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General Sales and Supply Conditions of the ATB Blank GmbH
Version 09/2004

  1. 1. General
    1.1 Our business conditions find exclusive application in the business with enterprises within the meaning of §§ 14, 310 Section 1 of the German Civil Code, legal personalities of the public law or of a public-legal special fund.
    1.2 For all legal business with the client - also in the framework of future business conditions - solely the following sale- and supply conditions apply (hereafter referred to as business conditions). Any deviating business conditions of the customer only become a part of this contact if we have given our express written consent.
    1.3 These business conditions regulate the sale and the supply of all our products, especially of measuring systems, image processing systems and computer systems including external instruments and the corresponding accessory as well as software.

  2. 2. Offer, order confirmation
    2.1 Our offers are subject to confirmation in the sense that they may be revoked until the order is confirmed to the extent that we have not decided about a concrete term. Images, drawings, statements about weight and performance in offers are understood as approximate values and are only binding as such. Any technical and other qualitative alterations of the subject matter by us are permissible to the extent that this can be expected of the client.
    We reserve the property- and copyright to estimates of costs, drawings and other documents accompanying the offer. Such documents may only be disclosed to third parties to the extent that this is indispensable for the execution of the contract. They must be returned on demand if the contract is not realized between our customer and us.
    2.2 Any offers about the supply of items require the written form to be legally effective. The requirement for the written form is also regarded as fulfilled if we have confirmed offers in writing. Oral side agreements or alterations to the contract only become part of the contract if they have been stipulated in a document, which has been signed by both parties or if we have confirmed them in writing.

  3. 3. Dispatch, delivery, terms
    3.1 On demand of the client we take over the dispatch of the items at the location indicated by him.
    3.2 Subject to timely and otherwise stipulated written instruction of the client we insure the items against transport damages to the clients favour at his expense.
    The danger passes to the client notwithstanding transport insurance as soon as our products have exited our works through the fact that they have been transferred to the forwarder, the freight carrier or to any other person or institution appointed for the transaction of the dispatch.
    3.3 Delivery dates that we name in our offers and our order confirmations are understood as anticipated delivery dates, which we may exceed if circumstances beyond our sphere of influence, as especially cases of Force Majeure prevent us from a punctual delivery.
    The compliance of delivery dates requires in every case that the client timely and completely fulfil his contractual obligations, especially his payment obligations, but also his other required obligations of notification and cooperation required for the transaction of the contract. We are otherwise authorized to adequately renew an agreed delivery date. The delivery date is deemed as complied with if the items are handed over to the person or institution appointed for the transaction of the dispatch within a certain period.
    3.4 We make our best efforts to comply with the agreed delivery dates and delivery terms. If we culpably omit to comply with delivery dates, the client is obligated to set us a target of 18 days. After expiry of this target the client is entitled to withdraw from the contract. Any further claims against us due to default are excluded, unless that we become guilty of gross negligence or wilful misconduct with regard to the default.
    3.5 Force Majeure such as operational disturbances not caused by us, strike, lockouts, war and other events beyond our sphere of influence entitle us to postpone the delivery date adequately or to completely or partially withdraw from the contract. In these cases the client may also withdraw from the contract eight weeks after the agreed delivery date.
    3.6 If the client despite the setting of a time limit, fails to comply - completely or in part - with his contractual duties including his obligations of cooperation, which are required for the realization of the contract, we are authorized to with draw from the contractor claim damages due to non-compliance, irrespective of any other legal or contractual rights.
    3.7 In case of any doubts delivery terms indicated by us will be calculated from the date of the order confirmation.

  4. 4. Default of Acceptance, Refusal to comply
    If the client fails to accept wares, which has been ordered at ours, or if he declares a non-justified withdrawal from the contract, we are authorized, after the setting of an appropriate period to claim 25 % of the net order value as all-inclusive damages in the case of desistance from the contract. The client is permitted to evidence that the incurred damage is smaller. We are entitled to evidence higher damages, if this should be the case.

  5. 5. Preparation of the Installation and Operational Means
    The client has the preparation of the installation as well as the facilities required for the electricity supply carried out at his own cost and responsibility before, they must correspond with the valid norms of expertise. We provide the technical connection. The client will timely provide trained staff.

  6. 6. Prices and payment conditions
    6.1 The prices are understood including the value added tax respectively valid within Germany. If the delivery is, pursuant to the agreement made realized later than four months after the conclusion of the contract, we may - to the extent that nothing to the contrary has been agreed - charge the prices valid on the day of the delivery plus the respectively valid Value Added Tax. The prices are valid for the dispatch from Roggenburg. Unless agreed about differently costs for freight, postage, packing and insurance are not included in the prices and must be born by the buyer.
    6.2 Unless this has been differently agreed about, all deliveries must be paid without any discount within 10 days after the date of the accounting.
    6.3 If we become aware of any facts, which cause doubts in the credit-worthiness of the buyer, e.g. cessation of payment, his own filing for insolvency, application for insolvency proceedings, an extra-judicial scheme of arrangement, or if the client fails to comply with payment obligations he has towards us, we have the right to charge as due and payable and / or to demand advance payments or securities for future deliveries.
    6.4 Cheques and bills of exchange will only be accepted as payment; bills of exchange will only be accepted after special agreement. Discount- and bank charges will be at the originator’s expense. Payments are only deemed as executed in connection with an unreserved credit entry at our account at the Sparkasse Neu-Ulm / Illertissen. If the client gives several bills of exchange and if a bill of exchange is not paid for in time, all other bills automatically become due for payment.
    6.5 The client is only authorized to charge up against our claims with counter-claims that have been legally ascertained or are uncontested. The client is not authorized to raise objections against due payment obligations from the delivery of hardware, which are supported by alleged faults, bad performances and delays with regard to a separately agreed delivery of software.
    6.6 Should the client completely or partially default in his payments we may charge interest in the amount of 8 % above the respective rate of discount of the Deutsche Bundesbank; we reserve the right to claim further default damage. Our legal right to withdraw or to claim damages due to non-compliance remains unaffected. If any partial deliveries are not paid for at due date, we are not obligated to continue the delivery.

  7. 7. Retention of Title
    7.1 We reserve the right of retention to the items delivered by us until all our claims from the business relation have been settled.
    7.2 In case of doubt the assertion of the right of retention does not count as a withdrawal from the contract. A right of retention cannot be asserted against a claim for restitution. We are authorized to dispose differently of the items, which are claimed on the basis of the right of retention and to supply the client within an appropriate period of delivery.
    7.3 The client is authorized resell the delivery item in the orderly course of business. Already now, though, he cedes to us all claims in the amount of the final invoice (including value added tax) that he gains against his buyers or against third parties from the reselling, independent from whether he resold the item after or without further processing of the same. The client remains authorized to retain this claim also after the cession. Our authorization to retain the claim ourselves remains unaffected by this. We obligate ourselves, though, to refrain from retaining the claim so long as the client complies with his payment obligations from the gained revenues, does not default in his payments and no suspension of payment exists and above all no application for the opening of an insolvency proceedings has been made. Should this be the case, though, we are authorized to demand that the client disclose to us the ceded claims and their obligor, that he provide all statements necessary for the retention, that he surrender all appropriate documents and that he notify the cession to the obligors (to third parties).
    7.4 We deem the processing or transformation of the delivered ware by the client as realized. If wares are processed together with other items not belonging to us, we acquire co-ownership in the new object in relation of the value of the delivered ware to the value of the other processed items at the time of processing. Furthermore the same regulations apply for the object emerging from the processing than for the wares delivered under retention of title.
    7.5 If wares are inseparably mingled with other items not belonging to us, we acquire co-ownership in the new objects in relation of the value of our wares to the other, commingled objects at the time of the mingling. If the commingling occurs in a way that the object of the client must be regarded as the main object then it is deemed as agreed that the orderer transfers proportional co-ownership to us. The client safe keeps for us the sole ownership or co-ownership that has been generated in this way.
    7.6 We commit ourselves to release the securities entitled to us on demand of the client to the extent that the value of our securities exceeds the claims to be secured by at least 20 %; the choice of the securities to be released is incumbent on us. In the case of the simple retention of title the value of the securities is calculated according to our respective invoiced amounts, in the case of cessions of claims according to the invoiced amounts of the client from the reselling. With further processed ware the value of the securities is determined according to our price of further use. This price will be notified to the client in writing with the claiming of the retention of title. The client is authorised, from receipt of this notification and within a period of 14 days, to evidence purchasers to us, who are willing to pay a higher price than the price of reselling. To the extent that the payment is secured, we are obligated to release ware, which has been accordingly transferred by way of security.
    7.7 In case of a cheque procedure / bill of exchange procedure our retention of title only then perishes at all levels when the client has complied with all his obligations towards us.
    7.8 The alignment of individual claims into a running account or the balancing at the current account does not nullify our retention of title at all levels. If the client aligns a claim from a reselling of wares, which has been ceded to us, into a current account existing with his customers, then he is required to cede the current account claim to us in full. When the balancing has been realised, the acknowledged balance, which has been ceded to the amount of our original claim, takes its place.

  8. 8. Guarantee
    8.1 We issue a guarantee of 12 months from delivery of the items on all company-owned products, which the client has promptly and in connection with useful information, notified to us as faulty, if the fault(s) are confirmed in our own inspection. For trade products the guarantee of the respective producers is valid for at least 12 months though, Excluded from this liability for material faults are operational means, which are subject to the natural wear and tear and damages caused by excessive or improper usage (e.g. faults in the operation) of the products. In the case of material faults our liability is limited to the free of charge repair or the exchange of the faulty parts according to our own choice, within a reasonable period of time.
    8.2 To the extent that a delivered item shows a recognizable fault at the time of cession to the client this fault must be promptly notified to us. Non-recognizable faults must be notified to us in writing promptly after their becoming known within the guarantee period from Section 8.1. A delay in the fault notification results in the exclusion of the claims to the guarantee.
    8.3 Useless or faulty parts will be replaced or repaired by us according to our choice. In case of replacement the faulty parts become our property. In case of faults subject to the guarantee we bear the required costs for repair or exchange pf faulty parts. After expiry of the guarantee period the client is required to remunerate repair- or maintenance work at our regular rates of payment.
    8.4 If the client determines an obvious fault or anon-obvious fault and if he notifies this fault in time, then the client is required to give as the opportunity to examine and to remove or have removed the cause of the fault within an appropriate period of time. The purchaser is required to deliver to us at our cost the item, which has been reproved as faulty.
    With regard to the complexity of the technical delivery items the client is required to accept at least two attempts to repair. Should repair of the delivery item not be possible within one month from receipt of the fault reproves we shall allocate the required exchange instruments or spare parts free of charge until the repair of the delivery item has been completed unless this were not possible or not reasonable for us due to circumstances that we would have to evidence.
    8.5 The guarantee expires if the client induces the fitting of additional instruments or repair carried out by staffs that is not authorized by us. We do not accept any liability for damages or disturbances, which result from improper use, excessive use, insufficient maintenance, and the use of unsuitable operational means, abnormal conditions in the plant or from transport damages. The obligation of guarantee expires if any third parties carry out work on the delivery items or if any other form of interference or improper repair work can be recognised. We are not responsible for any third party preparatory work, which is faulty.
    8.6 The guarantee is only valid to the favour of our respective contract partner.
    8.7 In the case of unsuccessful attempts of repair or replacement delivery the client’s rights to depreciation of the purchase price (reduction) or withdrawal from the contract on the legal conditions.
    The client’s rights due to faults, which do not exist in an edifice or in a work, which exists in the rendering of planning- or supervision work, become statute-barred after one year from acceptance of the works. The short period of limitation is not valid if we become guilty of gross negligence as well as in the case of damage to the body or health within our responsibility or in the case of loss of life of the client. Our liability pursuant to the product liability law also remains unaffected.

  9. 9. Liability
    9.1 In the case of slightly negligible breach of obligations our liability is limited to the average damage, which is predictable, direct and typical for the contract. This also applies to negligent breach of obligation of our legal representatives or of our vicarious agents. We are not liable towards entrepreneurs in the case of slightly negligible a breach of immaterial contractual obligations.
    9.2 The above-mentioned liability limitations do not concern claims of the client from product liability. Furthermore the liability limitations of bodily harm and damage to the health outside our responsibility or loss of life of the client, within our responsibility.

  10. 10. Secrecy
    The client is obligated to treat confidentially and not disclose to unauthorised third parties or to utilize in a manner different to the one agreed, all and any operational secrets, which become known in the framework of the contract negotiations and of the contract execution, especially technical know-how of our enterprise.

  11. 11. General Provisions
    Our economic circumstances, type, scope and duration of the business relationship, any contribution of the orderer to causation and / or contribution to indebtedness as defined by the § 254 of the German Civil Code and a particularly unfavourable situation for the performance of the delivery must be considered in an appropriate way to our favour with regard to the determination of the scope of compensation claims according to para 3., 8. and 9. to be fulfilled by us. Especially the replacement services, costs and expenses, which the supplier is supposed to bear, must be in an appropriate relation to the value of the delivery part.

  12. 12. Final Provisions
    12.1 Any covenant or agreements with our representatives and field service workers require our express written confirmation in order to be legally effective.
    12.2 The client may only transfer his rights from this contract to third parties with our consent. The same is valid for cessions of claims against us.
    12.3 To the extent that nothing to the contrary results from order confirmation, the place of jurisdiction for the mutual legal relationship is Lemming.
    12.4 Our legal relationships to our clients is subject to German Law, under exclusion of the UN-Purchase Law (agreement of the United Nations about contracts about the international sale of wares -CISG -).
    12.5 If the client is a businessman or if he has his regular or general seat of residence outside Germany - all contractual and extra-contractual litigation the local and international exclusive jurisdiction of the local court of Neu-Ulm or the Local court of Memmingen -Chamber of Commerce - is agreed, according to competence. This jurisdiction especially also excludes any other jurisdiction, which is legally provided due to a personal or legal context. Nor is the client authorised to file a counter-claim, set-off, or retention against us before any other court than the exclusively competent court.
    12.6 If one or several conditions should be completely or partially ineffective, the effectiveness of the remaining conditions will not be affected by this. To the extent that an effective, appropriate part should be contained in the ineffective clauses, this part is maintained. The parties already now commit themselves to find a replacement regulation, that comes as close as possible to the result of the omitted clause.

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