Lörrach, dated: 11/2024
General Terms and Conditions for Deliveries and Services of Visall GmbH
Section 1 Scope
1.1 Unless agreed otherwise in writing, the following General Terms and Conditions for Deliveries and Services (Terms and Conditions) apply exclusively to all deliveries and services — including future ones — made to the Customers listed in Section 1.2. The customer’s terms and conditions shall not apply, even if the Customer refers to them in their business correspondence and we do not expressly object to their inclusion in writing.
1.2 These Terms and Conditions (GTC) only apply to entrepreneurs within the meaning of Section 14 of the German Civil Code [BGB], legal entities under public law and special funds under public law (hereinafter referred to as the ‘Customer’).
Section 2 Contracting parties
Contracts are concluded with Visall GmbH, Hartmattenstraße 19, 79539 Lörrach, Germany, court of registration: Freiburg Local Court (Amtsgericht), HRB 702294 (Visall).
Section 3 Offers and conclusion of contract
3.1 Our offers are non-binding. The illustrations and descriptions in our catalogue, our price list and in our brochures and on the domains www.visall.de and www.myoslow.de are also non-binding.
3.2 The Customer is bound to their order for a period of 14 days from receipt by us, unless otherwise stated in the order. Orders can be placed via the internet, the electronic online order client, by telephone or fax.
A prerequisite for the conclusion of any contract is that the Customer is registered with us. The Customer must first register at www.visall.de before placing they place their order. After a plausibility check of the entered details, the Customer will be activated.
3.3 Contracts are concluded on our acceptance of the Customer’s order. Acceptance is confirmed by our order confirmation or delivery. If the Customer places an order via the internet (via our webshop or using the Visall online order client), we will promptly confirm receipt of the order electronically. However, the order confirmation does not yet indicate acceptance of the contract.
3.4 Unless agreed otherwise, customary or minor, technically unavoidable deviations in quality, colour, dimensions or weight are not deemed to be defects.
3.5 Our illustrations, drawings, colour, weight and dimension specifications are only approximate values unless a) they are expressly designated as binding or b) they are essential.
3.6 Our product descriptions do not constitute warranties in the legal sense.
3.7 The contract language is German.
3.8 The following applies to orders placed via our webshop: The order text is not stored by us and can no longer be retrieved via the webshop on the internet after the order process has been completed. However, you can print out your order details immediately after submitting the order. Orders placed via the Visall order client are stored by the program locally on the user’s computer and can be called up at any time provided that the program is saved and functional.
Section 4 Prices
4.1 All prices are quoted in euros and, unless otherwise agreed, are subject to packaging and shipping costs as well as any applicable value added tax at the statutory rate. The Customer pays a flat rate for the delivery service.
4.2 Our prices are updated on an ongoing basis. The price shown to the Customer when they place the order applies, unless we have a separate price agreement with the Customer.
Section 5 Payment, inability to pay on the part of the customer, default
5.1 German Customers shall pay exclusively via SEPA Business to Business Direct Debit. They declare their consent to this procedure when registering on the domain www.visall.de. Upon registration, the Customer receives all necessary information about the procedure including the creditor ID from Visall. The direct debit is collected 3 days after receipt of the invoice (due date).
5.2 Customers based outside Germany must make payments to our bank account within 14 days of receipt of the invoice without any deductions. The date of irrevocable receipt of payment on our account is decisive for the timeliness of payment.
5.3 Invoices are generally issued by collective invoice at the beginning of each calendar month retrospectively for the calendar month just ended. In individual cases, however, we are also authorised to invoice deliveries separately.
5.4 If it becomes apparent after conclusion of the contract that Visall’s claim for payment is jeopardised by the Customer’s inability to pay, Visall is entitled to refuse its performance and preparatory activities. The right to refuse performance lapses if the payment is made or security is provided in this regard. Visall may set the Customer a reasonable deadline for payment/provision of security. After the unsuccessful expiry of the deadline, Visall is entitled to withdraw from the contract.
5.5 In the event of late payment, we shall charge interest from the due date at a rate of 8 percentage points above the base rate, but at least 10%. If we can prove that we have incurred higher damage caused to the delay, we are entitled to claim it.
5.6 The Customer may only offset or assert a right of retention if their counterclaims have been legally established or are undisputed.
Section 6 Delivery and transfer of risk, reservation of self-supply, partial deliveries
6.1 In the absence of a special agreement, delivery shall be ex works or ex warehouse (EXW according to Incoterms® 2020). The risk also passes to the Customer in accordance with EXW if we organise the delivery for the Customer as a service.
6.2 Our obligation to deliver is subject to timely and correct delivery to us by our suppliers. Visall is not in default on deliveries to the Customer if a supplier of Visall does not deliver to it correctly or on time, unless we are responsible for the incorrect or delayed own delivery. In such cases, we may withdraw from the Contract. No procurement risk is assumed.
6.3 Partial deliveries and services are permitted to a reasonable extent. Such permissible partial deliveries and services may be invoiced by Visall on an individual basis.
Section 7 Delivery times, force majeure
7.1 Delivery periods are approximate only. The delivery period is deemed to have been met if the goods are ready for dispatch by the end of the period (deadline).
7.2 In the event of a delay in delivery, our liability in case of simple negligence is limited to 0.5% per full week of delay, but to a maximum of 5% of the net invoice amount of the part of the delivery affected by the delay. This does not affect the claim for damages in lieu of performance in accordance with Subsection 10.1.
7.3 Unforeseen, unavoidable events for which we are not responsible, e.g. force majeure, strikes and lockouts, operational disruptions, difficulties in procuring materials and transport delays, shall extend the delivery period by the duration of the disruption and its consequences. This also applies if the obstacles occur at our suppliers or during an ongoing delay. If the disruption is not only of temporary duration, both contracting parties are entitled to withdraw from the contract. Claims for damages are excluded in the cases set out in this Subsection 7.3.
Section 8 Retention of title
8.1 We retain title to the delivered goods until all payments arising from the business relationship with the Customer have been received in full. If a current account relationship exists, the retention of title extends to the recognised balance.
8.2 The handling and processing of the reserved goods (subject to retention of title) by the Customer shall always be carried out on our behalf without any obligation on our part. If the goods are mixed or combined with other goods, we shall acquire co-ownership of the new goods in the ratio of the net invoice value of the reserved goods to that of the other materials. The newly created item shall be deemed to be reserved goods within the meaning of this Section 8.
8.3 The Customer is entitled to resell the reserved goods or the new goods in the ordinary course of business; however, they hereby assign to us all claims in full that accrue to them from their resale or further use.
8.4 The Customer is entitled to collect the claims assigned to us as long as they meet their payment obligations from the proceeds received.
8.5 If the Customer no longer meets their payment obligations to us, we may revoke the authorisation to resell and reuse and demand that the Customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs their debtors of the assignment. The taking back of reserved goods does not constitute a withdrawal from the contract. If we declare our withdrawal, we are entitled to sell the goods on the open market.
8.6 We must be informed immediately in writing of any access by third parties to the reserved goods. Costs incurred from the defence against access shall be borne by the Customer if they cannot be recovered from the third party.
8.7 If the value of the securities exceeds our claims by more than 10%, we will release our securities to this extent at our discretion if so requested by the Customer.
Section 9 Rights in respect of defects
9.1 The Customer undertakes to inspect the goods for any material defects upon receipt. They shall inform us in writing of any obvious material defects immediately, but at the latest within 8 days of receipt of the goods. Hidden material defects shall be reported within 8 days of their discovery at the latest. If these deadlines are exceeded, all claims and rights arising from the liability for defects for these material defects shall lapse.
9.2 Defects in the goods do not include damage caused by the Customer through improper handling or handling contrary to the Contract. In this respect, the information provided by the manufacturer of the goods is decisive for assessing whether the handling was improper or in breach of contract. In particular, damage caused by refraction errors or workshop breakage does not count as a defect in the goods.
9.3 In the event of a justified notice of defects, we will, at our discretion, either deliver a replacement or repair the goods. Should the subsequent fulfilment fail, the Customer can demand a reduction in the price or — in the case of significant defects — withdraw from the contract. In addition, the Customer is then also entitled to demand compensation in lieu of performance in accordance with Subsection 10.1.
9.4 The limitation period is 12 months from the transfer of risk unless we are liable for physical injury, have breached our obligations wilfully or through gross negligence, have fraudulently concealed the defect or have assumed a warranty going beyond this, or a longer statutory period is mandatory.
Section 10 Liability
10.1 Claims for damages – of any kind – against us are excluded if we, our legal representatives or vicarious agents have caused the damage through simple negligence.
10.2 This exclusion of liability does not apply to physical injury, the provision of a contractual warranty or a breach of material contractual obligations. Material contractual obligations are obligations for which fulfilment is essential for the proper execution of the contract and on the compliance of which the Customer regularly relies and may rely and the breach of which would jeopardise the achievement of the contractual purpose.
10.3 If a warranty is assumed, however, our liability is limited to the scope of the warranty and, in the event of a simple negligent breach of material contractual obligations, to the foreseeable damage typical for this type of contract.
10.4 Claims under the Product Liability Act [ProdHaftG] remain unaffected.
10.5 Insofar as Visall’s liability is excluded or limited on the basis of the provisions set out in Section 10, this also applies to the personal liability of its employees, workers, representatives and vicarious agents.
10.6 With the exception of claims in tort, claims for damages asserted by the Customer for which liability is limited in accordance with Section 10 shall become time-barred one year after the start of the statutory limitation period.
Section 11 Property rights
11.1 The catalogue, price lists and brochures distributed by us as well as the website operated by us including their entire content, in particular texts, photos, images, graphics, illustrations and any software, are all protected against unauthorised use by industrial property rights, in particular copyrights, name and image rights, trademarks, patents or utility models in force. The rights to these are held by us or our licensors.
11.2 Use beyond the selection, purchase and resale of goods requires our prior written consent or, if we do not hold the respective rights, the prior written consent of the rights holder.
Section 12 Data protection
Visall and the Customer shall comply with the statutory provisions on the protection of personal data. The Customer is obliged to create the legally prescribed conditions, e.g. to obtain consents, so that Visall can provide the services without breaching any legal provisions. The Customer is advised to take appropriate measures, as far as possible, to prevent Visall from accessing personal data or trade secrets of the Customer when providing the services. If it cannot be prevented that Visall is granted access to Customer’s personal data, the Customer is obliged to inform Visall in good time before the services are provided. The Customer and Visall then agree on the measures to be taken.
Section 13 Confidentiality
13.1 The documents, know-how, data and/or other information (‘Confidential Information’) made available to each other by the contracting parties must be treated as confidential, i.e. in particular not made accessible to third parties and used exclusively for the purpose for which they were provided and only made accessible to those employees who need them to fulfil the underlying purpose, provided that they are bound in writing to maintain an at least equivalent level of confidentiality. Confidential Information of Visall includes, in particular, price lists, contract terms and conditions and notifications of incidents. The contracting party receiving the Confidential Information shall be liable for any breach of these obligations by its employees, affiliated companies and subcontractors.
13.2. This confidentiality obligation shall not apply to Confidential Information which can be proven to have been
- public domain or became public domain at a later point through no fault of the receiving contracting party;
- lawfully made available to the receiving contracting party by a third party without breach of any confidentiality obligation;
- developed independently by the receiving contracting party;
- already known to the receiving contracting party prior to the entry into force of this contract without any obligation of confidentiality, or
- disclosed due to a binding official or judicial order or a law (in which case the receiving contracting party must inform the disclosing contracting party of this requirement in good time).
13.3 This confidentiality obligation continues for 5 years after the termination of the business relationship.
Section 14 Final provisions
14.1 Should one or more of the above provisions of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.
14.2 The exclusive place of jurisdiction for all disputes arising out of or in connection with the Customer’s contract is our registered office in Lörrach. However, we are also entitled to prosecute the Customer at their place of jurisdiction.
14.3 German law applies exclusively. The UN Convention on Contracts for the International Sale of Goods of 11 April 1980 is excluded.
Additional conditions for the sale of glasses to end consumers, incidents and product conformity
Section 15 Supply of glasses to end consumers
The Customer shall instruct the end user, who is the purchaser of the glasses, in the proper use of the glasses, including correct care and handling. The Customer informs the end user of any restrictions on use and risks. This includes, in particular, restrictions on driving a motor vehicle and the information that lenses are generally not unbreakable. The manufacturer provides the Customer with information about its products (fitting instructions, instructions for use, restrictions on use, warnings, etc.) in its product catalogues (sales price list, product information).
Section 16 Incidents
If the Customer receives information from healthcare professionals or its customers about suspected Incidents in connection with a Visall product supplied by the Customer, the Customer shall forward this information to Visall without delay. For the purposes of this provision, ‘Incident’ means a malfunction or deterioration in the properties or performance of a product, including errors in use due to ergonomic features, inadequacy of information provided by Visall or an undesirable side effect. The Customer shall provide Visall with all necessary information about the product and suspected Incidents from its customer register. Statutory obligations and obligations under European Union law remain unaffected by this.
Section 17 Product conformity with Regulation (EU) 2017/745, information, corrective action
17.1 The products supplied by Visall to the Customer comply with the requirements of Regulation (EU) 2017/745 of the European Parliament and of the Council on medical devices (Regulation (EU) 2017/745), also known as the EU Medical Device Regulation. We maintain a systematic procedure for monitoring the product after it has been placed on the market. Visall prepares and maintains declarations of conformity for its products in accordance with Regulation (EU) 2017/745 EU and affixes the CE marking to the products. Visall shall provide the Customer with the necessary information, e.g. instructions for use, on or with the product in accordance with Regulation (EU) 2017/745, unless this is exceptionally dispensable under this regulation.
17.2 The Customer shall notify Visall immediately if the Customer believes or has reason to believe that any Visall-brand pair of glasses (product) made available on the market by the Customer does not comply with Regulation (EU) 2017/745 and/or the medical device poses a serious risk. The Customer shall cooperate with Visall and the competent authorities to ensure that, if required, the necessary corrective action is taken to establish the product’s conformity with Regulation (EU) 2017/745, to withdraw it from the market or to recall it. Corrective action is understood to be action within the meaning of Regulation (EU) 2017/745, i.e. measures to eliminate the cause of a potential or existing lack of conformity with this Regulation or any other undesirable situation.
17.3 The Customer undertakes to provide the competent authority, on request, with all information and documents available to the Customer that are necessary to demonstrate the conformity of the product purchased from Visall with Regulation (EU) 2017/745. The Customer shall inform Visall immediately about the request of the competent authority. Visall and the Customer shall work together to process the request of the competent authority. Visall is entitled to provide the relevant or requested information directly to the competent authority.
17.4 The Customer shall co-operate with the competent authorities, at their request, in all measures to avert risks associated with the products purchased from Visall and made available on the market. The Customer shall provide samples of the product free of charge to a competent authority upon request or, if this is not practicable, grant the authority access to the product.
17.5 In the event of non-compliance with the above provisions and the obligations arising from Regulation (EU) 2017/745, the Customer shall inform VISALL immediately of this fact and the resulting corrective action.
Supplementary terms and conditions for consulting and training services
The following terms and conditions apply in addition, where applicable. Otherwise, the above General Terms and Conditions apply to contracts with us, unless stipulated differently or with priority below.
Section 18 Consulting and training services for opticians
18.1 Consulting and training are provided as services. The content, conditions and prices applicable to the order are set out in detail in the underlying individual contract. The subjects matter of orders may include, among other things:
- Business analysis, controlling, target planning,
- Location analysis, best practice
- Online marketing
- Event support
- Glass, product and sales training and supporting measures
- Organisation, management and personnel
18.2 Consultancy and training services are provided by us or selected external partner companies.
18.3 Unless otherwise agreed, the place of performance shall be our registered office.
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