Status: January 1, 2008 - for products and services of TANOS GmbH, Böttger-strasse 10, D-89231 Neu-Ulm (in the following re-ferred to as the Supplier ).
I. General Provisions
1. The following conditions apply in conjunction with every order. The written or electronic declarations as stated by both parties determine the scope of deliveries or services (in the following referred to as Deliveries).However, general terms and conditions of the Buyer only apply to the extent that the Supplier has stated his explicit respective approval in writing. Verbal agreements prior to or at the time of the conclusion of the contract require the written confirmation by the Supplier to become effective. 2. Proposals are subject to change; estimates are nonbinding. The Supplier reserves his property rights and copyright-related utilization rights in con-junction with cost estimates, drawings and other documentation (in the following referred to as Documents). The Documents may only be made accessible to third parties upon prior approval by the Supplier and, if the order is not placed with the Supplier, they should be returned to the Supplier immediately and in full upon written request. Clause 1 and 2 apply respectively for Documents of the Supplier; these may however be made accessi-ble to such third parties who have been authorized to be assigned deliveries by the Supplier. 3. For standard software, the Buyer has the non-exclusive right to utilize the agreed upon service features in an unchanged format on the agreed upon devices. The Buyer may create two back-up copies without expressed agreement. 4. Partial deliveries and respective invoicing are permissible to the extent as such is reasonable for the Buyer. 5. If the Buyer is given the right to withdrawal, this shall only take place with complete, properly pack-aged, clean and unlabeled current catalog goods according to the catalog description with a deduc-tion of 20% of prospective order value. 6. The measurements, drawings and demonstrations which are indicated in proposals, brochures, cata-logs and price lists are non-binding and may be changed by us without special notification. All measurements are in cm, mm, kg and g.
II. Prices and Payment Conditions
1. The prices are to be understood from the ware-house in Neu-Ulm (Germany) exclusive packaging plus the respectively applicable mandatory sales tax. The billing is based on the price list that is applica-ble at the time of delivery; the billing of the sales tax can only be omitted in cases where the conditions for a tax exemption from export deliveries are met. 2. If the Supplier has accepted to execute the setup and installation and if nothing has been agreed to otherwise, the Buyer shall bear all necessary ancil-lary costs in addition to the agreed-upon compensation, such as costs for the transportation of the tools and personal luggage as well as customs fees. 3. Payments are due in full without deductions at the premise of the paying agent. 4. The Buyer may only offset such liabilities which are undisputed and which have been legally deter-mined.
III. Retention of Ownership
1. The objects of the deliveries (conditional goods) remain the property of the Supplier until all current or future claims that are due to him from the Buyer under the business connection have been satisfied. If the value of all security rights that are due to the Supplier exceeds the amount of all secured claims by more than 10%, the Supplier shall release a re-spective portion of the security rights upon written request of the Buyer. With that, the Supplier may choose the securities that are to be released. 2. The Buyer is entitled to properly sell and/or utilize the security goods as a business transaction as long as he isn't in default. Forfeiture or transfers by way of security are prohibited. 3. The Buyer already assigns the claims that result from the reselling or from another legal reason concerning the security goods as a security in the amount of the respective invoice value of the secu-rity goods already at the time of the order in ad-vance to the Supplier. The assignments have here-with been accepted. The Buyer is entitled to collect on the claims that were assigned to the Supplier. The collection authorization may be withdrawn at any time if the Buyer does not comply with his pay-ment obligations. 4. The Buyer is entitled to process the products and goods of the Supplier or the links with other prod-ucts as part of his proper business operation. The Supplier acquires co-ownership in the objects that are created through the processing or the links which serves exclusively as a security for his claims as listed under III.1. which the Buyer already as-signs to the Supplier. 5. In the event of forfeitures, collections, other obliga-tions or legal impacts or involvement of third parties, the Buyer has to indicate the ownership of the Sup-plier and must notify the Supplier immediately. The Buyer shall be liable to the extent that the third party is not able to reimburse the Supplier for the legal or out-of-court expenses that arise in this context. 6. In the event of any violation against essential contractual obligations for which the Buyer is at fault, in particular in the event of late payment, the Supplier is entitled to take back the deliveries but is not obligated to do so; the Supplier is obligated to return such deliveries without delay and to the full extent. This shall also apply if the financial situation of the Buyer deteriorates significantly. 7. The retrieval or the claiming of the retention of ownership or the forfeiture of the security goods through the Supplier does not constitute a with-drawal from the contract, unless the Supplier would have explicitly declared such in advance.
IV. Terms for Deliveries and Default
1. Agreed-upon delivery terms relate to the time when the goods leave the plant or the shipping site. The compliance with agreed upon terms for the deliver-ies requires the timely receipt of all Documents that are to be delivered by the Supplier, required permits and releases, especially as it relates to plans as well as the compliance with agreed upon payment terms or down payments and other obligations through the Buyer. 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 responsible for the aforementioned delays. 2. If the Supplier does not meet a deadline due to higher forces, e.g. mobilization, war, unrests or similar events or due to events which are outside of the sphere of the Supplier and which could make a smooth processing of the order questionable - in particular delivery delays on the part of the Supplier, disruptions of traffic and operations, strikes etc.- the terms shall be extended appropriately without resulting in damage claims for the Buyer. 3. If the Buyer requests that the shipping or delivery is delayed by more than one month after the ability to ship the goods was communicated, the Buyer may be billed for storage fees for each partial or full month in the amount of 0.5% of the price of the objects of the delivery, however, no more than 5%. The proof of higher or lower storage costs remains a right of the contractual parties.
V. Shipping/ Transfer of Risks/ Notices of Defect/ Acceptance
1. The shipping takes place at the risk at the expense of the Buyer from a location that is to be determined by the Supplier to the shipping address that is known to the Supplier or as stated from the ware-house/ shipping site of the Supplier. Upon written request and at the expense of the Buyer, deliveries can be insured against transportation risks by the Supplier to a desired extent. 2. To the extent that the Supplier is obligated to take back the packaging that was used for the transpor-tation, the Buyer shall bear the transportation costs for returning the packaging and the indicated ex-penses for its reuse or - to the extent that this is possible and deemed as beneficial by the Supplier - the appropriate costs that arise in conjunction with reuse. 3. The risk transfers to the Buyer, prepaid deliveries included, as follows: a) for deliveries without setup or installation, with proper provisioning from the ramp of the shipping company to the acceptance through the transportation person. b) for deliveries with setup or installation on the day of the acceptance or at the start of operation at the Buyer's site or, to the extent as was agreed upon, after proper installation. 4. If the shipping, delivery, the start, the execution of the setup or installation, the handover or start of operation at the Supplier 's premises or the test run is delayed due to reasons for which the Buyer is responsible or if the Buyer's acceptance is delayed due to other reasons, the risk immediately transfers to the Buyer with the start of the delay. 5. The Buyer shall inspect each delivery diligently and completely immediately upon receipt. The Supplier has to be notified immediately and in writing concerning complaints due to incomplete or incorrect delivery or reprisal due to obvious defects. The same shall apply for hidden defects upon their discovery. Box stickers, bill of deliveries/invoice numbers or the tally sheet that has been enclosed with the delivery have to be indicated with the claim. Warranty claims are excluded if complaints or no-tices of defects are not communicated on time. 6. Deliveries with insignificant defects have to be accepted by the Buyer.
1. Payments shall be processed in accordance with the payment conditions as determined by us. The Supplier is authorized but not obligated to apply payments to the oldest outstanding liability. Electronic funds transfers, checks or notes are only deemed as effective payment after redemption or upon non-lapsable credit on the account of the Supplier. 2. The net amount of the invoice becomes due 30 days after the date on the invoice, if nothing else has been agreed to in writing. A deduction of an agreed upon discount will no longer be granted if the Buyer receives the second reminder in conjunction with another outstanding liability. 3. Repair costs, installation costs or tool costs are payable immediately without any deductions. 4. If the payment targets are not met as outlined in the previous paragraphs, the Supplier may charge legal interest for default, irrespective of other and further legal rights. 5. If subsequently arising circumstances present a significant deterioration of the assets of the Buyer, upon which the payment claim of the Supplier is endangered, the Supplier shall be entitled to demand immediate payment for all liabilities in conjunction with the business relationship; this shall also apply for deferred payments or the acceptance of notes or checks. In conjunction with the same conditions or in the event that the Buyer was late with payments in conjunction with previous business transactions, the Supplier may demand prepayments or securities for all current or future business transactions.For the rest, the legal regulations concerning pay-ment delays remain untouched. 6. The billing is done in EURO. The EURO amount is also definitive if the invoices state foreign currency amounts next to the EURO amount. Incoming for-eign currency amounts are converted into EURO and the subsequent EURO value is offset with the invoice and credited respectively.
VII. Liability for Material Defects
The Supplier is fully liable for damages resulting of a violation of life, body, or health, which are due to the intentional or negligent violation of the Supplier 's duties or an intentional or negligent violation of the duties of one of a legal representative or agent of the Supplier as well as for other damages, which are the results of grossly negligent violation of duty on the Supplier 's part or of an intentional or grossly negligent violation of obligation of a legal representative or agent of the Supplier. In the event of material or manufacturing defects, the Supplier shall be liable for material defects as well as for explicitly warranted characteristics and freedom from defects in accordance with their re-spective state of technology subject to the regula-tions specific to the country. Changes in the con-struction or execution which the Supplier applies to the goods in general prior to for the delivery of an order do not constitute grounds for a complaint. The Supplier recommends that manuals, safety notes, replacement parts lists and the receipt are filed with care. The Supplier shall be liable for defects, which also includes the lack of explicitly warranted characteris-tics: 1. In principle, the term of liability for the products and work of the Supplier is 12 months starting with the transfer of risk to the Buyer. However, in contrast, the term of liability for material defect within the EU in conjunction with exclusively private utilization shall be 24 months. 2. The liability for material defects also includes the free rectification of all material defects that arose during the term of liability and at the Supplier 's op-tion, the objected product may be repaired or re-placed. Exchanged parts become the property of the Supplier. 3. Prerequisite for the acceptance of a liability claim due to a material defect is that the point of purchase of the machine lies within the EU and the claim for material defect liability has not yet expired. The proof is provided through the presentation of a ma-chine generated original purchase receipt which indicates the address of the Buyer and Seller, the purchase date and the exact identification of the type of product. If the claims proves to be justified, the costs of the least expensive roundtrip transpor-tation shall be borne by the Supplier. For the rest, Item V shall apply. Claims of the Buyer concerning expenses that became necessary at the time of the supplementary performance, in particular transpor-tation, handling, labor and material costs, are excluded to the extent that the expenses increased because the object of the delivery was subsequently moved to a different location than the original place of performance, unless the transfer corresponds with its intended use. 4. A right to withdrawal or mitigation does not exist, unless the Supplier is not able to rectify the defect or perform a replacement delivery, or the retail or replacement delivery is deemed as unsuccessful. 5. The warranty does not cover natural wear and tear or damage which occurred after the transfer of risk, in particular due to incorrect, improper or unprofessional use or negligent care, excessiveuse or unfit means of operation. The Supplier is in particular not liable for changes of the condition or the operational mode of the Supplier 's product that is caused by incorrect storage or climatically or other external impacts. 6. If inappropriate changes are caused by the Buyer or third parties, the subsequent consequences shall not be covered by the Supplier 's warranty. 7. The repair, replacement deliveries or replacement services shall not renew the warranty term. 8. Additional warranty claims of the Buyer towards the Supplier and his agents are excluded.
VIII. Commercial Trademarks and Copy Rights
1. If a third party files justifiable damage claims against the Buyer due to the violation of an indus-trial property right or copyright (in the following re-ferred to as property rights) due to products that were delivered by the Supplier and that are utilized in accordance with the contract, at the option of the Supplier, the Supplier either shall obtain a user right for the product, change the product in such a fash-ion that the copyright is not violated or replace the product. 2. The aforementioned obligations of the of the Sup-plier only exist if the Buyer immediately notifies the Supplier in writing concerning the (alleged) claims that are filed by the third party, if the Buyer doesn't acknowledge a violation and that the Supplier shall have the rights to all defensive measures and set-tlement negotiations (in court and out of court). The aforementioned obligations end however no later than 5 years after the delivery to the Buyer. 3. Claims of the Buyer are excluded to the extent that the Buyer is responsible for the trademark right's violation. Claims of the Buyer are also excluded to the extent that the property right violation through special requirements of the Buyer, through an un-foreseeable application of the Supplier or through the fact that the product was changed by the Buyer to utilized together with products that were not de-livered by the Supplier. 4. Further claims against the Supplier are excluded; Article X (Liability) however remains untouched as well as the Buyer's right to withdrawal.
IX. Impossibility, Amendment of the Contract
1. If the Supplier becomes unable to deliver due to a reason for which the Supplier is liable, the Buyer shall be entitled to claim damages. However, the damage claim of the Buyer is limited to 10% of the value of that part of the delivery which cannot be put into useful operation due to the impossibility. This does not apply to the extent that in cases of intent, gross negligence or the onset of incapacity there is a mandatory liability; this shall not result in a change of the burden of proof to the disadvantage of the Buyer. The Buyer's right to withdrawal from the contract shall remain untouched. 2. To the extent that unforeseen events in the sense of Art. IV no. 2 significantly change the economical importance or the content of the delivery, the con-tract shall be appropriately adjusted in consideration of good faith. To the extent that this is economically unjustifiable, the Supplier has the right to withdraw from this contract. If he wants to exercise this right to withdrawal, he shall notify the Buyer upon recognizing the consequences of this event and do so even though an extension was initially agreed to with the Buyer.
Liability claims of the Buyer are excluded, regard-less of their legal basis, in particular if they are due to positive violation of liabilities, violation of obliga-tions during contract negotiations and due to illegal action. This shall not apply to the extent that mandatory liability is given in cases of intent, gross negligence, lack of guarantied characteristics, in accordance with that product liability law, for damage to life, body or health or violation of essential contractual obligations. However, the damage claim for the violation of im-portant contractual obligations shall be limited to typical contractual, foreseeable damages to the extent that this is not a case of intent of gross negli-gence. The aforementioned regulations shall not result in a change of the burden of proof to the dis-advantage of the Buyer.
1. If the Buyer is a business person, does not have general domestic jurisdiction or if s/he moves her/his address or general place of residence to a foreign country upon conclusion of the contract, or if her/his address or general place of residence is unknown at the time that the claim is filed for all disputes that directly or indirectly rise from the contractual relationship, sole jurisdiction shall be at the Supplier 's option the place of the main office or the place of the Supplier 's branch office. 2. The law of the Federal Republic of Germany shall apply for the contractual relations. The application of the German legal standards of the conflict of laws is excluded to the extent that such refers to a foreign legal system or other conventions concern-ing the right of the sale of goods. 3. If individual items become legally invalid, the re-maining parts of the contract and in particular the delivery conditions shall remain binding. This shall not apply if the adherence would represent an un-reasonable hardship for one of the parties. If indi-vidual regulations of these delivery regulations be-come invalid due to legal regulations, they shall be replaced by such valid regulations which come clos-est to the intention and purpose of the invalid regu-lations. The extent necessary, the Buyer shall be obligated to take all measures to achieve this objec-tive.