Terms and Conditions – Motorsteuergeräte, ECUs und mehr…

General Terms and Conditions of Sale and Delivery

November 2011

1. Scope
Exclusively the following General Conditions of Sale and Delivery are valid for the business connection between us and our customers.
We do not acknowledge any deviating conditions
of the customer, unless we explicitly agreed to their validity in writing.

2. Applicable Law
It is exclusively agreed upon the validity of German Law.

3. Property Rights and Copyrights
We reserve and retain all property rights and copyrights to all samples, cost estimates,
drawings, technical descriptions and similar information provided, whether in tangible or in
intangible form, also in electronic form.
It is prohibited to make access to third parties.
The information provided by us, as précised above, may only be accessible to third parties with our consent.

4. Prices
The prices are valid excluding packing and other handling and transport costs. Packaging is calculated at cost price and can only be taken back if we are obliged to do so in accordance with compelling legal regulations. Our prices are net prices plus the respectively valid value added tax.

5. Price Change
Our prices given are our current sales prices and are based on the current material costs and wages. If the time period between conclusion of the contract and delivery exceeds 4 months and we are not responsible the price can be increased appropriately, taking into account the
materials, wage and other auxiliary costs.
The customer may withdraw from the contract in case of a price increase of more than 40 %.

6. Retention/Offsetting
The customer retains the right to withhold payments or to offset payments with cross claims to such extent only as his cross aims are uncontested or non-appealable.
The purchaser can only assert a right of retention, if based on claims arising from the same contractual relationship.

7. Period of Delivery
The specified period of delivery shall only be
binding in case that the delivery term has expressly been confirmed by us, provided that all commercial and technical issues have been resolved and that the customer has
fulfilled his obligations such as e.g. the provision of necessary official certifications and approvals.
If a down payment has been agreed upon, timely payment is a prerequisite for the binding declaration of delivery date.
Without this binding declaration the specified delivery dates specified by us are only approximate values. Exceeding the date of delivery, no recoverable
delay is constituted.
If non-compliance of dates or time limits are demonstrably due to military mobilisation, war, riots, strike, lockout, no delivery or late delivery by suppliers or owing to other unforeseen events lying outside of our power and our control, particularly also due to the fact that the works are more extensive than assumed in the beginning, all dates and times will be extended adequately.

We will report the start and end of such circumstances to the customer as soon as possible.
The Customer may claim payment of any contractual penalty only in case of separate agreement on such penalty.
Claims for losses that the Purchaser suffers as a result of delayed delivery, especially for losses arising from a culpable breach of contract or any negligently committed illegal act, or for consequential losses shall fundamentally not be entertained.
This will not apply in case of intention, gross negligence, given assurance or in case of failure to fulfil essential contractual duties through ordinarily carelessness for foreseeable losses typical of the contract, as well as in case of injury of lives, bodies or health
Should delivery be delayed for reason we are not responsible for, we are entitled to store the delivery items at the cost of the Purchaser and to demand reimbursement of any expenses incurred. We are entitled to take out an insurance against storage risks at the Purchaser’s expense.
If the Customer’s scope of obligations includes providing means of transport for delivery and he won’t fulfil his obligation within the contractually agreed period, we shall be released from our delivery obligation by storing and arranging an insurance for the delivery items, on the expenses and risks of the Purchaser.
The Forwarder’s Certificate of Receipt certifies delivery in accordance with the contract.

8. Transfer of Risk
Risk passes over to the Purchaser as soon as the delivery item has left our plant or is put at the Customer’s disposal within the manufacturing plant.
If shipping is delayed for reasons we are not responsible for, the risk passes to the Customer
upon the notification that the product is ready for dispatch.
If agreed separately,
an insurance can be taken out at the cost of the Purchaser.
The respective costs have to be paid by the Purchaser.
Partial deliveries are permissible.

9. Reservation of Proprietary Rights
We shall retain title of the goods supplied by us until fulfilment of all our claims against the Purchaser (reserved goods), even if the single product has been paid.
Pledging or transfer by way of security of the reserved goods is not permitted.
In case that the Customer carries out re-sale or rental of the reserved goods – permissible in the course of ordinary business operations – he shall assign to us here and until the payment of all accounts receivable by us, the supplier, the future accounts receivable from his customers arising from the re-sale or rental, without special declarations being required at a later date. The assignment extends also to balance receivables arising from existing current account
relationships at the termination of such relationships of the Purchaser with his Customers.
If the reserved goods are re-sold or rented out with other articles, without having agreed upon an individual price for the reserved goods, the Purchaser shall assign to us, with precedence over the remaining receivables that part of the total price requirement or of the total rental that corresponds to the value of the retained-title merchandise invoiced by us. Until revoked, the Purchaser is entitled to collect the assigned receivables from the re-sale or rental, he shall, however, not be entitled to dispose of them in another way, e.g. by assignment.
At our request, the Purchaser has to inform the Client of his assignment and to provide us all necessary documents, e.g. invoices
and give us all necessary information for the assertion of our rights towards to Client.
All costs for any possible interventions shall be borne by the Customer.

If the Purchaser receives bills of exchange on the basis the authorization granted to him to collect the assigned receivables from the re-sale, the title to these papers shall pass with the vested right as security to us.
The delivery will be replaced by the agreement that the Customer stores the bills of exchange for us and then surrender them to us endorsed without delay. In the event that the countervalue of the receivables assigned to us in cheques is received by the Purchaser or by a bank of the Purchaser, the latter shall be obliged to immediately report their receipt and to transfer them. The ownership of the cheques is transferred to us by vested right as soon as they arrive at the Purchaser. The delivery will be replace by the agreement that the Customer stores the cheques for us and then surrender them to us endorsed without delay.
If the Purchaser processes, converts or combines the retained-title merchandise with other articles, the processing, conversion or combination shall be for us. We shall immediately become the owner of the goods produced by processing, transforming or combining.
Should this not be Possible for legal reasons the Purchaser and we agree that we shall be the owner of the new product at all times during processing, transformation or combination.
The Purchaser stores the new items for us with the due diligence of a businessman.
The product resulting from processing, transformation or combination is considered as reserved goods. If goods are processed, transformed or combined with other things we do not own which do not belong to us, we hold joint ownership in these new products to the amount of the share represented by the ratio of the value of the unpaid goods, processed, transformed or combined to the value of the new products. Should the new item be sold or leased the Purchaser shall hereby assign its claim arising from the sale or leasing on his client with all accessory rights to us by way of security without any necessity of special explanations at a later date. The assignment shall, however, only cover the amount corresponding to the value invoiced by us of the processed, transformed or combined retained-title merchandise.
The share of the receivable assigned to us shall take precedence over the remaining claim. If the Purchaser comes completely or partially into arrears with his payment obligation or with the cashing of due bills of exchange or cheques, if he is overindebted or has suspended payment or if a petition for composition or insolvency proceedings has been filed we shall be entitled to immediately take possession of all merchandise to which the title is still retained.
In addition, we are entitled to assert any further rights resulting from the retention of title.
The same shall apply to any other significant deterioration of the economic situation of the Purchaser.

The Purchaser grants us or our representatives access to all his business premises during business hours.
The demand for handover or taking possession shall not be deemed as withdrawal from the contract. We shall be entitled to commercialise the reserved goods with the due diligence of a prudent businessman
and benefit from its proceeds after charging for the open claims.
If the value of the securities exceeds our claims against the Purchaser from our current business relationship by more than 20 %, we shall be obliged – on request of the Purchaser – to release securities to which the Purchaser is entitled at our discretion.

10. Warranty
If the object of delivery is deficient the claims of the Purchaser will at our discretion be limited to the defect being remedied or a new fault-free good being delivered, (subsequent performance). The limitation period for claims of warranty by the Customer is set at one year from the date of the passage of risk. It is assumed that the delivered item has provably been rendered useless or considerably impaired in its usability due to a situation present prior to the transfer of risk, in particular due to incorrect design, poor materials or inadequate finish. Discovery of those faults is to be advised to us in writing without delay.
If the purchase is a commercial business transaction for both parties, the Purchaser has to examine the goods immediately after receipt, as far as this is feasible in the ordinary course of business, and if a defect appears, he has to notify us immediately. Should the Purchaser fail to make such notification, the goods are deemed to be approved, except in the case of defects which were not detectable at the time of inspection.
Incidentally, the legal provisions according to §§ 377 ff. HGB (German Commercial Code).
The Purchaser must grant us the necessary time and opportunity to eliminate the defect at our discretion. If the Purchaser refuses to do this, we shall be released from rectifying the defect.
The warranty obligation does not refer to natural wear and tear nor to damage occurring after
the transfer of risk due to improper or unsuitable handling, excessive stressing, unsuitable operating material, and chemical, electrochemical or electrical influences of a nature not provided for according to the contract. In case of improper changes, repair or maintenance work on the part of the Purchaser or a third party, warrantee claims shall be excluded.
Any additional claims of the Purchaser, in particular due to consequential damages, are excluded in principle.
In particular, we shall not compensate for consequential damage such as loss of production, use and profits. This shall not apply to intent, gross negligence or the breach of essential obligations assumed by us under the contract as well as in case of injury of life, body of health. The Purchaser’s right to withdraw from the contract is not affected.

11. Withdrawal
We are entitled to withdraw from the contract in case that fulfilment of the contract is impossible for reasons we are not responsible for.
Moreover, we are entitled to withdraw from the contract, if the conditions of the contract are so basically altered at a later date, by circumstances which could not be foreseen at the conclusion of the contract that we can no longer be reasonably be expected to fulfil the contract
In the cases mentioned above we shall be entitled to demand reimbursement of all necessary expenses
incurred for the order, unless parts produced for the order can otherwise be used in an equivalent manner within a reasonable period of time.

12. Property Rights of Third Parties
We shall be liable towards the Purchaser in case of infringement of commercial protective rights of third parties within the scope of the following regulations. Compliance with this provision is on the prerequisite that the Purchaser informs us without delay about claims for protective rights lodged against him by third parties and that in the handling of such claims and the pursuance of his rights he acts in agreement with us. If one of these preconditions is not met we shall be exempted from our obligation. If an infringement of the protective rights of third parties takes places
and, therefore, the Purchaser is entirely or
partially prohibited from using the ordered item
by unappealable judicial decision, we shall – at our own cost and at our discretion

– either grant the Purchaser to use the
contractual objects

– design the delivery item free from
industrial property rights

– replace the supplied
article by another
article of equivalent
efficiency, not infringing
any protective rights or

– take back the supplied

article against
reimbursement of the
purchase price.

If the Purchaser carries out modifications on the delivered item by installing additional equipment or combining the supplied article with other equipment or device or by manipulating the program control resp. software, thus infringing industrial property rights of third parties, our liability shall be cancelled.
Similarly, we shall not be liable for the infringement of external property rights for a delivery item which is made pursuant to drawing, development or other information of the Purchaser. In these cases the Purchaser shall release and indemnify us from any claims of third parties.
As a result of the infringement of third party property rights the Purchaser shall have no further or other claims. In particular, we shall not compensate for consequential damage such as loss of production, use and profits. The above does not apply if and to the extent that liability is mandatory under statutory regulations in case of intentional or grossly negligent conduct,
of guarantees or of breach in simple negligence of essential contractual obligations for damages which are foreseeable and typical of the type of contract. The right of the Purchaser to withdraw from the contract shall remain unaffected.
The Purchaser does not acquire any claims for the use of industrial property rights provided to us which concern the interaction with other articles. If the scope of delivery includes software,
the Purchaser shall be granted a non-exclusive right of use of the software delivered, including the accompanying documentation. The software is made available for use on the designated delivery item. The use of the software on more than one system is prohibited.
The Purchaser may use the software to the legally permitted extent only (§§ 69 a ff. UrhG).
The Purchaser undertakes not to remove manufacturer information, in particular copyright notes, and not to change such details without
our prior express consent.
All other rights to the software and the documentation, including copies, shall remain with us or the software supplier. It is permitted to grant sublicenses.
The transfer, particularly the resale of the software supplied by us requires our express agreement.

13. Liability
Unless stated otherwise above, we and our vicarious agents are liable for the Purchaser’s claim for damages arising from positive violation of contractual duties (§ 280, BGB), from violation of duties in the course of negotiations and from unlawful acts as follows:
a) The liability for personal
injury is based on the
statutory provisions.
b) The liability for damage
In property is limited to
€ 250,000 per occurrence of damage to property and to a
total of € 500,000.
c) The liability for pecuniary loss is excluded.
The liability restriction under b) and the liability exclusion under c) shall not be applicable if there is mandatory liability for typical predictable losses in the event of damage to privately used items under the Product Liability Act or in cases of intent or gross negligence or breach of major contractual obligations.

14. Final Provisions
Any agreements whether entered into
upon or after the conclusion of the contract require the written form. This also applies to the change of the written form clause.
Oral declarations will only be binding once they have been confirmed by us in writing.
The place of performance for all contractual and legal claims shall be our registered business place.
As the competent court the
“Amts- und Landgericht Siegen” (District and Regional Court of Siegen) is agreed upon.
In case of invalidity of one of its conditions this contract shall remain binding in all its remaining provisions.
Should any clause be entirely or partially invalid, the contracting parties will endeavour without delay to attain the economic result aimed at by the invalid clause in another legally admissible manner.