GENERAL TERMS AND CONDITIONSStatus: January 1, 2008 -
for products and services of TANOS GmbH, Pionierstraße 1, D-89257 Illertissen (in the following referred to as the Supplier).
I. General Provisions
The following conditions apply in conjunction withevery order. The
written or electronic declarationsas stated by both parties determine
the scope ofdeliveries or services (in the following referred to
However, general terms and conditions of the Buyeronly
apply to the extent that the Supplier has statedhis explicit respective
approval in writing. Verbalagreements prior to or at the time of the
conclusionof the contract require the written confirmation bythe
Supplier to become effective.
2. Proposals are subject to change;
estimates arenonbinding. The Supplier reserves his propertyrights and
copyright-related utilization rights in conjunctionwith cost estimates,
drawings and otherdocumentation (in the following referred to
asDocuments). The Documents may only be madeaccessible to third parties
upon prior approval bythe Supplier and, if the order is not placed with
theSupplier, they should be returned to the Supplierimmediately and in
full upon written request.Clause 1 and 2 apply respectively for
Documents ofthe Supplier; these may however be made accessibleto such
third parties who have been authorizedto be assigned deliveries by the
3. For standard software, the Buyer has the
nonexclusiveright to utilize the agreed upon servicefeatures in an
unchanged format on the agreedupon devices. The Buyer may create two
back-upcopies without expressed agreement.
4. Partial deliveries and respective invoicing arepermissible to the extent as such is reasonable forthe Buyer.
If the Buyer is given the right to withdrawal, thisshall only take
place with complete, properly packaged,clean and unlabeled current
catalog goodsaccording to the catalog description with a deductionof 20%
of prospective order value.
6. If the Buyer is given the right to
withdrawal, thisshall only take place with complete, properly
packaged,clean and unlabeled current catalog goodsaccording to the
catalog description with a deductionof 20% of prospective order value.
II. Prices and Payment Conditions
The prices are to be understood from the warehousein Neu-Ulm (Germany)
exclusive packagingplus the respectively applicable mandatory salestax.
billing is based on the price list that is applicableat the time of
delivery; the billing of the sales taxcan only be omitted in cases where
the conditionsfor a tax exemption from export deliveries are met.
If the Supplier has accepted to execute the setupand installation and
if nothing has been agreed tootherwise, the Buyer shall bear all
necessary ancillarycosts in addition to the agreed-uponcompensation,
such as costs for the transportationof the tools and personal luggage as
well as customs fees.
3. Payments are due in full without deductions at thepremise of the paying agent.
4. The Buyer may only offset such liabilities which areundisputed and which have been legally determined.
III. Retention of Ownership
The objects of the deliveries (conditional goods)remain the property of
the Supplier until all currentor future claims that are due to him from
the Buyerunder the business connection have been satisfied.If the value
of all security rights that are due to theSupplier exceeds the amount
of all secured claimsby more than 10%, the Supplier shall release a
respectiveportion of the security rights upon writtenrequest of the
Buyer. With that, the Supplier maychoose the securities that are to be
2. The Buyer is entitled to properly sell and/or utilizethe
security goods as a business transaction aslong as he isn't in default.
Forfeiture or transfers byway of security are prohibited.
Buyer already assigns the claims that resultfrom the reselling or from
another legal reasonconcerning the security goods as a security in the
amount of the respective invoice value of the securitygoods already at
the time of the order in advanceto the Supplier. The assignments have
herewithbeen accepted. The Buyer is entitled to collecton the claims
that were assigned to the Supplier.The collection authorization may be
withdrawn atany time if the Buyer does not comply with his
4. The Buyer is entitled to process the products
andgoods of the Supplier or the links with other productsas part of his
proper business operation. TheSupplier acquires co-ownership in the
objects thatare created through the processing or the linkswhich serves
exclusively as a security for his claimsas listed under III.1. which the
Buyer already assignsto the Supplier.
5. In the event of
forfeitures, collections, other obligationsor legal impacts or
involvement of third parties,the Buyer has to indicate the ownership of
the Supplierand must notify the Supplier immediately. TheBuyer shall be
liable to the extent that the third partyis not able to reimburse the
Supplier for the legal orout-of-court expenses that arise in this
6. In the event of any violation against essential
contractualobligations for which the Buyer is at fault, inparticular in
the event of late payment, the Supplieris entitled to take back the
deliveries but is not obligatedto do so; the Supplier is obligated to
returnsuch deliveries without delay and to the full extent.This shall
also apply if the financial situation of theBuyer deteriorates
7. The retrieval or the claiming of the retention
ofownership or the forfeiture of the security goodsthrough the Supplier
does not constitute a withdrawalfrom the contract, unless the Supplier
wouldhave explicitly declared such in advance.
IV. Terms for Deliveries and Default
Agreed-upon delivery terms relate to the time whenthe goods leave the
plant or the shipping site. Thecompliance with agreed upon terms for the
deliveriesrequires the timely receipt of all Documents thatare to be
delivered by the Supplier, required permitsand releases, especially as
it relates to plans as wellas the compliance with agreed upon payment
termsor down payments and other obligations through theBuyer. If these
conditions are not fulfilled on time,the terms for the Supplier shall be
extended appropriately;this does not apply if the Supplier is
responsiblefor the aforementioned delays.
2. If the Supplier does not
meet a deadline due tohigher forces, e.g. mobilization, war, unrests or
similarevents or due to events which are outside of thesphere of the
Supplier and which could make asmooth processing of the order
questionable - inparticular delivery delays on the part of the
Supplier,disruptions of traffic and operations, strikes etc.- theterms
shall be extended appropriately without resultingin damage claims for
3. If the Buyer requests that the shipping or delivery
isdelayed by more than one month after the ability toship the goods was
communicated, the Buyer maybe billed for storage fees for each partial
or fullmonth in the amount of 0.5% of the price of the objectsof the
delivery, however, no more than 5%.The proof of higher or lower storage
costs remains aright of the contractual parties.
V. Shipping/ Transfer of Risks/ Notices of Defect/ Acceptance
The shipping takes place at the risk at the expenseof the Buyer from a
location that is to be determinedby the Supplier to the shipping address
that isknown to the Supplier or as stated from the warehouse/shipping
site of the Supplier. Upon writtenrequest and at the expense of the
Buyer, deliveriescan be insured against transportation risks by
theSupplier to a desired extent.
2. To the extent that the Supplier
is obligated to takeback the packaging that was used for the
transportation,the Buyer shall bear the transportation costsfor
returning the packaging and the indicated expensesfor its reuse or - to
the extent that this ispossible and deemed as beneficial by the Supplier
-the appropriate costs that arise in conjunction withreuse.
3. The risk transfers to the Buyer, prepaid deliveriesincluded, as follows:
for deliveries without setup or installation, with properprovisioning
from the ramp of the shipping company tothe acceptance through the
b) for deliveries with setup or installation
on the day ofthe acceptance or at the start of operation at theBuyer's
site or, to the extent as was agreed upon, afterproper installation.
If the shipping, delivery, the start, the execution of thesetup or
installation, the handover or start of operationat the Supplier 's
premises or the test run is delayeddue to reasons for which the Buyer is
responsible or ifthe Buyer's acceptance is delayed due to other
reasons,the risk immediately transfers to the Buyer withthe start of the
5. The Buyer shall inspect each delivery diligently
andcompletely immediately upon receipt. The Supplierhas to be notified
immediately and in writing concerningcomplaints due to incomplete or
incorrect deliveryor reprisal due to obvious defects. The same
shallapply for hidden defects upon their discovery. Boxstickers, bill of
deliveries/invoice numbers or the tallysheet that has been enclosed
with the delivery have tobe indicated with the claim. Warranty claims
are excludedif complaints or notices of defects are notcommunicated on
6. Deliveries with insignificant defects have to be acceptedby the Buyer.
Payments shall be processed in accordance with thepayment conditions as
determined by us. The Supplieris authorized but not obligated to apply
payments tothe oldest outstanding liability. Electronic funds
transfers,checks or notes are only deemed as effectivepayment after
redemption or upon non-lapsable crediton the account of the Supplier.
The net amount of the invoice becomes due 30 daysafter the date on the
invoice, if nothing else has beenagreed to in writing. A deduction of an
agreed upondiscount will no longer be granted if the Buyer receivesthe
second reminder in conjunction with another outstandingliability.
3. Repair costs, installation costs or tool costs arepayable immediately without any deductions.
If the payment targets are not met as outlined in theprevious
paragraphs, the Supplier may charge legalinterest for default,
irrespective of other and furtherlegal rights.
5. If subsequently
arising circumstances present asignificant deterioration of the assets
of the Buyer,upon which the payment claim of the Supplier is
endangered,the Supplier shall be entitled to demandimmediate payment for
all liabilities in conjunction withthe business relationship; this
shall also apply for deferredpayments or the acceptance of notes or
checks.In conjunction with the same conditions or in the eventthat the
Buyer was late with payments in conjunctionwith previous business
transactions, the Supplier maydemand prepayments or securities for all
current orfuture business transactions.For the rest, the legal
regulations concerning paymentdelays remain untouched.
6. The billing
is done in EURO. The EURO amount isalso definitive if the invoices
state foreign currencyamounts next to the EURO amount. Incoming
foreigncurrency amounts are converted into EURO and thesubsequent EURO
value is offset with the invoice andcredited respectively.
VII. Liability for Material Defects
Supplier is fully liable for damages resulting of aviolation of life,
body, or health, which are due to theintentional or negligent violation
of the Supplier 's dutiesor an intentional or negligent violation of the
dutiesof one of a legal representative or agent of the Supplieras well
as for other damages, which are theresults of grossly negligent
violation of duty on theSupplier 's part or of an intentional or grossly
negligentviolation of obligation of a legal representative or agentof
In the event of material or manufacturing defects,
theSupplier shall be liable for material defects as well asfor
explicitly warranted characteristics and freedomfrom defects in
accordance with their respective stateof technology subject to the
regulations specific to thecountry. Changes in the construction or
executionwhich the Supplier applies to the goods in generalprior to for
the delivery of an order do not constitutegrounds for a complaint. The
Supplier recommends that manuals, safety notes, replacement parts
listsand the receipt are filed with care.
The Supplier shall be liable for defects, which alsoincludes the lack of explicitly warranted characteristics:
In principle, the term of liability for the products andwork of the
Supplier is 12 months starting with thetransfer of risk to the Buyer.
However, in contrast,the term of liability for material defect within
the EUin conjunction with exclusively private utilizationshall be 24
2. The liability for material defects also includes thefree
rectification of all material defects that aroseduring the term of
liability and at the Supplier 's option,the objected product may be
repaired or replaced.Exchanged parts become the property ofthe Supplier.
Prerequisite for the acceptance of a liability claimdue to a material
defect is that the point of purchaseof the machine lies within the EU
and the claim formaterial defect liability has not yet expired. Theproof
is provided through the presentation of a machinegenerated original
purchase receipt whichindicates the address of the Buyer and Seller,
thepurchase date and the exact identification of thetype of product. If
the claims proves to be justified,the costs of the least expensive
roundtrip transportationshall be borne by the Supplier. For the
rest,Item V shall apply. Claims of the Buyer concerningexpenses that
became necessary at the time of thesupplementary performance, in
particular transportation,handling, labor and material costs,
areexcluded to the extent that the expenses increasedbecause the object
of the delivery wassubsequently moved to a different location than
theoriginal place of performance, unless the transfercorresponds with
its intended use.
4. A right to withdrawal or mitigation does not
exist,unless the Supplier is not able to rectify the defector perform a
replacement delivery, or the retail orreplacement delivery is deemed as
5. The warranty does not cover natural wear and tearor
damage which occurred after the transfer of risk,in particular due to
incorrect, improper orunprofessional use or negligent care, excessiveuse
or unfit means of operation. The Supplier is inparticular not liable
for changes of the condition orthe operational mode of the Supplier 's
product thatis caused by incorrect storage or climatically orother
6. If inappropriate changes are caused by the Buyer
orthird parties, the subsequent consequences shallnot be covered by the
Supplier 's warranty.
7. The repair, replacement deliveries or replacementservices shall not renew the warranty term.
8. Additional warranty claims of the Buyer towardsthe Supplier and his agents are excluded.
VIII. Commercial Trademarks and Copy Rights
If a third party files justifiable damage claimsagainst the Buyer due
to the violation of an industrialproperty right or copyright (in the
following referredto as property rights) due to products thatwere
delivered by the Supplier and that are utilizedin accordance with the
contract, at the option of theSupplier, the Supplier either shall obtain
a user rightfor the product, change the product in such a fashionthat
the copyright is not violated or replace theproduct.
aforementioned obligations of the of the Supplieronly exist if the Buyer
immediately notifies theSupplier in writing concerning the (alleged)
claimsthat are filed by the third party, if the Buyer doesn'tacknowledge
a violation and that the Supplier shallhave the rights to all defensive
measures and settlementnegotiations (in court and out of court).
Theaforementioned obligations end however no laterthan 5 years after the
delivery to the Buyer.
3. Claims of the Buyer are excluded to the
extent thatthe Buyer is responsible for the trademark right'sviolation.
Claims of the Buyer are also excluded tothe extent that the property
right violation throughspecial requirements of the Buyer, through an
unforeseeableapplication of the Supplier or throughthe fact that the
product was changed by the Buyerto utilized together with products that
were not deliveredby the Supplier.
4. Further claims against the
Supplier are excluded;Article X (Liability) however remains untouched
aswell as the Buyer's right to withdrawal.
IX. Impossibility, Amendment of the Contract
If the Supplier becomes unable to deliver due to areason for which the
Supplier is liable, the Buyershall be entitled to claim damages.
However, thedamage claim of the Buyer is limited to 10% of thevalue of
that part of the delivery which cannot be putinto useful operation due
to the impossibility. Thisdoes not apply to the extent that in cases of
intent,gross negligence or the onset of incapacity there isa mandatory
liability; this shall not result in a changeof the burden of proof to
the disadvantage of theBuyer. The Buyer's right to withdrawal from the
contractshall remain untouched.
2. To the extent that unforeseen
events in the sense ofArt. IV no. 2 significantly change the
economicalimportance or the content of the delivery, the contractshall
be appropriately adjusted in considerationof good faith. To the extent
that this is economicallyunjustifiable, the Supplier has the right to
withdrawfrom this contract. If he wants to exercise this rightto
withdrawal, he shall notify the Buyer uponrecognizing the consequences
of this event and doso even though an extension was initially agreed
towith the Buyer.
claims of the Buyer are excluded, regardlessof their legal basis, in
particular if they are dueto positive violation of liabilities,
violation of obligationsduring contract negotiations and due to
This shall not apply to the extent that
mandatoryliability is given in cases of intent, gross negligence,lack of
guarantied characteristics, in accordancewith that product liability
law, for damage to life,body or health or violation of essential
However, the damage claim for the violation
of importantcontractual obligations shall be limited totypical
contractual, foreseeable damages to the extentthat this is not a case of
intent of gross negligence.The aforementioned regulations shall
notresult in a change of the burden of proof to thedisadvantage of the
If the Buyer is a business person, does not havegeneral domestic
jurisdiction or if s/he moves her/hisaddress or general place of
residence to a foreigncountry upon conclusion of the contract, or if
her/hisaddress or general place of residence is unknown atthe time that
the claim is filed for all disputes thatdirectly or indirectly rise from
the contractual relationship,sole jurisdiction shall be at the Supplier
'soption the place of the main office or the place of theSupplier 's
2. The law of the Federal Republic of Germany
shallapply for the contractual relations. The application ofthe German
legal standards of the conflict of laws isexcluded to the extent that
such refers to a foreignlegal system or other conventions concerning
theright of the sale of goods.
3. If individual items become legally
invalid, the remainingparts of the contract and in particular
thedelivery conditions shall remain binding. This shallnot apply if the
adherence would represent an unreasonablehardship for one of the
parties. If individualregulations of these delivery regulations
becomeinvalid due to legal regulations, they shall bereplaced by such
valid regulations which come closestto the intention and purpose of the
invalid regulations.The extent necessary, the Buyer shall beobligated to
take all measures to achieve this objective.