of NETZSCH GABO Instruments GmbH, Schulstraße 6, 29693 Ahlden
- hereinafter referred to as: GABO -
I. Subject matter, conclusion of contract
1.1 Subject matter is the purchase of GABO test systems (hereinafter referred to as: the Product / the Products) as well as the corresponding software (hereinafter referred to as: the Software).
1.2 The deliveries, services and offers of GABO are only made on the basis of these terms and conditions. They apply thus for all future business relations, even if they have not been expressly agreed upon once more. At the latest upon receipt of the Products or Services these terms and conditions are considered as accepted. Buyer's references to his own terms and conditions are hereby expressly rejected. Any amendment is only valid if expressly conceded by GABO respectively confirmed in writing.
1.3 The Instruments are manufactured according to the rules of the GERMAN ASSOTIATION FOR ELECTRICAL, ELECTRONIC AND INFORMATION TECHNOLOGIES (VDE) and according to the EUROPEAN COMMUNITY (CE)
Offer and conclusion of contract
2.1 The offers made by GABO are subject to modification and not binding.
2.2 All agreements that are made between GABO and Buyer under these terms and conditions have to be made in writing. Employees of GABO are not entitled to make supplementary agreements or amendments. Corresponding commitments have to be confirmed in writing. The final conclusion of the contract comes into existence only upon express written confirmation by GABO.
2.3 Drawings, illustrations, measures, weights or other performance data is only binding if this is expressly agreed upon in writing.
2.4 GABO reserves itself their property- and copyrights in offers, drawings and other documents, which may not be disclosed to any third party without GABO's prior written consent. II. Obligations of GABO
Delivery of a Product free of defects
3.1 GABO undertakes for the duration of 14 months after shipment or 12 months after installation wich ever becomes first that the Products specified in the order confirmation of GABO are free from defects.
3.2 A defect is defined as an error, that prevents the required usage or which substantially diminishes the possibilities of use, as stated in the contract and the manual, with the following specifications: - a defect is substantial, if it cannot to be cured despite repeated attempts so that the product cannot be used at all; - it is not a defect, if Buyer or a third party make modifications or repairs to the Product, without GABO's permission unless Buyer can prove that the defect occurred independently from the modifications or repairs.
3.3 The delivery of a faulty product by GABO is only a substantial violation in the sense of §§ 281 para 1 record 3, 323 para 5 record 2 BGB, if the Product has substantial defects in accordance with the aforementioned definition.
Delivery and time of performance
4.1 GABO is not responsible for any delivery- and performance delays due to force majeure and due to events that make a delivery more difficult or impossible to GABO - in particular strike, lockout, etc., - even if they occur at suppliers of GABO or their subcontractors. This is applicable even if any deadlines have been validly agreed upon. The above-mentioned events entitle GABO to postpone the delivery and/or performance for the duration of the hindrance plus an appropriate starting time.
4.2 Products ready for delivery have to be called up immediately.
4.3 GABO has the right for partial performance and -deliveries to a reasonable extent.
4.4 The regulations in this paragraph are no substantial contract obligations of GABO in the sense of §§ 281 para 1 record 3, 323 para 5 record 2 BGB. III. Obligations of Buyer
5.1 The prices shall be subject to change with a 120 days notice in writing
5.1.5 The prices exclusively apply in EURO.
5.2 Unless otherwise agreed the prices are ex works excluding packaging, duties and insurance. If delivery is made carriage free, the Buyer has to assume the following costs: a) The unloading and transport of the Products to the place of installation, the costs for all employees GABO considers necessary for transport, as well as the costs for all equipment necessary for the installation and starting of the Products including light, electricity and gas; b) costs for working hours needed for installation and starting, which include waiting and travel time, also any late hour bonus, especially for work on Sundays or bank holidays, costs for transport of luggage and tools, as well as all other costs connected with the installation and starting of the Products.
5.3 Except as otherwise agreed between the parties, payments have to be made as follows: a) Deliveries with an order value of up to EUR 25.000,00 within 14 days after date of invoice without any discount b) GABO reserves itself the right to execute deliveries with an order value of over EUR 25.000,00 only against a Letter of Credit or in exceptional cases at 90 % upon delivery and 10 % within 30 days of delivery.
5.4 Payment is considered as made once GABO can fully dispose of the respective amount.
5.5 Buyer is only entitled to set-off or holding back of payments if his counterclaims have been definitely determined by court or are undisputed.
Further obligations of Buyer
6.1 Before the start of the installation, Buyer must provide for all structural and other prerequisites for the installation of the Products. All relevant standards must be considered and Buyer has to provide for any necessary permissions.
6.2 Buyer has to provide for technical personnel, that is sufficiently trained and that is able to create the prerequisites for installation, to accompany the installation, and to professionally handle the Products.
6.3 Buyer will follow the operating instructions for the Products and will only operate the Products in compliance with the operating instructions. In particular Buyer will consider and obey the safety instructions contained in the operating instructions, both before the start and during the operation of the Products.
6.4 Buyer has to provide for the hardware and software conditions in accordance with the requirements of the Products.
6.5 Should Buyer have any doubts with respect to the fulfilment of the aforementioned preconditions or any other preconditions then he has to inform GABO and ask GABO for advice.
6.6 The payment obligation and the other obligations mentioned in this paragraph are substantial contractual obligations in the sense of §§ 281 para 1 record 3, 323 para 5 record 2 BGB. IV. Liability of GABO for violation of obligations
7.1 Should the Product have a defect, GABO is first entitled, at their own expense, to either exchange the faulty product or remedy the defect. Should GABO not succeed within an adequate period of time to cure the defect, then Buyer has the possibility to reduce the purchase price or alternatively to terminate the respective delivery contract, should the contractual breach be substantial.
7.2 GABO is liable for any damage or loss which results from gross negligence or wilful misconduct by its executive board or executive employees.
7.3 GABO is furthermore liable for every culpable infringement of essential contractual duties (so-called Kardinalpflichten) as well as death and personal injury.
7.4 The amount of GABO's liability in case of 7.3. and for gross negligence by other employees (so-called einfache Erfüllungsgehilfen) is limited to compensation for direct, typical and foreseeable damage or loss. The amount of damage in such cases is limited to the amount of the purchase price in every single case.
7.5 The aforementioned limitations of liability are independent of the legal ground. However they do not concern claims for product liability and claims which result from the assumption of a guarantee or of the risk for delivery of third parties. Obligations and information from GABO in these terms and conditions and the documentation can only then be considered as a guarantee or the assumption of the risk for delivery of third parties if they are expressly called as such.
7.6 Buyer is responsible for any data which has been collected at the measurements. The liability for loss of data is limited to costs for reproduction which would have occurred in case of duly made safety copies. V. General Provisions
Passing of risk
8.1 Unless otherwise agreed, delivery is always made - also in case of prepaid deliveries - at Buyer's risk and as freight.
8.2 The risk passes to Buyer once the Products have been handed out to the transporter or have left Seller's storehouse for the purpose of delivery. Should delivery become impossible without GABO's responsibility then the risk is transferred to Buyer upon announcement of willingness to deliver.
Retention of title
9.1 Notwithstanding delivery and the passing of risk in the Products, or any other provision of these conditions, the property in the Products shall not pass to Buyer until GABO has received payment in full of the price of the Products and all other Products agreed to be sold by GABO to Buyer for which payment is then due.
9.2 GABO shall have absolute authority to retake, sell or otherwise deal with or dispose of al l or any part of the Products in which title remains vested in GABO; Until such time as the property in the Products passes to Buyer, Buyer shall hold the Products as GABO's fiduciary agent, and shall keep the Products properly stored, protected and insured.
9.3 Until that time Buyer shall be entitled to resell or use the Products in the ordinary course of its business, but shall account to GABO for the proceeds of sale or otherwise of the Products includings insurance proceeds, and shall keep all such proceeds separate form any moneys or properties of Buyer and third parties.
9.4 If the Products are processed or reshaped by Buyer and if processing is done with Goods that GABO has no property in, GABO shall become co-owner of the Products. The same shall apply if GABO's Goods are completely reshaped and mixed with other products.
9.5 If third parties take up steps to pledge to otherwise dispose of the Products, Buyer shall immediately notify GABO in order to enable GABO to seek a court injunction in accordance with § 771 of the German Code of Civil Procedure. If Buyer fails to do so in due time he will be held liable for any damages caused.
9.6 GABO shall on demand of Buyer release any part of the collateral if the value of the collateral held in favour of the seller exceeds the value of the claims being secured. It is to GABO's decision to release those parts of the collateral suitable for him.
10.1 Insofar as Software is delivered together with a Product, the following stipulations in this § 10 are applicable.
10.2 GABO grants to Buyer the non-exclusive right to use the Software in accordance with the conditions as specified in these terms and conditions.
10.3 "Software" is the machine-readable version of the object code of the computer programs intended for the use with GABO test systems and the documentation provided by GABO for the use of the software.
10.4 Duties of GABO
10.4.1 GABO undertakes for the duration of 1 year after delivery that the Software is free of defects. A defect has been defined above in § 3.2.
10.5 Rights of Buyer
10.5.1 Buyer is granted a non-exclusive right to use the delivered Product in accordance with the following stipulations for an unlimited period of time (hereinafter referred to as the "contractual use"). The observation of the limits of this § 10 is a substantial obligation of Buyer. (a) Buyer may use the Software only together with the GABO test systems. (b) Buyer is granted the Software for use with one user. Use of several users requires an additional agreement in writing. (c) Buyer has the right to make an appropriate number of safety copies.
10.5.2 Buyer will not integrate the Products or part of them in other software systems in order to initiate or extend the performance of the system without approval from GABO. This does not apply to combinations of the Products with other systems for data transferral purposes. Any necessary interface information can be supplied by GABO.
10.5.3 Buyer may de-compile the Software only for the purpose of correcting defects and extending performance capacity and only under the condition that the modified programme is used only for his own business purposes. Buyer may not - in any matter- use the Software outside his company.
10.5.4 Buyer may give the Product to a third party on condition that the third party agrees that the license related contract conditions remain valid. In such a case Buyer's right to use the Software becomes void and he is obliged to provide GABO with the name and address of a third party. Buyer may not transfer the Products to a third party if there is reasonable doubt that this party may not comply with the contractual conditions by, for example, legally duplicating programmes.
10.5.5 GABO is entitled to use technical measures, for example hardlocks and other safety mechanisms, in order to ensure the contractual use of the Products. In case of the existence of such safety mechanisms, Buyer will use the Software only in connection with those. Moreover GABO is entitled, to control the contractual use of the Products at Buyer's premises upon prior announcement.
10.6 Duty of co-operation of Buyer Buyer has informed GABO about all essential circumstances which concern the use and the requirements of the Software. Buyer will inform GABO about any defects of the Products under description of the programme function concerned, its effects and possible system information. Moreover Buyer will provide GABO with all documents necessary for the analysis of the defect.
10.7 Update Buyer has the possibility to get Updates from GABO via Internet under the homepage www.gabo.com. For this purpose Buyer has the possibility to get the password required for the subscription of the Updates.
11.1 The parties agree to keep secret and not to communicate to third parties in any form whatsoever the know-how, any material handed over by the other Party and any information which either Party may have gained about the business of the other, including information on the terms and conditions of this Agreement, the software and the source code ("Confidential Information") and not to use Confidential Information for any purpose other than the purpose of this Agreement.
11.2 The Parties shall oblige their employees to also keep the Confidential Information secret.
11.3 The secrecy obligation does not apply to Confidential Information (i) which is generally available to the public through no fault of the Party receiving the Confidential Information; (ii) information, the receiver legally kept from a third party without report or restrictions of application; (iii) information, which was developed of or independently on behalf of the receiver; (iv) information which was known to the Party at the time of disclosure by the other Party and was not disclosed to it by a third Party that received it, directly or indirectly from such other Party or (v) which was received by the Party under no obligation of secrecy from someone who did not receive it directly or indirectly under such obligation from the other Party.
11.4 Upon termination of this Agreement, the Parties shall return to each other all documents, files or other evidence and copies that are of containing Confidential Information respectively destroy the corresponding documents on demand of an afterwards transmitted evidence upon request of the other Party.
11.5 The obligations set forth in this Art. 11 shall survive any termination of this Agreement.
12.1 If a provision of these terms and conditions should be or become partly or wholly void, the remaining conditions will continue to apply. The parties are bound to replace the void provision or the void part of the provision by a legally valid arrangement, which comes as close as possible to the commercial meaning and purpose of the void provision or void part of the provision.
12.2 The Agreement shall be governed by German law under exclusion of the rules of the United Nations Convention on International Sales of Goods.
12.3 Place of performance and payment for all obligations is Ahlden/Aller.
12.4 Any dispute arising out of these terms and conditions is submitted to the exclusive jurisdictions of the courts which are competent for Walsrode.