General Terms and Conditions of VIPA

1. General provisions

 The following General Terms and Conditions of the Gesellschaft für Visualisierung und Prozessautomatisierung, hereinafter referred to as VIPA GmbH, shall apply for all present and future orders, deliveries and services (hereinafter referred to as: deliveries), unless expressly otherwise agreed by contract.

In case of deviations, supplements etc., we hereby expressly object to any conflicting or differing terms and conditions of contractual partners. We exclude all and any terms and conditions of contractual partners unless we expressly agree to them in writing.

 

2. Subject matter of the contract, scope of delivery, partial deliveries

a) The offer and/or order confirmation of VIPA GmbH shall be decisive for the scope of delivery.

b) Regarding cost estimates, drawings, wiring diagrams, samples, software source codes and other documentation, VIPA GmbH hereby retains its rights of ownership, copyrights and patent rights in their entirety. Such documents may only be made accessible to third parties with the prior written consent of VIPA GmbH.

Drawings, wiring diagrams, samples, software source codes and other documentation that are part of the offer must be returned immediately on request in case the order is not awarded to VIPA GmbH.

With regard to documents that were handed over to VIPA GmbH, the latter is entitled to make accessible such documents to third parties, as far as the company transfers services and deliveries to such third parties in a permissible way.

c) VIPA GmbH is entitled to make partial deliveries, insofar as this is reasonable for the customer.

 

3. Prices and terms of payment, exclusion of set-off, cost estimates

a) All the prices of VIPA GmbH are net prices quoted ex works, i.e. not including transport and packaging costs. All costs for delivery ex works, packaging, transport insurance etc. are invoiced separately. The same shall apply for the costs resulting from installation, erection and/or assembly, e.g. travel expenses. VAT will be charged separately. VIPA GmbH is entitled to charge a reminder fee of € 5.00 per reminder upon occurrence of a default.

b) A set-off by the contractual partner is only permitted in case the outstanding claims are uncontested or established by final enforceable judgment. The same shall apply for any right of retention.

c) Cost estimates shall be paid for.

 

4. Delivery period, deadlines, passing of risk

a) Delivery dates and deadlines are not binding for VIPA GmbH unless it is agreed by contract that they are binding.

b) The delivery time which was agreed upon shall be extended accordingly in the event of any circumstances beyond our control, which occur either in our own business or in that of a preliminary supplier. This applies in particular to strikes and lockouts as well as cases of force majeure which result from unforeseeable events or events over which the company and/or the preliminary suppliers have no control. VIPA GmbH undertakes to inform its contractual partners of any such delays as soon as they are foreseeable. If the performance of services by VIPA GmbH therefore becomes impossible or is seriously impaired, VIPA GmbH may cancel the contract wholly or in part. The customer is entitled to cancel the contract if VIPA GmbH does not perform the delivery after a written reminder until the end of a new appropriate deadline set by the customer.

The compliance with expressly agreed delivery deadlines depends on the receipt in due time of all documents, necessary permits, clearances etc. which are to be supplied by the contractual partner, the clearance and approval of all plans in due time, as well as the compliance with the agreed terms of payment and other obligations by the contractual partner of VIPA GmbH.

VIPA GmbH shall be entitled to exercise its right of retention despite a contractual delivery date in case due receivables from prior goods and services have not been settled by the contractual partner.

c) The delivery deadline shall be considered met and the risk passes to the customer as soon as VIPA GmbH has handed over the item to the forwarding agent, the carrier or another person or institution responsible for dispatch or to the collector. If installation, erection or assembly is included in the scope of delivery, the risk shall pass and the delivery deadline shall be considered met on the day of taking-over on the business premises of the contractual partner. If a test run was agreed, the latter shall be performed without delay after assembly and/or installation.

If the dispatch, the assembly or installation/erection and/or the taking-over or a possible test run is delayed due to reasons for which the contractual partner is responsible or if a default of acceptance occurred, the risk shall pass to the contractual partner upon the start of delay caused by the contractual partner or upon occurrence of default of acceptance. This shall also apply for possible dispatches within the scope of replacement deliveries or after the performance of rectifications of defects by VIPA GmbH.

The purchaser shall bear the risk for any reshipments effected by the customer to VIPA GmbH until the items of the reshipment are handed over in the premises of VIPA GmbH. Possible reshipments must always be free of carriage charges for VIPA GmbH.

All deliveries are subject to the ICC-Incoterms 2010, insofar as these do not contain regulations deviating from the General Terms and Conditions or from other agreements.

5. Reservation of title

VIPA GmbH makes deliveries solely on the basis of the following reservation of title. This shall also apply to all future deliveries, even if VIPA GmbH does not make explicit reference to this.

a) All deliveries / services are solely effected under reservation of title. VIPA GmbH shall remain the owner of the delivered goods until all accounts to which the company entitled from the customer as a result of the business relationship have been paid in full. The customer may neither pledge nor provide the goods as security to which we have retained ownership and it is also not allowed to resell such goods. The reseller is granted the revocable authorisation to resell such goods in the normal course of business, provided that its customers effect payment.

b) As long as the ownership title has not been transferred, the customer shall be obliged to handle and stock the object of purchase with due care and to insure it at its own expense at replacement value against losses and damage from theft, fire and water. If any servicing or inspection work is required, the customer shall perform such work in due time at its own expense. As long as the ownership title has not been transferred, the customer shall be obliged to notify VIPA GmbH in writing as soon as possible in case the delivered item is pledged or is about to be pledged, retained or is threatened by execution or insolvency or is exposed to other third party interventions etc. In case of a compulsory execution or insolvency, the competent authorities must be informed about the ownership title of VIPA GmbH. The contractual partner shall be liable for damage resulting from neglect as well as for intervention expenses, if any. The expenses incurred by averting a seizure shall be borne by the customer. Where the third party is unable to reimburse the court and out-of-court expenses of a lawsuit pursuant to § 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for any loss incurred by VIPA GmbH.

c) The customer shall be entitled to resell the goods subject to reservation of title in the normal course of business. The customer shall assign all purchase price and wage claims etc. arising from the resale of the goods subject to reservation of title to VIPA GmbH in the amount of the invoicing value including VAT. VIPA GmbH accepts this assignment. Such assignment shall be valid irrespective of the fact whether the goods were resold without or after processing. The customer shall be entitled to collect debts even after the assignment. The authority of VIPA GmbH to collect the debts itself shall not be affected by this. However, we undertake to refrain from collecting the claim as long as our contractual partner meets the payment obligations from the collected revenues, is not in delay of payment and, in particular, has not filed an application to open insolvency proceedings, and a cessation of payments does not exists.

d) The processing, treatment or transformation of the purchased item shall always be made by the purchaser in the name and on behalf of VIPA GmbH. In this case, the customer shall continue to be eligible for the purchased item subsequent to processing or transformation. Should the purchased item be processed with other objects not belonging to VIPA GmbH, VIPA GmbH shall then acquire a joint ownership in the new item in the ratio of the value of the purchased item to the other processed objects at the time of processing. The same shall apply in the event of incorporation. If incorporation takes place in such a way that the customer’s product is considered to be the main product, it is agreed that the customer shall transfer pro-rata joint ownership title to VIPA GmbH and shall safeguard on our behalf the sole title or joint title thereby arising. In order to secure the claims of VIPA GmbH against the customer, the latter shall assign to VIPA GmbH any claims that it acquires against a third party through the linking of the goods subject to reservation of title with a property. VIPA GmbH hereby accepts such assignment.

VIPA GmbH undertakes to release the securities to which it is entitled, provided that their value exceeds the secured outstanding dues by more than 20%.

 

6. Claims for damages

a) VIPA GmbH shall only assume liability if this is expressly agreed upon in writing or if an exclusion of liability is not permitted by law, e.g. in the event of willful intent or gross negligence or in case of harm to life, health and body or if the company is liable according to the Product Liability Act. Any other liability of VIPA GmbH, in particular claims for damages and reimbursement of expenses by the contractual partners, shall be excluded. Liability is also and particularly excluded in the case of non-performance or defective performance and for consequential losses or indirect damage. Liability of VIPA GmbH due to culpa in contrahendo shall be expressly excluded. VIPA GmbH hereby accepts this exclusion.

b) Contractual penalties are not permissible unless expressly otherwise agreed in writing.

 

7. Limitation period, suspension of the limitation period

The limitation period for warranty claims and other claims against VIPA GmbH shall be twelve months. In case of shorter statutory limitation periods or shorter limitation periods agreed upon, such shorter limitation period shall apply. A shortening of the limitation period shall not be valid if this is excluded by law, in particular in case of fraudulent concealment of a defect. For deliveries to VIPA GmbH, the statutory limitation periods shall apply. The statutory regulations on suspension of statute of limitation, suspension of and restart of the limitation period shall not be affected by this. Settlement negotiations shall be deemed terminated in case VIPA GmbH does not respond in writing to a letter of the contractual partner after expiration of a period of 8 weeks.

 

8. Warranty

a) A warranty beyond the statutory warranty regulations shall only be granted if such warranty is expressly stated in writing.

b) The goods supplied by VIPA GmbH must be inspected immediately after handover. VIPA GmbH must be notified in writing immediately after receipt and/or inspection of the delivery of any defects, the lack of guaranteed qualities, transport damage, shortfall quantity, wrong deliveries etc and all processing or treatment works must be stopped immediately. Possible hidden defects must be communicated to us in writing as soon as they have been discovered. If such notification is not made in time, the delivery shall be deemed accepted.

VIPA GmbH and the carrier must be notified in writing and without delay of any transport damage after receipt of goods.

In case the notification of defects is justified and was made in time, VIPA GmbH shall be entitled to either rectify the defects, to effect a faultless replacement delivery and/or to render a faultless service. The contractual partner's right of reduction of the purchase price shall not be affected by unsuccessful rectification or cancellation of the contract.

c) In case of the following, any warranty and/or any guarantee to which the company exceptionally consented in writing shall be excluded, unless the defect was fraudulently concealed:

  • Damage or losses resulting from faulty installation made by the customer or third parties or caused by improper use or fire, lightning strike, force majeure etc. 
  • Repairs or repair attempts performed incorrectly or other interventions by the customers or other persons not authorised by VIPA GmbH
  • Damage caused by non-observance of the operating instructions or other instructions given by the staff of VIPA GmbH
  • Damage caused by the use of unsuitable or inferior replacement parts
  • Damage resulting from wear, humidity, strong heating of rooms or other effects of weather and temperature
  • Wear and tear parts
  • In case of negligible deviation from the agreed characteristics, in case of negligible impairment of serviceability or in case the model presents only minor deviations from the specifications in catalogues, advertising materials, samples etc.
  • Insufficient maintenance of the goods by the contractual partner 

d) No warranty is granted for second-hand goods supplied by VIPA GmbH. Second-hand goods are sold as seen.

e) VIPA GmbH is entitled to claim compensation for the costs and expenses it incurred from the contractual partner in case the notification of defects was not justified.

Claims from the purchaser towards VIPA GmbH for compensation of expenses, in particular transport costs and service assignments, due to supplementary performance, are excluded insofar as the expenses increase due to the fact that the object of delivery was subsequently carried to a place other than the agreed delivery address of the contractual partner.

f) For software the conditions of the Opens internal link in current windowsoftware license contract from VIPA are applied.

 

9. Impossibility of performance, adaptation of the contract

If it becomes impossible for VIPA GmbH to effect or provide the agreed delivery or service, the general legal principles shall apply as follows:

If the impossibility is the fault of VIPA GmbH, the contractual partner is entitled to make a claim for damages; however, such claim for damages of the purchaser shall be limited to 10% of the value of such part of the delivery or service that could not be used properly or put into service due to the impossibility of performance.

Any claims for damages exceeding the aforementioned 10% shall be excluded. This shall not apply in the event of willful intent or gross negligence, where liability is mandatory, or in case of harm to life, health and body.

The customer's right to withdraw from the contract shall not be affected by this.

In case unforeseeable events considerably modify the economic importance or the content of the delivery or service or affect the business operations of VIPA GmbH, the contract shall be adapted accordingly by VIPA GmbH, provided that this is compliant with the principles of good faith.

As far as this is not economically feasible, VIPA GmbH shall have the right to withdraw from the contract. When the company intends to make use of its right of withdrawal, it shall inform the purchaser of its intention as soon as the significance of the event will have fully come to its knowledge, i.e. also in such cases when an extension of the time of delivery was agreed with the purchaser.

 

10. Place of jurisdiction, place of performance, applicable law

a) The sole local and international place of jurisdiction (if the contractual partner is a merchant) for all disputes arising directly or indirectly from the contract shall be the registered office of VIPA GmbH.

b) The contractual relationship shall be subject to German substantive law only.

c) The place of performance for deliveries and services of VIPA GmbH shall be the registered office of VIPA GmbH.

 

11. Authorisations, foreign countries

The contractual partner shall be responsible for and obtain official authorisations that may be required, in particular export licences. VIPA GmbH shall not be responsible or liable for possible official authorisations, in particular export licences, that may be required. The contractual partner is obliged to comply with all export provisions and export restrictions and all other provisions of the foreign trade legislations, in particular those of Germany, the EU and the EU member states, and to ensure that its contractual partners and third parties comply with these provisions as well. The contractual partner shall be obliged to make all required notifications, to provide all required information and to make all other necessary declarations to foreign authorities duly and completely.

The contractual partner shall pay all required customs duties, taxes or levies which may arise from a delivery into or the rendering of a service in a foreign country.

12. Other provisions, validity of the contract, authorisations

Should one or several provisions of the contract, including these General Terms and Conditions, be invalid, the validity of the contract or the General Terms and Conditions as a whole shall not be effected. In this case, the parties undertake to replace the invalid provision by a valid one which comes closest to the economic purpose of the invalid provision. The same shall be done in case of contractual gaps.

Changes and amendments to the contract must be effected in writing in order to be effective.

Addendum:
 
VIPA GmbH takes the confidentiality of their customers' data very seriously. Therefore, we always adhere to the applicable data protection regulations. VIPA will not share their information with companies outside of the Group that are not involved in the delivery process or order fulfillment. Your data. which is necessary for business purposes. is stored and used for order processing as required. A transfer of data to unaffiliated third parties does not occur. Furthermore, for continuous improvement of our product portfolio, address and order data is collected and used. You can object to the storage and use of your data for advertising purposes at any time, by sending an informal letter to VIPA GmbH Ohmstr. 4, 91074 Herzogenaurach or an e-mail to info@vipa.de. After receiving your objection, we will no longer use the data concerned for purposes other than to process your order.