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GENERAL CONDITIONS

FOR THE SUPPLY OF PRODUCTS AND SERVICES OF THE ELECTRICAL AND ELECTRONICS INDUSTRY ("Grüne Lieferbedingungen" – GL)

for commercial transactions between businesses
recommended by ZVEI - Zentralverband Elektrotechnik- und Elektronikindustrie e. V.
– as of June 2005 –
I. GENERAL PROVISIONS

1. Legal relations between Supplier and Purchaser in connection with supplies and/or services of the Supplier (hereinafter referred to as “Supplies”) shall be solely governed by the present GL. The Purchaser’s general terms and conditions shall apply only if expressly accepted by the Supplier in writing. The scope of delivery shall be determined by the congruent mutual written declarations.
2. The Supplier herewith reserves any industrial property rights and/or copyrights pertaining to its cost estimates, drawings and other documents (hereinafter referred to as “Documents”). The Documents shall not be made accessible to third parties without the Supplier’s prior consent and shall, upon request, be returned without undue delay to the Supplier if the contract is not awarded to the Supplier. Sentences 1 and 2 shall apply mutatis mutandis to the Purchaser’s Documents; these may, however, be made accessible to those third parties to whom the Supplier has rightfully subcontracted Supplies.
3. The Purchaser has the non-exclusive right to use standard software and firmware, provided that it remains unchanged, is used within the agreed performance parameters, and on the agreed equipment. Without express agreement the Purchaser may make one back-up copy of standard software.
4. Partial deliveries are allowed, unless they are unreasonable to accept for the Purchaser.
5. The term „claim for damages” used in the present GL also includes claims for indemnification for useless expenditure.

II. PRICES, TERMS OF PAYMENT, AND SET-OFF

1. Prices are ex works and excluding packaging; value added tax shall be added at the then applicable rate.
2. If the Supplier is also responsible for assembly or erection and unless otherwise agreed, the Purchaser shall pay the agreed remuneration and any incidental costs required, e. g. for traveling and transport as well as allowances.
3. Payments shall be made free Supplier’s paying office.
4. The Purchaser may set off only those claims which are undisputed or nonappealable.

III. RETENTION OF TITLE

1. The items pertaining to the Supplies (“Retained Goods”) shall remain the Supplier’s property until each and every claim the Supplier has against the Purchaser on account of the business relationship has been fulfilled. If the combined value of the Supplier’s security interests exceeds the value of all secured claims by more than 10 %, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser; the Supplier shall be entitled to choose which security interest it wishes to release.
2. For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.
3. The Purchaser shall inform the Supplier forthwith of any seizure or other act of intervention by third parties.
4. Where the Purchaser fails to fulfil its duties, fails to make payment due, or otherwise violates its obligations the Supplier shall be entitled to rescind the contract and take back the Retained Goods in the case of continued failure following expiry of a reasonable remedy period set by the Supplier; the statutory provisions providing that a remedy period is not needed shall be unaffected. The Purchaser shall be obliged to return the Retained Goods. The fact that the Supplier takes back Retained Goods and/or exercises the retention of title, or has the Retained Goods seized, shall not be construed to constitute a rescission of the contract, unless the Supplier so expressly declares.

IV. TIME FOR SUPPLIES; DELAY

1. Times set for Supplies shall only be binding if all Documents to be furnished by the Purchaser, necessary permits and approvals, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. If these conditions are not fulfilled in time, times set shall be extended reasonably; this shall not apply if the Supplier is responsible for the delay.
2. If non-observance of the times set is due to force majeure such as mobilization, war, rebellion or similar events, e. g. strike or lockout, such time shall be extended accordingly. The same shall apply if the Supplier does not receive its own supplies in due time or in due form.
3. If the Supplier is responsible for the delay (hereinafter referred to as “Delay”) and the Purchaser has demonstrably suffered a loss therefrom, the Purchaser may claim a compensation as liquidated damages of 0.5 % for every completed week of Delay, but in no case more than a total of 5 % of the price of that part of the Supplies which due to the Delay could not be put to the intended use.
4. Purchaser’s claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above are excluded in all cases of delayed Supplies, even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of mandatory liability based on intent, gross negligence, or due to loss of life, bodily injury or damage to health. Rescission of the contract by the Purchaser based on statute is limited to cases where the Supplier is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
5. At the Supplier’s request, the Purchaser shall declare within a reasonable period of time whether it, due to the delayed Supplies, rescinds the contract or insists on the delivery of the Supplies.
6. If dispatch or delivery, due to Purchaser’s request, is delayed by more than one month after notification of the readiness for dispatch was given, the Purchaser may be charged, for every additional month commenced, storage costs of 0.5 % of the price of the items of the Supplies, but in no case more than a total of 5 %. The parties to the contract may prove that higher or, as the case may be, lower storage costs have been incurred.

V. PASSING OF RISK

1. Even where delivery has been agreed freight free, the risk shall pass to the Purchaser as follows:

1. if the Supplies do not include assembly or erection, at the time when the Supplies are shipped or picked up by the carrier. Upon the Purchaser’s request, the Supplier shall insure the Supplies against the usual risks of transport at the Purchaser’s expense;
2. if the Supplies include assembly or erection, at the day of taking over in the Purchaser’s own works or, if so agreed, after a fault-free trial run.
2. The risk shall pass to the Purchaser if dispatch, delivery, the start or performance of assembly or erection, the taking over in the Purchaser’s own works, or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the Supplies.

VI. ASSEMBLY AND ERECTION

Unless otherwise agreed in written form, assembly and erection shall be subject to the following provisions:

1. The Purchaser shall provide at its own expense and in due time:

1. all earth and construction work and other ancillary work outside the Supplier’s scope, including the necessary skilled and unskilled labor, construction materials and tools,
2. the equipment and materials necessary for assembly and commissioning such as scaffolds, lifting equipment and other devices as well as fuels and lubricants,
3. energy and water at the point of use including connections, heating and lighting,
4. suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities as are appropriate in the specific circumstances; furthermore, the Purchaser shall take all measures it would take for the protection of its own possessions to protect the possessions of the Supplier and of the erection personnel at the site,
5. protective clothing and protective devices needed due to particular conditions prevailing on the specific site.
2. Before the erection work starts, the Purchaser shall unsolicitedly make available any information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data.
3. Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly or erection and any preparatory work must have advanced to such a degree that assembly or erection can be started as agreed and carried out without interruption. Access roads and the site of assembly or erection must be level and clear.
4. If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional traveling expenditure of the Supplier or the erection personnel.
5. The Purchaser shall attest to the hours worked by the erection personnel towards the Supplier at weekly intervals and the Purchaser shall immediately confirm in written form if assembly, erection or commissioning has been completed.
6. If, after completion, the Supplier demands acceptance of the Supplies, the Purchaser shall comply therewith within a period of two weeks. In default thereof, acceptance is deemed to have taken place. Acceptance is also deemed to have been effected if the Supplies are put to use, after completion of an agreed test phase, if any.

VII. RECEIVING SUPPLIES
The Purchaser shall not refuse to receive Supplies due to minor defects.
VIII. DEFECTS AS TO QUALITY

The Supplier shall be liable for defects as to quality (“Sachmängel”, hereinafter referred to as “Defects”,) as follows:

1. Defective parts or defective services shall be, at the Supplier’s discretion, repaired, replaced or provided again free of charge, provided that the reason for the Defect had already existed at the time when the risk passed.
2. Claims for repair or replacement are subject to a statute of limitations of 12 months calculated from the start of the statutory statute of limitations; the same shall apply mutatis mutandis in the case of rescission and reduction. This shall not apply where longer periods are prescribed by law according to Sec. 438 para. 1 No. 2 (buildings and things used for a building), Sec. 479 para. 1 (right of recourse), and Sec. 634a para. 1 No. 2 (defects of a building) German Civil Code (“BGB”), in the case of intent, fraudulent concealment of the Defect or non-compliance with guaranteed characteristics (Beschaffenheitsgarantie). The legal provisions regarding suspension of the statute of limitations (“Ablaufhemmung”, “Hemmung”) and recommencement of limitation periods shall be unaffected.
3. Notifications of Defect by the Purchaser shall be given in written form without undue delay.
4. In the case of notification of a Defect, the Purchaser may withhold payments to an amount that is in a reasonable proportion to the Defect. The Purchaser, however, may withhold payments only if the subject-matter of the notification of the Defect involved is justified and incontestable. The Purchaser has no right to withhold payments to the extent that its claim of a Defect is time-barred. Unjustified notifications of Defect shall entitle the Supplier to demand reimbursement of its expenses by the Purchaser.
5. The Supplier shall be given the opportunity to repair or to replace the defective good (“Nacherfüllung”) within a reasonable period of time.
6. If repair or replacement is unsuccessful, the Purchaser is entitled to rescind the contract or reduce the remuneration; any claims for damages the Purchaser may have according to No. 10 shall be unaffected.
7. There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usability, of natural wear and tear, or damage arising after the passing of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective civil works, inappropriate foundation soil, or claims based on particular external influences not assumed under the contract, or from non-reproducible software errors. Claims based on defects attributable to improper modifications or repair work carried out by the Purchaser or third parties and the consequences thereof are likewise excluded.
8. The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel, transport, labor, and material, to the extent that expenses are increased because the subject-matter of the Supplies has subsequently been brought to another location than the Purchaser’s branch office, unless doing so complies with the normal use of the Supplies.
9. The Purchaser’s right of recourse against the Supplier pursuant to Sec. 478 BGB is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects. Moreover, No. 8 above shall apply mutatis mutandis to the scope of the right of recourse the Purchaser has against the Supplier pursuant to Sec. 478 para. 2 BGB.
10. The Purchaser shall have no claim for damages based on Defects. This shall not apply to the extent that a Defect has been fraudulently concealed, the guaranteed characteristics are not complied with, in the case of loss of life, bodily injury or damage to health, restrictions to liberty and/or intentionally or grossly negligent breach of contract on the part of the Supplier. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser. Any other or additional claims of the Purchaser exceeding the claims provided for in this Article VIII, based on a Defect, are excluded.

IX. INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHT; DEFECTS IN TITLE

1. Unless otherwise agreed, the Supplier shall provide the Supplies free from third parties’ industrial property rights and copyrights (hereinafter referred to as “IPR”) with respect to the country of the place of delivery only. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in Article VIII No. 2 as follows:

1. The Supplier shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this would be impossible for the Supplier under reasonable conditions, the Purchaser may rescind the contract or reduce the remuneration pursuant to the applicable statutory provisions.
2. The Supplier’s liability to pay damages is governed by Article XI.
3. The above obligations of the Supplier shall apply only if the Purchaser (i) immediately notifies the Supplier of any such claim asserted by the third party in written form, (ii) does not concede the existence of an infringement and (iii) leaves any protective measures and settlement negotiations to the Supplier’s discretion. If the Purchaser stops using the Supplies in order to reduce the damage or for other good reason, it shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.
2. Claims of the Purchaser shall be excluded if it is responsible for the infringement of an IPR.
3. Claims of the Purchaser are also excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by a type of use not foreseeable by the Supplier or by the Supplies being modified by the Purchaser or being used together with products not provided by the Supplier.
4. In addition, with respect to claims by the Purchaser pursuant to No. 1 a) above, Article VIII Nos. 4, 5, and 9 shall apply mutatis mutandis in the event of an infringement of an IPR.
5. Where other defects in title occur, Article VIII shall apply mutatis mutandis.
6. Any other claims of the Purchaser against the Supplier or its agents or any such claims exceeding the claims provided for in this Article IX, based on a defect in title, are excluded.

X. IMPOSSIBILITY OF PERFORMANCE; ADAPTATION OF CONTRACT

1. To the extent that delivery is impossible, the Purchaser is entitled to claim damages, unless the Supplier is not responsible for the impossibility. The Purchaser’s claim for damages is, however, limited to an amount of 10 % of the value of the part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of mandatory liability based on intent, gross negligence or loss of life, bodily injury or damage to health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The Purchaser’s right to rescind the contract shall be unaffected.
2. Where unforeseeable events within the meaning of Article IV No. 2 substantially change the economic importance or the contents of the Supplies or considerably affect the Supplier’s business, the contract shall be adapted taking into account the principles of reasonableness and good faith. To the extent this is not justifiable for economic reasons, the Supplier shall have the right to rescind the contract. If the Supplier intends to exercise its right to rescind the contract, it shall notify the Purchaser thereof without undue delay after having realized the repercussions of the event; this shall also apply even where an extension of the delivery period has previously been agreed with the Purchaser.

XI. OTHER CLAIMS FOR DAMAGES; STATUTE OF LIMITATIONS

1. The Purchaser has no claim for damages based on whatever legal reason, including infringement of duties arising in connection with the contract or tort.
2. The above shall not apply in the case of mandatory liability, e. g. under the German Product Liability Act (“Produkthaftungsgesetz”), in the case of intent, gross negligence, loss of life, bodily injury or damage to health, or breach of a condition which goes to the root of the contract (“wesentliche Vertragspflichten”). However, claims for damages arising from a breach of a condition which goes to the root of the contract shall be limited to the foreseeable damage which is intrinsic to the contract, unless caused by intent or gross negligence or based on liability for loss of life, bodily injury or damage to health. The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.
3. To the extent that the Purchaser has a claim for damages, it shall be timebarred upon expiration of the statute of limitations pursuant to Article VIII No. 2. The same shall apply to the Purchauser’s claims in connection with actions undertaken to avoid any damage (e. g. callback). In the case of claims for damages under the German Product Liability Act, the statutory statute of limitations shall apply.

XII. VENUE AND APPLICABLE LAW

1. If the Purchaser is a businessman, sole venue for all disputes arising directly or indirectly out of the contract shall be the Supplier’s place of business. However, the Supplier may also bring an action at the Purchaser’s place of business.
2. Legal relations existing in connection with this contract shall be governed by German substantive law, to the exclusion of the United Nations Convention on contracts for the International Sale of Goods (CISG).

XIII. SEVERABILITY CLAUSE
The legal invalidity of one or more provisions of this Agreement in no way affects the validity of the remaining provisions. This shall not apply if it would be unreasonable for one of the parties to be obligated to continue the contract.

 

Supplementary clause Extended Retention of Title

Sample contract of ZVEI - Zentralverband Elektrotechnik- und Elektronikindustrie e. V.
– November 2005 –

1. The delivery items (goods subject to retention of title) shall remain the property of the Supplier until all of the Supplier’s claims against the Buyer resulting from the business relationship have been fulfilled. If the value of all the Supplier’s security interests exceeds the value of all secured claims by more than 10%, the Supplier shall, at the Buyer’s request, release a corresponding part of the security interests; the Supplier has the choice over which security interests to release.
2. While the retention of title is in force, the Buyer may not pledge the retained goods or assign them as a security, and is only permitted to resell them to resellers in the ordinary course of business and only on the condition that the reseller receives payment from its customer or makes the reservation that the property only passes to the customer once the latter has fulfilled its payment obligations.
3. If the Buyer resells the goods under retention of title, it hereby assigns to the Supplier as security all future claims against its customers from the resale, including all ancillary rights – such as accounts receivable claims – without there being any requirement for a further declaration. If the goods under retention of title are resold with other items without an individual price having been agreed for the goods under retention of title, the Buyer shall assign the portion of the total asking price to the Supplier which corresponds to the price of the retained goods invoiced by the Supplier.
4.
1. The Buyer is authorised to process the retained goods or to mix or combine them with other objects.
2. The Supplier and Buyer are already agreed at this stage that in the case of the retained goods being combined or mixed with other items not belonging to the Supplier, the Supplier shall in any case gain joint ownership of the new product in the ratio of the value of the mixed or combined goods under retention of title to the value of the other goods at the point in time of mixing or combining. The new product is therefore considered to be subject to retention of title.
3. The provision regarding the assignment of receivables pursuant to No. 3 also applies to the new product. However, the assignment applies only up to the amount corresponding to the value invoiced by the Supplier for the processed, combined or mixed goods subject to retention of title.
4. If the Buyer combines the goods subject to retention of title with real estate or movable property, it shall also, without the need for further declarations, assign as security to the Supplier the claims due to it as payment for the combination, along with all ancillary rights, in the ratio of the value of the mixed or combined goods subject to retention of title to the value of the other goods at the point in time of mixing or combining. The new product is therefore considered to be subject to retention of title.
5. Until further notice the Buyer is authorised to collect assigned receivables from the resale. In the case of good cause, especially in the case of default of payment, suspension of payments, the initiation of insolvency proceedings, the protesting of a bill or substantiated evidence of indebtedness or impending insolvency on the part of the Buyer, the Supplier is entitled to revoke the Buyer’s collection authorisation. In addition, the Supplier may, following prior announcement and after observing a reasonable deadline, disclose the assignment of security, utilise the assigned claims and require the Buyer to disclose the assignment of security to the customer.
6. The Buyer must inform the Supplier immediately in the case of seizures, distraints or other orders or acts of intervention by third parties. If there is prima facie evidence of a legitimate interest, the Buyer must provide the Supplier with the information required to enforce the latter’s rights vis-à-vis the Buyer’s customers and hand over the required documents.
7. In the case of breaches of duty on the part of the Buyer, especially in case of default of payment, the Supplier is – following the unfruitful expiry of a reasonable deadline for performance set to the Buyer – entitled to withdraw from the contract in addition to recovering the goods. The statutory provisions governing cases, in which setting a deadline is not necessary, remain unaffected. The Buyer is obligated to surrender the goods. A recovery of the retained goods and/or the enforcing of the retention of title or a seizure of the retained goods by the Supplier does not entail withdrawal from the contract, unless the Supplier has explicitly stated this.

 

Software Clause

FOR THE PROVISION OF STANDARD SOFTWARE FORMING AN INTEGRAL PART OF SUPPLIES

Amending the “General Conditions for the supply of Products and Services of the Electrical and Electronics Industry” (GL)

Recommended by the ZVEI - Zentralverband Elektrotechnik- und Elektronikindustrie e. V.
– July 2004 –
1. SCOPE OF APPLICATION OF THE SOFTWARE CLAUSE

1. This Software Clause shall apply exclusively to the provision of standard software for a limited or unlimited period as a part of or in connection with related hardware (such software hereinafter referred to as “Software”), as well as to the entire Supplies, to the extent that a breach of contract has its cause in the Software. Furthermore, hardware shall be solely subject to the conditions of the GL.
2. Firmware is not “Software” within the meaning of this Software Clause.
3. The GL shall apply to those matters as far as not specifically covered in this Software Clause.
4. The Supplier does not assume any obligation to perform software services by virtue of this Software Clause. Such services requires a separate agreement.

2. DOCUMENTATION

Article I No. 2 GL shall be supplemented as follows:

The provision of documentation requires a separate agreement in writing. If documentation is to be provided, the term “Software” hereinafter shall also include the documentation.
3. RIGHTS TO USE

Article I No. 3 GL shall be replaced as follows:

1. The Supplier grants the Purchaser the non-exclusive right to use the Software. The right to use is limited to the agreed period of time, in the absence of such agreement, the right to use shall be unlimited in time.
2. The following supplementary conditions shall apply where the right to use is subject to a time limit:
The Purchaser shall use the Software solely on the hardware referred to in the contract documents (e. g. software product sheet), in the absence of such reference, the use shall be limited to the respective hardware supplied together with the Software. The use of the Software on any other device shall require the express prior written consent of the Supplier and shall, if used on a more powerful device, entitle the Supplier to claim an appropriate additional remuneration; this does not apply, however, to the extent and for the period in which the Purchaser uses a temporary substitute device within the agreed scope of use, because of a defect in the agreed device.
3. Where the contract documents refer to more than one device, the Purchaser shall not use the Software provided on more than one of these devices simultaneously (Single License), to the extent that it has not been granted a Multiple License pursuant to No. 3 (i) below. Where more than one workplace exists for a specific device where the Software can be used independently, the Single License shall apply to only one workplace.
4. The Software shall exclusively be provided in machine readable format (object code).
5. The Purchaser shall be entitled to make only one copy of the Software and solely so for back-up purposes (back-up copy). Any other duplication on the part of the Purchaser shall be allowed only subject to a Multiple License pursuant to No. 3 (i) below.
6. Save as provided for in Sec. 69 (e) (decompilation) of the German Copyright Act, the Purchaser shall not be entitled to modify, decompile, translate, or isolate parts of the Software. The Purchaser shall not remove alphanumeric or other identifiers from the data medium and shall transfer such identifiers unchanged to any backup copy.
7. The Supplier grants the Purchaser the right – which shall be revocable for good cause – to assign the right to use granted to it to a third party. The Purchaser to whom the Software has not been provided for commercial resale shall pass on the right to use the Software only together with the device it has bought in combination with the Software from the Supplier. If the right to use is transferred to a third party, the Purchaser shall ensure that the right to use granted to the third party does not exceed the scope of rights to the Software granted to the Purchaser under this Agreement, and the Purchaser shall ensure that the third party shall be obliged to comply with at least the same obligations as are imposed herein. When doing so, the Purchaser may not retain copies of the Software. The Purchaser shall not be entitled to grant sublicenses. Where the Purchaser provides the Software to a third party, the Purchaser shall ensure that any existing export requirements are observed and shall hold the Supplier harmless in this respect.
8. To the extent that Software is provided to the Purchaser for which the Supplier has only derived rights to use (third party software), the provisions of this No. 3 shall be amended and superseded by the conditions of use agreed between the Supplier and its licensor. To the extent that the Purchaser is provided with open source Software, the provisions of this No. 3 shall be amended and superseded by the conditions of use underlying the open source Software. Upon request, the Supplier shall provide the Purchaser with the source code if the provision of the source code has been agreed in the conditions of use. The Supplier shall point out in the contract documents if third party software or open source Software and pertaining conditions of use exist and make the conditions of use available if so requested. Any breach of the conditions of use on the part of the Purchaser shall entitle not only the Supplier, but also its licensor, to assert claims and rights arising therefrom in their own name.
9. The use of the Software on more than one device or simultaneously at more than one workplace shall require a separate agreement on the right to use. The same shall apply if the Software is used in networks even if the Software is not copied for this purpose. With regard to the situations named above (hereinafter referred to as “Multiple License”) the following provisions (1) and (2) shall apply in addition to and with priority over the provisions of this No. 3 (a) to (h):

(aa) Multiple License requires that the Supplier expressly confirms in writing the number of admissible copies that the Purchaser may make of the Software provided and the number of devices and/or workplaces where the Software may be used. No. 3 (g) second sentence shall be applicable to Multiple Licenses provided that they may be transferred by the Purchaser to third parties only if transferred in their totality and together with all devices on which the use of the Software is allowed.

(bb) The Purchaser shall observe the duplication rules provided by the Supplier together with the Multiple License. The Purchaser shall keep records on the whereabouts of all copies made and submit them to the Supplier upon request.

4. TRANSFER OF RISK

Article V GL shall be amended as follows:

If the Software is provided via electronic communication media (e. g. via the internet) the risk shall pass when the Software leaves the sphere of influence of the Supplier (e. g. when making a download).
5. ADDITIONAL OBLIGATIONS TO CO-OPERATE ON THE PART OF THE PURCHASER AND LIABILITY

Article VI GL shall be supplemented as follows:

The Purchaser shall take all required and reasonable measures to prevent or limit damage attributable to the Software. In particular, the Purchaser shall make regular back-up copies of the programs and data.
To the extent the Purchaser negligently breaches this obligation, the Supplier shall not be liable for any consequences arising therefrom; this shall apply in particular to the replacement of lost or damaged data or programs. The above provision does not imply a change in the burden of proof.
6. DEFECTS AS TO QUALITY (“THE DEFECTS”)

1. In the case of Software provided for an unlimited period of time, Article VIII GL shall be replaced by the following:

1. Claims based on Defects of the Software are subject to a statute of limitations of 12 months. This provision shall not apply where longer periods are prescribed by law according to Sec. 438 para. 1 No. 2 (buildings and items used for a building), Sec. 479 para. 1 (right of recourse), and Sec. 634 a para. 1 No. 2 (defects of a building) German Civil Code (“BGB”), as well as in cases of loss of life, bodily injury or damage to health, or where the Supplier intentionally or as a result of gross negligence fails to fulfil its obligation or fraudulently conceals a Defect. The statute of limitations commences upon the transfer of risk to the Purchaser. The legal provisions regarding suspension of the statute of limitations (“Ablaufhemmung”, “Hemmung”) and recommencement of limitation periods remain unaffected.
2. Software is considered to be defective only if the Purchaser can prove that there are reproducible deviations from the specifications. A Defect shall not be deemed to exist if it does not manifest itself in the latest version supplied to the Purchaser, and the use thereof by Purchaser can reasonably be required.
3. Notification of Defects shall be given in writing without undue delay. Defects and the relevant data processing environment shall be described as precisely as possible therein.
4. Claims based on Defects do not exist in the cases of any of the following
– insignificant deviations from the agreed characteristics,
– only minor impairment of usability,
– damage from faulty or negligent handling,
– damage from particular external influences not assumed under the contract,
– modifications made by the Purchaser or third parties, and any consequences resulting therefrom,
– software extensions made by the Purchaser or a third party through the use of an interface provided by the Supplier,
– incompatibility of the Software provided with the data processing environment of the Purchaser.
5. In the case of defective Software, the Supplier shall be first given the opportunity to repair or replace the Software (“Nacherfüllung”) within a reasonable period of time. The Supplier shall be entitled to choose between repair and replacement.
6. Unless the Supplier chooses otherwise, the Supplier will correct the Defect in the Software as follows:

(aa) The Supplier will provide a replacement by way of an update or an upgrade of the Software if available to the Supplier or obtainable with reasonable efforts by the Supplier. If the Purchaser has been granted a Multiple License, it may make a corresponding number of copies of the update, or, as the case may be, upgrade.

(bb) Until an update, or, as the case may be, upgrade is provided, the Supplier will make available to the Purchaser an interim solution bypassing the Defect, provided that this does not result in unreasonable expenditures and that the Purchaser would otherwise, due to the Defect, be unable to complete work that cannot be delayed.

(cc) If a data medium or documentation supplied proves to be defective, the Purchaser’s right shall be limited to demanding that the Supplier replace it with a nondefective version.

(dd) The Supplier shall have the right to choose whether it corrects the Defect at the location of the Purchaser or at its own location. If the Supplier chooses to correct the Defect at the Purchaser’s location, the Purchaser shall assure that the required hardware and software as well as the required operating conditions (including the required computing time) and qualified operating personnel are available. The Purchaser shall submit to the Supplier the documents and information available to it and required for Defect correction.
7. If the Defect cannot be corrected, the Purchaser shall be entitled to rescind the contract or reduce the remuneration, irrespective of any claims for damages it may have according to Article XI GL.
8. Upon notification of a Defect, the Purchaser may withhold payments to a reasonable extent taking into account the Defect involved. The Purchaser, however, may withhold payments only if the subject-matter of the notification is justified beyond doubt. Notification without cause shall entitle the Supplier to reimbursement of its expenses by the Purchaser.
9. Claims for damages shall furthermore be subject to Article XI GL. Any other Defect claims or Defect claims beyond this No. 6 by the Purchaser against the Supplier or its agents shall be excluded.
2. For Software provided for a limited period of time only, letters (b), (c), (d), (e), (f) and (i) of para. 1 above shall apply mutatis mutandis instead of Article VIII. Letter (g) shall apply except that the right of rescission shall be replaced by the right to termination without notice.

7. INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHT; DEFECTS IN TITLE

Article IX GL shall be amended as follows:

1. Article IX No. 1 GL shall apply as follows:

Unless otherwise agreed, the Supplier shall provide the Supplies free from third parties’ industrial property rights and copyrights (hereinafter referred to as “IPR”) with respect to the country of the place of delivery only. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser – in the case of Software provided for an unlimited time period within the contractual limitation period stipulated for Defects; in the case of temporarily provided Software within the statutory limitation period – as follows:
1. (unchanged)
2. (unchanged)
3. (unchanged)
2. Article IX.2 GL shall apply unchanged.
3. Article IX.3 GL shall apply unchanged.
4. Article IX.4 GL shall be replaced by:
In addition, with respect to claims by the Purchaser pursuant to No. 1 (a) above, No. 6 para. 1 lit. (h) and (e) first sentence of this Software Clause shall apply mutatis mutandis in the event of an infringement of an IPR.
5. Article IX.5 GL shall be replaced by:
The provisions of No. 6 of this Software Clause shall apply where other defects in title occur.

8. OTHER CLAIMS FOR DAMAGES

Article XI GL shall be amended as follows:

1. Article IX.1 GL shall apply unchanged.
2. Article XI.2 GL shall apply unchanged.
3. Article X.3 GL shall apply as follows:
To the extent that the Purchaser has a valid Claim for Damages according to Article XI GL, it shall be time-barred upon expiration of the statute of limitations applicable to Defects pursuant to No. 6 (1) of this Software Clause. In the case of claims for damages under the German Product Liability Act, the statutory provisions governing limitation periods shall apply.

General Conditions of Purchase

A. General provisions

1. Our orders – including future orders – are subject exclusively to these conditions of purchase. The confirmation or execution of the order shall be deemed as acceptance of these conditions of purchase. This shall apply even if the supplier states that it only wants to supply under its own terms and conditions. Other conditions and deviations from these conditions of purchase require our written consent in order to be valid.
2. If special conditions that deviate from these conditions of purchase are agreed for certain orders, these conditions of purchase shall be considered secondary and supplementary to the former.

B. Orders, order confirmation and the preparation of offers

1. Orders must be made in writing. Oral agreements are only legally valid if they are confirmed in writing. Orders must be confirmed by the supplier without delay, stating the order number, price, discount, delivery and delivery conditions.
2. The preparation of offers by the supplier is made to us free of charge and is non-binding on us.

C. Prices

1. The agreed prices are fixed prices and remain valid until the order has been fully processed. Subsequent increases, regardless of the reason, are excluded. Non-agreed surcharges for import duties and other duties and taxes are in particular excluded.
2. The agreed prices entail carriage-paid delivery, including ancillary costs, packaging costs and freight costs. Where “ex-works deliveries” are agreed, our forwarding instructions are binding. We assume only the costs thereby incurred.

D. Delivery dates and contractual penalties

1. The stipulated times and deadlines for delivery or for the provision of service must be adhered to. Early (partial) deliveries require our consent.
2. If it becomes evident that the delivery times cannot be met, the supplier shall immediately inform us of the details of this in writing. This shall not affect our rights in any way. In the case of default of delivery, the supplier undertakes to pay a contractual penalty of 1% of the price of the delivery for each full week of the delay, but not more than a total of 5% of the price of the delivery. We may reserve the enforcement of the incurred contractual penalty until the final payment. Further claims for delays remain unaffected.
3. By accepting the delayed delivery or service we do not waive further compensation claims.

E. Forwarding instructions, delivery notes and packaging

1. The shipping documents must include the references stipulated by us. Immediately upon dispatch we are to be sent 2 copies of the delivery note, which must include the exact name, quantity, weight (gross and net), as well as the nature and packaging of the product or the item. If the delivery note for a delivery is not issued on time or if the above information is absent from the shipping papers or delivery note, the goods shall be stored at the cost and at the risk of the supplier until the arrival of the shipping documents or the complete set of required information.
2. All goods must be duly packed and shipped. Where packaging costs are legitimately charged (cf. C.2.), we are to be credited with the amount charged for these purposes upon the return of the packaging material. The supplier undertakes to ship the products that are destined for us in such a way that Deutsche Bahn AG, Deutsche Post AG or the freight forwarder/carrier is not entitled to reject liability for transport damage.

F. Allocation of risk, cooperation by us
The risk of accidental destruction or accidental deterioration is born by the supplier until delivery of the goods; in case of a service that requires acceptance, the supplier shall bear the risk until the service is accepted by us. Should the supplier not properly fulfil its contractual obligations in connection with the transport (e.g. unloading of the delivery item), it must compensate us for any costs incurred. An early passage of risk does not take place even if we cooperate in the fulfilment of the supplier’s obligations; we are only responsible for gross negligence and intent.
G. Receipt, inspection and examination of the goods
Cases of force majeure, strikes and lockouts shall entitle us to postpone the acceptance accordingly. Acceptance shall – under normal business conditions – take place immediately upon receipt or commissioning, to the extent that the delivery is in compliance with the contract. Statutory provisions that allow for deemed acceptance are excluded. In the case of excess deliveries which exceed the amount customary in the trade, we reserve the right to return the excess goods at the expense of the supplier. Any investigation obligations that we are subject to are limited to the immediate checking of the goods to see if they correspond to the ordered quantity and type, and whether there is any externally visible transport damage or if there are any externally visible defects. To the extent that we are required to immediately report defects, hidden defects may be reported within 2 weeks of their discovery, other defects within 1 week of their discovery.
H. Payment

1. 1. The payment shall be made – to the exclusion of legal provisions governing earlier due dates, e.g. of instalments – at our discretion either within 14 calendar days with a 3% discount or within 90 days, calculated from the date of the receipt of the invoice and the complete receipt of the goods, or in the case of services not before their acceptance. Late payments which are caused by incorrect or incomplete invoice documents nevertheless entitle us to a discount.
2. The date of the receipt of invoice is deemed to be the date of the receipt stamp of the address stipulated in the order. If documentation and/or certificates are included in the scope of delivery, the period of time shall only begin with their handover to us in accordance with the contract. The payment periods shall, however, not begin before the agreed delivery date.
3. Payment shall be made by cash, by check or by draft, with the discount fees and taxes for draft payments being charged to us. We shall only enter default following a reminder. If we make a payment before the delivery of the goods or services, the supplier undertakes to provide us, at our discretion, with security equal in value to the amount of the payment and/or to assign the item to us. Any advance payments or interim payments do not constitute recognition of the contractual conformity of the performance.

I. Protective regulations
The supplier undertakes to respect the rules of good engineering practice as well as, in particular, the regulations and guidelines regarding implementation, accident prevention and environmental protection issued by the legislator, regulators, professional associations, the VDI and the VDE.
J. Material Defects

1. The time limit for reporting material defects (warranty period) starts upon the acceptance of the goods. If commissioning takes place later than the acceptance, the warranty period shall begin on the day of commissioning. The warranty period is 3 years. In the case of a subsequent performance the agreed warranty period shall restart from the point in time of the subsequent performance. Warranty claims become time-barred 6 months after the end of the warranty period.
2. Notwithstanding the provisions on the suspension of expiration (Ablaufhemmung), suspension (Hemmung) and restarting of time limits, the warranty period and the limitation period shall both be suspended for the duration of any interruption to operations caused by defects.
3. The warranty period and the above-mentioned period of limitation shall not apply where longer statutory limitation periods are applicable, particularly in accordance with Section 438(1) No. 2 (buildings and things used for buildings), Section 479(1) (recourse) and Section 634a(1) No. 2 (construction defects) of the German Civil Code (BGB).
4. The choice between the remedying of a defect and new production is in each case left to our discretion. In urgent cases or if the contractor is in default of performance with regard to the supplementary performance, we shall also be entitled to remedy the defects ourselves, to have them remedied, or to obtain a replacement. We shall determine when an urgent case arises in this sense, exercising all due care and diligence. A remedy is considered to have failed if the first remedy attempt was unsuccessful.

K. Liability
The supplier shall indemnify us for claims for damages that may be asserted against us because of a defect or failure of a product delivered by the supplier. In addition, the supplier shall indemnify us against all costs and expenses incurred to us in connection with any precautionary measures which may be necessary to avert non-contractual liability under foreign or domestic law (e.g. pursuant to the German Product Liability Law), particularly due to warnings or recalls; however, this shall only apply to the extent that these measures have been caused by a faulty delivery of the supplier. The supplier is otherwise liable in accordance with the statutory provisions (also to an unlimited extent).
L. Intellectual Property Rights
The supplier is liable for ensuring that the delivery item is free from third party rights. In the event of a breach of intellectual property rights the supplier is obligated, for their period of validity, to compensate us for any damages incurred to us or third parties. In this case we are also entitled to obtain from the owner of such rights (at the expense of the supplier) the necessary authorisation to supply, commission, use, and sell the delivery item.
M. Secrecy, tools, models, drawings and other documents

1. The supplier is obligated to keep our orders confidential, including all related commercial and technical details. Statements made by us, as well as tools, models, drawings and other documents etc. that are provided by us or made at our expense may only be applied or used for other purposes with our written consent and remain our property and/or become our property following manufacture. The passing of risk takes place analogously to the material order. They are to be insured at no cost to us from the time of the passing of risk to their return to our premises or the place designated by us. All damage incurred to us as a result of these events shall be borne by the supplier. Unless special agreements have been made, tools, models, drawings and other documents including any copies that have been made are to be returned with the final delivery.
2. Acceptance or approval of the drawings and samples provided by the supplier shall not release the supplier from it sole responsibility.

N. Off-setting, transfer of title

1. We shall be entitled to offset the supplier’s claims against us or against the companies in which we directly or indirectly hold a majority share with all claims against the supplier that are due to us or the abovementioned companies. Upon request we shall provide the supplier with a list of these companies. The supplier may only offset our claims with undisputed or judicially determined claims.
2. The ordered items shall automatically become our property upon a deposit being made, even if they have not yet been delivered. In this case the supplier shall keep the goods in storage for us and adequately protect them from natural hazards. To this extent, letter J. of these conditions of purchase shall also apply for the start of the warranty period.

O. Assignment, pledging
Claims arising from this order may be transferred to third parties, pledged or otherwise disposed of only in the case of mutual agreement. Our agreement for the assignment of the claim shall be deemed to have been granted if the supplier has granted its suppliers an extended retention of title in the ordinary course of business.
P. Procurement of supplies, etc.
The supplier is fully responsible – even if not at fault – for the procurement of supplies and services needed for the deliveries (full assumption of the procurement risk). The supplier shall be responsible for the supplies and services that it procures in the same way as it is responsible for its own deliveries/services. The providers of the supplies / services are agents of the supplier.
Q. Place of Performance, applicable law and place of jurisdiction

1. The place of performance for the delivery is the designated destination. If no place of destination is designated, and in the case of payments, the place of performance it is the place of our registered office. In addition to these conditions of purchase, German law shall apply. The applicability of the CISG is expressly excluded.
2. The sole place of jurisdiction for all disputes resulting directly or indirectly from this contractual relationship (including actions on bills of exchange) is Gießen.
3. Should individual provisions of this contract be or become invalid, the validity of the remaining provisions shall not be affected. The headings serve only for a better orientation and have no legal meaning, particularly not of any ultimate significance.

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