manual and other accompanying materials on to third parties continually if this is not for the purpose of third party pecuniary reward or leasing and the third party agrees to the continuity of these general terms and conditions also in his regard and that the customer releases all copies of the software including applicable existing back up copies to the third party or destroys non surrendered copies or delivers them to visiomatic International. During the time of surrender of the application systems to the third party, the customer has no right of own use for the software. The customer must inform visiomatic International of the surrender of the right of use.
(3) The customer may not hand over the software to a third party if there is reasonable suspicion of breach of these general terms of conditions by the third party especially unauthorized reproduction. This is also applicable to employees of the customer.
§ 8 Extraordinary notice of termination of right of use
(1) If the customer breaches the right of use or our industrial property right visiomatic International reserves the right to extraordinary termination of the right of use of the software in question without prior notice and/or grace period.
(2) In case of termination the customer is obligated to delete or rather destroy or deliver the original of the software in question including documentation and all copies back to visiomatic International. The customer is obligated to make a declaration about deletion and demolition upon visiomatic International’s request.
§ 9 Program maintenance
visiomatic International will develop the software up until cancellation, if need be accommodate legal requirements, as well as eventually expand the extent of functionality. The new or expanded program routines or program versions (releases) which hereby result will be made available to the customer free of charge only within a separate maintenance agreement. visiomatic International decides which legal requirements or which expansions of functionality within the frame of development or maintenance are conducted free of charge. The particulars are result of the maintenance agreement.
§ 10 Prices and terms of payment
(1) All prices are calculated in Euro ex works excluding shipping and handling and will accrue additional VAT in accordance with the respective legal rate unless otherwise stated.
(2) In the absence of other written agreements visiomatic International’s prices are understood to be due immediately upon receipt cash without deductions.
(3) After maturity of the invoice visiomatic International’s customers will be in default with the issuance of our reminder. A reminder is not required if the maturity date was declared by a calendar date or payment is due within a determined time after the occurrence of an event. The customer is in default within 30 days of receipt of our invoice or when the time of receipt is not to be ascertained within 30 days of receipt of the delivered goods.
(4) visiomatic International may demand interest in the amount of 8% above the prime lending rate. This does not revoke visiomatic International’s right to enforce compensation for damages caused by default.
(5) The retention of payment due to demands on the customers side against visiomatic International, regardless of which legal nature, is ruled out, unless the retention of payment is due to § 320 BGB or of the customers demands within the same contract with visiomatic International. Payments may not be offset against counterclaims unless these are undisputed and legal claims on the customer’s side.
§ 11 Deliveries
(1) Deliveries prior to their delivery date and partial deliveries are permitted. Delivery shall occur while stocks last where hardware is concerned. Subject to correct and timely delivery from sub-suppliers.
(2) Delivery dates are merely estimates and not legally binding unless stated otherwise in written form.
(3) Delivery periods begin with the date of issuance of confirmation of order from visiomatic International to the customer or acceptance of the order on the customer’s side. The delivery period is considered adhered to if the goods leave visiomatic International’s works before the deadline or the readiness for shipment is declared.
(4) Delivery dates will be postponed in accordance to measures of industrial action, particularly strike and lock out, as in the event of unforeseen occurrences that lie outside of our influence for as long as such occurrences demonstrably influence the manufacturing and delivery of such goods in a considerable way. Previously described circumstances are not within the responsibility of visiomatic International either, if occurred during an already existing delivery. visiomatic International will inform the customer of the beginning and end of such occurrences.
(5) If the customer demands changes within the order after conclusion of contract, i.e. regarding terms of customized adjustments of standard software which impose on the delivery times, these terms are automatically adjusted to reasonable times which enable manufacturing of these changes and adjustments. The date of delivery is also postponed accordingly if the customer has not provided necessary documents, authorizations, clearance, plans or the like.
(6) Is delivery postponed upon the customers wish, he will be charged cost of storage beginning with the first month after notice of readiness for shipment, a minimum of 0,5% of the invoice value for each inchoate month of storage. This amount is to be adjusted according to provable costs either on visiomatic International’s side or the customer’s side. After an appropriate time limit for delivery set by visiomatic International expires visiomatic International reserves the right to ulterior use of the goods in question and deliver to said customer within another reasonable time frame. The originally determined payment obligation remains unaffected.
(7) Visiomatic International reserves the right to hold back further deliveries until payment of all previous deliveries.
§ 12 Delayed delivery and impossibility
(1) Other than the right of withdrawal due to damages to the goods delivered, the customer may not withdraw from the contract due to impossibility of visiomatic International’s accomplishment or delays in delivery only due to a breach of contract on visiomatic International’s side.
(2) The customer is obliged to inform visiomatic International upon visiomatic International request within a reasonable time frame set by visiomatic International, if he still insists on delivery or will demand compensation for damages and/or will withdraw from the contract within the maturity of a declared period of a minimum of at least two weeks during which delivery or supplementary performance was not conducted – as long as a period of grace is not legally applicable. If the customer does not declare this within the grace period he does not have the right to refuse delivery.
§ 13 Transfer of perils, delivery and acceptance
(1) The risk of loss of or damage to the goods is that of the customers from the moment the goods are sent to the customer, also if there are partial deliveries or if visiomatic International paid for cost of delivery or delivered themselves.
(2) If delivery is postponed due to circumstances within the customers control, the risk of loss or damage lies within the responsibility of the customer from the moment of notice of readiness of shipment.
(3) Shipping and handling lie within the best of visiomatic International’s ability. All costs occurred for this are to be paid by the customer. The delivery will only be insured against theft, breakage, transport-, fire- and water damage upon expressed written request and paid for by the customer.
(4) The customer is also obliged to accept the delivered goods if these show insignificant discrepancies of the stipulated properties and an insignificant impairment in use.
§ 14 Reservation of proprietary rights
(1) Proprietary rights of all goods remain those of visiomatic International up until complete payment at the time of conclusion of contract regardless of legal reasoning. If visiomatic International agreed to contingent liabilities in the interest of the customer, then all delivered goods remain visiomatic International property up until complete release of these liabilities especially in regards to bills of exchange. This also applies if payments were made for especially labelled payments. Combining separate payments into one continuing invoice as well as striking a balance and recognition of this does not affect the proprietary rights.
(2) If the goods are manipulated or processed by the customer, the manipulation of processing is done for visiomatic International without resulting in any obligations from our side.
(3) If the delivered goods are not combined with products delivered by visiomatic International, visiomatic International’s also becomes proprietor of such goods within the legal regulations. If the customer obtains sole proprietary rights of the new goods, he passes on proprietary rights of such goods upon the moment of combination of the goods in accordance of the amount of the value of the goods at the time of combination.
(4) If the delivered goods are sold alone or in combination with other goods not owned by visiomatic International, the customer transfers the rights to demands regarding the resold goods to visiomatic International in the amount of the delivered goods with all its accessory rights. If visiomatic International owns the proprietary right of the item which has been resold the transfer of demands of proprietary rights expands to the amount of the value of the amount of visiomatic International’s property. visiomatic International hereby accepts the transfer of rights.
(5) visiomatic International authorizes the customer to collect the claims assigned to visiomatic International on visiomatic International’s behalf. If the customer falls into default of his obligations towards visiomatic International, he has to name all debtors or the assignment of a claim and declare the assignment. In this case visiomatic International is also justified to declare the assignment to the debtor on their own accord and make use of their right of direct debit.
(6) In the event of breach of contract on behalf of the customer especially in case of default in payment or breach of his responsibility to handle the delivered goods with care, visiomatic International reserves the right to the return of the goods after reminders and appointment of a date, at the customer’s expense and the customer is under obligation to surrender these goods. Assertion of the reservation of our proprietary rights and garnishment of the delivered goods are not considered rescission of contract. The buyer hereby declares his agreement that anyone assigned to pick up any items under reservation of proprietary rights may enter and drive on the premises on which these are stored for this purpose. Especially in regard to software the right of use of this software expires upon declaration of the proprietary rights. The customer shall declare his agreement to allow people ordered to inspect the deletion of software and any manufactured copies to enter his premises on which these are stored for this purpose and to tolerate all intrusion into his data processing systems if such deletion has not yet taken place.
(7) The customer is authorized to resell, use, build in, combine or to process the delivered goods only within the usual duly course of business and only in the extent that visiomatic International becomes co-proprietor in accordance to the above mentioned passages. The customer is not authorized any other use of the delivered goods. The customer is not authorized to pawn these or to transfer by way of security.
(8) The customer is obliged to inform visiomatic International immediately of any execution of foreclosure of any goods still under reservation of proprietary rights- even if visiomatic International merely owns co-ownership- or of any book accounts assigned to visiomatic International and deliver any paperwork necessary for the objection.
(9) Any goods still under reservation of proprietary rights are to be insured against fire and theft at the customer’s expense. Any demands of the customer towards the insurer regarding the goods under reservation of proprietary rights are to be passed on to visiomatic International now. visiomatic International hereby accepts this assignment.
(10) The customer not living in visiomatic International’s country of residence will do anything within the applicable law necessary to accommodate these rights of reservation of property as mentioned above in the country the goods are located in.
(11) If the value of security provided to visiomatic International exceeds their invoiced claims, visiomatic International are obliged and willing to return or release these back to the customer so long as they exceed the agreed upon limit of indemnity.
§ 15 Notification of defects
(1) Deficiency of title or material, or of a guaranteed property or condition as well as over-, under- or wrong delivery (deficiencies) are – for as long as they are obvious – to be reported back to visiomatic International immediately within ten days of receipt of the delivered goods in written form. Deficiencies which are not obviously recognizable during the usual inspection are also to be reported back to visiomatic International immediately within ten days of discovery.
(2) After expiration of the time deadline mentioned in passage 1 any claims against visiomatic International are void.
§ 16 Warranty
(1) Prerequisite for any claims of warranty are the reproducibility or the detectablity of the deficiencies. In the presence of deficiencies- this does not include deficiencies of title – visiomatic International shall chose to either rectify the deficiency (amendment) or replace delivery if reported on time according to XIII. As long as the customer proves that the deficiency existed upon transfer of perils. The limitation period for several warranty claims is 12 months from delivery of goods. The limitation period for amendment or replacement also ends with expiration of the limitation period according to sentence 3. The limitation period for damages to life, body or health as a result of a deficiency caused by visiomatic International is 24 months upon transfer of the delivered goods. Used goods are excluded from warranty.
(2) Software which has been altered or which is not used within the confirmation of order is not included in warranty unless the customer can prove that such changes or use is not cause of the deficiency.
(3) The customer has to grant visiomatic International the time and ability to establish the deficiency at the customers’ premises or the site of operation according to prior agreement. Rejected goods are to be sent back to visiomatic International immediately upon request. If warranty claims are unreasonable visiomatic International reserves the right to charge the customer any expenses occurred. If warranty claims are reasonable the customer has to grant visiomatic International the time and opportunity for amendment or replacement according to prior agreement. Any parts replaced at such occasion become property of visiomatic International. Any results due to repair work or other changes carried out independently without our written consent result in loss of warranty.
(4) If visiomatic International amended twice or replaced once and this did not result in repair of the deficiency, as well as in the event that visiomatic International refused a required amendment or replacement unjustifiably or unduly delay such or the customer cannot be expected to accept amendment for other reasons as well as the existence of the requirements of § 281 art. 2 or § 323 art. 2 BGB, the customer may claim for the judicial remedies of withdrawal and reduction instead of amendment and replacement as well as compensation and reimbursement of expenses, the latter within the limits of XI. of these general terms and conditions.
(5) Incidentally visiomatic International is not obliged to amend or replace if this is merely possible at unreasonable costs. Costs are unreasonable if they exceed 25% of the agreed upon cost of the delivery, with the value of the replacement itself not accounted for. In this case the customer may apply judicial remedies.
(6) If the delivered goods were transported to another place than the original place of delivery resulting in higher costs for transport, travel, labour and material for amendment and replacement, these costs are to be replaced by the customer, unless the transport to the new location is in accordance with the intended use of the delivered goods.
(7) The customer may not claim warranty for insignificant deviations of the agreed upon properties, insignificant impairment of usability, wear and tear or due to damages, which are result of faulty or neglectful use, excessive operation, improper or incorrect use, incorrect storage, application of improper equipment or due to exceptional external influences not preconditioned in the contract after transfer of perils.
§ 17 Warranty of title
(1) Due to lack of other agreements visiomatic International is under obligation to provide the delivery free of proprietary rights and copyrights of a third party (in the following called “proprietary rights”). In the case that a third party was to claim the infringement of proprietary rights against the customer, visiomatic International is liable up to 12 months after the time of transfer of rights over to the customer, according to the following passages.
(2) visiomatic International shall obtain proprietary rights for the delivered goods in question, change the delivered goods accordingly to eliminate breach of proprietary rights or replace these with comparable goods according to their own choice at their own expense. If this is not possible under reasonable terms and conditions, the customer has the right to the judicial remedies of withdrawal and reduction. visiomatic International’s obligation to provide compensation for damages is in accordance with XI.
(3) visiomatic International is only obliged to the previously mentioned measures if informed of the claims raised by third parties immediately in written form by the customer, the customer does not acknowledge damages made and all defence actions and negotiations remain reserved. If the customer ceases use of the delivered goods due to reasons of mitigation or other important reasons, he is obliged to inform the third party that this is not result of the acceptance of any claims of infringement of proprietary rights.
(4) Customer claims are excluded if and to the extent that he is responsible for the infringement of proprietary rights. They are further excluded so long as the infringement of proprietary rights is caused by specific instructions on behalf of the customer, by an application unforeseeable to us or is even caused by the modification of the delivered goods or use in conjunction with goods not delivered by visiomatic International.
(5) Exceeding claims due to defect of title are excluded.
§ 18 Compensation for damages
(1) So long as no further conditions are agreed upon within these terms, all claims on behalf of the customer in regards to damages of any kind, even of reimbursement of expenses and indirect damages are excluded. This also applies to claims connected with the negligence of an obligation connected to debt or unauthorized action. This exclusion of liability is also valid if visiomatic International appointed a vicarious agent.
(2) Nevertheless visiomatic International are liable in the cases mentioned in XI. (1) if visiomatic International, their executive or vicarious agent acted in considerable violation of contract (cardinal obligation) and this puts the purpose of contract at risk. visiomatic International are not obliged to compensate for damages instead of services in the case of insignificant breach of duty.
(3) In case of breach of cardinal obligations visiomatic International’s liability is limited to the amount of the order in cases of slight negligence. If the order value does not match the typically foreseeable damage visiomatic International’s liability is limited to the typical foreseeable damages.
(4) In case of loss of data, visiomatic International is merely liable within these terms and conditions and only for such expense on behalf of the customer which is necessary to ensure the recovery of data given proper data security. Is visiomatic International merely accused of slight negligence this liability is only applicable in the event that the customer performed proper data security just before the measure leading to loss of data.
(5) This disclaimer does not apply to claims arising from product liability or if a condition and durability of the goods was guaranteed. Further the disclaimer does not apply to injury of life, body or health.
§ 19 Right of withdrawal
(1) visiomatic International reserves the right to withdraw in certain cases:
- In the event of the occurrence of higher forces described under IV. (4) if these last over a period of more than three months or the services to be rendered have become impossible or unreasonably difficult due to these occurrences.
- In the event that circumstances become known which leads visiomatic International to loose trust in the customers’ creditworthiness after the conclusion of contract or if reasonable doubts in the buyers’ ability to pay arise; visiomatic International also reserve the right to either refuse performance or demand a deposit of security of the customer.
(2) The exercise of these rights listed in article 1 does not result in the right to compensation claims.
§ 20 Place of performance, applicable law and legal jurisdiction
(1) Place of performance for both parties is our location
(2) Jurisdiction of the Federal Republic of Germany is valid in regard to the terms and conditions and the complete legal relationship, to the exclusion of the United Nation's agreement on the international trade of goods (CISG).
(3) Exclusive legal jurisdiction is visiomatic International’s place of residence in regards to current and future claims resulting from the business relationship, including bills of exchange or cheques, providing the buyer is a merchant or a legal entity under public law or has no legal residency in Germany. visiomatic International are however also authorized to sue at the customers’ headquarters.