Terms and conditions of sale and delivery

of

VONJAN TECHNOLOGY GmbH
Neubruch 1
D-82266 Inning am Ammersee

Amtsgericht München, HRB 190131

 
 
 GENERAL CONDITIONS FOR SUPPLIES, SERVICES AND LICENSES

 

  1. Scope of validity

1.1 These terms and conditions of sale and delivery apply only to customers who are entrepreneurs under Section 14 of the German Civil Code (BGB), not to consumers.

1.2 We provide all of our deliveries and services, hereinafter referred to as ‘products’, exclusively subject to these terms and conditions of sale and delivery. We do not recognise any conflicting or deviating terms and conditions published by our customers or third parties unless we have expressly agreed to the validity of the same.

1.3 Our terms and conditions of sale and delivery shall also apply to future transactions with our customers, even if we do not refer to them in individual cases.

 

Contract

  1. Quotation and conclusion of the contract

2.1 The quotations we send to our customers are subject to change and non-binding, unless we expressly indicate that they are binding quotations.

2.2 Our written order confirmation is decisive for the order.

 

  1. Terms and conditions of delivery

3.1 All products are delivered EX WORKS from Inning am Ammersee in line with Incoterms 2020. The prices we quote shall be deemed to be agreed on the same basis. Unless agreed otherwise, the Customer hereby instructs us to arrange for shipping, packaging and insurance at the Customer’s expense.

3.2 A delivery date is only binding for us if it has been expressly confirmed in writing as binding and the Customer has completely fulfilled all of its delivery obligations. In particular, the Customer shall confirm in writing on request that it meets the installation requirements for our products that we specify. It is therefore the Customer’s sole responsibility to comply with any technical guidelines, such as installation requirements, that we may from time to time specify to the Customer, to create the necessary operating environment for the products and to provide us with all the information and assistance that we may reasonably require so that we can meet our contractual delivery and performance obligations. In the event that, in connection with the Customer providing us with information or assistance with a delay, we

  1. are entitled under the statutory provisions to demand compensation from the Customer for additional expenses that we incur, such compensation shall be calculated based on our price list as amended from time to time, particularly at the hourly rates set out therein, but further claims for compensation shall not be limited or excluded thereby.
  2. would have to name or otherwise involve a third party as a service provider to the Customer with the Customer’s consent, we shall neither be at fault for the selection and nor shall we assume any liability whatsoever for the services provided by this third party.

3.3 The product delivery obligation is subject to the condition that we receive correct and timely deliveries from our suppliers. If the ordered product has been replaced by a successor product prior to delivery, we reserve the right to deliver this successor product instead of the originally ordered product, provided that the successor product meets the agreed specifications and is not more expensive than the ordered product.

3.4 In the event that the Customer does not accept delivery, we reserve the right to store the products in question at the Customer’s expense and to sell these products at auction or otherwise to interested third parties, with the Customer being liable for the reduced proceeds. Without prejudice to any further claims, we shall be entitled in such a case to charge the Customer a lump-sum expense in lieu of the expense incurred in the amount of five percent (5%) of the sales price without any need to provide further proof, whereby the Customer shall be responsible for proving a lower expense.

3.5 We are entitled to make partial deliveries.

3.6 We are entitled to engage subcontractors at any time at our discretion to perform our contractual obligations, provided that the use of such subcontractors does not limit our obligations vis-à-vis the Customer.

 

Prices

  1. Prices / offsetting and retention

4.1 The prices stated in our order confirmation are decisive. Our prices are ex-works and do not include freight, postage, insurance, customs, other expenses and VAT at the statutory rate. Value-added tax, if any, shall be shown separately on the invoice at the rate applicable on the invoice date.

4.2 We shall invoice deliveries and services that are not agreed in the contract concluded in accordance with the price list valid at the time the order is received.

4.3 We reserve the right to adjust prices due to changes in our economic environment. This particularly applies if we have agreed to deliver the products more than one month after the agreed date and, in the absence of such agreement of an agreed delivery date, once the contract has been signed and our provision costs increase after this date and before we have provided the specific products for delivery to the Customer. In such a situation, we have the right to increase the agreed price by an amount corresponding to this increase by notifying the Customer. In this case, the Customer has the right to withdraw from the contract by means of a written declaration, provided that we receive the notification to this effect from the Customer within one week of the Customer receiving the notification of the price increase.

4.4 Invoices are payable on receipt without any deductions, unless agreed otherwise in the contract. If the Customer does not make payment within fourteen days of the due date, default shall occur even without a separate reminder.

4.5 The Customer may only offset with an undisputed or legally established counter-claim. The Customer is only permitted to assert a right of retention if it is based on the same contractual relationship.

 

Rights

  1. Property rights, intellectual property

5.1 We shall retain ownership of all products that we deliver until all the receivables arising from previous contracts are paid in full.

5.2 If the Customer is in default of payment, or if it becomes apparent that our claims for payment are jeopardised by the Customer’s inability to pay, we shall be entitled to demand that the goods be returned based on the reservation of ownership.

5.3 The Customer shall inform us without delay in the event of any pledges or other interventions by third parties. The Customer shall bear all costs that have to be incurred to cancel the seizure and to recover the delivery item, insofar as it cannot be confiscated from the third party.

5.4 Subject to our cancellation that is permissible for due cause, the Customer is entitled to dispose of the delivery item in the ordinary course of business. In particular, transfer of ownership by way of security and pledging are not permitted. The Customer may only pass on the goods that are subject to the reservation of ownership to the buyer if it is not in default with its obligations vis-à-vis us.

5.5 In the event of resale, the Customer hereby assigns to us all claims arising from the resale, in particular payment receivables but also other claims in connection with the sale, in the amount of our final invoice amount (including VAT). The Customer is entitled to collect the assigned receivables in a fiduciary capacity until we revoke the same for due cause. The resale of the receivables in the context of genuine factoring requires our prior consent. For due cause, we shall be entitled to notify the third-party debtors of the assignment of receivables on the Customer’s behalf too. The Customer’s right to collect receivables shall expire at such time that the third-party debtor is notified of the assignment. If the Customer’s authority to collect receivables is revoked, we may demand that the Customer discloses to us the assigned receivables and their debtors, provides all the information required for collection, hands over the associated documents and notifies the debtors of the assignment. Due cause under these provisions shall be deemed to exist particularly in the event of default in payment, cessation of payments, institution of insolvency proceedings or justified indications of over-indebtedness or impending insolvency on the Customer’s part.

5.6 Any loading and processing of the delivery item by the Customer shall always be performed for us. We shall be deemed to be the manufacturer under Section 950 of the German Civil Code (BGB) without any further obligation. If the delivery item is processed with other items that do not belong to us, we shall acquire co-ownership of the new item in the ratio of the value of the invoice amount to the purchase price of the other processed goods. In all other respects, the same provisions shall apply to the item created by processing as to the delivery item.

5.7 In the event that the delivery item is combined, mixed or blended with movable items belonging to the Customer in such a way that the Customer’s item is to be regarded as the main item, the Customer hereby assigns to us co-ownership of the overall item in the ratio of the value of the delivery item to the value of the other combined, mixed or blended items. The Customer shall keep the property for us free of charge. If the delivery item is combined, mixed or blended with movable items belonging to a third party in such a way that the third party’s item is to be regarded as the main item, the Customer hereby assigns to us the remuneration claim to which it is entitled against the third party in the amount corresponding to the final invoice amount attributable to the delivery item.

The new item created by combining or mixing or the (co-)ownership rights to the new item that we are entitled to or that are to be transferred to us, as well as the claims to remuneration assigned in accordance with the above paragraph, shall serve as security for our receivables in the same way as the delivery item itself.

5.8 Insofar as the reservation of ownership or the assignment of receivables should be invalid or unenforceable due to non-derogable foreign legal provisions, the security corresponding to the reservation of ownership or the assignment of receivables in this area shall be deemed agreed. If the Customer’s cooperation is required hereunder, the Customer shall take all the measures necessary to preserve and realise the security in our favour.

5.9 The Customer’s right to use any products that we supply that are protected by intellectual property rights, in particular computer software products and documentation (‘software’), is strictly limited to the Customer’s internal business purposes and other purposes provided for in the contract and these terms and conditions.

5.10 All other rights to the software are reserved. The Customer shall refrain from using the software we supply to

(a) reverse engineer the software or otherwise reduce the same to a form that is perceptible to humans;

(b) modify, adapt or translate the software or combine it with other software or otherwise create derivatives of the software supplied; and

(c) perform benchmark tests with the software and/or publish results of benchmark tests without our prior written consent,

unless we have expressly given permission to do so in advance, or unless permitted by mandatory law.

5.11 The Customer’s right to copy and modify the software, insofar as doing so is expressly permitted by the applicable mandatory legal provisions, including the provisions on securing and remedying defects, shall not be restricted hereby, provided that we have previously been given a reasonable opportunity to remedy the defect that the Customer has complained about. Similarly, the Customer’s right shall not be restricted under applicable mandatory reverse engineering legislation to obtain certain information, provided that we have been given a reasonable opportunity in advance to provide such information.

5.12 All copies of the software must contain all trademark and copyright notices exactly as affixed to the original by the owner of such rights. The Customer shall also refrain from selling copies of the software or from making the software available to third parties in general, whether in return for payment or free of charge, unless it has our prior written consent, which shall only be granted if the third-party buyer has complied with all the obligations relating to the software in accordance with the contract and these terms and conditions and the Customer destroys all copies of the software in its possession.

5.13 The software’s source code is not part of our delivery obligation and shall not be delivered unless this has been expressly agreed.

5.14 The Customer shall refrain from any use of the software that is not expressly permitted under the contract or these terms and conditions.

 

Obligations

  1. Warranty, compensation, delivery and return delivery

6.1 The Customer’s legal remedies (‘warranty claims’) for defects in a product, including a deviation from agreed specifications and/or an infringement of third-party rights (collectively referred to as ‘defects’), are limited to the legal remedies limited below.

6.2 Irrespective of whether the contract is a commercial transaction or not, the Customer is obligated to inspect the products and notify us of any defects without delay in accordance with the provisions set out in commercial law, otherwise the defect shall be deemed to have been approved. Any warranty claims are excluded if

(a) the product deviates from the agreed specifications, so the defect only insignificantly restricts the product’s suitability for the agreed purpose; or

 (b) the defect is due to the product being used for a purpose other than the contractual purpose or in breach of the manufacturer’s relevant statutory regulations and/or guidelines or the product being modified without our prior consent or the product being used in conjunction with another product that is not expressly approved by us.

6.3 Any warranty claims for infringement of third-party rights are excluded, unless these third-party rights exist within the European Union and the Customer enables us without restriction to defend ourselves alone or grants us the necessary powers. This also applies in the event of the delivered products being resold to third parties following our authorisation to this effect.

6.4 Insofar as there is a defect that we are responsible for, we are entitled to subsequent performance by either remedying the defect or delivering a defect-free item at our discretion. In particular, we reserve the right to decide whether a defective product shall be repaired or replaced. If we are in default with such subsequent performance, in particular repair or replacement delivery, the Customer shall be entitled to decide whether the product is to be repaired or replaced. The Customer may only assert further statutory rights only if we refuse subsequent performance, if subsequent performance has failed or if subsequent performance becomes unreasonable for the Customer.

6.5 There is no presumption that we warrant particular specifications or other product properties unless we have expressly confirmed such warranty. The manufacturer’s warranty granted with a product does not apply as a warranty for specific properties, unless we have expressly stated otherwise.

6.6 In the event of transport damage, the Customer must observe the notification deadlines in accordance with Section 438 of the German Commercial Code (HGB) (note visible damage and missing quantities on the consignment note, report concealed damage and missing quantities within six working days). Subsequent notifications are to be handled directly with the carrier. We reject complaints at a later date as a matter of principle. The number of boxes must always be confirmed, not just the number of pallets.

6.7 All defective products that we distribute shall be collected from the dealer or end customer during the specified warranty period, or a free return label shall be sent. This must be affixed to the transport packaging and the unit handed in at the nearest post office. The decision between collection or buying a parcel stamp depends on the size of the product and shall be made by us. Alternatively, we can also request that the Customer send it in carriage paid. In the event of a warranty return, the postage costs shall then be refunded afterwards. However, this shall only be done if we have expressly requested carriage paid delivery. Otherwise, postage shall not be refunded. Carriage forward deliveries shall not be accepted.

6.8 We shall only be liable for damages, irrespective of the legal grounds, in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable for damages arising from injury to life and limb or harm to health; for damages arising from a breach of material contractual obligations (obligations, the fulfilment of which makes proper performance of the contract possible in the first place, and on the observance of which the Customer regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage. However, our liability does not include damage caused by loss of data that could have been prevented by daily, alternating data backups, or damage caused by the use of products that could have been prevented by regularly checking the working results of this product.

6.9 These provisions on warranty and limitations of liability do not apply if we have fraudulently concealed a defect or have given a guarantee for the quality of the goods.

 

Term of the contract, modifications to the contract

  1. Minimum term, termination

7.1 Support contracts for software and other contracts for recurring deliveries or services shall be deemed agreed for the term specified in the delivery contract.

7.2 Unless agreed otherwise, either Party shall be entitled to terminate such contracts by giving three months’ notice in writing to the second anniversary of the date of the contract and thereafter to the end of each calendar quarter.

7.3 In addition, the Customer may terminate such a contract at any time by giving three months’ notice in writing to the end of the month if and to the extent that the Customer notifies VJT that the products that the support or service relates to have been taken out of service and the Customer compensates us in the amount of the fees that the Customer would have had to pay to us by the earliest possible termination date under sentence 1 or 2. It shall be the Customer’s responsibility to carry forward any saved expenses to be deducted from this.

 

  1. Modifications to the contractual conditions, modifications to the products

8.1 We are entitled to modify these contractual conditions at any time by giving one month’s notice in text form. In this case, the Customer has the right to terminate the contract in writing subject to a notice period of one month, provided that we receive the Customer’s notification to this effect within two weeks of the Customer receiving the notification of modifications. In the event that the Customer gives notice under this provision, the proposed variation or modification shall not apply to the Customer.

8.2 At the Customer’s request, but without being legally obligated to do so, we shall make reasonable efforts to make modifications to the products, the services, the delivery date or other details agreed with the Customer. We reserve the right to make such modifications only for a surcharge.

 

Miscellaneous

  1. Limitation

9.1 Unless stipulated otherwise below, the general limitation period for claims asserted by the Customer and arising from material defects and defects of title shall be one year from delivery. This limitation period also applies to the Customer’s contractual and non-contractual claims for damages based on a defect in the product.

9.2 The statutory limitation periods shall apply to claims for damages arising from injury to life and limb or harm to health; to liability under the German Product Liability Act; insofar as we have fraudulently concealed a defect; insofar as we have assumed a warranty; insofar as it concerns a building or an item that has been used for a building in accordance with its customary manner of use and has caused its defectiveness; to claims in supplier recourse in the case of final delivery to a consumer (Section 479 of the German Civil Code) and to liability under the German Product Liability Act.

 

  1. Confidentiality

10.1 The Parties mutually undertake to treat all technical and commercial information received from one another as strictly confidential and not to use any such confidential information unless doing so is absolutely necessary for the performance of the contract.

10.2 Only such information is exempt from this clause for which the respective recipient can prove that it was already published or known to them at the time of disclosure or that it was published later through no fault of the recipient.

10.3 The Parties each declare and warrant to one another that their respective employees, consultants and subcontractors shall be bound by a duty of confidentiality equal to or exceeding the standard set out in this clause.

10.4 This confidentiality obligation shall also apply following the termination of the relationship between the Party concerned and its employees, consultants and subcontractors. The recipient of confidential information shall notify the owner if information that the owner considers confidential was previously known to the recipient or has become public knowledge, or if records or media containing such confidential information are lost, or if the recipient is required by law to provide confidential information to third parties, including courts or government agencies.

 

  1. Place of performance, place of jurisdiction, applicable law, severability clause

11.1 The place of performance for delivery, payment and all other obligations arising from the contractual relationship shall be Inning am Ammersee, unless agreed otherwise.

11.2 The place of jurisdiction for both Parties for all legal disputes arising from the contractual relationship, as well as those concerning its origin and validity, is our company’s registered office, provided that the Customer is a merchant or a legal entity under public law. We may also bring the action at the Customer’s registered office at our discretion.

11.3 The contractual relationship is subject to German law. The UN Convention on Contracts for the International Sale of Goods (CISG) does not apply.

11.4 Should one or more provisions set out in the contract or these terms and conditions be or become invalid or unenforceable, this shall not affect the validity and enforceability of the remaining provisions. In such a case, the Parties shall make such an agreement an integral part of the contract that most closely reflects in economic terms the meaning and purpose of the invalid agreement.

11.5 The Customer is hereby informed that we store and process its personal data in the context of the business relationship in accordance with the legal requirements set out in the GDPR and the relevant European data protection regulations. Our privacy policy forms part of the contractual agreement.

Last updated: Inning, 22 November 2021