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General Sales and Delivery Conditions of Leopold Siegrist GmbH

I. Scope of Validity 

Our General Sales and Delivery Conditions shall apply to all current and future business relationships with our customers to the extent that these are enterprises in the sense of Article 14 BGB. No divergent terms and conditions of our customers’ shall  be valid unless with our express agreement in writing.

II. Conclusion of and Terms of Contract 

(1) Our offers shall be non-binding unless we bind ourselves expressly, in writing, to an offer. Unless stipulated otherwise our offers are binding upon us  for a period of 2 months, at best.
(2) As long as we have not submitted, in writing, a binding offer, no contract shall be deemed concluded vis-à-vis customer unless declared accepted by us in writing. Silence in connection with Customer’s contractual offer shall not amount to acceptance thereof.
(3) All agreements shall be in writing to be valid. They  shall be allowed to be made only by our authorized representatives. The rest of our staff shall not be entitled to conclude any agreements or make any warranties.
(4) We reserve title and copyright to all depicts, drawings, calculations and other documents. This provision shall apply to all written-form documents marked „confidential“. Customer shall not be allowed to pass such documents to third parties unless with our express approval in writing.
(5) The offers on our web site shall be non-binding. By clicking the „send order“ button, customer has declared in binding form his intention to acquire the goods in the basket. We have the right to accept, within one week, the offered contract contained therein. Acceptance can be declared by delivering the merchandise or by providing the service or in that we indicate otherwise  to Buyer  that his order has been accepted.
(6) Customer’s details, within the scope of the business relationship, shall be subject to electronic data processing. In using person-related data, we shall observe  mandatory provisions of the Federal Data Protection Act.

III. Conditions of Sale and Terms of Payment 

(1) Unless provided otherwise, our prices shall be ex Karlsruhe. All costs of shipment, packing and assembly shall be borne by Customer.  Instruction through our staff will be charged separately. Unless expressly agreed otherwise, instruction fees are not included in the purchase price. Our prices exclude applicable VAT. The applicable amount will be separately shown as per  date of invoice.
(2)  Unless provided otherwise by the contractual relationship or by these General Sales and Delivery Conditions all amounts payable shall be due for payment immediately upon submission of the invoice. Customer shall be entitled to a 2% rebate when settling the invoice within 10 days  from receipt thereof. However, payments must be made within 30 days from receipt of the invoice at the latest. If goods of a total value of more than Ä 25,000.00 are ordered, one third of the total price shall be payable when the merchandise is ordered. The remaining two thirds of the total price shall be due for payment upon delivery of the merchandise.  Compensation for service shall be paid immediately after the service having been provided.
(3) If customer has delayed payment or if payment of the invoiced amount, in whole or in part, is allowed to be deferred, we shall be entitled to interest at a rate of 5% above the basic rate  pursuant to Article 247 BGB. We are reserving ourselves the right to assert further losses caused by default.
(4) Commencement of the term of delivery requires that all technical questions have been clarified beforehand. To the extent that no predetermined term of delivery has been expressly promised by us, delivery can be demanded six weeks from conclusion of contract at the earliest. Should non-observance of a contractual or other term be our responsibility, Customer shall be entitled to all statutory  rights. However, compensation in lieu of service shall be restricted to the amount under contract. Our liability pursuant to clause IX shall not be affected thereby.
(5) In case the merchandise is to be shipped to Customer, our obligation to perform shall be deemed as having been met upon surrender of the goods to the forwarder,  carrier, or agent or institution responsible for the shipment  so that the risk of accidental loss or accidental deterioration shall then pass to Customer.
(6) If execution of the order depends on a third-party service, we shall not be in default as long as the delay is caused by delayed supplies on the part of the said third party, unless the said delay is for reasons that according to these Conditions are our responsibility.

IV. Ban of Assignment and Setoff

The assignment of Customer’s claims arising out of contracts concluded with us shall be precluded. Customer shall have no right to set off  his claims unless such claims have been confirmed or legally stated. No retention rights can be asserted unless they are based on the same contract as the retained claim.

V. Retention of Title

(1) We are retaining title to the merchandise until complete payment of all claims arising from the business relationship and existing at the time of delivery or incurring subsequently; in cases of payment by check or bill we are retaining title to the merchandise until the amount has been credited to our account. In case of seizure of property or other third-party interference, Buyer shall advise us in writing, without delay, to enable us to  initiate court proceedings pursuant to Article 771 ZPO.
(2) Taking back the purchased item in connection with a take-back declaration in writing  or seizure of  the item of purchase on our part always involves a withdrawal from contract. If we take the item of purchase in possession without declaring withdrawal from contract in writing, the burden of proof  that   our taking back the purchased matter involving withdrawal has been effected shall be incumbent on Customer. After  the purchased item having been taken back by us we are authorized to realize the same; the realization proceeds  shall be credited to Customer’s liabilities less reasonable realization costs.
(3) Customer shall be authorized to re-sell the delivered merchandise in the ordinary course of business. However, it is already at this time that he shall assign to us all claims in the invoiced amount (VAT included) over his buyers or other third parties, arising from the said re-sale, irrespective of whether the delivered merchandise has been re-sold without or after having been re-processed. After assignment of the claim, Buyer shall be authorized to collect the same. Our authorization to collect such claim ourselves shall not be affected thereby; however, we are undertaking not to collect the said claim as long as Buyer promptly meets his payment obligations and is not in default. Should Customer be in arrears, we would have the right to request Buyer to reveal the amount of the claim assigned along with debtor’s identity,  to communicate all details required for collection of the claim, to surrender all related documents and to advise the said third party of the assignment.
(4) Re-processing or transformation of  items delivered  through Buyer shall  always be deemed to have been effected on our behalf. Should delivered items be re-processed with items not owned by us, we would acquire joint ownership title to the new item at the ratio of the value of the delivered item to the other processed items at the time of processing. Incidentally, the same provisions shall apply to the re-processed item as are applicable to retention of title.
(5) If the item delivered  is indivisibly bonded to or mixed with items not owned by us, we shall acquire co-ownership title to the new item at the ratio of the value of the delivered item  to the other bonded or mixed items at the time of bond or mixture. If bonding or mixing is such that Customer’s item is the major component, it is agreed that Buyer will transfer to us pro-rated co-ownership title. Buyer agrees  to take into custody the sole ownership or co-ownership  title on our behalf.
(6) We are undertaking to release, upon Buyer’s request, the securities to which we are entitled, to the extent that the value of our securities exceed the claims to be secured by more than 20%.
(7) An insurance policy against fire, water, theft and burglary shall be taken out by Customer in respect of the merchandise in our possession for the duration of the title of retention to the property. Customer will assign to us the rights out of this insurance. We shall accept such assignment.

VI. Safety Provisions / Customer’s Obligation to Take Due Care

(1) Pursuant to the requirements of the Professional Association, Customer shall be responsible for compliance with all national laws, rules, and regulations under safety legislation, especially with a view to license, installation, operation, maintenance and repair of the delivered merchandise, and shall be obliged to meet the same. Customer undertakes to keep us harmless against all claims arising from failure to comply with such provisions on the part of Customer.
(2) Moreover, Customer undertakes to see to it that the products be properly mounted and serviced in accordance with our assembly and operation instructions.

VII. Customer’s Obligation to Cooperate

Customer shall undertake to support us in providing our services. In particular, Customer shall create the prerequisites in his sphere of activity that are required for providing our services. Customer shall be obliged to surrender to us whatever equipment for whatever purposes in clean and decontaminated condition. Should such equipment have been in contact with toxic gases Customer would be obliged  to advise us thereof, in writing, at a reasonable time prior to  surrender, specifying the parts of the equipment affected. Failure to comply with this provision is likely to result, in addition to asserting our statutory rights e.g. for resultant damages,  in a  claim of  reasonable compensation for the efforts additionally taken by us.

VIII. Warranty

(1) Customer’s warranty rights require compliance with his obligation of investigation and complaint pursuant to Articles 377; 378 HGB. Customer is obliged to notify us in writing of an apparent defective conditions within a time limit of 2 weeks from receipt of the merchandise. No warranty claims can be asserted otherwise. The time shall be deemed observed if the notification of defect has been sent in time.
(2) Customer cannot derive any rights from defects not or only irrelevantly affecting the value or  suitability of the merchandise for the purpose contemplated.
(3) If the merchandise, after passing of risk, shows a material defect we shall have the right and obligation of re-performing which, according to our choice, shall be by remedial action or replacement. Customer shall allow us to check the allegedly defective item. Basically, re-performance shall be on our premises. If notwithstanding this provision it shall take place on Customer’s  premises, Customer shall be obliged  to take all steps reasonably required herefore. In case of removal of defects, all costs involved , in particular, costs of transportation, toll, labour and material expenses, shall be for our account if the same will increase by the fact that the purchased item has to be transported to a place other than the place of performance.
(4) In case re-performance fails, Customer shall be entitled to all statutory rights. However, in case of a minor breach of contract, in particular, in case of irrelevant defects, Customer shall have no right to withdraw from the contract.
(5) Warranty cannot be based on defects caused by interferences of Customer or third parties. It shall be void if customer fails to meet his obligations pursuant to Section VI. In particular, it shall be void if  changes to the merchandise have been effected by Customer without our approval, or if the merchandise was not maintained pursuant to our Assembly and Operation Instructions or stipulations in law, or if Customer failed to replace or has had replaced wear parts in accordance with our instructions. Moreover, our warranty shall not extend to normal wear. No warranty claims, including claims of remedy or replacement, shall be assumed for used items delivered except for repaired/exchanged parts.

IX. Liability

(1) Unlimited liability shall be assumed by us pursuant to mandatory statutory provisions, if•-- the damage or loss is due to gross negligence or deliberate act•-- the damage or loss is personal injury.This liability shall not be affected by whatever restrictions within the scope of these General Sales and Delivery Conditions.
(2) Incidentally, in case of a culpable failure to meet contractual obligations, we shall assume liability for contract-typical losses in the amount of the foreseeable loss only, excluding indirect losses, consequential losses or lost earnings.
(3) No liability shall be assumed for contractual claims or claims in tort in excess thereof.
(4) No liability shall be assumed if occurrence of the loss could have been prevented had Customer taken all reasonable loss-minimizing steps, in particular,  had he met the conditions pursuant to Section VI hereof. Clause 1 shall be left unaffected thereby.
(5) To the extent that our liability is excluded or restricted such exclusion or restriction shall also extend to the personal liability of our employed, officers, representatives or vicarious agents.

X. Limitation of Actions

Customer’s claims based on a neglect of duty, pursuant to Articles 478, 479 BGB shall be uniformly statute-barred within one year from passing of risk. This provision shall apply irrespective of whether or not the neglect of duty resides in a material defect or non-compliance with any other contractual obligation. Personal injury, losses under the Product Liability Act  and losses based on deliberate act or gross negligence shall be time-barred pursuant to mandatory statutory provision. Should the merchandise,in accordance with its customary way of employment, have been used for a construction unit causing damage  to it, limitation of action shall be in accordance with mandatory statutory stipulation.

XI. Exports

(1) Our merchandise may comprise technologies or software that are subject to the respectively applicable export regulations of the Federal Republic of Germany, of the United States of America or of those countries to which the products are delivered or in which they are used.  Pursuant to such export provisions the products must not be supplied specifically to users individually identified or to special countries. Moreover, they are not allowed to be supplied to users involved in activities in connection with mass destruction weapons or  genocide. Customer undertakes to comply with such provisions.
(2) Customer, prior to each export or re-export, will check the respectively current regulations relative to the  specific merchandise, insuring  compliance therewith and obtaining all required licenses.
(3) We shall have the right to refuse the discharge of the obligations out of this contract once it has become manifest  that  continued performance hereof would be in breach of  export regulations.

XII. Special Provisions for Predetermined Types of Contract

Unless the following provisions stipulate otherwise the provisions of the rest of the clauses hereof shall also apply, mutatis mutandi, to the types of contract separately specified hereinafter.

1. Letting of  Software
(1) Customer will be granted a simple, non-exclusive and non-transferrable right to use the software on  the agreed equipment. Copying of software is permitted only in accordance with the regulations.
(2) The software let to Customer shall not be made available in whatever form to third parties, in whole or in part. Customer shall not be allowed to modify or remove any identification marks, ownership data or property protection references. This provision shall also apply to any subsidiary material.

2. Maintenance Agreements
(1) We are granted the exclusive right to carry out whatever maintenance work during the life of the maintenance agreement concluded with Customer. Should Customer carry out himself a maintenance measure or have the same carried out through a third party without obtaining our approval, we would have the right to terminate this contract without notice.
(2) The exact time of maintenance will be planned by us in coordination with Customer.  Our work shall be carried out on normal work days, from Monday through Friday at usual business hours. The weekly work time shall be 37 hours. Times of preparation, travel and work times shall be deemed normal work time. Overtime working shall be made only in urgent cases of emergency upon Customer’s express request requiring our express confirmation.  To that effect,  overtime, Sunday and holiday additional pay will be charged as follows: In respect of the first two overtime hours: 35% per day; in respect of overtime and work on Sundays: 50%; in respect of public holidays falling on a Sunday: 100%;  and in respect of public holidays falling on a working day: 150%.
(3) In the event that Customer requests a maintenance date not included in the maintenance duties expressly  listed in the maintenance contract, Customer will be charged for labour costs plus travel time and travel expenses; spare parts will be charged in accordance with our price lists.
(4) We shall advise Customer in due time and in advance of  each maintenance date. Customer’s request relative to the time of an announced date shall be coordinated with us at least one week prior to the maintenance date. We shall inform Customer, by telefax, at least two days prior to the date of maintenance.
(5) Customer shall make sure that we have, at the time scheduled, unrestricted access to the place of maintenance, providing, whenever necessary, the opportunity  to park our vehicles in the vicinity of the place of maintenance and to deposit the items to be installed.
(6) Customer undertakes to reasonably support and facilitate the execution of the maintenance work  agreed. He shall insure that our staff can carry out the maintenance work with no  accident hazard or risk to their health and, for this purpose, shall take all preventive measures. Moreover, Customer shall see to it that the technical systems be out of operation, making available additional auxiliary workers, if so required. Furthermore, Customer shall provide auxiliary energy sources and fuel as required.
(7) Unless agreed otherwise, compensation for maintenance work  will be payable in advance in quarterly instalments.
(8) In addition to the maintenance lump, compensation shall be paid for spare and wear parts, for additional maintenance and upkeep exceeding the agreed scope, for waiting times or overtime or other additional expenses for repair work and replacements that are the responsibility of Customer’s or his  nominees’ or that have been caused by  improper treatment of the equipment or by ignoring the operation instructions and recommendations of maintenance for operators, or by other culpable disregard of Customer’s obligation to carefully treat the equipment; the same shall also apply if the  removal of errors is rendered difficult as a result of changes made to the equipment or the connection of devices not delivered by Supplier; furthermore, this provision shall apply to maintenance and repair work or replacements in case Customers has used unsuitable consumable material; and to repair work for removing damage or losses caused by Act of God.
(9) Customer shall transfer to us the title to exchanged parts that have been exchanged during the warranty period.
(10) The liability provision pursuant to  clause IX. hereof shall apply accordingly.
(11) Customer is obliged to accept the services as soon as he has been notified by our staff  of that our work  has been completed and after a contractually agreed test, if any, has taken place. The work time incurred by our assembly staff shall be certified by Customer. Otherwise, the entries of our staff shall apply. If delayed acceptance is not our responsibility, the services shall be deemed accepted after one week from notification of the completion of the work. Upon acceptance, Customer no longer shall have the right to claim compensation for apparent  defects, unless he has reserved himself the right to assert a special defective condition.

3. Training Conditions
(1) Training shall be in accordance with  mandatory statutory regulations and rules.
(2) Course and time schedule shall be in accordance with the given requirements. 
(3) In the event that the training cannot be brought to an end due to force majeure, government regulations, technical  breakdown or for reasons of safety, Customer shall not be entitled to a claim for compensation unless we are responsible herefore.

4. Conditions of Lease
(1) We are leasing to our customers, during the life of this contract,  the devices individually identified in our offer (hereinafter referred to as „leased item“). The minimum lease period shall be one week. The leased item will be let  for contractual use as described in our offer. 
(2) Prior to surrender of the leased item Customer shall create the specified technical and space-related prerequisites required for installation and operating safety of the leased item. 
(3) The rental will be stipulated in our offer. Other than stated under Section III, payments in this respect shall be due 10 days from invoicing. No rebate  will be granted. Unless separately shown, the prices specified therein shall be plus applicable VAT.  The rental shall include the fee for  letting the leased item as well as the compensation for upkeep and repair. The supply of consumable materials shall not be covered by the rental. and shall be separately payable, if applicable. Adjustments of and/or  changes in the leased item effected upon Customer’s request will  be separately charged,  unless they are required for the upkeep or repair of the leased item or for the safe use thereof in accordance with the contract. The rental payment obligation shall commence upon establishing serviceability. The rental shall be payable in advance. We shall charge  a lease lump for each week commence in which the leased item has been let to our customers, with the lump varying depending on the offered type and outfit. In the event that the return of the leased item is delayed each commenced week will be fully charged. If the lease concluded with Customer has a life of more than two weeks, we shall be authorized to  submit  our invoice covering the lease time already lapsed. Should special prices have been agreed for a long-term lease, such special prices shall  be valid only if the contract is performed throughout the agreed period of lease.  A long-term lease  can be terminated for cause only. 
(4)  Letting of the leased item is for the exclusive use through Customer and his employed. The leased items must be used only for the purposes specified in closer detail in our offer. 
(5) Customer is not authorized to permit use of the leased item to third parties, in particular, to let or  lend  the same, unless with our approval.  Use thereof through lessee’s employed shall be permitted within the scope of  use under this contract. 
(6) Customer shall treat the leased item carefully, protecting the same against damage.  Customer shall safeguard the proper use and operation of the leased item through adequately qualified staff. Customer shall observe our assembly and operating instructions and the provisions referred to under Section VII. Identifying marks of the leased item shall not be allowed to be removed, modified or defaced. 
(7)  Customer shall notify us, without delay, of all defects and technical malfunctions. He shall permit to our employed and officers, during usual business hours, free access to the leased item for upkeep and repair purposes. Upkeep and repair work shall be exclusively performed by our staff. Removal of defects shall be by  remedy or repair of the leased item. To that effect, an adequate period of time shall be granted to us. A termination of contract on the part of Customer  pursuant to Articles 543 I II, No. 1 BGB for not having been granted  contractual use  shall be permissive only after an adequate opportunity having been given to us to remedy the defective condition and the same having failed. The warranty rights shall be excluded if Customer has effected himself or through third parties changes to the leased item without obtaining our approval. This provision shall not apply  if Customer is authorized to perform such changes and if such changes have been properly executed and reproducibly recorded. 
(8) We are authorized  to make changes in the leased item if such changes serve for  preserving or improving the item. This provision shall not apply if the measure cannot be reasonably accepted by Customer. 
(9) Changes in or additions to the leased item through Customer  shall require our previous consent. This provision shall especially apply to additions or fixtures or the connection of the leased item to other devices, EDP systems or networks. Prior to return of the leased item, Customer, upon our request, shall restore the original condition. 
(10) Use of the leased item at a site other than the one stipulated in our offer or for a purpose other than the one specified in our offer shall require our previous consent which shall not be unreasonably withheld, i.e. for cause rendering an implementation unreasonable to us. Transportation and new installation shall exclusively be effected by qualified experts. The costs and consequential expenses involved with a change in  site shall be borne by Customer. 
(11) Our liability shall be in accordance with the general provisions hereof. A liability leaving the question of fault unconsidered pursuant to Article  5635a BGB on the grounds of defects existing already at the time the contract was concluded, shall be excluded. 
(12) Upon termination of contract, Customer shall return to us the leased item in proper condition. Upon return of the leased item, a record shall be prepared stating damage or defects, if any. The costs of transportation shall be borne by Customer. Moreover, the restoring costs in case of damage or defects caused by Customer shall be borne by Customer. Customer shall take out a transport policy in respect of the leased item including accessories with the amount insured corresponding to the replacement value. Customer shall assign to us the rights arising out of this insurance. The said assignment will be accepted by us.

XIII. Concluding Provisions

(1) In the event that User also employs General Sales and Delivery Conditions, the contract shall be concluded even without an express agreement on the integration of the General Sales and Delivery Conditions. To the extent that the deviating General Sales and Delivery Conditions are identical in terms of their contents, the same shall be deemed agreed. Conflicting individual provisions shall be replaced by the rules of optional law. The same shall apply if User’s  Sales and Delivery Conditions contain provisions that are not included in these General Sales and Delivery Conditions. If these General Sales and Delivery Conditions contain provisions not included in User’s Sales and Delivery Conditions, the  conditions hereof shall take precedence. 
(2) The place of performance for deliveries and payments shall be Karlsruhe to the effect that we shall be authorized also to initiate court proceedings at Customer’s place of business  or at the place of a branch establishment of Customer’s. 
(3) These General Sales and Delivery Conditions shall be governed by the laws of the Federal Republic of Germany. However, the provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply to the relationship between our Company and Customer.