Home

General Conditions of Sale and Delivery

I. General

  1. The scope of deliveries and/or services (hereinafter referred to as “Supplies”) shall be exclusively determined by our written declaration. Our customer’s conditions of purchase shall not apply.
  2. We herewith reserve all intellectual and industrial property rights and/or copyrights pertaining to our cost estimates, drawings and other documents (hereinafter referred to as “Documents”). The Documents may only be made accessible to third parties with our prior consent and shall, upon request, be returned without undue delay if the contract is not awarded. Sentences 1 and 2 shall apply mutatis mutandis to documents of the Purchaser; these may, however, be made accessible to third parties to whom we may rightfully transfer Supplies.
  3. Partial deliveries shall be allowed, unless they are unreasonable to accept for the Purchaser.
  4. If state export regulations affect the fulfilment of a contract, our delivery commitment is with the proviso that we obtain all the required approval.
  5. The Purchaser consents that his data will be stored and processed by us for the purpose of performing the agreement. We shall be obliged to treat this data in compliance with the German Federal Data Protection Act (“BDSG”).
  6. These written conditions constitute the conditions of contract. Any alteration thereof must be recorded in writing and if they are not they shall have no effect.

II. Software

  1. If we only supply software, this is deemed to have been accepted four weeks following complete delivery of all data carriers and documentation (Sec. 640 German Civil Code) (“BGB”
  2. The Purchaser shall have the non-exclusive right to use our software, provided that it remains unchanged, is used within the agreed performance parameters, and on the agreed equipment. The Purchaser may make one back-up copy without express agreement.
  3. Our software is protected by national and international copyright law. We shall retain all rights to the data and/or individual parts thereof, in particular the right to make mechanical or electronical copies and to rent, lease, lend, alter, store and process in electronic systems.
  4. The Purchaser is entitled to use a copy on a single computer, to make a copy for archiving purposes or to copy the software onto the hard disk of its computer and to archive the original data carrier, to use the software on a network, provided it has a licenced copy of the software for every computer which can access the software via the network.
  5. Any other copying of data or its use on more than one computer requires our prior written consent.
  6. The Purchaser is not entitled to copy the documentation which is delivered with the software, nor to lend or rent the software, to issue sub-licences, to reverse engineer the software, to decompile or to dissasemble the software, or in any other way to attempt to allow access to the source code of the software, to alter the software, to translate the software or to create products derived from the software. Should the Purchaser receive a replacement data carrier or an update version to replace a previous version of the software, they are obliged to destroy all copies of previous versions and to provide proof of destruction if so requested or to confirm in writing.
  7. The Purchaser is contractually bound to pay us a contractual penalty amounting to €20,000 for every culpable violition of the above mentioned provisions. We reserve the right to claim further additional damages.
  8. We shall not be liable for damages howsoever caused arising from the use of the software or the inability to use the software. This also applies to indirect consequential or similar damages, including damages for the loss of profit and/ or damages resulting from the loss of data. This shall not apply in cases of mandatory liability, e.g. in compliance with the German Product Liability Act (“Produkthaftungsgesetz”), based on intent, gross negligence, injury to human life, body or health or violition of significant contractual obligations. Our liability shall however be limited to the purchase price paid for the software. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
  9. In addition, the further provisions of this General Condiditons of Sale and Delivery shall apply.

III. Prices and Terms of Payment

  1. Prices shall be ex works and exlude packaging and loading; value added tax shall be added at the then applicable rate.
  2. Our invoices are payable net, without any deductions, upon issue of invoices.
  3. The Purchaser may set off only those claims that are undisputed and have been legally agreed in writing as being such or against which no legal recourse is possible.

IV. Retention of Title

  1. Items pertaining to the Supplies (“Retained Goods“) shall remain our property until each and every claim we have against the Purchaser on account of the business connection has been fulfilled. If the combined value of our security interests exceeds the value of all secured claims by more than 20%, we shall release a corresponding part of the security interest if so requested by the Purchaser.
  2. For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.
  3. If the Purchaser resells Retained Goods, it shall at this stage, as an act of security, already assign to us his future claims from the resale against his customer with all accessory rights – including any sequestration of the balance - without requiring any special declaration at a later date. Should the Retained Goods be resold together with other items, without having agreed a separate price for the Retained Goods, the Purchaser shall, with precedence over all other claims, assign his claim to us for that part of the total sum due which corresponds to the price of the Retained Goods which we invoiced to the Purchaser.
  4. Upon substantiation of a justifiable interest, the Purchaser shall provide us with all necessary information and documentation required for the assertion of its rights against the customer.
  5. Until revoked, the Purchaser is authorised to collect the assigned claims arising from the resale. Where there is an important reason, in particular payment default, suspension of payments, commencement of insolvency proceedings, protest of a bill of exchange or substantiated evidence of excessive debts or threatened insolvency of the Purchaser, we are entitled to revoke the Purchaser’s debt recovery authorisation. In addition, after prior warning and following the lapse of a reasonable period of time, we can disclose the assignment of security, make use of the asigned claims and demand the disclosure of the assignment of security to the customer.
  6. It is permitted for the Purchaser to process the Retained Goods, to use them in conjunction with or to connect them to other items. The processing, mixing or connecting (hereinafter referred to as “processing”) is effected for us. The Purchaser shall keep the new object for us with the circumspection of an orderly merchant. The new object shall be regarded as “Retained Goods”.
  7. In the event of processing with other objects which are not our property, we are entitled to a partial share of the new object to the value of the part, which results from the ratio of the value of the processed, mixed or connected (hereinafter referred to as processed) Retained Goods to the value of the other processed goods at the time of processing. If the Purchaser acquires sole ownership of the object, the Purchaser and we agree, that the Purchaser grants us partial ownership of the new object which was created as a result of the processing, to the ratio of the value of the processed Retained Goods to the other processed goods at the point of time of the processing.
  8. In the event of the sale of the new object, the Purchaser shall, as an act of security, assign to us its claim resulting from the resale against the customer with all accessory rights, without requiring any further special declaration. The assignment of claims is however limited to the corresponding value of the processed Retained Goods invoiced by us. Our part of the assigned claim shall receive precedence. The provision under Art. IV. No. 5 shall apply to direct debit authorisation as well as its revocation conditions.
  9. Should the Purchaser connect the Retained Goods to plots of land or movable objects, he shall, as an act of security, assign his claims to us at the time the connection takes place, without requiring any further special declaration, including those claims he is entitled to as payment for the connection, with all accessory rights, to the proportionate value of the connected Retained Goods to the other connected goods.
  10. The Purchaser shall inform us forthwith of any seizure or other act of intervention by third parties.
  11. Where the Purchaser fails to fulfil its duties, including failure to make payments due, we shall, in the case of continued failure following expiry of a reasonable time given to the Purchaser, be entitled to withdraw from the contract and take back the Retained Goods; the statutory provisions that a time limit is not required remain unaffected. The Purchaser shall be obliged to surrender the Retained Goods.

V. Delivery & Acceptance Dates; Delay

  1. Delivery dates can only be observed if all Documents to be supplied by the Purchaser, necessary permits and releases, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. Unless these conditions are fulfilled in time, times set shall be extended appropriately; this shall not apply where we are responsible for the delay.
  2. If non-observance of the delivery date is due to force majeure such as mobilization, war, rebellion or similar events, i.e. strike or lockout, such times set for delivery shall be extended accordingly.
  3. Delivery dates are conditional on ourselves being delivered in time and in full.
  4. If we are responsible for the delay (hereinafter referred to as “Delay”) and the Purchaser demonstrably suffered a loss therefrom, the Purchser may claim compensation as liquidated damages of 0.5% for every completed week of Delay, up to a total of no more than 5% of the price of that part of the Supplies which because of the Delay could not be put to the intended use.
  5. Purchaser’s claims for damages due to delayed Supplies, as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above, shall be excluded in all cases of delayed Supplies, even upon expiry of a time set to us to effect the Supplies. This shall not apply in cases of mandatory liability based on intent, gross negligence, or due to injury of human life, body of health. Cancellation of the contract by the Purchaser based on statute shall be limited to cases where we are responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
  6. At our request, the Purchaser shall declare within a reasonable period of time whether they withdraw from the contract due to the delay in delivery or if they insist on the Supplies to be carried out.
  7. If dispatch or delivery is delayed at the Purchaser’s request by more than one month after notice of the readiness for dispatch was given, the Purchaser may be charged, for every month commenced, storage costs of 0.5% of the price of the items of the Supplies, up to a total of no more than 5%. The parties to the contract shall be at liberty to prove that higher or, as the case may be, lower storage costs have been incurred.

VI. Transfer of Risk

  1. The risk shall pass to the Purchaser on the day the Supplies are declared ready for dispatch, upon delivery by a third party – also for freight free deliveries – at the latest when the Supplies are handed over to the shipping company, the haulage contractor or whatever person or organisation is responsible for effecting delivery.
  2. In the event that an inspection of the goods to be delivered is required, (compare Art. II No. 1), the provisions set out in Par. 644 and thereafter of the German Civil Code (“BGB”) shall remain unaffected.

VII. Receiving of Supplies

  1. The Purchaser shall not refuse to receive Supplies due to minor defects.

VIII. Defects as to Quality; Liability for Defects; Limitation of Claims

  1. All Supplies where a Defect becomes apparent within the limitation period shall, at our discretion, be repaired, replaced or provided again free of charge irrespective of the period of operation, provided that the reason for the Defect had already existed at the time when the risk passed.
  2. Claims based on Defects are subject to a limitation period of 12 months. This shall not apply where longer periods are prescribed by law (buildings and things used for buildings and/or other contructions, right of recourse, building defects) as well as in cases of injury to human life, body or health, or where we intentionally or grossly negligently fail to fulfil our obligation or fraudulently conceal a Defect. The legal provisions regarding suspension of expiration (“Ablaufhemmung”), suspension (“Hemmung”) and recommencement of limitation periods remain unaffected.
  3. The Purchaser shall notify Defects to us in writing and without undue delay.
  4. In the case of Defects, payments may only be withheld to a reasonable extent which shall be in relation to the Defect occurred. Should a Defect prove to have been non-existent and the notification thereof thereby unjustified, we shall be enitled to demand reimbursement from the Purchaser of the expenses we incurred, including interest amounting to 8% points above the respective basic interest rate.
  5. We shall first be given the opportunity implement the contract (“Nacherfüllung”)within a reasonable period of time.
  6. If implementation of the contract is unsuccessful, the Purchaser shall be entitled to withdraw from the contract or reduce the remuneration, irrespective of any claims for damages it may have according to Art. XI.
  7. There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear and tear or damage arising after the transfer of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective workmanship, inappropriate building ground or from particular external influences not assumed under the contract, or from non-reproducible software errors. Warranty claims based on Defects attributable to improper modifications or repair work carried out by the Purchaser or third parties and the consequences thereof shall be likewise excluded.
  8. The Purchaser shall have no claim with respect to expenses incurred in the course of implementation of the contract, including costs of travel and transport, labour and material, to the extent that expenses are increased because the subject-matter of the Supplies was subsequently brought to another location than the delivery address, unless doing so complies with the intended use of the Supplies. If we are obliged to pay the return transport costs, the Purchaser is only entitled to receive reimbursement of the transport costs which were actually invoiced and this shall amount be limited to the customary costs.
  9. The Purchaser’s right of recourse against us pursuant to Sec. 478 of the German Civil Code (“BGB”) in the case of the purchase of consumer goods, is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects. Moreover, the ruling under No. 8 above shall apply mutatis mutandis to the scope of the right of recourse the Purchaser has pursuant to Sec. 478, para. 2 German Civil Code.
  10. Furthermore, the provisions of Art. XI shall apply in respect of claims and damages. Any other claims of the Purchaser against us or any such claims exceeding the claims provided for in this Art. VIII, based on a Defect, shall be exluded.

IX. Intellectual and Industrial Property Rights and Copyright; Defects in Title

  1. Unless otherwise agreed, we shall provide the Supplies in the country of the place of destination free from third parties’ intellectual and industrial property rights and copyrights (hereinafter referred to as “IPR“). If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR with respect to the Supplies made by us and then used in conformity with the contract, we shall be liable to the Purchaser within the time period stipulated in Art. VIII No. 2 as follows:
  2. We shall choose whether to acquire, at our own expense, the right to use the IPR with respect to the Supplies concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this would be unreasonable to demand from us, the Purchaser may cancel the contract or reduce the remuneration pursuant to the applicable statutory provisions.
  3. Our liability to pay damages shall be governed by Art. XI.
  4. The above mentioned obligations shall only apply if the Purchaser immediately notifies us of any such claim asserted by the third party in writing, does not concede the existence of an infringement and leaves any protective measures and settlement negotiations to our discretion. If the Purchaser stops using the Supplies in order to reduce the damage or for other good reason, it shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.
  5. Claims of the Purchaser shall be excluded if it is itself responsible for the infringement of an IPR.
  6. Claims of the Purchaser shall also be excluded if the infringement of the IPR is caused by specifications made by the Purchaser to a type of use not foreseeable by us or to the Supplies being modified by the Purchaser or being used together with products not provided by us.
  7. In addition, with respect to claims by the Purchaser pursuant to No. 2 above, Art. VIII Nos. 4, 5 and 9 shall apply.
  8. Where other defects in title occur, Art. VIII shall apply mutatis mutandis.
  9. Any other claims of the Purchaser against us or our agents or any such claims exceeding the claims provided for in this Art. IX, based on a defect in title, shall be excluded.

X. Impossibility of Performance; Adaptation of Contract; Supplier Rescission and Compensation for Damages

  1. If it is impossible to carry out Supplies, the Purchaser shall be entitled to claim damages, unless we are not responsible for the impossibility. The Purchaser’s claim for damages shall, however, be limited to an amount of 10% of the value of the part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of mandatory liability based on intent, gross negligence or injury of life, body or health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The right of the Purchaser to cancel the contract shall remain unaffected.
  2. Where unforeseeable events within the meaning of Art. V No. 2 substantially change the economic importance or the contents of the Supplies or considerably affect our business, the contract shall be adapted taking into account the principles of reasonableness and good faith. Where doing so is economically unreasonable, we shall have the right to withdraw from the contract. If we intend to exercise our right to withdraw from the contract, we shall notify the Purchaser thereof without undue delay after having realised the repercussions of the event; this shall also apply even where an extension of the delivery period had previously been agreed with the Purchaser.
  3. If delivery is not possible for either us or the Purchaser, we shall be entitled to payment for services already rendered.
  4. We reserve the right to withdraw from the contract in writing, if the Purchaser has made incorrect statements regarding his person or his creditworthiness, as well as in the event of suspension of payments, commencement of insolvency proceedings, protest of a bill of exchange or substantiated evidence of excessive debts or threatened insolvency of the Purchaser. Should we make use of our rescission rights, the Purchaser shall pay us damages amounting to 25% of the price of the Supplies. The Purchaser is entitled to prove that damages did not occur or are considerably lower. We are at liberty to prove and claim for higher damages.

XI. Other Claims for Damages; Limitation of Claims

  1. Other claims for damages and reimbursement of expenses the Purchaser may have (hereinafter referred to as “Claims for Damages”), based on whatever legal reason, including infringement of duties arising in connection with the contract or tort, shall be excluded unless otherwise stipulated in these General Conditions of Sale and Delivery.
  2. The above shall not apply in the case of mandatory liability, e.g. under the German Product Liability Act (“Produkthaftungsgesetz”), in the case of intent, gross negligence, injury of life, body or health, or breach of a significant contractual provision (“wesentliche Vertragspflichten”). However, Claims for Damages arising from a breach of a condition which goes to the root of the contract shall be limited to the foreseeable damage which is intrinsic to the contract, unless caused by intent or gross negligence or based on liability for injury of life, body or health. The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.
  3. If the Purchaser has a valid Claim for Damages according to this Art. XI, it shall be time-barred upon expiration of the limitation period applicable to the Defects pursuant to Art. Viii No. 2. In the case of Claims for Damages under the German Product Liability Act, the statutory provisions governing limition periods shall apply.

XII. Court of Jurisdiction; Applicable Law

  1. If the Purchaser is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly out of the contract shall be the place of business of our head office. However, we may at our sole insistence also bring an action at the Purchaser’s place of business. The German courts shall have exclusive jurisdiction.
  2. This contract is governed by German Law. The United National Convention on Contracts for the International Sale of Goods is excluded (CISG).

XIII. Severability Clause

  1. Should individual provisions of these General Conditions of Sale and Delivery be or become legally invalid, this shall in no way affect the validity of the remaining provisions.
  2. This document is an English translation of our General Conditions of Sale and Delivery (“Allgemeine Verkaufs- und Lieferbedingungen AGB”) dated 16.05.2006 in German. This English translation is solely for information purposes. We take no responsibility whatsoever for its correctness. In the event of any discrepancies or anomalies of any kind arising between the German and English versions the German version shall in any event and under all circumstances take precedence over the English version.

Bergisch Gladbach - Germany, 16th May 2006