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"This English language document is a translation of the original German language agreement. It is supplied for informative purposes only, and in cases of differing interpretation the original German language version shall prevail."
As of October 2008
1.1 The following Terms of Sale shall apply exclusively to companies as defined in § 310 I of the German Civil Code (German abbreviation: BGB).
1.2 Contracts for deliveries shall be based exclusively on the following Terms and Conditions. Any conflicting or deviating Terms and Conditions referred to by the Customer shall not be recognized unless we have explicitly agreed to their validity in writing. These Terms and Conditions shall apply even if we unconditionally agree to supply goods or services to the Customer with the knowledge of conflicting or deviating Terms and Conditions.
1.3 Subsidiary agreements, or any other form of agreement, shall have no legal validity without our written consent.
1.4 Our Terms of Sale shall apply to all future business transactions with the Customer.
Our electronic, written or verbal quotations are to be understood merely as invitations to the Customer to place orders, and not offers in the legal sense. The Customer shall be bound to their order 4 weeks after receipt. A contract shall only be formed with our written order confirmation, but no later than upon the Customer's acceptance of a delivery. Our quotations and order confirmations shall always be subject to a positive credit assessment of the Customer, and the timely and proper deliveries of our own suppliers.
3.1 Intellectual property rights / copyrights to the contract goods, including circuit diagrams, drawings, designs, specifications and related documents as well as software, are generally held by the manufacturer / licensor. Any reference made to such rights in the contract goods may not be obscured, removed or modified by the Customer.
3.2 The Customer is obliged to inform their own customers of the aforementioned intellectual property rights and manufacturer license conditions, and the limitations stipulated in the license terms.
3.3 In the case of third party claims for damages arising from the infringement of such rights, we shall only be liable if we were aware, or ought to have been aware, that such rights existed. Our liability in this regard is limited to the invoice value of the respective goods.
4.1 Our written specifications concerning the extent and timing of deliveries shall exclusively apply. Subsidiary agreements and amendments shall require our explicit confirmation in writing.
4.2 Unless otherwise agreed in writing, deliveries shall be made from stock in the ALLNET warehouse in Allershausen. The Customer shall bear the cost and risk of transportation, as well as the loading and packaging costs. This shall also apply to returns, in accordance with Clause 10. For the packaging of goods we currently charge a flat rate fee of 1.00 EUR. Compliance with applicable time limits, for example, those of the General German Freight Forwarder's Standard Terms and Conditions (German abbreviation: ADSp), shall be the responsibility of the Customer.
4.3 Packaging for transportation and other packaging according to the packaging regulations cannot be returned, except for pallets. The Customer shall be responsible for the cost of packaging disposal.
4.4 Our stated delivery times shall be deemed to be estimates. The beginning of our quoted delivery time is dependant upon the clarification of all technical questions. A delivery time stated by us shall begin on the issue date of the respective confirmation, but not before the provision by the Customer of all necessary documents, permits, approvals and the payment of any agreed deposit. The delivery time shall be deemed to have been met if the goods leave the warehouse or are reported as ready for dispatch prior to the expiry of the delivery period.
4.5 In the event of industrial disputes, in particular strikes, lockouts, and other unforeseen impediments which are beyond our control but demonstrably have a significant impact on assembly or delivery times, the delivery period shall be extended accordingly. The same shall apply if such circumstances arise with subcontractors. We accept no responsibility should the aforementioned circumstances occur during an existing delay. We shall notify the Customer as soon as possible at the beginning and end of the occurrence of such impeding circumstances.
4.6 We shall be entitled to make reasonable partial deliveries, and to invoice these partial deliveries respectively.
4.7 In the event of delayed delivery due to minor negligence, we shall only be liable to a maximum of 5% of the value of the contract affected by the delay, limited in any case to the foreseeable typically occurring damage.
4.8 In the case of delay due to intent or gross negligence on our part, we shall be liable pursuant to legal statutes, but limited to foreseeable, typically occurring damage, assuming the absence of intentional breach of contract on our part.
4.9 We shall assume liability pursuant to statutory regulations if the underlying contract is a transaction for delivery by a fixed date, or the Customer's interest in the further performance of the contract has ceased to exist as a result of delays in delivery attributable to us.
The Customer shall examine the goods immediately for completeness, compliance with the delivery documents and order, and for defects and obvious failures, and report such deficiencies immediately in writing. If no complaint is made within 4 business days of the receipt of the goods, the delivery shall be deemed to have been made according to the contract, except in the case of deficiencies which cannot be detected despite careful inspection. Upon delivery, recognizable damage or shortages shall be noted on the receipt of the freight forwarder in accordance with § 438 of the German Commercial Code (German abbreviation: HGB).
6.1 The purchase price is stated in our order confirmation. If this is not the case, and no other price has been agreed upon, the applicable price shall be that which is stated in our price list on the day of the order acceptance.
6.2 For orders totaling less than 100.00 EUR (net) a small order processing fee of 10.00 EUR shall be charged.
6.3 Our prices are net, "ex-works" (EXW) and subject to statutory VAT plus transport and packaging costs.
6.4 We reserve the right to increase our prices in the event of our costs increasing after the conclusion of a contract, in particular, increases in costs due to wage settlements, increases in our suppliers' prices or fluctuations in currency exchange rates. We shall supply evidence of such cost increases to the Customer on request.
6.5 Unless otherwise agreed, payments shall be due immediately upon invoicing without any deduction. If the Customer exceeds the agreed payment periods, we shall have the right - without prejudice to other rights - to charge interest at the rate of 8% per annum above the base rate in accordance with the German Civil Code. Should the Customer default on an agreed payment, all outstanding amounts shall immediately become due.
6.6 The withholding of or offsetting of payments against counterclaims by the Customer shall only be permissible if such counterclaims are legally established or uncontested on our part.
7.1 We shall retain title to the delivered goods until such time as all outstanding payments resulting from the business relationship between us and the Customer have been settled.
7.2 The Customer shall treat the delivered goods with care, and shall in particular provide at their own cost adequate insurance against damage by fire, water and theft.
7.3 The Customer shall be entitled to resell the delivered goods in the ordinary course of business; however, a pledge or transfer of ownership is not permitted. Receivables from the resale of the goods shall already be assigned to us in the amount of the final invoice. The Customer shall be entitled to collect the assigned receivables, without prejudice to our right to collect the assigned receivables. However, we shall not collect the assigned receivables providing the Customer meets their payment obligations from the proceeds collected, is not in default of payment, and no petition is filed for the commencement of judicial proceedings, bankruptcy, or cessation of payment by the Customer. We hereby accept the assignment of the receivables. The Customer is obliged to provide us with all details and information which is necessary to collect the assigned receivables.
7.4 Any processing, reworking or other transformation of retained goods shall be done for us. Should the retained goods be processed, combined or integrated with other goods not belonging to us, the resulting new items shall be co-owned by us in the ratio of the invoice value of the goods to the other processed goods at the time of processing, combining, or integration. If the Customer acquires sole ownership of the new items, it is agreed that the Customer shall transfer proportionate ownership to us, and maintain the items free of charge for us. The above-mentioned advance assignment shall apply in the above cases only to the invoice value of the goods which are resold together with other goods. In case of seizure or other third-party access to the retained goods or the debts assigned in advance, the Customer shall notify us immediately, stating the need for an intervention. Costs incurred that cannot be collected from the third party shall be borne by the Customer.
7.5 We shall release, at the discretion and request of the Customer, the collateral to which we are entitled under the above provisions insofar as the value of the collateral exceeds the secured claims for which the collateral has to be provided by more than 20%.
8.1 The Customer's assertion of warranty rights are subject to their proper fulfillment of examination and notification obligations. There shall be no warranty for the purchase of used goods.
8.2 Should a warranty case arise, prior to raising a claim against ALLNET GmbH the Customer is obliged to seek an out-of-court settlement under the terms of the manufacturer's warranty. ALLNET GmbH shall assist the Customer in this regard. The warranty claims of the Customer shall remain unaffected.
8.3 If and insofar as the Customer is not satisfied thereafter, we are entitled at our discretion to initially provide remedial repairs or replacement deliveries. Exchanged goods, or parts thereof, are our property and shall be returned. If we are unprepared or unable to provide a remedy, or if delays occur beyond a reasonable period due to reasons for which we are responsible, or if a remedy should fail in any other way or be unreasonable for the Customer, the Customer is entitled at their discretion to request an appropriate reduction of the purchase price of the contract.
8.4 In the case of order cancellation, the Customer shall accept an off-set for the usage benefits which have been drawn prior to the time of cancellation. These usage benefits shall be calculated proportionally based on the purchase price and the usual overall lifetime of the product, unless such use was restricted or impossible due to a defect. Both parties are free to provide evidence of lower or higher usage benefits. A minor defect shall not entitle the Customer to cancel a contract.
8.5 Should the examination for a defect claim show no defects to be present, we are entitled to charge an administrative / handling fee. The Customer is entitled to provide evidence justifying lower expenses than our fee.
8.6 Warranty claims are limited to 12 months following the transfer of risk to the Customer. If the goods should be the subject of a consumer goods purchase, the Customer's rights remain unaffected pursuant to § 478 & 479 of the German Civil Code, provided the Customer has fulfilled their obligations of inspection and notification in accordance with § 377 of the German Commercial Code(German abbreviation: HGB).
9.1 Unless stated otherwise, further claims by the Customer - for whatever legal reason - are excluded. In particular, we shall not be held liable for any damages that are not caused to the goods themselves, for lost profits or other financial damages to the Customer.
9.2 This liability disclaimer shall not apply to damages arising from intent or gross negligence, or from the neglect of a contractual obligation. It shall not apply if we have fraudulently concealed a defect or given a guarantee of the quality of the goods and this guarantee was intended to protect the Customer against the damages claimed.
9.3 Our liability is limited to foreseeable damage, and shall not exceed the amount covered by our product liability insurance. We shall permit the Customer to view our policy on request.
9.4 Claims shall be limited to 12 months from the transfer of risk. This also applies to compensation claims for consequential damages, provided no claims arise for fraudulent concealment of a defect in tort or liability for willful misconduct.
9.5 Liability for damages outside the scope of the above - regardless of the legal nature of the asserted claim - is excluded. This shall not apply to claims for injury of life, body or health claims pursuant to §§ 1, 4 of the Product Liability Act or for claims in tort or for the impossibility of performance.
Returned goods shall only be accepted after our inspection. Returns of new, used or defective goods should be made at the Customer's expense to ALLNET GmbH, Maistrasse 2, 82110 Germering. Unless otherwise agreed, returns will only be processed if accompanied by an RMA return slip on which the RMA number and the customer number are provided. This RMA return slip and the RMA number can be requested by the Customer by telephone 0 89/89 42 22-950, Fax 0 81 66 / 9 91 33 23 or online at www.allnet.de. The provision of an RMA number shall under no circumstances be considered an acknowledgement of a defect or any other complaint. The Customer shall accept full responsibility for the accidental loss of goods during returns. A handling fee shall be charged to the Customer in the case of goods returned for which the Customer is responsible, especially, but not exclusively, if the Customer refuses to accept delivery of the goods.
Delivered goods are intended to be used and to remain in the country of delivery agreed with the Customer. The re-export of contractual goods is subject to approval of the Customer and the foreign trade regulations of the Federal Republic of Germany, and when goods are imported from the USA, they shall be subject to the export control regulations of the United States of America. The Customer is obliged to independently become informed of these provisions. The responsible authority for the German terms is the Federal Export Office in 65760 Eschborn / Taunus, and for the US terms, the US Department of Commerce, Office of Export Administration, Washington DC 20320. Regardless of whether the Customer indicates the final destination of the supplied goods, it is the Customer's own responsibility to obtain any required authorization of the respective foreign trade authorities before exporting such goods. For the export of contractual goods by the Customer to third parties, with or without our knowledge, it is necessary to transfer the export license conditions. The Customer shall accept full responsible for compliance with these conditions.
Supplementary agreements must be made in writing. This shall also apply to the waiver of written agreements. If individual provisions are found to be invalid, the validity of the contract and the remaining provisions shall be unaffected.
The place of fulfillment for all obligations under the contract shall be Munich. The place of jurisdiction for the litigation of any disputes arising from the contractual relationship, its creation and effectiveness shall be Munich, however, we shall be entitled to sue the Customer at their location. The entire contractual relationship shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Sales Convention.