Terms & Conditions 08/02 General Terms and Conditions of Purchase Order of MAXDATA Computer GmbH & Co. KG („MAXDATA‘‘) 1. General Provisions, Scope a) All purchases and deliveries shall be subject to the following exclusive Terms and Conditions („Terms and Conditions“); all other terms or conditions of the purchaser, express or implied, deviating from or contradictory to the Terms and Conditions are excluded unless we expressly agree to such terms or conditions in writing. Our Terms and Conditions shall also apply in cases when we unreservedly deliver goods or services ordered whilst aware of contradictory or deviating purchase conditions of the purchaser. b) Our Terms and Conditions shall only apply to contractors as defined in section 14 BGB (German Ciode). vil Cc) Our Terms and Conditions shall also apply to all future agreements between us and the purchaser. 2. Offers Our offers are subject to alteration without notice, unless otherwise specified in the written offer. 3. Prices, Terms of Payment a) Unless set out otherwise in our written confirmation of order, our prices are ex Marl warehouse and shall exclude the costs for transportation to the purchaser. b) All specified prices are without the statutory VAT; the purchaser shall be obliged to pay the additional statutory VAT valid on the day of invoice as set out in the invoice provided. c) Unless set out otherwise in our written confirmation of order, the purchase price shall fall due immediately and without deduction on delivery of the purchased goods. In case of default of payment by the purchaser, we are entitled to demand default interest in the amount of 8% above the annual base rate, however at a rate of at least 10% per annum. d) The agreed acceptance of checks for the performance of the demanded purchase price shall only apply on account of performance unless otherwise provided in our written confirmation of order and shall not affect the maturity of the demanded purchase price; however, we agree not to enforce such outstanding claim on a preliminary base unless due to a dishonoured check our claims have remained unsat-isfied. We endeavour to present each check at our banks within four weeks; however, the purchaser shall bear the risk of dishonouring. It is agreed, therefore, that in case of a dishonoured check, the purchaser shall pay interest on the demanded purchase price from the day of the delivery of the goods purchased. In such case, the interest rate set out in section c) shall apply accordingly. However, this provision shall not apply to checks dishonoured due to late presenting of a check at the bank or if the purchaser establishes that such dishonouring is not attributable to him/her. 4. Terms of Delivery, Late Delivery a) Unless agreed otherwise, delivery dates are not bind-ing; in particular, we are not responsible for the duration of transport or the timely arrival of the purchased goods at the purchaser’s site. b) If in case of a delayed delivery or non-delivery, the purchaser has granted an additional period of grace of reasonable duration, he/she is entitled to terminate the agreement or demand damages, should we fail to duly perform within such period, provided, however, that the purchaser shall be entitled to demand damages only in case of damages caused by intention or gross negligence or if in case of negligent acts that are not deemed cases of slight negligence an obligation to assume the risk of procurement or to grant warranty has arisen. The amount of such dam-ages shall be limited to sustained damage or loss typically predictable when completing the agreement. c) The limitation of liability as set out under b) shall not apply if a commercial transaction for delivery by a fixed date has been agreed. d) If the purchaser is in default of acceptance, we are entitled to charge the resulting damage or loss to the purchaser, including any additional costs assumed. In such case, the sk of accidental perishing or of accidental deviation of the purchased goods shall pass to the purchaser at the beginning of such default. 5. Risk of loss a) Unless provided otherwise in the confirmation of order, delivery ex Marl warehouse is agreed. b) If the parties have agreed shipment of the purchased goods to the purchaser, or to a Third Party as specified by the purchaser, the purchaser shall bear the risk of trans-portation. However, the aforegoing provision shall only apply to purchasers that are not consumers as defined in section 13 BGB (German Civil Code). While we procure proper packaging for the transport and make appropriate arrangements with a freight carrier, we do not assume any further responsibilities for the shipment of the goods. 6. Warranty a) The purchaser’s right to warranty shall only apply if he/she has fulfilled his/her obligation to due inspection and notification within the framework of sections 377 and 378 HGB (German Commercial Code). b) The term of warranty is 24 months from delivery, unless MAXDATA has expressly granted an additional term of warranty. For any other claims put forward, the according statutory period of limitation shall apply. c) In case of a defect in the purchased goods that is attrib-utable to us, we are obliged to either repair or replace the defective goods at our discretion. In such case, we assume all costs of labour or material caused in the framework of such repair. However, the costs of freight for the transportation of the goods to our site shall be borne by the purchaser. If we are not willing to grant the aforementioned repair or replacement or if such repair or replacement fails, the purchaser is entitled at his/her own discretion to terminate the agreement or demand an appropriate reduction in the purchase price. d) Unless provided otherwise in the following provisions, any additional claims of the purchaser shall be excluded irrespective of the legal base or context of such claims. We do not assume any liability for damage caused otherwise than on the actual goods delivered; we especially exclude any liability for lost profits or any other property damage arising to the purchaser. e) The aforementioned limitations of liability shall not apply if the damage is attributable to a wilful or grossly negligent breach of obligations or if in case of negligent acts not deemed cases of slight negligence, an obligation to assume the risk of procurement or to grant warranty has arisen or if damages for bodily injuries, death or deviation of health are put forward or in case of the existence of the requirements of section 444 BGB (German Civil Code). f) In case of negligent breach of a material contractual obligation by us, we shall be liable to damages for the predictable dmage. ag) All guarantees issued by MAXDATA are subject to the conditions printed on the counter in force at the time of delivery. h) If the purchased goods are without defect or if the actual defects are not attributable to us, we are entitled to charge the purchaser for the testing and transports costs arising thereto. 7. Overall warranty a) Insofar as our damage liability has been excluded or limited as specified in sections 6 d) to f), such provisions shall also apply accordingly to claims arising out of fault or negligence within the framework of the conclusion of this agreement, non-observance of covenants and any other damages arising, especially for damages put forward on grounds of tort. b) The provision set out under a) shall not apply in cases of mandatory liability as prescribed by the applicable laws and regulations, especially within the framework of sections 1 and 4 ProdHaftG (German Law on Product Liability). c) Insofar as our liability has been excluded or limited, such exclusion or limitation shall also apply to the liability of our employees, agents, representatives, officers or contractors. 8. Transfer of Ownership a) Any delivery of goods shall be subject to reservation of title. The title of the goods shall not pass to the purchaser before he/she has fulfilled each and every obligation within the framework of the relevant purchase. This shall also apply if the purchaser has made payments for particular goods specified by the purchaser. In case of current accounts, the reservation of ownership shall secure our amount of balance. b) The purchaser shall be obliged to handle the purchased goods with reasonable care; in particular, he/she shall be obliged to provide appropriate insurance policies for fire, water and larceny damage in the amount of the replace-ment value. c) In case of liens, encumbrances or other interfering meas-ures taken by Third Parties, the purchaser shall notify us immediately and in writing in order to make sure that we can enforce our claims and titles in accordance with section 771 ZPO (German Code on Civil Procedure). In cases where such Third Party is not able to assume the judicial and non-judicial costs for such complaint in accordance with section 771 ZPO (German Code on Civil Procedure), the purchaser shall assume liability for the costs sustained by us. d) The purchaser is entitled to re-sell the goods within the framework of due course of business; however, he/she hereby assigns each and any receivables including VAT arising from the re-sale that he/she claims against his/her customer or Third Parties; this provision shall apply to all purchased goods re-sold, whether processed or not. The purchaser shall ensure that he/she is entitled to demand such receivables even after an assignment thereof has been made. This shall not affect our authority to assume the recovery of such receivables. However, we agree not to recover such receivables insofar and as long as the pur-chaser fulfils his/her obligation to make payments from the proceeds received, and is neither in default nor has stopped or suspended payments or become subject to insolvency proceedings. However, in any other case, we are entitled to demand that the purchaser notify the assigned receivables and the corresponding debtor(s), that he/she provides all information required to enable us to recover such receiva-bles, that he/she provides the according documents and that he/she informs such debtors (Third Parties) on the assignments made. e) The processing of all goods delivered and owned by us shall be by our order, provided, however, that we do not assume any obligations arising thereat. If the purchased goods are processed together with other objects not owned by us, we effect joint ownership of the newly produced good(s) in the proportion of the purchased goods to the other processed objects within the processing stage. For the goods resulting from such processing, the provisions for the purchased goods delivered subject to reservation shall apply accordingly. If the purchased goods are inseparably mixed with other objects not owned by us, we effect joint ownership of the newly produced good(s) in the proportion of the purchased goods to the other mixed objects within the processing stage. If the mixture is effected in a way that the goods owned by the purchaser are deemed the essential good, it is agreed that the purchase shall proportionately assign joint ownership of the mixture to us. The purchaser shall deposit the resulting joint or sole property for us. f) On demand of the purchaser, we shall agree to release the securities attributable to us insofar as the value of the securities is in excess of more than 20% of the receivables to be secured; we assume the right to select the securities to be released in our sole discretion. 9. Data Security a) Before the performance of any activities for removing faults, making replacements or servicing, the purchaser shall create backup copies of all programs and data used by the purchaser at own risk and responsibility and on external data media. MAXDATA accepts no liability of any kind whatsoever for loss of data and consequential damages. b) MAXDATA is not obliged to draw the attention of the purchaser to the possibility of loss of data or the need to create backup copies before commencing work. 10. Right of Retention, No Offset The purchaser is neither entitled to retention nor to offset any of our receivables to existing cross-claims, unless such cross-claims have become res judicata or unless we have expresy acknowledged such claims. 11. Group Accounting a) Hereinafter, the term „MAXDATA group companies“ shall include both MAXDATA AG and all affiliates of MAXDATA AG in accordance with the definition set out in section 15 and the following sections of the German Corporation Law („Aktiengesetz“). b) The parties hereby agree that all receivables acquired by us and any other MAXDATA group company against the purchaser shall be owned by all MAXDATA group companies as joint creditors and that such receivables may be set off against the liabilities each MAXDATA group company owes to the purchaser. c) Notwithstanding the provision of sub-section a), the purchaser‘s receivables against any MAXDATA group company may be set off against receivables of MAXDATA group companies to be paid by any other companies of the company group the purchaser forms part of. d) Above stipulations shall also apply if in the one case cash payment has been agreed while in the other case payment by check has been conceded and/or if the mutual claims fall due on differing dates; such claims shall be accounted for in accordance with the value date. e) In case of a pluraltiy of receivables the purchaser shall not object to our determination in respect of the offsetting receivable f) On request we shall supply the purchaser with a complete list of the companies affiliated with MAXDATA AG. A list of all affiliated companies can also be gathered from each current annual report that we will make available to the purchaser on request. 12. Choice of Law, Jurisdiction a) If the purchaser of MAXDATA is deemed a contractor as legally defined, our place of business shall be the place of jurisdiction. However, MAXDATA shall also be entitled to sue the purchaser before the courts competent for his/her place of business. b) Unless provided otherwise in our confirmation of order, our place of business shall be deemed place of delivery and performance. c) These Terms and Conditions shall be exclusively governed by German law. The United Nations’ Conventions on Con-tracts for the International Sale of Goods (CISG) concluded onthe 11th April, 1980, shall not apply. 13. Final Provisions a) Any amendments, alterations or changes to these Terms and Conditions shall be effective only if made in writing. b) If any provision of these Terms and Conditions is held to be invalid or unenforceable, such determination shall not affect any other provision thereof. The ineffective provision shall be replaced by a legally admissible and effective one that would have been agreed by the contractual parties when concluding the contract, had they been aware of the inadmissibility of the provision concerned. 04/02 © Copyright by MAXDATA Computer GmbH & Co. KG Elbestraße 12-16 o 45768 Marl o Germany |
