Standard Business Conditions of HOB GmbH & Co. KG

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1.         Area of Application, Object of Agreement:

 

1.1       These standard business conditions apply exclusively for all contracts formed regarding the delivery of hard- and software, hereinafter called "goods," as well as other services provided by HOB; we do not recognize conflicting conditions or those deviating from our standard business conditions, unless we have expressly agreed to them in writing. Our standard business conditions also apply when we unreservedly execute delivery to the customer, and are aware of conflicting conditions or customer conditions deviating from our standard business conditions.

1.2       Our Standard Business Conditions apply only for enterprises acc. to § 310 Section 1 of the German Civil Code (BGB), as well as for all future business with the customer, even without a separate agreement .

1.3       All further agreements made between HOB and the customer are stipulated, in writing, in a contract. The goods are specified in detail in an attachment, the "Purchase Certificate," which is a component of this contract, or in a written confirmation of the order. The object of the contract can be extended by the signing of additional Purchase Certificates, which then also become part of the contract, as well as through simple written or verbal orders on the customer's part.

1.4       Providing that devices have been purchased and are being used together with HOB software (e.g., HOBCOM, HOBLink), and can only be used with this software, the purchase contract and the license agreement regulating the delivery and use of the software form one unit.

1.5       The responsibility for the selection of the devices, including the performance to be attained through their use, is that of the customer, who has the necessary technical knowledge either him- or herself, or through involvement of independent consultants.

2.         Conclusion of the Contract:

2.1       Our offer is non-binding insofar as nothing to the contrary arises from the confirmation of the order.

2.2       The order signed by the customer or placed via telephone is a binding offer. HOB is authorized to accept this offer within 14 days by sending a confirmation of the order.

2.3       The contract is concluded alternatively by counter-signing the contract form already signed by the customer.

3.         Prices, Payment Terms:

3.1       The prices result from the purchase certificate regarding the contract or the written confirmation of the order. The lawful Value Added Tax or any other possibly due taxes and fees are not included in the prices; The VAT is separately listed in the bill at the lawful amount on the day the invoice is made and shall be paid for by the customer in addition to the purchase price.

3.2       Payment of the due amount according to item 1 shall be made in full immediately after the goods are ready for operation and the bill has been received. Operational readiness is assumed to have begun on the date of delivery. Supplementary to that is item 4.8.

3.3      We reserve the right to correspondingly change our prices if, in the purchase certificate or confirmation of the order, no fixed price for a specified period of time was agreed upon and after conclusion of the contract, either lowered or increased costs of the basic price from the official price list result. This does not apply in the event that the goods are delivered within four months of the conclusion of the contract.

3.4       With delivery terms of more than four months after conclusion of the contract, the customer will be informed of an increase in price in writing. Upon receipt of this notification, the increased price is deemed to be agreed to. The customer has the right to  cancel the purchase contract within 30 days of receipt of the notification. The customer observes this limit by sending in the cancellation.

3.5       The customer only has setoff rights when his/her counterclaims have been established as final and absolute, uncontested or recognized by us. Additionally, the customer's exercise of retention rights is only allowed insofar as a counter claim is based on the same contractual relationship.

4.         Delivery, Setup, Passing of Risk:

4.1       HOB delivers goods, if not otherwise determined, ex works.

4.2.      Delivery dates are stated in the purchase certificate or the written confirmation of order. The beginning of the delivery time requires the previous clarification of all technical questions. Adherence to our delivery commitment further requires the timely and orderly discharge of the customer's obligations. The defense of non-performance of the contract is retained.

4.3       If the buyer defaults on acceptance or culpably violates his or her obligation to cooperate, we reserve to ourselves the right to demand compensation for the damages incurred by us, including any extra expenses. We reserve the right to any further claims. In the event of non-acceptance of our delivery, we are authorized, after a term of fourteen (14) days,  to withdraw from the contract and/or demand compensation for non-performance of the contract. The compensation for non-performance of the contract amounts to 15% of the purchase price. The amount of compensation will be determined to be either higher or lower, in the event that we can prove  higher, or the buyer can prove lower, damages. The enforcement of further damages caused by  the delay in performance.

4.4       We are authorized to make partial delivery or partial performance at any time.

4.5       Delivery and performance delays due to force majeure and due to events that fundamentally handicap us in the performance of the delivery or make it impossible, - counted amongst these are essentially strikes, lockouts, official decrees, insufficient personnel, insufficient transport means, etc. - also if they occur with our suppliers or sub-suppliers, we are not liable for, even in the event of binding terms and deadlines . In this case we are authorized to defer delivery by the duration of the hindrance plus an appropriate lead time or, because of the not yet fulfilled portion, to withdraw from the contract completely.

4.6       If, after conclusion of the contract but before delivery, the two parties agree to a change in the object of the contract, then an appropriate  extension of the delivery time, corresponding to the nature and scope of the change, will be made.

4.7       HOB, during the delivery time, reserves the right to make constructional and form changes, insofar as these do not constitute any functional degradation, and remain within the framework of customary, acceptable and reasonable usage.

4.8       The customer is responsible for the setting up and connection of the object of the contract . The customer, immediately after delivery by HOB, shall set it up and make it operational in accordance with the specifications and  performance characterizations listed in the purchase certificate or confirmation of the order. HOB regards the delivery date as the date of operational readiness. If the delivered device is not ready for operation, the customer shall notify HOB  of this in writing, without delay.

4.9       Insofar as the implementation of software is a contractual obligation of HOB, the customer shall care for the necessary prerequisites. HOB shall inform the customer of these in sufficient time before implementation.

4.10     If, at the customer's demand, we send the sold object to another place than the place of performance, the customer assumes the risk of accidental loss and accidental damage, at the moment we give the object to the carrier, freight agent or other person or institute for shipping.

5.         Damages in Transit, Liability for Defects, Statute of Limitations:

5.1       Customer claims due to defects or transportation damages require that the customer has legally fulfilled his or her inspection and objection obligations to HOB in accordance with § 377 of the German Commercial Code. The buyer is obligated to inspect the goods immediately and apparent defects shall be reported to us without delay, in writing. Visible transportation damages shall be noted on the carrier's transfer note. If the customer neglects the timely notification of  transport damage, he or she shall be liable to HOB for any damages arising therefrom. Hidden defects shall be made known to HOB immediately after their discovery, in writing and in full detail. Before making the report, the customer shall, within the scope of what is reasonable, consider the information from HOB, to be found in the operating manual, on fault analysis, determination of error and fault localization.

5.2       Insofar as the sold object has a defect, we are authorized, at our own discretion, to either repair it or deliver a new, fault-free object. HOB may exchange parts and devices, as well as integrate technically necessary modifications. Exchanged parts and devices revert to HOB's ownership.

5.3       In the event of fault remediation, we are obligated to bear all necessary expenses arising therefrom, insofar as these are not increased by the sold object having been brought to a location other than the place of performance.

5.4       The customer shall allow HOB the time and opportunity needed to perform the warranty measures. The determination of deadlines shall be made in agreement with the customer. Devices that are marked "OS" (Onsite) on the purchase certificate shall be repaired by HOB after notification by the customer onsite. Devices that are marked "DW" (Depot Warranty) on the purchase certificate shall be repaired by HOB in their central offices in 90556 Cadolzburg, Germany.

5.5       If the defect cannot be repaired within a reasonable period of time or if the rectification or replacement delivery are considered for other reasons to have failed, the customer may, at his or her own discretion, demand a reduction in price or withdraw from the contract. A failure of fault rectification is first to be assumed to exist when HOB has been given ample opportunity to perform the rectification or replacement without having achieved the desired results, when the rectification or replacement are impossible, or are denied by the supplier or unreasonably delayed, when reasonable doubt exists as to the chances of success or when for other reasons the rectification or replacement are considered unreasonable.

5.6       No defect warranty is given for damages arising from unsuitable or improper use, faulty installation or commissioning on the part of the customer or third party, usual wear and tear, improper handling of the goods, unsuitable operating material or faulty installation work. Our warranty is also not applicable when the buyer or third party , without our agreement, performs maintenance work, or makes damages or changes, that stand in a causal relationship with the claimed defects. Faulty operation will also cause the warranty to lapse. The warranty also does not cover mechanically  moved parts subject to normal wear and tear (e.g., printer rollers, printer heads), or screen tubes burned in by continuous use.

5.7       We are liable in accordance with the legal requirements, insofar as the customer makes claims for damages which arise from malice aforethought or  gross negligence, including, malice aforethought or  gross negligence from our representatives or auxiliary personnel. To the extent that HOB is not charged with malicious breach of contract, the  liability for indemnification is limited to the foreseeable, typically arising damages.

5.8       We are liable in accordance with the legal requirements, insofar as we culpably breach an important contractual obligation; in this event, however, the indemnification for damages is limited to the foreseeable, typically arising damages. Liability due to culpable damage to life or limb or general health remain untouched; this is also valid for liability in accordance with the German Product Liability Act. Insofar as nothing hereinbefore mentioned is differently regulated, liability is excluded. HOB is not liable for the retrieval of data, unless HOB caused their destruction or loss through gross negligence or with malice aforethought and the customer has determined that these data cannot be reconstructed, with a reasonable effort, from other data stocks.

5.9       The limitation period for defect claims amounts to 12 months, beginning with the passing of risk.

6.         Total Liability

6.1       A further reaching liability for damages than that in item 5 is excluded, regardless of the legal rights of the claims asserted. This applies especially to claims for damages from culpability at conclusion of contract, from other breaches of obligations, or tortious claims for compensation for material damages in accordance with § 823 of the German Civil Code.

6.2       This limitation also applies if instead of a claim for damages the client requests compensation for useless expenses rather than the performance of services. To the extent that liability for damages is excluded or limited for us, this also applies in regard to the personal liability for damages of our employees, salaried workers, associates, representatives and fulfillment aides.

7.         Reservation of Title:

7.1       HOB reserves the ownership of the goods until all payments specified in the purchase contract have been received. A resale is not allowed until all payments have been received.

7.2       In the event of a breach of contract by the customer, especially a delay in payment, we are entitled to take back the goods. Taking back the goods by HOB constitutes a withdrawal from the contract. We are entitled to resell the goods after having them returned; the proceeds of such sale will be credited to the purchaser's liabilities, with deduction of reasonable sales costs.

8.         Freedom of Third-Party Rights:

8.1       HOB declares for the area of the Federal Republic of Germany, that to its best knowledge, the  data handling device is free from the rights of third-parties and its use in accordance with the contract does not infringe on industrial property rights.

8.2       Each contract partner shall immediately notify the other in writing in the case claims of third parties are being enforced toward him in regards to industrial or intellectual property rights. Hereby, HOB reserves to itself all defensive measures and  settlement negotiations.

8.3       If the use in accordance with the contract infringes on third-party rights or threatens to, then HOB has the right to, at their discretion and at their cost, to purchase licenses for the customer or so to change or partially or completely replace the device, insofar as this is reasonable for the customer.

8.4       Provided the possibilities listed under item above cannot be realized with a reasonable effort or expense,  HOB can take back the device from the customer, after written notification, and refund the present value. In this case, HOB is liable to the buyer for the damages arising from the taking back of the device in accordance with items 5 and 6. In addition to the afore-mentioned items, HOB is not liable. HOB is furthermore not liable if claims regarding infringement on the industrial or intellectual property rights of third parties are based on a device being changed without HOB's permission or used with a device or data not delivered by HOB.

9.         Nondisclosure:

9.1       The customer commits him/herself and his/her employees, to keeping secret any as confidential marked information or any recognizable  business or trade secrets made accessible in connection with the contract and to neither record such information nor pass it on to third parties  no use it in any form, indefinitely.

10.       License Agreement:

10.1     If a software product is bought together with the device, then these conditions correspondingly apply to the license agreement to be concluded in this regard, providing no other regulation is made in the license agreement.

11.       Maintenance Agreement:

11.1     If after the warranty period the customer desires HOB to maintain the devices or in the case of a depot warranty wants a technician onsite, then a separate  maintenance agreement is to be concluded. These conditions also apply thereunto.

12.       Place of Fulfillment, Applicable Law and Jurisdiction:

12.1     The place of fulfillment for all contractual parties, for all present and future claims arising from the business relationship is the business location of HOB, 90556 Cadolzburg, Germany.

12.2     All our deliveries as well as agreements and legal transactions of the contractual parties exclusively fall under the jurisdiction of the Federal Republic of Germany, even and especially for deliveries to other countries. The delivered goods are subject to the German and United States export laws. Export from Germany is to some extent only allowed with the permission of the German Federal Export Office, Eschborn and the Office of Export Control, Washington/DC. The customer shall forward this notification to his/her customers and, as far as possible, guarantee adherence to the regulations until disposal. Criminal liability has been pointed out.

12.3     If the contract was concluded and fulfilled in intra-communal traffic and the buyer does not present to HOB with the order his/her VAT number, HOB is authorized to add the German VAT to the agreed upon net price.

12.4     Legal venue for HOB is 90556 Fuerth, Germany. HOB, however, reserves the right to select the legal venue of the buyer.

13.       Severability Clause

13.1     Should individual conditions be or become ineffective, the legal effectiveness of the other conditions remains unaffected by this fact.