General Terms and Conditions of Viessmann Technologies GmbH
§1. Validity of Terms and Conditions
(1) The following terms and conditions shall apply to all supplier contracts.
(2) Deviating terms and conditions are subject to our explicit written confirmation. Deviating terms and conditions of the other contract party are herewith objected.
(3) Our written acknowledgment of order is decisive for the delivery.
§2. Offer and Conclusion of Contract
(1) Our offers are subject to confirmation. Notices of acceptance, orders, warranties and any other agreements are subject to our confirmation in writing or electronic form to come into effect.
(2) Public statements, drawings, copies, measurements, weights, descriptions and any other technical data express approximate values. They are not binding on us, unless they have been confirmed expressly in writing. Technical changes also remain reserved for the entire period of delivery.
(3) Oral agreements shall only become effective after being confirmed in writing. This shall also apply to the above mentioned definition of the written form.
(4) We are entitled to transfer the claims resulting from our business relationship.
§3. Drawings, Documents
Drawings, technical descriptions and any other document shall remain our property. They may only be made known to third parties in conjunction with our entire range of products. Moreover, we reserve the unrestricted right of use with regard to ownership and copyright for all drawings and corporate documents.
§4. Design Changes
Further, we reserve the right to carry out improvements and design changes due to further development. We shall not be obliged to carry out design changes and technical improvement on products already delivered.
§5. Prices and Place of Performance
Our prices are quoted in Euro, unpacked, ex works Hof and without installation plus VAT valid on the delivery day. Place of performance is Hof. Delivery of the consignment to a place other than the place of performance is not owed.
§6. Delivery, Deadlines and Dates
(1) Delivery periods will only be stated approximately and without obligation. Expressly agreed delivery periods shall commence on the date of our written order confirmation. They shall be extended for the period in which the contractual partner is in default with the performance of his / her duties towards us.
(2) In cases of force majeure delivery periods shall be extended and delivery dates adjourned accordingly. The same shall also apply to labor disputes, delays in transport, breakdown of machinery, sovereign measures and other circumstances beyond our control. The contractual partner shall be entitled to withdraw from the contract no earlier than six weeks after receipt of our notification.
(3) We reserve the right of partial shipments, as far as the contractual partner can be expected to cope with partial deliveries.
(4) Provided, that we are in delay with regard to meeting delivery periods and deadlines, the contractual partner shall be entitled to claim a default penalty, in total however not more than ten per cent of the invoice value of the consignments affected by the delay. The contractual partner has to prove his / her default loss. Further claims shall be excluded, unless our delay was caused by gross negligence or intent.
(5) The contractual partner shall be entitled to withdraw from the contract or to abate the price after a grace period of at least four weeks has been provided and has expired.
§7. Return of Goods
Return of goods has to be agreed with us and will only be accepted in cases provided for by law upon prior agreement. Goods returned without our express approval do not need to be accepted by us and can be put in storage at the expense of the contractual partner.
§8. Payment, Collaterals, Settlement of Accounts
(1) Our shipments have to be paid immediately and in full on the invoice date. Payment has to be made in a manner that the amount is at our disposal on the due date. We shall be entitled to charge payments to older debts despite other regulations of the contractual partner; if costs and interest have already accumulated, we shall be entitled to charge payments to these costs, then to the interest and finally to the shipment.
(2) The contractual partner shall only be allowed to charge up against claims that are undisputed and declared final and absolute by a court; he / she has no right of retention.
(3) We are entitled to claim collateral appropriate by type and scope for our receivables, even if they are provisory or limited in time.
§9. Bill of Exchange, Default of the Contractual Partner
(1) If a bill of exchange is accepted, the contractual partner shall have to bear discount and expenses to the full extent. We are not obliged to accept bills of exchange.
(2) If the contractual partner is in default of payment, we are entitled to claim interest in the amount of 8 percentage points above the respective base rate as per §288 II n.F. BGB, unless we prove higher interest payments. In the latter case we are entitled to claim the interest we have to pay as damage caused by default.
(3) If the customer is in default of payment towards us, all of our associated receivables shall become due immediately.
§10. Guarantees and Claims
(1) We are liable to the customer for the supply and installation of technical clean rooms as per §13 (4) VOB/B (excluded: electrical parts) and for all other delivery items until the end of a period of 12 months (including the electrical parts) by guaranteeing that our products are free of defects at the time the risk passes to the customer.
(2) Our liability is limited to remedy or replacement delivery at our choice. If remedy or replacement delivery fails three times, the customer can claim for rescission of the contract or reduction of the remuneration at his / her choice. We shall be liable for the correct execution of the rework and for the spare parts for a period of six months as per passage (3), however temporary until the end of the warranty period for the original delivery item.
(3) We shall be exempt from liability for any damage caused by the fact that we are not given the appropriate time or opportunity by our customer to carry out the apparently required repair work or replacement deliveries at our discretion. Only in urgent cases of the endangerment of operational safety in order to avoid disproportionally big damages or if we are in default of eliminating the defect, the customer shall be entitled to eliminate the defect themselves or by a third party and to claim the reimbursement of the related costs. But also in such a case it is prerequisite to notify us immediately.
(4) Warranty will not be granted for damages caused by the customer resulting from inappropriate or improper use, incorrect installation respectively start-up through the customer or a third party, incorrect or careless handling, damages to the lacquered surface and hence resulting corrosion, unsuitable equipment, chemical or electro-chemical or electric impact, non-observance of instructions for assembly, operation and maintenance, inappropriate modifications or repair work through the customer or a third party and due to impact caused by parts of third-party origin as well as normal wear. We explicitly point out, that we shall not assume warranty if wear and tear parts such as joints and gaskets, door locks and hinges are worn out due to normal wear.
Moreover, our warranty deed does not incorporate damages caused by ongoing use although a defect had already occurred.
(5) Warranty as per VOB/B shall only apply if the installation of the affected product is a contractual requirement and carried out by us.
(6) Notification of open defects, concerning delivery items, is only acceptable if the defects are recorded in the bill of lading; the same applies to transport damages. Notification has to be made immediately and in writing as per §377 HGB. Hidden defects have to be notified immediately after discovery as per §377 HGB.
(7) Defects on a part of the shipment do not entitle to reject the entire shipment.
(8) The contractual partner concedes the right to us, before the repair work starts, to inspect the defects ourselves or to have them inspected by an insurance adjuster or by a neutral sworn expert. The costs for the expert shall be borne by the party to whose disadvantage the expert decides.
(9) We shall only be liable for damage or reimbursement of expenses (hereinafter liability for damages), irrespective of the legal grounds, in particular due to breach of obligations resulting from the contractual relationship and tortuous action, if we, our legal representatives or our vicarious agents have acted with intent or gross negligence. In such a case, as well as for damages to life, body and health, in the case of willful deception or for claims arising from the product liability law our liability is unlimited. In cases of slightly negligent breaches of obligation our liability is limited to the contract-typical, foreseeable damage. The contract-typical, foreseeable damage is limited to twice the invoice value of the affected goods.
(10) Further claims by the customer are excluded, in particular those for compensation of damage which has not occurred on the delivery items themselves.
§11. Reservation of property rights
(1) We reserve the ownership of all delivery items (reserved property).Delivery items shall remain our property until full payment of the purchase price plus any ancillary costs has been received. This shall further apply to receivables arising from contracts concluded at the same time or later until full settlement, even if single or all of our receivables have been included in an open account and the balance has been determined and acknowledged.
(2) The contractual partner is entitled and authorized to resell the reserved property in the orderly course of business; he /she herewith already assigns to us all claims arising from resale in full. If the contractual partner resells reserved property unprocessed or after processing or in connection with goods that are not owned by the contractual partner, the contractual partner herewith assigns to us all claims arising from resale in the amount of the value of the reserved property including all ancillary rights and ranked before all others. We accept the assignment. The contractual partner shall remain entitled to collect the receivables also after assigning them to us. Our authorization to collect the receivables ourselves shall remain unaffected thereby; we undertake not to collect the receivables as long as the customer complies with his / her payment obligations and any other obligations in an orderly manner. We may demand that the customer informs us of the assigned accounts receivable and the debtors, that he gives us all the information and relevant documents necessary to assert our rights and that he informs the debtors of the assignment.
(3) Any handling and processing of the reserved property shall be carried out for us by the contractual partner, without resulting in any obligations for us. In the event of any processing, connecting, commingling or mixing of the reserved goods with other goods which do not belong to us, we are entitled to the co-ownership share of the new product in the ratio of the value of the reserved goods to the rest of the processed goods at the time of the processing, connecting, commingling or mixing. If the contractual partner acquires sole ownership of the new product, he / she herewith concedes co-ownership of the new product to us in the ratio of the value of the processed, connected, commingled or mixed reserved property; he/ she shall store the new product free of charge for us.
(4) In case the contractual partner is in default of payment, he / she shall no longer be entitled to collect the receivables assigned. He / she shall be obliged to transfer any amounts collected immediately to us as far as our receivables are due. If this is not the case, the amounts collected shall be our property and must be kept separate. In the event of an insolvency of our contractual partner we shall be entitled to claim for alternate segregation.
(5) We undertake to release the securities due to us on request of the contractual partner insofar as the realizable value of the collaterals exceeds the secured accounts receivable by more than 10 %; the collaterals released shall be at our discretion.
(6) If the contractual partner resells the reserved property subject to retention of title, we shall remain owners of the reserved property until all receivables arising from this business relationship have been paid in full and the contractual partner herewith already assigns to us all claims against his / her customers for delivery of the reserved property as well as any other rights against his / her customers. We accept the assignment. We are entitled to demand presentation of the contracts concluded with third parties.
(7) If delivery items are seized by a third party, the contractual partner shall be obliged to inform the executory officers about our ownership and to notify us latest three days after seizure by submitting the bailiff’s return. The contractual partner shall be liable for any costs arising from our intervention within the legal limits. We are not obliged to intervene.
(8) If, in connection with a payment, liability arises for us due to any negotiable instrument transaction, the above mentioned retention of title as well as the according claim deriving from the shipment shall not expire prior to fulfillment of the bill of exchange by the contractual partner as the drawee.
(9) We shall be entitled to assert our rights arising from the retention of title contrary to §449 (2) BGB without prior termination of the respective contract. After assertion of the retention of title the customer shall no longer be authorized to derive any right of ownership from the concluded contract.
§12. Data Protection
The data of our contractual partner is subject to electronic data processing in connection with the proceedings of the business relationship. We shall comply with the provisions of the German Data Protection Act with regard to the use of personal data. The contractual partner agrees that in this context personal data will be transferred to a company that is part of the VIESSMANN group of enterprises but not located in the European Union, if applicable.
§13. Partial Nullity
Should individual terms of this contract be or become ineffective or inoperative, this will not affect the remaining terms of this contract. In order to close the resulting gaps both parties shall be obliged to behave in a manner that complies with the general nature of the respective contract and that is required to restore the balance of service and consideration.
§14. Applicable Law, Place of Jurisdiction and Place of Performance
(1) For our all of our business relationships material German law shall apply. The validity of the agreement of the United Nations regarding contracts on the international sale of goods (CISG) is excluded.
(2) Sales law shall exclusively apply.
(3) If the contractual partner is a merchant, Hof shall be the place of jurisdiction. In this case, Hof is the place of performance. In any case, we shall have the right to take legal action against the contractual partner at his / her general place of jurisdiction.