General Terms and Conditions
Status: January 1, 2008 -for products and services of TANOS GmbH, Pionierstraße 1, D-89257 Illertissen (in the following referred to as the Supplier).
I. General Provisions
1. The following conditions apply in conjunction withevery order. The written or electronic declarationsas stated by both parties determine the scope ofdeliveries or services (in the following referred to asDeliveries).
However, general terms and conditions of the Buyeronly apply to the extent that the Supplier has statedhis explicit respective approval in writing. Verbalagreements prior to or at the time of the conclusionof the contract require the written confirmation bythe Supplier to become effective.
2. Proposals are subject to change; estimates arenonbinding. The Supplier reserves his propertyrights and copyright-related utilization rights in conjunctionwith cost estimates, drawings and otherdocumentation (in the following referred to asDocuments). The Documents may only be madeaccessible to third parties upon prior approval bythe Supplier and, if the order is not placed with theSupplier, they should be returned to the Supplierimmediately and in full upon written request.Clause 1 and 2 apply respectively for Documents ofthe Supplier; these may however be made accessibleto such third parties who have been authorizedto be assigned deliveries by the Supplier.
3. For standard software, the Buyer has the nonexclusiveright to utilize the agreed upon servicefeatures in an unchanged format on the agreedupon devices. The Buyer may create two back-upcopies without expressed agreement.
4. Partial deliveries and respective invoicing arepermissible to the extent as such is reasonable forthe Buyer.
5. If the Buyer is given the right to withdrawal, thisshall only take place with complete, properly packaged,clean and unlabeled current catalog goodsaccording to the catalog description with a deductionof 20% of prospective order value.
6. If the Buyer is given the right to withdrawal, thisshall only take place with complete, properly packaged,clean and unlabeled current catalog goodsaccording to the catalog description with a deductionof 20% of prospective order value.
II. Prices and Payment Conditions
1. The prices are to be understood from the warehousein Neu-Ulm (Germany) exclusive packagingplus the respectively applicable mandatory salestax.
The billing is based on the price list that is applicableat the time of delivery; the billing of the sales taxcan only be omitted in cases where the conditionsfor a tax exemption from export deliveries are met.
2. If the Supplier has accepted to execute the setupand installation and if nothing has been agreed tootherwise, the Buyer shall bear all necessary ancillarycosts in addition to the agreed-uponcompensation, such as costs for the transportationof the tools and personal luggage as well as customs fees.
3. Payments are due in full without deductions at thepremise of the paying agent.
4. The Buyer may only offset such liabilities which areundisputed and which have been legally determined.
III. Retention of Ownership
1. The objects of the deliveries (conditional goods)remain the property of the Supplier until all currentor future claims that are due to him from the Buyerunder the business connection have been satisfied.If the value of all security rights that are due to theSupplier exceeds the amount of all secured claimsby more than 10%, the Supplier shall release a respectiveportion of the security rights upon writtenrequest of the Buyer. With that, the Supplier maychoose the securities that are to be released.
2. The Buyer is entitled to properly sell and/or utilizethe security goods as a business transaction aslong as he isn't in default. Forfeiture or transfers byway of security are prohibited.
3. The Buyer already assigns the claims that resultfrom the reselling or from another legal reasonconcerning the security goods as a security in the amount of the respective invoice value of the securitygoods already at the time of the order in advanceto the Supplier. The assignments have herewithbeen accepted. The Buyer is entitled to collecton the claims that were assigned to the Supplier.The collection authorization may be withdrawn atany time if the Buyer does not comply with his paymentobligations.
4. The Buyer is entitled to process the products andgoods of the Supplier or the links with other productsas part of his proper business operation. TheSupplier acquires co-ownership in the objects thatare created through the processing or the linkswhich serves exclusively as a security for his claimsas listed under III.1. which the Buyer already assignsto the Supplier.
5. In the event of forfeitures, collections, other obligationsor legal impacts or involvement of third parties,the Buyer has to indicate the ownership of the Supplierand must notify the Supplier immediately. TheBuyer shall be liable to the extent that the third partyis not able to reimburse the Supplier for the legal orout-of-court expenses that arise in this context.
6. In the event of any violation against essential contractualobligations for which the Buyer is at fault, inparticular in the event of late payment, the Supplieris entitled to take back the deliveries but is not obligatedto do so; the Supplier is obligated to returnsuch deliveries without delay and to the full extent.This shall also apply if the financial situation of theBuyer deteriorates significantly.
7. The retrieval or the claiming of the retention ofownership or the forfeiture of the security goodsthrough the Supplier does not constitute a withdrawalfrom the contract, unless the Supplier wouldhave explicitly declared such in advance.
IV. Terms for Deliveries and Default
1. Agreed-upon delivery terms relate to the time whenthe goods leave the plant or the shipping site. Thecompliance with agreed upon terms for the deliveriesrequires the timely receipt of all Documents thatare to be delivered by the Supplier, required permitsand releases, especially as it relates to plans as wellas the compliance with agreed upon payment termsor down payments and other obligations through theBuyer. If these conditions are not fulfilled on time,the terms for the Supplier shall be extended appropriately;this does not apply if the Supplier is responsiblefor the aforementioned delays.
2. If the Supplier does not meet a deadline due tohigher forces, e.g. mobilization, war, unrests or similarevents or due to events which are outside of thesphere of the Supplier and which could make asmooth processing of the order questionable - inparticular delivery delays on the part of the Supplier,disruptions of traffic and operations, strikes etc.- theterms shall be extended appropriately without resultingin damage claims for the Buyer.
3. If the Buyer requests that the shipping or delivery isdelayed by more than one month after the ability toship the goods was communicated, the Buyer maybe billed for storage fees for each partial or fullmonth in the amount of 0.5% of the price of the objectsof the delivery, however, no more than 5%.The proof of higher or lower storage costs remains aright of the contractual parties.
V. Shipping/ Transfer of Risks/ Notices of Defect/ Acceptance
1. The shipping takes place at the risk at the expenseof the Buyer from a location that is to be determinedby the Supplier to the shipping address that isknown to the Supplier or as stated from the warehouse/shipping site of the Supplier. Upon writtenrequest and at the expense of the Buyer, deliveriescan be insured against transportation risks by theSupplier to a desired extent.
2. To the extent that the Supplier is obligated to takeback the packaging that was used for the transportation,the Buyer shall bear the transportation costsfor returning the packaging and the indicated expensesfor its reuse or - to the extent that this ispossible and deemed as beneficial by the Supplier -the appropriate costs that arise in conjunction withreuse.
3. The risk transfers to the Buyer, prepaid deliveriesincluded, as follows:
a) for deliveries without setup or installation, with properprovisioning from the ramp of the shipping company tothe acceptance through the transportation person.
b) for deliveries with setup or installation on the day ofthe acceptance or at the start of operation at theBuyer's site or, to the extent as was agreed upon, afterproper installation.
4. If the shipping, delivery, the start, the execution of thesetup or installation, the handover or start of operationat the Supplier 's premises or the test run is delayeddue to reasons for which the Buyer is responsible or ifthe Buyer's acceptance is delayed due to other reasons,the risk immediately transfers to the Buyer withthe start of the delay.
5. The Buyer shall inspect each delivery diligently andcompletely immediately upon receipt. The Supplierhas to be notified immediately and in writing concerningcomplaints due to incomplete or incorrect deliveryor reprisal due to obvious defects. The same shallapply for hidden defects upon their discovery. Boxstickers, bill of deliveries/invoice numbers or the tallysheet that has been enclosed with the delivery have tobe indicated with the claim. Warranty claims are excludedif complaints or notices of defects are notcommunicated on time.
6. Deliveries with insignificant defects have to be acceptedby the Buyer.
VI. Payment
1. Payments shall be processed in accordance with thepayment conditions as determined by us. The Supplieris authorized but not obligated to apply payments tothe oldest outstanding liability. Electronic funds transfers,checks or notes are only deemed as effectivepayment after redemption or upon non-lapsable crediton the account of the Supplier.
2. The net amount of the invoice becomes due 30 daysafter the date on the invoice, if nothing else has beenagreed to in writing. A deduction of an agreed upondiscount will no longer be granted if the Buyer receivesthe second reminder in conjunction with another outstandingliability.
3. Repair costs, installation costs or tool costs arepayable immediately without any deductions.
4. If the payment targets are not met as outlined in theprevious paragraphs, the Supplier may charge legalinterest for default, irrespective of other and furtherlegal rights.
5. If subsequently arising circumstances present asignificant deterioration of the assets of the Buyer,upon which the payment claim of the Supplier is endangered,the Supplier shall be entitled to demandimmediate payment for all liabilities in conjunction withthe business relationship; this shall also apply for deferredpayments or the acceptance of notes or checks.In conjunction with the same conditions or in the eventthat the Buyer was late with payments in conjunctionwith previous business transactions, the Supplier maydemand prepayments or securities for all current orfuture business transactions.For the rest, the legal regulations concerning paymentdelays remain untouched.
6. The billing is done in EURO. The EURO amount isalso definitive if the invoices state foreign currencyamounts next to the EURO amount. Incoming foreigncurrency amounts are converted into EURO and thesubsequent EURO value is offset with the invoice andcredited respectively.
VII. Liability for Material Defects
The Supplier is fully liable for damages resulting of aviolation of life, body, or health, which are due to theintentional or negligent violation of the Supplier 's dutiesor an intentional or negligent violation of the dutiesof one of a legal representative or agent of the Supplieras well as for other damages, which are theresults of grossly negligent violation of duty on theSupplier 's part or of an intentional or grossly negligentviolation of obligation of a legal representative or agentof the Supplier.
In the event of material or manufacturing defects, theSupplier shall be liable for material defects as well asfor explicitly warranted characteristics and freedomfrom defects in accordance with their respective stateof technology subject to the regulations specific to thecountry. Changes in the construction or executionwhich the Supplier applies to the goods in generalprior to for the delivery of an order do not constitutegrounds for a complaint. The Supplier recommends that manuals, safety notes, replacement parts listsand the receipt are filed with care.
The Supplier shall be liable for defects, which alsoincludes the lack of explicitly warranted characteristics:
1. In principle, the term of liability for the products andwork of the Supplier is 12 months starting with thetransfer of risk to the Buyer. However, in contrast,the term of liability for material defect within the EUin conjunction with exclusively private utilizationshall be 24 months.
2. The liability for material defects also includes thefree rectification of all material defects that aroseduring the term of liability and at the Supplier 's option,the objected product may be repaired or replaced.Exchanged parts become the property ofthe Supplier.
3. Prerequisite for the acceptance of a liability claimdue to a material defect is that the point of purchaseof the machine lies within the EU and the claim formaterial defect liability has not yet expired. Theproof is provided through the presentation of a machinegenerated original purchase receipt whichindicates the address of the Buyer and Seller, thepurchase date and the exact identification of thetype of product. If the claims proves to be justified,the costs of the least expensive roundtrip transportationshall be borne by the Supplier. For the rest,Item V shall apply. Claims of the Buyer concerningexpenses that became necessary at the time of thesupplementary performance, in particular transportation,handling, labor and material costs, areexcluded to the extent that the expenses increasedbecause the object of the delivery wassubsequently moved to a different location than theoriginal place of performance, unless the transfercorresponds with its intended use.
4. A right to withdrawal or mitigation does not exist,unless the Supplier is not able to rectify the defector perform a replacement delivery, or the retail orreplacement delivery is deemed as unsuccessful.
5. The warranty does not cover natural wear and tearor damage which occurred after the transfer of risk,in particular due to incorrect, improper orunprofessional use or negligent care, excessiveuse or unfit means of operation. The Supplier is inparticular not liable for changes of the condition orthe operational mode of the Supplier 's product thatis caused by incorrect storage or climatically orother external impacts.
6. If inappropriate changes are caused by the Buyer orthird parties, the subsequent consequences shallnot be covered by the Supplier 's warranty.
7. The repair, replacement deliveries or replacementservices shall not renew the warranty term.
8. Additional warranty claims of the Buyer towardsthe Supplier and his agents are excluded.
VIII. Commercial Trademarks and Copy Rights
1. If a third party files justifiable damage claimsagainst the Buyer due to the violation of an industrialproperty right or copyright (in the following referredto as property rights) due to products thatwere delivered by the Supplier and that are utilizedin accordance with the contract, at the option of theSupplier, the Supplier either shall obtain a user rightfor the product, change the product in such a fashionthat the copyright is not violated or replace theproduct.
2. The aforementioned obligations of the of the Supplieronly exist if the Buyer immediately notifies theSupplier in writing concerning the (alleged) claimsthat are filed by the third party, if the Buyer doesn'tacknowledge a violation and that the Supplier shallhave the rights to all defensive measures and settlementnegotiations (in court and out of court). Theaforementioned obligations end however no laterthan 5 years after the delivery to the Buyer.
3. Claims of the Buyer are excluded to the extent thatthe Buyer is responsible for the trademark right'sviolation. Claims of the Buyer are also excluded tothe extent that the property right violation throughspecial requirements of the Buyer, through an unforeseeableapplication of the Supplier or throughthe fact that the product was changed by the Buyerto utilized together with products that were not deliveredby the Supplier.
4. Further claims against the Supplier are excluded;Article X (Liability) however remains untouched aswell as the Buyer's right to withdrawal.
IX. Impossibility, Amendment of the Contract
1. If the Supplier becomes unable to deliver due to areason for which the Supplier is liable, the Buyershall be entitled to claim damages. However, thedamage claim of the Buyer is limited to 10% of thevalue of that part of the delivery which cannot be putinto useful operation due to the impossibility. Thisdoes not apply to the extent that in cases of intent,gross negligence or the onset of incapacity there isa mandatory liability; this shall not result in a changeof the burden of proof to the disadvantage of theBuyer. The Buyer's right to withdrawal from the contractshall remain untouched.
2. To the extent that unforeseen events in the sense ofArt. IV no. 2 significantly change the economicalimportance or the content of the delivery, the contractshall be appropriately adjusted in considerationof good faith. To the extent that this is economicallyunjustifiable, the Supplier has the right to withdrawfrom this contract. If he wants to exercise this rightto withdrawal, he shall notify the Buyer uponrecognizing the consequences of this event and doso even though an extension was initially agreed towith the Buyer.
X. Liability
Liability claims of the Buyer are excluded, regardlessof their legal basis, in particular if they are dueto positive violation of liabilities, violation of obligationsduring contract negotiations and due to illegalaction.
This shall not apply to the extent that mandatoryliability is given in cases of intent, gross negligence,lack of guarantied characteristics, in accordancewith that product liability law, for damage to life,body or health or violation of essential contractualobligations.
However, the damage claim for the violation of importantcontractual obligations shall be limited totypical contractual, foreseeable damages to the extentthat this is not a case of intent of gross negligence.The aforementioned regulations shall notresult in a change of the burden of proof to thedisadvantage of the Buyer.
XI. Jurisdiction
1. If the Buyer is a business person, does not havegeneral domestic jurisdiction or if s/he moves her/hisaddress or general place of residence to a foreigncountry upon conclusion of the contract, or if her/hisaddress or general place of residence is unknown atthe time that the claim is filed for all disputes thatdirectly or indirectly rise from the contractual relationship,sole jurisdiction shall be at the Supplier 'soption the place of the main office or the place of theSupplier 's branch office.
2. The law of the Federal Republic of Germany shallapply for the contractual relations. The application ofthe German legal standards of the conflict of laws isexcluded to the extent that such refers to a foreignlegal system or other conventions concerning theright of the sale of goods.
3. If individual items become legally invalid, the remainingparts of the contract and in particular thedelivery conditions shall remain binding. This shallnot apply if the adherence would represent an unreasonablehardship for one of the parties. If individualregulations of these delivery regulations becomeinvalid due to legal regulations, they shall bereplaced by such valid regulations which come closestto the intention and purpose of the invalid regulations.The extent necessary, the Buyer shall beobligated to take all measures to achieve this objective.
