I. General Provisions/Scope

1. 

The following General Terms and Conditions of Sale and Delivery apply to all deliveries and services of modulan GmbH (hereinafter referred to as the “Seller”).

2.

Deviating terms and conditions of the Purchaser shall not be binding on the Seller. They shall only apply with the Seller’s express written consent. The General Terms and Conditions of Delivery shall also apply if the deliveries to the Purchaser are made unconditionally in the knowledge of the Purchaser's terms and conditions that conflict with or deviate from these General Terms and Conditions of Delivery. 

3.

The General Terms and Conditions of Delivery shall only apply to entrepreneurs, legal entities under public law or special funds under public law. 

II. Formation of contracts 

1. 

The Seller's offers are non-binding until accepted by the Purchaser. Information in offers as well as in annexed drawings and illustrations about the performance, its dimensions and weights are only approximate unless they are expressly designated as binding. 

2.

The Seller reserves the unrestricted right to exploit its property rights and copyrights in cost estimates, drawings and other documents (hereinafter referred to as “Documents”). The documents may only be made accessible to third parties with the Seller’s prior consent and shall be returned to the Seller immediately upon request if the order is not placed with the Seller. Sentences 1 and 2 shall apply accordingly to the Purchaser's documents. However, these may be made accessible to third parties to whom the Seller has permissibly assigned deliveries. 

3.

The Purchaser has the non-exclusive right to use standard software with the agreed performance features in unaltered form on the agreed devices. The Purchaser may make a backup copy without express agreement. 

4.

The concluded agreements’ content and scope shall be based on the Seller’s written order confirmation. Verbal side agreements made at the time of the contract’s formation shall only be binding on the Seller if it has expressly confirmed them in writing. 

5.

The Seller reserves the right to make technical changes in design, form and materials, even during the delivery period, insofar as these changes are reasonable for the Purchaser. 

Partial deliveries shall be permissible if these are reasonable for the Purchaser. 

III. Compliance with embargo regulations

The Purchaser agrees to comply with all laws and regulations relating to embargoes, economic, trade or financial sanctions as well as other restrictive measures (“Embargoes”) imposed by France, the United States, the European Union or other countries. It shall obtain all licenses, shipping documents and permits required for the resale, export or re-export of Seller's products. Accordingly, the Purchaser undertakes to refrain from the following:

The Purchaser, in its capacity as reseller/exporter of the products subject to this contract, is solely responsible for fulfilling its obligations under the applicable embargo provisions. It shall defend and indemnify the Seller against any claim or action brought by authorities or third parties for breach of the provisions of this clause.

The Seller shall be entitled to carry out an audit to verify whether the Purchaser is fulfilling its obligations in this respect. As part of its sound business relationship with the Seller, upon request, the Purchaser shall provide all licenses, notices or approvals it has requested and received. This also includes information about the identity of customers to whom modulan products are sold, about the intended use of modulan GmbH products and about the credit institutions through which payments are made or received. In turn, the Seller shall provide any information requested by the Purchaser upon request. This applies in particular to any useful commercial documents.

If the Purchaser is in breach of any of the obligations established in the audit and is unable to remedy or take action to remedy the breach within three working days of receipt of a written request to perform one or more of its obligations, the Seller reserves the right to cancel the order or terminate the relevant contract under any circumstances without incurring any liability of any kind whatsoever to the Purchaser or end user.

If the delivery of products, services or documentation requires an export or import permit from specific authorities or if the delivery is prohibited by export/import control laws, the Seller shall be entitled to suspend its own obligations and the Purchaser’s rights until the permit is granted or for the duration of the restrictions or prohibitions. The Seller shall also be entitled in all circumstances to cancel the order or terminate the respective contract without any liability of any kind whatsoever with respect to the Purchaser or the end user arising therefrom.

IV. Delivery, Delivery Period, Delay 

1.

Compliance with delivery deadlines is conditional upon the timely receipt of all documents to be supplied by the Purchaser, necessary permits and clearances, in particular of plans, as well as the Purchaser’s compliance with the agreed terms of payment and other obligations. Deadlines shall be extended accordingly if these conditions are not fulfilled in time. This shall not apply if the Seller is responsible for the delays. 

2.

Deadlines shall be extended accordingly if non-compliance therewith is due to force majeure, for example mobilisation, war, riots or similar events, for example strikes, lockouts, etc. 

3.

Unless otherwise agreed, deliveries shall be made ex works at the Purchaser’s expense and risk. Benefit and risk shall pass to the Purchaser at the latest when the goods leave the Seller's factory or warehouse. The prices quoted by the Seller are ex works and do not include packaging. 

4.

Partial deliveries may be invoiced separately. 

5.

If the circumstances mentioned in paragraph 2 render the deliveries or services impossible or unreasonable, the Seller shall be released from the delivery obligation, even if these occur during an already existing delay. The Seller shall immediately inform the Purchaser of the beginning and end of such hindrances. 

6.

If the Seller is in default of delivery, the Purchaser may only withdraw from the contract and claim damages for non-performance if it grants the Seller a reasonable grace period of at least 20 working days in writing and this period has elapsed without result. The grace period shall be accompanied by a declaration that the Purchaser shall refuse acceptance of the delivery after the grace period has expired without result. A deadline with a threat of rejection is not required if the Seller has earnestly and definitively refused the deliveries in advance. 

7.

If the Seller is in default, the Purchaser may – provided it can credibly demonstrate that it has suffered a loss as a result thereof – demand compensation of 0.5% for each completed week of default, but no more than a total of 5% of the price of that part of the deliveries which cannot be put to the intended use due to the default. 

8.

Both claims for damages by the Purchaser due to delays in delivery and claims for damages in lieu of performance that exceed the limits specified in the above paragraph shall be excluded in all cases of delayed delivery, even after the expiry of a deadline for delivery which may have been set for the Seller. This shall not apply if liability is mandatory in cases of wilful intent, gross negligence or death, physical injury or illness. The Purchaser may only withdraw from the contract within the framework of the statutory provisions if the Seller is responsible for the delay in delivery. The above provisions are not associated with a change in the burden of proof to the Purchaser’s detriment.   

9.

If dispatch or delivery is delayed at the Purchaser’s request by more than one month after notification of readiness for dispatch has been given, the Purchaser may be charged storage costs of 0.5% of the price of the items to be delivered for each month commenced, but no more than a total of 5%. The contracting parties are at liberty to prove higher or lower storage costs. 

If the Purchaser is in default of acceptance, the statutory consequences of the default of acceptance shall otherwise remain unaffected.

V. Payment terms

1.

All prices are quoted ex works excluding packaging plus the applicable statutory VAT. The prices and conditions applicable on the day of delivery according to the valid price list shall always apply. Deliveries with a net value of more than €500 are free of charge. A €25 handling surcharge shall be charged for deliveries with a net value of less than €100. 

2.

If the Seller has assumed responsibility for installation or assembly and unless otherwise agreed, the Purchaser shall bear in addition to the agreed remuneration all necessary incidental costs such as travel expenses, costs of the transport of tools and personal luggage as well as allowances. 

3.

Payments shall be made at no cost at the Seller’s payment point. Invoices are payable without deduction within 14 days of the invoice date. Cash discounts shall only be granted if expressly agreed in writing and only on the condition that the Purchaser is not in default with the payment of other the Seller’s other invoices. 

4.

The Purchaser may only offset the Seller’s payment claims against undisputed counterclaims that have been legally established and are ready for decision or such counterclaims based on the same contractual relationship. Offsetting by the Seller is possible without restriction. 

VI. Retention of title

1.

The objects of the deliveries (goods subject to retention of title) shall remain the Seller’s property until all claims accruing to the Seller against the Purchaser under the business relationship have been satisfied. 

If the value of all security rights accruing to the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Seller shall release a corresponding part of the security rights at the Purchaser's request. 

2.

For the duration of the retention of title, the Purchaser shall be prohibited from seizure or assignment by way of security and resale shall only be permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its customers or makes the reservation that ownership shall not pass to the customer until the latter has fulfilled its payment obligations. 

3.

In the event of a payment default on the Purchaser’s part, a petition to open insolvency proceedings against its assets, a transfer of the expectant right to third parties or the transfer of the Purchaser's business operations to third parties, the Seller shall be entitled to recover the goods subject to retention of title and to enter the Purchaser's business premises for this purpose. The Seller’s recovery of the goods subject to retention of title shall not constitute a withdrawal from the contract unless the Seller expressly declares this. The Purchaser shall surrender the goods. The Seller may sell recovered goods subject to retention of title on the open market. 

The proceeds of the sale shall be set off against the Purchaser’s liability less reasonable selling costs. 

4.

Any treatment or processing of the goods subject to retention of title as well as their combination with other objects shall be carried out by the purchaser on the Seller’s behalf. If the goods subject to retention of title are combined with other goods owned by third parties during processing or treatment, the Seller shall acquire co-ownership of the new object in the ratio of the purchase price agreed between the parties to the corresponding purchase price for the other goods. If the Purchaser attaches the goods subject to retention of title to real estate or movable property, the Purchaser shall also assign to the Seller as security, without any additional special declarations being required, its claim to which it is entitled as remuneration for the attachment, with all ancillary rights, in the amount of the ratio of the value of the associated goods subject to retention of title to the other connected goods at the time of the attachment. 

5.

If the Purchaser resells the goods subject to retention of title in the ordinary course of business, it hereby assigns to the Seller all claims arising from the resale of the goods subject to retention of title to the amount of the value of the goods subject to retention of title with all ancillary rights. The Seller hereby accepts the assignment. The Purchaser is entitled to collect the assigned claims as long as it fulfils its payment obligations. The Seller is entitled to revoke the collection authorisation if the Purchaser defaults in payment. 

In this event, upon the Seller's request, the Purchaser shall provide the Seller with all information necessary to undertake collection, to allow the Seller to inspect the inventory of the assigned claim by an agent on the basis of its accounts and to notify the debtors of the assignment. 

VII. Warranty claims/Warranty liability

1.

The Purchaser shall inspect the received goods immediately after receipt for defects, quality and guaranteed characteristics. Obvious defects shall be reported to the Seller in writing within two working days of receipt of the delivery, hidden defects within 10 working days of discovery. Otherwise the delivery shall be deemed accepted. 

2.

At the Seller's request, the Purchaser shall return the goods complained of to the Seller carriage paid. If the complaint proves justified in such a case, the Seller shall bear the costs of the return shipment with the lowest freight costs. 

3.

All parts or services which contain or develop a material defect within the limitation period - irrespective of the period of operation - shall be repaired, replaced or resupplied free of charge at the Seller's discretion, provided that the cause of the defect already existed at the time of the transfer of risk. 

4.

The Purchaser shall give the Seller sufficient opportunity to examine the complaint, in particular to make damaged goods and their packaging available for inspection by the Seller. The Seller shall be released from liability for defects if the Purchaser refuses to do so. Where urgently necessary in cases of danger to operational safety or to avert disproportionately large damage, the Purchaser shall be entitled to remedy the defect itself or cause it to be remedied by third parties and to demand reimbursement of the necessary costs from the Seller. The same shall apply if the Seller fails to remedy the defect.  In any case, the Purchaser shall inform the Seller immediately. If the supplementary performance is unsuccessful, the Purchaser may withdraw from the contract or reduce the remuneration without prejudice to any claims for damages. 

5.

In the event of complaints, payments by the Purchaser may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The Purchaser may withhold payments only if a complaint is made and there can be no doubt as to its justification. If the complaint is unjustified, the Seller is entitled to demand from the Purchaser reimbursement of the expenses it has incurred. 

6.

Claims for defects shall not arise in the event of insignificant deviations from the agreed quality, merely insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of faulty or negligent handling, excessive load, unsuitable operating materials, defective construction works, unsuitable building sites or due to special external influences not assumed under the contract, and in the event of non-reproducible software errors. If improper modifications or repair works are carried out by the Purchaser or by third parties, no claims for defects shall arise for these and the resulting consequences either. 

7.

The Purchaser's claims for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be limited to a reasonable amount. The value of the item in a defect-free condition and the significance of the defect shall be taken into account in the calculation of this amount. The appropriate amount is usually 150 percent of the value of the defect-free item, but may deviate in individual cases if special circumstances exist that make a higher amount appear appropriate.

8.

The Seller is not liable on the basis of public statements in its advertising or that of another manufacturer concerning the delivered goods or its agents if and insofar as the Purchaser cannot prove that the advertising statements influenced its purchase decision, if the Seller was unaware of the statements and was not required to be aware of them or if the statements had already been corrected at the time of the purchase decision. 

9.

Further claims of the Purchaser, in particular for damages instead of performance and for compensation for other direct or indirect damage, are excluded. This shall not apply if a legal or material defect is fraudulently concealed or a durability guarantee has been assumed, the Seller's representatives or vicarious agents are guilty of wilful intent or gross negligence, liability exists in accordance with the German Product Liability Act, the defect or damage is due to the breach of a guarantee, the damage is due to death, physical injury or illness or if the Seller is liable for breach of its essential contractual obligation. 

10.

The Seller does not give any durability guarantee. Warranty liability for software errors is also excluded.  

11.

Claims for material defects shall expire 12 months after delivery of the goods to the Purchaser. 

This shall not apply if the law as set out in Sections 438(1)(2), 445 b(1), 479(1) and 634 a (1)(2) of the German Civil Code prescribes longer periods as mandatory as well as in cases of death, physical injury or illness in the event of a wilful or grossly negligent breach of duty on the Seller’s part and fraudulent concealment of a defect. The statutory provisions on suspension of expiry of limitation periods, suspension and recommencement of the periods shall remain unaffected. 

12.

The Purchaser's right of recourse against the Seller under Section 478 of the German Civil Code shall exist only to the extent that the Purchaser has not entered into any agreements with its Purchaser that go beyond the statutory warranty claims. 

VIII. Transfer of risk

1.

The risk shall pass to the Purchaser as follows, even in the case of carriage paid delivery: 

a) 

For deliveries without installation or assembly, when they have been dispatched or collected. At the Purchaser’s request and expense, the Seller shall insure deliveries against the usual transport risks.

b)

For deliveries with installation or assembly, on the day of acceptance at the Seller’s premises or - if agreed - after fault-free trial operation. 

2.

Risk shall pass to the Purchaser if dispatch, delivery, commencement, performance of installation and assembly, acceptance at the Seller’s own premises or trial operation is delayed for reasons imputable to the Purchaser or if the Purchaser is in default of acceptance for other reasons. 

IX. Unauthorised withdrawal/Return of goods

1.

The return of custom-made products, painted and non-reusable parts is excluded. 

2.

If the Purchaser withdraws from the contract without justification or refuses to accept the delivery or service without justification, the Seller is entitled to demand 15% of the agreed price as compensation for non-performance without specific proof. The Purchaser is entitled to prove that the Seller has suffered no or less damage. 

3.

The return of goods - apart from warranty cases - shall only be considered in exceptional cases and only after prior written agreement. Requests for return of goods whose net value before VAT is less than €100.00 cannot be accepted and processed. Credits resulting from returns may not exceed 80% of the goods’ net value. 

X. Impossibility/Contract Adjustment  

1.

The Purchaser shall be entitled to claim damages if delivery is impossible, unless the impossibility is not imputable to the Seller. Claims for damages shall be limited to 10% of the net value of that part of the delivery that cannot be put to the intended use due to the impossibility. This limitation shall not apply if liability is mandatory in cases of intent, gross negligence or injury to life, limb or health. This does not imply a change in the burden of proof to the Purchaser’s detriment. The Purchaser's right to withdraw from the contract remains unaffected. 

2.

If unforeseeable events substantially change the delivery’s economic significance or content or have a considerable effect on the Seller's business, the contract shall be adjusted appropriately in good faith. The Seller has the right to withdraw from the contract if this is not economically justifiable. The Seller shall inform the Purchaser immediately after becoming aware of the consequences of the event if it wishes to exercise this right of withdrawal, even if an extension of the delivery period had initially been agreed with the Purchaser. 

XI. Industrial property rights and copyrights/Defects of title

1.

Unless otherwise agreed, the Seller shall deliver the goods free of third-party industrial property rights and copyrights only in the country of the place of delivery. If a third party asserts justified claims against the Purchaser due to the infringement of industrial property rights by deliveries made by the Seller and used in accordance with the contract, the Seller shall be liable to the Purchaser as follows: 

a)

The Seller shall, at its option and expense, either obtain a right of use for the deliveries concerned, modify them such that the property right is not infringed or replace them. If this is not reasonably possible for the Seller, the Purchaser shall be entitled to the statutory rights of withdrawal or reduction. 

b)

The Seller's obligation to pay damages shall be governed by these contractual conditions. 

c)

The above-mentioned obligations of the Seller shall only apply if the Purchaser immediately notifies the Seller in writing of the claims asserted by the third party, does not acknowledge an infringement and all defensive measures and settlement negotiations are reserved for the Seller. If the Purchaser ceases to use the Supplies in order to mitigate damages or for other important reasons, it shall inform the third party that the cessation of use does not constitute an acknowledgement of an infringement of property rights. 

2.

Claims on the Purchaser’s part shall be excluded if it is responsible for the infringement of property rights. This shall also apply if the infringement of property rights is caused by special specifications of the Purchaser, by an application not foreseeable by the Seller or by the Purchaser's modification of the delivery or its use together with products not supplied by the Seller. 

3.

In addition to the provisions of No. 1 a), the provisions of Clause VI shall apply accordingly in the event of infringements of industrial property rights. Clause VI shall apply accordingly in the event of other defects of title. Any further claims of the Purchaser against the Seller and its vicarious agents due to a defect of title or claims other than those regulated in this clause shall be excluded. 

XII. Final Provisions

1.

All legal relations between the parties arising out of or in connection with this contract shall be governed exclusively by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods is excluded. 

2.

Legal relations 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). 

3.

The respectively valid foreign trade regulations of the Federal Republic of Germany and the United States of America, as far as they apply, determine the content of the mutual rights and obligations arising from the contract with respect to cases of export, re-export and resale abroad. 

In any case, a contractual obligation on the Seller’s part shall only come into effect once the relevant approvals have been granted by the competent authorities with respect to the final destination. The Purchaser undertakes to provide any information required for approval and to procure any documents required for the approval procedure at its own expense. 

4.

The place of performance for all deliveries, services and payments as well as the place of jurisdiction for all legal disputes, including actions arising from cheques and bills of exchange, shall be the Seller’s registered office, provided that the Purchaser is a merchant, a legal entity under public law or a special fund under public law. 

5.

If one of the provisions of these General Terms and Conditions of Delivery is or becomes invalid, this shall not affect the validity of the remaining provisions. This shall not apply if adherence to the contract would represent an unreasonable hardship for one of the contracting parties.