General Terms and Conditions of Sale

Dated 1 January 2021

 

TRAC is a product of Beissbarth GmbH

 

I.       Application

1. All deliveries, services and offers of Beissbarth GmbH, Hanauerstr. 101, 80993 Munich, Germany (“Beissbarth”), are exclusively governed by these general terms and conditions of sale (these “Terms and Conditions of Sale”). They are part of all contracts or offers concluded by Beissbarth and its contracting partners (“contractor”) for the deliveries or services offered by Beissbarth.

2. These Terms and Conditions of Sale apply exclusively. Any deviating, conflicting or supplementary terms of the contractor shall only become an integral part of the contract if and to the extent Beissbarth approved them writing. Beissbarth’s approval is required in any case. Acceptance of contract items or payment does not constitute approval, even if acceptance or payment occurs or is made in knowledge of any deviating, conflicting or supplementary provisions of the contractor.

3. The Terms and Conditions of Sale only apply if the contractor is an entrepreneur (Section 14 of the German Civil Code (Bürgerliches Gesetzbuch,“BGB”)), a legal entity under public law or a special fund under public law.

4. Previously agreed terms of the contractor, if any, that are opposed to these Terms and Conditions of Sale or supplement them do no longer apply.

5. Unless otherwise agreed, the version of these Terms and Conditions of Sale applicable at the date of order or, in any case, last made available to the contractor in text form also applies to similar future contracts on the sale and/or delivery of goods and services, respectively, without Beissbarth being obligated to refer to them in each individual case.

6. Any individual agreements entered into with the contractor on a case-by-case basis (including collateral agreements, changes or amendments) take precedence over these Terms and Conditions of Sale in any event. A written agreement or written acknowledgement of Beissbarth shall be decisive for the contents of such contracts subject to proof to the contrary.

7. Except for the managing directors or authorised signatories, employees of Beissbarth are not entitled to enter into individual agreements that deviate from these Terms and Conditions of Sale.

 

II.      Offer and Conclusion of Contract

1. All offers of Beissbarth are subject to change and non-binding unless they are expressly marked as binding or include a particular deadline for acceptance. Beissbarth may accept orders or contracts within a period of fourteen (14) calendar days after receipt.

2. Only the concluded contract, including these Terms and Conditions of Sale, are decisive for the legal relationship between Beissbarth and the contractor. They fully contain all agreements between the contracting parties regarding the subject-matter thereof. Any oral undertakings of Beissbarth made before the conclusion of the contract are legally not binding and any oral agreements between the contracting parties shall be replaced by a written contract unless they expressly state that they bindingly apply.

3. Any information provided by Beissbarth with regard to the item of delivery or service (e.g., weights, measures, utility values, capacity, tolerances and technical data) as well as descriptions thereof (e.g., drawings and illustrations) are only approximately relevant unless the usability for the contractually intended purpose requires precise conformity. They are not warranted characteristics of the quality but descriptions or designations of the delivery or service. Customary deviations and deviations occurring due to statutory provisions or representing technical improvements as well as the replacement of components by equivalent parts are permissible unless they affect the usability for the contractually intended purpose.

4. Beissbarth reserves title to or copyright in all offers and estimates of cost it submits and all drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids provided to the contractor. The contractor must not make available these things or the contents thereof to third parties, use, copy or have used or copied them by third parties without Beissbarth’s express consent. Upon request of Beissbarth, the contractor must completely return these things to Beissbarth and destroy all copies made thereof if they are no longer needed in the ordinary course of business or if the negotiations did not result in the conclusion of a contract. The contractor shall confirm in writing and adequately prove the destruction at Beissbarth’s request. This does not apply to the storage of electronically provided data for normal backup purposes.

 

III.     Prices

1. The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services are charged separately. The prices are quoted in EURO ex works without packaging, plus the statutory sales tax applicable at the time of delivery or service, plus customs duties, fees and other public charges in the case of export deliveries. Packaging is charged separately at cost price and is not taken back by Beissbarth.

2. Insofar as the agreed prices are based on the list prices of Beissbarth and the delivery is to take place more than four (4) months after conclusion of the contract, the list prices of Beissbarth valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).

3. As far as there is no warranty case, the return of repaired goods is made for an appropriate shipping and packaging flat rate, which is charged in addition to the remuneration for the services rendered by Beissbarth.

 

IV.     Payment, Set-off

1. Unless otherwise agreed, the contractor must pay any invoiced amounts within thirty (30) days from receipt of the invoice without any deductions. If payment is made within ten (10) days from the invoice date, Beissbarth grants a cash discount of 2%.

2. The receipt in the bank account of Beissbarth is decisive for the date of payment. Payment by check must be agreed in writing.

3. If the contractor does not pay when due, any outstanding amounts shall bear interest of 9% p.a. from the due date; the right to claim higher interest and further loss in case of default remains unaffected.

4. The contractor shall only have a right of set-off or be entitled to withhold payment if its counterclaims are undisputed or have been found to be final and absolute or result from the same contract under which the relevant delivery is made.

5. Beissbarth is entitled to make outstanding deliveries or provide outstanding services only against advance payment or provision of security if, after conclusion of the contract, Beissbarth becomes aware of circumstances which are capable of substantially reducing the creditworthiness of the contractor and through which the payment of the outstanding claims of Beissbarth by the contractor is endangered. If the contractor is in default of the advance payment or provision of security, Beissbarth may rescind the contract or claim damages for non-fulfilment after having given reasonable additional time.

6. Should the contractor be in default of a payment, stops its payments, is over-indebted or if there is another reason for insolvency or if the commencement of insolvency proceedings is applied for, all outstanding claims are due immediately even if not yet due or if they are deferred. This also applies in case of a substantial deterioration of the economic situation of the contractor.

7. Irrespective of any deviating terms of payment of the contractor, Beissbarth is entitled to offset payments against the oldest claim due. Beissbarth shall notify the contractor in case of such offsetting without undue delay.

8. If the contractor is entitled to warranty claims in accordance with Section IX. due to defective performance, it may only assert a right of retention to which it is legally entitled in respect of the payment owed by it in an amount which is in reasonable proportion to the reduction in value caused by the occurred defects. This right is excluded if Beissbarth has acknowledged a warranty obligation due to the defects in question and has provided an adequate amount of security, which can also be provided by bank guarantee.

 

V.      Delivery and Time of Delivery

1. Unless otherwise agreed, deliveries by Beissbarth are ex works.

2. Periods and dates of deliveries and services promised by Beissbarth are only binding when a fixed period or date has been confirmed or agreed. If shipping has been agreed, the delivery periods and dates refer to the time of handover to the forwarding agent, carrier or other third parties entrusted with the shipment.

3. Notwithstanding its rights arising from default on the part of the contractor, Beissbarth may demand an extension of delivery and service periods or a postponement of delivery and service dates by the period during which the contractor fails to meet its contractual obligations (e.g., performance, down payment, provision of security, obligations to cooperate) towards Beissbarth.

4. The delivery period shall be extended reasonably if the contractor subsequently requests changes to the order.

5. Beissbarth shall not be liable for the impossibility of delivery or for delays in delivery if these are caused by force majeure for which Beissbarth is not responsible. Force majeure means any event that occurs outside the scope of influence of Beissbarth and that prevents Beissbarth from fulfilling its contractual obligations, in particular, pande­mics, fire damage, flooding, industrial actions, as well as any disruption of operations or official decrees for which Beissbarth is not responsible. Beissbarth is also not responsible for the aforementioned circumstances if they occur during an already existing delay in delivery.

6. Should any such event make it substantially difficult or impossible for Beissbarth to deliver goods or perform services and if the impairment is not only temporary, Beissbarth shall be entitled to rescind the contract. In case of temporary impairments, the periods of delivery or service shall be extended by the period of the impairment plus a reasonable starting period.

7. If the contractor cannot be expected to accept delivery of goods or performance of services because of the delay, it is entitled to rescind the contract by prompt written declaration addressed to Beissbarth. The contractor shall declare whether it insists on the delivery or asserts its other rights (particularly to rescind the contract) within a reasonable period of time at Beissbarth’s request.

8. Beissbarth is entitled to make partial deliveries if

a) the partial delivery can be used by the contractor within the scope of the intended contractual purpose of use; and
b) the delivery of the rest of the ordered goods is ensured; and
c) the contractor does not incur considerable extra work or additional costs.

9. Should Beissbarth be in default of a delivery or service or should it be impossible for Beissbarth to make delivery or perform the service for whatever reason, Beissbarth’s liability for damages is limited in accordance with Section XII. of these Terms and Conditions of Sale.

 

VI.     Place of Performance, Shipment, Passing of Risk and Acceptance

1. Place of performance for all obligations under the contractual relationship is Munich, Germany, unless otherwise agreed. If Beissbarth also owes the installation/fitting of the product, the place of performance shall be the place where the installation/fitting shall be made according to the contract.

2. Mode of shipment and packaging are subject to Beissbarth’s due discretion.

3. The risk passes to the contractor at the latest when the item to be delivered is handed over (whereby the start of the loading process is decisive) to the forwarding agent, carrier or other third party entrusted with the shipment. This also applies to partial deliveries or other services (e.g., shipment or installation/fitting) to be provided by Beissbarth. If shipment or delivery is delayed due to a circumstance caused by the contractor, the risk shall pass to the contractor on the day on which the item to be delivered is ready for shipment and Beissbarth has notified the contractor thereof. This also applies in cases in which the item to be delivered is stored at Beissbarth’s premises at the request of the contractor.

4. Delivered goods must be accepted by the contractor even if they show insignificant, non-removable defects. This also applies to partial deliveries. However, in the case of partial deliveries, only under the conditions set out in Section V.8. The contractor’s rights under a liability for defects are not affected thereby.

5. The shipment will only be insured by Beissbarth against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the contractor and at the contractor’s expense.

 

VII.    Acceptance, Contractor’s Default of Acceptance

1. If acceptance is required, the goods are deemed accepted if

a) the delivery and the installation/fitting, if owed by Beissbarth, is completed; and
b) Beissbarth notified the contractor thereof referring to the deemed acceptance according to this clause VII.1 and required the contractor’s acceptance; and
c) seven (7) calendar days have passed since delivery or installation/fitting or the contractor has started using the purchased goods (e.g., has put the delivered equipment into operation) and in this case seven (7) calendar days have passed since delivery or installation/fitting; and
d) the contractor has failed to accept the goods within this period for other reasons than due to a defect notified to Beissbarth, which makes it impossible to use the purchased goods or materially affects the use of the purchased goods.

2. If the contractor is in default of acceptance, Beissbarth may – notwithstanding all other rights –

a) refuse to provide its service after the invoice has been issued, as long as the contractor has not paid the owed remuneration in full;
b) rescind the contract or claim damages for non-fulfilment after having given reasonable additional time. If Beissbarth does not claim losses of more than 15% of the contract sum, these losses need not to be proved. The contractor is entitled to prove that no loss has occurred at all or that the loss is considerably lower than the agreed lump sum;
c) charge the contractor for storage costs upon expiration of the fourth week until the date of collection or the effective rescission if the goods are not collected. In addition to the storage costs to be borne by Beissbarth itself, the amount of these storage costs shall also include a surcharge of 15% thereof. The contractor is entitled to furnish proof of lower costs of storage.

 

VIII.   Reservation of Title

1. The reservation of title agreed below serves as security for all due claims of Beissbarth against the contractor from the business relationship between the contracting parties (including balance claims from a current account relationship limited to this supply relationship).

2. The goods delivered by Beissbarth to the contractor remain the property of Beissbarth until full payment of all secured claims. The goods and the goods substituting them in accordance with the following provisions being subject to the reservation of title are hereinafter referred to as the “Reserved Goods”.

3. The contractor stores the Reserved Goods for Beissbarth free of charge.

4. The contractor is entitled to process and sell the Reserved Goods in the ordinary course of business until occurrence of the event of realization. Pledging and transfer by way of security are not permitted.

5. If the Reserved Goods are processed by the contractor, it is agreed that the processing is carried out in the name and for the account of Beissbarth as manufacturer and that Beissbarth directly acquires ownership or – if materials of several owners are processed or the value of the processed item is higher than the value of the Reserved Goods – co-ownership (fractional ownership) of the newly created item in the proportion of the value of the Reserved Goods to the value of the newly created item. In the event that Beissbarth does not acquire ownership, the contractor hereby transfers its future ownership or – in the aforementioned proportion – co-ownership of the newly created item to Beissbarth as security. If the Reserved Goods are combined or inseparably mixed with other items to form a uniform item, and if one of the other items is to be regarded as the main item, the contractor, insofar as the main item belongs to the contractor, shall transfer to Beissbarth the proportionate co-ownership of the uniform item in the proportion specified in sentence 1.

6. In the event of resale of the Reserved Goods, the contractor hereby assigns by way of security the resulting claim against the purchaser – in the case of Beissbarth’s co-ownership of the Reserved Goods, in proportion to the co-ownership share – to Beissbarth. This also applies to other claims substituting the Reserved Goods or arising with regard to the Reserved Goods, such as insurance claims or claims based on tort in case of loss or destruction. Beissbarth revocably authorizes the contractor to collect the receivables assigned to Beissbarth in its own name. Beissbarth may revoke this authorization of collection only in the event of realization.

7. The contractor is not entitled to dispose of the Reserved Goods or the claims assigned to Beissbarth other than as expressly regulated in these Terms and Conditions of Sale.

8. Upon Beissbarth’s request, the contractor shall promptly inform Beissbarth in writing to whom it has sold the owned or jointly owned Reserved Goods and to which claims it is entitled from the resale, as well as to provide Beissbarth with publicly certified documents on the assignment of the claims at the expense of the contractor.

9. If third parties access to the Reserved Goods, particularly by way of seizure, the contractor shall promptly notify the third party of Beissbarth’s title and notify Beissbarth thereof to enable Beissbarth to enforce its ownership rights. If the third party is not able to reimburse Beissbarth for any court fees or out-of-court costs incurring in this connection, the supplier shall be liable for these fees and costs towards Beissbarth.

10. If the value of the securities provided to Beissbarth exceeds the value of Beissbarth’s claims by more than 10% in the aggregate, Beissbarth shall release any reserved property at its option at the contractor’s request.

11. Should Beissbarth rescind the contract due to the supplier’s behavior being contrary to the contract – particularly default of payment –, Beissbarth is entitled to demand the return of the Reserved Goods.

 

IX.     Assembly, Maintenance and Repair

1. Beissbarth carries out assembly, maintenance and repair services on the basis of the following regulations. Insofar as the contractor has to carry out preliminary works, the contractor shall be liable for the timely and professional execution of preliminary works on the basis of the information, sketches and other planning documents to be provided by Beissbarth, as stated in the order confirmation. Prior to the date of assembly, fitting or repair to be notified by Beissbarth, the contractor shall ensure that the relevant preliminary works have been carried out professionally. If an assembly cannot be completed due to reasons for which the contractor is responsible, the contractor must reimburse Beissbarth for any costs incurred by the unnecessary journey. This also applies to the provision of services for computer systems. In this case, the contractor is responsible for the backup of the data that could be compromised by the provision of these services by Beissbarth.

2. Unless otherwise agreed, the costs of transport, unloading assistance, etc., shall also be borne by the contractor.

3. The contractor shall, moreover, ensure at its own expense that the premises are suitable for assembly and that any necessary power connection is available.

4. Unless otherwise agreed, Beissbarth’s services and expenses are charged on the basis of Beissbarth’s price list applicable at the time the order is placed. The working time is charged by labor values (LV) unless otherwise agreed. A labor value is 5 minutes. Beissbarth is entitled to charge 3 labor values (LV) for work preparation per order. The minimum working time to be calculated per order is, including work preparation, 6 labor values (LV). In addition to the working time spent, the contractor shall bear the expenses for travel to and from the place of performance, accommodation and allowances on the basis of Beissbarth’s price list applicable at the time the order is placed.

5. If it turns out after the start of the repair work that the expected repair costs are not in an economically justifiable proportion to the value of the item to be repaired, the work shall be interrupted and the contractor shall be notified of the expected costs for approval. If the repair reveals defects, the elimination of which exceeds the actual scope of the repair, Beissbarth shall notify the contractor of the estimated additional costs or prepare a cost estimate unless the repair is owed free of charge within the scope of the statutory warranty rights and/or a guarantee assumed by Beissbarth.

6. The contractor is obligated to ascertain the proper condition of the performance by Beissbarth without undue delay and to accept them or to give notice of any defects found. The service is deemed to have been accepted if the products are put into operation as intended in the workshop or business operation.

7. Performance is also deemed accepted if no defects are notified in writing within seven (7) calendar days after the products were handed over to the contractor. The notice of defects shall include a statement of reasons which sufficiently identifies the defect. The foregoing does not affect the contractor’s right to notify subsequently found defects and to demand their removal under Beissbarth’s warranty obligation.

8. Unless otherwise agreed, any replaced parts become Beissbarth’s property without compensation.

 

X.      Warranty, Scope of Liability, Burden of Proof

1. The warranty period shall be one year after delivery or handover, or if acceptance is required, after acceptance. This period does not apply to claims for damages of the contractor arising from an injury to life, body or health, or an intentional or grossly negligent breach of duty on the part of Beissbarth or its vicarious agents, which shall become statute-barred in accordance with the statutory provisions.

2. If the items to be delivered are stored, the warranty period commences one (1) month after the notification of their readiness for shipment at the latest.

3. The delivered goods must be carefully inspected after handover to the contractor or a designated third party without undue delay. They are deemed approved by the contractor concerning apparent defects or other defects that would have been recognizable if the goods had been promptly and carefully inspected unless Beissbarth receives a written notice of defects within seven (7) calendar days after handover. Products are deemed approved by the contractor concerning hidden defects unless Beissbarth receives notice of defects within seven (7) calendar days after the time when the defect was found; if the defect became apparent at an earlier point in time when used under normal circumstances, the earlier point in time shall, however, be decisive for the commencement of the notice period. The objected product shall be returned to Beissbarth with carriage paid at Beissbarth’s request. If the notice of defects is justified, Beissbarth shall reimburse the expenses for the least expensive shipping method; this does not apply to the extent that such costs increase because the products are at another location than the location of the intended contractual use.

4. Claims for defects in quality do not exist in case of only insignificant deviation from the agreed quality or only insignificant impairment of usability.

5. The liability for defects does not apply to natural wear and tear, to damage arising after the passing of risk as a result of improper handling, storage, installation, assembly or start-up by the contractor or third parties, incorrect or negligent handling, unsuitable operating materials, defective construction work, unsuitable building ground or chemical, electrochemical or electrical influences, non-observance of installation and handling instructions or excessive strain or use.

6. Damage caused by force majeure, special external influences which are not provided for under the contract or the use of the products beyond the use provided for under the contract or normal use shall not constitute defects in quality.

7. Claims for defects in quality do not exist if the products have been modified by the contractor unless the contractor proves that the defect is not causally related to the modification. Beissbarth is not liable for the quality of the product, which is based on the design or the choice of material if the contractor has prescribed the design or the material.

8. In case of defects in quality of the delivered products, Beissbarth is obligated and entitled to choose, within a reasonable period of time, between repairing or replacing the product or the defective part of the product. If supplementary performance failed repeatedly, the contractor may rescind the contract or reduce the purchase price after having set a reasonable deadline. The limitation period does not restart with the supplementary performance.

9. The contractor shall give Beissbarth the required time and opportunity to remove the defect and particularly deliver the objected product to Beissbarth for inspection. If the contractor refuses to do so, Beissbarth shall be released from its liability for defects.

10. If the defect is due to a fault of Beissbarth, the contractor may claim damages under the prerequisites set forth in clause XIV.

11. If the delivered products and/or parts of products are products from other manufacturers, Beissbarth reserves the right to assign its warranty claims against the other manufacturer to the contractor to fulfil its warranty claims. In this case, the contractor may assert a warranty claim against Beissbarth only if the contractor can prove that it is not possible or that it cannot be expected to enforce the assigned claims out of court.

Upon request, Beissbarth shall provide the contractor with all information required to enforce the warranty claims and reimburse the expenses incurred in agreement with Beissbarth if such expenses are required for the purpose of supplementary performance.

12. The delivery of used goods as agreed with the contractor on a case-by-case basis shall occur to the exclusion of any warranties for defects in quality.

13. Beissbarth is entitled to refuse the removal of defects without suffering any legal disadvantages if the contractor withholds due payments owed by it to an extent that is reasonably disproportionate to the found defects.

 

XI.     Contractor’s Right of Rescission

1. The contractor is entitled to rescind the contract if the service owed by Beissbarth becomes impossible. In case of partial impossibility of performance, the contractor is entitled to do so only if it is not interested in partial performance. If the impossibility of performance occurs during the default of acceptance or due to the contractor’s fault, the contractor is still obligated to pay the consideration.

2. The contractor is entitled to rescind the contract if Beissbarth is in default of performance and if the contractor gives reasonable additional time and expressly declares that it will refuse acceptance of the service after expiration of the additional time and if the additional time expires due to Beissbarth’s fault.

 

XII.    Beissbarth’s Right of Rescission due to Unexpected Events

Beissbarth is entitled to rescind the contract if unexpected events within the meaning of clause V.5 substantially change the economic relevance or the contents of the performance or materially affect Beissbarth’s operations. Should Beissbarth exercise the right of rescission, Beissbarth shall notify the contractor without undue delay after becoming aware of the implications of the event, even if the contractor agreed to an extension of the time of delivery before. In this case, the contractor is not entitled to any claims for damages.

 

XIII.   Contractual Guarantee (“Guarantee”)

With regard to any and all products delivered by Beissbarth, Beissbarth guarantees the contractor in accordance with the following provisions that the delivered product is free of material or manufacturing defects:

1. The guarantee period is thirty (30) months for products sold by Beissbarth and manufactured in the EU and eighteen (18) months for other products sold by Beissbarth. The guarantee period is six (6) months for spare parts (EU products and others) sold by Beissbarth that are installed/fitted in a product after expiration of this product’s guarantee period. The guarantee period commences at the date of Beissbarth’s invoice.

2. The guarantee exclusively applies to the country to which Beissbarth sold the product directly to the contractor (the “Country of Sale”).

3. Any defect covered by the guarantee shall be removed by repair or delivery of new or refurbished parts; in this case, Beissbarth only bears the costs of the required spare parts covered by the guarantee. Beissbarth does particularly not bear any labor costs. Beissbarth only bears transport costs relating to the shipment of spare parts or refurbished parts that are exchanged under the existing guarantee. Products or parts replaced by Beissbarth become the property of Beissbarth.

4. The guarantee claim must be asserted within the guarantee period. The contractor bears the burden of proof regarding the date of installation/fitting pursuant to sentence 1 of clause XIII.1. If the contractor sends the product to Beissbarth, the contractor bears the transport costs and risk.

5. Services performed under the guarantee extent or restart neither the guarantee period nor claims for liability for defects or other legal claims regarding the product.

6. The guarantee does not affect the contractor’s statutory rights against Beissbarth.

7. Claims under the guarantee only exist if

a) the product shows no damage or signs of wear and tear caused by use that deviates from the normal purpose and the specifications of Beissbarth (e.g., according to the user manual);
b) the defect is not due to overloading or lack of care or maintenance;
c) the defect is not due to the use of spare, accessory or additional parts that were no original parts;
d) the product shows no signs of repair or other intervention by workshops not authorized by Beissbarth / third parties / the contractor itself;
e) accessory parts authorized by Beissbarth were fitted in the product;
f) the serial number was not removed or made unrecognizable; and
g) the contractor proves, when enforcing the guarantee, by presenting the corresponding maintenance booklet that the product has been regularly maintained by an authorized customer service within the intervals to be observed for this purpose according to the user manual.

8. Claims under the guarantee may only be asserted vis-à-vis Beissbarth by presenting the original invoice stating the date of purchase within an expiration period of two (2) months from the occurrence of the guarantee claim or, if the defects are not apparent immediately, within two (2) months from their discovery. The costs for sending and returning the product are borne by Beissbarth. Beissbarth shall, however, not bear these costs if Beissbarth or the respective customer service asked the contractor to use a particular carrier and if the contractor used another carrier.

9. In the event that guarantee claims are asserted and the inspection of the product by Beissbarth or the respective customer service showed that there was no defect or that the guarantee claim does not exist for any of the aforementioned reasons, Beissbarth is entitled to charge a service fee of EUR 50.00. This does not apply if the contractor can prove that it could not recognize in the circumstances that the guarantee claim did not exist.

10. This guarantee applies to the aforementioned extent and under the aforementioned conditions (including presentation of proof of purchase in case of resale) also to any future owner of the product residing in the Country of Sale.

11. The guarantee does not apply in the case of minor deviations from the reference quality, which only insignificantly affect the usability and value of the product.

 

XIV.   Liability

1. Beissbarth’s liability for damages for whatever legal reason, particularly based on impossibility, delay, defective or wrong delivery, breach of contract, breach of obligations in the event of contract negotiations and tort, shall be subject to the limitations pursuant to this Section XIV if occurred due to fault.

2. Beissbarth shall not be liable in case of ordinary negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents unless contractual obligations are violated. Contractual obligations mean any obligations to complete delivery in due time and to install the products, to deliver the products free of defects of title and free of material defects which do not only insignificantly impair their functionality or usability, as well as obligations to provide advice and protection and to exercise proper care, all of which are supposed to enable the contractor to use the products in accordance with the contract or aim at the protection of its staff’s health or life or the protection of its property against substantial damage.

3. To the extent Beissbarth is liable to pay damages on its merits pursuant to clause XIV.2, such liability shall be limited to damages foreseen by Beissbarth as possible consequence of a contract violation at the conclusion of the contract or which Beissbarth had to foresee if it exercised customary care. Indirect damages and consequential damages based on defects of the products shall only be eligible for compensation to the extent such damage can be typically expected when the products are properly used.

4. In case of liability based on ordinary negligence, Beissbarth’s obligation to pay compensation for material damage and any consequent further financial loss shall be limited to the agreed consideration even if contractual obligations were breached. In this case, Beissbarth’s obligation to pay compensation is limited to an amount of EUR 10,000.00 per claim in any case regardless of the limitation to the agreed consideration.

5. The aforementioned exclusion and limitation of liability apply accordingly in favor of Beissbarth’s executive bodies, legal representatives, employees or other vicarious agents.

6. To the extent Beissbarth gives technical information or provides advice and to the extent such information or advice is not part of the owed, contractually agreed scope of services, this shall be made free of charge and to the exclusion of any liability.

7. The limitations of this Section XIV. do not apply to any liability of Beissbarth for willful conduct, for guaranteed quality characteristics, due to an injury to life, body or health, or under the German Product Liability Act (Produkthaftungsgesetz).

 

XV.    Confidentiality

1.  Any business or technical information provided by Beissbarth (including features that can be gathered from provided objects or software and other knowledge or experience) must be kept secret from third parties as long as and to the extent that this information is not demonstrably publicly known or has not been designated by Beissbarth for resale by the contractor, and may only be made available in the contractor’s own business to those persons who must necessarily use it and who are also obligated to maintain secrecy; it shall remain the exclusive property of Beissbarth. This information must not be copied or commercially used without Beissbarth’s prior written consent. All Information (including copies or records, if any) from Beissbarth and any objects handed over on loan must be completely returned or destroyed without undue delay at Beissbarth’s request. The contractor shall confirm in writing and adequately prove the destruction at Beissbarth’s request.

2. Beissbarth reserves all rights to the information mentioned in clause XV.1 (including copyrights and the right to apply for industrial property rights, such as patents, utility models, semiconductor protection, etc.).

 

XVI.   Property Rights and Copyrights

1. The contractor shall promptly notify Beissbarth in writing if claims are asserted against the contractor due to an infringement of property rights in connection with the deliveries and services of Beissbarth. Upon request, the contractor shall – as far as possible – permit Beissbarth to conduct legal proceedings (also out of court).

2. Should the delivered product infringe a property right, Beissbarth shall – at its option and expense – modify or replace the product so that it does no longer infringe any property rights but still fulfils the agreed function, or procure the right of use for the contractor by entering into a license agreement with the third party. If Beissbarth fails to do so within a reasonable period of time, the contractor is entitled to rescind the contract or reduce the purchase price adequately. The contractor’s claims for damages, if any, are subject to the provisions of Section XIV of these Terms and Conditions of Sale.

3. Should the products from other manufacturers delivered by Beissbarth infringe any rights, Beissbarth shall – at its option – enforce its rights against the manufacturers and subsuppliers on account of the contractor or assign its claims to the contractor. Claims pursuant to this Section XVI. shall only exist against Beissbarth in this case if the judicial enforcement of the aforementioned claims against the manufacturer and subsupplier was not successful or unpromising due to insolvency, for example.

4. Beissbarth shall not be liable for any claims due to the infringement of property rights if the property right is or was held by the contractor and/or a company in which the contractor directly or indirectly holds the majority of capital or voting rights.

5. Any claims of the contractor shall be excluded insofar as the contractor is responsible for the infringement of the property rights or if the contractor failed to adequately assist Beissbarth in the defense against third party claims.

6. Any claims of the contractor shall further be excluded if the products were manufactured according to the contractor’s specification or instructions or if the (alleged) infringement of property rights resulted from use of the products together with another item from a source other than from Beissbarth or if products are used in a way that could not be foreseen by Beissbarth.

7. Apart from that, the obligation to pay damages in case of an infringement of property rights is governed by Section XIV.

8. Clause X.1. applies accordingly to the statute of limitations of claims due to an infringement of property rights.

9. Further claims or other claims of the contractor due to an infringement of property rights of third parties not regulated in this Section XVI. are excluded.

 

XVII.  Miscellaneous

1. Insofar as the concluded contract, including these Terms and Conditions of Sale, provide for written form, transmission by telecommunication is sufficient, particularly by telefax or e-mail, provided that the copy of the signed declaration is transmitted.

2. The relationship between the contractor and Beissbarth is exclusively subject to the laws of the Federal Republic of Germany to the exclusion of the conflict of law provisions and the UN Sales Convention (CISG).

3. If the contractor is a merchant, a legal entity under public law or a special fund under public law or if the contractor has no general place of jurisdiction in the Federal Republic of Germany, place of jurisdiction for all disputes arising under the business relationship between Beissbarth and the contractor shall be Munich, Germany, or, at Beissbarth’s option, the place of the permanent establishment carrying out the order. Exclusive place of jurisdiction for any actions filed against Beissbarth shall, however, be Munich, Germany. Beissbarth is also entitled to sue in the court having jurisdiction over the contractor’s place of business or establishment. Mandatory statutory provisions regarding the exclusive place of jurisdiction are not affected thereby.

4. Should these Terms and Conditions of Sale have not become part of the contract or are invalid in whole or in part, the remaining provisions of the purchase contract shall remain valid otherwise. In the event any provision of these terms is or becomes totally or partially invalid, the validity of the remaining provisions hereof shall not be affected thereby.