General Terms of Sale and Delivery of airinotec GmbH (as per 2016)

I. General

  1. In these General Terms of Sale and Delivery, the term “Supplier” shall mean airinotec GmbH, and the term “Customer” shall mean the Supplier’s business partner.

  2. These terms and conditions shall apply to all companies as well as to all legal persons and special funds under public law within the meaning of Section 310 (1) of the German Civil Code (Bürgerliches Gesetzbuch - BGB).

  3. All goods, services and offers on the part of the Supplier are subject to these General Terms of Sale and Delivery (“GTCs”) and any supplementary covenants that may be agreed to between the parties.  The GTCs shall form an integral part of all contracts concluded between the Supplier and the Customer. They shall also apply to all future deliveries, services and offers supplied to the Customer, even if they are not explicitly agreed to again.

  4. The Supplier shall at all times be entitled to modify or amend these GTCs. The Customer has the right to object to any such modification or amendment. Should the Customer not object to any such modification or amendment within a period of 6 weeks after receiving corresponding notice, such modification or amendment shall become binding. The Supplier shall notify the Customer of its right to object when sending its amendment notice.

  5. Any deviating terms and conditions of purchase on the part of the Customer or of any third parties shall not apply even if the Supplier fails to expressly object to such terms and conditions in any given case. Even where the Supplier makes reference to any written documentation containing any Customer’s terms and conditions or those of any third party, or refers to any of those, this shall not constitute any agreement with any such terms and conditions. Any provisions deviating from these GTCs will therefore only be legally binding upon the Supplier if they have been explicitly agreed to in writing by the Supplier.

  6. There are no oral agreements or any side agreements. The Supplier shall retain all ownership rights and copyrights in all offers and cost estimates issued  as well as in all illustrations, calculations, brochures, catalogues, models, tools, samples, drawings or similar information alongside all documents and all physical and non-physical resources made available to the Customer, including but not limited to those provided electronically; these may not, however, be either partially or entirely disclosed or made available to any third parties, or be copied by the Customer or any third parties, or be used for any of Customer’s purpose or those of any third parties. Upon the Supplier’s request, the Customer must return all these items to the Supplier in their entirety and, where applicable, destroy any copies made of them, if they are no longer needed by it in the ordinary course of business or if negotiations do not result in the conclusion of any contract.

  7. The Supplier undertakes not to make any information that has been classified as confidential by the Customer available to any third parties.

  8. If any goods need to be manufactured or otherwise processed or treated by the Supplier and the Customer submitted a specification for such work, the Customer shall indemnify the Supplier against any and all loss, damage, costs or other expenditures that the Supplier may be liable for or prepared to pay because the agreed processing or treatment of the goods according to the Customer’s specifications turned out to violate a patent, copyright, trademark or other industrial property right of a third party.

    The Supplier reserves the right to modify the description of the goods with regard to the specifications to such extent as legally required provided, however, that such modification will not in any way impair the quality or usability of the goods ordered. Furthermore, any modifications with the intention of technically improving the goods are expressly reserved. Minor deviations, particularly in the event of rectifications or replacements (e.g., tolerances, deviations in color or quality, etc.), shall be permissible.

  9. These GTCs shall apply to all principal and ancillary services of the Supplier, including in particular to the delivery and installation of machines and equipment, the delivery and installation of spare parts and to all maintenance and repair work.

 

II. Offer and Conclusion of Contract

  1. All offers made by the Supplier are made subject to change; they are non-binding offers unless they are explicitly marked as binding or unless they contain a definite time period for acceptance. This also includes cost estimates for repairs. The Supplier may accept orders or commissions within fourteen days of their receipt.

  2. Unless otherwise separately agreed, a contract shall come into existence when the Supplier issues an order confirmation. Oral agreements shall not be binding for the Supplier unless the Supplier confirms them in writing.

  3. Information from the Supplier relating to the supply or service item (e.g., weight, dimensions, serviceability, capacity, tolerances and technical data) as well as any illustrations thereof (e.g., drawings and pictures) are deemed to be approximations only unless absolute conformity is required for the contractually foreseen purposes. These are not guaranteed characteristics of constitution but merely descriptions or distinctive features of delivery or service. Variations which are usual in the trade and discrepancies which result from statutory provisions or which constitute technical improvements, as well as the replacement of component parts using parts of the same standard, are permissible unless they adversely affect the use for the contractually foreseen purposes.

 

III. Prices and Payment

  1. The prices shall apply for the scope of supply and performance stated in the order confirmation. Any additional or special work (additional services) shall be invoiced separately.

  2. The price shall be the price quoted by the Supplier. If no specific price was individually quoted, the price shall be the price stated in the Supplier’s price lists valid at the time of the order.

  3. Unless fixed prices are agreed, the Supplier reserves the right to raise the price of the goods after timely notification of the Customer and prior to delivery of the goods in an appropriate extent due to general price developments beyond the Supplier’s control (such as exchange rate fluctuations, currency regulations, changes in customs duty, significant increase in material or manufacturing costs, etc.) or due to a necessary change on the Supplier side.

  4. Unless expressly stated otherwise in the quotation or price lists, or unless separately agreed in writing between the Supplier and the Customer, all prices quoted by the Supplier shall be in EURO currency and ex works. If the Supplier agrees to deliver the goods to a different location, the Customer shall bear any additional costs for transport, packaging and insurance, as well as any customs duty, fees or other public charges in the case of exports.

    All prices are exclusive of VAT, which the Customer shall additionally have to pay to the Supplier.

  5. In the absence of any special arrangements, payments for the delivery and installation of machines and equipment shall be made as follows: 30% down payment upon receipt of the order confirmation, 30% payment upon delivery, 30% payment upon completion of the installation and 10% payment after acceptance. In the absence of any special arrangements, the purchase price for spare parts shall be due upon delivery, and the compensation for maintenance work shall be upon completion of the work. The Supplier will issue corresponding invoices.

  6. Unless otherwise agreed in writing, the Customer shall pay any invoices within fourteen days without deduction into the account of the Supplier. The timeliness of payment shall always be determined by the receipt of payment by the Supplier, which shall usually be once the amount is credited to the Supplier’s account. Cheques will only be considered valid payment after having been cashed. Should the Customer fail to effect payment as per the due date, the outstanding amounts shall accrue interest at 9% p.a. over the respective base lending rate of the European Central Bank; the possibility to claim higher interest and additional damages in cases of default shall thereby remain unaffected.

  7. The Customer shall have no right to withhold any payments or offset them against counterclaims except those counterclaims are undisputed or have been duly judicially recognized by final declaratory judgment.

  8. All claims resulting out of or in connection with the entire business relationship shall become immediately due if the Customer falls behind on all or any part of any payment.

  9. If the Customer does not comply with the terms of payment, or if circumstances arise that would impair the Customer’s creditworthiness and could represent a risk to the Supplier’s consideration and these become known after execution of the contract, or if the Supplier becomes aware of such reduction after delivery of the goods, all claims shall become due and payable immediately. Such circumstances shall also entitle the Supplier to make the delivery of any outstanding goods or services subject to advance payment or collateral. Should the latter not occur after expiration of a reasonable opportunity to cure, the Supplier shall have the right to rescind and withdraw from the contract or claim damages for non-performance.

  10. In regard to export business, the parties may agree that the Customer shall open a documentary credit with its bank (or with another bank acceptable to the Supplier). In this case, it is determined that such documentary credit shall be opened in accordance with the ICC Uniform Customs and Practice for Documentary Credits, ICC Publication 600 (ERA 600), revision version 2006.

 

IV. Delivery Time, Delay

  1. Delivery times shall result from the contracts between the parties. To enable the Supplier to observe them, all commercial and technical matters must have been resolved between the parties and the Customer must have met all obligations incumbent upon the Customer, such as obtaining the necessary certificates or permits or paying any deposits. Should this not be the case, the respective delivery time shall be extended accordingly. This shall not apply, however, if the Supplier is responsible for the delay.

  2. Adherence to delivery times is subject to the proviso of Supplier’s receipt of correct and timely supply deliveries. The Supplier shall promptly inform the Customer if it becomes aware that a delivery might be delayed.

  3. The delivery time shall be deemed observed when the goods to be delivered have left the Supplier’s factory or readiness for delivery has been duly notified. If acceptance is required, and unless acceptance is refused for justifiable reasons, the date of acceptance or, alternatively, the date of communication that the goods are ready for acceptance shall be determinative.

  4. If the shipments or acceptance of the goods are delayed for reasons attributable to the Customer, the Customer will be charged for any and all costs attributable to the delay starting one month after the communication that the goods are ready to be shipped or accepted.

  5. If the Supplier confirms an agreed delivery period or delivery date and the Supplier then falls behind, the Customer shall grant the Supplier reasonable opportunity to cure in writing. A cure period of at least two weeks shall be deemed reasonable. After expiration of such cure period, the Customer shall have the right to rescind and withdraw from the contract with respect to all goods that were not reported as ready for shipment upon the expiration of the cure period. The Customer shall not be entitled to withdraw from the entire contract unless he has no interest in the partial deliveries. Moreover, the Customer shall have the right to claim compensation for losses caused by the delay provided, however, that he must show credibly that he has suffered a loss and the delay in delivery was not caused by any willful misconduct or gross negligence, in which case. The compensation shall be 0.5% for each week of delay, however not more than 5%, of the value of the respective portion of the total goods that cannot be used in good time or cannot be used as agreed as a result of the delay.

  6. Both compensation claims of the Customer for delayed delivery and claims for damages instead of delivery that exceed the limits set forth in the sub-clause above are excluded in all cases of delayed delivery, even after a cure period set by the Supplier has elapsed. This shall not apply to cases of intent, gross negligence or injury to life, body or health. Moreover, this shall not apply if the Supplier violated any essential contractual obligation. The right to claim and prove lower damages is hereby expressly reserved. Any further statutory claims and rights of the Customer due to delayed delivery shall remain unaffected.

  7. The Customer shall not have the right to refuse any partial shipments unless the Customer cannot reasonably be expected to accept partial shipments. This shall  be the case when

    • the Customer cannot make use of the partial delivery in the framework of the contractual purpose of the delivery;

    • the delivery of the remaining goods has not been secured; or

    • the Customer incurs significant additional work or additional costs or expenses due to the partial shipment (unless the Supplier has agreed to bear any such additional costs or expenses).

  8. Events of force majeure shall entitle the Supplier to delay delivery for as long as the impediment exists plus an additional reasonable adjustment period or to fully or partially withdraw from the portion of the contract that has not been fulfilled. Any strikes, lockouts, military mobilization, blockades, export and import bans, shortage of raw materials or fuel, any fire, traffic blockage, disruptions of operations or transport or other circumstances beyond the Supplier’s control shall be deemed as equal to force majeure, whether or not they occurred at the Supplier’s premises, those of the Supplier’s supplier or those of one of the Supplier’s subcontractors. The Customer shall have the right to ask the Supplier to declare whether it will withdraw from the contract or deliver the goods within a reasonable time. If the Supplier makes no declaration, the Customer shall be entitled to rescind and withdraw from the contract.

 

V. Transfer of Risk, Acceptance

  1. The risk shall transfer to the Customer as soon as the goods have left the factory, irrespective of whether delivery is made in one or several shipments or whether the Supplier has taken over other services, such as, e.g., shipment costs or delivery and installation. If the goods are subject to acceptance, such acceptance shall be materially determinative for the transfer of risk. Acceptance must be declared immediately on the day of the acceptance test or, alternatively, after the Supplier has informed the Customer that the goods are ready for acceptance and any agreed test of the machines or equipment has been duly executed. In the event of a non-essential defect, the Customer shall have no right to refuse acceptance.

  2. If any acceptance of the delivered goods is required then the goods are considered to have been accepted if

    • the delivery, and in the case of installation any required installation) has been completed;

    • the Supplier has informed the Customer by noting the acceptance duty according to this Section V. 2 and the Supplier has demanded the Customers’ acceptance;

    • ten (10) working days have elapsed since the delivery and/or installation was completed or the Customer has begun to use the delivered items and, in such a case, if five (5) working days have passed since the delivery or installation; and

    • the Customer has failed to duly accept within such period for any reason other than that in respect of a defect notified to the Supplier that makes the usage or implementation of the delivered good either impossible or there is a significant hindrance to their usage.


  3. If the shipment or acceptance is delayed or not effected for reasons not attributable to the Supplier, the risk shall pass to the Customer on the day when the Customer is informed that the goods are ready for shipment or acceptance. The Supplier agrees to take out insurance coverage at the Customer’s cost should the Customer so desire.

  4. After the risk has transferred, the Customer shall bear the storage and warehousing costs for the storage of the goods. In case of storage by the Supplier, the storage costs shall amount to 0.25% of the invoice amount of the goods to be stored per week of elapsed time. In case of storage by third parties, the costs specifically incurred will be charged.

  5. As of the moment of acceptance, the Supplier shall no longer be liable for any obvious or patent defects unless the Customer has reserved the right to claim a certain defect.

  6. Partial shipments are allowed to the extent acceptable to the Customer (see Point IV 7).

 

VI. Retention of Title

  1. The delivered goods shall remain the property of the Supplier until all claims against the Customer in connection with the business transaction, on whichever legal basis, have been settled. The same shall apply in particular if any payments are made for any specially designated claims. In cases of account current, the claim shall be considered as collateral for the Supplier’s claim on balance. Both the delivered goods and all other goods superseding them pursuant to this clause that are also subject to retention of title are hereinafter referred to as “Reserved Goods”.

  2. The Customer shall store the Reserved Goods at no additional cost. The Customer is obligated to handle the Reserved Goods with care until ownership has transferred. If maintenance and overhaul work must be carried out, the Customer shall carry out such work at its own cost and in a timely manner.

  3. As long as the Customer is not in arrears, the Customer shall be entitled to handle and process the goods sold pursuant to reservation in the ordinary course of business and at its normal terms and conditions. The Customer is not entitled, however, to pledge the goods as collateral or assign them as security. The Supplier shall only have the right to resell the goods provided that the claim arising from the resale is assigned to the Supplier to the extent described in the sub-clauses set forth below. In advance, the Customer assigns all claims arising from the resale of the goods (even if modified, combined or mixed with other goods) to the Supplier by way of security, and the Supplier accepts such assignment. The Customer is not entitled to make any other dispositions.

  4. Until further notice, or as long as the Customer is not in arrears to the Supplier, the Customer shall be entitled to collect the claims assigned to the Supplier. The Supplier shall be entitled to revoke its agreement for good cause, in particular if its claims become due. In such cases, the Supplier shall have the right to revoke the right to collect the assigned claims. Moreover, the Supplier shall be entitled to demand the return of the goods sold pursuant to reservation. In such case, the Customer shall have no right to withhold the goods, and the Supplier may not withdraw from the contract unless it declares its withdrawal in writing. Moreover, the Supplier can inform any third party debtors of the assignment, and the Customer shall provide the necessary documents and information to the Supplier.

    If the Reserved Goods are processed, combined or mixed with other goods that are not the property of the Supplier, it is agreed that the Supplier shall be entitled to joint ownership in the new products or equipment at a ratio equivalent to the value of the supplied goods in relation to the overall value of the new product or equipment. The Customer shall store these goods free of charge on behalf of the Supplier. If the Reserved Goods are resold together with other goods, whether with or without any (re)processing, combination or mixing, the agreed advance assignment shall only apply to the value of the Reserved Goods that form part of the sales transaction together with other goods.

  5. If any third parties take possession of the Reserved Goods, in particular but without limitation by garnishment, the Customer shall immediately advise them of the property of the Supplier and also inform the Supplier so as to enable the Supplier to assert its ownership rights. Should the third party not be in a position to reimburse the Supplier for any judicial or extra judicial costs then the Customer shall be liable to bear these costs.

  6. The Supplier shall be entitled to ensure the goods to be delivered shall be insured against theft, breakage, fire water and other damage at the Customer’s expense, unless the Customer can itself prove that it has taken out such insurance.

  7. If an insolvency application or bankruptcy petition is filed against the Customer, the Supplier shall be entitled to rescind and withdraw from the contract and demand the immediate return of the delivered goods. Should the Supplier withdraw from the agreement in consequence of the Customer’s violation of its terms - in particular due to delayed payment - (collateral realization), the Supplier shall also be entitled to demand the immediate return of the delivered goods. The Supplier is entitled to utilize the Reserved Goods upon repossession. After subtraction of an appropriate amount for the costs of usage, the profit from that usage must be subtracted from the amounts owed to the Supplier by the Customer.

 

VII. Warranties

Material Defects

  1. All parts or services in which a defect occurs during the statutory limitation period shall (irrespective of the operating time and at the Supplier’s discretion) be mended, replaced or re-performed free of charge, provided that the cause for the defect already existed at the time of transfer of risk.

  2. Any claims for defects in quality or defects in title shall become time-barred after the expiration of twelve months following delivery of the goods or, if acceptance is necessary, following acceptance of the goods. The period shall begin to run as of the date of handover to the Customer or upon acceptance irrespective of the Customer's knowledge of any defect. Legal defects shall also expire in twelve months. This shall not apply if applicable law requires longer warranty periods pursuant to BGB (German Civil Code) Section 438 (1), paragraph 2 (buildings and supplies for buildings), BGB Section 479 (1) (rights of recourse) and BGB Section 634 a (1) paragraph 2 (structural defects) as well as in cases of injury to life, body or health; in cases of intentional or grossly negligent breach of duty by the Supplier; and in case of fraudulent concealment of a defect. Statutory regulations relating to tolling of time limit deadlines and the suspension and restart of time limit deadlines shall thereby remain unaffected.

  3. In the event of any defects, the Customer shall inform the Supplier (and not any commercial agents, which is invalid) in writing. Obvious or patent defects, i.e. visible defects or other defects visible in the course of a prompt, thorough examination, must be reported within seven days after receipt of the goods or otherwise within seven days after the detection of the defects or at the time at which the defect can be identified by the Customer during normal usage of the goods without closer inspection.

    The Customer shall be solely responsible for proving that all warranty criteria are met, including the time of discovery of the defect and timely information to the Supplier.

  4. If the Supplier so requires, the Customer shall provide the Supplier with the opportunity to examine the goods that are the subject of the complaint in the state in which they were at the time of the determination of the defect in order to ascertain whether the goods are really faulty. For this purpose, the Customer shall also provide the Supplier with the space and facilities to examine the goods. The Customer shall grant the Supplier a reasonable opportunity to cure and for supplementary performance. If the Customer does not meet these requirements, all warranty claims for damages resulting from this infringement will be forfeited.

  5. The Supplier is entitled to two opportunities to correct the failure. In the event that supplementary performance fails, or is not reasonably acceptable or is refused by the Supplier, or in the event of a situation according to BGB (German Civil Code Section 281 (2) or BGB Section 323 (2) the Customer shall be entitled to reduce the remuneration pursuant to applicable valid regulations or (except where construction work is concerned) rescind and withdraw from the contract, notwithstanding any other damage claims available according to section VII.

  6. The Supplier shall be liable for all expenses arising in connection with any supplementary performance, including in particular but without limitation any transport, travel, work and material costs, always provided, however, that any increase in such costs is not caused by the removal of the delivered goods from the place of fulfilment to another location unless such removal is in accordance with the goods proper usage.

  7. If the Customer is entitled either to demand delivery or subsequent specific performance or to rescind and withdraw from the contract, or to claim damages instead of (complete) specific performance and/or compensation for expenses, the Supplier shall have the right to request the Customer to execute its rights within a reasonable deadline.

    If the Customer fails to execute its rights within the deadline period, it shall not be entitled to demand damages instead of performance and/or withdraw from the contract until another reasonable deadline set by the Customer has elapsed.

  8. No warranty claims shall arise out of any insignificant deviations from agreed quality standards or from insignificant impairment of usability, natural wear and tear or damage caused after the transfer or risk due to improper or negligent handling, excessive strain, unsuitable operation, faulty workmanship, unsuitable building foundation or due to any extraordinary external factors that were not considered in the contract or result from non-reproducible software errors. If the Customer or any third party executes any improper modifications or maintenance work, no warranty claims shall arise from such work or from the consequences and effects thereof.

  9. Any faults or defects within a new development shall immediately be determined in a jointly conducted acceptance test. –If the error determined is due to incorrect planning or faulty design by the Supplier, it shall be remedied immediately. If, however, the error is due to faulty specifications provided by the Customer or if the technical and actual circumstances within the Customer’s operations have changed, the Supplier shall at its sole discretion have the right to touch up the product or amend the contract accordingly. If the Supplier refuses to remedy, the Customer shall remain liable to accept the part and effect payment as agreed for the part ordered originally.

  10. The Supplier is not obligated to eliminate defects as long as the Customer has not met its obligations to pay. This provision shall be without prejudice to any rights to reduce remuneration.

    Defects of Title


  11. If the use of the delivered goods results in the violation of any industrial property rights or copyrights in Germany, the Supplier will at its own cost procure the rights for the Customer to continue using the goods or modify the delivered goods in a way acceptable to the Customer so that the rights are no longer violated.

    If this is not possible in an economically reasonable manner or within a reasonable period of time, the Customer shall have the right to rescind and withdraw from the contract. The Supplier shall also have the right to rescind and withdraw from the contract under the conditions mentioned above.

    Moreover, the Supplier shall indemnify the Customer against undisputed or legally finally established claims by the owner of the industrial property rights.

  12. Subject to the provisions of section VIII. the Supplier’s obligations mentioned in section VII. 11 are conclusive and encompassing for the event of any violations of industrial property rights or copyrights.

    They shall only exist if

    • the Customer informs the Supplier without delay of any claims relating to the violation of any industrial property rights or copyrights,

    • the Customer supports the Supplier to a reasonable extent in the defense against such claims and/or gives the Supplier the opportunity to execute modification measures as set forth in section VI.11,

    • all defense measures, including the conclusion of any out of court settlements, are reserved to the Supplier,

    • the defect of title is not due to an instruction issued by the Customer, and

    • the defect of title was caused by the Customer because the Customer modified the delivered goods without authority or has not used them as agreed.

 

VIII. Liability, Rescission and Withdrawal

  1. The Supplier’s liability shall be governed exclusively by these GTCs. All claims not expressly granted hereunder, including any claims of the Customer for damages and compensation of expenses (hereinafter referred to as “Compensation Claims”) regardless of legal basis are excluded in the case of any violation of any non-essential obligations if the Supplier, its representatives or its agents are charged with ordinary negligence. In the event that a material or essential contractual obligation is violated, the Supplier shall also be liable for ordinary negligence. Essential contractual obligations shall include the obligation to deliver and install goods that are free of essential defects in a timely fashion and to provide any advisory, protective, custodial and duty of care obligations so as to enable the Customer to use the goods delivered in the contractually prescribed manner or that are intended so as to protect the lives and health of the Customer’s personnel or that of third parties or to protect Customer’s property from substantial damages.

  2. If the Supplier is in principle liable to pay compensation in accordance with Section VIII 1,  such liability shall be strictly limited to compensation for those damage which were beyond the Supplier’s control and were foreseeable at the time when the contract was signed or when the violation occurred. Furthermore, any indirect damages or consequential damages resulting from any defects in the goods can only be replaced or remedied provided that such damages are those typically expected when using the goods as per their intended usage.

  3. If the Supplier, its representatives, its agents or its vicarious agents are not culpable of willful misconduct or gross negligence, and subject to the provisions in subsection VIII.4 below, the Customer’s right to claim compensation shall expire within one year after they arose.

  4. The limitation of liability as set forth in subsections 1 to 4, above, shall not apply to any injuries to life, body or health nor shall they apply if the Supplier promised or guaranteed a certain quality or fraudulently concealed a defect or in the case of any willful misconduct or gross negligence. The Supplier’s liability pursuant to applicable products liability laws shall remain unaffected.

  5. With the exception of withdrawal due to defects as set forth in subsection VI.5, the Customer shall only have the right to rescind and withdraw from the contract if the Supplier is culpable of a breach of duty according to statutory provisions.

 

IX. Use of Software

  1. If software is included in the scope of delivery, the Customer shall be granted a temporally and spatially unlimited, non-transferable, simple, non-exclusive right to use to reproduce and to decompile the delivered software and related documentation in accordance with this Agreement upon full payment of all due bills according to Section III 5.  In the event of third party software being issued, the rights are only granted to the extent as foreseen in regard to the third party.

  2. The Software is provided to the Customer for use on the delivered product. The use of the software on more than one system is prohibited. In this case, “system” means the computer system which is in the Customer’s actual possession for the fulfilment of the purpose of the use. Further rights of use are not granted to the Customer.

  3. The Customer is entitled to make a backup copy if said copy is necessary to ensure future use. The Customer must label each backup copy made as a "Backup Copy" and must affix the manufacturer's copyright notice so that it is clearly visible.

  4. The Customer may only copy, revise, translate or convert from object code to source code to the extent permitted by law (Sections 69 a et seq. UrhG (German Copyright Law)) and subject to any legitimate restrictions under these GTCs. The right to reproduction or decompilation is granted only according to the further condition that the Supplier shall not provide the Customer with the necessary information within an appropriate period having been given notice to do so.

  5. The Customer agrees not to remove or alter the manufacturers’ information, including especially any copyright notes, without the Supplier’s prior written consent.

  6. All other rights in the software and documentation, including the copies, shall remain exclusively with the Supplier or software supplier. It is not permissible to grant sublicenses.


X. Customer’s Obligations with Regard to Installation, Repair and Services

  1. If the Supplier performs installation work, the following supplementary provisions shall apply. The same provisions shall apply accordingly to the performance of repair and services:

  2. The Customer shall at its own expense support the installation staff in the performance of the installation work. It shall make the necessary arrangements for the protection of persons and objects at the place of installation. It shall also inform the foreman of any specific safety rules that may exist and are relevant for the installation staff. It shall inform the Supplier of the staff’s violation of such safety rules. In the event of serious violations, it may deny the violating worker access to the installation site.

  3. The Customer shall at its own cost provide technical support. In particular, it shall:

    • provide the necessary suitable aides (masons, carpenters, metalworkers and other skilled workers and subworkers) in the number and for the time required for the installation; the aides shall observe the orders of the foreman responsible for the installation. The installing firm assumes no liability for the aides. If a defect or damage is caused by the aides due to an order issued by the foreman, Sections VI and VII shall apply.

    • execute all earth, construction, foundation and scaffolding work, including the procurement of the necessary construction materials.

    • provide the necessary facilities and heavy tools (e.g. lifting equipment, compressors, portable smithy) and the required objects and materials (e.g., construction wood, wedges, base materials, cement, plaster and filler, lubricants, fuels, drive belts and ropes, etc.).

    • provide heating, lighting, power, water and the necessary connections.

    • provide necessary dry and lockable rooms to store the installation staff’s tools. 
       
    • transport the parts to be installed at the installation site, protect the premises of the installation site and materials from any kind of harmful influences; clean the installation site.

    • provide suitable theft-proof recreation rooms and working rooms (with heating, lighting, washing and sanitary facilities) and first aid for the installation staff.

    • provide materials and perform all other activities necessary to adjust the installed equipment and execute the test stipulated in the contract.

  4. The Customer’s technical support must ensure that the installation can begin immediately upon the arrival of the installation staff and can be executed without delay until the equipment is accepted by the Customer. If special plans or instructions are required from the Supplier, it shall make them available to the Customer in due time.

  5. If the Customer fails to meet its obligations, the Supplier shall be entitled, but not obligated, to execute the necessary activities in the customer’s stead and at the Customer’s cost, notwithstanding any other statutory rights and claims of the Supplier.

  6. If the facilities and tools provided by the Supplier are damaged at the installation site or are lost without any fault of the Supplier, the Customer shall be liable to provide compensation for such loss or damage. This shall not apply to damage attributable to normal wear and tear.


XI. Place of Fulfillment, Jurisdiction, Applicable Law

  1. Exclusive place of fulfilment for both parties is Bayreuth.

  2. This contract shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of any conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG).

  3. If the contracting party is a merchant, has no general legal domicile in Germany or has moved or moves its habitual residence outside the Federal Republic of Germany after the contract was concluded, it shall be deemed agreed that the exclusive place of jurisdiction for all disputes arising out of or in connection with this contract, including any disputes concerning bills of exchange and cheques, is Bayreuth. Moreover, the Supplier shall have the right to sue the buyer at its own court of jurisdiction.

  4. The assignment of rights out of this contract by the Customer shall not be valid without the Supplier’s prior written consent.

  5. The export of the goods delivered by the Supplier, in particular exports beyond the borders of the country to which the Supplier delivered the goods, are not permissible without the Supplier’s prior written consent.

  6. In the event that any provision in these GTCs should be or become partly or entirely invalid or unenforceable, the remaining provisions shall remain in full force. Any invalid provisions shall be substituted by valid, enforceable provisions that come closest to the original contractual purpose and suitably protect the interests of both parties. 

  7. The Customer agrees that the Supplier may store the necessary data related to the business relationship in accordance with Section 28 of the German Federal Data Protection Act for the purpose of data processing and that it may transfers such data to third parties (such as insurance companies) to the extent necessary for the fulfillment of the contract.


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