General terms and conditions

as of 19.03.2014

1. Subject and contract conclusion

1.1. These General Terms and Conditions of Business will apply to the individual agreements (hereinafter the “Individual Agreements”) concluded between customers (hereinafter the “Customer”) and CAITRON GmbH, Ramerberg, Germany (hereinafter “CAITRON”) for the purchase of products described in more detail in the Individual Agreement by the Customer, or the creation of products described in more detail in the Individual Agreement by CAITRON for the Customer.

1.2. All CAITRON offers to conclude an Individual Agreement are non-binding. Once an order has been placed by the Customer, the Individual Agreement will only be concluded upon written confirmation of the order by CAITRON. Any deviating terms of business of the Customer not expressly acknowledged by CAITRON will not be binding upon CAITRON. This will apply even where CAITRON does not expressly object to the Customer’s deviating terms of business.

1.3. CAITRON’s offer to supply products does not also include maintenance of said products or training. If maintenance and/or training are agreed upon separately, CAITRON’s terms and conditions of maintenance will apply. Within the Individual Agreement, the parties may agree that CAITRON will assemble and/or install the products. In this case, further details of the same must be specified in said Individual Agreement.

1.4. In the Individual Agreement, the Customer and CAITRON may also agree upon call-off orders, in other words, orders for which, under the terms of the Individual Agreement, a certain quantity of products are to be purchased from CAITRON by the Customer over a specific period (usually 12 months) but where the quantity and date of the individual partial deliveries have not yet been determined at the time of the order confirmation. The total quantity of products for a call-off order must be purchased within the specified period after placement of the order. In so doing, the individual call may not be for less than the minimum order quantity stipulated by CAITRON. CAITRON will be entitled to early performance and delivery providing that this is not unreasonable for the Customer in a particular case.

2. Delivery

2.1. The delivery dates or deadlines specified by CAITRON in the Individual Agreement will always be the dates of dispatch of the goods from CAITRON’s factory. They will also be non-binding unless expressly otherwise agreed in writing. Delivery periods will start to run from confirmation of the order by CAITRON. If the Customer is required to obtain permits (e.g. import or export permits) or clearance for the delivery, or pay a deposit, before the products are delivered, the delivery period will be extended accordingly by the period until said permit/clearance is obtained or the deposit is received. If the Customer is behind with the necessary cooperative steps, the delivery period will be extended accordingly.  The delivery period will be deemed to have been complied with where the product has left CAITRON’s factory, or CAITRON has informed the Customer of the product’s readiness for dispatch, before expiry of the delivery period. Section 649 of the German Civil Code (BGB) is hereby excluded.

2.2. Delivery will be EXW (ex works) from Ramerberg as defined by the 2010 Incoterms. The products will be packaged as is customary in the trade and prepared for collection by CAITRON without insurance. At the Customer’s request, CAITRON will also select the carrier using its best judgement. The risk will pass to the Customer upon collection of the products by the carrier at the latest where CAITRON has agreed in the Individual Agreement to provide other services, e.g. shipping or assembly of the products at the Customer’s premises. CAITRON will be permitted to make partial deliveries and provide partial services providing that this is not unreasonable for the Customer in the individual case.

2.3. CAITRON will not be in default in respect of the Customer in the event of a delivery delay, even in the case of a binding delivery period/date, where the supply of product components by CAITRON's suppliers is delayed, in spite of prior confirmation of the delivery date, for reasons not attributable to CAITRON.
Likewise, CAITRON will not be in default in the event of unforeseen delivery difficulties (e.g. force majeure, strike, operational problems within the company itself or that of its sub-supplier) not attributable to CAITRON. The delivery period will be extended accordingly. CAITRON shall notify the Customer of any delay in delivery of the products immediately. In the case of a delay of more than three months, each of the contracting parties will be entitled to withdraw from the contract. No entitlement to compensation will arise from such a withdrawal.

3. Acceptance

3.1. After receiving each delivery, the Customer must accept the products within five working days of said delivery. Where assembly of the products by CAITRON has been agreed upon in the Individual Agreement, the Customer shall accept the products and the assembly within five working days from completion of the assembly.

3.2. Following expiry of this period, the products (and the assembly, where applicable) will be deemed to have been accepted unless the Customer makes a legitimate complaint to CAITRON beforehand on the grounds of major or substantial defects. Acceptance may not be refused on the grounds of minor defects.

3.3. If the Customer accepts defective products (and/or defective assembly, where applicable) despite being aware of the defect, it will only be entitled to assert claims on the grounds of defects if it expressly reserves the right to do so at the time of the acceptance.

4. Prices and payment

4.1. All prices are quoted ex warehouse of CAITRON. In the event of delivery periods of more than four months, CAITRON will be entitled to effect a reasonable increase in prices. This does not apply to call-off orders (clause 1.4). The Customer will be entitled to withdraw from the contract if CAITRON increases the prices by more than 15%.

4.2. Unless otherwise stipulated in the Individual Agreement, invoices must be paid in full by the Customer within 8 days of the invoice date. Early payment discounts or reductions will only be granted by express, written agreement. The Customer may only pay by cheque or bill of exchange if this has been agreed upon in the Individual Agreement. Bill of exchange fees and discount charges will then be borne by the Customer.

4.3. In the event of trade credit insurance obtained for the products ordered by the Customer being subsequently terminated by the insurer prior to confirmation of the order by CAITRON, or if it becomes apparent after confirmation of the order that CAITRON’s claim to payment is at risk due to the Customer’s inability to pay, CAITRON will be entitled to deliver the products in exchange for cash on delivery or to demand the provision of security. The Customer shall bear any costs incurred as a result of the cash on delivery. CAITRON will notify the Customer of this before delivering the products. Section 321 (2) of the German Civil Code (BGB) will also apply.

4.4. The Customer may only offset claims that are undisputed or have been legally established.

4.5. If the Customer is in arrears with payment, CAITRON may claim default interest of 8% over the base interest rate, subject to further claims for damages. CAITRON will not be obliged to further performance under any valid contract until all due invoice amounts, including interest, have been paid by the Customer.

5. Retention of title

5.1. CAITRON will retain ownership of all the products delivered by it (hereinafter the “Retained Goods”) until payment is made in full. Retained Goods will always be worked and processed on behalf of CAITRON as the manufacturer. Where Retained Goods are worked and processed with other goods not belonging to CAITRON, CAITRON will be entitled to joint ownership of the new item in the ratio of the value of the Retained Goods to the other processed goods at the time of the processing, until payment has been made in full.

5.2. The Customer will be entitled to resell the Retained Goods in the ordinary course of business. The Customer will not be entitled to dispose of the Retained Goods in any other manner (e.g. pledging the goods or assigning the same as security). The Customer hereby transfers all of its receivables from any resale of the Retained Goods to CAITRON, regardless of whether the Retained Goods are resold in a modified or unmodified state, or to one or more purchasers. If the value of the transferred receivables exceeds the realisable value of the Retained Goods by more than 20%, CAITRON will release the excess sum.

5.3. The Customer will be entitled to collect the receivables arising from the resale until revoked. At CAITRON's request, the Customer shall provide information about all receivables transferred pursuant to 5.2 above and shall hand over the necessary documents, in particular a list of the debtors including the name, address, the receivable amount and the invoice date. CAITRON will be entitled to notify the debtor of the Customer. The Customer shall notify CAITRON without delay of any seizures by third parties of the products subject to the retention of title by submitting a seizure execution report.

5.4. In the event of serious breaches of obligations on the part of the Customer, particularly in the case of payment arrears, CAITRON will be entitled to take back the Retained Goods.

6. Defects and complaints

6.1. The Customer and CAITRON hereby agree that the products have the properties set out in the Product Data Sheet for the respective product or in the Individual Agreement. Further details from CAITRON about the products and the intended use (e.g. in manuals or other materials) are not agreed upon and should be considered as approximate only.
The technical data for the products is subject to change by CAITRON where such changes are reasonable for the Customer while also taking CAITRON’s interests into account.

6.2. Within five working days of delivery of the products, the Customer will check the products for completeness, transport damage, external damage and other visible defects in accordance with Section 377 of the German Commercial Code (HGB).
Any damage and defects must be reported to CAITRON within this five working day period (but always before installation, processing or resale). Failure to do so will result in the products being deemed accepted, with the exception of any latent defects.  Latent defects not discoverable during the inspection must be reported to CAITRON by the Customer within five working days of their discovery. Failure to do so will result in those products being deemed accepted even in respect of said defect(s).

6.3. Claims for defects will lapse within one year of delivery of the products to the Customer in the case of a purchase agreement, or of acceptance by the Customer in the case of a contract for work and services (Warranty Period). Within this Warranty Period and at its own discretion, CAITRON - subject to 6.4 below - shall either rectify a defect in the products reported legitimately pursuant to 6.2, or replace the products with new goods. If this is not possible or reasonable for CAITRON, or if two rectification attempts fail, or the supplementary performance fails for some other reason, the Customer will be entitled to withdraw from the agreement or to a reduction in the price of the affected products. Subject to clause 7, there will be no further claims on the grounds of defects.

6.4. Where components of the products, or software built into the products (e.g. software from Microsoft Corporation, Redmond, Washington), are not manufactured by CAITRON itself, but are procured by CAITRON from third parties instead, the third party’s (Original Manufacturer) warranty for defects (Warranty) will apply. In this respect, CAITRON hereby excludes any liability for defects on its part and hereby transfers its claims against the original manufacturer on the grounds of defects to the Customer. Where the Customer is unable to assert any claims for defects against the original manufacturer in spite of legal action, for reasons of fact or law, then as an alternative, the Customer will be entitled to the claims against CAITRON set out in 6.3 above.

6.5. In order to rectify a defect, CAITRON may ask the Customer to send the defective component or product to CAITRON for repair and subsequent return, or ask the Customer to have the defective component or product ready so a CAITRON service technician can perform the repair at the Customer’s premises.

6.6. If operation and maintenance instructions are not followed, if interventions or modifications are made to the products, if components are replaced or if consumables that do not comply with the original specifications are used, any claims against CAITRON on the grounds of defects will be excluded in this respect. Claims for defects will also be excluded for damage caused by incorrect or improper use, incorrect installation by the Customer, natural wear and tear or negligent handling, unsuitable equipment, defective workmanship, or chemical, electrochemical or electrical influences where these are not attributable to CAITRON.

6.7. In the event of a complaint about defects from the Customer, the Customer will not be entitled to charge CAITRON for any costs, of any kind whatsoever, related to the reported defect before, during or after the defect is reported pursuant to 6.2. In particular, the Customer will not be entitled to deduct corresponding costs from the payment of outstanding invoices or offset the same against CAITRON’s outstanding receivables.  If the defect complaint by the Customer is justified, and if it is made in a timely manner and within the Warranty Period pursuant to 6.3, CAITRON shall remedy the reported defect in accordance with the foregoing provisions. If the defect is successfully remedied by means of redelivery or rectification, then subject to the provision in clause 7, the Customer will not have any further claims against CAITRON.    In the event of a claim by the Customer for a price reduction in accordance with 6.3 (3), the Customer will also not be entitled to deduct any reduction amount when paying outstanding invoices, or offset the same against CAITRON’s outstanding receivables.  Instead, CAITRON shall, at its own discretion, either deduct the reduction amount from the Customer’s next invoice or pay the reduction amount to the Customer separately.

6.8. Only the Customer is entitled to assert claims for defects against CAITRON and such claims may not be transferred.

7. Compensation

7.1. CAITRON will be only be liable without limitation for injury to life, limb or health and for wilful acts and gross negligence, including those by its legal representatives, executive staff and vicarious agents. CAITRON will only be liable for ordinary negligence in the event of a breach of an obligation where compliance with said obligation is of fundamental importance to the fulfilment of the contractual purpose (Material Obligation).

7.2. In the event of a breach of a Material Obligation due to ordinary negligence, CAITRON will only be liable for damages typically foreseeable in the course of supplying the products. In such cases, liability will be limited to a total of twice the order value up to a maximum of EUR 1,000,000.00. If the Customer is concerned about a higher risk of damage, it may conclude a special agreement with CAITRON to increase the maximum liability amount.

7.3. Liability under the German Product Liability Act will remain unaffected. Liability for data loss will be limited to the typical costs associated with recovery as would be incurred if regular backups had been carried out in accordance with the risk involved.

7.4. The Customer may only demand compensation instead of performance after first granting a reasonable grace period of at least 60 days, under threat of refusal to perform, and where said period has elapsed unsuccessfully. The same applies to withdrawal on the grounds of breach of obligations where there is no defect present at the same time. The Customer shall assert any claims for compensation against CAITRON within three months of gaining knowledge of the same, failing which said claims will be excluded.

7.5. The products are not intended for sale to consumers. The Customer will be responsible for ensuring that the products are not sold to consumers, even by its own purchasers. Any claims for recourse on the grounds of defects against CAITRON, pursuant to Section 478 of the German Civil Code (BGB), may not be asserted if this obligation is breached.

7.6. In the process of executing this contract, the Customer must adhere to all relevant statutory and regulatory provisions. If the products are resold abroad, the Customer must comply with the applicable export and import provisions in particular.  It must also ensure that its purchasers comply with the same.

7.7. Any product demonstrations or tests conducted by CAITRON at the Customer’s premises must only be performed on isolated test installations and are performed at the Customer’s own risk.

8. Software and copyright

8.1. CAITRON will grant the Customer a non-exclusive perpetual right over the software incorporated into the products in object code format to use the software incorporated into the product together with the product without any modification of the software. The Customer may not separate the software from the products and must prohibit its purchasers from separating the software from the products.

8.2. The Customer may not modify or process the software incorporated in the products, and may not make copies of the same. The Customer may not reverse engineer, disassemble, decompile or otherwise attempt to determine the software source code except where this is legally permitted in order to rectify errors or establish interoperability. Third parties may not be permitted to perform these actions either.

8.3. The Customer will not be permitted to remove or disguise the company logos, brand names, copyright notices, serial numbers, production date or other information placed by CAITRON or third parties on the products supplied.

8.4. The Customer will not be entitled to recreate the products supplied to it, or have a third party recreate the same.

9. Confidentiality

9.1. The Customer shall treat all of CAITRON’s trade and company secrets it may gain knowledge of in any way within the framework of this contract (including cost estimates, drawings, images and other documents, including any software) as confidential and shall not disclose the same to third parties without CAITRON’s prior consent. Facts which are, or fall into, the public domain through no breach of this confidentiality obligation and situations in which the Customer is obliged to disclose certain facts within the framework of a request from the public authorities or under a statutory obligation, will be excluded from this duty of confidentiality.

9.2. The Customer will also transfer this confidentiality obligation to its own employees and will remain bound by it for a period of five years after performance of the contract.

10. Miscellaneous

10.1. The place of fulfilment will be Ramerberg, Germany. The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship will be Rosenheim, Germany. German law will apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) of 1980.

10.2. In the event of individual provisions of these General Terms and Conditions of Business being, or becoming, invalid, this will not affect the validity of the General Terms and Conditions of Business overall or the validity of the remaining provisions. The same will apply to the Individual Agreement. In this case, the invalid provision will be replaced by one which most closely reflects the economic purpose of the invalid clause.

10.3. Amendments and additions to these General Terms and Conditions of Business and the Individual Agreement must be made in writing. This also applies to any waiver of this written form requirement.