§ 1 Subject of the GTC; Validity; Registered Office
I. These terms and conditions (hereinafter reffered to as: GTC) are effective for all contracts and, if the customer is a businessman, for all other obligations (pursuant to Articles 241, 311 German Civil Code - hereinafter reffered to as: obligation) between the company Uropower Ltd., represented by F.M. Wiest, registered office in Verkehrshof 17, 14478 Potsdam (hereinafter reffered to as: supplier) and his customers, suppliers and contractors (consumers or businessmen pursuant to Articles 13, 14 German Civil Code - hereinafter reffered to as: customer). As far as not else formulated, the term customer stands also for his agents, representatives and subcontractors.
II. These GTC keep valid post-contractual. If the customer is a businessman, these GTC are valid pre-contractual and effective for unilateral obligations if the customer knows or has to know that the supplier uses GTC currently or used them in the past; for obligations which are no contracts, the statutory law and right meant for contracts has accordingly to be used.
III. These GTC are included into a new obligation, which are valid at the day of origination. When changing an existing obligation and if the customer does not immediately and explicitly contradict, these GTC are included and older one substituted, which are valid at the day of entering into negotiations or, if there are no negotiations, which are valid at the day when the changes take effect.
IV. GTC valid in an existing obligation are substituted by newer GTC, which are valid at that day when the supplier informs the customer of that effect and, if the customer is a consumer, sets him an appropriate period of contradiction and points out to him that it will take effect when not contradicting within the period.
V. The customer is not entitled to include his own contradicting or differing GTC into the obligation. On a contravention and if these terms and conditions should take effect, because of higher ranking statutory law or right, the customer has to reimburse the customers damage, to waive of claims and to relieve from claims of third parties, which were not originated or not in that extent without the contravention. It is not to judge as an acceptance or a consent if the supplier acts toward the customer or a third party to serve the purpose of initiating or processing an obligation and if he knows the customer wants to include his ows GTC or considers them to be included.
VI. Registerd office of the suplier is Potsdam in Germany.
VII. If there are GTC of the supplier in a non-german language, they have to be considered only as translation from the german version but not as valid, official or identical with the original. In that case only the original GTC in german language are valid and effective; the customer has to provide an own translation to avoid and eliminate mistakes in translation.
VIII. The regulations of these GTC concerning things are effective to software.
§ 2 Realization of Contracts; Conditions of Obligations
I. The customer is bound to an offer to the supplier for 14 days, as far as he does not determine another period or another period is agreed. The supplier will not be bound by the rules of the Commercial Letter of Confirmation (German law institution: "kaufmännisches Bestätigungsschreiben (KBS)").
II. The supplier is bound to an offer to the customer for 7 days, as far as he does not determine another period or another period is agreed.
III. If facts or conditions of obligations are explained or agreed verbally and if they are disputed by the customer, then the supplier is freed from the burden of proof as far as the customer refers to them.
§ 3 Achievement of Obligations; Claims; Right of Adaptation or Termination
I. The supplier is entitled at his choice:
1.) to perform obligations completely not or only partly and to free from an obligation partly or completely or
2.) to serve a performance that is equal in price and quality or
3.) to adapt the time for performance and maturity,
if the fulfilling of a performance by the supplier:
a) a not only short-term obstacle stands against the delivery to the supplier by a third party, who is obliged to him, with a performance, that is necessary for the performance by the supplier or
b) requires an economical expenditure that is higher than one third of the value of the performance and is higher than Euro 500 or
c) is possible only with economical loss, because of personnel, calculatory or other actual or legal facts, unless it is not reasonable to expect from the customer to waive for the performance or the rest of the performance or
d) an entrepreneurially reasonable, general an not only short-term decision by the supplier stands against, to serve the performance not any longer in that country the performance shall be served in or no exportation to there shall be done any more or
e) is not possible any longer in that country the performance shall be served in, because of legal facts or force majeure.
In all cases of paragraph I the supplier has to inform the customer immediately and expenditures have not to be balanced out; if the customer is a businessman, there will be no compensation of a damage in trust. After declaration of a right of paragraph I by the supplier, the customer is entitled to demand a termination of the whole obligation when it is not reasonable to expect to hold him in the obligation.
II. Articles 346 and 347 II of the German Civil Code have to be applied corresponingly when terminating an obligation according to paragraph I.
Rights of articles 275 I-III, 323, 324, 326 of the German Civil Code keep untouched; paragraph I has to be applied also if the supplier is liable for the obstacle of inability to perform.
III. Toward a customer who is a businessman the supplier is entitled to serve a performance partly.
IV. Contrary to a claim of the supplier the customer is only allowed to set a counterclaim off if the claim has become legally effective or it is undisputed or accepted by the supplier. Sentence 1 has to be applied also toward a third party after transfering the obligation from the supplier to him.
V. The customer is not entitled to transfer claims against the supplier to a third party; Article 254a of the German Commercial Code keeps untouched.
§ 4 Maturity; Place of Performance; Passing of Risk
I. Performances of the customer are due immediately unless the supplier, the invoice or the purpose of the performance determines something else.
II. As far as not else determined, the registered office of the supplier is the place of performance for all obligations arising from the obligation.
III. As far as not excluded by the nature of the performance, the risk of performance passes pursuant to Article 447 of the German Civil Code at the registered office of the supplier; this applies also if the supplier engages a third party with serving the performance. Sentence 1 has to be applied also when carrying things by the supplier himself or the third party himself or by their agents, representatives and subcontractors. If a performance of the supplier can be served only at another place determined by the customer and without the previous possibility of concretization pursuant to Article 243 II of the German Civil Code, then the risk of performance passes there. There can be different places where the risk of performance passes if a performance is partible. For performances of the customer the risk of performance passes pursuant to paragraph II.
IV. When remitting money or doing money orders the registered office of the bank of the supplier is the place of performance and the risk of performance passes there.
§ 5 Payments; Securities
I. If there are several obligations to pay for and as far as nothing else determined by the supplier, the payments of the customer are effective made to the oldest due obligation. Article 367 I of the German Civil Code keeps untouched. A determination by the customer pursuant to Article 367 II of the German Civil Code is effective only when explicitly accepted by the supplier.
II. The property of things owned by the supplier passes into the ownership of the customer only when the customer has fulfilled all counterperformances of the concrete obligation (conditional sale/property). If there are further disputed or undisputed, due performances the customer owes the supplier, no matter on which right they are based on (also compensation of damages and enrichment), or if the supplier grants the customer an account in a collection of accounts which is brought up-to-date automatically (account balance), then the property passes pursuant to sentence 1, and if not else determined by the supplier, not before all of these performances are completely fulfilled. Sentence 1 and 2 apply also to things not owned by the supplier but about which he is entitled to dispose for passing over ownership.
III. The customer has to insure each thing standing under conditional sale/property pursuant to paragraph II with effect from time of risk passing (§ 4 III) and from an actual cash value of Euro 1.500 net up, against larceny, desctruction, deterioration and other damages (hereinafter reffered to as: derogation of a thing) and also for coincidence. On the event insured against, the claim against the insurer is tranferred to the supplier to the value of the sum insured; the right of the supplier to assert a claim against the customer in return for transferring back the claim, keeps untouched. Both when a derogation occurs on a thing itself or on a right on it or when strongly to concern that, then the customer has immediately to inform the supplier pursuant to Article 126b of the German Civil Code.
IV. With passing the risk of performance pursuant to § 4 III all claims of the customer against third parties are transferred to the supplier which result from re-alienation, processing, joining or mixing of things, that stand under conditional sale/property, with other things. The same applies to claims of the customer against a third party that result from larceny, benefit, deterioration, derogation or destruction of the thing. In that case of processing things, the supplier has to be judged as manufacturer pursuant to Article 950 of the German Civil Code; he receives the property of all intermediate and end products as well as all rights to benefit from and use them; in that case the customer keeps and stores these things for the supplier free of charge. Sentence 1 to 3 apply accordingly to rights on the thing.
V. If the realizable cash value of the securing rights, pursuant to paragraph IV, exceeds the claims to secure, pursuant to paragraph II, more than 30 percent (security limit), then the securing rights are partly transferred back to the customer as high as the exceeding part. On initial exceed of the security limit (pursuant to sentence 1) the claims
are transferred (pursuant to paragraph IV) only up to it. When colliding with property rights, security rights/interests or other rights of third parties on a thing which has originated from joining or mixing, then the supplier receives - depending on his security interest - in the case of paragraph IV sentence 3 only partial co-ownership; the security interest of the supplier depends on the value of the (counter)performances, pursuant to paragraph II sentence 1 and 2, at that point in time when the security right is originating, and it is to determine relatively to the security interest of third parties.
VI. With fulfilling all claims of the supplier which have to be secured pursuant to paragraph II, all security rights, pursuant to paragraph IV, are completely transferred back to the customer.
VII. The customer has to immediately inform the supplier if a security right (pursuant to paragraph II or IV) is getting completely or partly ineffective or does not originate automatically as intended. If third parties intervene to a security right or is that strongly to concern, then the customer has to immediately inform the supplier about the intervention pursuant to Article 126b of the German Civil Code, and the third party about the existing security right.
VIII. The customer is entitled to use and re-alienate things standing under conditional sale/property of the supplier only in an orderly manner in which business occurs and under reservation of property/ownership of the supplier (extended conditional sale/property) and under the same conditions the conditional sale/property toward the supplier stands. The customer is not entitled pursuant to sentence 1 if the extended conditional sale/property cannot originate or an origination is not ensured. For the rest the customer has to omit everything that may endanger the purpose of securing the supplier, especially securing transferences of things under conditional sale/property of the supplier, pawning/mortaging or benefiting pursuant to sentence 1, if the conditional sale/property cannot originate or an origination is not ensured.
IX. The customer is entitled to assert claims pursuant to paragraph IV against third parties for account of himself as far as and as long as the supplier does not explicitly contradict; the customer has to hand over to the supplier all information and things necessary for assertion by the supplier himself.
X. If the customer is in default the supplier is entitled to demand a return of a thing standing under conditional sale and to do a distress sale for the purpose of exploitation. The same applies to that case the insolvency is imminent or occuring whereby the customer has to immediately inform the supplier about that. A demand for return by the supplier is not to judge as a withdrawal or other termination of the obligation in doubt.
§ 6 Warranty; Limitaion
I. Descriptions of products or performances on brochures, websites or other media by the supplier are basically done without guarantee and only in that case binding guarantees of conditions and durabilities, when explicitly declared by the supplier with the term "guarantee" or "guaranteed"; at the rest they are concretely binding only when within an offer, an confirmation of order or an invoice.
II. The limitaion of warranty is 12 months toward a businessman; for used things there is no warranty if a limitation is not explicitly agreed; for replaced or repaired parts of a thing the limitation is 6 months, beginning at the moment when the reparation or replacement is completed and ending not before the limitation of warranty for the whole thing ends. Toward a customer who is a consumer the limitation of warranty complies with the legal prescribed minimum.
III. The supplier is primarily entitled to repair, replace or re-perform (post-performance). If the re-performance is abortive, the customer who is a consumer is entitled to diminish or to withdrawal from the contract; if the customer is a businessman, the same applies only if the supplier gives up the post-performance or if it is not reasonable to the customer any more or again.
IV. As far as reasonable and not else determined by the supplier, the customer who is a businessman has to send things for post-performance to the registered office of the supplier and to advance the expenses.
V. The customer has the obligation to immediately investigate and/or examine delivered things, produced or served performances and acquired rights for defects and damages as far as specialized and economically reasonable, and to immediately inform the supplier pursuant to Article 126b of the German Civil Code on existence. Sentence 1 applies also for hidden damages and defects after detection. If the customer who is a businessman is not able to do a necessary and reasonable investigation or examination pursuant to sentence 1, then he has to engage a third party with making that. If the customer omits to do an immediate information, then the performances are judged as defectless, things and rights as defectless delivered or acquired and the customer waives any claim of warranty and, as far as not legally invalid, any compensation of causal damages.
VI. The customer loses any warranty rights and guarantees on a thing purchased from the supplier, if he carries out a reparation or replacement on it by himself or a third party and this is not permitted by the supplier. Sentence 1 applies correspondingly for works manufactured by the supplier or by third parties based on instruction of him.
VII. If a third party manufacturer or provider grants warranty rights or other rights which stand beside or go beyond the warranty of the supplier (independent guarantees), then these do not touch the obligations of the supplier; this applies also if the supplier passes such guarantees to the customer or advertises that such guarantees exist.
§ 7 Liability; Compensation of Damages
I. The supplier is not liable toward the customer for slightly negligent caused damages and breaches of obligations by himself , his agents, representatives and subcontractors unless that is about a main-obligation; for grossly negligent caused damages and breaches of obligations the supplier is liable only when foreseeable for him.
II. Out of an obligation with the customer the supplier is liable toward a third party only if there is a contract for the benefit of the third party and only in the same extent as toward the customer.
III. Out of a concrete obligation the supplier is liable in totality and, especially independent of quality and quantity of the damages and breaches of obligations, the quantity of injured parties and recipients of benefit, the duration of the damaging event as well as the directness of the damages and breaches of obligations, only up to Euro 25.000.
IV. If the customer is a consumer the paragraphs I to III apply not on grossly negligence and on damages of life, body or health. The paragraphs I to III apply only as far as a more extensive and mandatory liability is not legally prescribed.
V. If the customer contravenes against concrete obligations of an obligation or legal provosions, that shall protect the supplier against damages or enroachment, omits the customer obligations or does he cause damages toward the supplier, then the supplier is entitled to demand an appropriate, flat rated reimburse of damages or compensation for a depreciation at the amount of at least Euro 50; the amount is due instantly also when disputed by the customer. The right of the customer to proof that there is no damage or no depreciation or it is substantially lower, as well as other rights of the customer, no matter on which right they are based on, keep untouched.
VI. If something is dependent on know or must-know of facts or circumstances by the customer or on obligations of informing the supplier, then the customer is responsible for every negligence.
VII. As far as another mandatory liability is not legally prescribed or comes from this GTC, the customer has to bear the costs of his obligations by himself.
VIII. Does the customer purchase a thing from the supplier and is that thing brought abroad, then the customer has to care for compliance and fulfillment of all related statutory and legal provisions and obligations by himself; as far as essential for processing such an obligation, the customer has to hand out and to send all necessary information, documents and other things.
§ 8 other Obligations
I. If the customer perceives, in the context of the business relations with the supplier, knowledge of facts or circumstances which are usually handled confidentially or has the supplier clearly evident an interest of confidentiality against third parties, then the customer has to avoid everything that the confidentiality or secrecy may violate and to do everything that protects it. Sentence 1 applies correspondingly for left things which are completely or partly owned by the supplier and for data, no matter on which way transmitted or on which medium stored.
II. Paragraph I applies also if the customer has a right of disposition or benefit on the protected interests named there, but the interest of the supplier is not insubstantial and the restriction is reasonable to the customer.
III. Both when occuring or strongly concerning a breach pursuant to paragraph I, the customer has to immediately inform the supplier pursuant to Article 126b of the German Civil Code, if to assume the supplier has an interest in that; the last has to be assumed in doubt.
IV. The customer has to destroy or to make unusable protected objects, pursuant to paragraph I, when they are not needed anymore or the purpose of protection does require that and if it is reasonable to him; things left temporarily by the supplier have to be given back to him.
V. The customer has to care for, that paragraphs I to IV apply correspondingly also toward third parties, if they get access to the protected things or interests named there and if this is attributed to the customer.
§ 9 Applicable Law; Jurisdiction; Misc
I. To all obligations for which these GTC are effective to, German law has exclusively to be applied; they have to be judged as German obligations.
II. As far as another mandatory liability is not legally prescribed, the place of jurisdiction is Potsdam in Germany. The supplier keeps entitled to enforce claims against the customer at another permissible place of jurisdiction.
III. The United Nations Convention on Contracts for the International Sale of Goods (CISG) has not to be used for obligations for which these GTC apply to.
IV. International patent-, trademark- and copyright law applies as far as it grants the supplier more extended rights as German law. The same applies to patent-, trademark- and copyright law of that non-german country, whose law would have to be applied to the obligation pursuant to international law.
V. Should a clause of these GTC be partly or completely ineffective, then the effectiveness of the rest of the clause, the other clauses and the rest of the obligation keep untouched. Does it concern an essential provision or regulation of the obligation, then the customer is, on demand by the supplier and together with him, obliged to find a substitution for that which meets the purpose of the ineffective provision or regulation closest.