General Terms and Conditions of innovit AG

Following you will find a translation from the Terms and conditions in German. In case of any contradictions due to the translation, the GERMAN VERSION shall be the leading interpretation.

1. GENERAL VALIDITY

1.1. If not agreed differently in written form, the following "General Terms & Conditions" are valid for all offers, contracts, deliveries and other activities in business connections with non-consumers accoding to § 310 Abs. 1 BGB. Deviating conditions, particularly purchasing conditions of the customer, are hereby objected to.

1.2. As part of an ongoing business relationship between merchants, the conditions are also part of the contract, even if we have not explicitly mentioned in the individual case.

2. TENDERS AND CONTRACTS

2.1. The offers contained in our offers, sales literature and on the Internet are always subject to change, i.e., can only be understood as an invitation to make an offer.

2.2. Orders shall be deemed accepted if they are confirmed by us in writing or executed immediately after receipt of order. In this case the delivery note or proof of performance is considered as order confirmation.

2.3. Verbal subsidiary agreements or assurances, that go beyond the written contract are only effective if they have been confirmed by us in writing.

2.4. If, after signing of the contract, we become aware of facts which suggest that the claim arising from the purchase price is endangered by lack of the customer, we are entitled to demand step-by-step payment or corresponding collateral (at customers choice within a set period) or step away from the contract, whereby the invoices for partial deliveries already made shall become immediately due.

2.5. Our information on the subject of delivery or service (eg weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (eg drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose presupposes an exact match. They are not warranted characteristics, but descriptions or identifications of the delivery or performance. Customary deviations that occur due to legal regulations or technical improvements, as well as the replacement of components with equivalent parts shall be permissible insofar as they do not impair the usability for the contractually intended purpose.

2.6. We reserve all property rights and copyrights for cost estimates, drawings and similar documents. They may not be disclosed to third parties without our written consent. If an order is not signed or is not carried out, individually manufactured material shall be returned by the customer without being asked for.

3. DATA STORAGE

The customer is hereby informed that the personal data, gained from the business relationship, is saved and processed only according to the provisions of the Federal Data Protection Act.

4. DELIVERY, TRANSFER OF RISK AND DELAY

4.1. Delivery will be made, unless otherwise agreed by individual contract, always ex works. With the provision of the goods and the appropriate notification of the purchaser, the risk shall transfer to the Purchaser.

4.2. If the shipment is delayed at the request or fault of the purchaser, the goods are stored at the expense and risk of the purchaser. In this case, the notification of delivery possibility equals the delivery.

4.3. Fixed delivery and performance deadlines require a separate written agreement. Requirement of compliance with contractual deadlines are possible preparatory works on customer site.

4.4. If an agreed delivery and / or performance date is postponed at the request of the client, we are entitled to demand, after 2 weeks from the original delivery and / or performance date, a fee amounting to 0.5% of the net invoice amount of the stored delivery for each commenced week, limited to 5% of the net invoice amount by the Customer. Both parties are entitled to prove a lower or higher damage.

4.5. Partial deliveries are permissible to a reasonable extent.

4.6. The delivery period is extended - also within a delay - appropriately with entrance of higher force and all unexpected obstacles that we are not responsible for (in particular also operational disturbances, strikes, lockouts or transport disturbances), insofar as such obstacles demonstrably have a considerable influence on the supply of the delivery. We will inform the customer of the beginning and end of such obstacles as soon as possible. The purchaser can demand a declaration from us whether we intend to withdraw or deliver within a reasonable period. If we do not explain ourselves immediately, the customer can withdraw. Claims for damages are excluded in this case. The above provisions shall apply mutually to the customer, if the aforementioned obstacles occur at customers site.

4.7. We shall be liable with regard to timely delivery only for our own negligence and that of our agents. For the fault of our suppliers, we are not responsible, since these are not our agents. However, we commit ourselves at request to assign any claims against our suppliers to the customer claims.

5. PACKAGING

5.1. Packaging will be charged

5.2. In accordance with the packaging regulations in their current version, returning of packaging material is excluded if a suitable disposal company is contracted by us. The customer is in this case obligated to hand over packaging material to the waste disposal company. If we agree with the buyer that, against a flat fee, he will be responsible for the disposal, the buyer agrees to contract an approved waste disposal companies, which ensures a proper disposal according to the provisions of the Ordinance.

6. PRICES AND PAYMENT

6.1. Prices shown in our price lists and offers are always excluding VAT.

6.2. Unless otherwise agreed, invoices are due within 14 days after the invoice date. The same applies mutatis mutandis for installation services at its successful acceptance.

6.3. Unless otherwise agreed, the following payment-plan is agreed:
30% of the gross order value after conclusion of the contract;
60% of the gross order value after raw installation;
10% of the gross order value after acceptance.
6.4. Credits for checks are subject to receipt less the expenditure with value date on the day on which we can dispose of the equivalent value.

6.5. In case of default statutory provisions shall apply. Our demands are independent of the agreed payment terms due immediately if the payment conditions are not met or if facts come to light which suggests that our compensation claims are endangered by lack of customer. In the latter case we are entitled to make further deliveries condition to step-by-step-payments or the provision of appropriate securities.

6.6. A retention and / or netting is permitted only with claims recognized by us or legally established claims.

7. RETENTION OF TITLE

7.1. The ownership of the delivered goods remain with innovIT AG until full payment of the purchase price. For goods, which the purchaser receives as part of an ongoing business relationship, we reserve title until all claims against the Purchaser have been settled. In case of default of the customer we are entitled to repossess the goods after issuing a reminder and the customer is obligated to surrender the goods undisputed.

7.2. If the goods are processed by the Buyer into a new movable product, the processing is carried out on our behalf without establishing any obligation towards us; the new item becomes our property. If the reserved goods are combined with goods not belonging to us in accordance with §§ 947, 948 BGB, mixed or blended, or it is processed, we shall become joint owners in accordance with the statutory provisions. If the buyer acquires sole ownership by combining, mixing or blending, he now transfers to us co-ownership in proportion to the value of the goods at the time of combining, mixing or blending. The Purchaser shall in such cases, under our ownership or co-ownership liquidate the new item.

7.3. If reserved goods are sold alone or together with goods not belonging to us, the buyer shall already now, at the time the contract was concluded, pass the result from the re-sale of goods to the value of the reserved goods with all ancillary rights and priority over the rest to us; we accept the cession. Value of the goods is our invoice amount, but the approach remains except insofar as rights preclude him third. If the resold reserved goods in our ownership, then the assignment of the claims extends to the amount equal to the net asset value of our co-ownership.

7.4. If reserved goods are installed by the buyer as an essential component in the land, ship, ship structure or aircraft of third parties, the purchaser delivers the arising, assignable claims against the third party for compensation in the amount of the value of the goods with all ancillary rights including such a provision of securing mortgage with priority over the rest to us; we accept the cession. Section 7.3., Sentences 2 and 3 apply accordingly.

7.5. The purchaser is entitled and authorised to resell, use or install the reserved goods only in the usual ordinary course of business and only on the condition,that the requirements referred to in Sec 3 to 4 to the purchaser actually transferred. The purchaser is not entitled to dispose of the reserved goods, in particular pledging or transfer of ownership. Assignment by means of genuine factoring is permitted only to the purchaser, provided that this is indicated to us stating the factoring bank and the accounts of the purchaser and maintained the factoring proceeds exceed the value of the secured claim. With the crediting of the factoring proceeds our demand will be due immediately.

7.6. We will not exercise the right of seizure of assigned claims if the customer meets its payment obligations. At our request, the Purchaser shall name the debtors of the assigned claims and display this cession; we are entitled to notify the cession to the debtors themselves.

7.7. Of any third party foreclosure acts in the reserved goods or the assigned claims, the purchaser must inform us immediately by handing over the necessary documents of the contradiction.

7.8. With cessation of payments and / or application for the opening of insolvency proceedings, the right to resell , use or install the reserved goods or the authorisation to collect the assigned claims diminuishes; During action for assertion of a claim concerning payment of a check the direct debit authorisation shall also expire. This does not apply to the rights of the insolvency administrator.

8. NOTICE OF DEFECTS, WARRANTY

8.1. Customer warranty claims presuppose that he has properly fulfilled his obligation for inspection under § 377 HGB.

8.2. All parts or services which show a defect must, without cost to you, be repaired, replaced or provided again, provided that the cause existed at the time of transfer of risk.

8.3. Claims for remedy expire 12 months from the statutory limitation period; The same applies to withdrawal and reduction. This deadline does not apply if the law pursuant to §§ 438 para. 1 no. 2 (buildings and things for buildings), 479 para. 1 (right of recourse) and 634a para. 1 No. 2 (building defects) BGB as well in case of intent, fraudulent concealment of the Defect or non-compliance with a quality guarantee. The legal provisions regarding suspension of expiration, suspension and recommencement of limitation periods remain unaffected.

8.4. When defects are reported payments of the customer may be retained to an extent that is in reasonable proportion to the defect. The Purchaser may withhold payments only if a complaint is made, if the justification is without doubt. The right for retention of the purchaser does not exist if its warranty claims are barred. If the complaint is unjustified, we are entitled to demand compensation of expenses incurred by us from the purchaser.

8.5. The purchaser must grant us the opportunity to rectify within a reasonable period.

8.6. If the remedy fails, the purchaser may - notwithstanding any claims for damages - withdraw from the contract or reduce the remuneration appropriately.

8.7. Warranty claims are excluded in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear or damage occurring after the transfer of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective workmanship, inappropriate foundation soil or from particular external influences which are not assumed under the contract. If Be improper modifications or repair work are made by the purchaser or third parties, thus for these the resulting consequences are excluded.

8.8. Claims arising out of the necessary for the purpose of supplementary performance, in particular transport, travel, labor and material costs are excluded if the expenses increase because the object of the delivery has been subsequently brought to another location than the Purchaser's , unless the transport corresponds to the intended use.

8.9. Claims for damages of the Purchaser due to material defects are excluded. This does not apply in case of fraudulent concealment of the defect, failure to comply with a guarantee of quality, for loss of life, limb, health or freedom and in an intentional or grossly negligent breach of duty for which we are responsible. A change in the burden of proof to the detriment of the customer is not connected with the above provisions. Any further or other than those in this Section. 8 regulated claims by the purchaser due to a defect are excluded.

9. LIABILITY

9.1. We shall be liable for intent and gross negligence. Furthermore, we are liable for the negligent breach of obligations whose fulfillment is essential to the proper conduct of the contract, which endangers the purpose of the contract and on whose compliance the customer may trust regularly. In the latter case, however, we are only liable for the foreseeable, contract-typical damage. We are not liable for the negligent breach other than those mentioned in the preceding sentences obligations.

9.2. The liability does not exceed the amount of € 500,000.00 per claim and the amount of € 2 million in several cases of damage over the entire contract term occurrence.

9.3. This limitation of liability applies in respect of all claims for damages, irrespective of their legal cause, particularly with regard to pre-contractual or auxiliary contractual claims.

9.4. The Contractor shall not be liable for damages and disadvantages arising from the fact that a computer system or part of it must be switched off for repair or maintenance purposes during the productive time of the customer or impaired in any way. The customer may, however, require expressly on his sole responsibility, that the contractor does not conduct owed repair or maintenance work at certain times.

10. ASSEMBLY AND INSTALLATION

Unless otherwise agreed in writing, the following provisions shall apply to the installation and assembly:
10.1. The Purchaser shall provide at its own expense and in good time:

a) all earth and construction work and other ancillary work, including the necessary skilled and unskilled labor, construction materials and tools,
b) necessary for assembly and commissioning required commodities and materials such as scaffolds, lifting equipment and other devices, fuels and lubricants,
c) Energy and water at the point of use including connections, heating and lighting,
d) adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc., sufficiently large, suitable, dry and lockable rooms and for the installation personnel appropriate working rooms and lounges, including appropriate sanitary facilities; Furthermore, the Purchaser shall undertake action to protect our property and the assembly staff at the construction site with measures he would take to protect his own property, such as Protective clothing and protective devices which are necessary due to special circumstances at the installation site.

10.2. Before starting the installation work the purchaser must provide the information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data available.

10.3. Before starting of installation or assembly the required work materials and equipment for the commencement must be located at the installation or assembly site and any preparatory work hast to be progressed and carried out prior to assembly that the installation or assembly may start as agreed without interruption. Access roads and the installation or assembly site must be levelled and cleared.

10.4. If assembly, erection or commissioning is delayed due to circumstances beyond our control, the purchaser shall bear the costs for waiting time, additional traveling or assembly staff in an adequate scale.

10.5. The Purchaser shall attest to the Supplier at weekly intervals the hours worked the assembly personnel as well as the completion of assembly, erection or commissioning.

10.6. Our Services shall be deemed accepted 2 weeks after our notification of readiness unless the customer objects in writing within this period of existing major shortcomings. The customer is only entitled to refuse acceptance of if the defect reduces the ordinary and / or the contractually stipulated use of the work and / or its value substantially. If the work is flawed, but without entitlement to refuse acceptance, the acceptance shall be made subject to the removal of defects. Rejections or reservations about the acceptance must be made immediately in writing, stating and describing the claimed defect. Use of the delivery and performance object by the customer for commercial purposes shall be deemed as acceptance.

11. JURISDICTION AND APPLICABLE LAW

11.1. The place of performance and jurisdiction for deliveries and services as well as all the parties disputes arising if the customer / buyer is a merchant, legal entity under public law or public law special fund, will be Seeheim-Jugenheim. However, we are entitled to sue the buyer at his seat.

11.2. Relations between the Parties shall be governed solely by the law applicable in the Federal Republic of Germany, excluding the CISG.

12. VALIDITY OF THE CONTRACT AND TERMS AND CONDITIONS

These terms and conditions remain in effect even if individual provisions are legally ineffective.
Status 2013