1. General – scope
All deliveries, services and offers shall be exclusively subject to these general terms and conditions, including those arising from all future business relationships regardless of whether these general terms and conditions are expressly agreed upon or not. These terms and conditions shall be deemed to be binding upon acceptance of the goods or services at the latest. Any alternative or additional agreements, especially those contradicting these terms and conditions shall not be accepted unless they are expressly approved in writing by VMAN, Dierk Walter, Buchenweg 6, 53359 Rheinbach, Germany (afterwards VMAN). This does not apply to any subsequent oral agreements. If the customer does not agree to this, it shall inform VMAN immediately in writing. In this case, VMAN reserves the right to withdraw offers without giving rise to any claims by the customer whatsoever. VMAN expressly objects to the reference to the customer’s own terms and conditions on forms.
Customers in the meaning of these terms and conditions shall solely refer to business customers, i.e. natural or legal persons or incorporated firms who act in pursuance of a business or self-employed profession.
2. Conclusion of contract
VMAN’s offers shall be deemed offers without engagement. Specifications as well as the form, colour and/or weight are subject to change without notice to a reasonable extent. Information included in brochures, advertisements, analyses, documentation and similar publications are only descriptions and do not constitute any warranty of a quality. Specifications and guarantees shall in fact only be valid if they have been expressly confirmed in writing by VMAN. All orders as well as any additional commitments on the part of VMAN shall require written confirmation by VMAN. This requirement may only be waived in writing.
Contracts shall be concluded subject to correct and timely delivery by our suppliers. This shall only apply if we are responsible for the non-delivery, especially if a congruent contract has been concluded with our supplier. The customer shall be informed immediately about the non-availability of the service. The counter-performance shall be immediately returned. VMAN uses automated data processing systems to handle orders. Accordingly, the customer is hereby informed pursuant to § 33 (1) of the German Data Privacy Act as well as § 3 of the Telecommunications Protection Ordinance that VMAN processes addresses in machine readable form and for activities related to the contract.
3. Price and due date
Goods and services shall be supplied at the price and on the terms and conditions stipulated in the written confirmation of order. The prices stated therein shall be binding. All prices are net of value added tax at the statutory rate. Invoices shall be payable net within 14 days of receipt without any deductions. Goods and services shall be charged as follows:
For services provided by VMAN, its employees shall record the daily hours worked and the item of the contract they worked on in an activity report which will be signed by the customer. The activity report shall be deemed to be approved if the customer fails to object within 5 working days from receipt of the report. a) In case of fixed price orders, VMAN may also invoice only those services that were actually provided. VMAN is authorized to issue monthly invoices for services provided.
The daily rate shall always cover eight hours of work per day. Longer or shorter hours worked shall be charged on a pro rata (hourly) basis. In case of services provided on the customer’s premises (on-site work) of less than four hours, half a daily rate will be charged; in case of on-site work of more than four hours, at least a full daily rate will be charged; in case of on-site work of more than eight hours, the hours worked shall be charged on an hourly basis. The daily rates shall apply to activities provided between 6:00 a.m. and 23:00 p.m. from Monday to Sunday, including public holidays.
4. Delivery dates
Where delivery dates have been specified, these are non-binding dates, which are subject to VMAN itself receiving punctual deliveries. Delivery dates and periods shall be binding only if they are designated as such by VMAN in individual cases. The delivery period shall commence upon the confirmation of order. In order to enable VMAN to keep deadlines, the customer shall fulfill its obligation to cooperate as described in the order independently, properly and on time and in particular supply all information, documents, approvals and acceptances requested by VMAN. If the above conditions are not met, the deadlines shall be extended adequately, but at least by the period of the delay. If a period cannot be complied with for unforeseen reasons outside VMAN’s control, the period shall be extended accordingly. Any deadline shift shall have no influence on the agreed payment schedule.
5. Transfer of risk
Risk shall pass to the customer upon the goods being dispatched by VMAN. However, VMAN shall insure the goods against any loss or damage during transit at its own expense. The risk of an accidental destruction or accidental deterioration of the goods shall pass to the buyer upon delivery or, in case of a sale to destination according to the buyer’s instructions, upon delivery of the goods to the forwarding agent, the haulage contractor or any other person or institution responsible for the shipment of the goods. The goods shall be deemed delivered if the customer is in default with regard to acceptance of delivery.
6. Reserved ownership rights
Pending discharge of all receivables (including all net receivables under trade credit terms) held by VMAN against the customer either now or in the future for any legal reason, the customer shall furnish VMAN with the following collateral, which it may release at its own discretion upon request as soon as the value of the collateral exceeds that of the receivables by more than 20% on a sustained basis. The goods shall remain VMAN’s property and shall always be processed or modified on behalf of VMAN as the producer but without any obligation for it. If VMAN’s (co-) ownership rights lapse as a result of the incorporation of its products in third-party products, the customer’s (co-) ownership rights to the new object shall be transferred to VMAN on a prorated basis (according to the invoice value). The customer shall store the goods in which VMAN holds (co-) ownership rights free of charge. Goods in which VMAN holds (co-) ownership rights shall be referred to hereunder as “goods subject to retained ownership rights”.
7. Acquisition of licenses and rights of use
The declarations of intent required for the acquisition of licenses and rights of use shall be subject to the condition precedent of full payment of the purchase price for the license. If the customer fails to pay the license price when it is due, VMAN may revoke the rights to use the software. In this case, the customer shall settle the invoice within 7 days of receipt of the notice of revocation. Failing this, the rights of use shall be deemed to have been revoked, in which case the customer shall de-install all copies of the software and immediately discontinue use thereof. The customer shall confirm in writing that it has de-installed the software and is no longer using it.
The revocation of rights of use shall not constitute rescission of the contract and not operate to restrict VMAN’s right to recover compensation for non-performance. If the customer resells the licenses or rights of use as part of its ordinary business operations, it hereby agrees to assign to VMAN in full all and any receivables arising from such resale or for any other legal reasons (insurance, tort) including all balances under trade credit terms by way of collateral.
Formal acceptance shall only be required to the extent VMAN provides services under project contracts or contracts for work which are services under contracts for work in the meaning of the German Civil Code. Services shall be considered accepted if the customer does not inform VMAN in writing about any defects within a period of ten days after having been notified by VMAN about their readiness for operation.
Partial services/deliveries shall be accepted separately. Commercial and purpose-oriented use of the services by the end customer shall be considered acceptance of the services. Acceptance by the customer shall mean that the customer has confirmed the services to have been essentially provided as stipulated. The customer shall not refuse acceptance because of minor defects. Defects shall be recorded in the acceptance report to be signed by both parties during acceptance and be remedied by VMAN under its warranty obligations. The customer may only refuse acceptance in case of faults of error class 1. Unless expressly agreed otherwise, the following error classes shall be deemed agreed upon:
9. Guarantee for hardware products
VMAN shall be liable for faults in the delivery/service during the warranty or limitation period granted by the manufacturer. The shall be communicated by VMAN on request. The warranty period shall be at least one year. VMAN warrants that delivered hardware products are free of any material or manufacturing faults which would significantly impair the value or suitability of these hardware products upon risk passing to the customer. VMAN furthermore warrants that delivered hardware products possess the qualities expressly warranted by VMAN in writing. As a general rule, VMAN does not warrant the products’ suitability for resale or a certain purpose. VMAN shall at its own discretion perform activities to remedy errors on the premises of the customer, VMAN the producer or a subcontractor. The customer shall grant VMAN reasonable time and opportunity to remedy the error. Failure to do so shall discharge VMAN of its obligations under the guarantee. If VMAN is not willing or able to remedy the error or supply replacements or if there are any unreasonably extended delays for reasons for which VMAN is responsible, the customer shall be entitled at its own discretion to terminate the contract or demand a corresponding price reduction. Discernible errors must be reported immediately after delivery or in the case of installation by VMAN immediately upon the customer putting the goods in question into operation. Errors shall be reported in writing, stating the type, date of occurrence and all other discernible details of the error. Invisible errors shall be reported in the same way no later than three workdays after being discovered.
The guarantee shall be forfeited if the goods are modified without VMAN’s approval, incorrectly installed, serviced, repaired used or exposed to conditions which do not comply with the installation and operating instructions of VMAN or the producer. If the goods are not installed by VMAN, the guarantee shall only apply if the customer proves proper installation. The warranty period commences with the date on which the goods are ready for productive use in the case of installation by VMAN or, in all other cases, upon delivery to the customer. If after examination the complaint is discovered to be unfounded, VMAN may charge the customer for the cost of such examination according to its prevailing customer service prices. Only the direct customer shall be entitled to assert claims under the guarantee against VMAN and such claims shall not be transferable.
10. Guarantee for software products/adjustments
VMAN shall be liable for faults in the delivery/service during the warranty or limitation period granted by the licensor/manufacturer of the software. The warranty period shall be communicated by VMAN on request. The warranty period for proprietary software shall be one year. As a general rule, software products as well as operating systems of third parties (third-party software) shall be passed on by VMAN on the basis and under the terms and conditions of a separate software transfer and licence agreement to be concluded between the third party and the customer. VMAN undertakes no warranty for third-party software. Warranty claims shall furthermore be excluded for software copies not supplied by VMAN as well as for software which is run on a computer system which does not meet the minimum hardware configuration and software requirements stipulated in the product description of the software.
11. Software licences / rights of use
The customer shall receive a non-exclusive and non-transferable right to use VMAN software, third-party software (i.e. software developed by an external vendor independent of VMAN) and the related documentation and later additions for internal purpose in conjunction with the products for which the software is supplied (all other rights to the software and documentation including copies and later additions shall remain with VMAN or the software vendor). The type and scope of the rights transferred shall depend on the respective vendor’s terms of license. The customer shall be responsible for ensuring that this software and documentation is not made available to third parties except with VMAN’s prior written approval. Copies may only be made for archiving purposes, as replacement or for the purpose of identifying errors; sentences 1 and 2 apply accordingly. Access to source programs shall be subject to a separate written agreement. If the originals bear copyright information, the customer shall also affix this information to the copies.
The customer undertakes to comply with German and US export regulations in the event that it exports the products bought and inform its own customers that German and US export regulations will apply to any exports.
If goods are delivered free of customs at the customer’s request, the customer shall hold VMAN harmless against any claims asserted against it by the customs authorities.