§ 1 Area of validity

1. Deliveries and services of visuSolution GmbH (in the following named “vS”) are based on these general terms and conditions.

• These general terms and conditions are valid for companies and consumers.

• Companies in the sense of these terms and conditions are natural and legal persons or partnerships with legal capacity who enter into a business relationship with vS in the exercise of their commercial or independent professional activity. Consumers as defined by these terms and conditions are natural persons who enter into a business relationship with vS without this being assignable of their commercial or independent professional activity.

• We only accept conditions of the customer which contradict or deviate from our terms and conditions if we expressly agree to their validity in writing.

§ 2 Offer and conclusion of contract

If an order is to be regarded as an offer in accordance with § 145 BGB, we can accept it within two weeks.

§ 3 Products / Software

1. Our products are subject to technical progress. We reserve the right to make technical changes and changes to the shape, colour and unit of weight within reasonable and customary commercial limits.

• The customer agrees that software is complex and not completely error-free. We do not take over any guarantee for the correctness of software. The customer is authorized to use the software in the purchased number of authorizations.

• As a precautionary measure, vS expressly points out that quality agreements according to the issued product descriptions take precedence over objective requirements.

• All Programs remain property of the seller. Programs, documentation and subsequent additions may not be made accessible to third parties without the previous written consent of the seller and may also not be copied or duplicated in any other way for own purposes unless a backup copy is made.

§ 4 Prices and Terms of Payment

1. Only the prices listed in the order confirmation of vS are valid. Additional services will be charged separately.

• All prices are net prices without sales tax, which the customer has to pay in addition in your respective legal height.

• As far as nothing else has been expressly agreed, the prices of vS apply ex works. Packaging and shipping cost will be charged separately.

• Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution cost for deliveries made 3 months or later after conclusion of the contract.

• Payments must be made within 14 days of the invoice date unless otherwise agreed. For the on-time payment it depends on the date of receipt of the money.

• If the customer is a merchant, vS is entitled to demand default interest of 8 (5 for consumers) % above the base interest rate p.a. from the due date, without prejudice to the possibility of claiming higher actual damages.

• The customer only has the right to offset if their counterclaims are found to be legally established or are undisputed. The customer shall only be entitled to exercise a right of retention to the extent that their counterclaim is based on the same contractual relationship.

• Payment of the purchase price shall be made exclusively to the account specified overleaf.

§ 5 Delivery

1. Delivery dates and periods require a written agreement in order to be effective and are always non-binding, unless expressly agreed otherwise. All delivery dates are subject to correct and punctual self-delivery to us.

• Without express instruction of the customer, vS is free to determine the mode of dispatch, the company commissioned with the dispatch and the dispatch route at its own discretion. The delivery of goods that cannot be shipped by parcel is free kerbstone.

• If the customer is in default of acceptance or if they culpably violates other duties to cooperate, vS is entitled to demand compensation for the damages incurred, including any additional expenses. Further claims remain reserved. Insofar as the above conditions exist, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.

• vS is entitled to partial deliveries and partial services if these are reasonable for the customer.

• If the goods are dispatched to the customer at the customer’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest upon leaving the factory/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs.

§ 6 Damages in transit

If goods are delivered with obvious damage to the packaging or the contents, the customer must notify vS immediately after receipt of the goods under phone: +49 (0)39361 967 17, irrespective of his warranty rights, so that vS can assert the transport damage against the commissioned logistics company. If the customer is a businessman and the contract is part of his business, § 377 HGB (German Commercial Code) applies.

§ 7 Retention of title

1. The object of purchase remains the property of vS until full payment of all claims arising from the supply contract has been made. This applies to all future deliveries, even if vS does not explicitly invoke this clause. vS is entitled to reclaim the purchased goods if the customer behaves in breach of the contract, particularly in case of payment default or violation of the agreed contractual obligations. A return of the goods by vS does not constitute a withdrawal from the contract, unless this is expressly declared.

• Prior to the full transfer of ownership, any pledge, security assignment, processing, or transformation of the purchased goods is not permitted without the express written consent of vS.

• Until the transfer of ownership is completed, the customer is obligated to handle the purchased goods with care and to insure them at their own expense against theft, fire, and water damage to the new value. In the event of damage, the customer hereby assigns any claims against the insurance to vS.

• The customer is entitled to resell the goods subject to retention of title in the ordinary course of business. The customer hereby assigns to vS any claims arising from the resale of the goods, up to the total invoice amount (including VAT) agreed upon with vS. This assignment applies regardless of whether the goods are sold without or after processing. The customer remains authorized to collect the claim even after the assignment, as long as they are fulfilling their payment obligations. vS undertakes not to collect the assigned claims as long as the customer is not in default, no application for the opening of insolvency proceedings has been filed, and no suspension of payments exists.

• Any processing or transformation of the purchased goods by the customer before the transfer of ownership will always be considered as done for vS. If processing is carried out with other goods not owned by vS, vS will acquire co-ownership of the new goods in proportion to the value of the purchased goods at the time of processing in relation to the other processed items. The same applies if the purchased goods are inseparably mixed with other goods not owned by vS.

§ 8 Statutory warranty

1. there is a statutory right of liability for defects for delivered goods. The warranty shall be governed by the statutory provisions and the following regulations.
2. If the customer is acting as a businessman, the following shall apply: his claims based on defects in the goods shall become statute-barred one year after receipt of the goods; the statutory limitation period for claims under a right of recourse shall remain unaffected. Furthermore, the limitation period does not start again if a replacement delivery has been made within the scope of liability for defects. Furthermore, in the case of used goods, rights and claims based on defects are excluded.

• the limitations of liability and shortening of time limits mentioned in clause 2 do not apply to

1. to claims for damages and reimbursement of expenses of the customer,
2. in the event that the seller has fraudulently concealed the defect,
3. for goods which have been used in accordance with their customary use for a building and have caused its defectiveness,
4. for any existing obligation of the seller to provide updates for digital products, in the case of contracts for the delivery of goods with digital elements.

• damages caused by improper or contrary to contract measures of the customer during installation, use, connection, operation or storage do not justify a claim against vS.
• before returning defective goods, the customer has to completely save and delete data on it at his own expense and risk.

§ 9 Repair

In the event that an existing fault or defect must be repaired, we refer you to our separately listed repair and service conditions.

§ 10 Data protection

Information on the type, scope, location and purpose of the collection, processing and use of the personal data necessary for the execution of orders we instruct in the separate data protection declaration.

§ 11 Right of revocation

If the customer as consumer concludes a contract with vS and if the customer and vS exclusively use means of telecommunication (e.g. order by e-mail, telephone or fax) for the contract negotiations and the conclusion of the contract, the customer is generally entitled to a statutory right of revocation.

§ 12 Liability

1. vS is liable according to the legal regulations for damages of the customer,

1. caused by vS or its vicarious agents intentionally or grossly negligently,

• are the result of the absence of a guaranteed quality of the service,

• which are based on a culpable breach of essential contractual obligations (see paragraph 2),

• are the result of culpable injury to health, body or life, or

• for which liability is provided in accordance with the Product Liability Act.

In the case of a merely slightly negligent breach of an essential contractual obligation (see paragraph 2), the liability of vS is however limited to such damages, the occurrence of which must be typically and predictably expected in the context of the provision of the agreed services. This limitation shall not apply if damages are the result of an injury to health, body or life or the result of the absence of a guaranteed quality of the service.

• Essential contractual obligations are those contractual obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer may regularly rely and whose violation would endanger the achievement of the purpose of the contract on the other hand.
•  In all other respects, the liability of vS and its vicarious agents is excluded regardless of the legal basis.

•  In the event of a loss of data for which vS is responsible, vS shall only be liable for such damages as would have occurred despite regular data backups which are reasonable in view of the nature of the data, the risk of loss and the impending consequences of a loss of data.

1. visuSolution GmbH does not guarantee the functionality of the visuReal® program if individual software updates are omitted.

• vS GmbH shall not be liable for the loss of data during the transmission of the update, during modification or repair of technical prerequisites by third parties.

§ 13 Place of performance and jurisdiction

1. Place of performance and exclusive place of jurisdiction for all disputes arising from this contract shall be our place of business, unless otherwise stated in the order confirmation.

• German law shall apply exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods, also in cross-border delivery traffic. If the customer is a consumer, the mandatory consumer protection provisions which apply in the country in which the customer has his habitual residence shall also apply if they offer the customer further protection

§ 14 Severability clause

Should individually provisions in these terms and conditions be or become ineffective or contain a gap, the remaining provisions shall remain unaffected by this. The parties undertake to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic purpose of the invalid provision or fills this gap.