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General Terms & Conditions of MicroNova AG / ks.MicroNova GmbH

The following terms and conditions apply to sales and deliveries and work and service performances (hereafter collectively also referred to as merchandise) of the company MicroNova AG / ks.MicroNova GmbH (Seller) on the one part and Buyer on the other part.

§ 1 Conflicting General Terms and Conditions
The General Terms and Conditions of Buyer, even if they are applied by Buyer at a later date and unless they are approved by Seller in writing, shall become integral part of the contract inasmuch as they do not contradict the present Terms of Sale and Delivery. Conflicting General Terms and Conditions shall not affect the validity of the contract concluded hereunder. As far as terms and conditions are contradictory, statutory rules shall apply.

§ 2 Offers for Sale, Conclusion of Contract, Offer-Sheet Documents

Seller's offers for sale are without any obligation and not binding. Buyer is committed to his order for 15 working days. Orders shall become binding for Seller once he confirms them in writing, or once Seller honors them by supplying the merchandise.
Seller's written acknowledgement of order determines the substance and extent of the performance to be rendered. Any and all agreements, no matter if they are made when concluding the contract or thereafter, require to be made in written form.
1. Verbal side agreements shall become legally binding provided they are confirmed by Seller in writing.
2. Technical advice is not subject matter of the contract; it is binding only if done in writing. Technical advice does not exempt Buyer from the obligation of an appropriate and professional use of Seller's products.
3. Buyer shall be solely responsible for the complete, accurate and timely supply of any and all documents to be provided or created by him necessary for the execution. If they are mailed to Seller electronically, they shall not be binding unless Seller has explicitly acknowledged their proper receipt.

§ 3 Prices, Terms of Payment
1. The prices quoted are unfixed prices and are ex factory, including loading in the factory, however, excluding any packaging. Seller will invoice shipping and packaging fees separately. All prices and fees are subject to the V.A.T. statutory at the day of delivery and shall be Buyer's responsibility.
In the event that between concluding the contract and delivery there happens to be an increase in costs for raw material, energy, wages or transportation, Seller shall be entitled to increase the corresponding prices provided that delivery is scheduled to be made after more than four months following the date of the contract and provided that Seller is not in delay of delivery at the time of the price increase. As far as price increases exceed 20 percent, it is at Buyer's discretion to cancel the contract. In the event that Buyer fails to accept the merchandise offered at the date mentioned in the confirmation of order, the prices prevailing at the time of delivery shall apply.
Inasmuch as Seller has undertaken the assembly or installation of the merchandise, and unless no other agreement has been reached, Buyer shall be responsible for any and all  incidental cost, traveling expenses, transportation cost for the supporting tools,  the baggage contained plus accommodation allowance in addition to the compensation agreed upon.
2. Seller's invoices become payable at his place of business within 30 calendar days following the delivery or partial delivery and date of invoice. There are no discounts or any other deductions granted.
If claims resulting from several deliveries and/or services do exist, it is at Seller's discretion to set-off monies received against any of the debts.
Should Buyer be in default of payment, Seller shall be entitled to request default interest of at least an amount equal to 8% above the prevailing basic interest rate and shall reserve the right of higher claims for damages caused by such default if such claims can be evidenced; Buyer shall have the burden of proof to evidence that Seller has not suffered a damage or has suffered a  damage to a much lesser extent as a result of the default of payment.
Buyer shall be entitled to set-off claims only, if his counter-claims have been legally ascertained, if they are undisputable and acknowledged by Seller. Buyer's right of withholding payments is restricted to counter-claims arising from one and the same contractual relationship.
In the event that Buyer asserts a legal withholding right due to actually existing or alleged deficiencies, such legal withholding right shall be restricted to withholding an amount equal to cover the expenditure for repairing the alleged deficiencies and such amount in proportion to the total debt shall not impair good faith.
3. Should Buyer fail to comply with the terms of payment or should Seller, at any time after concluding the contract, become aware of circumstances which diminish Buyer's credit standing, any and all claims by Seller towards Buyer become payable with immediate effect. The same applies if Buyer discontinues payments, if he is heavily indebted, if insolvency proceedings over the assets of Buyer are opened or if such proceedings are refused due to insufficient assets. In such case Seller shall have the right to execute those services still to be rendered by requesting payment in advance or security and to cancel the contract after an appropriate grace period has elapsed without being held responsible for any compensation or claims for damages because of non-fulfillment; notwithstanding and without limiting the generality of the foregoing, Seller shall be entitled, at Buyer’s cost, to request the return of the merchandise delivered under reserved ownership.
This does not apply, however, if the default of payment by Buyer is based on grounds of a justified complaint.
4. In the event that Buyer undertakes to cancel the contract for any reasons other than caused by Seller, Seller shall have the right, notwithstanding any and all other claims arising thereof, to charge Buyer for the technical and commercial processing with a share of costs equal to a flat rate of 10% of the purchasing price; Buyer shall have the burden of proof that no or costs to a much lesser extent have accrued to Seller as a result of canceling the contract.

§ 4 Delivery, Acceptance
1. Delivery:
a) The delivery is made in accordance with the offer-sheet or the confirmation of order. Unless a certain method of shipment has been agreed upon, it is at Seller's discretion to determine the means of transportation. If Buyer elects to collect the merchandise himself, it is his responsibility to check if the merchandise is loaded properly and to reprimand inadequacies in loading, if any, promptly.
b) Delivery dates and deadlines are subject to the uninterrupted production process and unhampered transportation- and delivery opportunities. Delivery dates agreed upon shall mean the dates when the merchandise is ready for collection or for delivery ex factory. Delivery deadlines shall commence with the dispatch of the confirmation of order, however, not prior to the receipt of relevant documents, permissions, releases or the submission of necessary information on Buyer's part or before the receipt of the down-payment agreed upon.
Seller's delivery obligation is suspended as long as Buyer is in default of any of his obligations that have become due.
c) Lack of raw materials or energy, strikes, lockouts, traffic break-downs and official decrees as well as infringements of delivery deadlines by subcontractors, malfunctions in production, all cases of force majeure and any and all circumstances beyond the control of Seller or his representatives shall release Seller from his delivery commitment as long as such circumstances prevail and as long as they affect his delivery obligation.
Should any of the afore-mentioned events occur, Seller -  notwithstanding § 6 subparagraph 3. g) gibt es nicht Anm. Übersetzer of these General Terms and Conditions - shall have the right to cancel the contract without  any claims for damages as long as the performance has become impossible or unreasonable or the end of the obstacle in rendering the services is unforeseeable.
d) Partial deliveries are permissible within the deadline specified by Seller as far as there will not emerge any disadvantages for their use. Complaints by Buyer arising from partial deliveries shall not release Buyer from his obligation to take delivery of the remaining quantities of the merchandise and/or partial services ordered pursuant to the contract.
2. Acceptance:
Should Buyer get in default of taking delivery or should he infringe any other duty to cooperate, it is at Seller's discretion to request a weekly compensation caused by the default equal to a flat rate of 3 % of the delivery value, such compensation, however, shall not exceed 15 % of the delivery value. Seller shall have the right to evidence a higher damage; Buyer shall have the burden of proof to evidence that Seller has not suffered a damage at all or has suffered a damage to a much lesser extent as a result of the default in taking delivery.
Should Buyer fail to take delivery of the services and/or products ready for dispatch on the delivery date agreed upon or within the delivery deadline, delivery shall be deemed to be accepted and approved after three weeks following the delivery-/dispatch date and/or after the deadline has elapsed, at the latest, however, at the date Buyer commences to use the services and/or products.

§ 5 Assignment of Risk, Place of Performance

1. The place of performance for the delivery and payment is the factory of Seller.
2. The risk of loss or destruction or the deterioration of the object of purchase is assigned to Buyer once the object of purchase is handed over to the carrier; if Seller uses his own vehicles for shipment, the risk is assigned to Buyer after loading in the factory has been completed. At this point of time the delivery is deemed to be fulfilled.

§ 6 Warranty, Claims for Damages
1. Buyer undertakes to complain and assert any claims by notifying Seller of any obvious defects, wrong deliveries, missing or excess quantities immediately in writing. Any complaints and alleged claims have to be made within the warranty period and, in any event, before the merchandise is processed, combined or mixed. Even hidden deficiencies have to be reported in written form immediately after their discovery, at the latest, however, before the warranty period has elapsed.
Seller's statements concerning suitability, workmanship and application of the merchandise, technical advice and other information are given to the best of Seller's knowledge, however, they do not release Buyer from own examinations and tests. Buyer undertakes to inspect the merchandise delivered immediately upon arrival to make sure that there are no deficiencies in terms of quality and purpose of use.
Seller shall be given the opportunity to inspect the deficiency and/or to have it inspected by his authorized specialists; Seller shall be entitled to these rights unless Buyer is able to substantiate that due to imminent danger emergency measures had to be seized. The payment of fees for an external consultant requires the prior written consent of Seller in each individual case.
2. The warranty for new merchandise is one year commencing on the date of delivery or installation by Seller. Used merchandise and/or materials are excluded from warranty.
3. Buyer shall be entitled to warranty claims pursuant to the following conditions:
a) Seller warrants that there are no defects in material- or workmanship which prevent the Software from executing its programming instructions as long as it is properly installed and used on the hardware specified by Seller. Furthermore, Seller warrants that the standard Software substantially conforms to the specifications. A minor departure from the specification shall not entitle Buyer to assert claims for defects as far as no operational disadvantages become apparent and as far as the purpose of the contract is not jeopardized. Seller does not warrant that the Software will work in combination of hardware and software selected by Buyer or that the Software will meet those requirements specified by Buyer.
b) If Buyer's claim is based on injury of life, body or health or the violation of cardinal duties, product liability or if the cause of damage is based on willfulness or gross negligence including willfulness or gross negligence on the part of Seller's representatives or subcontractors, the regulations statutory by law shall apply.
c) Seller at his discretion shall have the right to make free repairs or new deliveries or reproductions of all those parts or services which turn out to have a material defect within the statutory period of limitation provided that the cause of such material defect already existed at the time of the risk assignment. At first, Seller always shall be given the opportunity of post fulfillment within a reasonable period of time. In the event that after two repair attempts the removal of defects finally fails, it is at Buyer's discretion, notwithstanding any claims for damages, if any, according to subparagraph a), to cancel the contract or to diminish the compensation.
In case Buyer or third parties undertake inappropriate modifications or repair work, any claims for defects resulting thereof or resulting from the consequences thereof shall be refused.
Likewise, there shall be no claims for defects on Buyer's part for damages resulting from faulty or negligent handling, improper use and modifications of the Software following the assignment of risk.
In particular, this applies to Buyer's loss of data resulting thereof or from industrial accidents. Also excluded are claims for errors caused by negligent maintenance or calibration undertaken by Buyer or third parties. Besides, Seller shall not be held liable for any hardware, software or interfaces supplied by Buyer or third parties, neither is Seller liable for the improper operation beyond the specifications for the product, the improper use, misuse, negligence or accident in the sphere of Buyer, loss or damage during transportation or the improper preparation of the setup location by Buyer. 
Some newly produced merchandise may include reconditioned parts and after sales services may use reconditioned parts which correspond to new products in terms of their performance.
d) Claims for damages which Buyer is entitled to on grounds of damages of objects other than the subject matter of the contract are excluded unless the purpose of the contract is jeopardized and whose reimbursement shall be limited to an amount of up to 50,000.00 Euros only.
e) Claims by Buyer resulting from expenditure required for the purpose of post-fulfillment, in particular transportation costs, traveling expenses, wages and material costs, are excluded.
f) Further stipulations concerning claims for damages:
aa) Claims for damages and claims for compensation of expenses on part of Buyer, regardless on which legal ground, in particular caused by violation of obligations and tort, are excluded with the exception of the mandatory limitation of liability stipulated in § 6 subparagraph 3. b).
Seller, in particular, shall not be held liable for loss of profit, indirect or consequential damages including costs for downtimes, loss of data, costs for repairs or covering funds unless it is a matter of negligently violating essential contractual obligations which jeopardizes the purpose of the contract.
The claim for damage caused by the violation of essential contractual obligations, however, is limited to the foreseeable damage typical of a contract like this unless there is a case of willfulness or gross negligence on part of Seller, his representatives or subcontractors or unless the liability on grounds of injury of life, body or health becomes effective. The stipulations set forth hereinabove shall not evoke any change in the burden of proof to Buyer's disadvantage.
bb) Inasmuch as Buyer according to this subparagraph 3 is entitled to assert claims for damages, they become barred by the statute of limitations with the expiry of the limitation period relating to warranty claims in conformity with subparagraph 2 hereinabove; excluded hereof are any claims asserted from delict which are subject to the statutory limitation period.

§ 7 Impossibility, Adjustment of Contract, Penalties
1. To the extent that the delivery is impossible, Buyer shall have the right to request claims for damages unless the impossibility is beyond Seller's control. Buyer's claim for damage, however, is limited to an amount equal to 10% of the value of that part of delivery and/or service which on account of the impossibility cannot be used properly. Such limitation shall not apply in cases of willfulness or gross negligence on part of Seller, his representatives or subcontractors or in case of mandatory liability on grounds of injury of life, body or health; this shall not evoke any change in the burden of proof to Buyer's disadvantage. Buyer's right to cancel the contract remains unchanged. 
2. In the event that unforeseeable events as defined in § 4, subparagraph 1. c) of these Terms and Conditions considerably change the economic significance and/or the substance of the delivery/service or if such unforeseeable events have a major impact on Seller's corporate operations, the parties hereto agree to adapt the contract reasonably and in good faith. As far as this is not justifiable on account of economic reasons, Seller shall have the right to terminate the contract. Should Seller decide to make use of this right of termination, he undertakes to notify Buyer immediately after the significance of the event is recognized and in spite of the fact that a prolongation of the delivery schedule was agreed upon between the parties before.
3. Contractual penalties towards Seller shall become effective only if they are laid down in a separate written agreement in each individual case.

§ 8 Securing Rights, Reserved Ownership

1. The merchandise delivered remains the property of Seller until full payment of the accounts receivable by Seller resulting from the business relation with Buyer is made, regardless of their legal foundation or date of origin.
This stipulation also applies if single or total accounts receivable were included, their balance drawn and acknowledged in a current invoice. If checks are accepted, Seller reserves ownership until their encashment.
Buyer shall have the right to resell the merchandise that is under Seller's reserved ownership (i.e. merchandise sold by Seller subject to a retention of title) or to use it (combine, mix, process it) unless Buyer has assigned the claim resulting from a resale to a third party in advance and with binding effect. Furthermore, a resale is not permitted even if Buyer has reached an agreement with his customers that an assignment is prohibited. Buyer shall not be entitled to pledge the merchandise nor assign it for security interests.
2. Any processing of the merchandise sold under reserved ownership, which Buyer may undertake to create a new product, shall be made on behalf of Seller without causing him any liabilities. The new product shall be deemed to be made on behalf of Seller. In the event that the merchandise sold under reserved ownership becomes integral part of a homogeneously new product by combining it with other movable objects, or in the event that it is mixed inseparably with any other movable objects, Buyer now and in advance assigns the property right to Seller in the proportion of the value of the merchandise sold under reserved ownership and of the remaining products processed without the necessity of a separate declaration of assignment. This commitment shall become effective at the time the occasion arises.
Seller and Buyer agree to the assignment of the property right. Buyer agrees to keep the newly created movable objects, whose property rights are assigned to Seller, in custody free of charge for Seller. Buyer shall have the right to sell the objects referred to in his business routine. Buyer and/or resellers shall be bound under this contract to inform the purchaser of the merchandise sold under reserved ownership or the newly produced objects of Seller's existing property rights.
3. In the event that Buyer is in breach of contract, in particular in default of payment, Seller shall be entitled to the return of the object of purchase. Such actions and/or the seizure of the merchandise sold under reserved ownership shall not evoke the termination of the contract unless Seller explicitly declares so in writing. Seller shall be entitled to exploit the object of purchase after its return and the sales revenues derived thereof are credited to the accounts payable by Buyer less reasonable exploitation fees.
4. Upon request of Buyer, Seller agrees to release securities he is entitled to as far as the realizable value of his securities exceeds the claim to be secured by more than 20 %. It shall be at Seller's discretion to elect the securities to be released.

§ 9 Place of Jurisdiction
The place of jurisdiction, including but not limited to legal actions with regard to drafts, checks and documents, shall be the Seller’s place of business in accordance with § 38 of the code of civil procedure provided that Buyer is a merchant or a person having equal status in conformity with § 38 I of the code of civil procedure or provided that Buyer has no general place of jurisdiction domestically and provided that his place of residence or his customary place of abode is moved abroad after concluding this contract or his place of residence or customary place of abode is unknown at the time of filing the action.  Seller alternatively shall have the right to file for legal action at Buyer's place of business.

§ 10 Partial Invalidity

Should  these General Terms and Conditions become invalid completely or in part, the remaining contract remains effective. In the event that one stipulation completely or in part becomes ineffective, the parties hereto will make immediate and best possible efforts to achieve the economical objective intended by the ineffective stipulation by replacing it with another, legally permissible instrument.

§ 11 Applicable Law

This contract shall be construed exclusively according to the laws of the Federal Republic of Germany and excludes the United Nations' Contracts for the International Sale of Goods (CISG), even though Buyer’s place of business or place of residence is abroad.

 


MicroNova
Unterfeldring 17
D-85256 Vierkirchen
Phone: +49 (0) 81 39 / 93 00-0
Fax: +49 (0) 81 39 / 93 00-80
E-Mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
www.micronova.de

(as of: January 1, 2010)